constitutional amendment

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the American Constitution. 

This article has been published by Sneha Mahawar.


The United States Constitution, which was written in 1787, ratified in 1788, and has been in effect since 1789, is the world’s oldest surviving written charter of governance. Its opening three words, “We the People,” assert that the United States government exists to serve its people. Article I, which establishes a Congress consisting of a Senate and a House of Representatives, recognizes the people’s primacy via their chosen representatives. The Constitution’s placement of Congress at the start confirms its standing as the “First Branch” of the Federal Government. Congress was given authority for creating the executive and judicial departments, generating income, declaring war, and enacting any legislation necessary to carry out these responsibilities, according to the Constitution. The President has the power to veto individual legislative actions, but it is to be noted that two-thirds majorities in both Houses of Congress can overrule Presidential vetoes. The Senate is also required by the Constitution to advise and agree on critical executive and judicial appointments, as well as treaty ratification approval. This article helps the readers to understand the American Constitution and its associated aspects. 

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The American Constitution : an insight 

The American Constitution has been in effect for nearly two centuries because its founders were successful in separating and balancing governmental authorities in order to protect the interests of majority rule along with minority rights, liberty, equality, and federal and state governments. The Constitution has developed to suit the changing demands of a contemporary society dramatically different from the eighteenth-century world in which its architects lived. It is more of a brief declaration of national ideas than a comprehensive framework of political function. It is known as “the Law of the Land” because it forbids the government from violating citizens’ fundamental rights and civil freedoms as guaranteed by federal law. The Constitution has been revised 27 times till date, the most recent being in 1992. The Bill of Rights is made up of the first 10 amendments. 

The Articles of Confederation, which formed a “solid league of affection” between the States and placed most authority in a Confederate Congress, created the necessity for the Constitution. The Central Government, on the other hand, had very limited power that included conducting diplomacy and war, regulation of weights and measures, and was the last judge of inter-state conflicts. Crucially, it was unable to raise any fund on its own and was completely reliant on the States for all of its financial needs. Each State sent a delegation to Congress consisting of two to seven members, and they voted as a bloc, with each State receiving one vote. However, each significant action needed a unanimous vote, resulting in a government that was paralysed and ineffective. Invitations to a conference in Philadelphia to examine revisions to the Articles were sent to state legislatures in 1787, kicking off a campaign to amend the Articles. Delegates from 12 of the 13 states (Rhode Island did not send anybody) met in Philadelphia in May of that year to begin the process of reorganising government. The participants to the Constitutional Convention quickly began to work on crafting a new Constitution for the United States.

The Constitutional Convention

One of the main goals of the Constitution as created by the Convention was to create a government with sufficient ability to act on a national level without jeopardising basic rights. One approach to do this was to divide government authority into three parts and then place checks and balances on those powers to ensure that no one branch of government grew too powerful. The delegates’ fear stemmed mostly from their interactions with the King of England and his strong Parliament. The Constitution lists the authorities of each branch, with powers not delegated to them reserved for the states. Much of the debate, which was held in secret to ensure that all delegates had an opportunity to speak their thoughts, centred on the structure of the new legislature. The Virginia Plan, which allocated representation based on each state’s population, and the New Jersey Plan, which granted each state an equal vote in Congress, contended for the title of new government. The larger states favoured the Virginia Plan, while the smaller states preferred the New Jersey Plan. 

They eventually agreed on the Great Compromise (also known as the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population, the Senate would represent the States equally apportioned, and the President would be elected by the Electoral College. An independent judiciary was also part of the idea. The founders worked hard to develop a bond amongst the states as well. States must grant “full faith and credit” to the laws, records, contracts, and judicial processes of other states, while Congress has the authority to regulate how states share documents and define the extent of this phrase. States are prohibited from discriminating against people of other states in any form, and they are also prohibited from imposing tariffs on one another. States must also extradite criminal suspects to other countries for trial. 

