Component 3

• Federalism


  Power is divided between regional & federal govts
• US Constitution:

  • Article I: creates legislative branch & explains powers of Congress
  • Article II: creates executive branch & explains powers of the presidency
  • Article III: creates judicial branch & explains its powers
  • Article IV: outlines relationship between the states & federal govt
  • Article V: explains the amendment process
  • Article VI: confirms Constitution & compatible federal laws as supreme
  • Article VII: explains how the Constitution is to be ratified by the states
• Amendment process of the Constitution:

  • 2/3 supermajority vote in both Houses of Congress
  • Or 2/3 of state legislatures calling for a national convention to propose amendments (never been used)
  • Amendment must be ratified by at least 3/4 of state legislatures or 3/4 of state ratification convention
• Bill of Rights:

  • First 10 amendments to the Constitution
  • 1st: freedom of speech, religion, assembly, petition
  • 2nd: right to bear arms
  • 4th: proof of 'probable cause' & a warrant to search/seize property
  • 5th: right to a fair jury trial, protection against double jeopardy/self-incrimination/taking of property by the govt without compensation
  • 10th: limits federal govt's powers to those explicitly set out in the Constitution (all others are reserved to the states)
• Bipartisanship


  Attempts within Congress to try and ensure the two main parties must work together to fulfil Congressional functions
• Checks & balances


  Division of power between branches of govt where each branch has a direct ability to prevent action from another branch
• Entrenchment


  Specific process for amendment
• Codification


  Constitution is contained in a single written document
• Enumerated powers


  The powers explicitly set out in the Constitution as belonging to a branch of govt
• Limited government


  Power of the federal govt over its states/citizens is subject to limitations set out in the Constitution
• Separation of powers


  3 key bodies of govt (legislature, executive, judiciary) each have their own powers, personnel, & buildings
• 'Advice & consent' clause


  Article II, section 2 of the Constitution states the president makes appointments & signs treaties 'with the Advice and Consent of the Senate'

  • E.g. through congressional hearings & subsequent votes to approve/deny a nomination
• Checks by the legislature on the executive:

  • Confirms presidential appointments e.g. filibustered hundreds of Trumps' nominees
  • Ratifying treaties e.g. rejected Convention on the Rights of Persons with Disabilities (signed by Obama 2012)
  • Can impeach & try the president
  • Can override a presidential veto (2/3 supermajority)
  • 'Power of the purse': can refuse to approve executive spending e.g. Congress passed a bill blocking funds for detainees' transfer/release to block Obama's executive order to close Guantanamo Bay (2009)
  • Power to declare war
  • Committee hearings e.g. led to the Watergate Scandal
• Checks by the executive on the legislature:

  • Can veto legislation
  • Can use an executive agreement instead of a treaty (no approval required)
• Checks by the legislature on the judiciary:

  • Can pass a constitutional amendment
  • Can change the composition of the SC
  • Can impeach judges
• Checks by the judiciary on the legislature:

  • Can declare a law unconstitutional
• Checks by the executive on the judiciary:

  • Appoints judges: chosen for their judicial philosophy e.g. Trump & Amy Coney Barrett -> Dobbs
  • Can pardon those convicted of federal crimes
  • Can take military action unilaterally
• Checks by the judiciary on the executive:

  • Can declare a presidential action unconstitutional
• Federal government's key enumerated powers:

  • Collecting taxes
  • Borrowing powers
  • Establishing rules of citizenship
  • Establishing federal courts
  • Declaring war
  • Raising & maintaining an army/navy
• Reserved powers


  Powers not explicitly granted to the federal govt by the Constitution, thereby being reserved to state govts
• Concurrent powers


  Powers belonging to both federal & state govts
• Concurrent powers:

  • Levying & collecting taxes
  • Borrowing money
  • Establishing courts
  • Defining crimes & setting punishments
• Prohibited/denied powers:


  Actions explicitly prohibited to the federal and/or state govts by the Constitution

  • E.g. federal govt can't pass laws that favour one state over another, state govts can't enter treaties/alliances/confederation
• Supremacy clause


