Constitution of the United States
Constitution of the United States, system of fundamental
laws of the United States of America. The Constitution was drawn up by 55
delegates to the Constitutional Convention in Philadelphia during the summer of
1787 and ratified by the states in 1788. The Constitution defines distinct
powers for the Congress of the United States, the president, and the federal
courts. This division of authority is known as a system of checks and balances,
and it ensures that none of the branches of government can dominate the others.
The Constitution also establishes and limits the authority of the federal
government over the states and spells out freedoms and liberties for U.S.
citizens.
II |
|
FORCES THAT SHAPED THE
CONSTITUTION |
In 1774 the Parliament of Great Britain capped a series of abuses
against the American colonies by imposing a tax on tea imports to the colonies.
The colonies quickly agreed to convene a Continental Congress, which in 1776
appointed two committees—one to draft the Declaration of Independence and the
other to prepare a “form of confederation” among the colonies. In 1778 this
second committee produced the Articles of Confederation. They took effect in
1781 when Maryland, the last holdout state, ratified them.
The Articles of Confederation established a league of friendship
among the states, but not a political union. Each state remained separate and
sovereign (under self-rule). The central government consisted of a one-chamber
Congress, in which each state had a single vote. Congress had few powers,
lacking even the authority to impose taxes. Any congressional action required
the approval of 9 of the 13 states. The government had no president and no
central court.
As a result, Congress in the 1780s could not deal with serious
national problems, such as the repayment of about $40 million in domestic debt
and $12 million in foreign debts incurred during the American Revolution
(1775-1783). States also incurred about $25 million in debt during the war.
Small creditors, including soldiers who had lent money to the revolutionary
cause, were starved for cash because the states were slow to repay. Many of
these creditors were forced to sell their repayment notes to speculators at
greatly reduced values, and the states feared mob violence. A depression in the
mid-1780s threatened farmers in many states with foreclosures of their
properties and jail.
In May 1786, delegates from each state were called to a trade
convention in Annapolis, Maryland, to find common ground on waterway navigation
rights and other issues. Only fives states sent delegates, and they decided to
postpone any action. Before adjourning, the delegates in attendance asked their
state legislatures to call a national convention to meet in Philadelphia the
following May to investigate “important [government] defects … of a nature so
serious as … to render the situation of the United States delicate and
critical.”
Later in 1786 and in 1787, poor farmers led by Daniel Shays stormed
several courthouses and tried to seize a federal arsenal. Local militias
suppressed the uprising, known as Shays’ Rebellion, but it sent tremors through
the 13 states. Some legislatures began to enact laws relieving debtors of their
debts, which angered many wealthy creditors. States with good seaports took
advantage of merchants in other states by imposing large import and export
taxes. These and other problems required national solutions that neither the
states nor the Confederation Congress had the political will to confront. The
continuing crisis and the threat of further rebellions spurred the states to
call a convention to revise the Articles of Confederation.
III |
|
THE CONSTITUTIONAL CONVENTION |
The Constitutional Convention began on May 25, 1787, when a quorum of
delegates arrived at Philadelphia’s Independence Hall, then known as the
Pennsylvania State House. The distinguished gathering brought together nearly
all of the nation’s most prominent men, including George Washington, James
Madison, Alexander Hamilton, and the ailing Benjamin Franklin. As Thomas
Jefferson wrote John Adams when he heard who had been appointed: “It is really
an assembly of demi-gods.” Conspicuously absent were Jefferson, then in Paris as
ambassador to France, and Adams, then in London as ambassador to Great Britain.
At least one delegate came from each state except Rhode Island. Of
the 74 delegates who had been appointed, 55 attended. Patrick Henry refused to
attend, fearing that the convention would concentrate too much power in the
central government. Another 18 delegates either declined to come or could not
attend.
The delegates settled most of the scores of issues quickly. Four
questions proved far more difficult to resolve: conflicts over how the people
were to be represented in Congress; what to do about slavery; the powers of the
president and the procedures for election to the office; and the powers and
functions of the federal courts.
A |
|
Congressional Representation |
On the key question of congressional representation, the convention
eventually agreed on a compromise between Edmund Randolph’s Virginia Plan and
William Patterson’s New Jersey Plan. Randolph proposed that members of both
houses of Congress be apportioned (divided) according to the population of each
state. Because the population in three states alone—Virginia, Pennsylvania, and
Massachusetts—made up nearly half the country, Randolph’s plan would have given
these populous states control of the nation. Patterson’s New Jersey Plan favored
small states, giving all states equal representation in a one-chamber Congress
regardless of population. Under the New Jersey Plan, the more numerous small
states could unify against the larger ones. Not until mid-July did the delegates
adopt a compromise originally put forth by Roger Sherman of Connecticut: Let the
states have it both ways. Give the states an equal voice in the upper house, the
Senate, and representation apportioned by population in the lower house, the
House of Representatives. This bargain became known as the Great Compromise.
The Great Compromise sparked a heated and no less contentious
dispute over slavery. Even though the words slave and slavery do
not appear in the Constitution, the convention included ten provisions dealing
with slavery. The most serious dispute arose over how to assign House seats to
Southern states. If seats in the House of Representatives were apportioned
according to state populations that included slaves, Southern states would gain
an advantage because of their large slave populations. Northern states pushed to
exclude slaves from the population calculations altogether. Southern states
resisted, threatening to scuttle the entire Constitution. Finally abolitionists
from northern states compromised. They agreed to the infamous clause in Article
I that counted slaves as only three-fifths of a person and that barred Congress
from ending the slave trade before 1808. The settlement over slavery led the
convention to accept the Great Compromise.
Debate on the nature of the presidency and the manner of the
president’s election dragged the convention into September. The delegates
considered various proposals for a single three-year, six-year, and seven-year
term. They debated whether the executive branch should be headed by a single
leader or by many, and whether the chief executive should have the power to veto
legislation, should be elected by Congress or the people, should be eligible to
run for reelection, and should command the armed forces. Some delegates even
hoped for a limited monarchy. Not until September 8, more than three months
after the convention started, did the final shape of the presidency emerge: a
single leader, elected to a four-year term and eligible for reelection, with
authority to veto bills enacted by Congress. The president was also given
command of the military and the power to appoint federal officials, subject to
confirmation by the Senate.
Early on at the convention, Randolph of Virginia had proposed a
Council of Revision, composed of federal judges and the president, to veto laws
made by both Congress and state legislatures. The delegates rejected variations
of this plan four times because, as Pennsylvania’s Gouverneur Morris said, those
who interpret the laws “ought to have no hand in making them.” Instead, the
framers agreed to create a single Supreme Court and to permit Congress to create
lower federal courts.