The founders also established a procedure for amending the Constitution, which has been followed 27 times since its ratification. The process for making adjustments is fairly onerous in order to avoid arbitrary alterations. An amendment can be proposed by a two-thirds vote of both Houses of Congress, or by a convention called for that purpose if two-thirds of the states seek it. The amendment must next be passed by three-fourth of state legislatures or three-fourth of ratification conventions held in each state. Amendments have historically stated a time range in which this must be completed, which is usually a period of several years. Furthermore, the Constitution stipulates that no amendment can deprive a state of equal Senate representation without its assent. After deciding on the Constitution’s contents and wording, the Convention began the process of putting the document on paper. It was written in the hand of Gouverneur Morris, a Pennsylvania delegate whose role gave him considerable control over the punctuation of a few phrases in the Constitution. 

Framers of the American Constitution

Except for Rhode Island, the founding states jointly appointed 70 people to the Constitutional Convention. Richard Henry Lee, Patrick Henry, Thomas Jefferson, John Adams, Samuel Adams, and John Hancock were among those who declined or were unable to attend. Only 39 of the 55 delegates who attended the Constitutional Convention actually signed the document. The delegates varied in age from Jonathan Dayton, 26, to Benjamin Franklin, 81, who had to be brought to meetings in a sedan chair due to his infirmity.

Guiding principles of the American Constitution 

To comprehend the American Constitution’s purpose and significance, it is necessary to examine the concepts and causes that influenced its development in the first place. Individual rights, federalism, law and order, popular sovereignty, judiciary independence, the rule of law, and check and balances, which are included with the separation of powers of the Federal Government, are often referred to as the “guiding principles” in popular literature or scholarly textbooks.

Preamble to the American Constitution

The Preamble to the American Constitution reads as “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The American Constitution is introduced in the Preamble. Its magnificent words are the first words people see when they read the Constitution, and memorizing the Preamble is a standard practice among school children across the country while learning about the nation’s founding document. The reader is introduced to three key principles in the Preamble:

  1. The source of the Constitution’s enactment authority (that is the people of the United States),
  2. The Constitution’s overarching goals, which are ordained and established, and
  3. The founders’ desire for the Constitution to be a long-lasting legal document.

The Preamble was referred to as the key to the Constitution by James Monroe, a delegate to the Virginia ratifying conference, and Alexander Hamilton contended in The Federalist No. 84 that the Preamble obviates the necessity for a bill of rights. Despite this, the Preamble received little attention at the Constitutional Convention in Philadelphia, having been added to the document as an afterthought during the final drafting process.

Interpretation of the Preamble by the Supreme Court of the United States 

The Preamble was quoted by the Supreme Court of the United States in numerous major court cases over the years after the Constitution’s promulgation, although the Preamble’s legal weight was widely disclaimed. The Preamble, as observed by Justice Joseph Story in his Commentaries, can never be used to expand the powers vested in the general government or any of its agencies. In Jacobson v. Massachusetts (1905), the Supreme Court backed Justice Story’s interpretation of the Preamble, ruling that while the introductory paragraph of the Constitution indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded by the Court as the source of any substantive power conferred on the Federal Government. 

The Supreme Court had reasoned in United States Term Limits, Inc. v. Thornton (1995)  that allowing states to construct their own criteria for Congress would destroy the structure envisioned by the Framers of the Constitution and therefore the same should not be allowed. The Court highlighted that the Preamble’s aim to form a “more perfect Union” would get disbalanced if states are allowed to frame their own qualifications for Congress. 

The Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015 that the state’s redistricting procedure, which was established by a public initiative rather than a legislative act, was legally lawful. The Court therefore held that ‘We the People’ is the source of authority for the primary instrument of governance. In upholding a provision criminalizing some types of material assistance to terrorist groups, the Court used the Preamble’s wording asserting that the United States ordained and formed that charter of government in part to ‘provide for the common defence.’ 

Outside of court rulings, the Preamble appears to have had a greater effect in remarks from the leaders of the political arms of government, often factoring in numerous arguments over the nation’s early history. During debates in the First Congress over the constitutionality of the Bank of the United States, congressional leaders such as Massachusetts’ Elbridge Gerry cited the Preamble to emphasise the Constitution’s broad purposes and to justify the creation of a national bank to promote the general welfare. The Preamble was also discussed in early legislative discussions about the new government’s involvement in international affairs.

