1. The Constitution

• The US Constitution is: `

  • The supreme authority in all aspects of US government: it has constitutional sovereignty
  • codified and also hard to amend formally
  • based around the separation of powers and checks and balances
  • federal, with power shared between central/federal government and individual states, but federal law always has ultimate authority over any state laws (supremacy clause in the Constitution)
• Constitutional Sovereignty


  Ultimate power lies in the constitution, not with the legislature as in the case in the UK
• Key Principles of the US Constitution

  influenced by the ideas of French Philosophy, drawn up in 1787 and ratified in 1788, replacing the much weaker Articles of Confederation.

  • It was designed to avoid tyranny by the leader, so government is both separated and overlapping between its different branches.
  • Each branch also checks and balances the other
  • The main original document sets out the respective powers of each branch of government and aspects of political process
  • Most aspects dealing with the protected of individual rights and freedoms are found in amendments e.g. Bill of Rights
• Key Principles of the US Constitution


  The US Constitution was essentially a compromise between:

  • those who wanted a stronger central government, and those who wanted power to rest with the states.
  • large states such as Virginia and small states such as Rhode Island - hence, small states had equal representation in the Senate, while the number of seats in the House of Representatives is determined by population
  • Slave and non-slave states; states were allowed to count enslaved people as three-fifths of a free person for the purposes of calculating the size of a state
• Articles of Confederation 


  The original constitution of the USA drawn up in 1777 and ratified in 1781. It had a weak central government and soon proved unsuited to the fledgling nation
• Checks and balances


  The process by which different branches of government are limited or checked by others, thus ensuring no one branch becomes too powerful.
• Bill of Rights 


  The first ten amendments to the constitution passed in 1791
• Federalists


  Those Founding Fathers who wanted a stronger central government. Arguably the first example of party and faction in the United States
• Nature of the US Constitution envisaged by its Framers


  The framers had a clear vision for the Constitution:

  • the different branches would co-operate and make compromises with each other
  • No one branch of government would become too powerful. The desire was to avoid an over-powerful 'tyranny', as many Americans perceived the British monarchy to be in the late eighteenth century
  • the emphasis was on representative government, not democratic. Democracy was associated by mob rule, and nowhere in the original constitution was the right to vote outline
  • It would be permanent and difficult to change
• Separation of powers

  President:

  • Is commander-in-cheif of the armed forces
  • oversees foreign policy and relations with foreign powers
  • Is in charge of the federal bureaucracy and chooses secretaries of states
  • Can issue pardons to individuals
  • Nominated federal judges including to the Supreme Court when vacancies occur
  • Can suggest laws to congress and can veto
  • Cannot sit in Congress
• Separation of powers 



  Congress:

  • Passes laws and raises taxes
  • Must confirm most presidential appointments
  • ratifies foreign treaties and formal declarations of war
  • can impeach the president and judges
  • cannot serve in government, so must resign if appointed to the executive by the president. Hence Deb Harland had to resign as a congresswoman when appointed as Interior Secretary in 2021
• Separation of powers 



  Supreme Court:

  • Interprets the Constitution
  • Ensures the actions of Congress and the president are in accordance with the Constitution
  • Can 'strike down' laws/actions it sees as unconstitutional
• Impeachment

  • The power of Congress to remove either the president or a member of the judiciary.
  • It requires a simple majority in the House to formally begin the process, the actual trial is held in the Senate, with a two-thirds majority required for conviction
  • Only three presidents have been tried for impeachment.
  • Donald Trump was tried twice and acquitted by the Senate both times
• Exceptions to the principle of the separation of powers:

  • the vice president is also president of the Senate and has the casting vote in the event of a tie
  • The president's power of pardon is a judicial rather than executive power
  • Control and Deployment or the armed forces: the president is commander-in-chief but congress must authorise any declaration of war
• Checks and balances on the presidents power

  • The President vetoes acts passed by Congress: In January 2021, Congress overrode Trumps veto of a defence spending bill
  • President appoints heads of government departments and federal judges: In 1987, the senate rejected President Reagan's nominee Robert Bork as a Supreme Court Justice.
  • Has charge of the armed forces: In 2002, Congress voted through the Iraq Resolution to allow President Bush to undertake military action in Iraq. Without it, presidents would have been on dubious legal ground.
• Checks and balances on Congress

