Overview of the U.S.
An Introduction to American
Constitutionalism
By Wendy N. Duong, U.S.
B.S. Southern Illinois University
J.D., University
of Houston
LLM, Harvard
University
I. INTRODUCTION
Drafted in 1787 by the scholar-theorist
James Madison,[2] the U.S.
Constitution is as old as the history of the U.S.A, yet the document is considered "living" because it contains fundamental principles that are applied and lived
every day in the U.S.
It has seven articles and 27 amendments.
The U.S. Constitution has been studied, quoted, and used as a model by many
constitutional scholars around the world. As a document, it embodies the four areas that form the blueprint of America : law,
history, government, and culture:
1) A Document Of Law: The
Constitution is the supreme law of the land[3] and
establishes America
as a ‘rule of law” society: the rule of
law obliges both the individual and the government to submit to the supremacy
of the law.
2) A Document Of History: The Constitution
was the tool of America ’s founding
fathers to establish independent nationhood, and, hence, has co-existed with America ’s
more than 200 years of history;[4]
3) A Document Of Government And Political Philosophy: The Constitution establishes
a) “federalism” (i.e., a vertical division of powers between a national government and individual State sovereignties),[5] with
(b) “separation of powers” (i.e., a horizontal division of powers among the three branches of government: legislative, executive, and judiciary).
4) A Document Of Culture And
Society: The Constitution characterizes
the American culture as a society in which the people rule and decide for
themselves -- America’s Founding Fathers spoke the voice of the people to enumerate
and restrict the power of government and to assert their individual liberties
(this is the gist of the first 10 Amendments to the Constitution called the “Bill
of Rights,” also authored by Madison). What many Americans remember by heart is
the Preamble, which states in pertinent parts:
“We the People of theUnited States ,
in order to form a more perfect Union, establish Justice…and secure the Blessings
of Liberty to ourselves and our Posterity…do
ordain and establish this Constitution for the United States of America
“We the People of the
Thus, to understand American
constitutionalism, one must understand four concepts:
(i) Separation of Powers (the relationship between the three branches of government);
ii) Federalism (the relationship between the national government and the sovereign States);
(iii) the Doctrine of Judicial Review (the mechanism through which the Constitution is interpreted and upheld); and
(iv) the Bill of Rights (the relationship between the government and the individuals).
(i) Separation of Powers (the relationship between the three branches of government);
ii) Federalism (the relationship between the national government and the sovereign States);
(iii) the Doctrine of Judicial Review (the mechanism through which the Constitution is interpreted and upheld); and
(iv) the Bill of Rights (the relationship between the government and the individuals).
II. SUMMARY OF THE 7 ARTICLES AND THE 27 AMENDMENTS
--Article I establishes the
federal Legislative Branch.
--Article II establishes the
federal Executive Branch.
--Article III establishes
the federal Judicial Branch.
--Article IV contains, inter alia, the “Full Faith and Credit
Clause,” which requires that each State give full faith or credit to the laws and
records of other States. Article IV also has the “Privileges and Immunities
Clause,” which accords citizens of each State all Privileges and Immunities in other
states.[6] Article
IV was intended to overcome State provincialism and discrimination against out-of-state
individuals.[7]
--Article V provides the
process for amending the Constitution.
--Article VI contains, inter alia, the “Supremacy Clause,”
which establishes the Constitution (and treaties and federal law made
thereunder) as the supreme law of the land.
--Article VII requires ratification
by nine States for the establishment of the Constitution.
The amendment process outlined in Article V allows the Constitution
to perpetuate itself. An amendment to
the Constitution must be passed by two-thirds of both the House of
Representatives and the Senate, and must be ratified by three-fourths of the
States. The amendment process consists
of two steps:
• First, amendments may be
proposed by a two-third super-majority in both houses of Congress, or by a
special convention called by the legislatures of two-thirds of the States;
• Second, amendments must be ratified
by the legislatures of three-fourths of the States, or by Conventions in
three-fourths thereof. [8] The Constitution does not provide for the role
of the President in the amendment process.
