GovPol - Constitution (1)

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Nature of the Constitution

Background to the Constitution:

  • Drawn up during the Constitutional Convention in 1787
  • Colonists rejected British sovereignty as they saw the rule as oppressive behaviour, their dicontent culminated in the Declaration of Independence in 1776 - passed on the 4th July declaring the independence of the 13 states - 'We hold these truths to be self-evident, that all men are created equal...with certain unalienable rights...among these are Life, Liberty and the pursuit of Happiness'
  • The newly independent states tried to create a confederacy (a losse association of states which almost all political power rests with the individual states) by the Articles of Confederation
  • The primary aim was to protect the rights of the 13 states and create only a very weak national government; the national legislature was to be known as the Congress of the Confederation and was to consist of one chamber in which members served one 1-year term; no national executive or judiciary; Congress = no forcable powers of taxation; a minimum of 9 states had to agree to legislation
  • The federal government struggled to function in this way however and commerce between states and other countries suffered
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Nature of the Constitution

The Constitutional Convention:

  • The Articles of Confederation had seen the rise of men like Madison who were 'without reading, experience or principle' and hence there was call for change
  • People believed having dominance in states and a weak legislature was as bad as arbitrary British rule
  • The Convention was divided between two groups:

- FEDERALISTS: Stronger, centralised government; the views of the common man needed filtering by passing through a chosen body of citizens who had the expertise and knowledge which led them to advocate an indirect democracy

- ANTI-FEDERALISTS: Hostile to filtering, saw this as elitism and elevation of a few; representatives should mirror rather than filter public opinion OR no representation at all and government should be conducted through assemblies of the people; a strong centralised government would not benefit the many

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Nature of the Constitution

Structure of the Constitution:

  • Article One: Powers of the legislature
  • Article Two: Powers of the executive
  • Article Three: Powers of the judiciary
  • Article Four: Relationship between the states
  • Article Five: Process for amending the Constitution
  • Article Six: Confirmed that the Constitution and the laws of the US 'shall be the supreme Law of the Land'
  • Article Seven: Process of Ratification
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Nature of the Constitution

Principles of the Constitution


  • Madison - the accumulation of power in the same hands 'may justly be pronounced the very definition of tyranny'
  • Each of the three functions of government were to be administered by a separate institution under the control of different individuals
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Nature of the Constitution

Checks and Balances:

  • Incorporated into the Constitution so that no branch could function independently, and each should require the cooperation of the another to carry out its functions
  • Madison - 'Ambition must be made to counteract ambition'
  • Congress was internally checked by being divided into two equal chambers, with different constitutencies and terms in office
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Nature of the Constitution


  • Controls the executive budget
  • Can reject all legislation requested by the President
  • Impeachment for 'high crimes and misdemeanours'
  • Senate confirms major presidential appointments by a simple majority
  • Senate ratifies treaties by a two-thirds majority
  • Overide a presidential veto by two-thirds majority in both houses
  • Sole power to declare war through a majority vote in both houses
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Nature of the Constitution


  • The veto of congressional legislation - given that it impedes Congress carrying out its principal function, this is a major one
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Nature of the Constitution


  • President and Senate are jointly responsible for judicial appointments
  • Congress can decide how many justices sit on the Supreme Court and create new lower courts
  • Congress can impeach and remove judges for misbehaviour
  • Congress can pass constitutional amendments reversing court decisions
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Nature of the Constitution


  • Constitution is primarily concerned with the powers and relationships of the different branches of the federal government and the relationship between the federal government and the states is briefly touched on in Article 6 where the supremacy of federal law is asserted
  • Only in the Bill of Rights, 10th Amendment, does it explicitly state that the federal government was entitled to exercise only those powers granted to it by the constitution
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Nature of the Constitution


  • Incorporated into the Bill of Rights
  • Reflecting the anti-federalists belief that there is a need for protection against any form of central government
  • The first 10 Amendments contain these rights
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Amending the Constitution