Preamble in recent times 

In recent years, the political branches have continued to look to the Preamble for guidance on broad constitutional principles rather than specific legal concerns. Representative Scott Garrett of New Jersey defined the Preamble to the Constitution as a condensed version of what the Founders intended in the Constitution and for the country, in a 2007 address on the House floor analyzing the current interpretation of the Preamble. In this line, President Ronald Reagan defined the Constitution’s Preamble and its opening words, “We the People,” as encapsulating America’s genius, optimism, and promise for all time and for all mankind. 

President Barack Obama described the Preamble as the vision of a true United States of America, bound together by a recognition of the common good, that guided the country through its darkest hour and helped it re-emerge as a beacon of freedom and equality under law. As a result, while the Preamble to the Constitution may carry little legal weight in a court of law and may not be decisive in resolving specific legal disputes before the political branches, it remains an important part of the national conversation about the country’s founding document, inspiring and fostering deeper understandings of the American system of government.

Articles of the American Constitution 

There are seven articles to the American Constitution which are provided hereunder: 

  1. Article I: Legislative Branch.
  2. Article II: Executive Branch.
  3. Article III: Judicial Branch.
  4. Article IV: Relationships Between the States.
  5. Article V: Amending the Constitution.
  6. Article VI: Prior Debts, National Supremacy, and Oaths of Office.
  7. Article VII: Ratification.

The Federal Government’s structure is defined by the Constitution, which includes laws and regulations that must be observed. This encompasses the legislative, executive and the judiciary branch, as previously stated. It also explains the individual and combined capabilities of each branch, minimizing needless authority thereby establishing the doctrine of separation of power. It further specifies that these branches are not to infringe on the rights of individuals or states. This is accomplished via the use of legally enforceable protocols that must be followed by all branches. 

The Constitution establishes the Federal Government’s organization as well as its functions and restrictions. Simply expressed, it establishes the rules by which the Federal Government must operate. It is a manual for what a government branch that holds offices inside those branches can perform. These laws and sets of norms must be followed by the President as well. This creates checks and balances, preventing one branch from overriding the Constitution or abusing authority.

Civil liberties and individual rights offered by the American Constitution 

Freedom of religion, freedom of expression, freedom of assembly, freedom of petition, and freedom of access to the media are among the civil freedoms guaranteed by the Constitution. This forbids the government from intruding on or penalising these liberties in an unconstitutional manner. Another significant justification for the separation of powers is that it allows citizens to criticize and confront government behaviour without fear of reprisal from any branch of government. Essentially, surviving a democratic country necessitates this. One of the fundamental aims of a Constitution is to promote democracy, which is prominently incorporated throughout the document.

The right to a public trial for a criminal charge, the right to own weapons, the right to dispute exorbitant bail or unusual punishment, and the right to question arrests and property seizures without a warrant are all guaranteed under the United States Constitution. Wrongful incarceration is one of the topics covered by these principles. Individual rights exist to protect individuals against government abuses of power and to ensure that all citizens have access to basic freedoms.


The ratification procedure outlined in the Constitution sparked a lot of discussion in the states. The Constitution would go into force after nine of the thirteen state legislatures had accepted it irrespective of unanimity. Two factions arose during the discussion over the Constitution,  

  1. The Federalists, who favoured adoption, and
  2. The Anti-Federalists, who opposed it. 

In what came to be known as the Federalist Papers, James Madison, Alexander Hamilton, and John Jay laid forth an impassioned justification of the new Constitution. The 85 articles that make up the Federalist Papers were published anonymously in the newspapers, the Independent Journal and the New York Packet under the name Publius between October 1787 and August 1788, and they remain an invaluable resource for understanding some of the framers’ intentions for the Constitution. The most well-known Articles are No. 10, which warns against factions and argues for a large republic, and No. 51, which outlines the Constitution’s structure, checks and balances, and how it protects people’s rights.

