The Constitution

1. The Constitution

2. Background - • 1787 – Philadelphia Convention – 55 Founding Fathers (delegates representing 12 of the 13 states) met to review the system of government set up in the declaration of independence in 1776.

3. Separation of Powers - • The three branches of government : the executive, judiciary and the legislature are act independently and interdependently. • This system was decided on by the Founding Fathers because they were scared of tyranny. • They also wanted a system of checks and balances. • In terms of personnel, the branches were completely separate – no person can be in more than one branch of the government. • Eg. when Senator Barack Obama was elected president, he had to resign from the Senate. • However – it would be more fitting so describe the government as being separate institutions, sharing powers.

4. Checks and Balances -

5. Checks and Balances - • By the President on Congress : • He can recommend legislation to Congress – State of the Union Address. Eg. Bush in 2002 used it to address his ‘war on terror’ and budget priorities. • He can veto bills passed by Congress – public veto/pocket veto. Eg. Bush during his 8 years in office, used the regular (public) veto 11 times – 2007 – veto on the State Children’s Health Insurance Programme.

6. Checks and Balances - • By the President on the Judiciary : • The president nominates all federal judges – to the trial court, appeal court and the Supreme Court (this meaning the most important) – by appointing judges with the same philosophy, presidents can hope to mould the outlook of the Court. Eg. Bush managed two appointments – John Roberts (chief justice 2005) and Samuel Alito (associate justice 2006). • The president has the power of pardon. Eg. in 1974 – President Ford pardoned his predecessor Nixon for any crimes he may have committed during the Watergate affair.

7. Checks and Balances - • By Congress on the President : because the Founding Fathers were so scared by tyranny, the imposed the most checks on the executive – Congress exercises 8 significant checks. • Congress can amend, block and reject items of legislation recommended by the President. Eg. 2001 Bush’s Education Reform Bill passed however it was significantly amended. However, Congress blocked Bush’s attempt at immigration reform in 2007.

8. Checks and Balances - • By Congress on the President : - Congress override a President’s veto – they would need to gain a two-thirds majority in the House and Senate. Eg. during Bush’s office term – Congress overrode 4 of his 11 regular vetoes – including, his vetoes of 2007 Water Resources Development Bill and the 2008 Food Conservation and Energy Bill.

9. Checks and Balances - • By Congress on the President : • ‘The power of the Purse’ – all the money needed by the President for his policies must be voted for by Congress. If Congress refuses, it could hinder what the President is trying to do both in domestic affairs and foreign affairs. Eg. the Democratic Congress tried to limit Bush’s spending in 2007 on the military operations in Iraq.

10. Checks and Balances - • By Congress on the President : - The Senate have the power to ratify treaties negotiated by the President. To do this, they need a super-majority vote (two-thirds). Eg. 2006 – they ratified the USUK Extradition Treaty. In 1999 the rejected the Comprehensive Test Ban Treaty; 48-51 (18 votes short). This was the first major treaty to be rejected since the Treaty of Versailles in 1920.

11. Checks and Balances - • By Congress on the President : • The Senate have the power to confirm many presidential appointments to the executive branch (cabinet members, heads of the CIA and FBI) and all those he makes to the federal judiciary. • A majority vote is needed to approve nominations – rejections are unlikely as the president will usually informally consult with key Senators. Eg. Robert Bork – rejected in 1987 for a Supreme Court Position, John Tower – rejected in 1989 for the position of secretary of defence.

12. Checks and Balances - • By Congress on the President : both chambers of Congress have the power of impeachment – this is the ultimate check they perform. • The House – they are able to formally accuse any member of the executive or judiciary including the president. A super-majority vote is needed. Eg. Bill Clinton was impeached by the House in 1998 for perjury and obstruction of the justice. • The Senate – once the House has impeached, the Senate holds the trail. If found guilty by a two-thirds majority – the person is removed from office. Eg. the Senate found Clinton not guilty on both impeachments – perjury – 45-55 (22 short) and obstruction of the justice – 50-50 (17 short).

13. Checks and Balances - • By Congress on the judiciary : - Impeachment – the House has the power to impeach any member of the judiciary – the Senate to hear the trail – with super-majorities – the member may be removed from office. Eg. from 1986 – 89 : Congress removed from office three federal judges. Harry Claiborne for tax evasion, Alcee Hastings for bribery and Walter Nixon got perjury.

14. Checks and Balances - • By the Judiciary on Congress – - Judicial Review – this is a massively significant check, it enables the Supreme Court to declare Acts of Congress unconstitutional and therefore null and void. Eg. 1997 – Reno v. American Civil Liberties Union – the Supreme Court deemed the Communications Decency Act unconstitutional. 1998 – Clinton v. New York City – declared the Line Item Veto Act unconstitutional.

