The US Constitutional Law and Constitutional Amendments

Words: 4154
Topic: Law
Updated:

Judicial Review

Overview

The doctrine of judicial review was first incorporated in the matter of Marbury v. Madison (Prakash and Yoo 934) in 1803. The Chief Justice ruled that federal courts should be allowed to evaluate legislations made in the U.S. Congress and give an opinion on their constitutionality. If a piece of legislation is inconsistent with the constitution, a federal court has the power to declare it as null and void.

The Patient Protection and Affordable Care Act

In the case of the Patient Protection and Affordable Care Act, a judicial review is not applicable. According to Sabato (56), a judicial review is important if the legislation in question is inconsistent with the constitution. However, in National Federation of Independent Business v Sebelius (Negrin and Ariane para. 3), the Supreme Court upheld the legality of the act. By allowing the Congress to enact provisions of this piece of legislation, the Supreme Court implied that it is constitutional.

Prakash and Yoo (933) illustrate the hierarchy of the courts and the need to respect their decisions. Consequently, a judicial review of the Patient Protection and Affordable Protection Act would in itself be unconstitutional. The simple reason for this is that a superior court has already upheld its legality.

The National Abortion is Banned in All Cases Bill

In the case of the National, Abortion is Banned in All Cases Bill, a judicial review would suffice. According to Prakash and Yoo (934), a judicial review is necessitated by the suspected unconstitutionality of a piece of legislation. Banning abortion in all cases implies that medical professionals do go against their Hippocratic Oath and allow patients to die. The 16th amendment addresses this issue (Charters of Freedom para. 6).

From the section above of the constitution, the letter and spirit of the law support the protection of certain liberties of the citizens. The immunity granted to doctors in the event they were to carry out abortions to save lives is denied in this bill. Therefore, there is sufficient ground for a judicial review. The bill is going to deny certain people the protection allowed to them by the Supreme Law.

McCulloch v. Maryland

Facts

The case took place in Maryland. The plaintiff introduced legislation that required all banks operating within the state without a state charter to pay tax. The piece of legislation required that banks should only issue legal tender when stamped paper is issued by the state. According to Lawnix (para. 1), violation of the statute attracted certain penalties.

The defendant was a cashier at the Second Bank of the United States (Lawnix para. 1). Operating from the bank’s Baltimore branch, the defendant issued a legal tender in violation of the state’s laws. Consequently, the plaintiff sued the defendant for the said contravention in which the taxes were not paid. Despite challenging the constitutionality of the said statute, the defendant lost the case. However, he appealed the ruling.

The holding of the Case

Article I, Section 8 (Lawnix para. 5) of the U.S. Constitution grants Congress the powers to incorporate a ban into laws. Consequently, a defendant is prohibited by law to impose a tax or a levy on an institution created by an act of Congress.

An Amendment to the Constitution

According to Sabato (7), amendments are made to the constitution based on the relevance and applicability of certain laws at a given time. Term limits for constitutional office holders are examples of subjects that will necessitate amendments to the constitution. The crafters of the constitution made sure that the process of creating a new law was as airtight as possible (Negrin and Ariane para. 3). The rigidity explains why the U.S. Constitution has only 27 amendments. It is important for a proposed amendment to adhere to the provisions made in the constitution.

The second amendment is one such instance where further amendments can be introduced to seal loopholes. When amended, the law would read as follows; “for the security of a free state to be guaranteed, citizens shall not be deprived of the right to bear arms acquired through legal means.”

According to Sabato (29), constitutional amendments are necessary to seal loopholes that were not considered by the initial crafters of a piece of legislation. The second amendment of the U.S. Constitution is such an example. It reads, “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed upon” (Charters of Freedom para. 4). How the said law reads create several loopholes. For example, it suggests that citizens only have the right to bear arms if they are in a “well-regulated militia.” In this instance, one can argue that private citizens who are not organized as a militia should not be allowed to bear arms. The second amendment envisages that citizens’ security is tied to their right to bear arms. The right is entitled to them regardless of their association.

