1.4 Interpretations and Debates Around the US Constitution and Federalism

Extent of Democracy Within the US Constitution

KEY TYPES OF Democracy:


Liberal democracy:

  • protection of rights, free and fair elections and limited government are of paramount importance

Representative democracy:

  • people elect officials to represent them in institutions of government as trustees (not delegates)

US Constitution seems to advance both a liberal and a representative democracy, although aspects of the Constitution seem opposed to these ideals


See 'liberal and representative democracy' tables

Constitution’s Impact on the US Government Today

Strengths of US Constitution

Weaknesses of US Constitution

Codified

Vagueness

Amendment Process

Separation of Powers

Federalism

  • Powers of government are clearly set out
  • Document is judiciable = making it difficult for any branch to become tyrannical
  • e.g: executive orders
  • Ensures the Constitution can be reinterpreted over time without the need for formal, lengthy amendments
  • e.g: abortion
  • Process clearly works - shown by the fact there have been 27 amendments
    = means the Constitution can be updated to respond to the wishes of the population in a representative democracy
  • e.g: Twenty-Sixth Amendment
  • Constitution provides each branch with enumerated powers (and checks on other branches)
    = ensures the government remains limited, well scrutinised and responsive to the wishes of the governed
  • e.g: Trump and the Tax Cuts and Jobs Act
  • Guaranteeing powers to states = 10th Amendment
  • ^ Constitution upholds the principle of federalism
  • ^ Protects the rights and diversity of the states in a world where federal government has grown considerably
  • e.g: states’ varying responses to George Floyd protests

Codified

  • Constitution is rigid = can become outdated
  • ^ Can make aspects of the document irrelevant to modern life
  • e.g: 2nd Amendment

Vagueness

  • Branches of government can expand their power = diminishing the power given to other branches or states in the Constitution
  • e.g: power to declare war

Amendment Process

  • Process is incredibly slow
  • Allows for minority rights and values to be ignored
    = Constitution may be considered outdated = less relevant today
  • e.g: 26th Amendment took 202 years to pass

Separation of Powers

  • Division of powers often leads to gridlock
    = government is fundamentally not fulfilling its function of governing (undermining its power)
  • e.g: 2019 shutdown

Federalism

  • Rights of states have been eroded by federal policy and the power of the SC
  • US population has grown to over 300 million people = protecting individual rights has often come at the cost of the identity of individual states
  • e.g: abortion rights

US Constitution places considerable constraints on itself - most of these impacts assessable as positive or negative

Positive Impacts

  • Each branch of government is given explicit powers
  • These cannot be removed
  • Ensures each branch remains relevant (even in times of divided government)
  • Frequent elections force representatives to listen to their constituents
  • Legitimacy of government ensured
  • Acceptance of Judicial Review = disagreements can be settled in the Supreme Court
  • Necessity for branches to work together through checks and balances = majority interests are usually upheld
  • Should increase support for government

Negative Impacts

  • Separation of powers & checks and balances can lead to gridlock
    = government is not actually governing
  • Federalism = sovereignty is shared
  • Reduces the power given to federal government and allows states to sue the federal government
  • Role of Judicial Review = minorities/minority views have been able to stall the functions of government
  • Vagueness of the Constitution has meant ‘loopholes’ have been exploited = has allowed for the dominance of one branch over another
  • e.g: executive orders

Debates Around the Extent to which the US Remains Federal Today

2019:-

  • 1 federal government
  • 50 state governments
  • 90,075 local governments

= highlights the extent of federalism within the US

Consequences of above:

  • Criminal punishments differ between states
  • 25 states have the death penalty as a legal form of punishment
  • Elections run according to state rules
  • Some states use punch cards, others use electronic voting or paper ballots
  • Differing electoral practices between states during COVID-19 = led to election controversy in 2020
  • Taxes vary across each state

Sales, income and property tax:

  • vary in the amount claimed by each state
  • vary in whether they are collected by the state itself or by a local government
  • Rights of citizens vary between states
  • e.g: legal driving age, the age of consent or the right to use marijuana

Judicially:

  • court system is different in each state
  • states have used the federal court system to effectively challenge for their own rights

e.g: abortion, immigration and gerrymandering have all been challenged by states in the Supreme Court

IMPORTANT: federal government relies on state governments


e.g: in Obamacare, there are sections which rely on state enforcement and allow for each state to interpret and apply law as it sees fit


Congressional law - can be accepted or rejected by states