[NEW] 4C Constitution Essay Plans

To what extent has federalism been eroded as a constitutional principle

· The Model of dual federalism created in 1787 has been increasingly undermined by the expanding federal government, especially since the 1930s and the New Deal. Led to the idea of co-operative federalism, which slowly took greater power for the federal government away from the states.

· Bush expanded the federal government imposed federal demands on the states, for example the No Child Left Behind Act, which were education reforms. Education had been traditionally left to the states, which caused controversy. However, Bush also believed in starving the beast and therefore giving greater power to the states – enforcing new federalism/federalism as a constitutional principle.

· Obama has expanded the scope of the federal government, especially his healthcare reforms, known as "Obamacare". His administration have also restricted state actions, by taking legal action, as demonstrated by the United States vs Arizona in regards to Arizona's immigration laws , and was partially successful in this. -- HOWEVER, with Donald Trump elected as President, he has pledged to scrap Obamacare and has already taken several measures through Executive Orders

· New Federalism has attempted to reduce federal dominance, through an increased use of block grants, giving states more independence as it allows the states to have more discretion in spending federal money, most prominently seen under Reagan who believed that big government is not the solution, it is the problem.

· Trump is clearly seen to adopt an approach that reinforces the idea of federalism as a constitutional principle as seen through how in his inaugural speech he spoke about giving power back to the states.

Should the US constitution be reformed/Is the US constitution outdated

Yes	No
Gridlock when the constitution was first created America was populated by only 4 million people mainly agrarian society with 95% being simply farmers. They did not need the government to do much at the time, that is why the states had much rights back then. Since then the population has grown and it is much larger and no longer agrarian like it was 200 years ago, it is outdated because of the fact that it leads to gridlock in Congress and other branches of government because of the checks and balances that exist and the separation of powers. Increasing polarisation, they cannot agree with each other. 2013 government shutdown, 113th least productive Congress since do-nothing. Gridlock is caused because the various branches of government possess different powers and responsibilities and often these conflict or due to polarisation branches cannot agree with each other (as seen most prominently on Obamacare) and gridlock occurs.	Because the founding fathers intended for there to be gridlock and an increase in polarisation in order to combat tyranny. The current state of Washington reflects the utility of the constitution. Wanted a divided government so that checks and balances would be able to be effective in order to prevent tyranny of the majority. The aim of the constitution was to prevent any branch from becoming excessively powerful, and this is successfully seen through divisions which allow this to work. Currently seen through how most Republicans disagree with Trump.
Imperial presidency coined by Schlesinger. The president is way too powerful, seen through how the president has effectively exploited their power of being commander-in-chief taking away Congressional constitutional power of declaring war despite the last time Congress declaring war being in 1943. Obama in Iraq, Bush in Iraq, Johnson in Vietnam. Struggle of who directs foreign policy between Congress and the Executive, human rights groups have said; “illegality and secrecy” of Obamas time. Obama also created the IRS which loads of people were angered about as many people believed that it was founded to get rid of his enemies as it targeted many tea party members, many executive orders. Rand Paul commented on his actions as that of a “king or an emperor”, he was generally seen as trying to bypass Congress who was supposed to be his most effective check of power.	Blown out of proportion because compared to FDR or George W Bush, Obama has not executed as many as the media has stated that he has. FDR - 3721, George W Bush 291 while Obama has only done 277 executive orders. Therefore showing that he was not actually an imperial president. Foreign policy has also been blown out of proportion, Congress still has a major role as there are still Congressional committees that investigate foreign actions as seen through the Benghazi disaster. Obama had to send a letter requesting the authorisation of further force against ISIS. Obama has acted along the lines of the constitution, his IRS was investigated by the committee on ways and means and found nothing wrong.
Electoral college is an anachronism. It has only made the elections less democratic, at the time the founding fathers were afraid to a direct election, however since then American democracy has evolved and therefore no longer has need for an electoral college which only hinders democracy further as seen through 2016 when Trump won the election despite losing the popular vote by 1.3 million votes and it was also seen in 2000 when Al Gore lost the election despite winning the popular vote against Bush. The electoral college does not work as seen through how there was 7 rogue electors who did not vote according to their state votes.	The electoral college is important to the US federal identity, JFK said “we cannot abolish one component of federalism without considering the other”. Federalism is already in decline, the removal of the electoral college would only make it worse. Also, the electoral college rarely suppresses the popular will and this has only ever happened 5 times.
Federalism is enforced in the 10th amendment however it has gradually been eroded showing that the constitution is being neglected showing that the constitution needs reform. When the constitution was first drawn up the aim was to create a weak federal government and strong state governments - this gradually became known as federalism. This has been weakened through things like FDR’s New Deal or Obama taking power over healthcare away from the states through things like Obamacare or George Bush taking power over education through his No Child Left Behind policies.	However, federalism has arguably been renewed by presidents like Nixon, Reagan, Clinton, George W Bush and soon with Donald Trump who during his inauguration speech stated that “we’re giving power back to the people” and spoke about his plans to increase state power while minimising federal government’s sphere of influence. Already seen through how his first executive orders were based around the start of repealing Obamacare, therefore giving back power over health care to the States.
Imperial judiciary when the founding fathers created the constitution what they had in mind was that neither branch would become too powerful, however, the judiciary is too powerful. For an unelected body the SC exercises immense power mainly through the power of judicial review, being able to strike down the laws of states, the executive and the legislature. As an unelected body what gives them the right to have a say on the actions of elected bodies and on what is arguably local issues such as gay marriage and voting laws. They enact social change and interfere with actions that should be local issues and powers that are in the hands of the states.	Since Marbury v Madison the supreme court have been the defenders of the US constitution especially when it comes to the bill of rights, they protect it from erosion by the other branches as seen through gun rights being upheld. The bill of rights is continually upheld even when under threat by the PATRIOT act, judicial review is not as powerful as it seems to be as they have no initiating power, they need someone else to come forward with a case. They also have no enforcement power, which is down to the branches of the states not the judiciary.