Theories of Constitutional Interpretation

For the constitution to find meaning in a society, the laws therein ought to be interpreted in a manner that resonates with the citizens (Kenneth 4). Despite the multiple avenues through which a constitution can be interpreted, the author of this paper prefers the application of precedents. According to Kenneth (9), this theory relies on judicial precedents to make pragmatic considerations. The theory addresses the similarities between a particular case and a previous one to retain the fairness required in interpreting the constitution. Thus, the constitution is interpreted concerning past occurrences that have similarities with contemporary activities.

The Right to Abortion

The U.S. Constitution allows the states to enact laws that suit their various jurisdictions. However, the same constitution envisages a situation where the states enact legislations that respect the Supreme Law of the land. The subject of abortion is one that has attracted debate on whether the matter should be left to states or not. The topic is addressed in the 14th amendment (Charters of Freedom para. 4).

Given that the subject elicits varied emotions from the various parties involved, the matter should be left to the body that is entitled to interpret the law. As emphasized by Sabato (17), the mandate of interpreting the constitution lies squarely with the judiciary, unless prescribed otherwise by the constitution. Thus, it would be improper to allow states to create laws on abortion without bearing in mind the consequences thereof.

Proposals on Term Limits

Presidential Term Limits

Removal of the presidential limit

A proposal can be made to the effect that the presidential term is not limited to the traditional two terms of four years each. Clabough (para. 1) points out that before the 20th amendment to the constitution, occupants of the office were not bound by law to restrict themselves to two terms.

According to Clabough (para. 1), presidential terms are limited to ensure that the occupant does not become a tyrant. Further, term limits ensure that one focuses on spending their time in office delivering pledges (Clabough para. 3). As such, the limits should remain in force.

President elected for one term of 6 years

Clabough (para. 7) points out that there is no need to reduce the number of years in a presidential term limit. At present, the president is entitled to a maximum of two terms, totaling 8 years. Reducing the number of years from 8 to 6 implies that citizens will be going to the polls more frequently (Clabough para. 6).

However, a one-term president is bound by the need to deliver on their agenda without having to worry much about re-election (Sabato 85). Thus, a one-term president serving for 6 years would be a welcome reform.

The presidential term of 6 years and a possible second term of two years

Sabato (85) points out that the current presidential term of four years is not adequate for the delivery of pledges. The president tends to use their first term as a platform to lobby for a second term to accomplish their pledges.

An amendment to increase the life of the first term in office for a president will enhance efficiency (Sabato 85). One will be in a position to address their agenda in 6 years. In this case, a person seeking to become a president will have their work cut out for them. The author of this paper prefers this suggestion of presidential term limits.

To maintain the status quo

Constitutionally speaking, maintaining the presidential term as presently stipulated is not a wise move. Sabato (7) points out that the constitution should be dynamic in responding to the changing society. An amendment to this clause would be in order as it will reflect the changing times in the American political landscape.

Congressional Term Limits

Serving for five terms, each lasting 2 years

Suggestions have been made to cap the Congressional term limits to prevent certain members from monopolizing the positions. One such approach is to set the number of terms to a maximum of 5.

According to Sabato (90), it is important to restrict a Congressional term. The argument results from the public outcry that members of Congress do not engage in significant legislative work. On the contrary, they concentrate much on politics. The two year term leaves little time for work since most members spend time strategizing for re-election. Putting a limit to the Congressional term would be better if the life of one term is increased.

No term limits

There is no ceiling as to the number of terms one can serve. Sabato (93) argues that democracy allows citizens to elect their preferred candidate. The election can be done for as long as the candidate is popular.

The author of this paper prefers this proposal, given that it is a means of ensuring democracy prevails. Putting a cap on the term of office of Congressmen denies voters the chance of electing their preferred candidate.

Three terms, every 6 years, for the members of Senate

As presently constituted, members of Senate are allowed a term of 6 years. Their term of office is unlimited. The proposal to introduce a term limit to Senate is welcome to enhance rotation.

