How flexible is the US Constitution?
writing a constitution down in one document.
a system by which
a constitution is protected from change by law
However, the Founding Fathers knew that there would need to be some mechanism for changing the Constitution to meet the changing needs of society - an amendment process - and this is outlined by in-article V.
The constitution is ' the first, shortest and longest lasting constitution'
Because it is such a brief document-one of it most important qualities is its 'Vagueness'
Given that the Constitution is the main guide for US politics, it is surprisingly short. There are many clearly enumerated powers, but the Constitution is often unclear. This is partly because it is a compromise between Founding Fathers who sometimes disagreed, and partly because there was a deliberate decision to allow room for the Constitution to evolve. However, this lack of clarity means there is often significant disagreement over its meaning.
Before looking at the clauses which are implied- let's looks at the powers and how they are divided.
The Constitution has many enumerated powers, (listed) However, many implied powers have been found in the Constitution too - powers that are not expressly written down in the Constitution but are needed to perform an enumerated power or are suggested by the wording.
Implied powers and the elastic clauses
The 'necessary and proper' or elastic clause
Article I, section 8 of the Constitution it states that Congress has the power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers'. This clause is also known as the 'elastic' clause because it allows Congress to stretch its powers. It has been a source of great controversy, being used to justify major expansion of the power of federal government. In McCulloch v Maryland 1819, the Supreme Court tested the necessary and proper clause and ruled that Congress has the power to create a national bank, even though the right to create a bank is not explicitly stated in the Constitution. It gave a broad interpretation using implied powers to allow Congress to act. The interstate commerce clause is often described as elastic because of the way in which it has been used to justify the expansion of federal power.
Another 'elastic clause is the Commerce Clause Article 1 section 8- This has been used to justify the government's power to regulate much of the economy.
Proposals that failed
The Equal Rights Amendment
Would have provided equality of rights by the federal or state governments on account of sex. Congress took it up again recently with a number of proposed measures that never came to congressional vote. Failed to reach required number of states in 1982
Click here for ERA Explained
The Flag Protection amendment
Would allow Congress to make it illegal to desecrate the US flag. Hotly disputed issue. Supreme Court in US v Eichman 1990 overturned the Flag Protection Act on the basis of1st amendment freedom of expression rights. Constitutional amendment proposal was an attempt to overturn this. Successfully passed in the House six times up to 2006, but always failed to be voted on or gain enough votes to pass the Senate.
Right to vote amendment
Introduced to prevent restrictions on voting. Would end felony voting restrictions and help protect voting rights after Shelby County v Holder Supreme Court ruling in 2013 overturned sections of the Voting Rights Act 1965. Representatives Mark Pocan and Keith Ellison reintroduced it in 2013.
The District of Columbia Voting Rights Amendment
Would have given District of Columbia full representation in the United States Congress as if it were a state. DC would also be able to participate in the amendment process. Failed in 1985. Passed by House and Senate but failed to get the support of enough state legislatures.
Click here: John Oliver argues for DC to be a state
The Federal Marriage amendment
Introduced into Congress several times between 2002 and 2013. Seeks to define marriage as exclusively between a man and a woman. Failed to receive the required votes in both the House and Senate in 2006. Issue seen as central in 2004 presidential elections, with George W. Bush strongly for the amendment and John Kerry arguing that individual states should decide. Introduced in 2015, without congressional vote, by Tim Huelskamp, a social conservative in the House.
Saving American Democracy amendment
Proposed by Senator Bernie Sanders in 2011. Aimed to overturn Citizens United v FEC ruling of 2010 in which the court removed regulations on funding of elections. Aims to limit influence of corporate donors in United States elections.