The Nature of the US Constitution

Paper 3: Comparative Politics  |  Component 3A: The US Constitution and Federalism  |  Specification reference: 9PL0/3A

“But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.”

James Madison, Federalist No. 37 (1788)

Madison wrote those words while trying to persuade sceptical states to ratify (formally approve) the new Constitution in 1787 and 1788. He was defending, not apologising for, the fact that a written constitution could never spell out every rule with total precision. Almost two and a half centuries later, that same vagueness is still doing real constitutional work.

This document introduces the nature of the US Constitution: its vagueness, its codification (being set out in a single written document) and its entrenchment (being deliberately difficult to change). It then covers the constitutional framework of powers given to the three branches of federal government, and the formal amendment process set out in Article V.

Introduction to the course

Paper 3 of the Edexcel A-level in Politics (specification 9PL0) is called Comparative Politics. Students who study the USA option sit paper 9PL0/3A, a two-hour examination worth 84 marks. It counts for one third of the overall A-level grade, the same weighting as each of the other two papers.

The paper has three sections. Section A offers a choice between two source-based questions, of which you answer one. Section B contains a single compulsory question. Section C offers a choice of two essays from three options, including a 24-mark question that draws on all three assessment objectives: AO1 (knowledge and understanding), AO2 (analysis) and AO3 (evaluation).

Component 3A covers five topics: the US Constitution and federalism, the US Congress, the US presidency, the US Supreme Court and civil rights, and comparative theories linking the USA to the UK institutions studied in Component 1. This document begins that course with the first sub-topic, the nature of the Constitution.

You will notice comparative questions in this document, asking you to set the USA alongside the UK. At this early stage, you are not expected to use formal comparative theories, such as the rational, cultural and structural approaches, since these are taught later in the course as their own topic. For now, simply compare the two systems directly, using what you already know about the UK from Component 1.

Overview of and background to the structure of US government

Delegates from twelve of the thirteen states met in Philadelphia in the summer of 1787 to revise the failing Articles of Confederation. Instead, they wrote an entirely new Constitution. James Madison played such a central role in drafting it and defending it afterwards that he is often called the “Father of the Constitution”.

The Constitution was ratified by the states through 1787 and 1788 and took effect in 1789. It created a federal system, meaning that power is legally divided between a national government and individual state governments, each with its own sphere of authority.

At the national level, the Constitution establishes three separate branches: Congress (the legislature, Article I), the presidency (the executive, Article II), and the Supreme Court and federal judiciary (the judicial branch, Article III). This structure rests on two related principles: the separation of powers, meaning each branch has distinct personnel and functions, and checks and balances, meaning each branch can restrain the other two.

Figure 1: the three branches of federal government and the core checks each holds over the other two.

Key terms Codification: setting out a constitution’s rules in a single authoritative written document, rather than leaving them scattered across statutes, conventions and common law. The US Constitution has been codified since 1787. Entrenchment: making a constitution deliberately difficult to amend or repeal, usually by requiring a higher threshold than a simple majority. Article V entrenches the US Constitution by requiring supermajorities (thresholds higher than 50% plus one, such as two-thirds) at both the proposal and ratification stages. Vagueness: the use of broad, open-ended or ambiguous language in a constitutional text, which leaves room for later interpretation. The phrase “necessary and proper” in Article I is a well-known example. Judicial review: the power of the courts to strike down a law or executive action that conflicts with the Constitution. The Supreme Court established this power for itself in Marbury v Madison (1803).

  Vagueness, codification and entrenchment

The US Constitution is a codified document. Its original text, ratified in 1788, ran to roughly 4,500 words: a Preamble followed by seven Articles. It has since been extended by 27 Amendments, the first ten of which, ratified together in 1791, are known as the Bill of Rights.

Codification gives the Constitution a clear, singular status as the “supreme Law of the Land”, a phrase taken directly from Article VI. Any federal or state law that conflicts with it can, in principle, be struck down by the courts through judicial review.

The Constitution is also heavily entrenched. Article V requires a proposed amendment to pass by a two-thirds majority in both the House of Representatives and the Senate. Alternatively, it can be proposed by a national convention called at the request of two-thirds of state legislatures, a route never yet used. It must then be ratified by three-quarters of the states, currently 38 of 50.

