The Constitution

The Constitution

1. THE RULE OF LAW AND CONSTITUIONAL RIGHTS

   • RULE OF LAW
   • CONSTITUTIONAL RIGHTS
     • Rights that are granted or reserved to people in the constitution, particularly the Bill of Rights
     • How are rights protected?
       • Judicial Review
       • Acts of Congress
       • State law
       • The executive
       • Other amendments
       • The media
       • Pressure Groups
     • 1st Amendment: Freedom of expression
       • School Prayers (want to make compulsory), flag burning, press censorship
     • 2nd: Right to bear arms
       • Gun control
     • 4th: Unreasonable search + seizures prohibited
       • Stop and Search
     • 5th Rights of accused persons
       • Digital info and Biometric unlocking on phones

2. CONSTITUTIONAL AMENDMENTS

   • 2 stages:proposal and ratification
     • Proposal
       • Congress: Needs 2/3s majority in both houses
       • National Constitutional Convention: called by at least 2/3s of the states (never used)
     • Ratification
       • State Legislatures: 3/4s of the state legislatures must vote to ratify, often within a stated time limit
       • State Constitutional Conventions: 3/4s of the states must hold Conventions and vote to ratify
   • 6 amendments proposed by Congress but failed at ratification stage
     • Most recent one to guarantee equal rights for women proposed in 1972 but was ratified by only 35 states (3 short of the 3/4 required)
   • Why has it been so rarely amended?
     • Founding Fathers made the process deliberately difficult
     • The vagueness of the constitution allowed the document to evolve without the constant need for reform
     • Supreme's court power of Judicial Review allows the Court to amend the meaning of the Constitution while the words remain largely unaltered
     • The reverence with which the constitution is regarded makes many politicians cautious of tampering with it
     • The 18th Amendment, regarding the prohibition of alcohol, was repealed (by the 21st Amendment) just 14 years later

3. SEPARATION OF POWERS + CHECKS AND BALANCES

   • SEPARATION OF POWERS: Political power is distributed among 3 branches of gov independently and interdependently due to fear of tyranny. Decided that no person person could be in more than one branch at a time. It is actually the institutions that are separate and not the powers, there are shared powers which is what the checks and balances are based upon.
     • Influenced by Motesquieu that argued for a separation to avoid tyranny.
     • When Obama was elected as President he had to resign from the Senate as did his vice president Joe Biden
   • CHECKS AND BALANCES:
     • Checks by the President on Congress: The President recommends legislation to Congress in the State of Union Address which is delivered to a joint session of Congress on TV. Can veto bills passed by Congress and call congress into session
       • State of Union Address Obama Jan 2010: focus on healthcare reform proposals urging Congress 'Lets get it done!' 2 months later Obama signed the bill into law.
       • Obama used the veto on 12 occasions: in 2016 veto of a bill that would have rescinded parts of his healthcare reform.
     • Checks by the president on the Courts: The President nominates all federal judges and chose judges that match their own judicial philosophy to mould the court for years. Presidential pardon.
       • Obama's Appointments: Sonia Sotomayor (2009) and Elena Kagan (2010)
       • Obama pardoned: 142 people during his final 3 weeks.
       • Clinton pardoned: 140 people including Mark Rich (tax fugitive)
     • Checks by the Courts on Congress: Judicial Review
       • Texas V. Johnson 1989
     • Checks by the Courts on the President: Judicial Review (can declare executive actions unconstitutional and issue warrants for prosecutions)
       • Bush V. Gore 2000
     • Checks by Congress on the President: Amend/ delay/ reject legislation, override Presidents veto, power of the purse, declare war, ratify treaties (senate), investigation, impeachment. Trial, conviction and removal from office. Reject appointments, amend consitution.
       • Override Presidents veto: Congress overrode President Bush's veto of legislation protecting doctors from 10.6% cut in their reimbursement rates when treating medicare patients 2008. The override vote in the house (383:41) easily met 2/3 threshold needed to nullify the Presidents veto. About an hour later the Senate voted to override 70:26

