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The US Constitution and Federalism - Coggle Diagram
The US Constitution and Federalism
Principles of the US constitution
Limited government
Done through separation of powers and 'checks and balances'
Wanted to protect individual freedoms
Separation of powers
Divide into three separate, individual branches
Each has separate article in the constitution
'Ineligibility clause' meant no individual can hold office across two branches
Checks and balances
Madison 'ambition must be to counteract ambition'
Means each branch oversees actions by other branches
Bipartisanship
Skeptical about the roles of the parties and wanted to ensure the constitution remained a compromise
No provision for a two-party system in the constitution so the branches are required to cooperate
Federalism
Recognise need to defend rights of states but also have a strong centralised government
Meant states still kept some sovereignty so states keep rights and culture
Divides political authority
The Nature of the US constituion
Codification and entrenchment
US constitution is codified as it is written in one document
The Constitution is judicable meaning judges can interpret
US Constitution is outlined
Article 1 - The legislative branch
Article 2 - The executive branch
Article 3 - The judicial branch
Article 4 - The states (relationships between them and admittance of new ones)
Article 5 - Amendments
The Constitution is entrenched meaning it is difficult to amend (2/3 Congress and 3/4 of states)
Only 27 amendments and 10 of which were passed together in 1791 forming the Bill of Rights
Vagueness of the Document
Due to the Founding Fathers having conflicting views on states, slavery, power of the central government etc vague language has been used to create a compromise
First 3 Articles are enumerated powers eg Article 1 states "lay and collect taxes, duties, imports and exercises" Congress is explicitly given this power
Congress is given the power to "make laws which shall be necessary and proper for carrying into execution the foregoing powers" known as the necessary and proper clauses and has been used to expand the powers of Congress
Enumerated Powers
Those which are written down in the constitution
They outline the power a branch can exercise
For example Article 2 states "the President shall be Commander in Chief"
Implied Powers
Powers which are interpreted from those laid out in the constitution
Interpreted from the vague language
Memorandum from the Justice department in 1947 led to the President also being commander in chief for the Air-force, Marines and the Coast Guard
Not all vague eg Right to bear arms
Article 1 is more detailed than article 2 due to fears of a strong executive
Argued its vagueness is the only way it has survived over 200 years
Amendment Process
4 ways of amending the Constitution
1: 2/3 of the House and Senate then ratified by 3/4 of the states legislatures (used 26 times)
2 : 2/3 of the House and Senate then ratifying conventions in 3/4 of the states (used once - 21st amendment)
3 : 2/3 of state legislatures call for a national constitutional convention then 3/4 of state legislatures ratify (never used)
4 : 2/3 of state legislatures call for a national constitutional convention then ratifying conventions in 3/4 of the states (never used)
Reasons for the difficulty
Founding fathers made it this way as they didn't want the constitution changing on circumstances
Structural changes (party polarisation) have made amending more difficult
Vagueness lets constitution evolve without amendment due to Supreme Courts power of judicial review
Americans cautious about tampering with it
Bill of Rights
The first 10 amendments passed at once in 1791 to end disagreements
1st - Freedom of religion, speech, the press and assembly
2nd Right to keep and bear arms
6th - Right to trial
Amendments 11-27
13th to 15th - Proposed and ratified immediately after civil war to end slavery and guarantee civil rights (1865-70)
17th - made the Senate an elected house (1913)
19th - gave women the right to vote (1920)
26th - lowered the voting age to 18 (1971)
18th - (1919) has been appealed
Advantages of the process
Prevents short lived trends
Means that all decisions made are well thought through
A balance budget has been proposed 134 times since 1999 to ensure the government spends what it earns
1/5 of Americans actually want the 2nd amendment changed
However there has been an amendment passed which was repealed that was a ban on alcohol (18th)
Prevents tyranny of the majority
The most populous 5 states account for nearly 37% of the US vote
Clinton won California by 4 million votes in 2016 helping explain her victory in the popular vote
However when it comes to voting for a change in the constitution as little as 2% of the population voting against it will lead it to not passing
Supreme Court protects the principles
Trump has shown frustration when he faced policy defeats (deportation plans, healthcare bill etc)
However, Supreme Court is increasingly politicised
Disadvantages of the process
Outdated aspects
2nd amendment with Biden and Obama speaking out against it after Sandy Hooks shooting but can't do anything
Electoral college means that in 2016 and 2020 returned vote was different to the majority vote undermining democracy
Difficult for minority to bring change and tyranny of the minority
Equal rights amendment got only 37/38 states so minority (27%) overruled the majority
The Defence of Marriage Act (1996) defined marriage federally as one man and one woman overturned by the Supreme Court but no protected
Chances of an amendment recognising LGBTQ couples is slim as only 4% of the population identify
Creates a very powerful Supreme Court
2018 issued controversial ruling favouring Colorado baker who refused to make a wedding cake for an LGBTQ couple
Upheld Trump's order which banned travellers from 5 Muslim majority countries coming to the US
Checks and Balances
Legislative checks on the executive
Impeachment (attempted twice with Trump)
Can amend, block or reject legislation (2017 Trump said he would 'repeal and replace' Obamacare but it was blocked
Can override Presidential vetoes (Obama veto against the Justices Against Sponsors of Terrorism Act 2016)
Can reject Presidents proposed budget (2018 Trump disagreed with budget over border security funding)
Power to declare war (used 11 times)
Power to ratify treaties (1990 Senate rejected the comprehensive test ban treaty)
Legislative checks on the judiciary
Impeachment (Refused to hear Obama nomination of Merrick Garland)
Can propose constitutional amendment to overturn decision made by the Supreme Court (1896 SC removed power from Congress to levy income tax but 1916 amendment allowed this)
Executive checks on the Legislative
President can veto legislation (Trump 2020 vetoed the Iran War Powers regulation)