E |
|
Approval of the Constitution |
After numerous votes settled the details, a committee on style and
revision was assigned in early September to put the final results in language to
submit to the people for ratification. This committee consisted of Hamilton,
Morris, Madison, William Samuel Johnson of Connecticut, and Rufus King of
Massachusetts. According to Madison, it was Morris who was largely responsible
for the language and style of the Constitution.
The framers approved the text of the Constitution on September 15,
and on September 17 all but three of the remaining delegates signed, attesting
to “the unanimous consent of the States present.” This was no longer merely a
compact between states, but a constitution for a new nation, recognized in the
last two days when the framers adopted a preamble that began, “We, the People of
the United States.”
IV |
|
IDEAS BEHIND THE CONSTITUTION |
Many of the framers, especially Madison, studied history and
political philosophy. Two political theorists had great influence on the
creation of the Constitution. John Locke, an important British political
philosopher, had a large impact through his Second Treatise of Government
(1690). Locke argued that sovereignty resides in individuals, not rulers. A
political state, he theorized, emerged from a social contract among the people,
who consent to government in order to preserve their lives, liberties, and
property. In the words of the Declaration of Independence, which also drew
heavily on Locke, governments derive “their just powers from the consent of the
governed.” Locke also pioneered the idea of the separation of powers. The French
writer Baron de Montesquieu, who was the second major intellectual influence on
the Constitution, further developed the concept of a separation of powers in his
treatise The Spirit of the Laws (1748).
Colonial charters such as the Mayflower Compact of 1620 provided
another inspiration for the Constitution. These charters seemed to give
authority to the people to govern the territories to which they had migrated.
Throughout the 18th century a vigorous debate raged over whether these charters
permitted self-rule or subjected the colonists to the whims of royal governors.
At their most radical, the colonial charters created autonomous legislatures
with broad powers.
The framers of the U.S. Constitution sought a fundamental change
from these earlier notions in two important ways. First, they put the
Constitution above legislative power—indeed, above all governmental powers. The
Constitution, particularly the Supremacy Clause of Article VI, establishes the
“rule of law,” the idea that the government itself, including the president and
Congress, must abide by the law.
The framers also rejected a basic assumption held by many democratic
theorists, including Montesquieu, that true democracy was possible only in tiny
territories with small, homogeneous populations. In famous passages in The
Federalist Papers, Madison brilliantly argued that the old philosophers were
wrong. Democracy could flourish, he reasoned, only in large territories with
sizable populations and a diversity of interests that would block the ambitions
of citizens to control the government. Individual interests and liberties could
be most effectively protected in a system of representative government that was
open to the voices of all. The people who agreed with this view of government
and supported ratification became known as Federalists.
V |
|
STRUGGLE FOR RATIFICATION |
The Constitution had to be ratified by nine states before it could
take effect, and ratification nearly failed. In addition to the
anti-Federalists, who opposed any sort of central government, many people feared
that the proposed Constitution did not adequately safeguard their rights. The
framers had miscalculated. They thought that because they had not given Congress
specific power—for example, to interfere with freedom of speech—Congress would
be unable to do so. Many doubted that Congress would show this restraint. In
closely fought and often bitter battles in state conventions, the Constitution’s
supporters secured victory only by promising to amend the Constitution at the
first opportunity.
Delaware became the first state to ratify, on December 7, 1787. It
was followed by Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts,
Maryland, and South Carolina. On June 21, 1788, New Hampshire became the ninth
state to ratify, thus making the Constitution legally effective. But without
ratification by New York and Virginia, it was doubtful the Constitution could
succeed. Virginia ratified four days later, but by the narrow margin of 10 votes
out of 168 cast. New York finally ratified on July 26, by a vote of 30 to 27.
North Carolina eventually ratified in 1789, and Rhode Island in 1790.
Madison, elected to the first Congress, pushed through a series of
proposals that became the first ten amendments, also known as the Bill of
Rights. These amendments safeguard freedom of speech, freedom of the press, and
freedom of religion; guarantee a fair, open, and speedy trial for people accused
of crimes; prohibit cruel and unusual punishments; and provide many other
protections against tyrannical government. The states ratified the Bill of
Rights in 1791.
The Constitution spells out in six articles (sections) the powers of
the federal government and the states. Later amendments expanded some of these
powers and limited others. The Constitution prevents tyrannical abuses of
authority through the separation of powers: Each branch of government has
its own responsibilities and cannot take action in areas assigned to the other
branches. Congress enacts laws, leaving enforcement of the laws to the executive
branch and interpretation of them to the judicial branch.
The Constitution does not include the term separation of powers.
The first three articles establish the separation mechanism and mark out areas
of responsibility for each branch of government. Article I vests (places) the
legislative power of the federal government in Congress. Only Congress can
enact general laws applicable to all the people, such as outlawing
counterfeiting or promoting a national environmental policy.
Article II vests the executive power in the president,
including the authority to appoint federal officials and to prosecute federal
crimes. Congress cannot decide whether a particular person should be brought to
trial for violating the law. Only the executive branch has that authority.
Article III vests the federal judicial power, including the
power to conduct trials, in the Supreme Court and in other federal courts that
Congress creates. Neither Congress nor the president or executive branch
officials can declare a person guilty. Only a judge or jury can make these
decisions.
No member of Congress may serve simultaneously as a member of the
executive branch. This separation differs strikingly from the British practice,
in which the prime minister and other executive officials are also members of
Parliament.
The Constitution divides governmental powers in other ways, both
within the federal government and between the federal government and the states.
Article I splits the legislative power by creating a bicameral
(two-chamber) legislature—the House of Representatives and the Senate. This
article also details the specific powers that Congress can exercise, including
imposing taxes, maintaining a military, and setting import duties. Congress
cannot exercise powers not enumerated (listed) in the Constitution. Article I,
however, grants Congress the right to make laws that it deems “necessary and
proper” to carry out the enumerated powers. This implied power gives Congress
wide leeway in lawmaking.
The Constitution leaves other powers to the states to exercise at
their discretion, with two exceptions. First, Article VI says the Constitution
is the “supreme law,” so the states cannot make laws that conflict with federal
laws. Second, the Constitution guarantees to the people certain civil
liberties (the right to be free of government interference) and civil
rights (the right to be treated as a free and equal member of the country).
These liberties and rights are spelled out primarily in the Bill of
Rights and in the 13th, 14th, 15th, and 19th amendments. Civil liberties include
such cherished American freedoms as the freedom of speech, press, and religion,
and the right to a fair trial. Civil rights include the right to vote and to be
treated equally regardless of race or ethnic origins.
By dividing and limiting various governmental powers, the
Constitution creates a system of checks and balances. If one branch
threatens to become too powerful, other branches may act to block or thwart it.