4. THE MAKING

   • 4th July 1776: 13 colonies declare indpendence 'no taxation without representation' start of war of independence and ends in 1783 fighting for 'natural rights'
   • The Articles of Confederation: States are sovereign. Congress resolve disputes and make treaties. Central government could not levy taxes or regulate commerce. States are unwilling to give power they just got back. 1st written constituion.
   • The Philadelphia Convention: 55 delegates, representing 12/13 states (Rhode Island refused to send any). Confederacy was too weak but were frightened of strong gov as could lead to tyranny. Federalism was the compromise (strong centre but represented states rights and individual freedoms)
   • The Conneticut Compromise: 2 Opposing plans - Virginia Plan (frame tht benefits large states) OR New Jersey Plan (address concern of smaller states, created to so neither type of state had an obvious advantage)
   • Codified (full and authoritative set of rules written down in a single text): Seven articles, first 3 explain how the 3 branches work and their powers.
   • Blend of Specificity and Vagueness: implied powers (inference) , Necessary and Proper Clause ('elastic clause'), Reserved powers (reserved states alone or to the people), Concurrent powers (shared be federal and state government)
     • Implied powers: Power to draft people into the armed forces may be implied from Congress's enumerated power to raise an army and navy
     • Reserved Powers: Tenth Amendment 'the powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to he States respectively, or to the people'

5. FEDERALISM

   • Origins: Framers were dedicated to the idea of limited government. They were convinced gov power poses a threat to individual liberty, the excercise of ogv power must be restrained, to divide gov power is to curb it and prevent it's abuse
   • Local Government: more than 87,000 units of local gov, each of these local units is located within one of the 50 states (units created through constitutions and laws, Local govs are excercising state law through their own means.
   • Under W. Bush (Republican 2001-2009): expected he could continue to shrink federal gov and move to decentralisation but he did not. The 5 reasons he makes federal gov bigger:
     • Iraq War
     • Homeland security
     • Expansions of medicare
     • Expansion of Education programmes
     • Wall Street and banking collapse 2008
   • Under Obama (Democrat 2009-2017)
     • Domestic Focus: Ratio of state and local gov to federal employees was the highest since the 1930s and the new deal, federal assisstance to states increased from 3.7% GDP to 4.6% GDP, federal money accounted for 30% of state spending in 2009, $246 billion of $787 billion of Ecoomic stimulus went to states compared to $20 billion under Bush 2003
     • Why is it different: Increase in federal spending due to state children's health insurance programme, expansion of medicaid health care reform, higher education expenditure (Pell Grants 2010), $4.35 billion invested in Race to the Top programme to boost education in the states
     • Obama was widely criticised by Republicans as they saw his health care reforms as the end of federalism and the start of socialism. 2010 midterm elections- 74% of Republicans and 60% of independents agreed that 'the federal government is doing too many things best left to businesses and individuals'

6. PROCESS OF AMENDMENT AND NEED FOR REFORM

   • Step 1 (proposal): Proposed by 2/3 vote of both houses (proposed by 2/3 vote of national convention called by congress on request of 2/3 of state legislature.
   • Step 2 (ratification): Passage by 3/4 of state legislatures (used successfully 26 times) OR Passage by 3/4 of special state conventions (group of people from each state beyond gov of state to vote on an issue ( used once to appeal prohibition: Amendment 12)
   • Why has the constitution been amended so rarely? Only 27 have been passed and only 17 of them have been within the last 220 years.
     • Process for amendments is deliberately difficult
     • Constitution is unspecific
       • 'Provide for common defence and general welfare'
     • Judicial review- interprets constitution and can effectively change the meaning
       • 'Interpretive amendments'
     • Prohibition is a lesson- amend with caution.

7. THE IMPORTANCE AND INFLUENCE OF THE UNDERLYING PRINCIPLES

   • Three compromises in the constitution
     • Type of Government: Previously unitary then confederal them federal. Federal was the compromise (national and state gov with equal powers)
     • Representation of States: Compromise was to have the states represented by population in the HOR and equally represented in the Senate.
     • Selection of the President: Some states wanted appointed president but other want a directly elceted president. Compromise was an indirectly elected President (in the form of an electoral college based on the popular vote)
   • Bill of Rights: First 10 amendments were proposed together in September 1789. Were ratified by 314 of states by Dec 1791). Designed to protect people from the federal government as some states were still fearful of too much centralised power.
   • Separation of Powers: Cannot be a member of more than one branch. Not shared powers.
     • Obama resigned from Senate to be President
   • Checks and Balance
   • The federal division of powers: Federalism (basis of constitution)