1.1 - The US Constitution and the amendment process

Codification and entrenchment

The US Constitution is a higher set of rules against which ordinary government decisions can be judged. It was signed in 1787 and the new federal government began operating in 1789. Its seven original articles and later amendments form a central written constitutional text.

Codification makes the source of a rule comparatively easy to identify. A dispute about Congress's lawmaking powers can begin with Article I rather than searching across many separate constitutional sources. This does not mean that the document explains every detail of American politics: legislation, judicial decisions and political practices also shape how the system works.

Entrenchment means that constitutional rules are protected from ordinary legislative change. Congress cannot remove a constitutional right simply by passing an ordinary Act. A formal alteration of the constitutional text must use Article V, with much higher thresholds than ordinary legislation. Courts can declare incompatible laws unconstitutional, which gives the distinction between higher and ordinary law practical force.

These ideas are different. Codification concerns where rules are collected; entrenchment concerns how difficult they are to change. A written rule could be easy to amend, and a difficult amendment rule does not remove disagreements about its meaning. The Constitution's text is available from the National Archives.

Vagueness and interpretation

Some constitutional provisions state a clear rule, while others leave a question of meaning that institutions must resolve. A senator's six-year term is precise. The powers needed to implement Congress's listed responsibilities are less precisely bounded: Article I's Necessary and Proper Clause does not list every future policy instrument.

Enumerated powers are powers expressly listed in the Constitution. Congress's powers to tax, regulate interstate commerce and declare war are examples. Implied powers are powers understood to follow from expressly granted responsibilities. In McCulloch v Maryland (1819), the Supreme Court upheld a national bank as a means of carrying out federal powers even though the text did not expressly list the creation of a bank. This illustrates the distinction between a listed end and an authorised means. See Constitution Annotated's account of the case.

Vagueness can make an old constitution adaptable. Broad language can govern technologies and circumstances its authors did not anticipate. However, adaptability transfers influence to interpreters, especially judges. People may agree on the written words while disagreeing about what they permit. Codification therefore provides a common starting point, rather than an automatic common answer.

Formal amendment changes the text. A new judicial interpretation changes its legal application without changing the text. Congress can also legislate within constitutional powers, and political practices can develop around the framework. These are different kinds of constitutional development: an ordinary statute or convention cannot simply override a binding constitutional requirement.

The three-branch framework

The first three articles allocate different core functions to Congress, the president and the federal judiciary. They establish a government with divided responsibilities rather than giving every power to one elected office.

These allocations also require interaction. The president negotiates a treaty, but the Senate's consent requires two-thirds of senators present. Congress declares war and provides funding, while the president is commander-in-chief. Neither statement means that one branch possesses every relevant power in foreign affairs.

The House has the power to impeach: it brings charges. The Senate tries impeachments, with conviction requiring two-thirds of members present. Impeachment itself therefore does not remove a president. A bill normally needs agreement in both chambers and presidential approval, while two-thirds in each chamber can override a veto. These rules provide the framework for the checks examined in the next lesson. Read the distinct allocations in Article I, Article II and Article III.