Growth of The US Constitution

Growth of The US Constitution. The Constitution as it emerged out of the Philadelphia Convention was a brief document consisting of a Preamble and seven Articles condensed into 89 sentences, Since then the Constitution has been steadily changing, developing, expanding and adapting itself to the new conditions.


The Framers knew that if the Constitution, was to endure, it must he a living Constitution capable of flexibility and adaptability to cater to the expanding needs of the people and the country. They did not try to reduce all details into writing but rather left room for the system to grow.

Chief Justice Marshall observed in McCullock v. Maryland:

A constitution is intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in ail future time, execute its powers, would have been to change, entirely, the character of the instrument,and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can best be provided for as they occur.

The American Constitution, as Bryce says, has necessarily changed as the nation has changed, has changed in the spirit with which men regard it, and therefore, in its own spirit. A written Constitution does not mean a set of clear-cut rules which inexorably control political authorities in the discharge of their public duties. It is,according to Charles Beard, a printed document explained by judicial decisions, precedents and practices and illuminated by understanding and aspiration. In short, the real Constitution is a living body of general prescriptions carried into effect by living persons.

The American Constitution is, thus, not the written fundamental instrument of the Federal Government framed at Philadelphia together with its amendments, it also includes statutes enacted by Congress, particularly those dealing with the Organization of the government and the Powers assigned to the agencies Congress has created; executive  end actions which enable the government to function efficiently the monumental decisions of the Supreme Court interpreting the Constitution and thereby affection, the powers and operations of the government; and the innumerable political habits and governmental usages which chisel the Constitution achieve the dynamic political purposes of the flourishing nation of fifty States.

Considered in that manner, the difference between the Constitution of the United States and of Britain remains only of a degree. Judge Cooley defined a Constitution as the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. And Woodrow Wilson described the Constitution as a vigorous taproot from which have evolved a vast constitutional system a system branching and expanding in statutes and judicial decisions as well as in unwritten precedent.

Development by Statutes:-

As said earlier, the Constitution is concise and brief and its makers left many matters to be determined by the Acts of Congress in order to complete the framework of government. The Judiciary Article (Article III, for example, states only that there shall be one Supreme Court, and such inferior Courts as Congress may from time to time ordain and establish. The Judiciary Act 1789 laid the foundation of the American judicial system, fixed the number of Judges of the Supreme Court and their salaries, provided for the Court’s organization, and set forth its jurisdiction. This Act has been amended from time to time.

Several times Congress has passed laws changing the number of Judges of the Supreme Court. Similarly, Article II of the Constitution assumes administrative departments, but says almost nothing about them. The elaborate Organization of the federal administration ha been established by statutes, with federal departments or independent agencies created, reorganization, or given new functions by Congress. Still more, nowhere does the Constitution prescribe the precise way in which minor officers of the Government are to be selected. Congress enact a civil service law providing for their appointment by competitive examinations.

Some of the manifold laws of Congress are so basic that they are more a part of the total Constitution than many of the written sentences the Presidency, and the o the death of Vice-President the officers Representatives shall be chosen member districts. The Act of 1887 fixes in detail the method of counting electoral votes, The Rules of Procedure and internal organization and practices of Congress itself are the result of Statutory authority.

After enumerating the various powers of Congress, the Constitution concludes with a sort of general grant empowering Congress to make all laws which it may deem necessary and proper for carrying into execution the jurisdiction assigned to it. This is sometimes called the elastic clause and many matters that Congress might not otherwise feel authorized to deal with have been covered under this provision.

In the same way, by broadly interpreting the Constitution Congress has established a huge defense establishment, created scores of administrative boards and bureaus, entered into the business of education, banking, insurance, construction, transporting, generating electric power, and found authority to regulate the economic and social life of a highly industrialized nation.

The policy of liberal interpretation was first adopted by Chief Justice Marshall and his associates, and with rare exceptions has been followed by the Court throughout its entire history. The Supreme Court has declared as a fixed principle that it will show great respect for the interpretations of Congress and will overrule them only when they are clearly and palpably wrong.

