The US Constitution and its Relevance Today

In what ways do the principles and structure of government as outlined in the 1787 Constitution remain relevant in 2015?

The current Constitution of the United States is the oldest of the existing constitutions in the world, which is preserved almost unchanged until the present time. Constitutional amendments (the total number of which is 27) affect only certain parts of the constitutional mechanism created long ago. Along with the written constitution also exists and functions unwritten constitution, or “live” as it is usually called. Since formally current Constitution of 1787 contains only general principles, their concrete detailing was carried out without a formal change of the constitutional text in two ways: either by unwritten constitutional usages, or mainly through the adoption of relevant legislation, that is in the current legislation. Numerous and various regulations passed by Congress because of its legislative prerogatives, are by now major sources of American law.

Today currently operating (“live”) Constitution of the US is a synthesis of the constitutional text with a series of court cases that were built in the form of constitutional doctrines that give the Basic Law, difficult to formally change, flexibility and dynamism necessary for social maneuvers in a changing reality. Characteristically, in the field of interpretation of the Constitution, the Supreme Court to a lesser extent than in other areas of the law, adheres to the principle of precedent: it repeatedly, if it was required by the circumstances, refused to set out by itself earlier constitutional doctrines. During the 20th century, it openly reviewed 150 of these doctrines, in addition, many precedents have been modified and refined them through the practice of “differentiation”, when the old constitutional doctrine is not rejected, but corrected with regard to the new composition of the specific facts of life¹.

The powers of the President of the United States are secured a fairly wide scope, but without strict limits, which contributed to their actual steady increase. This evolution was not so much a change in the constitutional status of the President as to a change in its political content, which in some ways goes against even the Constitution. At the same time the presidential power may not turn into a personal dictatorship, as it is constrained by certain powers of the Congress and the Supreme Court. Amendments of the Constitution regarding presidential power, are affecting only questions about the election of the president and his assumption of office; any attempt to constitutional limits on presidential authority by Congress and the Supreme Court have not been taken. The real power of the president depends on the alignment of political forces in the country, and specifically - the ratio of party forces in Congress and the Supreme Court.

The position of the Constitution of 1797 is interpreted in the light of the 20th century. The key point of the doctrine of checks and balances is identified: none of the branches of government should become too powerful and go beyond their powers. Presidential veto, which was designed on a plan of the Founding Fathers of the US Constitution to prevent the adoption of bad laws and congressional encroachment on executive power, became the method of extension of President’ lawmaking.

A distinctive feature of the evolution of the presidency in recent times has been the expansion of not only the executive power assigned to him by the constitution, but also legislative powers. Under the Constitution, the legislative powers of the president are reduced to the right to legislation veto that follows from the principle of checks and balances. This right is used by the chief executive in recent times more active than in the era of the traditional presidency.

It is very difficult to overcome the presidential veto (it requires at least two-thirds of legislators’ voices). In the entire history of the USA congressmen managed to overcome only 2.5% of the presidential veto, which indicates the enormous potential of the president to influence the legislative process. But in recent times it has increased not so much a negative deterrent as a positive legislative power of the president. Many researchers believe that, in recent times namely the president of the United States became the main legislator of the country (the first such opinion was expressed by C. Rossiter)². Since the days of Roosevelt legislative initiative of the President gained institutionalized character, documented in a prescribed draft laws regularly sent to Congress. Also, since the Roosevelt dramatically increased the number and the role of the executive presidential decrees, which have the same binding as the laws of the Congress³.

The real creator of the modern presidency, researchers unanimously recognize Roosevelt. Roosevelt not only actively published presidential decrees immediately acquiring legal force, but also initiated all of any important legislation, then provided for the approval of Congress. Ruling of Roosevelt helped create a tradition called the legislative presidency⁴, and once and forever changed the ratio of legislative initiatives of the Chief of executive power and the Congress.

It should be stressed that the fundamental law of the United States was established in a new country, the territory of the former British colonies and have not seen the resistance of traditional structures that existed in these territories. The US originally was a country of immigrants, and this factor influenced their economic and political life. The United States is an example of a consciously undertaken reconstruction of the social system based on the principles of republicanism, democracy, federalism, separation of powers, together with the system of checks and balances, and intelligently combines a strong state power with a high degree of freedom of civil society⁵. A significant role in the development and adoption of the Constitution of the United States played a prominent statesmen - George Washington, D. Adams, Thomas Jefferson, Alexander Hamilton, J. Madison J. Each of these names is memorable for the Americans.

