Discuss the effectiveness of constitutional protection of freedom. (45 marks)

The Constitution of the USA aims to protect freedom in a variety of ways, but some of them are more effective than others.

There is a system of separation of powers in American that is designed to protect ordinary people from politicians becoming too powerful. Each branch of government has its own specific responsibilities and the system of separation of powers should make sure that none of them expands its powers beyond the limits that the Constitution places on it.

In practice, this system has not worked out in the way that the Founding Fathers had in mind. The legislature was supposed to be the most important branch, which is why it is the subject of Article 1 of the Constitution. However, most people would agree that the executive branch is more significant, which the Founding Fathers wanted to avoid. And the Supreme Court, with the power of judicial review (which was not in the constitution), is far more powerful than it was originally intended. Despite this, none of the branches has become tyrannical. The president is able to do more than the Founding Fathers wanted but he is not able to do anything he likes. He does face a lot of checks from the other two branches, such as Congress confirming all his appointments and the Supreme Court overruling actions of the president that exceed his powers.

As well as separation of powers, the Constitution limits the ability of politicians working together to increase their powers by staggering elections. There is never a time when all the people who hold positions of power in Washington DC are elected at the same time. Members of the House of Representatives are elected every 2 years. The president is elected every 4 years, and because of the 22^nd Amendment he can only serve two terms. The Senators face re-election every 6 years. This means that even is a situation arises in which one party wins a majority in both houses of Congress and the presidency at the same time, it will not hold all the power for that long if it misuses it. The members of the House of Representatives would have to be aware that within 2 years they will be held to account by the public. Also, the different timescales means that politicians will usually have different priorities, with the House of Representatives needing to achieve things within 2 years while the Senate has 6 years to achieve things. This also makes it less likely that politicians in different institutions will cooperate with each other to expand their powers, even if they are in the same way.

The Constitution also contains the Bill of Rights. This is the first ten amendments to the Constitution and they had to be adopted for some of the original 13 states to ratify the Constitution as they were concerned that the other protections of freedom would be inadequate. The Bill of Rights is designed to make sure that even if one of the branches of government became too powerful or people in different branches worked together to increase their powers, there would be some rights that they would not be able to touch. It covers the most important freedoms such as free speech, the right to demonstrate, freedom of religion and, most importantly, the right of habeas corpus that makes it unconstitutional for the government to make people ‘disappear’ in ways that are seen in modern tyrannies such s Burma. The Bill of Rights has proved an effective protection of freedom, as the Supreme Court has been able to use it to update what rights mean in today’s world, such as the right to an abortion, and put limits on the ability of the government to infringe those rights. However, some aspects of the Bill of Rights have become obsolete, such as the 3^rd amendment that protects homeowners from having to provide shelter for soldiers.

The final constitutional protection of freedom is federalism. This was intended to make sure that the national government could never become as powerful as the central government in Britain that it had broken away from. It gives soveriegnty over some matters to the national government and soveriegnty over other matters to the states. Originally, in an arrangement known as ‘dual federalism’, the national government only had responsibility for foreign affairs and interstate disputes, with all other matters ‘reserved’ to the states. However, this has changed over time. The central government grew during the great Depression of the 1930s when the ‘New Deal’ was introduced, leading to ‘co-operative’ federalism, and it grew against in the 1960s during President Johnson’s ‘Great Society’ programme that led to ‘creative federalism’. All this shows that federalism has not been an effective way of protecting people from the national government becoming too powerful. In addition, attempts to turn the clock back to dual federalism, through ‘new federalism’, have clearly not worked. However, there have been times when the states have not been able to do enough for their citizens, such as during the Great Depression, and it has been an advantage that the national government has been able to step in and solve the crisis.

Overall, the constitutional protections of freedom have had a mixed record, with some, especially the Bill of Rights, being much more effective than others. Most importantly, however, America has never suffered the kind of tyranny that the Founding Fathers feared, even when the system has not worked in the ways that they intended.