The Constitutional Framework of US Government

7/28/2019 The Constitutional Framework of US Government

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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 seeksto establish the role, powers and functions of theinstitutions of government.

• It is the fundamental law of the USA, the highest legalauthority 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 individualliberties

• Balances the rights of federal government and therights 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 andJudiciary all have checks and balancesupon each other to make sure onegroup in government does not gain

too much power.• These groups are interdependent

upon each other, and for them tofunction properly they must be

separate in their personnel. ThereforeObama and Hilary Clinton had to giveup their Senate seats in 2008 whenthey become part of the executive.



Checks and Balances in the USA

Executive

JudiciaryLegislative

• Can Impeach Judges

• Can pass a Constitutional

Amendment

• Ratifies Judicial Appointments

•

Judicial review of actions



Criticisms of the Separation of Powers

• It has been argued that the system offersan ‘invitation to struggle’, and is designedto cause gridlock.

• This is particularly so when there is dividedgovernment in Washington; where theexecutive is of a different party thanCongress, or if the two houses of Congresshave different party control.

• This can be seen by the fiscal cliff crisis of late 2013/early 2012, where the dividedgovernment of Washington could not cometo a consensus on avoiding huge budgetcuts until after the cuts were supposed tocome into force on New Years Day

• However, many praise this system as itmeans that the branches of governmentMUST work together, meaning governmentpolicy is joined up, and party politics doesnot dominate. While there may be smallcrises such as this, they force the parties tochange 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 toensure 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?



How to Change the Constitution:

Formal Amendment•

Detailed in Article 5 of Constitution• 2 methods of achieving:

• 2/3 Majority in both Houses and then ratification by ¾ of states

• Constitutional Convention is called by 2/3 of the states, and then

ratified by ¾ 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 RightsAmendment 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.




Supreme Court Interpretation

• The Supreme Court is used to interpret the USconstitution; as it contains vague language, and is nottotally applicable to modern day situations.

• Therefore, they have to put a definition on what theconstitution says. If they change their mind on what itis the constitution says, they can change theconstitution.

• For example, Plessy v Ferguson 1896 set down that‘equal protection of the laws’ meant that blacks couldaccess 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.




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 informalsense 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 Court’s 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 temporarygovernments

• It constrains the exercise of government with differentbranches, avoiding elective dictatorship

• Individual liberties are entrenched, widely know, andsupported

• Contains flexibility to be amended in response to thechanging 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 isa 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 nationalgovernment.

• It is sometimes called dual sovereignty.

• Each of the 50 states have a State Constitution, aState Governor (executive), a bicameral StateHouse and Senate (except for Nebraska’sunicameral legislature, and a State SupremeCourt



What does the Constitution Say?

• The constitution does not mention the word‘federalism’; a compromise between thefederalists who wanted strong nationalgovernment 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 ¾ of all

states• And the 10th amendment guarantees states rights

through the reserved powers.

H d F d li k?



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, regulateinterstate 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 constitution’s wording, such as providing for the ‘general welfare’. This

leads to many Supreme Court cases, notably 2009’s 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.



Phases of Federalism• Dual Federalism:

• Period before the big federalgovernment if the New Deal, whereareas of federal government

influence and state governmentinfluence were separate and clearlydefined.

• Power rarely overlapped, and so wasknown as ‘layer cake’ federalism asthe two cakes of federal and statespheres of influence never touched

or mixed and fell into distinct layers

Layer Cake. What does

the cream represent?

No one knows. Maybe

it’s the dreams of

millions of US citizensenjoying 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 nationalspending 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 theprovision they spend them in a certain way.

• For example, LBJ gave grants as part of his Great Society Programme, but itdid have restrictions upon how it could be spent, such as an helping endsegregation and discrimination of blacks and upon ending poverty, much tothe 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?



New Federalism• 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 theywish.

• This continued into the Clinton era, who famously declaredthat the ‘era of big government is over’.

No cake analogy here, but here’s

some Batternberg. Maybe the

different blocks of colour

represent block grants. Maybe not.



Federalism under Bush and Obama•

Federalism under Bush began with a philosophy of small government, and being an ex-governor, Bushunderstood the appeal of extra rights for states

• However Bush was victim of circumstance, with

demands from the war on terror, homelandsecurity, Hurricane Katrina and No Child Left Behindmeant he oversaw a massive expansion in federalpower.

• This has continued under Obama, with 2/3 of the$787 billion dollar stimulus going in federal directedspending programmes and the other third going to

states.



Main Advantages of Federalism• Provides an additional set of Checks and Balances

• Allows diversity and traditions of the 50 states to bereflected.

• 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 byacting as policy laboratories to see if they would worknationally, such as caps on carbon emissions in NewYork and education vouchers in Wisconsin.



Main Disadvantages of Federalism•

Too much fragmentation of government can lead togridlock. The states can be obstructive and refuse tocooperate, such as how southern states refused tointegrate after Brown v Topeka in 1954 based on theconcept of states rights.

• The variety of state laws on issues such as abortion,gun ownership and death penalty causes confusion anda lack of cohesion in the country.

• There are significant economic inequalities betweenrich and poor states and variable levels of provision forthe poor there

• There is democratic overload, with too many electedoffices and too many elections leading to apathy.



Protection of Rights in US Constitution.• Bill of Rights:

• These are the first 10 amendments, ratified together in 1791.They are entrenched by the constitutional amendmentsprocess, 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 beenexpanded by interpretation to include freedom to burn theflag, and spend money on political campaigns as CitizensUnited 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.

5th A d t G t th i ht f th d



• 5th Amendment: Guarantees the rights of the accusedand includes the ‘due process clause’ where no personwill 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 deathpenalty.

•

9th

Amendment: concerned with the rights ‘reserved tothe 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



Enforcement of These Rights• There are also other amendments protecting American’s rights, such as the 14th

Amendment, which gives ‘equal protection of the laws’.

• The role of the Supreme Court protects these rights through constitutional interpretationand judicial review. Activist courts are more likely to protect and extend rights whereas morerestrained courts are less likely to.

• The definition of these rights however is changeable over time, subject to Supreme Courtinterpretation.

• 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 following9/11.

•

The existence of the Guantanamo Bay camp.

The Constitutional Framework of US Government

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