17.1.1 Vagueness of the document, codification and entrenchment.

Creation and Characteristics

• Creation: Drafted in 1787 by the Founding Fathers.
  • Characteristics: Entrenched, codified, combining specified and vague provisions.

Enumerated Powers

Clear Provisions

Certain powers are explicitly stated, such as:

• Declare war
• Regulate commerce
• Coin money (Article I, Section 8).

Tenth Amendment

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Implied Powers

Elastic Clause (Necessary and Proper Clause)

Examples of Implied Powers

Adaptability and Protection

Clear and implied powers enable adaptability, while the rigorous amendment process protects core principles, ensuring the Constitution remains relevant and robust in governing the United States.

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Ambiguities Leading to Interpretation

Judicial Review

The Constitution does not explicitly grant the Supreme Court the power of judicial review. This authority was established in Marbury v. Madison (1803), allowing the Court to interpret the Constitution and invalidate laws that contradict it.

Example of Vagueness

Example of Specificity

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Codification

Single Written Document

• Structure and Governance: Clearly sets out the structure of the government, including the separation of powers among the legislative, executive, and judicial branches.
• Institutional Authority: All government institutions derive their authority from the Constitution (e.g., Presidential powers outlined in Article II).

Amendments

• Subsequent Amendments: Only 17 additional amendments have been ratified since 1791, making a total of 27 amendments, including significant changes such as:
  • 13th Amendment (1865): Abolished slavery.
  • 16th Amendment (1913): Allowed the federal government to collect income tax.
  • 19th Amendment (1920): Granted women the right to vote.
  • 22nd Amendment (1951): Limited the President to two terms in office.

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Entrenchment

Difficult Amendment Process

• Stage 1 - Proposal:
  • Requires a two-thirds majority vote in both the House of Representatives and the Senate.
  • Alternatively, a constitutional convention can be called by two-thirds of state legislatures.
• Stage 2 - Ratification:
  • Requires approval by three-fourths of state legislatures or ratifying conventions in three-fourths of the states.

Resistance to Change

• High Thresholds: Over 11,000 amendments have been proposed, but the stringent requirements mean most fail to advance to the ratification stage.
• Example of Failed Amendments:

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Strengths and Weaknesses of Vagueness

Strengths

• Flexibility: Allows for adaptation to changing circumstances without the need for constant amendments.
• Broad Interpretation: Enables the government to address issues not foreseen by the Founding Fathers, such as modern technological advancements and contemporary social issues.
• Judicial Interpretation: Courts can interpret vague provisions to protect rights and maintain checks and balances.

Weaknesses

• Uncertainty: Vague language can lead to differing interpretations, creating legal uncertainty and inconsistencies.
• Judicial Activism: The judiciary's broad interpretative power can lead to accusations of judicial activism, where judges make policy decisions instead of merely interpreting the law.
• Political Conflict: Vague provisions can result in political conflict and gridlock, as different branches of government or political parties interpret the Constitution to suit their agendas.