For example, if the president steps beyond his or her powers, Congress can
refuse to provide funds, or the courts can rule the president’s actions
unconstitutional.
VII |
|
THE INFLUENCE OF THE CONSTITUTION |
The Constitution plays a role in virtually every aspect of life in
the United States. Its very existence gives rise to constitutionalism—the
expectation that government will abide by the rule of law and that heated
political issues will be fought at the ballot box and in the courts, not on the
streets. Even though this expectation has not always been met—the most searing
exception being the Civil War—the United States is remarkable for its open
political system that, over time, has dramatically expanded rights and freedom
for increasing numbers of people.
A |
|
Defining the Role of the Federal
Government |
Although the Constitution created a new federal government, it took
a courageous, brilliant, and farseeing Supreme Court chief justice to help
realize the framers’ vision. In a series of striking opinions, Chief Justice
John Marshall, who sat on the Supreme Court from 1801 until his death in 1835,
forcefully built a body of law that gave constitutional strength to the new
government. The defining moment came in 1803 when Marshall announced the
doctrine of judicial review in Marbury v. Madison. It is for the
courts, Marshall wrote in his decision, not other branches of government, to say
what the Constitution means. By asserting the primacy of the judicial branch
over the other branches of government, Marshall’s decision made the Supreme
Court the authoritative interpreter of the Constitution. In this single
decision, the Supreme Court won the right to strike down any law enacted by
Congress or the states that conflicts with the Constitution.
The Marbury case made the Supreme Court the main arbiter
(decision-maker) in struggles over state and federal power. Marshall used this
power in 1819, in McCulloch v. Maryland, to give vast authority to
Congress and the federal government. The case arose when Congress created a
national bank, the Bank of the United States. Some states objected and tried to
tax the bank out of existence. The Supreme Court decided that even though the
Constitution did not explicitly give Congress the power to create a bank,
Congress could do so under the Necessary and Proper Clause of the Constitution.
The clause empowers Congress to take whatever actions it deems appropriate to
achieve its legitimate goals, such as regulating the economy. In the nearly two
centuries since the Marshall court’s broad interpretation of the Necessary and
Proper Clause, the federal government has expanded into nearly every aspect of
U.S. social and economic life.
The Supreme Court cannot force other branches of government to obey
its decisions. In 1832 the court ruled in Worcester v. Georgia in
favor of the Cherokees in a treaty dispute with the United States. Upon hearing
of the decision, President Andrew Jackson is said to have retorted: “John
Marshall has made his decision, now let him enforce it.” Jackson ignored the
court’s decision, and Georgia stripped the Cherokee of their land. In the next
century and a half, federal and state governments sometimes ignored judicial
decisions. Some Southern states evaded the Court’s 1954 desegregation ruling in
Brown v. Board of Education of Topeka for years. Arkansas, for
example, refused to abide by the Court’s decision until 1957, when President
Dwight Eisenhower sent federal troops to enforce it. But the principle of
judicial review has historically been so widely respected that eventually the
Court’s declaration of constitutional principles has prevailed.
B |
|
Regulating Business and Commerce |
Congress has no broader power than that which it exercises under the
Commerce Clause. Under the Articles of Confederation, uncontrolled economic
competition between the states stifled the country’s economy. Conflicts over
navigation rights and the practice of taxing goods from other states helped spur
the states to call the Constitutional Convention. The framers sought to avoid
such problems by assigning to Congress the power to regulate interstate and
foreign commerce. In 1824 in Gibbons v. Ogden, Chief Justice
Marshall gave the Commerce Clause a sweeping definition, establishing Congress’s
commerce power as a broad tool for national policy making. Commerce is more than
just buying and selling, he said, and the authority to regulate commerce
includes the right to control nearly all areas of the national economy. This
power grew throughout the 19th century, especially after the Civil War
(1861-1865) as manufacturing and industry grew in importance in the American
economy. The commerce power gave Congress the authority to create regulatory
agencies that set railroad rates and conditions, regulated the quality of foods
and drugs, and subjected more and more of the economy to governmental oversight.
In the late 19th century the Supreme Court narrowed the reach of the
Commerce Clause, pointing to the Tenth Amendment of the Constitution, which
reserves power to the states that is not delegated to the federal government.
Activities such as manufacturing, the Court said, are not part of interstate
commerce because they are local activities, and therefore only the states may
regulate them. The Court struck down several congressional attempts to regulate
labor practices, wages, and industrial conditions.
But in the late 1930s, in the midst of the Great Depression, the
Supreme Court began to rethink these limitations. By 1940, when President
Franklin D. Roosevelt had appointed several new justices, the Court proclaimed a
new doctrine: Anything that affects interstate commerce falls within Congress’s
commerce power. Since then, Congress has had a free hand to regulate industrial
and economic activities in countless ways. Major civil rights laws outlawing
discrimination, for example, were enacted under the commerce power.
In the 1990s the Supreme Court revived some of the earlier
doctrines, putting brakes on Congress’s exercise of the commerce power for the
first time in 60 years. In 1995 in United States v. Lopez, the
Court struck down a federal law outlawing guns in schools across the country
because there was no showing of an effect on commerce. Congress does not have a
general power to police evils, the Court said. This power is for the states to
exercise. The Supreme Court has also given new life to the Tenth Amendment, but
not as broadly as in the early 20th century. In 1997 in Printz v.
United States and Mack v. United States the court struck down
a federal gun control law that required state officials to conduct a background
check on gun buyers. The Court invalidated the background checks because under
the Tenth Amendment, Congress may not direct state officials to take particular
actions, even if those actions relate to commerce.
C |
|
Protecting Personal Rights |
The original, unamended text of the Constitution does not guard
against unequal treatment of individuals, except in one minor way. The
Privileges and Immunities Clause of Article IV forbids states from favoring
their own citizens against nonresidents within their borders. Nothing in the
Constitution, however, barred the states from discriminating against people
because of their race or gender. Formal legal equality became a constitutional
principle only upon ratification of the 13th Amendment in 1865 and the 14th
Amendment in 1868. The 13th Amendment abolished slavery, and it is the only
constitutional provision that applies directly to all U.S. citizens rather than
simply to the government. The 14th Amendment imposed limitations on state power
for the first time since the Constitution itself was ratified.
One part, the Equal Protection Clause, prohibits a state from
denying to any person within its borders “the equal protection of the laws.”
This clause was intended to bar Southern states from discriminating against
former slaves. Courts enforced the Equal Protection Clause sparingly for nearly
a century. During this period the Supreme Court struck down only a few laws on
the grounds that they were racially discriminatory. In 1880, for example, the
Supreme Court ruled unconstitutional a West Virginia law denying blacks the
right to serve on juries. But in 1883 in the Civil Rights Cases the
Supreme Court held that the Equal Protection Clause applies only to activities
carried out by the states themselves, not by private citizens. This decision
permitted racial segregation in private facilities such as hospitals,
restaurants, and hotels. In 1896, in the notorious case of Plessy v.
