The US constitution and federalism
Vagueness of constitution
- allows constitution to evolve without formal amendment
- Yet there is a lack of clarity which has led to disputes over what is constitutional
- Implied powers
- The absence of a comment on slavery sowed the seeds of division for the American Civil war
- Elastic clause allows federalism to be stretched beyond its enumerated powers e.g when SC
rules in mcCulloch v Maryland that congress had the power to create a national bank despite
its lack of mention in the constitution
Congress-> power to draft citizens into the armed forces was implied from congress's enumerated
power to raise an army
P-> commander in chief to US air force (no airforce existed so wasn’t included)
Judiciary-> judicial review e.g Marbury v Maddison
Reserved powers-10A- not given to federal or prohibited to states are given to the states- shows
federal gov is limited
Concurrent powers- shared by state and federal like tax collecting and road maintenance- constitution
says federal laws supercede state laws
Entrenchment- difficult to amend as it’s protected by A5- amendments needs ⅔ senate and ¾ HofR-
only 27A’s
Amendment process
1. Proposal - thus far all have been proposed by congress
2. Ratification- 27/33 have been ratified
The bulk of rights and later amendments 1791
Why not many amendments
- founding fathers
- Structural changes to congress and polarisation→435 HofR and 100 senate which which is
over double the composition of the first congress + two main parties don't agree
- Vagueness→ e.g. the commerce clause which grants congress commercial authority
- SC judicial review→ expansive interpretation e.g. cruel and unusual punishment
- Americans are cautious
Advantages Disadvantages
Protects the constitution like the separation of Hard to amend outdated provisions- low
powers which Trump called ‘archaic’ when they success rate 3-5%
frustrated his attempt to govern - Changing the electoral college- electoral
college has elected 2 P that have lost
pop vote (trump, bush)- whilst it was
designed as a safeguard its at odds w
modern democracy
- Equal rights A- equal rights A hasnt
been made despite concern for women-
failed support by congress1982
- Balanced budget A- around 140
attempts to pass it
, Protects states and upholds federalism- 10th A Goes against majoritarian democracy- flag
outlines state powers protection amendment have received 50% of
congress but fell short of superman +13/50
states have to oppose an A to block- ‘tyranny
of the minority’ e.g. equal rights A
Required broad support- supermajorities Enhances SC powers to make interp A’s- roe v
needed- in such a diverse country this makes wade- power to 9 unelected
sense
Prevents ill thought out A’s Small states have too much power- 13 smallest
states can block an A
Mistakes made- roe v wade
Key features
● Separation of powers but its separation of institutions sharing powers e.g. Obama’s health
care reform 2010 needed both houses of congress. Exceptions of the rule: VP is P of the
senate with the power of the casting vote in a tie e.g. Mike Pence passed 13
● Checks and balances
○ On P
■ Congress can amend of block leg e.g. Trump wanted to ‘repeal and replace’
Obamacare
■ Congress can override P’s veto e.g Trumps veto of a defence spending bill
was overturned 2021
■ Congress can reject a budget submitted by P
■ Congress can declare war
■ Senate ratifies treaties
■ Senate approves appointed judges and cabinet members
■ Congress can investigate the executive branch e.g. CARES Act which
oversees the effectiveness during covid
■ Congress can impeach e.g. trump impeached by HofR but none have been
impeached by senate
■ SC has judicial review
○ On Congress
■ P can veto leg
■ Executive agreements
■ SC judicial review
○ On Judiciary
■ Congress can propose A’s
■ Congress can impeach
■ Presidential pardon
● Bipartisanship- 53 years has seen a divided gov in congress and for 24 of those years P
hasn't controlled neither of the houses-leads to gridlock- doesn’t control both houses e.g.
