The Constitutional Framework of US Government

What is a Constitution, and Why Is This One So Important?

A constitution is an authoritative set of rules that seeks to establish the role, powers and functions of the institutions of government. It is the fundamental law of the USA, the highest legal authority in the USA, and all other laws are below it It is the source and limit of government power Designed to try and balance having a strong and decisive governments while protecting individual liberties Balances the rights of federal government and the rights of state governments. It is codified in a single document and entrenched.

Key Principles:
Representative and Accountable Government Separation of Powers A Federal Structure of Government Limited Government

The Separation of Powers

The Legislative, Executive and Judiciary all have checks and balances upon each other to make sure one group in government does not gain too much power. These groups are interdependent upon each other, and for them to function properly they must be separate in their personnel. Therefore Obama and Hilary Clinton had to give up their Senate seats in 2008 when they become part of the executive.

Checks and Balances in the USA

Executive

Judicial review of actions

Judiciary

Can Impeach Judges Can pass a Constitutional Amendment Ratifies Judicial Appointments

Legislative

Criticisms of the Separation of Powers

It has been argued that the system offers an invitation to struggle, and is designed to cause gridlock. This is particularly so when there is divided government in Washington; where the executive is of a different party than Congress, or if the two houses of Congress have different party control. This can be seen by the fiscal cliff crisis of late 2013/early 2012, where the divided government of Washington could not come to a consensus on avoiding huge budget cuts until after the cuts were supposed to come into force on New Years Day However, many praise this system as it means that the branches of government MUST work together, meaning government policy is joined up, and party politics does not dominate. While there may be small crises such as this, they force the parties to change and work together

Flexibility of the Constitution

Any constitution is faced with finding a balance between being applicable in the modern day but also maintaining its core values. The founding fathers saw it as important to ensure constitutional rules were not changed by governments regularly, in order to secure the values of the country they established live on However, are the safeguards of the founding fathers too much?

Detailed in Article 5 of Constitution 2 methods of achieving: 2/3 Majority in both Houses and then ratification by of states Constitutional Convention is called by 2/3 of the states, and then ratified by of the states This second method has never been used before. This system is so prolonged as to ensure there is total national consensus on the issue, and as a result means there have only been 27 amendments, 10 of which were ratified at the same time and were the Bill of Rights Even if the tall demand of two 2/3 majorities is overcome, the ratification can kill amendments. In 1972 the Equal Rights Amendment was designed to entrench equality for American women, passed both houses, but was not ratified in its 7 year deadline despite an extension by Congress. Other legislative progresses meant the amendment was unnecessary.

How to Change the Constitution: Formal Amendment

How to Change the Constitution: Supreme Court Interpretation

The Supreme Court is used to interpret the US constitution; as it contains vague language, and is not totally applicable to modern day situations. Therefore, they have to put a definition on what the constitution says. If they change their mind on what it is the constitution says, they can change the constitution. For example, Plessy v Ferguson 1896 set down that equal protection of the laws meant that blacks could access government schemes on a separate but equal basis. However, Brown v Topeka 1954 changed this, and allowed blacks to enter any state school they wished, and effectively ended segregation.

How to Change the Constitution: Developing Conventions

The US constitution is an incomplete guide to the US political system as many informal regularities become part of the done thing in American politics. Therefore, the US constitution in its most informal sense of being the way in which the US political system works is changed by the emergence of these conventions. For example, the whole concept of EXOP and the federal bureaucracy, the huge power of congressional committees and the Supreme Courts power of Judicial review has emerged from conventions.

Strengths of the US Constitution

Sovereignty is with the constitution and its major principles are entrenched, safe from interference from temporary governments It constrains the exercise of government with different branches, avoiding elective dictatorship Individual liberties are entrenched, widely know, and supported Contains flexibility to be amended in response to the changing political conditions It is safeguarded by the independent Supreme Court There is no pressure for change from the American people.

Weaknesses of the US Constitution

More rigid than the uncodified UK constitution, meaning outdated laws can remain despite changing conditions; such as the 2nd amendment right to bear arms Gives too much power to unelected and unaccountable judges. Growth of Presidential and Federal power have not been constrained enough in terms of the rights of individual states Can cause Gridlock and dysfunctional government

Federalism
The USA has a federal constitution, where there is a division of power between the national (federal) government and the individual states. This is in comparison to a unitary constitution, where all power is held by the national government. It is sometimes called dual sovereignty. Each of the 50 states have a State Constitution, a State Governor (executive), a bicameral State House and Senate (except for Nebraskas unicameral legislature, and a State Supreme Court

What does the Constitution Say?

The constitution does not mention the word federalism; a compromise between the federalists who wanted strong national government and the anti-federalists who wanted greater states rights. However the Constitution gives stats equal representation in the Senate Ensures amendments must be ratified by of all states And the 10th amendment guarantees states rights through the reserved powers.

How does Federalism work?