Ferguson, the Supreme Court ruled that a state could officially segregate
blacks and whites as long as the black facilities were “equal.”
This separate-but-equal doctrine lasted until 1954 when the Court
ruled in the landmark case Brown v. Board of Education that
schools racially segregated by government decree can never be equal. In
Bolling v. Sharpe that same year, which involved segregated schools
in the District of Columbia, the Court ruled that the due process clause of the
Fifth Amendment binds the federal government under the same equal protection
rule.
Since 1954 the Equal Protection Clause has figured in dozens of
landmark Supreme Court cases and in thousands of lower-court cases around the
country. In 1967, for example, the Court ruled in Loving v. Virginia
that the State of Virginia could not make it a criminal offense for black
and white individuals to marry. By 1970 the Court had made it clear that racial
discrimination of any sort is unconstitutional.
The Court then began applying the Equal Protection Clause to laws
and policies that treated men and women unequally. But not all were struck down.
In 1981, for instance, the Court ruled in Rostker v. Goldberg that
the federal government could require men, but not women, to register for the
military draft. On the whole, however, the Equal Protection Clause bars
gender-based discrimination in nearly all other areas of U.S. society. The
clause has also been used to void laws that discriminated against foreigners
residing in the United States and against children born to parents who were not
married.
Two fiercely debated issues are as yet unresolved. First, the Court
has not equated “sexual orientation” with “protected classes” such as race or
ethnic origin. As a consequence, the Court has so far not declared any general
constitutional right of homosexuals to be free from discrimination. Second, the
Court has said that race may be taken into account when necessary to remedy past
constitutional violations, so that an affirmative-action program designed to
increase the number of minorities working for a municipal police or fire
department is constitutional if those departments had discriminated in the past.
But in a series of cases in the 1990s, the Court has suggested that
affirmative-action programs that set aside a certain number of places or dollars
for members of minorities, without regard to past discrimination, are unlikely
to withstand constitutional scrutiny.
The Constitution does not include an explicit guarantee of a right
to privacy. No article or amendment gives United States citizens the right to
act however they please in their homes or elsewhere. Indeed, the word privacy
never appears in the Constitution. However, the Supreme Court has developed
a doctrine known as “substantive due process” that extends constitutional
protections over some types of personal behavior. This doctrine serves as the
basis for the constitutional right to privacy.
The due process clauses in the 5th and 14th amendments bar the
federal government and the states from depriving any person of life, liberty, or
property without due process of law. At first, the Court applied due process
only to procedures. This meant, for example, that a state could take away
an individual’s property as long as it offered the person a fair hearing to
block the action. In the late 19th century the Court began using the due process
clauses to protect certain substantive rights—basic rights that go beyond rules
to include actual results. Substantive rights include, for example, a citizen’s
right not just to a fair hearing before the government takes that citizen’s
property (procedural due process), but also the right to fair compensation based
on the property’s value. Over time the doctrine of substantive due process grew
to include many protections now taken for granted by U.S. citizens. In 1923, for
example, the Court ruled in Meyer v. Nebraska that the state could
not ban the teaching of foreign languages in schools. In this and other
decisions, the Court said, in effect, that parents have a broad but limited
right to raise their children as they see fit.
This idea—that the Constitution protects people’s right to live
their lives as they desire—did not excite much comment until 1965. That year the
Supreme Court in Griswold v. Connecticut struck down a state law
prohibiting married couples from using contraceptives. There was no rational
reason for such a law, the Court said, and it too drastically interfered with
the basic intimacy of the marriage bond. Most states had laws similar to
Connecticut’s, but few if any actually enforced them; so the Court’s ruling as a
practical matter reflected prevailing values. But Griswold paved the way
for a far more controversial case.
In 1973 the Court held in Roe v. Wade that the states
cannot bar a woman from having an abortion because of the constitutional right
to privacy. Because it went against the deep convictions of many people, Roe
ignited a firestorm of political controversy that has continued ever since.
Although the court has heard many abortion cases in the years since Roe
and has changed the rules somewhat, it has declined to back away from the
central point: A woman has a constitutional right to control her body.
Under the First Amendment, all United States citizens have the right
to speak their minds and publish their thoughts. Originally the First Amendment
was aimed at preventing only Congress from interfering with freedom of speech
and freedom of the press. But in 1925 the Supreme Court ruled in Gitlow
v. New York that the due process clause of the 14th Amendment
incorporated the First Amendment, extending free speech protections to the
states.
When governments interfere with speech, they usually do so by either
censoring it beforehand or by punishing it afterward. The Supreme Court has
ruled that the First Amendment is nearly absolute in protecting against a
prior restraint. When President Richard M. Nixon went to court to stop the
New York Times and the Washington Post from publishing the
Pentagon Papers in 1971, the Supreme Court ruled in New York Times v.
United States that neither the president nor the courts could
constitutionally do so. Whether the government may punish someone after speaking
depends on what is said. In general, it is unconstitutional to punish someone
for the content of a speech or publication.
Since the adoption of the Constitution in 1789, however, courts have
excluded certain types of speech from First Amendment protection. Political
dissent—speech that criticizes the government or calls for its removal—has
sparked some of the fiercest debates over constitutional rights. In 1798
Congress passed the Alien and Sedition Acts, which prohibited speeches and
publications criticizing the government. Although these laws were surely
unconstitutional, no case challenging their constitutionality ever reached the
Supreme Court, and they expired in 1801.
In 1919, following World War I (1914-1918), the Court was confronted
with a number of espionage cases that tested these rights for the first time. At
first the Court seemed to suggest that Congress could constitutionally outlaw
any type of speech that might, even if remotely, interfere with the war effort.
It was in one of these cases, Schenck v. United States (1919),
that Justice Oliver Wendell Holmes, Jr. first announced the famous “clear and
present danger” test. Holmes said that subversive speech could be banned if the
words were of such a nature and used in such a way that they posed “a clear and
present danger that they will bring about the substantive evil that Congress has
a right to prevent.” But a majority of justices later disagreed with him, and
for half a century the Supreme Court frequently upheld convictions of people who
advocated unlawful conduct without much chance that it would ever happen.
In 1969 the Court essentially adopted Holmes’s test in
Brandenburg v. Ohio. In that case the Court ruled that the government
cannot forbid people from advocating the use of violence or illegal conduct
unless they are advocating others to take “imminent lawless action” and unless
their advocacy “is likely to incite or produce such action.” For example, a
person urging a mob to storm a jail in order to lynch a prisoner may be
prosecuted. But the First Amendment protects a person who merely advocates the
use of violence if there is little likelihood that violence will actually occur.
