The United States Constitution

The United States Constitution

Characteristics of the US Constitution

The American constitution is:

1.Written. The US constitution is written down in one document. In Britain the constitution is not recorded in one single document but can be found in statutes, precedents in legal cases, authoritative texts etc.

2. Rigid. There is a special law making procedure for amending or changing the constitution which makes it much harder to change compared to an ordinary law. [see later notes on constitutional amendment] In the UK constitutional change can take place with a simple Act of Parliament.

3. Federal . This means that there are two layers of government. The federal government makes laws that effect all of the people in the United States. The state government makes laws which only effect those people who live in the area in question. Both federal and state government have their own areas of responsibility which are protected by the constitution. In the UK there is a unitary state. All law making power comes from parliament. All local government powers can be taken away again.[see later notes]

Principles behind the US Constitution

1.Republican Government.

The American Revolution took place against Britain , a monarchy. The Americans were angered by the increases in taxation passed by a Parliament that was to a large degree controlled by the monarch George III. They called for "no taxation without representation."

It was no surprise that the inhabitants of the new world wanted a popularly elected government rather than a monarchy which seemed to be a legacy of the old world they had left behind. Hence the preamble of the constitution starts with the words "we the people" a clear indication that the USA was to be governed by consent rather than by divine right. The concept of popularly elected government was guaranteed in Article IV Section 4 of the constitution.

Republican government does not necessarily mean democratic government. The limited franchise of the US meant that only about 20% of the people could actually vote, making the system popular or representative but not democratic which would entitle 100% of the people to have the vote.

2.Fear of mob rule.

As stated before republicanism does not necessarily mean democracy. The delegates to the Philadelphia convention were very propertied men. They believed in representative government where the ordinary person would be represented but not in a democracy where all people had the vote and where the will of the majority determined policy and practice.

There were three main areas which reflected the fear of tyranny by the majority:

• Voting Rights

Who had the vote was a matter for the individual states. Therefore while some states allowed pretty much all of the population to vote others restricted the franchise to property owners who were generally quite well off. This was particularly evident in many of the southern states who did not give the vote to black slaves and even after the Civil War created qualifications which prevented the non-white population from voting.

• Electoral College

The President, the one national figure who was to be elected, was not elected directly. Instead an electoral college of representatives from each state was created to select a President indirectly. The aim here was to create a mechanism that could be used to stop a popular but dangerous politician from being elected by the people. [see later notes on Presidential elections]

• Senate

The Senate was designed to be a counter-balance to the more democratic House of Representatives. The aim was to keep crude direct democracy at bay.

Firstly, Senators were not to be elected by the people but chosen by their state legislatures.[this was successfully changed in 1913 by the 17th Amendment]

Secondly, Senators were elected for a six year term as opposed to the two year term of a member of the House. Furthermore their elections were staggered so that only one-third of the Senate was elected at one time, thus preventing a tide of public opinion changing the Senate overnight. If the character and composition of the Senate changed slowly it could act as a barrier against violent change.

Thirdly, the minimum age for a Senator is 30 years old as opposed to 25 for a member of the House, suggesting that the Senate would be more mature and conservative. There are similar distinctions concerning citizenship.

Fourthly, in the Senate each state is represented by two members, which clearly means that the most populace states are underrepresented, again acting as a block against the will of the majority.

Finally, the Senate, rather than the more democratic House has the key role of checking the President, in terms of foreign policy, appointments and impeachment.

3. The Separation of Powers.

The French philosopher Baron de Montesquieu suggested that there were three branches of government, the executive [who made policy and implemented it], the legislature [who made law], and the judiciary [who interpret the law]. He argued if any person controlled all of these branches of government then it would inevitably lead to tyranny.

Therefore he believed that a perfect political system would have different people controlling different branches, which each had their own role and function, thus ensuring that one branch of government could not control the other two. Although he believed that this principle operated in Britain it was in America that the idea was explored fully. In addition to the idea of separated powers, the constitution makers also brought in a system of checks and balances to prevent too much power being concentrated in the hands of one group.