The States then began the process of ratification, with some states debating more passionately than others. On December 7, 1787, Delaware became the first state to ratify the treaty. The Confederation Congress had set March 9, 1789 as the date to begin functioning under the Constitution after New Hampshire became the ninth state to ratify on June 22, 1788. Except for North Carolina and Rhode Island, all states had ratified by that time. The Ocean State was the last to do so on May 29, 1790.

The Bill of Rights

  1. The lack of an enumeration of essential civil rights in the Constitution was a major issue of disagreement between the Federalists and the Anti-Federalists. Many Federalists contended, as in Federalist No. 84, that by accepting the Constitution, the people gave up no rights. However, the establishment of a bill of rights was a deciding factor in the ratification discussion in numerous states. 
  2. The Massachusetts Compromise was a compromise in which four states ratified the Constitution while also sending proposals for modifications to Congress. The Philadelphia convention scarcely considered a bill of rights, with most participants believing that individuals’ basic rights were protected by state constitutions. 
  3. A charter of rights, according to James Wilson, was unnecessary since all authority not specifically granted to the new government was reserved to the people. However, it was evident that the anti-federalists had the upper hand in this debate. Even Thomas Jefferson, who supported the new government in general, wrote to Madison that a bill of rights was “what the people are entitled to oppose every government on earth.”
  4. Madison, who was then a member of the United States House of Representatives, changed the language of the Constitution where he considered it was necessary. Several members of Congress, led by Roger Sherman, opposed, claiming that Congress had no jurisdiction to amend the Constitution’s text. As a result, Madison’s amendments were presented as a list of Article VII amendments. 17 amendments were passed by the House. The Senate approved 12 of them, and in August 1789, they were forwarded to the states for ratification. There were ten modifications adopted (or ratified). On December 15, 1791, the Virginia legislature became the last state legislature to ratify the amendments, doing so on December 15, 1791.

Evolution of the Bill of Rights by means of amendments 

  1. Amendment I: No legislation shall be passed by Congress respecting an establishment of religion or prohibiting its free practice, or abridging the freedom of speech or the press, or the right of the people to peacefully assemble and petition the government for redress of grievances.
  2. Amendment II: The right of the people to keep and bear arms shall not be infringed because a well-regulated militia is necessary for the security of a free state.
  3. Amendment III: In times of peace, no soldier should be quartered in any house without the owner’s agreement, and in times of war, only in a way allowed by law.
  4. Amendment IV: The people’s right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall be issued unless there is probable cause, supported by oath or affirmation, and specifically describing the location to be searched and the persons or things to be seized.
  5. Amendment V: No person shall be held to account for a capital, or otherwise infamous crime, unless on a grand jury’s presentment or indictment, except in cases arising in the land, naval, or militia forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subjected to being twice put in jeopardy of life or limb for the same offence, nor shall any person be compelled in any criminal case to be a witness against himself.
  6. Amendment VI: In all criminal prosecutions, the accused shall have the right to a speedy and public trial before an impartial jury of the state and district where the crime was committed, which district shall have been determined by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.
  7. Amendment VII: The right to a jury trial must be retained in common law proceedings where the value in question exceeds twenty dollars, and no fact tried by a jury shall be re-examined in any court of the United States other than pursuant to the norms of the common law.
  8. Amendment VIII: Excessive bail will not be necessary, nor will excessive penalties or harsh punishments be administered.
  9. Amendment IX: The inclusion of specific rights in the Constitution should not be regarded as a denial or disparagement of other rights held by the people.
  10. Amendment X: The powers not assigned to the United States by the Constitution, nor prohibited to the states by it, are reserved to the states or the people, respectively.

Amendments to the American Constitution 

In 1789, James Madison proposed 12 amendments to the First Congress. Ten of them would eventually form the Bill of Rights, as we know it today. One was never ratified, while the other, dealing with congressional pay, took until 1992 to become the 27th Amendment. The Bill of Rights, which was based on the Virginia Declaration of Rights, the English Bill of Rights, Enlightenment publications, and the rights described in the Magna Carta, contains rights that many people today regard to be important to America.