Freedom of speech is not limited to political ideas, but encompasses
a wide array of expressions. In recent years, the Court has provided First
Amendment protection to commercial advertisements, many types of sexually
explicit pictures, most defamatory statements, and hate-mongering proclamations.
Freedom of speech also extends beyond newspaper articles and street corner
speeches to many other forms of expression. The right also covers public
demonstrations, books, billboards, movies, and computer communication. In 1997,
the Supreme Court held in Reno v. ACLU that Congress cannot ban
“indecent” speech on the Internet.
In the famous words of Thomas Jefferson, the Constitution erects a
“wall of separation” between church and state. The First Amendment’s
Establishment Clause and Free Exercise Clause serve as the principle bulwarks
against government intrusion in religious life.
Under the Establishment Clause, neither the federal government nor
the states can enact laws that would “establish” or create a religion. In the
17th century, most American colonies supported official religions with public
revenues, and laws required residents to attend church services. The framers of
the Constitution drafted the Establishment Clause to ensure that there would be
no official national religion. In 1940 the court ruled in Cantwell v.
Connecticut that the religion clauses bind the states just as the press and
speech clauses do.
The application of the Establishment Clause usually turns on whether
and to what degree the government may provide support for religious activities.
The court has prohibited officially sponsored school prayer, although children
in public schools may pray on their own. The Court’s decisions in other areas
have been less consistent. The Court has permitted displays of religious
symbols, such as a Christmas scene, in public areas such as parks and municipal
buildings in some instances and not in others. Similarly, it has approved
government expenditures that benefit religious schools in some cases and not in
others. The outcome of each case turns on the specific facts involved.
More difficult questions arise when the government outlaws an
activity that incidentally affects a religious practice. In Employment
Division v. Smith (1990) the Court ruled that Oregon could prohibit
the use of peyote, a hallucinogen, even though it is used in some Native
American religious ceremonies. The Court reasoned that because the law was
general in scope and had the secular (nonreligious) purpose of outlawing
dangerous drugs, the law did not violate the Constitution merely because it also
resulted in the banning of a particular religious practice. On the other hand, a
law is not necessarily general and neutral just because the government says so.
In 1993 the Court unanimously struck down a Hialeah, Florida, municipal
ordinance that banned animal sacrifice. Although the ban seemed neutral, the
court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that
the law unfairly targeted the Santería religion.
The legal interpretation of the separation of church and state
raises perplexing legal issues because the Free Exercise Clause sometimes
conflicts with the Establishment Clause. If the government taxes church
property, for example, does the tax violate the church’s right to “free
exercise” of its religion? If, on the other hand, the state exempts churches
from property taxes, does the exemption constitute an unconstitutional
“establishment” of religion. In 1971 the Supreme Court upheld property tax
exemptions for religious groups in Walz v. Tax Commission of the City
of New York, but the tension between the Establishment and Free Exercise
clauses still defies simple resolution by the Supreme Court.
The Bill of Rights provides specific procedural protections for
people accused of committing crimes. These include the right to be free of
unreasonable searches and seizures, the right against double jeopardy (the right
not to be tried twice for the same crime), the right to fair procedures during
trial, and the right against self-incrimination (the right not to have to
testify against yourself at a criminal trial). The Bill of Rights also
guarantees the right to a speedy and public trial, to be informed of the
charges, to cross-examine witnesses, to compel witnesses for the defense to come
to court, and to have the assistance of lawyers. The Supreme Court has also used
the Bill of Rights as the basis for other protections. From the Fourth
Amendment’s ban on unreasonable searches, for example, the Court developed the
so-called exclusionary rule, which excludes evidence from a trial if it
was seized unconstitutionally.
For most of U.S. history, these rights generated little comment
because they applied only in federal prosecutions. Since most crimes were tried
in state courts, a criminal defendant gained these procedural protections only
if provided for in state constitutions. But beginning in the 1960s, the Supreme
Court ushered in a criminal-law revolution by applying these provisions in the
Fourth, Fifth, and Sixth amendments directly to the states. In 1961, for
example, the Court ruled in Mapp v. Ohio that evidence illegally
seized by local police may not be introduced in state criminal trials. In the
1963 case Gideon v. Wainwright the Court said that if a person
being charged with a felony cannot afford a lawyer the state must provide one
free of charge. In 1966 in the famous case of Miranda v. Arizona,
the Court held that the police must advise arrested suspects of their basic
constitutional rights: the right to remain silent and the right to have an
attorney present during questioning. If the police fail to give a suspect
Miranda warnings, any confession must be excluded from evidence.
At the same time, the Supreme Court greatly expanded habeas
corpus—the right to challenge state criminal convictions by going to federal
court to contest the constitutionality of the procedures used. Until the late
1980s prisoners were permitted to file not just one but multiple habeas corpus
appeals, inundating the courts with prisoner petitions.
These and many other rulings initiated a national debate about
whether the Supreme Court has ruled too strongly in favor of defendants’ rights,
making the job of law-enforcement officials too difficult. In recent years more
conservative justices have declared many exceptions to the liberal rulings of
the 1960s. In particular, the court has drastically reduced the availability of
habeas corpus appeals. But despite the Court’s changing philosophy, the core of
the most important protections remains in place.
The Constitution protects many other civil liberties besides the
freedom of speech and religion, the right of privacy, and the rights of the
accused. Notable among these other liberties are freedom of assembly, freedom of
association, the right not to associate, freedom of belief, and the right to
petition the government—all protected by the First Amendment. Protected as parts
of due process are the rights to marry, to have children, and to raise them in
accordance with parental beliefs.
VIII |
|
INTERPRETING THE CONSTITUTION |
The success of the Constitution lies in its flexibility. But it is
flexible because it speaks in broad and sometimes murky phrases. What, for
example, does “due process” mean? The Constitution does not define the term. If
a judge’s salary consists in part of fines he hands out against traffic
violators in his court, has due process been violated? (Yes, said the Court in
Tumey v. Ohio in 1927, because it is unfair to give a judge a
monetary incentive to find people guilty.) The ambiguity of the Constitution
means that it cannot be applied automatically, and that its provisions must be
subject to judicial interpretation.
For more than two centuries justices, scholars, and people on the
street have debated the proper method of interpreting the Constitution.
Advocates have sparred over several contrasting approaches: strict, or narrow,
versus broad construction (interpretation); conservative versus liberal;
interpretivist versus noninterpretivist; and activist versus nonactivist. In
general this is a debate between those who believe that the wording of
Constitution should be read narrowly and those who argue that in many instances
the words themselves provide no guide to the outcome of a case.
