The structure & nature of the US Constitution
Learning objectives on this page
How it is entrenched.
How powers are divided between the branches of government
The elasticity of the constitution-implied and elastic powers
How it is amended
The advantages and disadvantages of the amendment process
The nature of the Constitution has three key characteristics.
It is a codified constitution.
Its provisions are entrenched.
It is a blend of specificity and vagueness.
How the constitution was written
In the summer of 1787 the US Constitution was written in Philadelphia and ratified by the colonies in 1790, bringing the 13 separate colonies together into a new country: the United States of America.
How the Constitution was written-link to the historical events.
Republicanism (sovereignty with the people ie not monarchs) was the basis of the system of government, but popular sovereignty was limited since democracy was seen as dangerous and prone to the tyranny of the majority.
The structure of the Constitution
The original Constitution contains seven articles.
· Article 1 — Despite the misgivings of the federalists about the power of state legislatures, it was inevitable that the legislature, as the representative body of the people, would have to be pre-eminent. Hence it was accorded the status of Article 1 , but its powers were precisely defined, to ensure as far as possible that it did not pose a threat to the entire system.
· Article 2 — An effective executive branch was seen as vital if the federal government was to succeed and, within the constraints of a constitutional republic, it posed much less of a threat of tyranny than an English monarch, with the consequence that the powers of the office needed to be less closely defined than those of Congress.
· Article 3 — The judicial branch was famously described by Alexander Hamilton in Federalist 78 as 'the least dangerous' branch, and its power was accordingly even more vaguely defined than the executive's.
· Article 4 — sets out the relationship between the states to make them more a united whole, and less like independent countries.
· Article 5 — sets out the process for amending the constitution.
· Article 6 — confirmed that any state debt already incurred remained valid under the new constitution, and asserted that the constitution and the laws of the United States 'shall be the supreme Law of the Land'.Link to Article 6 explained
· Article 7 — describes the process of ratification.
Beyond this, the Constitution has only 27 changes, known as amendments. Most of these amendments can be seen as additions to the Constitution, creating new rules or requirements.
The Bill of Rights
Follow this link for: Bill of rights explained
The Bill of Rights is made up of the first ten amendments of the US Constitution. They were all passed in 1791, shortly after the Constitution was created.
A bill of rights is usually seen as a method of protecting the rights of the individual against government power. However, the US Bill of Rights also focuses on protecting the power of the states and individuals from the federal government. It's not until the 14th Amendent that these rights protect citizens from state governments. Several colonies were reluctant to join the newly created USA and a discussion of new provisions helped to reduce state concerns regarding the power of a new central government
The Constitution contains the Enumeration of Powers. (listing or expressing)
Powers are divided and. shared.
Article 1 of the constitution
Powers held by Congress
· Collection of taxes and duties, which provide for the debts of the United States, as well as for the common defence and welfare of the country.
· Borrowing money on behalf of the United States.
· Regulation of commerce, both on the international and interstate levels. This also includes Native American tribes.
· Establishing currency and coin money and fixing common weights and measures.
· Establishing post offices.
· Provision for and maintenance of an army and navy.
· Organising, training and arming a militia.
· Exclusive powers to legislative matters of the country.
· Establishing courts that are subordinate to the Supreme Court.
- Declaration of war.
· Amendment of the Constitution (shared with states).
· 16th amendment allows Congress to raise income tax.
· , A number of other powers are clearly laid out in the Constitution but are given to one of the two chambers only. e.g only the Senate approves presidential appointments to the executive and legislature.
Powers held by the president
· Heads the executive branch.
· Nominates cabinet members, ambassadors and the judiciary. (approved by the Senate)
· Proposes measures to Congress. Most importantly new laws 'by request'
. Vetoes legislation. (although the word veto is not used)
· Grants pardons.
Powers held by the Courts
· Rule on cases arising under the Constitution, the Laws of the United States, or Treaties. Note - no mention of Judicial Review!
The Constitution is Codified
The US Constitution is codified, meaning that it is written in one document an Entrenched which means it is protected from change by law and an amendment process which is more difficult to achieve than passing statute laws. One way to understand what the word ‘entrenchment’ means is to remember its non-political meaning. In war time, an entrenchment meant a military force in trenches (hence the word) or other fortified positions so as to protect against enemy attack. So when we say that various governmental or political provisions are entrenched, it means that they are protected from being easily changed or abolished.