It should be noted that modern science is based on the fact that the Constitution of the United States of 1787 is the first act of a constitutional nature of the modern era. It marked the beginning of the development of constitutional law in the new time. But it is not so exactly, because on the North American continent at the time of the adoption of the US Constitution in 1787 in almost all 13 states, united in a federation, their own Constitutions operated. For example, in Massachusetts constitution was adopted in 1780, in New Hampshire - in 1784. The first constitution of Virginia was adopted in the summer of 1776. These constitutions contained all the main provisions, typical for this kind of acts, including a section on human rights, which was not in the federal constitution⁶. Nevertheless, we can assume that the US Constitution in 1787 embodied at the time of its adoption all the new ideas of the constitutional and legal thought of the time.

The US Constitution is characterized by logic and clarity of construction, laconic, without excessive detail. It consists of a preamble and seven articles divided into parts (sections). The preamble is not considered by American scholars and practitioners as a legal document. In their view, it contains purely political declarations that outline the time of the adoption of the constitution.

The first three articles establish the form of government: legislative (Congress consisting of the Senate and House of Representatives), the Executive (President) and judicial (the Supreme Court). Article 4 defines the relationship between states and between states and the federal government. Article 6 is close to it in meaning, as characterizes the nature and role of the Constitution as the “supreme law of the country”.

Article 5 provides for the procedure for additions and amendments to the Constitution, and the Article 7 - procedure for the Constitution enters into force after its ratification by nine states, i.e. ¾ of the 12 states (excluding refused to participate in the Convention of Rhode Island). In 1791, the Constitution was added by “Bill of Rights’ (amendments 1-10), which guarantees the democratic rights and freedoms.

A very peculiar constitutional norms are formulated. The Constitution not so much regulates the action of subjects of regulated relationships as specifies the scope and limits of the competence of an authority or public body. For example, Article 2 contains a list of issues on which Congress cannot make laws, that is, it cannot interfere to the scope of the subjects of the federation, or the sphere of interests of the individual. With regard to the President there are the prohibitions contained in the interference in the affairs of Congress or court cases. Thus are formulated rules on the protection of human rights, i.e. limits of the government power are established. Outside these limits, the person is free⁷.

Analysis of the content of the Constitution reveals the following principles governing the political system and the US system of government: the rule of law and the power of the people; Guarantees of rights and freedoms; the separation of powers, checks and balances; Federalism; possibility of amendments to the Constitution.

The US Constitution is characterized by high stability, which is largely predetermined by a particularly hard way to change it. It is changed by the adoption of the law on amendment of the Constitution. The procedure for amending the Constitution consists of two stages: its adoption at the federal level and the ratification by the states. As a result of these difficulties in two and a half centuries, as noted above, were made only 27 amendments (it was proposed more than 5 thousand amendments, Congress adopted 40 of them, the required majority of states ratified 27). Individual amendments are not of fundamental importance, as they are devoted to relatively minor issues, some introduce, and then cancel specific provisions (e.g. amendments XVIII and XXI enter and cancel the “dry law”). Of fundamental importance are the three “postwar amendments” adopted after the Civil War of 1861-1865. This is XIII Amendment (1865) on the recognition of former Negro slaves citizens of the United States and of the equality of rights of citizens, XIV Amendment (adopted in 1966, ratified in 1968) on racial and national equality of citizens, on the Prohibition of the deprivation of life, liberty, property, without due judicial process , the deprivation of the rights of certain officials for taking part in the rebellion, on some matters of public debt and XV Amendment (adopted in 1869, ratified in 1870) on the equality of electoral rights of citizens-men. Nineteenth amendment (adopted in 1917 and ratified in 1919) has granted voting rights to women, XXIV - prohibits deprivation of electoral rights for non-payment of taxes, XXVII - prohibits senators and House of Representatives to increase the size of their salary. Other amendments relate to the method of electing the president and senators, continuity of government in case of early termination of the powers the president, certain justice issues, etc. The amendments, as well as the constitution, have largely pragmatic character⁸.

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¹ Conlan Timothy J. et al., “The Rehnquist Court and Contemporary American Federalism”, Political Science Quarterly, Volume 116, Issue 2 (2001): 253-254.

² Kincaid, John, “Contemporary US Federalism: Coercive Change With Cooperative Continuity”, REAF, No6 (2008): 19-20.

³ Homes T. and Rae N., Governig America: History, Culture, Institutions, Policy (Manchester-New York, 1996).

⁴ Homes T. and Rae N., Governig America: 21.

⁵ Kincaid John F., “Devolution in the United States: Rhetoric and Reality. Paper prepared for the symposium on Rethinking Federalism in the EU and U.S.”, Kennedy School of Government, Harvard University, 19-21 April 1999: P 12.

⁶ Homes T. and Rae N., Governing America: History, Culture, Institutions, Policy (Manchester-New York, 1996): 42.

⁷ Kincaid John F., “Devolution in the United States: Rhetoric and Reality: 12.

⁸ Kincaid, John, “Contemporary US Federalism:11-12.