US Constitution - Differences in UK & USA Constitution

The Origins Of The Two Constitutions:

• The British Constitution was shaped by evolution whilst the US Constitution was shaped by revolution.
• The American version burst onto the political scene almost full whilst the UK Constitution has emerged over centuries.
• Both are a product of the culture and societies that have shaped them
• US is largely shaped by: Expectations, fear and culture of America in the late 18^th century. It is shaped by the expectations for such ideas and beliefs as liberty, individualism, equality, representative democracy, limited government, and the rule of law. All of these shape the core values of America.
• Was shaped by a society that had broken free from an autocratic Monarchy.
• As American cultural changed, the Constitution was also amended to reflect these changes e.g the 13, 14 and 15^th amendment to stop slavery.
• The British Constitution is different because the UK has a different culture as the UK is dominated by a belief in a Constitutional Monarchy such as the power of the Monarchy, heredity peers in the HOL, and the Bishops in the Church of England and in the HOL.

The Nature Of The Two Constitutions:

• Not just different in nature but also in source.
• UK has uncodified, USA has a codified Constitution.

Advantages & Disadvantages Of A Codified Constitution:
Advantages:	Disadvantages:
All the constitutional provisions can be found easily in one document	Tends to elevate the importance of unelected judges over elected officials
The provisions without the constitution are entrenched and therefore protected from arbitrary change	Can be inflexible and therefore fail to change as society changes
Provides more significant and effective checks and balances between the various branches of government	The enumeration of rights and liberties does not necessarily mean that those rights and liberties are safeguarded in reality
Can be made surprisingly flexible by judicial interpretation	Tends to be less evolutionary.

Democracy And Sovereignty In the Two Constitutions:

• The two have evolved at different speeds to different conclusions.
• The two are based on democracy but the shared ideas and beliefs that have shaped them are different.
• US Constitution allows American a much greater role in the electoral processes of their nations than the UK Constitution allows
• Between the 1780s and 1880s the US HOR was elected on a far wider franchise than the UK HOC.
• Senate has been elected been 1914 whereas the HOL is never elected
• Election of the US president has evolved from an indirect election to a virtually direct election.
• UK Con emphasis on representative democracy and Parliamentary Sovereignty.
• Citizens have fewer opportunities for democratic participation than their American counterparts

The Provisions Of The Two Constitutions:

• The two make some very similar broad provisions
• Both have three branches of government and both provide for a bicameral legislature.
• Both have federal governments, SCs and fixed-term elections
• Both branches of government share power or are fused or separate.
• USA has a pure fixed term election, UK in theory does but this was seen to be weak in April 2017 when May called an election.
• The relationship between the devolved states and the UK parliament is weak whilst the relationship between Washington and the federal governments are good in the USA.

Separation/Fusion Of Powers:

• USA has a separation of powers but some say that they share powers instead.
• In the US, the legislature and the executive is completely separate whereas in the UK, the PM and Cabinet are in the legislature and the executive.
• If the US President was to quit, then the Vice President would take over but the in the UK another election would be called.
• Before the Constitutional Reform Act 2005, in the UK the Chancellor was in all three branches of government but after the act was passed, Law Lords became Judicial members and were separate from the legislature and the executive.

Checks And Balances:

• More checks in the USA Constitution because the Founding Father were scared of tyranny of the government over the people
• The US Constitution was written to protect the rights of the governed whilst the UK Constitution evolved to protect the powers of the government
• Checks and balances are the means by which the Americans would be protected, it often ends in gridlock because there are so many checks
• In the UK, whilst there are checks there aren’t many on the executive because the PM can pass a bill into legislature without much trouble because he/she has a working majority
• Some argue that the UK is an overly autocratic government that is careless of the rights of individuals and minorities.

Federalism/Devolution:

• USA has a federal system of government in which political power is divided between a national government and state government
• It is important in America because it is large and diversified in race and culture etc.
• Also adds another layer of checks and balances and thereby further limits governmental power.
• Whilst the UK used to be a unitary system, it is now a devolved form of government where Parliament hold reversed powers and Parliament is sovereign but the devolved bodies can still legislate.
• Both want to give power and legitimacy to the local communities in the nation and to give voice to the growing regional or in the case of Scotland nationalist pressures.
• Both answering calls that the government should be ‘close to the people’

US Constitution - Federalism

What Is Federalism:

• A theory of government by which political power is divided between a national government and state government each having their own areas of judication.
• James Madison described it as a ‘middle ground’ in politics

What Is Limited Government:

• A principle that the scope of the federal government should be limited to that which is necessary for the common good of the people
• The government should only do what is essential
• James Madison described it as a “double security”

Factors Leading To An Increase Role For The Federal Government:

• Westward Expansion: Settlements spread westward across the Appalachian Mountains over the plains of the Midwest across the Rockies to the Pacific Ocean
• Growth Of Population: The population is 322 million in 2016. A growing nation requires management from a growing population
• Industrial Revolution: Brought the need for government regulation, Department of Commerce and Labour was created before they split 10 years after.
• Improvement In Communications: While the nation grew the modern modes of communication also grew therefore it is vital for the federal government to be able to communicate effectively
• The Great Depression: When it started the federal government got more involved by building roads and schools in local areas
• Foreign Policy: At the start of the second world war, the USA was a superpower and the federal government enhanced this role
• Supreme Court Decisions: In the late 1930s-1970s, enhanced powers through interpretation of implied powers were open e.g Article 1, Section 8.
• Constitutional Amendments: The 14 amendments have changed drastically and the relationship between the state and federal government has improved. The Constitution has amended Article 14 to enhance the relationship between the two. Used to individual state laws for public segregation and discrimination.