In Ogden v. Saunders the Supreme Court ruled :

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body in which any law is passed to presume in favor of its validity, unities its violation of the Constitution is proved beyond all reasonable doubt. Charles Beard is of the opinion that this axiom is often disobeyed and there would seem to be reasonable doubt when four Supreme Court Justices dissent from the Views of the majority, it is a canon of interpretation Which, if generally followed would eliminate many disputes over the meaning of the Constitution.

Development by Executive:-

Likewise, the nation’s Chief Executives have greatly helped to develop the Constitution by their decrees orders and actions. It Is no exaggeration that President Jackson, Lincoln, and both Roosevelt have had an impact of re Constitution at least equal to that of any Original framers. By their vigorous use of the Presidential powers they made the Presidency an Office of Legislative as well as Executive leadership.

In fact, a considerable number of political techniques in the United States rest on precedents set by one or another President. The Constitution is silent about the existence of the Cabinet and the President’s obligation to consult it. But Washington created one and began consulting it. This practice has been followed since then making the Cabinet an established organ of the government that meets ordinarily once a week.

The Constitution states that only Congress can declare war, but the Presidents have used their authority to send troops into action in such a way as virtually to assure the creation of a state of war. Woodrow Wilson did it and so did Franklin D. Roosevelt Constitutionally, all treaties must be approved by a two third majority of the Senate, but recent Presidents have often substituted executive agreements or gentlemen agreements for treaties made and concluded by themselves not requiring Senate approval and yet considered by the Supreme Court as binding.

Such power, the Court held, is inherent in the nature of the executive function. President Franklin D. Roosevelt assumed unprecedented powers manning the entire life of the nation during World War II, under his authority as Commander-in-Chief of the armed forces.

Various Presidents have asserted that they acted within their powers in sending armed forces anywhere in the world in order to protect the lives and property of the Americans without obtaining the approval of Congress. Franklin D. Roosevelt maintained that the Constitution was broad enough to justify a far reaching programme of recovery and reform.

Then, by statutes passed under the authority of the constitutional provisions, and regulations made thereunder it is determined how commerce is varied on, the process of the naturalization, the procedure and the methods of taking census, obtaining of patents and copyrights. Congress has also delegated to various executive official and administrative boards the power to supplement statutes by regulations and orders. These regulations are not laws but they have the force of law. The are as it were , the twigs on the branches which have sprung from the main is the Constitution.

Development by Interpretation:-

In The oft quoted observation made by Chief Justice Hughes lies the truth how the Constitutional system has developed through the Process of judicial interpretation. He said,

We are under the Constitution but the Constitution is what the judges say it is.

The Judges have to interpret the Constitution and the Constitution, like that of United States, written In Concise, general words and phrases often admits of varying interpretations. And to give a phrase a new interpretation is to give it a new meaning; and to give it a new meaning is to change it.

Almost every clause of the Constitution has been before courts and interpretations of the judges have virtually remade parts of the Constitution. The doctrines of implied powers, of inherent powers, of the sanctity of contracts and many other decisions of the Supreme Court stand unique in determining the course of government.

The Supreme Court vested the power of dismissal in the President excluding the Senate altogether, although in terms of the Constitution it shares with the President the power of appointment. The Constitution entrusts the Federal Government with power to control the means of communication and transport. The Supreme Court ruled that the means of communication embraced telegraphic, telephonic and air media communication. In the means of transport were included rail-road and airways.

A similar liberal interpretation was given to the armed forces broadening thereby the jurisdiction of the federal authority, The Constitution declares that Congress shall have power to regulate commerce. What is meant by the word commerce and what does it include, the Supreme Court has given it varied meanings to suit new situations and make it responsive ta new problems.

It has been the work of the Supreme Court, through its power of judicial interpretation, says Munro,

to twist and torture the term Commerce so that it will keep step with the procession.