Introducing a limit to ensure that a Senator serves a maximum of 18 years is welcome. The amendment will ensure that the seat is not monopolized by the incumbent. It is a fact that the Senatorial position is more representative than it is legislative. As such, members should not be allowed to vie forever.

No term limit for the members of Senate

Sabato (93) points out that Congress plays a bigger role in legislative matters compared to the Senate. Consequently, the occupants of this office should be allowed a limited number of terms. Such a situation allows for rotation.

The proposal to retain an unlimited term of office for persons meant to occupy the Senate seat is not the best. The political landscape in America has changed over the years, making the office more ceremonial. Consequently, there is a need to put a ceiling to the terms of office.

A Proposed Constitutional Amendment

Introduction

Societies are bound by certain rules, which direct their day to day activities. Sabato (15) argues that the dynamic nature of society requires laws to be changed to reflect the changes. In this section, the author examines constitutional amendments as proposed by Sabato. Sabato affirms that interpretation of the constitution is the prerogative of the judiciary (31).

The American Political Culture

Sabato (18) suggests that amendments to a constitution are expected to respect the prevailing culture in a given society. A political culture takes into account the origins of a people, their ideologies, and any opposing stands. Also, there is the principle of suffrage that requires to be taken into account.

The U.S was a colony under the British Empire (Sabato 88). Current political arrangements in the country reflect these colonial influences. At the time, the British preferred a political arrangement of power. Articles, clauses, and sections of the American constitution are amended, bearing in mind the country’s origins.

According to Sabato (83), the American political ideology is such that one is conservative, liberal, or neutral. However, the former two are the main players in the political arrangement in the country. Political ideologies give rise to political parties, hence the existence of two major parties (the Democrats and the Republicans).

Every American citizen who has attained 18 years of age is entitled to participate in the voting exercise (Sabato 83). The formulation and amendment of laws touching on the political nature of a country must respect suffrage systems. Amendments of this nature are expected to respect the will of the people. At no one point should there be an underrepresentation of the people?

An Amendment of the Constitution Touching on American Politics

Overview

Sabato (85) points out that it is time to formally recognize the impacts of politics on the Supreme Laws of the land. Consequently, an amendment to that effect would be in order and would see the enactment of an article that is specifically meant to address the American political system.

Party primaries

The first major amendment would be to change how nominations are carried out. Currently, parties are expected to carry out nominations at the primaries level (Darlington 61). The process requires a candidate to contest for the delegates representing the party in various states. The process is long and requires one to exhaust all the states if they hope to bag a nomination and become a candidate. Primaries are particularly important when it comes to presidential elections.

During the primaries, a candidate is expected to garner votes from two sets of delegates (Darlington 61). The first set involves the normal delegates. Such delegates are selected directly by voters. The second set involves the super or unpledged delegates. The delegates are made up of past leaders of a party. The process of convincing these delegates is usually staggered over a long period. After the primaries, the parties are left divided and worn out.

Sabato (93) proposes a staggered lottery system lasting for four months. In the new arrangement, political parties will avoid any possible front-loading that is characteristic of primaries. The new nomination plan would be seen as a reform of the manner through which political parties carry out their primaries. The plan was suggested in 1999 and intended to see respective state caucuses grouped into 4 regions (Sabato 93).

Under the new arrangement, caucuses in each region would be expected to vote in different months. Sabato (93) refers to the process as a lottery system of primaries since the sequence of voting in the first year would be established through a lottery system. Subsequent years would see the voting rotate to the different regions. The regions would take the orientations of East, West, South, and Midwest.

Sabato (93) introduces the lottery system in a bid to ensure that there is overall fairness in the conduction of primaries. Sabato suggests that the order of the primaries should be released at least 6 months to the first primary. Such a situation would inhibit the usual camping associated with candidates seeking the nomination in states with early primaries. The system ensures that no region is selected twice in succession. It makes it impossible for a region to conduct its primaries before the rest (Sabato 94).

Opposition against the proposal

Individuals opposing the new proposal argue that it would result in an unbalanced political landscape (Sabato 94). The difficulty in implementing this proposal is made evident by the need to ensure the process is fair. The regions that have been grouped are tilted in favor of one political ideology.

