Essay plan: 'Evaluate the view that the constituion no longer does the job for which it was intended' (30 marks)
Into: What’s the debate? Depends on what the constitution was intended to do. The preamble states promoting ‘liberty’ and maintaining ‘tranquility’- Liberty tends to mean less government and tranquility means stronger government. Conservative critics argue government is too dominant over states and individuals, while critics from the left emphasize the weakness of government in protecting rights and fulfilling necessary social programs.
What’s your view? In this essay I shall argue….
Arguments in agreement.
The Constitution prevents effective government- It is too hard to amend — only 27 amendments achieved in over 200 years. Checks and balances are too rigid. The Constitution does not describe the needs of a 21st century executive. Government is 'gridlocked' by the other two branches. Ornstein and |Mann-‘The Broken Branch’: Failure to deal with Immigration, Gun control, Climate change, America’s fiscal crisis.
However: It is not a problem that there have only been 27 amendments. Codified constitutions should be hard to change. This protects citizens from developments that may be the whim of particular individuals. E.g Bans on flag burning
Madison argued that the constitution requires a ‘Necessity to compromise’- but political polarization, gerrymandered House districts, and powerful lobby groups mean politics has become partisan. The executive needs more control over the passage of legislation, particularly in situations where actions have to be speedy. Modern society also demands that the executive makes policy. The Constitution hinders that through rigid separation of powers and checks and balances.
In order to stay relevant to society, governments are forced to rely on conventions and procedures that are not specifically authorized by the Constitution such as judicial review, executive agreements, executive orders and signing statements. (Power without Persuasion WG Howell) Obama- Executive Orders to create a partial amnesty for illegal immigrants-Or back ground check on gun purchases. This can be dangerous to liberty. However: this could be seen as evidence of the flexibility of the constitution.
The fact that it took one hundred years for the civil rights of black people in the to be protected in Civil Right Act of 1964, after several amendments designed to do this in the 19th century, shows the ineffective and irrelevant nature of the Constitution. The Constitution seems powerless to stop infringements of civil liberty such as emergency measures taken against suspected terrorists after the September 11th attacks. There have been no subsequent cases since Boumediene vs US 2008- asserting the right of those held in Guantanamo- The failure to close Guantanamo and Edward Snowden’s revelation about the NSA.
It could even be argued that the Constitution encourages some inequality since its emphasis on liberty and ‘limited government’ protects the rights of the strong over the weak. Freedom ‘to’ it put ahead of freedom ‘from’. Individual liberty, which can mean corporate liberty is placed ahead of collective or social liberty. E.g. Citizens’ United vs FEC give corporations the same right of free speech as individuals. Most Americans favour some gun control but Congress blocks this and Heller vs DC assert the freedom to own a gun.
Much has been changed positively through conventions and decisions the Supreme Court have kept the Constitution up to date. E.g Windsor vs the US, Obergefell vs Hodges.
After 9/11 the Constitution allowed the government to create a new department Homeland Security and pass new legislation- The Patriot Act. While this shows how the constitution can adapt and respond to emergencies- the Patriot Act was not a blank check and the president remained subject to legal and legislative scrutiny.
Significant legislation is possible- Dodd Franks- bank reform, Affordable Health Care (Obama Care) ARRA (American Reinvestment and Recovery Act- Obama’s economic stimulus after the 2008 recession.