Amendments to the United States Constitution can be made in two ways, according to the Constitution. By a majority of two-thirds in each chamber, the United States Congress can enact a bill outlining a proposed amendment. Alternatively, a constitutional convention can be called by two-thirds of state legislatures, which will propose one or more changes. The latter has never happened before, and it’s unknown how such a convention would function. In either scenario, the amendments to the United States Constitution are only operative until they have been approved by three-fourth of the states. While on one hand some changes are ratified fast, on the other, the 27th Amendment which was introduced in 1792 but did not get final approval until 1992. 

The Equal Rights Amendment was presented in 1972, and 34 of the required 38 states approved it. However, campaigners were unable to get the last four states required for ratification, and the Congressionally mandated deadline for ratification was missed. The first ten amendments were quickly enacted, and the Bill of Rights was born. Following the Civil War, another set of amendments was drafted, which was to protect the rights of liberated slaves. There are presently 25 working amendments to the United States Constitution. There have been 27 ratifications in all, with the 18th being Prohibition and the 21st being the repeal of Prohibition.

Summarized version of the amendments 

  1. 1st Amendment (Ratified in 1791): Rights to Religion, Speech, Press, Assembly, Petition
  2. 2nd Amendment  (Ratified in 1791): Right to Bear Arms
  3. 3rd Amendment  (Ratified in 1791): Quartering of Soldiers
  4. 4th Amendment (Ratified in 1791): Search and Seizure
  5. 5th Amendment (Ratified in 1791): Grand Jury, Double Jeopardy, Self-Incrimination, Due Process
  6. 6th Amendment (Ratified in 1791): Rights of Accused in Criminal Prosecutions: Rights to Jury Trial, to Confront Opposing Witnesses and to Counsel.
  7. 7th Amendment (Ratified in 1791): Jury Trial
  8. 8th Amendment (Ratified in 1791): Protections against Excessive Bail, Cruel and Unusual Punishment.
  9. 9th Amendment ( Ratified in 1791): Non-Enumerated Rights
  10. 10th Amendment (Ratified in 1791): Rights Reserved to States.
  11. 11th Amendment (Ratified in 1795): Suits Against a State.
  12. 12th Amendment (Ratified in 1804): Election of President and Vice-President
  13. 13th Amendment (Ratified in 1865):  Abolition of Slavery and Involuntary Servitude.
  14. 14th Amendment (Ratified in 1868): Defines citizenship, bans governments from interfering with privileges and immunities, mandates due process and equal protection, punishes states for refusing the right to vote, and disqualifies Confederate officials and debts.
  15. 15th Amendment (Ratified in 1870): Voting Rights.
  16. 16th Amendment (Ratified in 1913): Federal Income Tax.
  17. 17th Amendment (Ratified in 1913): Popular Election of Senators.
  18. 18th Amendment (Ratified in 1919): Prohibition
  19. 19th Amendment (Ratified in 1920): Women’s Right to Vote
  20. 20th Amendment (Ratified in 1933): Commencement of Presidential Term and Succession.
  21. 21st Amendment (Ratified in 1933): Repeal of 18th Amendment (Prohibition).
  22. 22nd Amendment (Ratified in 1951): Two-Term Limitation on President.
  23. 23rd Amendment (Ratified in 1961): District of Columbia Presidential Vote.
  24. 24th Amendment (Ratified in 1964): Abolition of Poll Tax Requirement in Federal Elections.
  25. 25th Amendment (Ratified in 1967): Presidential Vacancy, Disability and Inability.
  26. 26th Amendment (Ratified in 1971): Right to Vote at Age 18.
  27. 27th Amendment (Ratified in 1992): Congressional Compensation


The basic function and purpose of the Constitution, which should go without saying, is to serve and protect the people of the United States. However, it contains a great deal more. It safeguards individuals from unjustified persecution, assists in the prevention of government tyranny by maintaining checks and balances within the federal government, and explicitly states the laws that govern the government. Individual and state rights are protected by the Constitution, which limits the federal government’s engagement to the bare minimum. Furthermore, the United States Constitution establishes citizens’ expectations as well as citizenship criteria. Thus what can be inferred from the above discussion is that the American Constitution is indeed one such Constitution to look up to and seek inspiration from. 


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