The Constitution in the 21st Century (AQA A-Level Politics): Revision Notes
The Constitution in the 21st Century
The US Constitution, drafted in 1787, continues to govern America today. However, a crucial debate centres on whether this 18th-century document remains suitable for governing a modern 21st-century superpower. This debate intensified during the COVID-19 pandemic and raises fundamental questions about federalism, constitutional clauses, and the protection of rights.
The Central Question
The fundamental debate is not simply whether the Constitution has flaws, but whether those flaws stem from the document itself or from the dysfunction of contemporary American politics. Operating within a political culture characterised by deep polarisation and hyperpartisanship, can any constitutional framework function effectively?
Federal-state relations in the modern era
The relationship between federal and state governments has remained contested throughout American history, but the COVID-19 pandemic brought this tension into sharp focus.
The COVID-19 power struggle
On 13 April 2020, President Donald Trump made a striking claim about presidential authority. When questioned about easing lockdown measures, he declared: "When someone is the president of the United States the authority is total." Trump was asserting his ability to dictate national policy over individual states and their governors.
Governor Andrew Cuomo of New York, the state worst affected by the pandemic at that time, firmly rejected this claim. He responded: "The Constitution says we don't have a king…we didn't have a King George Washington but President George Washington." This exchange demonstrates that debates over the distribution of power in the Constitution remain ongoing and highly relevant.
Historical Echo
Cuomo's invocation of "King George" deliberately recalled the American Revolution's rejection of monarchical authority. This rhetorical strategy connected Trump's claims to the very tyranny the Constitution was designed to prevent, illustrating how founding principles remain central to modern constitutional debates.
Contemporary federalism debates
Modern discussions about federal government power focus less on whether it should interfere in state affairs and more on what form that interference should take. Both major parties demonstrate inconsistent attitudes towards states' rights.
Democrats support federal intervention when imposing healthcare expansion through Obamacare but oppose states restricting abortion access. Republicans support federal action against sanctuary cities that protect undocumented immigrants but defend states passing "bathroom bills" restricting transgender rights.
The Uncomfortable Truth
Many politicians across the political spectrum support states' rights only when states pursue policies they agree with. In other words, they back states' rights unless states go for the "wrong sort" of rights. This reveals that debates about federalism are often less about constitutional principles and more about achieving desired policy outcomes.
Is the Constitution fit for purpose in modern America?
The Constitution undoubtedly has real flaws, including its rigidity, uneven protection of rights and liberties, and specific problematic clauses like the Electoral College. Critics also argue it gives too much power to unelected judges who interpret its meaning.
However, defenders argue that the real problems lie not with the Constitution itself but with how contemporary politics operates in America. Operating within a political culture characterised by deep polarisation and hyperpartisanship, the Constitution arguably cannot function effectively. The question is whether the Constitution is fundamentally flawed or simply prevented from working properly.
We can evaluate this debate by examining both specific constitutional clauses and the Constitution's broader structure and nature.
Examining specific clauses of the Constitution
Several constitutional provisions have proved particularly problematic in the modern era.
Senate representation
How it works: The Constitution balances small and large state interests through equal representation in the Senate (two senators per state) but population-based representation in the House.
Strengths: This rightly reflects and respects the federal structure and diversity of modern America. Small states receive guaranteed representation and influence.
Weaknesses: The gap between largest and smallest states has mushroomed since the 1780s. In 1789, the largest state (Virginia) was 12 times larger than the smallest (Delaware). Today, California is 68 times larger than Wyoming. Small states are increasingly over-represented in the Senate, which possesses more exclusive powers than the House. Half of all senators are elected by states representing just 16% of the population. This raises serious questions about democratic representation.
The Growing Representation Gap
The framers could not have anticipated how dramatically population differences between states would grow. This increasing disparity means that Senate representation, designed to balance federal interests in the 18th century, now creates significant questions about democratic legitimacy in the 21st century.
The Electoral College
How it works: Presidents are elected not by direct popular vote but through the Electoral College, where each state receives electoral votes based on its congressional representation.
Strengths: This ensures smaller states are not overlooked during presidential campaigns and reflects the federal composition of the USA.
Weaknesses: The Electoral College has failed twice in recent times (2000 and 2016) to reflect the outcome of the popular vote. It is a product of a bygone era before mass communication and transport, when ordinary voters might not have known the candidates. That is manifestly no longer the case. When the "beacon of democracy" chooses its leader through a system that can deliver victory to the candidate who received fewer votes, it undermines democratic legitimacy.
War-making powers
How it works: The Constitution shares foreign policy powers between executive and legislature. Congress has the power to declare war, whilst the president has the power to make war.
Strengths: No trigger-happy president can launch a major war without congressional consent. This prevents unilateral military action.
