A Level Revision Notes: US Constitution - An Introduction, Features & Checks and Balances

What Is The Preamble:

Speaks to the people saying that the POTUS and politicians must uphold the constitution

What Do The Various Articles Deal With:

All legislative power must be checked by Congress which will be Senate and the HOR
Executive powers lie with the POTUS
Judicial power lies with the judiciary and this is the highest court of appeal
Federal-state and state-federal relationships
Amendment procedures
Miscellaneous provisions
Ratification procedure.

Extra Info:

Over 4500 words
The preamble is the most important. States the 6 core principles and to serve to define the remaining 4450 words
Congress is slightly more powerful because they are closer to the people
POTUS is powerful in war and keeping in law
Judiciary is designed to check and balance the other branches

Why Is The Constitution So Important:

It is America’s handbook which judicial courts use to uphold the constitution for the American people. All law revolves around the Constitution and it is fundamental to American life

3 Features Of The Constitution:

A Codified Constitution:

Consists of a full and authorities set of rules written down in a single text
Has 7 articles, the first three explain how the branches of government work and what powers they have

A Blend of Specificity And Vagueness:

The founding fathers made the Constitution “blurry” so others could interpret it any way they want
Nothing in it is so cut and dried
Implied Powers: Powers that aren’t mentioned but delegated e.g drafting people into the army

Its Provisions Are Entrenched:

Shows the best way to amend the Constitution
Shows that (the people) are protected from those who want to change it
Makes it hard to change the Constitution

Key Terms:

Supremacy Clause: Portion of Article CI which states that the Constitution as well as treaties and federal law “shall be the separate law of the land”. Can apply to all matters.
Enumerated Powers: Powers delegated to the federal government under the Constitution. Done in the first three articles
Necessary And Proper Clause: Final clause of Article 1, Section 8 which empowers Congress to make all laws necessary and proper and to carry out the federal government duties.
Reserved Powers: Powers not delegated to the federal government or prohibited government or prohibited by it to the states and are reserved to the states and the people.
Concurrent Powers: Powers posses by both the federal and state government
Entrenchment: The application of extra-legal safeguards to a constitutional provision to make it more difficult to amend or abolish the Constitution.

How Can The Constitution Be Amended:

A 2 stage process requiring a super-majority of more than 50% of a 2/3 majority
Processed by Congress at the request of 2/3 of the State
Bill Clinton (1993-2001) had 17 amendments. Seen as high but at a time when the Republicans controlled both houses of Congress. Requiring a 2/3 majority to be successful, the HOR agreed to a balanced budget amendment and a flag desecration amendment.
George W Bush (2001-09): There were 6 further attempts to amend the Constitution. But only 3 of them received the 2/3 majority needed – a ban on flag desecration.
In Jan 2013 Amendments were received for: A balanced federal budget, a ban on flag desecration, reversing recent SC decision on campaign finance, equal rights for men and women and an introduction to congressional term limits.
Once an amendment has been proposed it is sent to the states for ratification which can be done by ¾ of state or by state constitutional conventions in ¾ of the states. Only 6 have failed at this stage e.g Distract Of Columbia voting rights amendments.

The Amendment Process:
	Proposed By:	Ratified By:	How Often Used:
1)	Two-thirds of the House and Senate	Three-quarters of state legislatures (38)	26 Times
2)	Two-thirds of the House and Senate	Ratifying conventions in three-quarters of the states	Once (21^st Amendment)
3)	Legislatures in two-thirds of the states calling for a national constitutional convention	Three-quarters of state legislatures	Never
4)		Ratifying conventions in three-quarters of the states	Never

Why Has The Constitution Been Amended So Rarely:

The Founding Fathers created a deliberately difficult process. The need for both Congress and the State to agree and the need for a supermajority makes it hard to change
FF made it unspecific and vague on purpose to evolve without the need for formal amendment
The SC power to interpret the Con is important because it can make “interpretative amendments” rather than formal amendments e.g can say what the 8^th amendment means today.
Americans have become cautious with tampering with the Con as they hold in high regard. The Prohibition set the route on how amendment should go in the future.

Advantages & Disadvantages Of The Amendment Process:
Advantages	Disadvantages
Supermajorities ensure against a small majority being able to impose its will on the larger majority	Makes it difficult for the Con to be amended, perpetuating what some see as outdated provisions e.g Electoral College
The lengthy and complicated process makes it less likely that the Constitution will be amended on a temporary issue.	Makes possible the thwarting of the will of the majority by a small and possibly unrepresentative minority
Ensures that both the federal and state governments must favour a proposal	The lengthy and complicated process nonetheless allowed the Prohibition amendment to be passed
Gives a magnified voice to the smaller populated states (through ¾ state agreement)	The difficulty of formal amendment enhances the power of the SC to make interpretative amendments.
Provision for Constitutional Convention called by the states ensures against a veto being operated by Congress on the initiation of amendments.	The voice of small-population states is over-represented.