Edwards S. Corwin stated in 1938 that, the Supreme Court has handed down not far from 30,000 opinions and of this total probably one-fourth at least comprises cases involving constitutional points.

It Means that by 1938 some 7,500 decision rendered by the Supreme Court involved interpretation of some part of the Constitution Or appealed some fundamental doctrine of the American constitutional system. The court has the last word, its declaration of meaning is final, unless and until some subsequent decision gives yet a different interpretation.

Thus, judicial interpretation has been the most important method of determining the meaning of the Constitution. Whatever is enacted by Congress and approved by the Supreme Court declared Howard Lee McBain, is valid even though to the rest of us it is plain violation of and unmistakable fiat of the fundamental laws. There is no limitation imposed upon the national government which Congress, the President, and the Supreme Court, acting in consecutive agreement, may not legally override. In this sense the government as a whole is clearly a government of unlimited powers; for by interpretation it stakes out its own boundaries.

It means that the Supreme Court’s the final arbiter on questions of constitutional interpretation and it determines what the Constitution relay means in the context of the new developments which emerge in the country. Woodrow Wilson maintained that the Supreme Court is a kind of constitutional convention in continuous session,constantly adjusting constitutional provisions to new circumstances.

It adapts the document of 1789 to a changed nation of 1991 and 2000. The Supreme court has, thus made the Constitution a living wing thing; has modernized it in each successive decade. And the Court’s power to do so has been brought about by any formal provision ca amendment, but by interpretation of the Court itself in the case of Marbury v. Madison in 1803.

Development by Usage :-

The Constitution has, also, considerably developed, expanded and modified by usages and customs. What habit is to the individual, usage is lo the State. Nations, like men, get into the habit of doing things in a given way. Habit then hardens into usage, which becomes difficult to change. These political customs and usages, which have their basis neither in laws nor in judicial decisions, are essential parts of the basic framework of the fundamental rules of the government. In act the Constitution has been greatly modernized, amended and democratized through the development of the unwritten rules. They make flexible the otherwise rigid Constitution.

The most notable example is the extra-constitutional development of the political parties. It is scarcely possible to conceive of the Federal or State government in the absence of political organizations. Yet the Constitution makes no provision of the political parties. It is, again, the political parties which bring about co-ordination between the Legislative and Executive branches, and the Presidential office has been made more responsible to the people.

Another example is that of the Cabinet which advises the President. There is no basis for this in the Constitution. The Congressional statutes have simply set up the departments from which the Cabinet members are drawn up. President Washington found it useful to have a small group of advisers to whom he could look for counsel and other Presidents have continued -with it and today, it is impossible to dispense with such a body. Senatorial courtesy, presidential nominating conventions, and other party activities, the residence requirements in the case of the Representatives all these rest, not upon the Constitution, but upon usage. Legislative Committees are not authorized in the Constitution, but custom and usage have made them as permanent as if they were.

A familiar example how a custom changes or supplements constitutional provisions is found in the procedure of electing the President. The Constitution makes a simple provision that he shall be elected by electors, chosen in their respective States. The Constitution-makers assumed that these electoral groups in the States would be actually deliberative bodies and that they would weigh the relative merits of each candidate before exercising their choice. But custom has rendered the Presidential election direct and nullified the intention of the Constitution makers, if not the spirit of the document itself. To cite another equally important example, the Constitution provides that Money Bills must originate in the House of Representatives, but Senate’s consideration of revenue measures by tradition is as much recognized as that of the House of Representatives.

President George Washington set precedent that the President should not seek election for more than two terms. This became a custom and was scrupulously followed till 1940 when Franklin D. Roosevelt sought election for the third time and was elected. He was elected for the fourth term as well. Under the stress of national emergencies and influenced by the dynamic personality of Roosevelt, the people succumbed to violation of the custom. But the popular opinion in the United States was so much in favor of the two-term election that eventually a constitutional amendment was made in 1951, limiting the tenure of office of the President to two terms.