What Has George W Bush (2001-08) Achieve In Terms Of Education, Healthcare, Security And The Economy:

• When he was elected it was thought that he would continue the moves towards the shrinking of the size of the federal government but this was not the case.
• In fact, it the federal budget grew as did GDP as federal growth grew by 33%.

Education:

• One of his most important areas of policy
• Wanted to use the re-authorisation of the 1965 Elementary and Secondary Education Act as a vehicle for his education reforms.
• Signed the “No Child Left Behind” Act which meant that it was mandatory for the states to annually test students in grade 4 to 8 (Yr 3-7 in the UK)
• Increased funding for schools that were in poor, inner city areas.

Medicare:

• A federal government healthcare programme for the over 65s designed to cover medical and hospital care.
• In Dec 2003, Bush signed a major Medicare Expansion Bill into law including a new prescription drug benefit
• Estimated cost of $400 billion in the first ten years and was introduced to help American seniors
• Ironic that an Republican President should preside over the modernisation and expansion of medical care.

Homeland Security And Defence:

• Increased spending from $290 million to $651 million, an increase of 125% increase
• This was done because of the ‘War on Terror’ following the 9/11 terror attacks
• Went from 15% of the federal budget to 21%

Economy And Jobs:

• 2 mortgage companies became nationalised after the collapse of the housing markets
• “Not since the Depression has the Federal government taken such a direct role in the workings of the financial system”
• $700 billion ‘bail-out’ to alleviate the effects of the Credit Crunch

In What Sense Was Obama’s View Of The Federal Government Expansive:

• Whilst Bush was concentrated on war and terror, Obama was focused on domestic policy
• A number of federal-state relationships were changed
• The ratio of state and local government employees to federal employees were the highest since 1930.
• GDP also increased to 4.6%
• $246 billion was going to the federal government, $4 billion invested into education
• His healthcare reform was seen as the ‘end of federalism’ and the Tea Party Movement accused Obama of being more of socialist than a federalist.
• States were forced to take party or lose all their federal funding
• Some states argued saying it was unconstitutional and the Supreme Court agreed therefore his view was somewhat curbed by this decision.
• By the end of his Presidency the American’s view on federalism were negative as 29% of voters were enthusiastic whilst 69% were dissatisfied.

Consequences Of Federalism:

1. Legal Consequences: There is variety in state law on matters such as marriage age, driving age and the death penalty.
2. Policy Consequences: The states can act as a policy laboratory experimenting solutions to old problems such as healthcare and immigration reform.
3. Consequences For Elections: All elections are state based and run under state law. Each state can decide how to decide candidates whilst some experimented to how people vote e.g Oregon moving to an entirely postal vote.
4. Consequences For Political Parties: Parties are essentially decentralised, state based parties. Democrats are more conservatives than some other Democrats. Some consequences were highlighted in 2016 after the state decided to not hold a primary but nothing can be done of this.
5. Economic Consequences: Huge grants go to certain states and some does not but also in the complexity of the tax system, income tax are levied by both the federal and state government.
6. Regionalism: Each region in the USA have different cultures and accents as well as racial differences. Conservatism in the Deep South and liberalism in the Northeast.

Does Federalism Work Today:
Yes	No:
Permits diversity	Can mask economic and racial inequalities.
Creates more access points in government	Can frustrate the ‘national will’
Provides a ‘double security’ for individual rights and liberties.	Makes problem solving more complicated
Makes states ‘policy laboratories’ experimenting with new solutions to old problems	The relationship between the federal and state government can become a source of conflict and controversy
Well suited to geographically large and diverse nation	Overly bureaucratic and therefore costly to run and resistant to change.

US Constitution - Bipartisanship

• Bipartisanship: Close cooperation between the two major parties to achieve desired political goals. In the US system of government, it may be crucial for political successful.
• When things such as law making etc only happen when all branches of government work together so laws can get passed.

Explain Divided Government, Does It Happen Often:

• Divided Government: When the presidency is controlled by one party and one or both houses of Congress are controlled by the other party
• Of late this has been the norm, 1969-2016 this has happened and has seen 35 ½ years divided for 24 of these years neither party has controlled both houses.

Examples Of Divided Government:

• Not since 1935 has Senate rejected a treaty
• Only twice in 50 years has Congress vetoed the POTUS veto
• President Johnson persuaded Congress with democratic majorities to pass the Tonkin Gulf Resolution.
  SC nominees such as Bork and Thomas were rejected by a democratic controlled Senate
• Now Trump has been elected it is the first time that both houses are in control of both houses.

Does The US Constitution Still Work:
Yes:	No:
Federalism has proved to be an excellent compromise between strong national government and state government diversity	The amendment process is too difficult making it almost impossible to amend parts that are no longer applicable or to add parts that a majority desires.
The text has proved very adaptable to changes in American society	The power of judicial review gives the Supreme Court too much ‘power’ to amend its meaning
The demanding amendments process has usually prevented frequent and ill-conceived proposals for amendments	It is too negative, giving too much power to those who oppose change
Rights and liberties of Americans have been protected	Some parts make little sense in today’s society e.g the Electoral College
The Supreme Court’s power of judicial review has made it even more adaptable through ‘interpretative amendment’	Some parts don’t work as the framers of the Constitution would have envisaged e.g war-making powers.

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:

1. All legislative power must be checked by Congress which will be Senate and the HOR
2. Executive powers lie with the POTUS
3. Judicial power lies with the judiciary and this is the highest court of appeal
4. Federal-state and state-federal relationships
5. Amendment procedures
6. Miscellaneous provisions
7. 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)		Ratifying conventions in three-quarters of the states	Once (21st 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

Why Has The Constitution Been Amended So Rarely:

1. 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
2. FF made it unspecific and vague on purpose to evolve without the need for formal amendment
3. 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.
4. 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”