Interpretations and debates around the US Constitution and federalism

How democratic is the Constitution?

To what extent can the US Constitution be seen as a democratic document? To answer this question, you must first consider what 'democracy' means. A starting point is to remember that democracy is anything that maximises the power of the people.The 'Founding Fathers' who designed the Constitution  had what the first female Supreme Court Justice, Sandra Day O'Connor, termed 'an array of intentions'. At the heart of the design, however, was a desire to establish a democratic system and strengthen the organs of national government while simultaneously limiting its power.


The US Constitution upholds fundamental principles of a representative democracy by creating free and fair elections. The system of separation of powers and federalism has led to a huge number of elections, allowing US citizens to vote more often than in any other country in the world. The Founding Fathers also created short two-year terms for the House of Representatives, who must exercise high levels of sensitivity to public opinion. With the Senate and president also elected, there is a significant representation.

However, a number of criticisms can be raised. The electoral college is an out-dated voting method, based on a reluctance to give power to the people. Many aspects of the electoral college offend fundamental principles of a representative democracy.

Checks and balances

Checks and balances, backed by the separation of powers, could be said to serve the interests of democracy by maximising the power of the people.

Checks and balances may prevent one person, party or institution from holding all of the power, with the potential to abuse their position for their own benefit, or for the benefit of limited groups in society. Checks and balances can be used to prevent such corruption by blocking any such attempts, as when President Bush requested a line-item veto power, but Congress denied him.

Checks can also ensure that everyone's interests are considered. In a separated system where it is common for different parties to control the main office of government, policy is more likely to be based on the consideration of the many, not the few. Collectively, when policy is eventually passed, there is a greater representation for all.

 On the other hand, the system of checks and balances may damage US democracy. Democrat voters vote for Democrat policies, and Republican voters vote for Republican policies, but neither set may feel that they get any policies that reflect their wishes or interests. For example, in 2012, the public voted for a Democrat president who argued for comprehensive immigration reform. When immigration reform was introduced into the House, the then-Speaker John Boehner refused

Case study: The Affordable Care Act and electoral democracy

Obama received a mandate for health care reform in 2008, yet was forced to abandon major aspects of his policy in light of opposition from Congress, including Democrats. The elected House prevented the elected president from achieving his policy goals, as outlined in the 2008 campaign. In 2014 the Republicans took control of the Senate in the mid-term elections. When they subsequently sent legislation to the president to repeal health care laws, he vetoed it. In 2016 Republicans were elected, gaining control of the House, Senate and presidency, campaigning to repeal the ACA.

The Republican Party did not, however, give a clear idea of what they would replace it with and could not agree on an alternative in March 2017, meaning that it failed to repeal and replace Obamacare. Conservative Republicans were arguably representing constituency views by rejecting the proposal that maintained many of the key aspects of the ACA, but ended by achieving no reform at all.

It is clear that the US has a very strong system of rights protection, with a powerful Supreme Court that is able and willing to promote liberties as outlined in the Constitution. The Bill of Rights, alongside the 14th amendment, gives legal protection to those in the US. Democracy, in seeking to maximise the power of the people, is based on a liberal idea of individual freedom. Rights allow people to have power, giving them control over their own lives, free from excessive government control. This can be seen in the religious freedom clause of the 1st amendment, the right to remain silent in the 5th and freedom.from racial discrimination in the 8th. Rights also protect certain powers the people have, giving them the ability to have influence over the government.

On the other hand, there is plenty of evidence of a lack of rights protection in the United States, and thus the undermining of the political power of the people. The Shelby ruling has allowed states to create laws that undermine the opportunity for poor or racial-minority voters to participate. In addition, rights protection itself may contradict principles of democracy. If the electorate vote for a policy, arguably the laws of democracy say they should have it. If voters choose politicians who want to introduce voter ID laws, support laws to prevent the burning of the flag or prevent anti-immigrant marches, then arguably, the rules of democracy should allow those politicians to carry out the will of the people. Much depends on which type of democracy is most highly valued.

Liberal versus conservative views

Further to this, a criticism from liberals suggests that the system of checks and balances deliberately protects the interests of the few, not the many. Creating any change is made extremely difficult, which means that the conservative nature of the Constitution protects the status quo -the economic elite hold all of the power. The failure of those such as Sanders to change such rules or the extremely limited nature of banking reform passed by Congress after the banking crash of 2007-08 provide evidence of this view of the Constitution. Conservatives argue that the system is fair because all groups have equal democratic rights to participate in the system through the right to vote, and the protection of rights such as freedom of speech.

The desirability of the Constitution has been disputed by liberals and conservatives, with different views regarding which rights are prioritised by the Constitution. Liberals will tend to emphasise the 14th amendment and conservatives will tend to emphasise the 2nd. In addition, there can be conflict between state rights (which are constitutional rights) and individual rights. Conservatives have often challenged developments in individual rights as a restriction of the rights of the states.