When the UK and US constitutions are compared it is commonly stated that the US constitution id rigid and the UK constitution is flexible- ie the UK constitution can be changed by a statute law whereas the US constitution requires a formal and very difficult amendment process. BUT this leads to two important questions:
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 (see film below)- and this is outlined in-article V.
A blend of specificity and vagueness
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
Therefore not everything in the Constitution is cut and dried. There are specific powers (expressed powers) and implied powers — powers of the federal government that the Constitution does not explicitly mention, but that are reasonably implied from the delegated (given) powers. Many implied powers have been found in the Constitution - powers that are not expressly written down in the Constitution but are needed to perform an enumerated power or are suggested by the wording. So, for example, the power to raise and army is clearly expressed but this implies the power to draft people in to the army. Congress was also given the power to ‘provide for the common defence and general welfare of the United States’. From this was implied that Congress had the power to levy and collect taxes to provide for the defence of the United States.
Many of the implied powers are deduced from what is called the necessary and proper clause of Article I, Section 8. This is often referred to as the ‘elastic clause’ of the Constitution because, by it, the powers of the federal government can be stretched beyond the specifically delegated or enumerated powers. So in this sense, although some parts of the Constitution are very explicit, there are other parts where it is very vague and the Constitution has therefore been able to adapt to the ever-changing circumstances of the nation. Much of this adaptation has been done by the Supreme Court.
We have seen, therefore, that the Constitution delegated certain powers to the federal government alone. The Constitution also includes what we call reserved powers — that is, powers that are reserved to the states alone or to the people. This provision is found in the Tenth Amendment added to the original Constitution in 1791. This again limits the power of the federal government by stating that all the powers not delegated to the federal government, or prohibited to the states, ‘are reserved to the States, or to the people’. Then there are also the concurrent powers of the Constitution — those powers shared by the federal and state governments, such as collecting taxes, building roads and maintaining courts.
However, this lack of clarity means there is often significant disagreement over its meaning.
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.
Is the vagueness of the constitution a good thing?
This vagueness could be seen as a considerable advantage. it has arguably allowed the Constitution to survive for such a long time as its meaning can be adapted without the need for formal amendments. A more detailed Constitution would perhaps have been harder to apply to the needs of modern society. Most constitutions written by other countries have been much longer but have not lasted.
While some vagueness enables the Constitution to be applied to modern society, there are a number of concerns associated with it.
· The Constitution could fail to regulate political' practice: The Constitution is meant to regulate politicians and set the rules of the political game. The vagueness of the Constitution can undermine its authority - and that of the Supreme Court - as people reject newly established rulings or political practices. For example, Presidents Obama and Trump have been criticised for interpreting the constitution to extend their power. Obama issued executive orders (DAPA and DACA) which allowed many illegal immigrants to avoid deportation and Trump used power implied by his role as Commander in Chief to release defense funds to build the border wall with Mexico.
· The Supreme Court could become too powerful: The vagueness of the Constitution allows individual justices to apply their own ideologies when ruling on a case. Each of the nine justices is associated with a particular ideology, consistently ruling with a clear bias. For example,iberal justices typically interpret the Constitution to achieve liberal outcomes. A more detailed Constitution would give less room for this bias. For example, the 8th amendment 'cruel and unusual' phrase has been used by some justices to allow the death penalty, while others say the death penalty is unconstitutional.
In Obergefell v Hodges 2015, in stating that same-sex marriage was a constitutional right, some politicians and even a member of the Supreme Court claimed that the Supreme Court was no longer following the Constitution, essentially making up new rules as it went along.
· There could be significant conflict: The lack of clarity leads to strong disputes, with each side claiming that their particular view of the Constitution is more legitimate. This is often based on ideology and allows further divisions in US society. Conservatives and liberals continue to argue about how far the Constitution allows the federal government to control the states. For example, there is an increasing divide between the Democratic and Republican Parties over issues such as gay rights, race, gun control and policies such as the Affordable Care Act. (Obama Care) It is now common for president to be accused by their opponents of violating the constitution- both Obama and Trump have been accused of doing so.
Many Conservatives read the second amendment as a right of every citizen to own and carry a gun while many liberals read the same words and understand it as a right which only applies when citizens are part of a militia. (which is no longer relevant)