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Summary The nature of the US constitution
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all my notes on the nature of the US constitution
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THE NATURE OF THE CONSTITUTIONCODIFICATION AND ENTRENCHMENT
Codified - written all in one document. This means that the constitution itself is the source of political power in the
USA and any powers that federal or state governments hold are given to them by the constitution.
Judicable - a constitution which contains a higher form of law, and therefore allows other law to be judged against it
and be deemed either constitutional or unconstitutional. Judges can interpret actions and laws against the
constitution to judge whether or not they are constitutional.
Entrenched - difficult to amend as the document is protected by law.
VAGUENESS OF THE DOCUMENT
Strength - adapt/change/amend, allows you stick to more simple principles instead of being bogged down into the
intricacies of the law. Allows for reinterpretation.
Constitution refers to men - reinterpreted - now means mankind
Weaknesses - because the founding fathers were so worried about an overbearing executive - they didn't worry
about the other branches.
Supreme court, the president can't do anything about it
Temptation to politicise the supreme court
The founding fathers couldn't agree on the role of states, slavery, the power of central government and the
importance of a bill of rights.
Allowed for compromise of the delegates and agreement of the states.
Not every power is outlined within
The vague nature of the constitution is seen through the difference between:
Enumerated powers: quickly identified in the first three articles Implied powers: powers which are not
as those powers are explicitely given to each branch of specifically granted in the constitution but are
government. Powers that you definitely have. assumed or implied from the wording of this
document and the powers that it does not
grant.
Article 1 - congress is explicitly given power to 'lay and collect These powers are interpreted from those laid
taxes, duties, imports and excises' which was an important out in the constitution
development from the articles of confederation in which the
central government had no power over tax and therefore relied
on states for money.
Written down They are gained from interpretations of the
vague language of the constitution
Outlines specifically the power a branch can exercise Following a memorandum from the justice
department in 1947, the president is accepted
as commander in chief of the united states air
force, as well as the marines and the coast
guard.
The constitution outlines in article 2 that 'the president shall be Other implied powers are: forming a cabinet,
commander in chief of the army and navy of the united states' - executive orders, signing statements, executive
obviously no air force at this time agreements and executive privilege.
Other enumerated powers: the veto, the pardon, the state of the
union, making treaties and appointing ambassadors and judges.
, 'Necessary and proper clause' - a clause within article 1 which allows congress to imply any powers which are
necessary for it to be able to carry out the enumerated powers. Also known as the 'elastic clause'
2nd amendment - could be seen as one of the reasons that achieving meaningful gun control has been
difficult for so many presidents.
Increasingly it has become hard for congress as their powers are so specific, but the president has been
slowly able to increase his powers.
Wider interpretation of presidential powers over the last 2 centuries, seen in article 2, has expanded this
branch considerably.
THE CONSTITUTIONAL FRAMEWORK OF GOVERNMENT
Set and collect To hold executive To rule on issue arising from the constitution, on
tax power conflicts between two or more states or conflicts
Borrow money Commander in between the federal and state government
on the behalf of chief to the army
the US and navy
Regulate foreign To make treaties
commerce To grant pardons
Establish rules To appoint judges
on citizenship and ambassadors
Set standards on To address
weights and congress on the
measures state of the union
Set up courts To veto legislation
under the
supreme courts
To declare war
To raise an army
To make laws
necessary and
proper
Checks and Balances
Richard Neustadt has argued that they didn't manage this rather it created a government of separated
institutions 'sharing powers'
There are few truly separated powers in the constitution that just one branch can exercise alone.
Many of their powers required two branches to act together in order to exercise them.
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