This is a genuinely high bar. According to the Congressional Research Service, close to 12,000 measures to amend the Constitution were introduced in Congress between 1789 and January 2025. Only 27 have ever been ratified.

Alongside codification and entrenchment sits vagueness. Much of the Constitution’s text is written in broad, open-ended language rather than precise rules, something Madison defended in Federalist No. 37 as an unavoidable feature of political language. This vagueness gives the document flexibility that a more detailed text would lack, but it also hands considerable interpretive power to the Supreme Court.

Vague phraseWhere it appearsWhy it is open to interpretationExample of Supreme Court interpretation
“Necessary and proper”Article I, Section 8Does not define how closely a law must relate to an enumerated powerMcCulloch v Maryland (1819): the Court read the clause broadly, allowing Congress to charter a national bank
“Commerce among the several states” (the Commerce Clause)Article I, Section 8Does not define the boundary between interstate and purely local commerceWickard v Filburn (1942): the Court read “commerce” broadly enough to cover wheat grown for a farmer’s own use
“Cruel and unusual punishments”Eighth Amendment (1791)Provides no fixed definition, so standards can shift over timeRoper v Simmons (2005): the Court ruled that executing offenders who were under 18 at the time of their crime is cruel and unusual
“High crimes and misdemeanors”Article II, Section 4Does not list which offences count as impeachable (chargeable, as part of the formal process for removing a president from office)Left to Congress’s own political judgement in each of the four impeachment votes held so far, against three different presidents

Table 1: examples of deliberately vague constitutional language and how the Supreme Court has interpreted it.

These examples show a clear pattern in how vagueness operates within the Constitution.

AnalysisEvaluation
Codification fixes the words of the Constitution on the page.Entrenchment then makes those words hard to change formally, through the difficult Article V process.Vagueness gives the Supreme Court room to update the Constitution’s meaning informally, through judicial review, without any change to the text itself.This combination has let a very short, largely eighteenth-century document survive almost unchanged for over two centuries, longer than most national constitutions written since.However, this stability comes at a cost: the Constitution’s real-world meaning now depends heavily on the ideological balance of an unelected Supreme Court.Critics argue this makes the Constitution’s meaning less democratically accountable than it appears on paper.
Check your understanding 1. Define codification and entrenchment in your own words, using one example of each from the US Constitution. You could: anchor each definition in Article V and the 1788 ratification date given above, rather than defining the terms in the abstract. 2. Explain how vagueness in constitutional language increases the political importance of the Supreme Court. You could: use one row from Table 1 above, such as McCulloch v Maryland or Roper v Simmons, to show the causal link between a vague phrase and a specific judicial ruling. 3. Compare the way the US Constitution uses deliberate vagueness with what you already know about the flexibility of the uncodified UK constitution. Which system gives judges more power to shape constitutional meaning, and why? You should: reach a clear judgement rather than just listing differences. UK flexibility comes mainly from Parliament being able to legislate freely, while US flexibility comes mainly from judicial interpretation of a fixed text; decide which form of flexibility hands more power to unelected judges.
Key terms Enumerated powers: the specific powers explicitly written down in the Constitution’s text. Congress’s enumerated powers are listed mainly in Article I, Section 8, and include the power to levy taxes, coin money and declare war. Implied powers: powers that are not written down explicitly but are considered reasonably necessary to carry out an enumerated power. These are drawn from the Necessary and Proper Clause (also called the elastic clause) at the end of Article I, Section 8. Necessary and Proper Clause: the clause giving Congress power to make all laws “necessary and proper” for carrying out its enumerated powers. The Supreme Court interpreted it broadly in McCulloch v Maryland (1819). Separation of powers: the constitutional principle that legislative, executive and judicial power are held by three distinct branches with different personnel. Checks and balances: the mechanisms that allow each branch to restrain the actions of the other two, for example through the presidential veto or Senate confirmation of appointments.

  The constitutional framework: powers of the branches of government

The Constitution gives each branch a defined set of enumerated powers, but it also leaves room, through the Necessary and Proper Clause, for Congress to exercise implied powers. This distinction between what is written down and what is inferred from it sits at the heart of debates about federal power.