Explain The Idea Of The Separation of Powers:

The idea that the three branches of government all act independently and interdependently. Put into place by the Founding Fathers in case of tyranny.
FF thought they should be independent yet co-equal branches should check the power of the other branches
It was decided that no one person could be in two branches of government so Obama had to leave Senate when he became POTUS

Neustadt & Finer’s Quote:

Richard Neustadt: “The Constitutional Convention of 1787 is supposed to have created a government of ‘separated powers’. It did nothing of the sort. Rather it created a government of separated institutions sharing powers.”
S.E Finer: “…Like two halves of a banknote, each useless without the other”

Checks And Balances:

Checks By The POTUS On Congress:

POTUS is given the power to recommend legislation: To Congress done in the State of the Union Address. Tells Congress his legislative approach with what to debate e.g Obama made his about the healthcare system
Power to veto: Obama vetoed 12 times

Checks By POTUS On Courts:

POTUS nominates all federal judges: Allowing them to shape the judiciary
Power to pardon: Has become controversial as President Ford pardoned his predecessor President Nixon and Clinton pardoned a tax fugitive, Mark Rich.

Checks By Congress On POTUS & Executive:

FF was scared of giving the executive too much power so they have Congress more power.
Can Veto Legislation Recommended To Them: In 2010, the healthcare bill was passed but was significantly amended. Rejected Obama’s attempt for immigration reform and gun control
Can Override POTUS Veto: Needs to gain 2/3 majority in both houses e.g Bush’s Conservation and Energy Bill in 2007
Power Of The Purse: A veto here will curtail what the POTUS can do e.g Bush’s military spending on Iraq
Power To Declare War: Last used in Oct 2002 to use military force in Iraq they wanted 296-182 and 77-23 in HOR and Senate
Power of Investigation: May investigate any member of the executive including the POTUS e.g Libya 2012 terror attack where an American diplomat was killed resulting in Congressional Committees in which Hilary Clinton and Obama were interviewed
Power To Impeach: May impeach any member of the executive. Initial impeachment did by HOR e.g Bill Clinton for obstruction of justice (voted 221-212). Just a simple majority is required. The Senate does the trial and if found guilty by 2/3 majority they are removed from office. POTUS holds no similar power, he cannot remove Congress.

Senate Only Checks On The POTUS & Executive:

Ratify Treaties Negotiated By POTUS: Requires 2/3 majority e.g START Treaty in 2010, 77-26 loss
Power To Confirm Appointments To The Judiciary: Just a majority is required for any judicial appointment in the CIA or FBI for example. Rejections are unusual because the POTUS will consult key Senate members before announcing who he recommends to take over e.g 1989 rejection on John Tower as Secretary of Defence was met with a 47-53.

Checks By Congress On The Courts:

Impeachment: HOR removed Thomas Porteous for corruption and following the guilty verdict in the Senate on four courts, he was removed later that year
Can Propose Constitutional Amendments: Overturn a decision made by the SC e.g flag
burning and public praying and Tom Udall wanted to remove such powers from Congress but was unsuccessful.

Checks By Courts On Congress:

Power Of Judicial Review: Power to declare Acts of Congress unconstitutional saying it now null and void e.g Windsor Case declaring the Defence of Marriage unconstitutional.

Checks By Courts On POTUS & Executive:

Ability To Declare Actions Unconstitutional: A temporary restraining order on Trump’s executive order that banned people from 7 majority Muslim countries from entering the country. Also asked Nixon to hand over the white tapes to thereby stop the Watergate Affair forcing him to resign 16 days later.

Checks And Balances – How They Work:
POTUS (President Of The United States) - Executive	Can Check:	Example:
	Congress by vetoing a bill it has passed	Obama vetoed 12 times
	Federal courts by nominating judges and by the powers of pardons	Elena Kagan in 2010 in the SC. Pardon: Mark Rich - Clinton
Congress Checking The POTUS – Legislature	Can Check:	Example:
	Amending/rejecting/delaying the POTUS legislative proposals	Obama’s attempt for immigration reform and gun control
	Overlaying the POTUS veto	Bush’s Conservation and Energy Bill in 2007
	The power of the purse (budget)	Bush’s military spending on Iraq
	Refusing to approve POTUS appointments - SENATE ONLY	1989 rejection of John Tower as Secretary of Defense
	Refusing to rectify POTUS treaties – SENATE ONLY	START Treaty in 2010, 77-26 loss
	Using impeachment and trial powers to remove POTUS from office.	Bill Clinton for obstruction of justice (voted 221-212).
Congress Checking The Federal Courts - Legislature	Can Check:	Example:
	Proposing Constitutional amendments to be overturned by a judicial decision	Windsor Case declaring the Defense of Marriage unconstitutional.
	Refusing to approve a person nominated to the Federal Court – SENATE ONLY	1989 rejection of John Tower as Secretary of Defense
Federal Courts – Judiciary	Can Check:	Example:
	Congress by declaring a law unconstitutional	N/A – Don’t Know Any
	Can check any POTUS decision by declaring it unconstitutional	A temporary restraining order on Trump’s “Muslim ban”