|PinkMonkey Study Guide - American History
4. 2 About the constitution
Every country has a constitution. Some have a written
constitution, while the others have an unwritten one. An unwritten
constitution means that the country follows customs that have some
legal sanction. This unwritten constitution can be changed if the
governing body passes an act or through the development of new customs.
The U.S.A. has both a written and an unwritten
constitution. The written constitution is the document that was
adopted at the Philadelphia convention of 1787, along with the amendments
added to it. And the unwritten constitution is that which has evolved
by custom and practice over the years. For instance, the written
constitution does not make any references to political parties,
lobbying, the committee system of handling bills, or the power of
the Supreme Court to declare the laws of the Congress null and void.
But these practices exist and form an integral part of the American
The two houses of Congress assemble in the House
of Representatives for a joint session.
The constitution divides the powers between the
states and the Union
The U.S. adopted a federal system of government
due to certain practical needs (elucidated elsewhere in the chapter)
that arose in 1787. One of the main reasons was that several states
had decided to come together for common purposes, but wished to
retain their separate identities and power.
The limited Federal Government
The 13 states that became a part of the Union were
not willing to delegate all the powers to the center. They wished
to entrust the central government only certain powers. The rest
they retained. The center or the federal government was given limited
powers. These limited powers are also called ’enumerated’
powers since they have been elucidated in the constitution in great
Powers delegated to the center
Section 8 of Article I in the constitution elaborates
on the powers of the federal government. It states: "The
Congress shall have powers to lay and collect taxes..."
This is followed by 17 clauses such as: "to borrow money...to
coin money...to declare war..." All these clauses form
a part of the main clause which says: "Congress shall have
power ..." In other words, the center has power over matters
that are of national importance like defense, currency etc. (See
section 8 of articles IV and I. These give details about certain
additional powers granted to the center).
While the identity and rights of the states are
recognized by the center, there are certain powers that are denied
to the state. These "dont’s" are clearly stated in section
10 of article I in the constitution. For instance, the states cannot
sign treaties, mint coins, declare war, levy duties on imports,
exports or raise an army without the permission of the Congress.
The checks on the center / Federal Government
At the time, the constitution was being prepared,
the states feared that the Congress might favor one state at the
expense of the others. To check this, section 9 of article I states
that the center cannot levy export taxes, take money from the treasury
without a legal sanction or ratification from the Congress or give
preference to the trade of one state over another. Further, there
were other limits placed on the center as explained in article I,
section 9 and the first nine amendments to the constitution - are
all laid down to protect the natural rights of all citizens (Ref.
Appendix). As far as the relation of the center to the states is
concerned, it is stated in the tenth amendment that: Those powers
not delegated or given to the federal government of the U.S., but
not denied to the states are ‘reserved’ to the states or the people.
These are what are known as ’reserved’ or ’residual’
powers of the states.
In section 8 of article I, there is a clause which
grants broad powers to the federal government. It declares that
the Congress has the power "to make all laws which shall
be necessary and proper for carrying into execution the foregoing
powers and all others powers vested by this constitution in the
government of the United States..." The clause is also
known as the ’elastic clause’ or ’necessary or proper’
clause. By this clause, the center can broaden its purview to pass
laws that are acquired or derived from the granting of specific
powers. But this is just one interpretation of the clause. The other
interpretation could be that the functions of the federal government
should be limited to passing laws that are related to the ’enumerated’
power (See Appendix: last clause in sections of Article I. Also
see the paragraph on Limited Federal Government to understand
The ’elastic’ clause has always been given the
former interpretation by the Supreme Court. The interpretation that
has developed over the years through practice can be considered
as part of the unwritten constitution. While the Congress has the
power (’enumerated’) to tax and borrow money, it has also set up
a national banking system and encouraged industry through tariffs.
Similarly, under the power to set up post offices and roads, the
Congress also takes on the responsibility of subsidizing railroads,
Meanwhile, the people who follow the second interpretation
of this ’elastic clause’ are usually the strongest defenders of
the States Rights. Those who follow the first interpretation are
the advocates of a strong center. The conflicts that arise between
the advocates of States Rights and of a strong center are usually
solved by the rulings of the Supreme Court. With rapid changes in
the economy today, many political scientists argue that the powers
of the federal government should be extended to include issues of
health, social security, industry and labor. For they believe that
these complex issues cannot be handled by the states independently.
And that the center should formulate a common program for matters
as vast and complex as the ones mentioned earlier.
The Provision of Checks and Balances in the Constitution
One of the significant features of the Constitution
is that there is a three-fold separation of powers: the executive,
the legislature and the judiciary. All these three bodies of the
government serve as ’check and balances’ on each other. These three
branches of the government dependent on each other. At the same
time, they are also independent parts of the government.
The aim of the provision of checks and balances
is to prevent any one branch of the government from becoming extremely
powerful. It also serves to keep any one department of the government
from unnecessarily interfering with the basic rights of individuals
- such as the right to property and the right to the pursuit of
The various checks and balances are as follows
Checks on the President
The duties assigned to a President are to implement
the laws adopted by the Congress and to manage foreign affairs.
