nature of the us constitution

codified constitution overview

• Codified:

  • The constitution is codified, meaning that it is all written in a single document

  • This document was created by the Founding Fathers during the War of Independence from Britain

  • It was ratified in 1788 and came into force in 1789

• Structure:

  • It consists of 7 articles and 27 amendments

  • The first 10 amendments, ratified in 1791, are known as the Bill of Rights

entrenched constitution overview

• Entrenched:

  • The US constitution is entrenched, meaning it can only be amended with a 2/3 supermajority in both houses of Congress and ratification by 3/4 of the state legislatures

• Article V:

  • Article V entrenches the US constitution, requiring a supermajority to change amendments or a 3/4 majority in a ratifying convention of the states

• The Bill of Rights:

  • The Bill of Rights (the first 10 amendments to the constitution) lists entrenched rights

    • These are protected by the constitution, and cannot be changed on a legislative whim

vague constitution overview -

• Vagueness:

  • Constitution scholars refer to the constitution containing enumerated powers and implied powers

  • Enumerated powers are powers that are explicitly given to each branch of government

  • Implied powers are those that are just suggested or are required for enumerated powers to be used

  • Implied powers give the constitution vagueness - they allow Congress the freedom to make necessary laws and to use powers that the founders had not thought of

• Enumerated powers:

  • Article I, Section 8 of the constitution sets out the enumerated powers of Congress

  • These include the power to tax citizens and spend this money, and the power to issue a currency

• Implied powers:

  • Article I, Section 8, Clause 18 gives Congress implied powers, giving it the power to make all laws “necessary and proper” for its ability to rule

  • The implied powers of Congress have grown since the constitution was written, allowing them to make laws concerning matters not mentioned in the constitution

    • For example, an implied power of Congress is that of the regulation of the sale of substances and the banning of the sale of other substances (such as somer drugs)

strengths and weaknesses of an entrenched constitution

• Positive:

  • Entrenchment preserves the intentions of the founding fathers and prevents populist movements from making drastic and poorly thought through changes

• Negative:

  • The entrenched nature of the constitution makes it very difficult to amend

    • Article V requires a 2/3 majority in both House of Congress and ratification by 3/4 of states

    • Only 27 amendments have been passed in over 230 years - the first 10 (Bill of Rights) were ratified in 1791

strengths of a simplistic constitution

The simplicity of a codified constitution allows all citizens to clearly know and understand their rights

strengths and weaknesses of the clarity of the constitution

• Positive:

  • There is a clearly outlined structure of government with separation of powers between the 3 branches of government, preventing any one person or group from having too much power

• Negative:

  • The Elastic Clause in Article I of the Constitution states that Congress is entitled ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ which has allowed the power of the federal government to expand due to the vagueness of areas such as the Elastic Clause, which has caused regular conflicts between the state and the federal government

article I

• Article I grants all legislative powers to the Congress which consists of the Senate and the House of Representatives

• It outlines the election process for each chamber and the powers allotted to them

• Members of the House of Representatives are to be elected every 2 years

  • Each state has a minimum of 1 representative and the total number of representatives is based on the size of the population of each state

• Members of the Senate are to serve 6 year terms with elections held every 2 years for 1/3 of the seats

  • There are 2 senators per state

• Sets out Congress’ 18 enumerated powers - e.g. gives Congress the power to make all laws “necessary and proper” (elastic clause), Congress can declare war

article II

• Article II grants executive power to a President who sits for a term of 4 years, alongside their Vice-President

• Both will be elected via a system known as the electoral college

• When the Constitution was written, it was thought that the President would take control of foreign affairs and would be in command of armed duty

  • This was initially seen as quite a limited role - however, with military progress, the power of the role grew

  • The President has the power to pardon individuals who are indicted, detained or criminalised - e.g. Joe Biden pardoned his own son Hunter Biden from his financial crimes in 2024, arguing that the incoming Trump presidency would ‘persecute’ his son

  • The President can suggest legislative recommendations in the Congress Information of the State of the Union

  • The President also has to “faithfully execute” the laws of the lands (elastic clause)

article III

• Article III grants judicial power to the Supreme Court and any smaller courts

  • In the UK, the Supreme Court cannot strike down legislation due to Parliamentary sovereignty. However, the US Supreme Court has the power of judicial review to strike down legislation that appears unconstitutional

    • In Marbury v. Madison (1803), the US Supreme Court discovered their power of judicial review

• There is no term limit for judges

• Supreme court justices are to be appointed by the President and approved by the Senate

article IV

• Article IV sets out the rules for relationships between the states

• All states have to respect the laws of other states

• All citizens of states should be treated fairly and equally in all other states

• The rules for the admittance of new states is outlined

• All states should have republican governments, rather than being led by a king or gentry

article V

• Article V sets out the process to amend the constitution

• Amendments require the ratification of 3/4 states and a supermajority (2/3 of the votes) in both chambers of Congress

• Another way to pass an amendment is through a Constitutional Convention where amendments are proposed, and amendments are then ratified by 3/4 of the state legislatures

article VI

• Article VI contains the ‘supremacy clause’ which makes the constitution the highest law in the USA

• It also says that “no religious test shall ever be required as a qualification” for public office

article VII

• Article VII outlines the ratification process for the Constitution to be put into place

overview of constitutional amendment process

• 2/3 (supermajority) of both houses of Congress have to vote to introduce an amendment

• OR 2/3 of states can call a constitutional convention to propose amendments

• Amendments require ratification of 3/4 of states

bill of rights (1791)

• The best known amendments are the first 10, which were ratified in 1791

  1. Right to freedom of speech and religion

  2. Right to bear arms

  3. Right to not have unreasonable searches and seizures

  4. Right to a trial by jury, right to a lawyer

  5. Right not have cruel and unusual punishments

  6. All power not granted to the federal government is granted to the states and the people

other important amendments to the constitution

• 13th, 14th and 15th amendments were passed after the Civil War which abolished slavery and established civil rights for emancipated enslaved people

• 19th amendment gave women the right to vote

• 22nd amendment limits the President to 2 terms in office

• 26th amendment changed the voting age from 21 to 18

• 27 amendments have been made in total, with the most recent in 1992

advantages of the amendment process - populism

• The amendment process makes it hard for any 1 group or populist movement to amend the constitution

  • EX: Trump tweeted that he could end birthright citizenship, a right protected by the 14th amendment, with an executive order - however, this is not possible

• Amendments are hard to change to protect civil liberties in the US

• Amendments usually reflect widespread political agreement at the time

advantages of the amendment process - states’ rights

• The amendment process protects small states’ rights

disadvantages of the amendment process - disproportional state representation

• States have changing populations - e.g. Idaho’s population has grown, whereas Illinois’ has shrunk

• Small states have equal say in the ratification process to large states, which causes some to be significantly overrepresented and some are significantly underrepresented

  • EX: Wyoming’s population is ~ 588k, whereas California’s is ~ 39 million

disadvantages of the amendment process - undemocratic

• 38 states are needed to approve an amendment, so 13 states can block the will of the people

• Feminist groups have been trying to introduce an Equal Rights Amendment (ERA) since 1923, that would formally protect the equality of men and women

  • ERA received a supermajority in both Houses of Congress (House 1971, Senate 1972)

  • Although 38 states have now ratified the ERA, it has not been certified as law due to disputes over the expired ratification deadline