BranchArticleKey enumerated powersA significant implied or contested power
CongressArticle ILevy taxes, borrow money, regulate interstate and foreign commerce, declare war, raise and support armies, coin moneyImplied power to charter a national bank, upheld in McCulloch v Maryland (1819) via the Necessary and Proper Clause
The presidencyArticle IIServe as commander-in-chief (head) of the armed forces, make treaties (with Senate consent), nominate federal judges and officials (with Senate confirmation), grant pardons for federal offencesClaimed power to issue executive orders directing federal policy, a power not explicitly listed in Article II
The Supreme Court and federal judiciaryArticle IIIDecide cases arising under the Constitution, federal law and treaties; try disputes between statesImplied power of judicial review, the ability to strike down unconstitutional laws, established by the Court itself in Marbury v Madison (1803)

Table 2: enumerated powers of the three branches of federal government, and a significant implied power exercised by each.

This table highlights an important feature of the constitutional framework: two of the three branches’ most significant powers, the national bank power and judicial review, are not written into the constitutional text at all.

AnalysisEvaluation
Enumerated powers give the constitutional framework a fixed core that all three branches can point to.
Implied powers, developed mainly through the Necessary and Proper Clause and judicial review, then let that core expand to meet situations the Founding Fathers never anticipated, from central banking to social media regulation.
This flexibility has kept the federal government able to function in a modern economy the Founding Fathers could not have imagined.
Yet it has also let presidential and congressional power grow well beyond what Article I and Article II describe on paper.
This raises a real question: do checks and balances still restrain the branches as intended, or have implied powers quietly hollowed them out?
Check your understanding 1. Explain the difference between an enumerated power and an implied power, using one named example of each. You could: take your enumerated power example directly from Article I, Section 8, and your implied power example from the Necessary and Proper Clause discussion above. 2. Explain how McCulloch v Maryland (1819) and Marbury v Madison (1803) each expanded the practical power of a branch of government beyond its enumerated powers. You could: deal with the two cases in turn, naming the branch strengthened by each ruling and the specific power it established. 3. Compare the way power is granted to the executive branch under the US Constitution with the source of executive power in the UK, where the Prime Minister’s authority rests heavily on convention and royal prerogative rather than a codified text. Which system constrains the executive more tightly, and why? You should: contrast a codified, enumerated source of power (Article II) with an uncodified, convention-based one, then reach a judgement about which is easier for courts, Congress or Parliament to check in practice.
Key terms Proposal: the first stage of the Article V amendment process, achieved either by a two-thirds vote in both houses of Congress (the method used for all 27 existing amendments) or by a national convention called at the request of two-thirds of state legislatures (a method never yet used). Ratification: the second stage of the Article V process, in which states approve an amendment either through their state legislatures or through specially elected ratifying conventions. The convention method has been used only once, for the Twenty-first Amendment (1933, ending Prohibition, the nationwide ban on alcohol).

  The amendment process: Article V

Article V sets out the only formal route for changing the words of the Constitution. It splits the process into two stages, proposal and ratification, and each stage can happen in one of two ways.

Figure 2: the two stages of the Article V amendment process, showing which routes have actually been used.

StageMethodThreshold requiredHow often used
ProposalVote in CongressTwo-thirds majority in both the House of Representatives and the SenateUsed for all 27 ratified amendments
ProposalNational conventionCalled if requested by two-thirds of state legislatures (34 of 50)Never used
RatificationState legislaturesApproval by three-quarters of state legislatures (38 of 50)Used for 26 of the 27 ratified amendments
RatificationState ratifying conventionsApproval by three-quarters of specially elected state conventions (38 of 50)Used only once, for the Twenty-first Amendment (1933)

Table 3: the four possible routes through the Article V amendment process.

The figures in Table 3 show just how narrow the realistic route through Article V actually is.