  • Set out in Article Five
  • Can be proposed by Congress where the require two-thirds majority in both houses to be approved
  • Can be proposed by a national constituional convention called by two-thirds of the states
  • They then need to be ratified by either three-quarters of the state legislatures or by three-quarters of state constitutional conventions
  • All Amendments to date have been proposed through congressional approval, and since it has never been tried, it is not clear what a national constitutional convention would look like or how it would be summoned
  • Successful Amendments have then nearly all been ratified by the route of the state legislatures
  • There is no time limit for the process of ratification: Congress may stipulate a time or in its absence, the Supreme Court ruled in Coleman v Miller (1939) that the process of ratification can be completed decaded or even centuries after the original approval by Congress
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Amending the Constitution


  • Only 27 amendments to the constitution have ever been completed, the first ten being known as the Bill of Rights
  • Nearly all amendments have been concerned with advancing equal rights or with reforming government structures and practices (except 18th and 21st = PROHIBITION)
  • Since 1992, no amendments have been approved by majorities in Congress, 
  • Presidents will sometimes propose amendments to demonstrate their allegiance to their core constituency, knowing nevertheless that they are doomed failure i.e. REAGAN proposed an amendment reversing the S.C. ruling on school prayers in 1982 and BUSH proposed an amendment making same-sex marriage unconstitutional in both 2004 and 2006 and on neither occasion could it gain the 60 votes needed to overcome a Senate filibuster
  • Pressure groups are keen to press representatives and senators to introduce amendments as they have the dual benefits of raising the profile of an issue and motivating supporters
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Amending the Constitution


  • The process for amending the Constitution is deliberately designed o be difficult, to protect the principles of the system of government set out by the framers
  • The process is not impossible, but reflects the federalist's belief that the popular passions need filtering and a broad and sustained consensus is needed to effect a change
  • Approval by Congress and the relatively rapid ratification by the states of the 18th Amendment imposing prohibition, and its repeal within 14 years suggests that the process is not immune to temporary waves of popular sentiment
  • Prohibition however is the unique exception, and the framers made a misjudgement in creating such a demanding process
  • Makes the addition of wide support impossible e.g. failure of the Equal Rights Amendment, despite its approval by the House and its ratification by 35 states
  • The Constitution can become 'fossilised'; parts which have become obsolete, like the 3rd Amendment survive while rights and values which may no longer have a majority are sustained
  • The formal process of amendment is not significant anyway; the Constitution has the 'majestice generalities' and is sufficiently vague to allow considerable interpretation in its implementation
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Amending the Constitution

  • Considerable interpretation has already occured:

- Judicial Review is not itself mentioned in the constitution and neither is the federal bureaucracy

- The 'necessary and proper' clause has allowed Congress to expand its power at the expense of the states

- The president's power has expanded at the expense of Congress through the 'inherent' powers to be found in such phrases as 'the executive power is vested in the president'

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Nature of the Constitution


Form of government;

  • Under British rule control, the colonies had been ruled under a unitary form of government (political power rests with one central/national government)
  • From 1781 they had been ruled by a confederal form of government (virtually all political power rests with the individual states and little with the central government)
  • The compromise was to devise a federal government (power rests with the national government byt other, equaly important, powers rest with the state governments)

Representations of the states;

  • Large population states wanted Congress to be proportional to population ≠ smaller states who wanted equal representation
  • Compromise was to have two chambers - HoR and Senate
  • The House of Representatives has representation proportional to population ≠ Senate equal representation regardless of population (2 per state = 100 in total)
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Nature of the Constitution

Choosing the President:

  • Some thought the president should be appointed
  • Others though the president should be directly elected by the people
  • The compromise was indirect election by an Electoral College
  • The people would elect the Electoral College and the 'Electors' within the Electoral College would choose the president
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Nature of the Constitution


... a constitution that consists of a full and authoritative set of rules written down in a single text

  • It would enumerate certain powers that the federal fovernment would possess and leave all other powers to the states or the people
  • Deliberately contain a complicated amendment process; amendments were permitted but only if they received overwhelming support
  • There are some deliberately vague phrases in the constitution ('majestic generalities': Cox) and have evolved over time. Two clauses have allowed the powers of the federal government to expand significantly over time:

- 'to provide for the common defence and general welfare of the United states' (general welfare clause)

- 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers' (necessary and proper clause)

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Nature of the Constitution

The Constitution has changed significantly through:

  • formal amendment: i.e. permitting a federal income tax (16th Amendment)
  • interpretative amendment: by the Supreme Court's power of judicial review