The custom became a constitutional law and that shows the sanctity of customs. The growth of the American Constitution has, therefore, heavily depended upon customs and usages. Professor Beard makes a bold statement when he says that customs and usages in the American system of government form as large an element as it does in the British Constitution. This is, however, not exactly correct although customs have in some respect changed the basic characteristics of the American Constitution.

Growth by Amendment:-

The Constitution-makers prudently realized that future context of things and experience would need a change to foster the growth of the nation and, accordingly, they provided the process of the formal amendment of the Constitution. Article V provides.

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislature of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of the three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.

The process by which the Constitution is amended may be divided into two parts proposing an amendment (initiation or proposal of the amendment), and ratifying an amendment. There are two ways in which an amendment may be proposed:

  1. By a two-thirds vole of both Houses of Congress, or.
  2. By a national constitutional convention called by Congress upon request of the Legislatures of two-thirds of the States. It may be ratified.
  3. By the Legislatures of three-fourths of the States, or
  4. By special conventions in three-fourths of the States.

An amendment may be proposed by Congress, in which case it may be introduced in either House as a joint resolution, and must pass tn both the Houses separately by a majority of two-thirds vote, Or an amendment may be proposed by a national convention convened by Congress upon request of the Legislatures of two-thirds of the States.

Such a request might indicate a general nature of the amendment that is desired or it might simply ask that a convention be called for the purpose of revising the Constitution. Congress would then prescribe the number of delegates, mode of their election and the time and place of their meeting. But the difficulties inherent in this procedure have ruled it out as mode of initiating amendments to the Constitution. Therefore,all the amendments hitherto proposed have originated with Congress, that is, in accordance with the first method.

In whatever manner the proposal for amendments is initiated, Congress prescribes which of the two ratification procedures is to be followed

State Legislatures or state Conventions. State Legislatures have been used in all instances, except in the case of the Twenty-first amendment when Congress provided that State Conventions were to be used. When State Conventions are used, the Legislatures of each State decides on the size of the convention, how the delegates are to be elected, and the time and place of meeting.

Two limitations were written into the amendment clause (Article V) and both these limitations were considered essential to safeguard the political compromises of the Constitution.

These provided:-

  1. That no amendment prior to 1808 should affect the constitutional provisions barring federal interference with the slave trade or forbidding direct taxes not apportioned among the States according to population, and
  2. That no amendment should deprive a State of its equal representation in the Senate without the consent of the State concerned.

A few important observations with regard to the process of amendment may be noted. The relevant Article in the Constitution does not say anything on the following points:-

(i) What does two thirds of means; two-thirds of the total member each House of two-thirds of those Present and voting. The Supreme Court has rules two-thirds of those present and voting constitutional provision. This interprets to, prevailed and it now means two-thirds of members present.

(ii) It does not, also, say whether or not the action of Congress in voting to propose a constitutional amendment requires the assent of the President and Governors. The Supreme Court the held that amendment is solely a legislative function and the President amendments before they are sent to the state, a Nor do the State Governors need to sign instruments of ratification.

(iii) Can a State Legislature, which hash ratified the constitutional amendment, later before the necessary three-fourths has been obtained, rescind its previous decision? Congress by its resolution has declared that it cannot. But a State Legislature may, however, first refuse to ratify it and, then, at a later date may ratify it.

(iv) The Constitution does not fix any time limit within which the ratification must be completed. But Congress may do it on its own initiative as it was done in the case of the Eighteenth, Twentieth, and Twenty-first amendments and fixed seven years as the maximum time for ratification in each case. The Supreme Court has held that it is within the competency of Congress.

(v) Can a State Legislature, when a proposed amendment comes before it for ratification, refer it to the people for their approval has been held that it may be done provided the State Legislature itself takes formal action after the people have given their verdict. But a State Legislature, may not submit an amendment to be people for final decision, thereby abdicating & own powers. The Supreme Court has held that was neither within the constitutional power of National or that of the State governments to alter the methods of ratification which the Constitution itself prescribes.