Advantages of the formal amendment process

Disadvantages of the formal amendment process

AnalysisEvaluation
The formal amendment process protects the states and political minorities by requiring broad, supermajority consent for constitutional change.This is exactly what entrenchment is designed to do, but it also explains why the Constitution has been amended so rarely compared with how often it has been proposed.If a constitution’s purpose is stability and protection from short-term majorities, Article V‘s difficulty is a success: the core 1787 structure has survived major social and economic change.But if a constitution’s purpose is to let society’s changing attitudes be reflected in the text, the process looks far less successful.The repeated failure of amendments such as the Equal Rights Amendment suggests it has become too difficult to use as the Founding Fathers may have intended.
Check your understanding 1. Outline the two stages of the Article V amendment process and the possible methods for each. You could: use Table 3 above to structure your answer stage by stage, noting which route has actually been used in practice. 2. Explain two disadvantages of the formal amendment process, using named examples of amendments that failed to be ratified. You could: choose two examples from the disadvantages list above, such as the Equal Rights Amendment and the Flag Desecration Amendment, and explain what specifically stopped each one. 3. To what extent is the US Constitution harder to amend formally than the UK constitution? Compare the supermajority and state-ratification requirements of Article V with how the UK constitution can be changed. You should: note that most of the UK constitution can be changed by a simple Act of Parliament passed by a simple majority, then use this contrast to reach a judgement on which system better balances stability against the ability to reflect change.

  Extension activities

The tasks below go beyond what is required for the exam, but they are good preparation for the synoptic (drawing together several topics you have studied), comparative questions that appear in Section C of Paper 3.

Extension activity: separation of powers and checks and balances diagram Design a labelled diagram showing the three branches of federal government and the checks each one holds over the other two. Use at least three recent, real-world examples to illustrate the checks in action, rather than describing them only in the abstract. Recent event (2025-2026) Branches involved Check being exercised Trump v. Barbara (30 June 2026): the Supreme Court ruled Donald Trump’s executive order restricting birthright citizenship (the rule that anyone born on US soil automatically becomes a citizen) unconstitutional Judiciary vs Executive Judicial review of an executive order against the Fourteenth Amendment Learning Resources, Inc. v. Trump (20 February 2026): the Supreme Court ruled that the International Emergency Economic Powers Act (IEEPA) does not let the President impose tariffs (taxes on imported goods) Judiciary vs Executive, with Congress’s taxing and commerce powers also at stake Judicial review restraining a claimed executive power over trade policy Trump v. Slaughter (29 June 2026): the Supreme Court struck down legal protections for independent agency heads (officials who run regulatory bodies partly shielded from direct presidential control), letting the President remove the head of the Federal Trade Commission Judiciary and Executive vs Congress A check being loosened, showing the balance of power can shift in the executive’s favour as well as against it   Add a fourth example of your own from your independent reading, and try to include at least one instance where a check failed or was weakened, not just one where it succeeded. Further reading: Trump v. Barbara, official Supreme Court opinion (supremecourt.gov)
Extension activity: comparing the US and UK constitutions The nature of the UK constitution is covered in detail elsewhere in this course, but it is worth starting to compare the two systems now, since Section C of Paper 3 regularly asks synoptic, comparative questions. Codification: the US Constitution is codified; the UK constitution is uncodified, drawn from statute, common law, convention and authoritative works.Entrenchment: Article V entrenches the US Constitution; the UK constitution has no equivalent single entrenching mechanism, since Parliament can, in theory, change any part of it by a simple majority.Source of authority: the US Constitution derives its authority from popular ratification by the states in 1787 and 1788; the UK constitution rests on the principle of parliamentary sovereignty. A note on wording: earlier in this document, “convention” meant a formal assembly (as in a ratifying convention). In UK politics, “convention” usually means something different: an unwritten constitutional rule that is followed by tradition rather than law. Keep the two meanings separate when you compare the two systems. Using the three prompts above as a starting point, produce your own two-column comparison table of the nature of the US and UK constitutions. Add a short paragraph reaching a judgement on which is more effective at balancing stability with the ability to adapt. Further reading: House of Commons Library briefing, Parliamentary sovereignty (commonslibrary.parliament.uk)
Extension activity: profiling a failed amendment Below is a worked example profiling one amendment that passed Congress but failed to be ratified: the Flag Desecration Amendment. Use the same format to profile either the Equal Rights Amendment or the Balanced Budget Amendment as your own extension task. Year Event 1989 In Texas v Johnson, the Supreme Court ruled 5 to 4 that burning the US flag as a form of political protest is protected speech under the First Amendment. 1989 Congress responded with the Flag Protection Act, an ordinary statute attempting to ban flag burning. 1990 In United States v Eichman, the Supreme Court struck down the Flag Protection Act on the same First Amendment grounds, confirming that only a constitutional amendment could override the ruling. 1995-2005 Versions of a Flag Desecration Amendment passed the House of Representatives several times, but repeatedly failed to reach the two-thirds threshold in the Senate. 2006 The Senate voted 66 to 34 on the amendment, one vote short of the two-thirds majority needed to send it to the states.   Research the key legal or political turning points, the congressional votes, and any recent developments for either the Equal Rights Amendment or the Balanced Budget Amendment, and present them in the same Year / Event format. Then write a short paragraph explaining what your chosen amendment’s failure reveals about the advantages and disadvantages of the Article V process discussed earlier in this document. Further reading: Congress.gov record of S.J.Res.12, the Flag Desecration Amendment, 109th Congress (congress.gov)