These different approaches can lead to different outcomes. The
abortion decision Roe v. Wade is an example of a broad reading;
strict constructionists find no right to abortion. Decisions upholding the death
penalty exemplify strict readings; only a broad reading would render capital
punishment unconstitutional.
No single method has found favor. Moreover, these labels are
misleading and not always consistent. Although strict constructionists are often
politically conservative, they need not be. Justice Hugo L. Black, who served on
the Supreme Court from 1937 to 1971, adhered to a strict constructionist
approach. He argued that only if a right was mentioned should it be observed.
But this view led him to a very broad and liberal interpretation of freedom of
speech; he insisted that even obscene works should be permitted. The First
Amendment, he declared, means just what it says: The government shall make no
law against freedom of speech. By contrast, some judges wish to give the
government broad power to curb speech, a conservative position perhaps, but not
a strict one. On the other hand, Black dissented in Griswold v.
Connecticut, the birth-control case, insisting that no matter how silly the
law was, the Constitution contains no right of privacy and the judges ought not
invent one—not a liberal position, but a strict one. By contrast, several
usually conservative judges discerned a privacy right in the due process clause,
interpreting the Constitution liberally and not strictly.
In recent years a somewhat different debate has arisen over whether
the Constitution should be interpreted according to the framers’ intent. Those
who favor the so-called original intent of the framers argue that the
Constitution must still mean what those who wrote it meant in 1787. If the
framers intended that the death penalty be used, they argue, then it cannot be
unconstitutional.
This approach has several difficulties. First, the historical record
is far from clear about what they meant by many constitutional phrases. Second,
in many important cases today, it is impossible to know what the framers
intended because the modern world was unknown to them. They never conceived of
television. How, then, could they have had an intent about whether rules
regulating cable television violate the First Amendment? Third, whose intent
should we look to? The framers did not agree on all the issues. Indeed, their
disagreements led them to write the Constitution in words that have many
possible meanings. Moreover, if the key is intent, then perhaps we should look
instead at the intent of those who ratified the Constitution, for it was they
who chose to put it into operation. But how can anyone determine the single
intent of hundreds of people who chanced to come together in state ratifying
conventions and did not leave records? Fourth, referring to original intent
makes sense only if the framers themselves intended that later generations do
so. But there is no evidence that they wished future citizens to do so. In
addition, the Constitution does not say how its meaning should be interpreted.
Fifth, the framers might have intended for later generations to interpret the
constitutional text broadly, in light of the novel problems that would
undoubtedly arise in later eras. It is this last approach that has often won.
Regardless of theory, there can be no doubt that the meaning of the Constitution
often changes with the times.
IX |
|
AMENDMENTS TO THE CONSTITUTION |
Article V spells out two methods for amending the Constitution.
Congress may, by a two-thirds vote in each house, propose a constitutional
amendment. It must then be ratified by three-quarters of the state legislatures
or special state conventions, whichever Congress specifies. State conventions
have ratified a constitutional amendment only once, the 21st Amendment, which
repealed Prohibition. In the other method of amending the Constitution,
two-thirds of the states may call a special constitutional convention.
Amendments proposed by such a convention must then be ratified by the
legislatures in three-quarters of the states. This second method has never been
used; all amendments to date have originated in Congress. The president has no
legal role in amending the Constitution.
In more than two centuries, members of Congress have proposed
thousands of amendments, but only 27 have made it all the way to ratification.
The first 12, including the Bill of Rights, were in place by 1804. Not until 65
years later were the 13th, 14th, and 15th amendments ratified, all as a direct
consequence of the Civil War. The 13th abolished slavery. The 15th gave blacks
the right to vote, though it was not widely enforced until the 1960s. The 14th
Amendment has often been called a second constitutional revolution because it
shifted power from the states to the federal government, giving the federal
government authority to enforce individual rights against the states. This shift
in power paved the way in the long run for a vast expansion of civil rights and
civil liberties.
Several later amendments dealt with the right to vote. The 16th
Amendment authorized the federal income tax. Other amendments altered the method
of electing the president, limited his term of office, and set rules for
presidential succession.
The most recent amendment, the 27th, specifies that a change in
congressional pay can go into effect only after an intervening election for the
House of Representatives. The amendment took 203 years to be ratified. It was
the second of 12 separate amendments, then called articles, originally proposed
in 1789. Articles III through XII were ratified and renumbered as the Bill of
Rights in 1791. (The first of the 12 original amendments would have increased
the size of House districts.) But through the 1790s only six states had ratified
the pay amendment. Then, as dissatisfaction with Congress mounted in the 1980s,
the states rediscovered it; and by 1992 the requisite 38 states had ratified it,
putting it at last into the Constitution.
The Constitution has endured for more than 200 years, and it
continues to shape the country’s most pressing social and political
controversies. Some constitutional issues, such as the appropriate balance of
authority between the state and federal governments, remain as unsettled as they
were when the Constitution was adopted in 1788. Some issues, seemingly settled,
are still being tested—for example, the debate over abortion continues. So, too,
is the debate over whether the states may curb a proliferation of hate speech
that vilifies minority groups. The courts must also adapt and interpret the
Constitution to confront issues never anticipated by the framers, such as
privacy rights on the Internet.
Sometimes political problems develop that seem impossible to tackle
without constitutional change. One such issue, growing since the 1980s, is
campaign finance reform. Candidates for president, Congress, and many state
offices raise huge sums of money to run for office. The fund-raising practices
often cause concern that these leaders will be beholden to special interests
when they take office. In 1976 the Supreme Court ruled in Buckley v.
Valeo that some limits on campaign spending violated the First Amendment and
cannot be enforced. In the subsequent two decades political candidates used
these exceptions to get around spending caps, all but eliminating any real limit
on campaign spending. Stopping these campaign-financing abuses seems to require
limits, but the Court’s decision bars such restrictions. The issue remains a
continuing source of controversy.
When presidents appoint new members to the Supreme Court, the change
in composition of the Court sometimes leads to dramatic turns in constitutional
interpretation. One area of interpretation that seems to be changing is the
Court’s approach to federalism. For more than a century, the Court consistently
maintained the supremacy of the federal government over the states. But in
U.S. Term Limits v. Thornton (1995), a case involving state efforts
to limit the terms of members of Congress, four dissenting justices declared in
effect that sovereignty rests with the states. Under this reasoning, the federal
government’s authority is limited to the powers explicitly granted in the
Constitution. The states assume powers assigned to them as well as any powers
not mentioned in the Constitution, except those explicitly prohibited. The Court
majority rejected this view, but it is entirely possible that the debate that
has opened up may ultimately lead to a new definition of federalism, with
results that no one today can safely predict.
XI |
|
TEXT OF THE CONSTITUTION |
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, 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.
Section 1. All legislative Powers herein granted shall be vested in
a Congress of the United States, which shall consist of a Senate and House of
Representatives.