  Article VI clause 2 of the Constitution which states that as long as the federal govt is within its powers when passing a law, this has supremacy over state law
• Necessary and proper clause


  Article I Section 8 of the Constitution which states that Congress can do anything 'necessary & proper' in order for it to carry out its enumerated powers

  • AKA 'elastic clause': with enough justification, the federal govt's powers can easily expand
  • E.g. enumerated power to raise an army implies a power to draft Americans into the military during a war
• Horizontal federalism


  The relationship between states
• Full faith and credit clause:


  Article IV Section 1 of the Constitution which states that every state should recognise the judicial proceedings of other states

  • E.g. a divorce in one state must be recognised in every states
• Arguments that the US Constitution is too difficult to amend:

  • Has only been amended 27 times since being ratified by the states (last in 1992)
  • Vagueness leaves interpretation to unelected judges e.g. Dobbs
  • Too difficult to amend outdated provisions e.g. Electoral College
  • Contradicts concept of majoritarian democracy: some proposed amendments (e.g. flag protection) got >50% in Congress but not a supermajority
  • Gives states with small populations too much influence: 13 smallest states can block a proposal
  • Mistakes can still be made e.g. 18th
• Arguments that the US Constitution is not too difficult to amend:

  • Process is intentionally difficult to prevent ill-considered amendments
  • Vagueness makes it incredibly flexible so can still function in modern society
  • Protects key constitutional features (e.g. separation of powers) even if a president doesn't like them (e.g. Trump calling checks & balances 'archaic')
  • Provision of a constitutional convention called by the states ensures Congress can't veto the initiation of amendments
  • Requirement for a supermajority ensures consensus
• Divided government


  When the presidency is controlled by one party & one or both Houses of Congress are controlled by the other
• United government


  When the presidency & Congress are controlled by the same party
• Nature of the US Constitution:

  • Codified
  • Separation of powers
  • Entrenchment
  • Vague
  • Federalism
• Evaluation of codification:

  • Makes the functions & roles of govt clear (easy to see if they are being surpassed)
  • People's rights are explicitly defined & protected
• Evaluation of the Constitution's separation of powers:

  • Ensures no one branch wields too much power (prevents dictatorial rule)
  • Without consensus/bipartisanship, legislation is often impossible
  • Limits federal power over the states
  • Checks & balances ensure govt has to work in the interests of the people
  • Overlap of powers between executive/legislature & the Houses of Congress means bipartisanship is required during divided govt
  • Federal power has grown at the expense of the states
• Evaluation of the Constitution's vagueness:

  • Has allowed it to evolve without formal amendment
  • 'Necessary & proper' clause allows the govt to legislate for things the Constitution couldn't have foreseen
  • Lack of clarity has led to significant conflict over what is 'constitutional'
  • 'Necessary & proper' clause has allowed the federal govt's powers to constantly expand (contradicts principle of limited govt)
  • Interpretation now goes beyond what the Founding Fathers envisaged e.g. abortion, same-sex marriage
• Evaluation of entrenchment:

  • Prevents unpopular amendments being passed by requiring consensus
  • Doesn't allow for the modern political context (lack of consensus & representatives are generally partisan)
  • Amendments that 'need' to be passed probably can't
  • Requirement of a supermajority creates tyranny of the minority
• Evaluation of the Constitution's reserved powers:

  • Makes clear that the federal govt doesn't have unlimited power
  • Much more difficult to get all 50 states to do the same thing (e.g. on taxes) than for the federal govt to perform an action affecting all 50 states
• Evaluation of the Constitution's concurrent powers:

  • 'Supremacy' clause prevents conflict between national & state law
  • Undermines state power
• Senate 'Gang of Eight':

  • Bipartisan group of 4 Democrats & 4 Republicans
  • Wrote the Border Security, Economic Opportunity, and Immigration Modernization Act (2013)
  • Passed in the Senate with a strong majority
  • Not then considered by the House so died at the end of the session
• 'Dual federalism' (1789-1937):

  • Federal/state govts operated in different spheres
  • Federal had enumerated powers, states had reserved, both had concurrent
  • Functions of both govts remained largely separate