Evaluate the view :

'The US Constitution causes problems for effective government.' (30 Marks)

The question here is popular with examiners.

Introduction: The constitution was designed to create ‘limited government’. Critics of the constitution will tend to argue either that the constitution places too many limits on government or that the constitution allows the government too much power. This will often depend on their ideological perspective or whether their role is in the executive or legislative branch. The ‘effectiveness’ of government will also depend on factors of timing and events which change the balance of power between the constitutional branches.

Overall the constitution was designed to sacrifice some degree of effectiveness in order to limit the power of government.

Arguments in agreement with the statement may be as follows.

Critics of the constitution argue that the President’s role as Chief executive is too restricted to fulfil the needs of the 21st Century. The president’s role as commander in chief has expanded to include a duty to keep America safe. President Bush and Vice President Dick Cheney advocated ‘unified executive theory’ which asserted the president’s right to have unchecked control of security and defense policy.

They criticized the Supreme Court’s decisions in the Hamdi, Rasul and Boumediene cases which asserted the rights of men arrested and held without trial.

Obama criticized Congress for blocking his attempts to close Guantanamo and delays in renewing the Patriot Act (renewed in 2015 as the Freedom Act) Or the Supreme Courts' action in striking down his DAPA executive order 2016. (Texas v the US)

However- Terrorist attacks have not resulted in the chief executive becoming a dictator as has happened under some other constitutions. You could argue the Constitution has allowed a balance between the need for security and liberty.

Liberal critics of the constitution tend to point to the limitations placed the passage of legislation. The Separation of Powers means that all presidents struggle to pass legislation through Congress. The expectations placed on the modern president to maintain prosperity and deal with pressing social problems which require legislation which may be blocked in Congress or declared unconstitutional by the Supreme Court.

    • Obama’s Immigration legislation (The Dream Act) repeatedly blocked.

    • Obama’s gun control proposals blocked in Congress. From 2014 Obama is a lame duck president.

    • A long-term solution to America’s debt crisis and the fiscal cliff has been blocked in Congress resulting in gridlock.

The constitution also prevents effective government because the Supreme Court uses judicial review to strike down legislation. Since the constitution is rigid and too hard to amend, only 27 amendments achieved in over 200 years, there is little the government can do.

2008 Citizens United vs FEC stuck down the Bipartisan Campaign reform Act using the 1st Amendment –effectively ending any chance of campaign finance reform. Lopez vs US and Heller vs DC mean gun control has become extremely difficult. Modern society also demands that the executive makes and implements policy. The Constitution hinders that through rigid separation of powers and checks and balances.

In order to remain effective, governments are forced to rely on conventions and procedures that are not specifically authorised by the Constitution such as Executive Orders, executive agreements and Signing Statements and recess appointments. Critics argue this can be dangerous to liberty.

The fact that it took one hundred years for the civil rights of black people in the USA to be protected in federal law in 1964 after several amendments designed to do this in the 19th century shows the ineffective nature of the Constitution when it comes to aiding good government.

However- Change is incremental (step by step) in the USA and required popular opinion to change. The US Constitution safeguards itself against rapid and unsupported change, which explains its survival and the high regard in which it is held by the American people.

Liberal and libertarian critics argue that the Constitution seems powerless to stop infringements of civil liberty such as emergency measures taken against suspected terrorists after the September 11th atrocities. Rand Paul used the filibuster to hold up renewal of the Patriot Act and Edward Snowden exposed how the NSA was a threat to civil liberties. It could even be argued that the Constitution encouraged the use of these measures through its allowance of emergency powers.

On the other hand,

The constitution is quite short, unspecific and flexible enough to allow for change. It is the oldest constitution in the world and has adapted to huge changes in America. The elastic clauses in article 2 have allowed the expansion of government, regulation of new industries and technologies. . The Constitution is able to regulate million people. It also helps to regulate the relationship between the lives of over 300 the federal government and 50 states_ For a document that was largely written over 200 years ago for a comparatively tiny population, these are tributes to its relevance.

Decisions the Supreme Court have kept the Constitution up to date. 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.

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. The Supreme Court has protected 1st Amendment right of free speech in Texas vs Johnson (Flag Burning) and Engel vs Vitale (prayers in schools-separation of church and state) when popular opinion may well have decided differently. Attempts to introduce amendments to the constitution in these cases have failed.

Conclusion: The Constitution was designed to inhibit government power and sacrifice efficiency for liberty. The criticism it receives from those who are frustrated by the failure to act on pressing issues and from those who see the executive as unchecked, suggests it is still, as it has always been an imperfect but working compromise.

‘I confess that I do not entirely approve of this Constitution at present, but Sir, I am not sure I shall never approve it’

Benjamin Franklin’s final speech to the Constitutional Convention 1787