Weaknesses: The Constitution is unhelpfully ambiguous about war-making powers. How can the Constitution be working well if the USA has not officially been at war since 1945, despite numerous military interventions? This ambiguity has allowed presidents to bypass formal declarations of war.
Constitutional Ambiguity in Practice
The gap between constitutional theory and practice is nowhere more evident than in war-making powers. While the Constitution clearly grants Congress the power to declare war, presidents have conducted numerous military operations without formal declarations. This raises fundamental questions about whether the Constitution's checks and balances are functioning as intended.
Senate 'advice and consent' powers
How it works: The Senate must confirm presidential appointments to key positions, including Supreme Court justices and cabinet secretaries.
Strengths: This provides a useful check on presidential appointments and can prevent unsuitable or inexperienced candidates from being appointed. Several appointees have withdrawn when senators raised concerns. Examples include Supreme Court nominee Harriet Miers in 2005 and Trump's pick Ronny Jackson (then physician to the president) as secretary of veterans affairs in 2018.
Weaknesses: Confirmation powers have increasingly become another location for partisan political struggles. Few questioned the legal expertise of Supreme Court nominee Brett Kavanaugh, who served on the Court of Appeals for the District of Columbia Circuit before his 2018 nomination. However, his confirmation process became mired in controversy over sexual harassment allegations, probably owing more to his conservative judicial stance and perceived political partisanship. Similarly, the 2020 confirmation vote for Amy Coney Barrett saw her approved 52-48 with just one Republican breaking ranks and no Democrats supporting her. Advice and consent powers have arguably become "search and destroy".
Biennial elections
How it works: The entire House of Representatives and one-third of the Senate face election every two years.
Strengths: This ensures Congress is regularly held accountable to voters.
Weaknesses: This creates a sense of "constant campaigning" in US politics. It also increases the chances of divided government (when different parties control the presidency and Congress), which makes gridlock more likely. Politicians may prioritise re-election over effective governance.
The Bill of Rights and Second Amendment
How it works: The first ten amendments to the Constitution, ratified in 1791, protect fundamental rights.
Strengths: The Bill of Rights continues to entrench and protect key rights such as free speech and free expression.
Weaknesses: The Second Amendment right to bear arms appears anachronistic or positively dangerous to many today. Were the Founding Fathers really envisaging a society of mass gun ownership for self-defence against fellow Americans? This amendment has made meaningful gun control legislation extremely difficult.
Key term: Entrenched rights
Entrenched rights are rights that cannot be easily removed. The US Constitution has a complex amendment process that prevents easy change of rights.
Examining the general nature of the Constitution
Beyond specific clauses, we must also evaluate the Constitution's broader structure and principles.
Separation of powers
Strengths: The separation of power between different branches of government and between federal government and individual states remains as crucial today as when the Constitution was first composed. There is no reason to suppose modern presidents are any less susceptible to power-grabs than their predecessors.
Weaknesses: The Constitution has not prevented a steady accumulation of power by the White House and by federal government at the expense of states. States' rights have undeniably diminished over the past century as federal government and its agencies have become ever more bloated. Trump's campaign call to "drain the swamp" struck a chord with many Americans who perceived excessive federal power.
Checks and balances
Strengths: Checks and balances remain vital. They ensure no one branch can dominate the others. In times of urgency, they can promote collaboration and cooperation. This occurred with the rapid passage of the Patriot Act soon after the 9/11 attacks and with the vast stimulus and intervention package assembled during the COVID-19 crisis.
Weaknesses: Most of the time, in an age dominated by hyper-tribal politics, there is little true bipartisanship. Checks and balances frequently result in gridlock, political point-scoring and intrigue. Senate confirmation votes, particularly for key appointments, are often decided almost entirely along party lines, as the Barrett confirmation demonstrated.
When Checks and Balances Work
The most effective functioning of checks and balances tends to occur during national crises when the political cost of inaction outweighs partisan considerations. The swift passage of emergency legislation after 9/11 and during COVID-19 demonstrates that the system can work when circumstances demand it – but these moments are increasingly the exception rather than the rule.
Vagueness and interpretation
Strengths: The vagueness of many constitutional terms, such as "necessary and proper" and "general Welfare of the United States", allows for flexible and evolving interpretations. This ensures the Constitution stays relevant to changing circumstances.
Weaknesses: The question often becomes: whose interpretation? Arguably too much power rests in the hands of nine unelected Supreme Court justices who frequently interpret the Constitution differently. Many key decisions on high-profile matters, including the legality of Obamacare and same-sex marriage, have been decided 5-4 – by the slimmest of margins. This suggests interpretation can be subjective and partisan, hardly surprising since justices are effectively political appointees.
The amendment process
Strengths: The amendment process is robust and correctly requires a supermajority. This prevents the Constitution being constantly changed according to the whims or issues of the day. It ensures stability and continuity.
