US Constitution

• When did America declare independance?

  1776
• When was the new constitutional convention created ?

  1787 - which emerged the constitution we recognise today
• The US Constitution is a product of its time - founding fathers were all white, male and owned slaved which led to a deliberate vagueness and ambiguity on issues like slavery
• Features of the constitution?

  • Fear of mass democracy - Hamilton “ nothing but a permanent body can check the imprudence of democracy”
  • Product of its time and culture and authors - white Christian males who owned slaves - no desire to take a fundamental shift in power away from wealthy elite
  • It was about the framework and structure of government - not individual rights which came later in 1791 - bill of rights
• Constitutional principles :

  • Deliberate vagueness and silence
  • Positive : Allowed the constitution to evolve and develop - Immigration Act 1924 - Banned Asian immigrants bit in 1965 Congress passed a voting rights act which forbade racial discrimination when voting - changing perspectIves and values
  • Negative : By saying nothing it allows seeds to be sown for sectional divide - fundamental principles of equality are missing - Slavey which led to civil war and Thirteenth Amendment - ambiguity in arms and ‘well regulated militia’ - second amendment - school shootings unregulated
• Constitutional Principles :

  • Need for referee ( Judicial review )
  • ‘We are under a constitution, but the constitution is what the judges say it is’ - Hughes 1907
  • Most important power as declare laws and actions unconstitutional due to doubt and vagueness - Columbia v Heller
  • Due to codependency of powers and appointments it has become politicised e.g Trumps 3 appointments were conservative and allowed for overturn of roe v wade - landmark case - constitution is supreme but it is the sc that defines it - rematch - abortion - brown v board of topeka overturns plessy v ferguson - battleground
• What are the two main principles?


  Seperation of powers and checks and balances
• Three ways the US constitution reflects the separation and division of powers

  • No individual can be a member of legislature and executive - Obama - 2008 gave up Illinois and VP Biden - vp can cast tie breaking vote - political power is diversified
  • Appointment of SC Judges - interdependently - Nominated by President and approved by senate - relies on other members to function - Obama nominated Merick Garland
  • Checks and balances - prevent tyrannical government from founding fathers and uk - Congress and impeachment - 2019 + 2020 Trump but acquitted by senate
• Constitutional principles - bipartisanship

  Seperation of powers means that it is imperative for branches to work together to pass a law - hence need for supermajorities to pass amendments or overturn a presidential veto 2010 = ‘Don’t ask Don’t Tell’ repealed by a bill sponsored by a group of R=C ad supported - Obama gun laws - leads to gridlock eg trump 35 days between dec 2018 and Jan 2019 over border wall funding
• Constitutional principles

  • Bipartisanship
  • Vagueness
  • Constitutional supremacy
  • Need for referree
• America is brown from war whilst uk is a move from king to people
• How significant is Separation of powers - yes

  • Each branch is checked by the other two - judicial appointments - power of purse - veto - pardon
  • avoids elected dictatorship alike uk and pm - bipartisanship is needed though which is less likely in tribal politics of today
  • Entrenched rights and civil uberties preserve notion of judiciary
• How significant is separation of powers - less

  • Seperation is misleading and it should be shared
  • President with supportive SC and Congress can wield a lot of power - Trump and travel ban + Trump and appointing ACB and two others
  • Politicised judiciary - Roe v Wade - Republican majority - cannot be kicked off - appointment process and stepping down lessens independence
• Presidential checks on congress

  • Executive orders to bypass congress - 2017 Travel ban and DACA Obama
  • Commander in chief can deploy troops - Yemen Houthis 2024 - Bush ordered invasions of Iraq and Afghanistan
  • Veto - Obama vetoed 12 times & Trump vetoed resolution revoking border wall emergency
• Presidential checks on court

  • Nominates all federal justices - Obama - Sonia and Elena - Trump Amy, Brett and Neil
  • Issue pardons - Ford pardoned Nixon for watergate - Obama 330 commutations on last day - Trump 73 pardons and over 70 commutations on last day - contextually for rebels
• Congressional checks on president

  • Veto can be overturned by supermajority even if rare - Bush 4/12 Trump had defence spending overturned
  • Senate needed to confirm judicial appointment - Merrick Garland and Obama vs Trump and ACB
  • Power of purse -used to stop Vietnam war and trumps wall + impeachment but it’s useless + Congress decline legislation eg sandy hook 2012 and gun laws Obama
• Congressional checks on court