Can use executive agreements to avoid Senate ratification (Obama knew Congress wouldn't ratify any nuclear deal negotiated with Iran so signed the JCPOA)
Executive checks on the Judiciary
The presidential pardon can overturn judgements made by the judiciary (Trump pardoned over 1500 involved with capital riots)
Judicial checks on the Legislative
Can declare an act of Congress unconstitutional using judicial review (2013 United States v Windsor where the Defence of Marriage Act was declared unconstitutional)
Judicial checks on the Executive
Can declare the executive actions unconditional with judicial review ( 2014 National Labour Relations board v Noel Canning where it was ruled Obama had acted unconstitutionally)
Divided Government
An effective government
Can put election promises into action
Can pass laws
Open to scrutiny
Divided government is more effective
Bills scrutinised more closely
Treaties checked more carefully
Nominees questioned more rigorously in the confirmation process
Not since 1935 has the Senate rejected a treaty of a President of its own party
Only twice in the last 50 years has Congress overridden a veto of a President of its own party
Divided government is less effective
Party polarisation has made bipartisanship more difficult to achieve
The 98th Congress and the 116th Congress (36 years apart) had a very similar set up however the 98Th congress came up with enough bipartisan agreement to pass 667 laws however 116th only passed 344 laws)
Federalism
Is a mode of political organisation that unites separate states within an overarching political system in a way that allows each to maintain its own integrity
Federal powers
Coining money
Declaring war
Raising armies
Conducting foreign affairs
Rules of naturalisation
Regulating interstates and foreign commerce
Depth of education
Government powers
Conducting election
Establishing local governments
Regulating interstate commerce
Ratifying constitutional amendments
Education
Concurrent powers
Taxation
Lawmaking
Law enforcement
Chartering banks
Eminent domain
Establishing courts
Borrowing money
Federalism changing over time
Pre 1929 - Dual Federalism (state and federal governments were co-equal with distinct boundaries with states having most power)
1930s to 70s - Co-operative Federalism
Federal government grew after the Wall Street Crash and WW2 under Roosevelt
Increase in power and scope of the federal government eg with unemployment benefits, work programmes and providing local schools
Distinctions had blurred (New Deal)
Johnson spending increased from $10.6 billion in 1963 to $259 billion in 1969
1970s to 2000s - New Federalism
Drive to decentralise using block grants which was money given back to the states to be used at their discretion
President Nixon introduced but both Democrat and Republican Presidents were sympathetic to this
Federal powers rolled back but still close to co-operative than Dual federalism
Punitive Federalism
Under Trump and Biden they use threats and punishments to surpress state and local action that run contrary to policy preferences (due to polarisation
Trumps clamp down on Sanctuary cities by signing an Executive Order that anywhere that failed to comply with federal immigration laws will not recieve any federal funds beyond what they are entitled by law
Trump took the US out of the Paris Climate agreement leading to the U.S. Climate Alliance which is a group of states which are still committed in following through the governments broken promises
Biden's vaccine requirements for healthcare workers said that if the hospitals didn't comply then they would have to shut down/ cut back on their services
Comparing the US and UK constitutions
Nature and Sources
Similarities
Both contain conventions (US have a cabinet not mentioned in the constitution)
Both provide 3 branches of government
Both provide sub-national governments
Both Bicameral in nature
Both want representative democracies
Both have written aspects of their constitution
Differences
US is codified with one document whereas the UK is the opposite
US is entrenched whereas UK in un entrenched so can't be changed easily
UK has fusion of powers whereas US has separation of powers
Revolution emerged in the US whereas UK has evolved over time with a constitutional monarchy
Legislature
Differences
US has bicameral system where both cambers have separate legislative powers and the executive branch cannot sit here whereas in the UK there is fusion of powers
Both house in the US are elected whereas only one is in the UK
UK has unequal power between the houses unlike the US
There are more checks in the US than in the UK
There are differences in the election terms
The executive is more dominant in the UK as the Prime Minister makes the proposal
Similarities
Two chamber system that passes legislation (bi-cameral)
Both have a degree of checks and balances so scrutinise the executive (UK vote of no confidence)
Both chambers pass legislation and have elected elements
Executive
Similarities
President and the Prime Minister are head of the government
Both can use military power without the legislative
Both are divided in departments
Differences
US has separation of powers whereas UK has fusion of powers
The Prime Minister has less checks and balances than the President (due to majorities and party whips)
The Prime Minister is first among equals whereas the President has full power (cabinet system is stronger in the UK)
Cabinet meetings are every week in the UK whereas they are random in the US
Judiciary
Similarities
Both Supreme Courts were designed to provide an independent judiciary which is fully separate
Both have the power to interpret the meaning of their constitution
Both have system of detailed scrutiny of potential justices ad all justices are legal practitioners
Differences
US can declare an act of Congress unconstitutional whereas in the UK they can only deem legislation ultra vires mainly based off the HRA
The UK can only declare formal statement of incompatibility whereas in the US executive must accept the ruling and cannot amend the law
US SC has much more power as it gets it authority from the constitution whereas the UK the SC was made and can be abolished by Parliament
Federalism v Devolution
Similarities
Both are separation and dilution of powers between national and subnational government
Both systems enable local traditions and trends
Both have autonomy over things and national government has kept power (eg foreign policy but autonomy over education)
Both receive funding from national governments and are dependent on it (Medicaid and Barnett formula)
Tensions are seen between national and subnational (Brexit)
Differences
Origins in the UK are laws in recent years whereas the US states have had federalism since the start
States work alongside the government and are more powerful than the UK's devolved areas which can be easily rid of
All of the US is a federal system wheres only Scotland, Wales and Northern Ireland are devolved in the UK so not all affected