CARES 2020. Positives of divided gov is scrutiny of leg as some believe that when P and
congress are of the same party leg goes through easily e.g. congress hasn't rejected a treaty
of a P of its own party since 1935
● Federalism- respected desire for limited government whereby the gov would only do what
was essential leaving the the citizens fundamental power- federalism involves
decentralisation which is suitable for a large country- dual sovereignty
Dual federalism; States had the most gov w/ SC support.
limited federal gov Clear dispersal of power
Vagueness of constitution
- allows constitution to evolve without formal amendment
- Yet there is a lack of clarity which has led to disputes over what is constitutional
- Implied powers
- The absence of a comment on slavery sowed the seeds of division for the American Civil war
- Elastic clause allows federalism to be stretched beyond its enumerated powers e.g when SC
rules in mcCulloch v Maryland that congress had the power to create a national bank despite
its lack of mention in the constitution
Congress-> power to draft citizens into the armed forces was implied from congress's enumerated
power to raise an army
P-> commander in chief to US air force (no airforce existed so wasn’t included)
Judiciary-> judicial review e.g Marbury v Maddison
Reserved powers-10A- not given to federal or prohibited to states are given to the states- shows
federal gov is limited
Concurrent powers- shared by state and federal like tax collecting and road maintenance- constitution
says federal laws supercede state laws
Entrenchment- difficult to amend as it’s protected by A5- amendments needs ⅔ senate and ¾ HofR-
only 27A’s
Amendment process
1. Proposal - thus far all have been proposed by congress
2. Ratification- 27/33 have been ratified
The bulk of rights and later amendments 1791
Why not many amendments
- founding fathers
- Structural changes to congress and polarisation→435 HofR and 100 senate which which is
over double the composition of the first congress + two main parties don't agree
- Vagueness→ e.g. the commerce clause which grants congress commercial authority
- SC judicial review→ expansive interpretation e.g. cruel and unusual punishment
- Americans are cautious
Advantages Disadvantages
Protects the constitution like the separation of Hard to amend outdated provisions- low
powers which Trump called ‘archaic’ when they success rate 3-5%
frustrated his attempt to govern - Changing the electoral college- electoral
college has elected 2 P that have lost
pop vote (trump, bush)- whilst it was
designed as a safeguard its at odds w
modern democracy
- Equal rights A- equal rights A hasnt
been made despite concern for women-
failed support by congress1982
- Balanced budget A- around 140
attempts to pass it
, Protects states and upholds federalism- 10th A Goes against majoritarian democracy- flag
outlines state powers protection amendment have received 50% of
congress but fell short of superman +13/50
states have to oppose an A to block- ‘tyranny
of the minority’ e.g. equal rights A
Required broad support- supermajorities Enhances SC powers to make interp A’s- roe v
needed- in such a diverse country this makes wade- power to 9 unelected
sense
Prevents ill thought out A’s Small states have too much power- 13 smallest
states can block an A
Mistakes made- roe v wade
Key features
● Separation of powers but its separation of institutions sharing powers e.g. Obama’s health
care reform 2010 needed both houses of congress. Exceptions of the rule: VP is P of the
senate with the power of the casting vote in a tie e.g. Mike Pence passed 13
● Checks and balances
○ On P
■ Congress can amend of block leg e.g. Trump wanted to ‘repeal and replace’
Obamacare
■ Congress can override P’s veto e.g Trumps veto of a defence spending bill
was overturned 2021
■ Congress can reject a budget submitted by P
■ Congress can declare war
■ Senate ratifies treaties
■ Senate approves appointed judges and cabinet members
■ Congress can investigate the executive branch e.g. CARES Act which
oversees the effectiveness during covid
■ Congress can impeach e.g. trump impeached by HofR but none have been
impeached by senate
■ SC has judicial review
○ On Congress
■ P can veto leg
■ Executive agreements
■ SC judicial review
○ On Judiciary
■ Congress can propose A’s
■ Congress can impeach
■ Presidential pardon
● Bipartisanship- 53 years has seen a divided gov in congress and for 24 of those years P
hasn't controlled neither of the houses-leads to gridlock- doesn’t control both houses e.g.
CARES 2020. Positives of divided gov is scrutiny of leg as some believe that when P and
congress are of the same party leg goes through easily e.g. congress hasn't rejected a treaty
of a P of its own party since 1935
● Federalism- respected desire for limited government whereby the gov would only do what
was essential leaving the the citizens fundamental power- federalism involves
decentralisation which is suitable for a large country- dual sovereignty
Dual federalism; States had the most gov w/ SC support.
limited federal gov Clear dispersal of power