Comment: Congress controls all power to write legislation, and
has two chambers—the House of Representatives and the Senate.
Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several States, and the
Electors in each State shall have the Qualifications requisite for Electors of
the most numerous Branch of the State Legislature.
Comment: The House is directly elected by the people, and its
members serve two-year terms.
No Person shall be a Representative who shall not have attained to
the Age of twenty five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State in which
he shall be chosen.
Comment: Members of the House of Representatives must be 25
years old, a citizen of the United States for at least seven years, and live in
the state that elects them to the House.
Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons. The actual
Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten Years, in
such Manner as they shall by Law direct. The Number of Representatives shall not
exceed one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of
New Hampshire shall be entitled to choose three, Massachusetts eight,
Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New
Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North
Carolina five, South Carolina five, and Georgia three.
Comment: House seats are assigned according to a census
conducted every ten years, initially using a formula that counted African
American slaves as three-fifths of a person and excluded Native Americans who
were not considered part of white society. The 14th Amendment abolished the rule
counting African Americans as three-fifths of a person, but it did not end the
exclusion of most Native Americans. Native American citizenship rights were
gradually extended in the late 19th and 20th centuries.
When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The House of Representatives shall choose their speaker and other
Officers; and shall have the sole Power of Impeachment.
Comment: The House manages itself and has the power to impeach
senior government officials.
Section 3. The Senate of the United States shall be composed of two
Senators from each State, chosen by the Legislature thereof, for six Years; and
each Senator shall have one Vote.
Comment: Each state has two senators, and they serve six-year
terms.
Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the Expiration
of the second Year, of the second Class at the Expiration of the fourth Year,
and of the third Class at the Expiration of the sixth Year, so that one third
may be chosen every second Year; and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.
Comment: One-third of the Senate faces election at a time.
No Person shall be a Senator who shall not have attained to the Age
of thirty Years, and been nine Years a citizen of the United States, and who
shall not, when elected, be an Inhabitant of that State for which he shall be
chosen.
Comment: Senators must be 30 years old, a citizen of the United
States for at least nine years, and live in the state that elects them to the
Senate.
The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
Comment: The vice president presides over the Senate but can
cast a vote only in case of a tie.
The Senate shall choose their other Officers, and also a President
pro tempore, in the Absence of the Vice President, or when he shall exercise the
Office of President of the United States.
Comment: The Senate is usually presided over by a temporary
leader, the president pro tempore, who fills in for the vice president of the
United States.
The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When the
President of the United States is tried, the Chief Justice shall preside: And no
Person shall be convicted without the Concurrence of two thirds of the Members
present.
Comment: The Senate tries impeachment cases against senior
federal officials after the House has voted to impeach. A conviction requires
the support of two-thirds of the Senate members present.
Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to law.
Comment: Anyone convicted of impeachable offenses can be removed
from office and can be barred from serving in other senior government posts. The
convicted person can also be tried in the courts.
Section 4. The Times, Places, and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of choosing Senators.
The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by Law
appoint a different Day.
Section 5. Each House shall be the Judge of the Elections, Returns,
and Qualifications of its own Members, and a Majority of each shall constitute a
Quorum to do Business; but a smaller Number may adjourn from day to day, and may
be authorized to compel the Attendance of absent Members, in such Manner, and
under such Penalties as each House may provide.
Comment: The House and the Senate each monitor the elections of
their own members. The chambers cannot take official action unless a majority of
members are present.
Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel
a Member.
Comment: The House and the Senate discipline their own members.
Each House shall keep a journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judgment require
Secrecy; and the Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those Present, be entered on the journal.
Comment: Congress must maintain a public record of its work
except in matters that it decides should be kept secret.
Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any other Place
than that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out of the
Treasury of the United States. They shall in all Cases, except Treason, Felony
and Breach of the Peace, be privileged from Arrest during their Attendance at
the Session of their respective Houses, and in going to and returning from the
same; and for any Speech or Debate in either House, they shall not be questioned
in any other Place.
Comment: Congress makes a law that sets the salaries of senators
and representatives.
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have been
increased during such time; and no Person holding any Office under the United
States, shall be a Member of either House during his Continuance in Office.
Comment: Unlike most parliamentary systems, members of the House
and Senate cannot hold other government offices, including positions in the
president’s cabinet.
Section 7. All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with Amendments
as on other Bills.
Comment: Bills to impose taxes originate in the House. This
provision is not always followed in practice.
Every Bill which shall have passed the House of Representatives and
the Senate, shall, before it become a Law, be presented to the President of the
United States; If he approve he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have originated, who shall
enter the Objections at large on their Journal, and proceed to reconsider it. If
after such Reconsideration two thirds of that House shall agree to pass the
Bill, it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of that
House, it shall become a Law. But in all such Cases the Votes of both Houses
shall be determined by Yeas and Nays, and the Names of the Persons voting for
and against the Bill shall be entered on the Journal of each House respectively.
If any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds of the Senate and House of
Representatives, according to the Rules and Limitations prescribed in the Case
of a Bill.
Comment: After a bill passes both the House and the Senate, the
president has ten days to decide whether to sign it into law or veto it. If the
president does nothing, the bill becomes law automatically, unless Congress is
not in session. If Congress is out of session and ten days lapse after Congress
has submitted a bill to the president, then it is automatically vetoed. Congress
can pass a law over a president’s veto through a two-thirds vote of each
chamber.
Section 8. The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the
United States;
To borrow Money on the Credit of the United States;
To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the securities and
current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and
naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the Service of the
United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased by the
Consent of the Legislature of the State in which the Same shall be for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings;—And
To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
Officer thereof.
Comment: Congress has broad authority, including the power to
impose taxes, maintain a military, declare war, manage a postal system, create a
judicial system, and borrow money. In addition, Congress has sweeping power to
enact laws to provide for the general welfare of the country, and to pass any
law that it regards as necessary to carry out its other duties.
Section 9. The Migration or Importation of such Persons as any of
the States now existing shall think proper to admit, shall not be prohibited by
the Congress prior to the Year one thousand eight hundred and eight, but a Tax
or duty may be imposed on such Importation, not exceeding ten dollars for each
Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.
Comment: Citizens cannot be arrested and jailed arbitrarily
except in extreme circumstances.
No Bill of Attainder or ex post facto Law shall be passed.
Comment: Congress cannot pass a law that declares a person
guilty of a crime or that makes an action in the past illegal.
No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to be taken.
Comment: Congress cannot impose direct taxes except in
proportion to population. The 16th Amendment superseded this clause, but only as
it pertains to income tax.
No Tax or Duty shall be laid on Articles exported from any State.
No preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall Vessels bound
to, or from, one State, be obliged to enter, clear, or pay Duties in another.
