The constitution
The nature of the constitution – 3 key features:
Codified –
Full and authoritative ser of rules written down in one singular document. (unlike
UK).
But codified constitutions may not include all constitutional provisions – written
constitutions may still have some elements that are unwritten.
As it is codified, the constitution is judiciable – judges can interpret actions & laws
against the constitution & judge whether they are constitutional.
Article 1 – established congress as the national legislature & defined its membership,
method of election & powers.
Article 2 – established the president as chief executive & defined their method of
election & powers.
Article 3 – established US supreme court & set out its membership, method of
appointment & powers.
Article 4 – states – relationship between states & admittance of new states.
Article 5 – amendment process.
Article 6 – US – supremacy of Constitution.
Article 7 – conditions for ratification of constitution.
Blend of specificity & vagueness –
Some of the powers given by Constitution, esp. to congress, are very specific:
- The power ‘to collect taxes’ (Article I)
- The power ‘to coin money’ (Article I)
Others are quite vague:
- The power of congress to ‘provide for the common defence and general welfare
of the United States.’ (Article I)
- The power of congress to ‘make all laws which shall be necessary and proper for
carrying into execution the foregoing powers’ (Article I)
Also, the issue of whether certain powers only belong to federal govt, only to state
govts, or to both.
- Different types of power in the constitution:
» Enumerated (delegated) powers – powers delegated to the federal govt,
generally those enumerated in first 3 Articles. E.g., vice president is also
president of the Senate & has the casting vote in the event of a tied vote.
» Implied powers – powers possessed by the federal govt by inference from
those powers delegated to it in the constitution. E.g., power to draft
people into armed forces may be implied by Congress’ enumerated power
to raise an army & navy.
» Reserved powers – powers not delegated to federal govt or prohibited to
it by the constitution – these are reserved to the states of to the people.
E.g., marriage & divorce laws differ by state.
, » Concurrent powers – powers possessed by both federal & state govts.
E.g., highway management and maintenance. The federal govt is
responsible for US highways & the interstate system, while individual
states manage intrastate highways.
Entrenched provisions –
Entrenchment is written into the constitution by the complicated & demanding
process for amending it (article 5). Ensure that it can be changed in response to any
emerging need, but not so flexible that it can be changed frequently.
Amending the constitution:
The amendment process -
Proposed by Ratified by How often used?
1 2/3 of the House & the ¾ of the state legislatures 26 times
Senate (38)
2 2/3 of the House & the ratifying conventions in ¾ of once (21st Amendment)
Senate the states.
3 legislatures in 2/3 of states ¾ of the state legislatures never
calling for a national
constitutional convention
4 legislatures in 2/3 of states ratifying conventions in ¾ of never
calling for a national the states.
constitutional convention
Advantages –
Supermajorities (approval required by 2/3 majority of congress) ensure against a
small majority being able to impose its will on a large majority.
Lengthy & complicated process makes it less likely that the constitution will be
amended on a merely temporary issue.
Ensures that both the federal & state govts must favour a proposal.
Gives a magnified voice to the smaller population states (through Senate’s role &
requirement for agreement of ¾ of state legislatures).
The provision for a constitutional convention called by the states prevents congress
from being able to veto an amendment without the consent of the states.
Disadvantages –
It makes it overly difficult for the constitution to be amended, thereby perpetuating
what some see as outdated provisions (e.g. the electoral college).
It makes possible the thwarting of the will of the majority by a small & possibly
unrepresentative minority.
The nature of the constitution – 3 key features:
Codified –
Full and authoritative ser of rules written down in one singular document. (unlike
UK).
But codified constitutions may not include all constitutional provisions – written
constitutions may still have some elements that are unwritten.
As it is codified, the constitution is judiciable – judges can interpret actions & laws
against the constitution & judge whether they are constitutional.
Article 1 – established congress as the national legislature & defined its membership,
method of election & powers.
Article 2 – established the president as chief executive & defined their method of
election & powers.
Article 3 – established US supreme court & set out its membership, method of
appointment & powers.
Article 4 – states – relationship between states & admittance of new states.
Article 5 – amendment process.
Article 6 – US – supremacy of Constitution.
Article 7 – conditions for ratification of constitution.
Blend of specificity & vagueness –
Some of the powers given by Constitution, esp. to congress, are very specific:
- The power ‘to collect taxes’ (Article I)
- The power ‘to coin money’ (Article I)
Others are quite vague:
- The power of congress to ‘provide for the common defence and general welfare
of the United States.’ (Article I)
- The power of congress to ‘make all laws which shall be necessary and proper for
carrying into execution the foregoing powers’ (Article I)
Also, the issue of whether certain powers only belong to federal govt, only to state
govts, or to both.
- Different types of power in the constitution:
» Enumerated (delegated) powers – powers delegated to the federal govt,
generally those enumerated in first 3 Articles. E.g., vice president is also
president of the Senate & has the casting vote in the event of a tied vote.
» Implied powers – powers possessed by the federal govt by inference from
those powers delegated to it in the constitution. E.g., power to draft
people into armed forces may be implied by Congress’ enumerated power
to raise an army & navy.
» Reserved powers – powers not delegated to federal govt or prohibited to
it by the constitution – these are reserved to the states of to the people.
E.g., marriage & divorce laws differ by state.
, » Concurrent powers – powers possessed by both federal & state govts.
E.g., highway management and maintenance. The federal govt is
responsible for US highways & the interstate system, while individual
states manage intrastate highways.
Entrenched provisions –
Entrenchment is written into the constitution by the complicated & demanding
process for amending it (article 5). Ensure that it can be changed in response to any
emerging need, but not so flexible that it can be changed frequently.
Amending the constitution:
The amendment process -
Proposed by Ratified by How often used?
1 2/3 of the House & the ¾ of the state legislatures 26 times
Senate (38)
2 2/3 of the House & the ratifying conventions in ¾ of once (21st Amendment)
Senate the states.
3 legislatures in 2/3 of states ¾ of the state legislatures never
calling for a national
constitutional convention
4 legislatures in 2/3 of states ratifying conventions in ¾ of never
calling for a national the states.
constitutional convention
Advantages –
Supermajorities (approval required by 2/3 majority of congress) ensure against a
small majority being able to impose its will on a large majority.
Lengthy & complicated process makes it less likely that the constitution will be
amended on a merely temporary issue.
Ensures that both the federal & state govts must favour a proposal.
Gives a magnified voice to the smaller population states (through Senate’s role &
requirement for agreement of ¾ of state legislatures).
The provision for a constitutional convention called by the states prevents congress
from being able to veto an amendment without the consent of the states.
Disadvantages –
It makes it overly difficult for the constitution to be amended, thereby perpetuating
what some see as outdated provisions (e.g. the electoral college).
It makes possible the thwarting of the will of the majority by a small & possibly
unrepresentative minority.