  Reaching a judgement: how effective is the constitutional framework of the USA?

Madison’s warning in Federalist No. 37, that no language could ever be precise enough to remove all doubt, has proved remarkably accurate. Vagueness, far from weakening the Constitution, has arguably been one of the main reasons it has lasted since 1789 without a full rewrite.

The case for the current constitutional framework

The case against the current constitutional framework

Reaching a judgement

AnalysisEvaluation
Vagueness, codification and entrenchment do not all pull in the same direction.Codification and entrenchment fix the Constitution’s core structure in place, while vagueness quietly lets its meaning evolve underneath that fixed structure, mainly through the Supreme Court rather than through Article V.On balance, this combination has given the United States one of the most durable constitutional frameworks in the world.However, durability has come at the cost of formal responsiveness.When society has wanted rapid, clearly-mandated change, such as guaranteeing equal rights for women, the formal process set out in Article V has consistently proved too difficult to use.
Check your understanding 1. Summarise, in no more than five bullet points, the key features that give the US Constitution its distinctive nature. You could: draw one bullet point from each of the three main sections of this document: vagueness/codification/entrenchment, the framework of powers, and the amendment process. 2. Evaluate the claim that vagueness is more important than codification in explaining why the US Constitution has survived for so long. You should: define both terms briefly, present evidence for and against the claim from this document, and reach a clear judgement rather than presenting both sides with no conclusion. 3. ‘The US Constitution’s amendment process is its greatest weakness.’ To what extent do you agree, when compared with the flexibility of the UK constitution to adapt to changing circumstances? You should: weigh the advantages and disadvantages of Article V covered above against the ease with which the UK constitution can be changed by Parliament, then reach an explicit judgement rather than simply listing similarities and differences.

  Sources

Primary sources

US Constitution, Articles I, II, III, V and VI, and Amendments I, VIII, XIV, XIX, XXI, XXVI and XXVII.

James Madison, Federalist No. 37 (1788).

Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803).

McCulloch v Maryland, 17 U.S. (4 Wheat.) 316 (1819).

Wickard v Filburn, 317 U.S. 111 (1942).

Roper v Simmons, 543 U.S. 551 (2005).

Texas v Johnson, 491 U.S. 397 (1989).

United States v Eichman, 496 U.S. 310 (1990).

Trump v. Barbara, No. 25-365 (US Supreme Court, decided 30 June 2026, US Reports citation not yet assigned).

Learning Resources, Inc. v. Trump, No. 24-1287 (US Supreme Court, decided 20 February 2026, US Reports citation not yet assigned).

Trump v. Slaughter, No. 25-332 (US Supreme Court, decided 29 June 2026, US Reports citation not yet assigned).

Secondary sources

Pearson Edexcel, Specification: A level Politics (9PL0).

Congressional Research Service via Congress.gov, Proposals to Amend the U.S. Constitution: Fact Sheet (R47959).

Congress.gov, S.J.Res.12, 109th Congress (2005-2006).

US National Archives, Statement on the Equal Rights Amendment Ratification Process (2025).

NPR, Biden says the Equal Rights Amendment is law. What happens next is unclear (17 January 2025).

NPR, Flag burning amendment comes up short in Senate (28 June 2006).

The Washington Post, Budget Amendment Barely Loses in Senate (5 March 1997).

SCOTUSblog, Supreme Court strikes down Trump’s order ending birthright citizenship (30 June 2026).

US Supreme Court, official opinions (supremecourt.gov), Trump v. Barbara, Learning Resources, Inc. v. Trump, and Trump v. Slaughter.

House of Commons Library, Parliamentary sovereignty, research briefing CBP-10377.

National Constitution Center, Article V interpretation resources.