15. Checks and Balances - • By the Judiciary on the executive – - Judicial Review – again this is where the courts have the power to deem the actions of the executive unconstitutional. Eg. Hamdan v. Rumsfeld (2006) – the Supreme Court declared the military commissions set up by the Bush administration to try suspected members of Al Qaeda held at Guantanamo Bay unconstitutional.

16. Overall importance of checks and balances - • They encourage bipartisanship - law passed, treaties ratified, appointments confirmed and budgets fixed only when Congress and the president work together & there is compromise. • By working in a non-partisan way, more is achieved. Eg. Bush achieved his Education Reforms (2001-2002) by working with congressional Democrats (Senator Edward Kennedy). Eg. Bill Clinton failed to get his healthcare reforms passed by Congress (1993-94) because he worked in a partisan way and ignored many of the views within Congress.

17. Overall importance of checks and balances - • However :gridlock can become a problem. - Recent presidents have accused the Senate of blocking judicial nominations for partisan reasons. = a number of posts are left empty for months/years = slowing the work of the courts. Eg. most notably – Robert Bork (1987) and Clarence Thomas (1991)

18. Overall importance of checks and balances - • However : divided government can also be an issue. • This is a situation when one party controls the presidency and the other party controls Congress. during the 40 years between 1969 – 2009, 22 years have been under a divided government. this has become the norm. • Some argue this leads to more effective checks and balances – there is more scrutiny/questioning/debate over legislation, nominations and treaties. When there is a united government, things are ‘nodded’ through. Eg. during the years of Republican control in Congress under Bush (2003 and 2006) – Congress ‘nodded’ through Bush’s ideas in regards to the Iraq War.

19. Strengths and Weaknesses of Checks and Balances - • - It stops any one branch becoming too powerful or acting in a way that isn’t beneficial for the majority. = this was what the Founding Fathers wanted – they feared tyranny (because of British rule). • - The rights of the citizens are protected – hasty decisions aren’t able to be made – again stops any branch becoming too power/tyranny. • -However : checks and balances can slow the working of government down – making passing legislation harder and longer. It also means that the executive can act decisively. Gridlock and divided government are also an issue caused by checks and balances.

20. Federalism - • The word federalism isn’t mentioned anywhere in the Constitution however it is implied – • It is written into the enumerated powers of the three branches of the federal government. Eg. Congress will coin money, the president will be commander in chief ect. • Shown in the implied powers of the federal government – eg. the “elastic clause” which allows Congress to make any law they see fit in carrying out their powers. • The federal government and state governments are given certain concurrent powers; eg. the power to tax. • The 10th Amendment reserved all remaining powers ‘to the state and to the people’. • The Supreme Court will be the umpire of all disagreements between the federal and state governments.

21. Federalism - • There was a change in federalism because of the changing circumstances in the US – for the later part of the 19th century and the first two thirds of the 20th century a number of factors led to an increased role for the federal government. • Expansion – from the 13 colonies up and down the Atlantic Coast, settlement spread all the way to the Pacific Coast. • Population growth – the population grew from just under 4 million (1790) to 275 million (2000). • Industrialisation – this needed government regulation. • The Great Depression (1929) – the states looked to the federal government for a answer to the problems. They did not have the necessary resources to deal with the consequences however, the federal government did. Eg. Roosevelt’s New Deal. • Foreign Policy – with the break out of WW2 – USA became a superpower – increased role – exclusive jurisdiction over foreign policy.

22. Federalism - • Phases of Federalism – • Dual federalism – first 150 years of the USA (1780s – 1920s) – during these years the state governments exercised the most political power – the main focus was on states rights – federal government was limited to mainly issues on money, war and peace. This was known as ‘layer-cake’ federalism because the federal and state governments had distinct areas of responsibility. • Cooperative federalism – (1930s -1960s) this was caused mainly by the Wall Street Crash and the Great Depression – this was when the state and federal governments worked together to solve the problems facing the country. Eg. poverty, health, education, transport and national security. The role of the federal government increased – more departments were introduced eg. defence, health, welfare and education. There were more federal schemes and grants. The federal government had more of a role in several policy areas they hadn’t before eg. education, transport and welfare. This became known as ‘Marble-cake federalism because the two levels of government had become mixed. • New federalism – (final three decades of the 20th century) – this era saw a rise in grants – money from the federal government to the states to use within policy areas. There was a move towards decentralisation. This came under four Republican presidents (Nixon, Ford, Regan and Bush). There were five reasons for this : • the federal programmes (new deal/great society) hadn’t been successful – waste of money. • The federal government had failed to tackle social issues (gun crime, drugs, abortion). • There was a growing distrust of “Washington politicians” – the Watergate affair, the Vietnam war – all lowered the trust of politicians. • Mostly associated with the Republican party – the Republican presidents, Congress and state governors allowed the party to put these policies in order.