(vi) Are there any limitations, express  implied, on the subject-matters of amendment The Constitution provides for only one constitution, that no State shall be deprived of its equal representation in the Senate without its consent. This limitation is designed to protect individuals States or a small group of them from story action by a dominant crates.  Legally, therefore, any provision of the Constitution, except for a State equality of representation, can be altered by amending the Constitution.

The process of amending the Constitution is difficult and circuitous a there had been only twenty six a span of two centuries since the Constitution became operative in 1789. The first ten amendments were the price of ratification and were embodied in 1791. The Constitution of 1789 was accepted by the States of Massachusetts, Virginia and New York on the definite assurance that a series of amendments guaranteeing individual rights would be speedily added to the original document. These amendments are called the Bill of Rights. The next sixteen amendments, the & the Constitution and, Consequently, Six amendments twenty-sixth ratified on July 5, 1971, brought about various alterations, deleting many provisions and adding new ones to fit in the needs of time and consistent with the of the people.

Following are some oft of criticism of the amendment procedure:-

1. The inconsistency of majority rule requiring two-thirds votes of both Houses of Congress and ratification by three-fourths States is really inconceivable. Even two-thirds votes of Congress are difficult to secure. So far, out of thousands of resolutions introduced in Congress only twenty-nine had mustered the necessary two-thirds votes of both Houses. Out of these twenty-six have been ratified by the necessary number of States and have become effective. It has been suggested that only a majority vote in both Houses of Congress and ratification by two thirds of States should be made necessary to effect constitutional amendments. But the proposal has not evoked sufficient enthusiasm.

2. For ratification, States rather population are required. It is asserted that this is too conservative a system, for thirteen small States may Poo! together and hold up the aspirations of an Overwhelming majority of population. This is tantamount to a veto of an absolute nature. In other words, about one-tenth of the people of the nation, distributed in the thirteen geographical districts, can prevent nine-tenths of the people political aspirations the important points from effecting innovations in their system of government.

3. The submission of amendments to Legislatures instead of to ratifying conventions has been criticized as undemocratic. It means that the ratification is to be effected by a relatively small number of persons who happen to be in the Legislatures. And these legislatures had been elected for other purposes than the issue involved in the constitutional amendment. This objection can be removed by providing for ratification through State conventions. When the Twenty first amendment was submitted to the ratification of State conventions it was hoped that a new precedent had been set and that in future this democratic method would continue to be followed. But when Congress in 1947 proposed the Twenty-second amendment, to limit the Presidential tenure, it reverted to the previous practice and submitted the amendment to state Legislatures for ratification.

4. Finally, there is and prescribed time limit for ratification unless specifically determined by a resolution of Congress as in the case of Eighteenth, Twentieth and Twenty-first amendments. Absence of such a prescription makes the issue a plaything of the States and indefinite delay takes away the purpose underlying the amendment.

For example, the child labor amendment was proposed by Congress in 1924 without specifying the time limit for ratification. So far only twenty-eight States have ratified it, the last one being Kansas inl1937. On one occasion Ohio ratified an amendment submitted 80 years earlier. Connecticut, Georgia and Mas sachusetts voted in 1939 to ratify the first Ten Amendments 150 years after they had been submitted to them for their ratification, although these constituting the Bill of Rights have been operative in those as in other States since 1791. On the whole the time required for ratification has been rather short, varying from three years and eleven months for the Twenty second Amendment to seven months for the Twelfth. The Twenty-third was ratified in nearly record-breaking time slightly over nine months.

Amendment is an integral part of the Constitution and the twenty-six amendments made to date have an equal influence on the American political life as any other factor that has contributed to the development of the Constitution. All the amendments, except the Twenty-Second, seem to have had direct or indirect democratizing tendency.

The expansion of suffrage and lowering the voting age, the direct election of Senators, the protection of individual rights, the social and economic implications of the graduated income tax and even the adjustments in Presidential elections and the dates of assuming office have all made some contribution to the conception of a government resting on as broad a basis of popular sovereignty as possible.

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