However, in the Constitution there is nothing about:

  • presidential primaries
  • congressional committees
  • the president's cabinet
  • the Executive Office of the President
  • the Supreme Court's power of judicial review
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Principles of the Constitution

The Constitution can be said to be based on three principles:


  • Doctrine defining the relationship between the three branches of government
  • The Founding Fathers intended the three branches to be independent yet co-equal; be separate in terms of personnel; operate checks and balances on each other; promote the concept of limited government
  • The Founding Fathers believed this was the best way to avoid tyranny and that law making, executing and enforcing should be carried out by co-equal bodies yet whose personnel were entirely separate
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Principles of the Constitution

2) Checks and Balances:

  • The functions of the branches are not completely separate, as it is only the institutions which are separate
  • Neustadt = the Constitutional Convention of 1787 'created a government of separated institutions sharing powers'
  • The institutions and personnel are separate but their powers are shared
  • This is called checks and balances - a system of government whereby each branch exercises control over the actions of the other branches of government
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Principles of the Constitution

3) Federal division of powers:

  • Federalism involves a level of decentralisation (political power is not vested in federal governments but state governments also)
  • Nowhere in the Constitution are the words 'federal' or 'federalism' - it is written into the Constitution by Articles 1, 2 and 3 which lay out the powers of national government, and Amendment 10, which guarantees that all the remaining powers are 'reserved to the states and to the people'
  • The 10 Amendment is stressed by supporters of the Tea Party movement because they want to see the federal government doing less

The Constitution does:

- Give certain exclusive powers to the federal government i.e. coin money, negotiate treaties, tax imports and exports, or maintain troops in peacetime

- Give guarantees of states' rights e.g. so the states are guaranteed equal represenation in the Senate, borders will not be changed without their consent and that the Constitution will not be amended without the agreement of three-quarters of them

- Make clear that there are also states responsibilities - each state must recognise the laws f each other state

The Constitution failed to lay down any definite line between the concurrent powers of the federal and state governments - federalism had to develop over centuries

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The Constitutional framework

The Constitution in outline:

  • Made up of 7 Articles plus 27 Amendments
  • The first 10 Amendments added made up the Bill of Rights:

- 1st = freedom of religion, speech and the press, and the right to peaceful assembly

- 2nd = right to keep and bear arms

- 4th = freedom from unreasonable searches

- 5th = rights of accused persons (including the 'due process' clause)

- 8th = freedom from cruel and unusual punishments

- 10th = rights reserved to the states and to the people

- 14th = guarantees 'equal protection' and 'due process' applied to all states

- 16th = 'Congress given power to tax income

- 22nd = two-term limit for president

- 25th = presidential disability and succession

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The Constitutional Framework

  • Six amendments have been proposed by Congress but failed at the ratification stage, most recently the one to guarantee equal rights for women
  • Many proposals have failed at the proposal stage, most recent examples include: require the federal government to pass a balanced budget; impose term limits on members of Congress; forbid desecration of the American flag

Why has the Constitution been so rarely amended? There are five main reasons:

1) The Founding Fathers created a deliberately difficult amendment process

2) The vagueness of the Constitution has allowed the document to evolve without the need for constant formal amendment

3) The Supreme Court's power of judicial review allows the Court to amend the meaning of the Constitution while the words remain largely unaltered

4) The reverence with which the Constitution is regarded makes many politicians cautious of tampering with it

5) The 18th Amendment regarding the prohibition of alcohol was repealed with the 21st Amendment just 14 years later

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The Constitutional Framework

Constitutional rights:

  • The Constitution guarantees certain fundamental rights known as Constitutional rights (fundamental rights guaranteed by the federal Constitution, principally in the Bill of Rights)
  • In order for these rights to be protected however, the federal, state or local government must take stes to ensure the rights are being effectively protected
  • When it comes to the federal government, all 3 branches need to be involved:

- Congress can pass laws to enhance the rights of people and can also, through its committee system and investigative powers, call the executive branch to account

- The executive branch needs to timpolement the laws and programmes which Congress passes and establishes in order to ensure legislation in enacted properly

- The Supreme Court has the important role in safeguarding the constitutional rights of citizens through judicial review

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