Due to these duties, the President is in a way, independent of the
legislative and judicial branches of the government. But at the
same time, all foreign treaties negotiated by the President must
be ratified by a two-thirds vote of the Senate; all Presidential
appointments must get prior confirmation from the Senate; and the
President’s actions can be reviewed by the judiciary.
Legislative checks on the President and the Judiciary
The legislature can overcome the President’s veto
powers by a vote of two-thirds majority. It can also overcome the
veto of the judiciary by means of an amendment to the constitution.
This amendment has to be ratified by the legislatures of the states
through a three-fourth vote.
Executive Checks on the Judiciary
Under this, the President has the power to forgive/pardon
those who have been sentenced to death by the court. Further, the
President alone can appoint judges with the Senate’s approval; and
he can or has the right to ignore the court’s rulings.
Judicial checks on the Legislature and Executive
The judiciary comprising the Supreme Court and
other special courts that the Congress often creates, holds trials
and passes orders and sentences on the guilty. The President, with
the Senate’s approval appoints the judges. While, on the one hand,
the judiciary is controlled by the executive, on the other, it is
controlled by the legislature, as the legislative branch can impeach
judges. At the same time the judiciary can be independent, as it
can review the decisions of the executive. So much so that through
a varied interpretation of the law, it can declare the laws of the
Congress or the states as unconstitutional. And this power of the
judiciary can be checked only by an amendment to the constitution.
Executive checks on the Legislature
While the Senate constantly checks the President’s
powers, the President also can check the legislature. The President
has the power to make recommendations to the Congress and to pass
laws. He can veto bills passed by the Congress and also call the
Congress to a special session. Moreover, the President has the power
as well as the opportunity to create a public opinion favorable
to his policies. Secondly, if he is able to get a good support from
his party, he can get his policies passed. Finally by the distribution
of executive favors and patronage, he can very often persuade the
actions, he wants or prefers, over any matter.
The Bill of Rights
The Bill of Rights was prepared on the basis of
Ten amendments made to the constitution (1791). The first eight
of these amendments served as a check on the federal government’s
powers over individual citizens. According to this: the Congress
could not limit free speech, or deny the people the right to carry
arms for military service. It could not interfere in the religious
affairs of the people; or allow homes to be searched by the police
without warrants. Moreover, suspects could not be forced to give
testimony against themselves. Also the government could not deprive
the citizens of trial by jury or encroach on their basic rights
i.e. the right to life, liberty and property, "without the
due process of law." Lastly, the center could not charge heavy
bail amounts or give cruel and unusual punishments to anyone.
The Ninth Amendment states that the rights included
in the earlier list did not exclude others. And the Tenth amendment
proclaims that the powers not delegated to the center or not given
to the states belong to the states and individuals respectively.
The Bill of Rights was a historic document. For this was the first
time that a document stating clearly and firmly the rights or guarantees
to private citizens had been brought out. In that sense, the Bill
of Rights was a landmark in the history of human independence. In
1791, this Bill limited the powers of the center and not of the
states. It was only after the Civil War, that the power of the states
over common people was restrained by the fourteenth amendment to
The Provision for orderly change in the constitution
Article V in the constitution clearly gives the
details about how it can be amended. There are two requirements
for amendments. One is the proposal and the second is the ratification.
A proposal for amendment can be made by a two-thirds vote from both
houses of the Congress or by a convention summoned by the Congress
after three-fourth of the states’ legislatures apply for the amendment.
The earliest amendments made to the constitution have been the 10
amendments called the Bill of Rights. Then the Civil War amendments,
i.e. the thirteenth, fourteenth and the fifteenth amendments were
made to resolve the conflicts that arose during that period of struggle.
In the twentieth century, the most notable or significant amendments
are the Twenty first and the Twenty second Amendment. The Twenty
first amendment repealed (canceled) a previous amendment - the Eighteenth
Amendment which had established prohibition in the U.S. This is
the only amendment in American constitutional history, which was
ratified by specially selected conventions in every state. The Twenty
first Amendment passed in 1951 limited the election of the President
to 2 terms.
The Unwritten Constitution
The various usage and practices that have evolved
over the years with certain legal sanctions - form the Unwritten
Constitution. The main features of this Unwritten Constitution are:
The Party system, though not mentioned in
the constitution, yet exists as an integral part of the political
scenario in America. It is what constitutes the unwritten law.
The Cabinet System in the U.S is also a
result of the custom and laws later passed by the Congress.
The method of forming committees to formulate
and consider laws is also a result of practice. The Senate and the
House of Representatives vote on the laws, suggested by various
committees appointed by the Congress.
When the President makes appointments to
various posts, he is influenced by the Senator of the state to be
directly affected by the state. Similarly, while ratifying these
appointments, the Senators are advised by the states that would
be affected by the particular Senator appointed. This too is a common
practice that forms a part of the Unwritten law.
President Franklin D. Roosevelt broke the custom
of two-terms for the President, when he stood for elections a third
time. This custom of 2 terms for the President became law in 1951,
with the Twenty first amendment to the constitution.