The structure & nature of the US Constitution

The nature of the Constitution has three key characteristics.

1. It is a codified constitution.

2. Its provisions are entrenched.

3. It is a blend of specificity and vagueness.

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:

How flexible is the US Constitution really?

Is the constitution too rigid?

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.

The Amendment Process (click on this link to find out how the constitution is amended and proposed amendments which have failed)

Link to Advantages and Disadvantages of the Amendment Process

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

Click this link for Implied powers explained

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)