23. Federalism - • Under George Bush – • It was expected that he would continue the move towards shrinking the size of the federal government and to decentralisation HOWEVER he didn’t. • There were five reasons for this; the Iraq War, homeland security, expansions of both Medicare and education programmes and the Wall Street and banking collapse of 2008.

24. Federalism - • The consequences of federalism – • Legal consequences – there is huge variety in state laws. Eg. the age at which people can marry, drive or have to attend school. There are both federal and state courts. • Political consequences – all elections in the US are state-based – they choose the ways in which candidates will be chosen, how candidates get their name on the ballot, how the people are to vote ect. Political parties are essentially decentralised and state-based. – Eg. Texas Democrats are more conservative than Massachusetts Democrats and so on. Congress is very much state-based in regards to its representation. • Economic consequences – there are huge federal grants given to states – the complexity of the taxation system – income tax is levied by the federal and state government ect. • Regionalism – the South, the Midwest, the Northeast and the West have different cultures and accents, as well as differing religious groups, racial groups and ideological beliefs.

25. Federalism - • Pros – • It permits diversity (differing states). • Prevents more access points in the government. • There is better protection for individual rights. • States become “policy laboratories” – trying new solutions for old problems. • It is well suited for large nations (like the USA). • Cons – • It can mask economic and racial inequalities. • Can frustrate the “national will” – making solving problems more complex. • The federal-state government relationship is a continual source of conflict and controversy. • Overly bureaucratic – costly to run and resistant to change. • Overall : it has proved to be an appropriate system for the US – it has adapted itself to the ever-changing nation – although the federal-state relationship can change and attract criticism – the overall strengths outweigh the weaknesses.

26. The Amendment Process - • The founding fathers knew changes would need to be made however, made it deliberately hard to change the constitution. • There is a two stage process – involving super-majorities in both. • All amendments must first be proposed by Congress. • There have only been 27 amendments – but over 9,000 proposals.

27. The Amendment Process -

28. The Amendment Process - • Stage 1 – the proposal stage – they have to be proposed by Congress (two thirds majority) or a national constitutional convention made up of at least two thirds of the states (this hasn’t been used). • Stage 2 – the ratifying stage – either three-quarters (38 out of 50 states) of the state legislatures must vote to ratify (proposals from Congress) or three-quarters of the states must hold conventions and vote to ratify (national constitutional convention).

29. Flexibility of the Constitution - • No : • Its too hard to change – only 27 amendments in over 200 years. • Checks and balances are too rigid – they do not allow for a 21st century executive – can’t act freely because they are so rigorously checked – gridlock. • Separation of powers no longer as good as before – more cooperation is needed between branches – the executive needs more control over Congress, particularly when decisive, speedy action is needed. • Modern governments mean the executive need to be powerful and make decisions – constitution stops this especially checks and balances. • Governments rely on conventions not authorised by the Constitution (judicial review, executive agreements and cabinet selection) – this threatens rights/freedoms. • Apart from one amendment the Constitution does nothing to protect the rights of women – the failure of the ERA proves this. • Civil rights for black people took over a 100 years to be protected by the federal government (1964). • The Constitution doesn’t stop infringements of civil liberty. Eg. measures taken against suspected terrorists after 9/11. • The Constitution doesn’t mention many issues crucial in today’s society – mass democracy, civil rights for women, gay rights, education. • It prevents change in areas such as gun control and capital punishment. • Fails to protect the rights of some minorities – Slaves and Native Americans count for three-fifths od f a citizen. Black citizens also lacked protection up until 1964.

30. Flexibility of the Constitution - • Yes : • The Constitution was left vague by the Founding Fathers – meant that it could develop and change over time through conventions and decisions of the Supreme Court – can change to keep up to date with society. • It isn’t a problem that there has only been 27 amendments – codified constitutions are meant to be hard to change, it protects the citizens from a government that is too powerful. • There has been little change to the Constitution– this proving there has been little need to change it. • Citizens in the US need the protection of checks and balances and separation of powers. It stops the executive become a dictator – it prevents tyranny. • There has been manage changes that weren’t written into the Constitution – use of cabinet, political parties, congressional committees. This shows that the Constitution is flexible. • The Constitution regulates the lives of over 300 million people and regulates the relationship between federal and state governments. There is little resentment towards the Constitution – there is great pride in the Constitution. • The provisions are still effective. Eg. scrutiny of Presidents and the rest of the government – the impeachment of Clinton (1998) and the scrutiny of presidential appointments.