Whereas the East is very liberal, the South appears to be more conservative. On its part, the West is moderately liberal. The Midwest appears to be the neutral region. Such an arrangement tilts elections in favor of the liberals since there are two such regions. Sabato (87) points out that the skewed political structure that would be created inhibits the adoption of this kind of proposal.

Electoral College

Another aspect of the political system that requires to be addressed is the Electoral College. Sabato (96) argues that the role of a democracy is to ensure the voice of the majority is respected. With regards to Electoral Colleges, the need is to respect the voice of the people as far as suffrage is concerned. Black (para. 3) suggests that many Americans would prefer to stick to the popular vote and do away with the college system.

However, an amendment meant to convince Americans to do away with the Electoral College system translates to a gigantic task. According to Black (para. 5), the Electoral College System is enshrined in the constitution. It is addressed under the 12th Amendment. An amendment to that effect would require a two-thirds vote in both Houses. Such a majority is highly unlikely. Therefore, it is important to structure such an amendment to make sure it recognizes the supremacy of the constitution.

An amendment can be made to do away with the Electoral College (Sabato 90). Also, an amendment can be made to increase the number of electors in states that seem to be underrepresented. In both cases, there is a need to address the relevance of both kinds of votes. The majority will have their way, but the minority can still be heard. The same can happen if the president is elected through a popular vote.

Opposition to the section

If an amendment is made to effect changes on the Electoral College System, the opposition is inevitable. According to Black (para. 2), the major proponents of this system are the Republicans. The party largely benefited from the system during the election that saw George Bush win the presidency despite trailing Al Gore in the popular vote. Some of the reasons against amending the said sections include concerns over the dissolution of the minority interests (Kimberling para. 10).

The people who support the Electoral College system argue that its removal dilutes the essence of a federal state. According to Kimberling (para. 10), the amendment of the Electoral College system is a threat to the political stability that the country enjoys. The threat to stability stems from the fact that the regions that relied on the Electoral College for representation would feel unrepresented (Kimberling para. 11). The understanding here is that the college system allows the two-party system to thrive.

Campaign Financing

Campaign financing is another key area that requires to be addressed. Sabato (97) observes that reform is needed in the area of financing campaigns during elections. Sabato’s sentiments emanate from the need to curb lobby groups and stop them from hijacking the elections. There is no denying that the sector requires urgent reforms given the influence that political offices have on society.

Kimberling (para. 1) illustrates that the democratic space in the current American system has allowed political parties to attract funding from interest groups. For a politician to sell their agenda to the people, they are required to address the logistics of their movement. The endeavor itself is costly, hence the need for financial resources. According to Kimberling (para. 1), the same explains why interest groups rally behind a candidate to finance their campaign. In return, the candidate advances the cause of the group while in office.

The purpose of electing individuals into office as Senators, Governors, or even as Presidents is meant to allow the people to feel that they are well represented (Sabato 89). To this end, the American politician should represent the interests of the average American citizen. Thus, it would be beneficial to have the citizens actively engaged in fundraising during campaigns. Sabato (98) suggests that citizens should make financial contributions to a campaign to finance their preferred candidate.

Opposition to the section

Introducing an amendment that requires citizens to be actively involved in financing their political parties would not be taken well by certain lobby groups (Kimberling para. 4). To this effect, such groups would feel as if they are denied their freedom of association, which is highly unconstitutional. Also, given the mistrust that citizens have towards politicians, the amendment would be hard to sell. Kimberling (para. 5) argues that citizens will find it difficult to pay taxes and at the same time, raise funds for political parties. The burden would be too much to bear.

Term limits

The term limits of constitutional office holders also need to be addressed. According to Sabato (107), the current political mess is brought about by the skewed term limits. The American democratic process is regarded as the best in contemporary international democratic space (Sabato 90). However, there seems to be some unfairness in terms of the term limits of certain office holders. Two of such offices are the House of Representatives and the presidency.