4. Checks and Balances.

Checks and balances was a principle which double checked the separation of powers in order to ensure that tyranny could not happen. While no person could be a member of more than one branch, the constitution makers appreciated the fact that the three branches of government could not work in isolation and that they would have to collaborate to some degree. It was important to ensure that one branch did not start to take over the responsibilities of another, otherwise the separation of powers doctrine would fall apart. The system of checks and balances ensured each branch was given protection from the intervention of another branch.

4.  Limited government and individual rights.

One of the main reasons why the American colonists had wanted freedom from Britain was the belief that the British had interfered too greatly in the running of American trade, commerce and taxation. This was done because the ‘Crown in Parliament’ had almost unlimited authority to do what they wished. Therefore the idea of the constitution was to clearly define what a government could and could not do in order to preserve liberty.

"In framing a government…the great difficulty lies in this…you must first enable the government to control the governed and in the next place oblige it to control itself." [James Madison – The Federalist Papers Chapter 10]

Although the original constitution written in 1787 had restricted the role of government it did not initially establish what rights the individual had. This was soon rectified with the adoption of ten amendments to the constitution in 1791 which became known as the Bill of Rights.

The inspiration behind the Bill of Rights came from two separate sources. The first was the traditional English principle of common law rights reflecting the historical liberties established in Britain since the Magna Carta such as the right to trial by jury, freedom from arbitrary arrest and the right to private property. These ideas were incorporated into the philosophy of John Locke and was a theory of rights that was largely exclusive to the property owning classes.

The second theory of rights came from more inclusive philosophers who believed all men had natural rights. This more radical doctrine was extolled by Thomas Paine and was implicitly more revolutionary.

The first ten amendments to the constitution were part of a proposed seventeen that had been promised by James Madison to those groups who were suspicious of federal government. The ones that were not adopted tended to press for greater democracy within the union. The amendments which were passed were a mixture of different demands, many of which might seem anachronistic in the modern age.

THE BILL OF RIGHTS

The main provisions of the Bill of Rights are as follows

• No laws which restrict freedom of religion, speech, press or assembly

• No laws restricting the right to bear arms

• No unreasonable billeting of troops

• No unreasonable searches and seizures

• No double jeopardy, self incrimination and the right to due process of law.

• The right to a trial by jury and the right to legal representation.

• No excess bail or cruel and unusual punishment.

• Protection of all other rights unless there is a change in the law.

5. Federalism

The most divisive issue that the Founding Fathers confronted was what relationship should take place between central and local government. Since 1781 the 13 states in America had become a Confederacy, which meant that each had its own sovereignty but had shared control over foreign, military, trade and currency policy. There was widespread agreement that a stronger national government was needed after the War of Independence in order to improve the viability of the newly independent state, but there was also a fear among the smaller states of too strong a central government.

The Case for a stronger federal government.

The Federalists wanted a very strong federal government including a legislative which had the power to veto or negate laws passed by the individual states. They supported the ‘Virginia Plan’ which offered three main arguments against the existing confederacy.

• Firstly, the financial system of the national government was hopeless as it was effectively bankrupt and reliant on state handouts to keep it afloat. This was not only undesirable but dangerous as it meant that it could not carryout the defence of the country.

• Each state had its own customs system which hindered free trade and economic improvements.

• Each of the states had a debtor class in the countryside who owed money to the commercial classes on the prosperous eastern seaboard. In certain states they had enough power to legislate their debts out of existence by printing useless paper money. Therefore the richer elements in US society wanted closer currency control.

The Case for a weaker federal government

The Anti-federalists usually came from the smaller southern states. They adopted the ‘New Jersey Plan’ which wanted only a souped up version of the confederacy. They too had three main arguments.

• Individual states had their own histories and constitutions. Some states were propriety colonies run for commercial motives,[eg. Carolina] who others were run by shareholders in companies.[ Eg Virginia] Others like Pennsylvania, Maryland and Massachusetts were set up for religious and philanthropic motives. Each wanted to retain its own history and culture.

• The three big states of Virginia, Massachusetts and Pennsylvania accounted for nearly half the adult, white male population and the smaller states feared being controlled and dominated by them.

• The slave states did not want their ‘peculiar institution ‘ to be abolished by a strong central government.

A federal compromise emerged from all this. There was to be a national government but one without supreme sovereign power. This is a system known as Dual Sovereignty. While it had control in its own sphere of influence these areas were to be limited.