It is clear that the Founding Fathers emphasised checks and balances as a key criteria. The chapters on the three main institutions, as well as political parties, will explore the extent to which these checks and balances operate effectively. There are many reasons to believe that those checks and balances are not functioning properly. The imperial presidency theory, for example, argues that there are no significant constitutional restraints on the president. On the other hand, in the age of polarisation of parties, there is a view that these checks and balances are now excessive, leading to legislative sclerosis and a lack of political leadership.

Not only is the power of government fragmented rather than con­centrated, but those who staff the govern­ment face markedly different political pressures and incentives. This makes election campaigns indi­vidualistic, candidate-centred and personal­ized, and thereby renders political parties weak institutions, broad coalitions of remark­ably diverse, often dissimilar, and even diametrically opposed interests (such as when both blacks and southern segregation­ists co-existed in the Democratic Party from 1932 to 1968). To sceptical observers such as Daniel Lazare (1996), the many divisions of power makes the federal government not only inefficient but also 'frozen' - not so much unlikely to pass new measures rapidly but unable to do so. Whether that is too strong a claim remains to be seen, but at the very least, the incentives for politicians to work together are fewer, and the sanctions for failing to do so weaker, than in most democracies - even if the need to cooperate is at least as great. Norman Ornstein andThomas Mann take a similar view in ‘The Broken Branch.’

The Bill of Rights is as important to politics today as the governing institutions estab­lished by the Constitution. No public policy is unaffected by its provisions. Moreover, the Bill of Rights has been crucial in 'constitu­tionalizing' politics: seeking support for a policy requires more than popular or legis­lative majorities, it also requires constitu­tional validity. What this means is that while Americans disagree vociferously on many political issues, they share a notion of how to disagree: by reference to the Constitution. Whether or not a proposal is rational or rea­sonable - gun control, prohibition of alcohol, allowing same-sex marriages - is not essen­tially the point. Rather, one question informs policy debates constantly: is the proposal constitutional? In no European nation is everyday political discourse so pervaded by the language of constitutional law. Nor is any nation comparable in the readiness with which ordinary Americans invariably invoke their constitutional rights to justify their actions (or to rule actions they dislike impermissible).

Liberal criticisms

Liberal critics from the early twentieth century onwards have seen the constitution as representing the interests of property and capital. In their view, the desire of the federalists to filter popular opinion, and to separate the different branches of the system, created a system that protects the status quo, and where change of any significance is difficult to bring about. The fragmented government and multiple blocking points frequently lead to gridlock, and the difficulty of amending the constitution has handed an effective veto over many areas of policy to an unelected court. There is an inherent lack of accountability in the system,and power is distributed so broadly that responsibility for any given policy decision is easy to evade. The system allows the erosion of civil liberties during period of emergency, and the courts have shown themselves unwilling to intervene

Conservative criticisms

Conservatives' criticisms have focused not so much on the constitution itself but rather on what they would see as the dilution of its principles. In particular, the federal government has exploited the vagueness of the constitution to bring about a vast expansion of its power at the expense of the states, representing a threat to the legitimate rights and interests of property owners and businesses. The illicit growth of the power of the courts through the power of judicial review has led to their imposing their liberal agenda on school prayer, abortion, flag burning and gay rights on the entire country, A specific criticism is that lack of term limits in Congress has been the means of the creation of an unrepresentative political class, devoted only to furthering its own interests.

 non-partisan assessment

The middle-ground defence would first point out that the American Constitution is the longest surviving example in the world. The fact that it is assailed from both left and right suggests that it has somewhere near the right balance between effective government and protection of individual liberty. It has provided political stability and has not prevented change occurring, but rather makes it dependent on broad-based enduring support. The sometimes vague terms in which it is written has meant that it can adapt to society's needs, so that for example the president has assumed greater power as America's role in world affairs has expanded and the economy has required more central direction.


When the UK and US constitutions are compared it is commonly stated that the US constitution id rigid and the UK constitution is flexible- IE the UK constitution can be changed by a statute law whereas the US constitution requires a formal and very difficult amendment process.  BUT

How flexible is the US Constitution? 

Is the constitution too rigid?

Negative and positive impacts of the Constitution Today

The nation’s founding contradiction: the dispossession of Natives, the enslavement of Africans and the exclusion of women in a new nation dedicated to the radical concept of universal human equality. 