As aforementioned, the office of the president is one that comes with many responsibilities. Sabato (92) argues that there is a need to extend the life of a presidential term. The understanding behind such a thought is driven by the undeniable fact that once elected for the first four-year term; presidents focus more on re-election than on service delivery. A proposed amendment to the life of a presidential term can be framed to extend it from the current four to six years.

However, Sabato (90) argues that long presidential terms bring about dictators. In light of this, the proposed amendment of six years to a presidential term should have a caveat. The caveat here would be that a sitting president can seek re-election for only 2 more years. A sitting president who seeks for re-election will get another term of 2 years in office.

The formulation of such a political reform comes in the wake of the need to have a president who is more focused on the delivery of pledges as opposed to a president who is focused on elections during their first term. As has been illustrated in the previous sections of this essay, many occupants of the office spend their first term planning for re-election (Sabato 78). In most presidential terms, the occupants are engaged more in politics than in service delivery to the citizens.

A longer presidential term would give the occupant of the office ample time to deliver on their pledges. Despite an increase in the life of the first term, there still needs to be a limit to the number of terms in office. The limit should be 2 terms. As was the case with George Washington and Jefferson, presidents must give others a chance to provide leadership (Clabough para. 7). Consequently, there is a need to cap presidential terms to a maximum of 2.

Occupants of the House of Representatives need to have the life of their term of office evaluated. Sabato (93) argues that their duties are very few compared to those of the president. Consequently, there is no need to have them constantly seek re-election due to a short term in office. The first term of two years is too short for one to focus on their legislative agenda and re-election. Sabato (93) opines that there is a need to increase the number of years in the first term. Such an amendment would see to it that a House of Representative office-bearer serves for a five-year term before seeking re-election.

Opposition to the section

Many people will oppose interference with term limits, particularly so about the presidency. According to Clabough (para. 12), George Washington left office voluntarily after his second term. The act was later lauded by President Jefferson. Eventually, it became a tradition. However, the term limits are currently anchored in the constitution. The opposition to amendments of term limits is associated with the fear that people have about the creation of a dictator (Clabough para. 12).

Conclusion

In this section, the author of this paper affirms that politics form the backbone of most of the happenings in many societies, including America (Sabato 80). In his book, Sabato makes 23 proposals to change the American political system. Entrenching politics into the constitution seems to the right remedy to address the shortcomings associated with leadership in the country. The political amendment suggested herein would greatly improve the American democratic process by ensuring that matters that were previously silent in the constitution are properly addressed.

There are probable oppositions to the various changes proposed to the various sections. Sabato thinks that constitutional change is the only way to strengthen the supreme laws of any country. Opposing changes, to aspects of the law that do not reflect dynamics in the society, is creating an impression that the law is rigid. Sabato thinks that a constitution can never be perfect, hence the need for the unending amendments. Time has come for the American constitution to take part in reforming the political landscape in the country. The best way to achieve this is to make the changes proposed here part of the U.S. Constitution.

Works Cited

Black, Eric 2012. How to Work Around the Electoral College Without Amending the Constitution. Web.

Charters of Freedom. Constitution of the United States. n.d. Web.

Clabough, Raven 2013. Democratic Rep. Again Proposes Abolishing Presidential Term Limits. Web.

Darlington, Roger.  A Short Guide to the American Political System. n.d. Web.

Kenneth, Thomas. Selected Theories of Constitutional Interpretation, Washington, D.C.: Congressional Research Service, 2011. Print.

Kimberling, William 2008. The Electoral College – Pros and Cons. Web.

Lawnix. n.d. McChulloch v. Maryland – Case Brief Summary. n.d. Web.

Negrin, Matt and De-Vogue Ariane 2012. Supreme Court Health Care Ruling: The Mandate Can Stay. Web.

Prakash, Saikrishna and John Yoo. “The Origins of Judicial Review.” University of Chicago Law Review 70.3 (2003): 933-950. Print.

Sabato, Larry. A More Perfect Constitution, Pennsylvania: Walker & Company, 2007. Print.