How effect is the Bill of Rights

Does the US constitution effectively protect rights

Executive order - The executive order temporarily bans citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the US  as well as denying the entry of syrian refugees. The executive order does not explicitly state that it is a ban on Muslims although Rudy Giuliani - Trump’s own advisor - confirmed that it is in fact a ban on muslims. This is a direct challenge to the first amendment which protects religious freedom.  During his election he called it a muslim ban.

State rights - The 10th amendment sets out state powers which traditionally includes control and power over regulating healthcare, education and welfare. These have since been challenged by new forms of federalism as the central government has grown in power historically through the New Deal and Great Society. More recently by taking away State healthcare rights through Obamacare, or Bush getting involved in education powers through his No Child Left Behind policy. So effectively the 10th amendment has been eroded through new forms of federalism.

Gun rights - have been heavily protected by the Bill of Rights, which protects these rights through the 2nd amendment which states that US citizens have the right to bear arms. This has been protected a countless number of times as seen through the District of Columbia v Heller which overturned the ban on handguns in Washington DC. Or also through how the Manchin-Toomey bill failed in its attempt to introduce background checks on the purchase of weapons.

Equal protection - The right to marriage and an abortion has arguably been protected very well by the constitution as seen through how the 14th amendment has allowed Roe v Wade to legalise abortion and Obergefell v Hodges in 2015 to legalise gay marriage. Showing how the constitution has been a strong and effective protector of such rights. HOWEVER the right to an abortion has been limited by the Stupak-Pitts amendment which barred federal funding for abortions.

NSA - the NSA has heavily challenged the 4th amendment which protects people against unreasonable searches and seizures, previous court cases have interpreted the 4th amendment as also being the right to privacy. The Snowden leak has informed us that the NSA is monitoring millions of people without their permission therefore challenging the right to privacy. In 2014 when the funding for the PATRIOT act which allows the NSA to spy was going to require renewing, Rand Paul filibustered the renewal along with several over senators although this did not work and the funding was continued as was the breaching of the right to privacy.

Torture - the CIA torture report of 2014 uncovered that the CIA was using cruel and unusual punishments on prisoners as interrogation techniques which breaches the 8th amendment which prohibits the US from issuing cruel and unusual punishments which were used by the CIA most famously through the waterboarding torture. President Trump has stated that he fully supports the use of torture to interrogate suspects.

‘The 3 branches of government have failed to protect consituttional reights in recent years’ discuss

• Marriage, they have succeeded in protecting marriage for everybody such as through Obergefell v Hodges, where many people tried to block the Obergefell  v Hodges, they tried to block it.
• the right to arms, Obama has tried to limit this through his legislation but this has never succeeded meaning that the executive has failed to protect constitutional rights because they have attempted to actually limit them by gun rights legislation. Although they have since been protected by the Supreme Court which generally strikes down attempts like through DC v Heller or Congress which voted against gun rights legislation. Manchin-Toomey bill 2013.
• Failed because of NSA and CIA PRISM spying programme which infringes on the right to privacy which was guaranteed in the Griswold v Connecticut case. This is something that has no been protected although attempts were made like by Rand Paul (US freedoms act) to limit NSA spying. Although Trump has recently limited the NSA spying. PATRIOT act renewed as a result of the US freedoms act failing.
• Abortion has been attacked, Trump plans to defund Planned Parenthood the largest abortion clinic in the USA. Stupak-Pitts amendment was also an attack aimed at limiting federal funding for abortions, which Obama promised would end.
• Affirmitive Action whcih was aimed at giving people the right to achieve better and equality which is put in the constitution as a fundamental right to equality for all. This was limited in Schuette v Coalition which allows for affirmitive action to be banned through initiatives and propositions.