  • Passing laws and making resolutions: President Trump vetoed a resolution to end the declaration of a national emergency on the Mexico Border
  • Impeachment: The senate failed to impeach Trump on two occasions, 2019 and 2021. Previously failed to impeach Clinton in 1999
  • Ratifying foreign treaties: The Nuclear deal with Iran in 2015 was made by Obama without congressional approval. In 2018, trump withdrew without recourse from Congress
• Checks and balances on the Supreme Court

  • Striking down laws passed by Congress as unconstitutional: In 1913, 13th Amendment permitted federal income tax following an earlier Supreme Court Case (Pollock v Farmers Loan and Trust Co.) that declared federal income tax as unconstitutional.
  • Judges have tenure and cannot be removed: FDR tried to 'pack' the Supreme Court in the 1930s when it struck down some of his New Deal programmes. Congress refused to back him though.
• Judicial Review


  The power of the Supreme Court to review laws and actions to judge whether they are compatible with the Constitution. Not specifically mentioned in the constitution itself, the practice emerged from the 1803, Marbury v Madison Case.
• The Federal Nature of the US Constitution 


  Power in the USA is also restricted by a division of powers between federal government and the states. This is known as federalism.

  • The 10th Amendment states that powers not held by the federal government shall reside with individual states
  • States retain a considerable number of powers, such as tax powers and aspects of election process and the death penalty.
  • Since the New Deal, Power shifted towards federal government
  • A clash between policies made in Washington DC and individual states.
  • May be a direct clash between state and federal law
• Formal Amendment Process 


  There has been only 27 formal amendments to the US Constitution. The last major one was in 1971, which lowered the voting age to 18.

  • Formal amendments are difficult to pass. They require a two thirds majority in both houses of Congress and then ratification by 3/4 of states
  • Over the centuries, thousands of amendments have been proposed, but most have failed. Notable failures include the Equal Rights Amendment, which would have guaranteed gender equality. Passed by Congress, it then failed to secure ratification by enough states in time.
• The Bill of Rights 1791 


  Comprises the first ten amendments to the US Constitution. It contains most of the key individual rights of American citizens found in the Constitution:

  • Key rights include the First Amendment right to freedom of expression and the Sixth Amendment right to a fair and speedy trial
  • It has been the basis for much debate and interpretation since its adoption, for example the death penalty and the Eighth Amendment that bans 'cruel and unusual punishment
• The Informal Amendment Process 


  As the US Constitution is so problematic to amend formally, in practice many changes are made informally, above all via rulings of the Supreme Court. In these cases, new rights are 'discovered' within the existing wording. Examples include:

  • Roe v Wade, which granted American women some access to abortion using the 'due process clause' of the Fourteenth Amendment in 1973
  • The Citizens United case in 2010, which extended First Amendment rights to corporations and other groups so that they could spend money more freely on election campaigns
• Debates on the importance and sustainability of the US Constitution for the 21st Century

  Criticisms of the US Constitution:

  • It is too difficult to amend and change easily
  • Some of its terms are vague and imprecise
  • Some powers overlap and conflict
  • Not all rights are equally protected
  • Specific clauses are outdated and unhelpful
  • Too much power is given to the unelected Supreme Court
  • It has been become a focus for division and disunity in America
  • No other country has copied the US Constitution
• Debates on the importance and sustainability of the US Constitution for the 21st Century 



  Defences of the US Constitution:

  • It provides stability and continuity but relatively easy to amend and update informally
  • Vague wording enables interpretations
  • An overlap of powers should encourage the different branches to work together
  • Blame for a lack of rights protection and outdated laws should rest with politicians and law makers, not the constitution
  • It is better to leave contentious and divisive issues to legal experts
  • Constitution is revered among all Americans and its importance
• The Constitution does protect civil liberties:

  • there are entrenched and inalienable rights are found within the Bill of Rights and others
  • These rights include freedom of expression, the right to a fair trial, equal protection under law, and no bar to having the vote due to race
  • The Supreme Court in its decision has often extended and expanded these rights, for example ending segregation (Brown v Topeka 1954) and allowing same-sex marriage (Obergefell v Hodges 2015)
  • having rights and liberties enshrined in a single document makes them easy to access and understand.
• The Constitution does not protect civil liberties:

  • some rights are much better protected than others - gun owners have their right to bear arms entrenched in the Second Amendment, no entrenched rights for women and children
  • The Constitution is difficult to update and modernise - relies upon informal amendment by the Supreme Court
  • the Supreme Court can change its opinions, for example over segregation and homosexuality, it is unelected/unaccountable
  • sometimes the Supreme Court can restrict rights.
  • much of the constitution sets out the workings of government, not rights