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1 - The nature of the US Constitution - Coggle Diagram
1 - The nature of the US Constitution
Vagueness
Necessary and proper clause
- Final clause of Article 1, Section 8 which empowers Congress to make all laws 'necessary and proper' to carry out the federal government's duties.
Reserved powers
- Powers delegated to the states and the people rather than the federal government.
Implied powers
- Powers possessed by the federal government by inference from those powers delegated to it.
Concurrent powers
- Powers possessed by both the state and federal governments.
Codification
Supremacy clause
- The portion of Article 4 which states that the Constitution, as well as treaties and federal laws, 'shall be the supreme law of the Land'
Enumerated (delegated) powers
- Powers delegated to the federal government under the Constitution. Generally these are enumerated in the first three articles.
Entrenchment
Entrenchment
- The application of extra legal safeguards to a constitutional provision to make it harder to amend or abolish.
The amendment process is described in Article 5.
An amendment can be proposed by either 2/3 of the House and Senate or by 2/3 of the state legislatures calling for a national constitutional convention.
An amendment is then ratified by either 3/4 of the state legislatures (38) or by ratifying conventions in 3/4 of the states.
The amendment process has several advantages and disadvantages.
Advantages
Super-majorities ensure against a
small majority being able to impose its will on a large minority
.
The lengthy and complicated process makes it less likely that the Constitution will be amended on a
merely temporary issue
.
It ensures that
both the federal and state governments
must favour a proposal.
It gives a
magnified voice to the smaller-population states
(through the Senate's role and the requirement for agreement of 3/4 of state legislatures).
Provision for a constitutional convention called by the states
ensures against a veto being operated by Congress
on the initiation of amendments.
Disadvantages
It makes it overly difficult for the Constitution to be amended, thereby
perpetuating what some see as outdated provisions
: for example, the Electoral College.
It makes possible the
thwarting of the will of the majority
by a small and possibly unrepresentative minority.
The lengthy and complicated process nonetheless
allowed the Prohibition amendment
to be passed (1918).
The difficulty of formal amendment
enhances the power of the (unelected) Supreme Court
to make interpretative amendments.
The
voice of small-population states is over-represented
.
The constitutional framework (powers) of the US branches of government.
Legislative Branch
Article 1
established Congress as the national legislature. Section 8 gave Congress specific powers, e.g. to "coin money" and "declare war".
Judicial Branch
Article 3
established the Supreme Court, though Congress quickly added trial and appeal courts.
Although not explicitly granted, the Court was to have the role of umpire of the Constitution.
This was implied in the
supremacy clause of Article 4
.
Article 3
itself stated that the Court's judicial power applies to
'all Cases... arising under this Constitution'
.
The court would make this more explicit in its landmark decision of
Marbury v Madison in 1803
.
Executive Branch
Article 2
vested all executive power in the hands of 'a President' who would be chosen indirectly by an Electoral College.