How to save constitutional democracy 


Frequent elections, short terms for the House and the separation of powers creates a highly representative government.With the House of Representatives being elected every 2 years, members must be acutely aware of the views of their constituents. Biden had the lowest ever presidential poll ratings going into his first State of the Union address, members of Congress could therfore argue that opposing his policies was to act in line with their constituents rather than their party. This helps to uphold the legitimacy of government: as Congress is frequently elected and so members are responsive to their constituents, they are more legitimate. Parochialism 

Checks and balances ensure that branches Work together. This prevents tyranny and means that policy is based on a compromise of different interests.Ratification of the U.S. Constitution 

A powerful Supreme Court alongside Constitutional rights ensures a high Level of protection of civil rights.The Bill of Rights ensures that individual rights are upheld. In the case of Snyder v Phelps (2011), the right to free speech of the controversial Westboro Baptist Church was upheld by the Supreme Court

The amendment process prevents politicians from changing the rules to award themselves more power. For example Trump v Vance (2020) 

The vagueness of the Constitution has allowed government to operate effectively by allowing changing political practice to suit the needs of modern society. Constitutional Interpretations of Federalism . The implied powers 

The states are well protected, allowing government to meet the needs of each state. Federalism in Action  

limited government means the avoidance of elective dictatorship.

The Imperilled Presidency 


The electoral college can produce a government that does not reflect the wishes of the majorityThe Electoral College undermines the principle of ‘free and fair’ elections, with the loser of the popular vote winning the presidential election twice in the last five elections.

 The Senate represents the USA by state rather than population, meaning states with smaller populations are over-represented

The electoral college favours white voters 

Policy-making is very difficult, leading to ineffective government in the form of gridlock. There have been 21 government shutdowns since 1974.

 Partisanship in Congress has made effective government considerably worse.Is Congress the broken Branch? 

The power of the Supreme Court means that the government may be prevented from carrying out policy, leading to ineffective government and claims of limited democracy. Supreme Court Won’t Extend Wisconsin’s Deadline for Mailed Ballots Campaign finance laws that were meant to restrict the role of a few wealthy individuals in an election were struck down by the Supreme Court in 2010 and 2014. Citizens United v FEC 2010 Shelby County v Holder 

The amendment process prevents necessary changes. This might mean that government is not responsive to the needs of modern society.  Advantages and Disadvantages of the Amendment Process 

The vagueness of the Constitution has meant 'Loopholes' have been exploited, such as executive orders, which has allowed for the dominance of one branch over another.

There is insufficient protection of state power. The federal government, therefore, dominates policy-making.The vagueness of Article II of the Constitution has allowed for presidential dominance of government in the USA, while the specificity of Article I has meant that Congress has struggled to interpret its power as broadly. This can mean that government policy becomes more dominated by the president rather than responding to the individual needs of the states or districts.A short history of the Imperial Presidency (with examples) 

Not all rights have been effectively protected. Minority rights have been challenged in cases such as Shelby v Holder and the very existence of Guantánamo Bay poses significant questions over the effectiveness of rights protection

The Advantages and Disadvantages of Federalism

Two pathways to influence government and protect rights.

Admirers of the federal system say that the federal and state governments make up two layers of protection for Americans’ rights and interests. 

Most states and many cities have Washington lobbying offices or contract with lobby firms. Dozens of organizations represent state and local officials from across the country. Here are a few: 

The Council of State Governments

 • The National Council of State Legislatures

 • The National Governors Association

 • The National Association of Counties

 • The National League of Cities

 In 2010, state and local governments spent more than $77 million lobbying the federal government, down from an all-time high of $83 million the year before.

 Federalism may provide a “double security” in another way: by providing “backup systems.” When citizens try and fail to get action from the federal government, they may turn to state governments. In August 2001, President George W. Bush announced that for the first time federal funds could support research on human embryonic stem cells, but under limited conditions. Many researchers deemed the limits too narrow. A number of states then launched efforts to foster embryonic stem cell research. By a 2004 ballot measure, Californians set up a research institute and will generate $3 billion in bond funding for embryonic stem cell research. (In 2009, President Obama revoked President Bush’s executive order on stem cell research.) 

Another example of relying on state governments to further efforts arose from Kelo v. City of New London. This Supreme Court case involved eminent domain, the power of governments to take private property in exchange for payment, even if the owner objects. The Court said that the U.S. Constitution does not bar states and localities from transferring private property to new private owners for the purpose of economic development. The decision disturbed many property owners, who feared that governments could seize their land to enrich developers. But writing for the majority, Justice Stevens practically invited states to supply their own remedy: “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”93 As of 2011, 42 had done so.94 One could view both cases from different perspectives. From the standpoint of those who oppose embryonic stem cell research, state action means double danger, not double security. That is, critics must win at two levels, not just one. In the case of eminent domain, one could argue that the states created the problem in the first place and that the legislative responses were often weak. Noting that state and local officials can be at least as oppressive as their federal colleagues, they cite cases where state and local authorities have misused tax dollars, silenced dissent, shut down honest businesses, and invaded privacy.95