The Constitution gives state governments guaranteed powers and their own areas of authority, and therefore causing a struggled between the two layers of government. There are the enumerated powers, given in the constitution that sets out that the federal governments takes responsibility for defence, currency, naturalisation of citizens, regulate interstate commerce and provide for the common defence. There are also the inherent powers, that are inherently more suited for federal government such as foreign relations an d waging war. The implied powers are the last set, which are not explicitly shown in the constitution, but are shown in the constitutions wording, such as providing for the general welfare. This leads to many Supreme Court cases, notably 2009s challenges to Obamacare Federal government is supreme over state government, through the interpretation of the necessary and proper clause- The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. over the issue of a national bank. The 16th Amendment meant federal income tax was allowed, and marked a great increase in federal control. The reserved powers are those left to the states, and guaranteed by the 10th amendment, and form the basis of states rights such as law enforcement and electoral law The concurrent powers are those shared by state and federal government such as taxation, health, education and safety.

 Dual Federalism: Period before the big federal government if the New Deal, where areas of federal government influence and state government influence were separate and clearly defined. Power rarely overlapped, and so was known as layer cake federalism as the two cakes of federal and state spheres of influence never touched or mixed and fell into distinct layers

Phases of Federalism

Layer Cake. What does the cream represent? No one knows. Maybe its the dreams of millions of US citizens enjoying life liberty and the pursuit of happiness. Or, where the metaphor falls down

Cooperative Federalism
This came after the huge expansion of federal power, intervention and regulation that came as result of the New Deal and the need for a national spending campaign to revive the economy. The cooperation comes from the partnership between the two levels of government, where federal funds were provided to the states on the provision they spend them in a certain way. For example, LBJ gave grants as part of his Great Society Programme, but it did have restrictions upon how it could be spent, such as an helping end segregation and discrimination of blacks and upon ending poverty, much to the annoyance of some southern states. This has been known as Marble Cake federalism, with the two parts of government mixed and intertwined with each other.

Marble Cake. Is federal government brown or white? Who knows?

 This new form of federalism came about as result of the Presidencies of Nixon and Reagan as a reaction against the growth of federal government power. New federalism emphasises State Rights, small government, and getting the government off the backs of people. The defining characteristic of this type of federalism is the block grants provided to the states that can be spent as they wish. This continued into the Clinton era, who famously declared that the era of big government is over.
No cake analogy here, but heres some Batternberg. Maybe the different blocks of colour represent block grants. Maybe not.

New Federalism

Federalism under Bush and Obama

Federalism under Bush began with a philosophy of small government, and being an ex-governor, Bush understood the appeal of extra rights for states However Bush was victim of circumstance, with demands from the war on terror, homeland security, Hurricane Katrina and No Child Left Behind meant he oversaw a massive expansion in federal power. This has continued under Obama, with 2/3 of the $787 billion dollar stimulus going in federal directed spending programmes and the other third going to states.

 Provides an additional set of Checks and Balances Allows diversity and traditions of the 50 states to be reflected. Provides opportunities for citizens to the politically involved at a local level. The states act as training ground for political leadership, Bush governor of Texas, Clinton of Arkansas, and Obama a State Senator. States can be autonomous, but also show initiative by acting as policy laboratories to see if they would work nationally, such as caps on carbon emissions in New York and education vouchers in Wisconsin.

Main Advantages of Federalism

Main Disadvantages of Federalism

Too much fragmentation of government can lead to gridlock. The states can be obstructive and refuse to cooperate, such as how southern states refused to integrate after Brown v Topeka in 1954 based on the concept of states rights. The variety of state laws on issues such as abortion, gun ownership and death penalty causes confusion and a lack of cohesion in the country. There are significant economic inequalities between rich and poor states and variable levels of provision for the poor there There is democratic overload, with too many elected offices and too many elections leading to apathy.

 Bill of Rights: These are the first 10 amendments, ratified together in 1791. They are entrenched by the constitutional amendments process, and are guaranteed constitutional rights 1st Amendment: protects freedom of religion, the press, speech and assembly. It begins Congress shall make no law abridging these freedoms. Freedom of speech has been expanded by interpretation to include freedom to burn the flag, and spend money on political campaigns as Citizens United v FEC 2010 case states. 2nd Amendment: Protects right to bear arms. 3rd Amendment: protects rights of property owners and a broader protection of privacy 4th Amendment: guarantees freedom from unreasonable searches and seizures of persons and property.

Protection of Rights in US Constitution.

 5th Amendment: Guarantees the rights of the accused and includes the due process clause where no person will be deprived of life, liberty, or property without due process of law. Protects the right to remain silent 6th Amendment: Sets out rights for those standing trial and protects against arbitrary arrest and imprisonment 7th Amendment: deals mainly with civil law suits 8th Amendment: bans cruel and unusual punishment, which is controversial given the existence of the death penalty. 9th Amendment: concerned with the rights reserved to the people and states that are not found in the Bill of Rights. Been used in privacy cases and in Roe v Wade. 10th Amendment: concerned with the rights reserved to the states

There are also other amendments protecting Americans rights, such as the 14th Amendment, which gives equal protection of the laws. The role of the Supreme Court protects these rights through constitutional interpretation and judicial review. Activist courts are more likely to protect and extend rights whereas more restrained courts are less likely to. The definition of these rights however is changeable over time, subject to Supreme Court interpretation. The USA has a strong rights culture, with citizens being aware of their rights However, these words on paper does not mean rights are actually protected. For example: The denial of voting rights and civil rights to black Americans after the 14th and 15th Amendments when segregation and Jim crow laws prevailed. The internment of Japanese Americans without trial during the Second World War. The passage of the PATRIOT act, a raft of anti-terrorism acts passed by Congress following 9/11. The existence of the Guantanamo Bay camp.

Enforcement of These Rights