The small states accepted this compromise for two reasons. Firstly, they ensured that big states would not dominate the legislature by having an upper house where the smaller states were given equal representation. Secondly they ensured that the President was directly elected and not dependent on the Congress where the big states predominated.

The Division of Authority between the state and federal government under the US Constitution

The Federal Government

1. The "Enumerated Powers" of the Federal Government.

These are specific areas where the Congress has the right to legislate. This is set out in Article 1, Section 8, clauses 1-17.

• Imposition of taxation }

• Borrowing money }

• Regulate commerce [the interstate commerce clause] }

• Regulation of naturalisation and banking } Regulation of

• Coining money } trade, currency

• Punish counterfeiting } and taxation

• Establishment of post offices }

• Securing patents }

• Creation of inferior courts

• Punish piracy }

• Declare war } National Defence.

• Raise an army and navy }

• Organising and mobilising a militia }

• Authority for the District of Columbia

The "Implied Powers" of the federal government.

In addition to the specific areas where it has the right to legislate Congress has the authority to make laws which are "necessary and proper" for carrying out the duties of the enumerated powers. This is contained in the so-called elastic clause of Article 1 Section 8.

Powers denied to the Federal Government.

These are set out in Article 1 Section 9.

• No law regulating the slave trade until 1808.

• No power to suspend Habeas Corpus

• No Bill of Attainder [legislation punishing an individual without trial] or retroactive laws.

• No disproportionate taxation.

• No state tariffs.

• No state preference

• No unauthorised expenditure of money

• No titles of nobility

• Also the 16th Amendment.

& all of the powers denied under the Bill of Rights.

The State Governments

The powers denied to the states

These are set out in Article 1, Section 10, clauses 1-3.

• No power to make treaties, coin money, pass Bill of Attainder, pass retroactive law or grant titles of nobility.

• No powers to impose duties on imports and exports

• No powers to raise an army/navy, make alliances or declare war.

& all the powers denied under the Bill of Rights

As such the powers denied to the states take two forms. Firstly, the states cannot do something that has been specifically given to the Federal Government to do. [Section 10 is the obverse of Section 8]

Secondly there were some powers that the Founding Fathers believed that no government, federal or state, should have, for example the ability to pass retrospective legislation.

The reserved or residual powers of the states

This is set out in Amendment 10 of the Constitution. It states that the powers which are not delegated to the federal government are "reserved to the states …or to the people." Many of the southern states saw this as giving the states massive power but they failed to realise that power was also reserved to the people who could give and take power via the process of constitutional amendment. Nonetheless state government has accumulated a wide range of powers and exercised them in different ways over the course of time, for example in terms of laws on marriage and divorce.

Overall. The US constitution does not draw a clear and sharp line between the power of states and the power of the federal government. The federal-state relationship has changed over the course of history and has meant different things at different times. Much of the time the areas of responsibility have been settled by the Supreme Court. The four main grey or ambiguous areas in the constitution are

• The interstate commerce clause[Article 1, Section 8 Clause 3]. The difficulty here is what constitutes commerce and how far can federal government regulate it. A broad interpretation means that the federal government can interfere in a whole range of areas.

• The General Welfare Clause.[ Article 1, Section 8, Clause 1] If this was interpreted narrowly to include only taxation then the federal government would have little power. If this was interpreted broadly, for example the Wagner Act, it means that the state can be involved in a whole range of social and economic policy.

• The Implied Powers Clause.[Article 1, Section 8, Clause 18] This suggests that Congress can pass laws that are necessary and proper. This was the source of great controversy in the nineteenth century until the process of judicial review gave the federal government substantial power.

• The Residual Powers Clause .[Amendment 10] If interpreted in favour of the states this effectively would have made the United States a confederation and have given the southern states the right to leave the union before the civil war. After the Civil War this view was less prominent.

The theory of federalism in its pure form no longer conforms to reality in current US politics. Government is a much more complicated and interdependent process where the differing roles are hard to distinguish [see later notes on Local government] Nonetheless despite the growth of central government in the twentieth century state government has in no way become subordinate to federal government.

The Process of Constitutional Amendment

The Process of formal amendment. [Article 5]

Proposal: By a two thirds vote in both Houses of Congress

OR By a national convention

Ratification By the legislatures in quarters of the states quarters of the states or by conventions in 3/4 of the states.