  • Impeach federal judges and remove them from court - 2010 Louisiana Thomas was removed in near unanimous
  • Constitutional amendments can be initiated to overturn Supreme Court verdicts - 1896, the court found national income tax to be unconstitutional. This was reversed by the ratification of the Thirteenth Amendment in 1913
• Judicial checks on President

  • The court can rule presidential action as unconstitutional and therefore illegalIn Hamadan V Rumsfeld (2006), the court ruled against special military commissions set up by Bush to try suspected Al Qaeda members.In Trump V Mazar and Trump V Vance (2020), the court ruled the president does not have absolute immunity from state criminal subpoenas.
• Judicial checks on Congress

  • The court can declare acts of Congress to be unconstitutional and therefore effectively require them to be repealedIn 2013, the Defence Of Marriage Act was ruled unconstitutional in United States V Windsor, which marked a major advance for same sex marriages
• Significance of checks and balances

  • President faces most - shows frameworkers fears or placing gov in one persons hands much like a king - president office has seen powers stretch most tho - necessity and political initiative
  • lame duck presidency after losing control in midterms - first two years matter - Obamcare early in 2010 + Trump tax cuts and jobs act 2017
  • Not all check and balances are significant -impeachment is biggest but used least and never works - Trump twice acquitted and Nixon resigned 74 - it is threat of checks and balances pr denied confirmation that hold impact
• Indivisual rights protected in constitution :

  • Second amendment - right to bear arms - cOLUMBIA V hELLER 2008 - entrenched in political culture - Republican Party
  • Fourteenth amendment - Legalise gay marriage - 2015 Obergefell v Hodgson - law applies equally to everyone - inteoretetaion that changed as it was never explicitly barred - compare to abortion
  • First amendment - free speech - only to a certain degree though and collective rights can intervene - Moude v Fred3erick - could punish and promoting drugs was violation for first amendment - childrens individual rights to safety protected
• Civil rights abd liberties aren’t explicit in the constitution - state level - not protected equally - aren’t specific amendments as process is too long - reiterate eg right to abortion
• 3 features of amendment process

  • Protects the features of constituion - upholds seperation, bipartisanship and constitutional soveriegnity - also difficult to amend and update - 2/3 majority = widespread support = large states = prevents tyranny
  • Protects states and federalism - need 1/4 state legislature and 2/3 supermajority - tyranny of minority - 13 states 24% population prevented the equal rights amendment
  • Enhances power of SC as they can make interpretative amendments and hinder rights further - politicisation - or v wade overturned
• 3 feaurures of federal governmnet

  • Distribution of powers - eg Covid saw 50 different state approaches to Covid demonstrating importanc of tenth amendment - 32 before national state of emergency
  • Independant judiciary - due to the constituiton
• Structural theory comprise

  • Constitutional amendments vs living constitution in uk - simply pass a law unlike the codified nature of us - eg Labour propose lowering vote to 16
  • Fusion of powers vs seperation means checks ad balances are weaker in uk on pm with majority - eg Thatcher passed poll tax even with rebellions unlike US who pm cannot legislate or be apart of it - Obama slugged with arms like gun control after sandy hook - DACA was a exec order
  • Constitutional v parliamentary soveirgenity - SC can strike down action eg illegal isle abortion but uk does DOI which gov overrules
• Rational comparison

  • US judiciary is far more powerful than uk - landmark cases are part of constitution eg DC v Heller - DOI on HRA or ultra vires
  • Limit on executive power - Neither can be truly imperial - president have uncooperative congress an pm has rebellion - checks are entrenched in us conctitution eg power of purse unlike uk where royal assent hasn’t not been denied since 1700’s
  • Devolved governments - Federalism is entrenched in constitution due to founding fathers whereas Devoltion is new in uk - uk can legislate these powers away eg Scotland act 1979 unlike us
• Cultural comparison

  • US has clear principles of federalism and rep government as as [roduct of revolution unlike the uK who is monarchical with prerogative powers yet there’s vagueness
  • US took inspiration from Rome a Greece whilst uk had traditional monarchism eg Magna Carta
• US Federallism adn UK devolution

  • entrenched principle of us constituion - tenth amendment and cannot be repealed unlike uk in theory can change the Scotland acts etc but unlikely
  • Us has greater legislative powers devolved eg the death penaty abd recent abortion is up to the state legislator eg Texas has strict laws unlike HRA whihc is uncontested
  • UK has devolved electoral systems eg Scotland uses AMS unlike England which is fptp meanwhile electoral college is in all of us