What Is a Constitutional Provision?

The Constitution of the United States is the law upon which all other American national laws are based, and for this reason, it’s considered a foundational law. Most nations have a constitution of some kind. Any law that has not been derived from statutory or common law, but instead is contained within the founding laws, is considered a constitutional provision.

Though a process exists to amend the Constitution, it’s fairly difficult to do so. The Founding Fathers wanted to maintain the rights and liberties outlined in the original document.

A constitutional provision is a specifically designated rule/law within a nation or state’s constitution. Provisions cannot be changed through court or common law, regardless of the circumstances that may arise. Instead, constitutional principles are a basic blueprint of how the country or state, governed by that constitution, will be run. If provisions are to be changed, they must undergo a specific process, which requires approval by both the U.S. Congress and ratification by the states.

Consider, for instance, the key provisions in the first article of the U.S. Constitution. These deal with legislative powers. Section 8, Clause 1, of the first article speaks to the right of Congress to collect taxes, duties, imports and excises. In addition, Congress is tasked with paying debts and providing for the common defense and the general welfare of the nation.

This is a key constitutional provision, and it cannot be changed or altered by a court of law unless the process outlined in the Constitution is followed. Regardless of which case law may arise that’s tangential to this provision, the facts of the provision itself will never be altered. Congress will always have the right to collect taxes, pay debts and provide for the common defense.

The Constitution outlines specific provisions for a variety of areas, including the establishment of the three major branches of the United States government. Article I of the Constitution establishes Congress, as well as its main powers. For instance, this provision allows for a House of Representatives and a Senate, and it allows them to regulate commerce with other nations. In addition, Article I affords Congress the right to create legislation for the entire country.

The constitutional provisions outlined in Article II establish the presidency and the executive branch. The president is authorized to serve as the Commander in Chief and to direct the military, as well as to grant pardons. Article III sets up the Supreme Court and the remainder of the judicial branch.

Article V of the Constitution is very important among constitutional provisions, as it outlines the procedures that must be followed to amend the Constitution. This Article states that, whenever two-thirds of the Congressional members agree, an amendment to the Constitution may be proposed. Once this has been passed, the amendment must be ratified by three-quarters of the legislatures of all the states in the nation.

In almost all situations, constitutional provisions cannot be amended, altered or removed. Some exceptions exist, however. According to this amendment process, specific rules must be followed as outlined in the Constitution itself.

For a constitutional provision to be amended, it must be approved (also known as ratified) by two-thirds of the Congress (in both the House and the Senate). Then, it needs to be ratified by the states. At least three-fourths of the states must agree to the amendment in a vote. The idea behind making the amendment process so difficult is to make it very difficult to change the foundational laws of the country.

The amendments to the Constitution, including the first 10, are collectively known as the Bill of Rights. These amendments cover issues like freedom of speech, freedom of the press and freedom of religion. Subsequent amendments to the Constitution deal with abolishing slavery, giving women the right to vote and the two-term limit for U.S. presidents. There are currently 27 amendments to the Constitution.

The number of constitutional amendments is fairly low, especially considering the age of the U.S. This is by design, however, since the aim is to maintain the constitutional provisions as outlined in the original document. The process to amend the Constitution is fairly lengthy and involved.

If you consider the history of constitutional amendments, the timeline for ratification is substantial. For instance, the 12th amendment to the Constitution, to establish a two-term limit for the U.S. president, was approved by Congress on March 21, 1947. It was not ratified by the states until almost four full years later, on February 27, 1951.

This pattern occurs with other amendments, as well. For instance, the 16th amendment to the U.S. Constitution was passed by Congress on July 2, 1909, but it was not ratified by the states until February 3, 1912. This amendment established the power to collect income tax without apportionment between states and without consideration of the census or population. By taking such a long time to pass amendments to the Constitution, the provisions of the original document have a better opportunity for maintenance.

When enforcing the Constitution, the U.S. Supreme Court plays a very important role. While Congress is granted the authority to pass laws, they must only pass laws that are in accordance with the provisions of the Constitution. Anything that contradicts a constitutional provision must be examined by Congress and an amendment proposed. Then, Congress must vote to approve the amendment, followed by a state ratification.

The Supreme Court has the checks-and-balances authority to declare an act of Congress unconstitutional if it violates a provision of this foundational document. In addition, the Supreme Court is tasked generally with enforcing and upholding the provisions of the Constitution.

The Constitution was written to limit government power and ensure the maintenance of liberty and individual rights. Those limits, of course, are only as good as the ability of the Supreme Court to enforce the Constitution and stop elected officials at all levels from overstepping boundaries. Along the same lines, maintenance of constitutional provisions to as great a degree as possible is critical. The amendment approval process is an essential aspect of an evolving nation, but amendments must be limited as outlined to maintain constitutional provisions as written.

While it’s the nature of the Constitution to serve as a guiding document for legislation and governing, its flexibility is also an essential aspect of its structure. Constitutional provisions were outlined in a particular way to achieve goals that the founders of the U.S. felt were important at that time. By allowing for amendments, they acknowledged there might be a need for change over time.

Some provisions of the Constitution have evolved over time by necessity. For instance, provisions that relate to suffrage have been changed to permit first, African-American men, and later, all women of majority age, to vote. It’s this ability to evolve as the nation grows and changes that gives the Constitution and its provisions such power.