Amendments to the Constitution

There have been 27 amendments in total. 10 of these make up the Bill of Rights which is practically part of the original constitution. Of the remaining sixteen, two were concerned with the establishment and ending of prohibition.

The difficulty of formal amendment to the constitution – the Equal Rights Amendment – a case study.

The equal rights amendment stated that, "Equality of rights under the law shall not be denied or abridged by the United States or by any states on account of sex."

The failure of this amendment shows how difficult it is to amend the US constitution in practice. In 1971 the amendment was proposed by overwhelming majorities in both houses of Congress, 354-24 I the House, and 84-8 in the Senate. This indicated clear cross-party support in the Congress.

The ERA ran into difficulties when it came to ratification. 38 states had to ratify the amendment. However 49 of the states are bicameral and have two chambers. This meant that in order to stop the amendment its opponents only needed the support of 13 out of the 99 state legislatures.

Although things started promisingly enough for the ERA it could only get the support of 35 states, three short of the required number. By 1982, after over ten years of campaigning the ERA bit the dust. Particularly galling to supporters of the amendment was that those who failed to support it included three of the least populous states in the union, Nevada, Utah and Arizona.

The failure of the ERA showed that an amendment with widespread support can be obstructed by a small minority of opinion at the ratification stage. Despite the support of Congress, public opinion and the largest states the proposal was not ratified.

The most important group who opposed the ERA were the ‘Moral Majority’, a conservative pressure group which represents about 20million white Baptists who are born again Christians. They were particularly strong in the southern states that made up the majority of opponents to the amendment. Other religious groups like the Mormons were able to use their influence in Utah where they were politically strong.

It is possible to say that the failure of the ERA does not really matter in real terms. Cases such as Reed versus Reed in 1971, showed that a liberal interpretation of the 14th Amendment could be used to protect equal rights, in this instance in the appointment of administrators over the estates of deceased children. Other cases such as Rostleer versus Goldberg in 1982, which upheld an exclusively male draft for military service, could be used to demonstrate that full equality is not guaranteed.

Informal Amendments to the constitution

Although the process of constitutional amendment is complicated and hazardous this does not mean that constitution in practice has not changed. Customs and conventions have been established which have changed the way in which the constitution operates. Two examples would be the fixing of the number of Supreme Court Justices to nine and the interpretation of high crimes and misdemeanours to involve anything that is seen as disreputable even though it is legal.

As such the constitution is shaped by how it is interpreted. There are four important areas where this has taken place:

1. The growth of the power of federal government at the expense of state government.

2. The assertion of the power of the President over the Congress.

3. The emergence of the Supreme Court as the final arbiter of the constitution through judicial review.

4. The protection of individual rights and liberties by use of the 14th Amendment.

All of these will be looked at in detail in later notes.

The effects of the Constitution on US government

1. Protects liberty and acts against abuses. This was as Montesquieu intended.

The Watergate hearings and Iran/Contra demonstrate that the US constitution can prevent the abuse of power by any one part of the government.

1. Can lead to institutional deadlock. One of the main characteristics of President/Congressional relations is that they often use negative power to prevent the other from getting their way. This leads to governmental paralysis.

2. Ensures that US government will involve compromise. Institutionalised conflict is more common than deadlock. Compromise between executive and legislature is the norm.

Conclusions

The Constitution exercises a tremendous amount of influence on US politics. It is impossible to understand any branch of government without

acknowledging the limitations that the Constitution places on it, either directly or by giving checks and powers to other branches of government. Therefore most questions on US politics will require some knowledge of the constitutional set up.

Considering the fact that it is a written document that has rarely been amended over the last 200 years, the US Constitution has proved to be very adaptable and flexible. Think of the institution of the Presidency, intended to be merely a check on Congressional power with few constructive powers of its own. It has evolved over time to become a hugely important source of law making. This change took place without amendment or profound redefinition of the Constitution.

Historically the Constitution was controversial when it was written. This meant much of it was disagreed upon. In order to get a document accepted by all thirteen states much of what was written tended to be vague and loose, rarely setting out strict rules of how government should function. Paradoxically this vagueness has proved to be the Constitution’s great strength. It has allowed the Constitution to be remarkably flexible and explains why it remains largely intact to this day.