Weaknesses: Some argue matters have gone too far in the opposite direction and the Constitution is now just a well-preserved relic. Is it not concerning that the last major formal amendment was over 50 years ago? The rigidity that prevents hasty changes also prevents necessary modernisation.
Executive power
Strengths: The Constitution has managed to adapt to a world where a strong executive is often vital to tackle and coordinate complex problems. Swift responses, national uniformity, and greater public expectations regarding social benefits and services all require a strong presidency.
Weaknesses: This highlights how far modern constitutional reality has drifted from the framers' original intentions. They envisaged a proactive Congress and a largely supervisory president. Particularly since 1945, the USA has ended up with the reverse – a proactive, often imperial presidency and a reactive Congress, particularly in foreign affairs.
Exam tip
When evaluating the Constitution's suitability, always present balanced arguments. Acknowledge both strengths and weaknesses of specific clauses and broader principles. Use contemporary examples like COVID-19, recent Supreme Court confirmations, or Electoral College controversies to demonstrate the Constitution's relevance to modern politics.
The Benjamin Franklin perspective
A story often told illustrates the enduring challenge of maintaining constitutional government. On leaving the Constitutional Convention in Philadelphia, Benjamin Franklin was approached by citizens asking what sort of government the delegates had created. His answer was: "A republic, if you can keep it."
Franklin's Enduring Warning
We might modify Franklin's warning today to say the USA is "just keeping" its Constitution. In the absence of anything likely to command deeper and wider support, Americans are probably stuck with it, "warts and all" – to use a phrase attributed to Oliver Cromwell, England's only significant republican leader. The Constitution works except when it doesn't – and when it doesn't, it can be painfully obvious.
The protection of civil liberties and rights
The extent to which the Constitution protects civil liberties and rights remains a keenly debated topic. Several important points frame this discussion.
Key considerations
First, the bulk of individual rights appear in the 1791 Bill of Rights, not the original 1787 document. The Constitution as drafted offered limited protection of individual liberties.
Second, not all rights are equally well entrenched and therefore inalienable. Some receive explicit constitutional protection whilst others depend on statutory law or court interpretation.
Finally, the protection of rights depends largely on interpretation by the Supreme Court. How justices read constitutional provisions determines what rights mean in practice.
The Interpretation Problem
The reliance on Supreme Court interpretation for rights protection creates a fundamental tension: unelected judges with lifetime appointments make subjective decisions about fundamental rights, often by narrow margins. This raises questions about democratic legitimacy and the politicisation of rights protection.
Key rights explicitly enshrined in the Constitution
The most important constitutional rights include:
- First Amendment rights: Free speech and expression, a free press, and the right to practise one's religion freely. These form the bedrock of American democracy and receive strong constitutional protection.
- Second Amendment: The right to bear arms. This remains highly controversial, with ongoing debates about whether it was intended for militia purposes or individual self-defence.
- Fourth Amendment: Protection against "unreasonable searches". This limits government's ability to search people or property without proper justification.
- Fifth Amendment: The right not to incriminate oneself. This prevents forced self-incrimination and includes "due process" protections.
- Sixth Amendment: The right to a swift, fair and public trial. This ensures defendants receive proper legal proceedings.
Exam tip
When discussing rights protection, always distinguish between rights explicitly mentioned in the Constitution and those established through Supreme Court interpretation. Use specific amendments and explain what they protect in practice. Reference landmark cases where relevant to demonstrate how rights have evolved through judicial interpretation.
Key Points to Remember
-
The COVID-19 pandemic exposed ongoing tensions between federal and state power, with Trump claiming "total authority" whilst Governor Cuomo invoked the Constitution's limits on presidential power.
-
Both Democrats and Republicans demonstrate inconsistent attitudes towards states' rights, supporting federal intervention when it suits their policy preferences and opposing it when it doesn't.
-
Specific constitutional clauses face serious challenges in the modern era: the Electoral College has twice (2000, 2016) produced presidents who lost the popular vote; Senate representation gives 16% of the population half the senators; and war-making powers remain ambiguously divided between Congress and president.
-
The Constitution's checks and balances can promote cooperation in emergencies (Patriot Act, COVID-19 response) but more often produce gridlock in an era of hyperpartisanship, with Senate confirmations like Barrett's decided almost entirely along party lines.
-
Benjamin Franklin's warning – "A republic, if you can keep it" – remains relevant. The Constitution works except when it doesn't, and Americans are probably stuck with it "warts and all" in the absence of any alternative commanding broader support.
-
The protection of civil liberties depends heavily on Supreme Court interpretation, raising concerns about unelected judges making subjective, partisan decisions on fundamental rights by slim 5-4 margins.