Comment: Congress cannot create laws that arbitrarily favor the
ports of some states over others.
No money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the Receipts
and Expenditures of all public Money shall be published from time to time.
Comment: The government can only spend money if Congress has
approved the expenditure by law, and the government must maintain public records
of all revenues and spending.
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or foreign State.
Comment: The United States cannot name a king or other royalty,
and U.S. officials cannot accept payments or royal titles from other countries
without congressional approval.
Section 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of
Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation
of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely necessary
for executing it's inspection Laws: and the net Produce of all Duties and
Imposts, laid by any State on Imports or Exports, shall be for the Use of the
Treasury of the United States; and all such Laws shall be subject to the
Revision and Control of the Congress.
No State shall, without the Consent of the Congress, lay any Duty
of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or engage in
War, unless actually invaded, or in such imminent Danger as will not admit of
delay.
Comment: Congress has powers over the states in many areas. The
states are barred from encroaching on most congressional duties, including the
issuing of money, entering into alliances with other countries, and imposing
duties on imports from other countries.
Section 1. The executive Power shall be vested in a President of
the United States of America. He shall hold his Office during the Term of four
Years, and, together with the Vice President, chosen for the same term, be
elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit under
the United States, shall be appointed an Elector.
Comment: The president ensures that the nation’s laws are
carried out and enforced. The president serves a four-year term, and is formally
elected by electors of the Electoral College. Originally the state legislatures
chose the electors, but since the 1820s they have been chosen through direct
elections.
The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an Inhabitant of the
same State with themselves. And they shall make a List of all the Persons voted
for, and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United States,
directed to the President of the Senate. The President of the Senate shall, in
the Presence of the Senate and House of Representatives, open all the
Certificates, and the Votes shall then be counted. The Person having the
greatest Number of Votes shall be the President, if such Number be a majority of
the whole Number of Electors appointed; and if there be no more than one who
have such Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately choose by Ballot one of them for President:
and if no Person have a Majority, then from the five highest on the List the
said House shall in like Manner choose the President. But in choosing the
President, the Votes shall be taken by the states, the Representation from each
State having one Vote; A quorum for this Purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the States shall be
necessary to a Choice. In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Electors shall be the Vice
President. But if there should remain two or more who have equal Votes, the
Senate shall choose from them by Ballot the Vice President.
Comment: Congress formally counts the presidential election
ballots from the electoral college. If no presidential candidate receives a
majority of votes in the electoral college, the House chooses the president.
Originally the second place winner in the electoral college became the vice
president, with ties decided in the Senate. This section was amended by the 12th
Amendment, which specified that the vice president be chosen on a separate
ballot.
The Congress may determine the Time of choosing the Electors, and
the Day on which they shall give their Votes; which Day shall be the same
throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be eligible to
the Office of President; neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty five Years, and been fourteen Years
a Resident within the United States.
Comment: The president must be at least 35 years old, a United
States citizen born in the United States, and a resident of the country for at
least 14 years.
In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties of the said
Office, the Same shall devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation or Inability, both of
the President and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
Comment: This section was amended by the 25th Amendment. If the
president dies, resigns, or becomes unable to carry out the responsibilities of
the job, the vice president steps in. If there is no president or vice
president, Congress has the power to appoint someone to fill the position.
Currently the line of succession after the vice president is (1) the Speaker of
the House, (2) the president pro tem of the Senate, and (3) a sequence of
cabinet officials.
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished during the Period
for which he shall have been elected, and he shall not receive within that
Period any other Emolument from the United States, or any of them.
Comment: Congress sets the president’s pay rate, and the rate
cannot be changed once the president takes office. The president cannot accept
other payments from the federal or state governments.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will
faithfully execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the United
States.”
Comment: On inauguration day the president takes an oath of
office, traditionally administered by the chief justice of the United States.
Section 2. The President shall be Commander in Chief of the Army
and Navy of the United States, and of the Militia of the several States, when
called into the actual Service of the United States; he may require the Opinion,
in writing, of the principal Officer in each of the executive Departments, upon
any Subject relating to the Duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.
Comment: The president has wide authority in the executive
branch. These powers include serving as commander in chief of the military,
supervisory responsibility for executive branch departments, and the power to
grant pardons in criminal cases.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in the Heads
of Departments.
Comment: The Senate acts as a check on some presidential powers.
The president makes treaties with other countries, but they take effect only if
two-thirds of the Senate approves. The president’s nominations of ambassadors,
federal judges, cabinet members, and other top government officials require the
approval of a majority of the Senate.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which shall
expire at the End of their next Session.
Comment: The president can make appointments without Senate
approval if Congress is not in session. These so-called recess appointments
expire at the end of the next congressional term.
Section 3. He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient; he may, on extraordinary
Occasions, convene both Houses, or either of them, and in Case of Disagreement
between them, with Respect to the Time of Adjournment, he may adjourn them to
such Time as he shall think proper; he shall receive Ambassadors and other
public Ministers; he shall take Care that the Laws be faithfully executed, and
shall Commission all the Officers of the United States.
Comment: The president must periodically issue a State of the
Union statement, usually a speech delivered in person, in which the president
explains the condition of the country and offers legislative suggestions. The
president can also call a joint session of Congress, or call a session of either
of the houses separately. The president may decide when Congress should adjourn
for a recess, although presidents rarely do so.
Section 4. The President, Vice President, and all civil Officers of
the United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.
Comment: The president, vice president, and other top officials
can be removed from office if they commit serious offenses.
Section 1. The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may from time
to time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.
Comment: The Supreme Court has some administrative control over
the legal system, but Congress decides the number of courts that are necessary
and many other important issues. Supreme Court justices and other federal judges
hold their appointments for life unless they violate significant laws. Their
salary cannot be reduced while they are serving on the Court.
Section 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all Cases
affecting Ambassadors, other public Ministers and Consuls;—to all Cases of
admiralty and maritime Jurisdiction;—to Controversies to which the United States
shall be a Party;—to Controversies between two or more States; between a State
and Citizens of another state;—between Citizens of different States;—between
Citizens of the same State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.
Comment: The Supreme Court has jurisdiction in seven types of
cases: (1) cases raising issues involving the Constitution, federal law, or
treaties; (2) cases affecting ambassadors; (3) maritime cases; (4) controversies
in which the United States is a party; (5) controversies in which two or more
states are parties; (6) controversies involving residents of different states;
and (7) controversies in which residents of the same state make a claim on land
in another state.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
Comment: Only in cases involving ambassadors, or if a state is a
party, does the Supreme Court have original jurisdiction to conduct a trial to
determine the facts of a case and issue a judgment. The Supreme Court hears only
appeals in all other types of cases. Congress can limit the Court’s appellate
jurisdiction.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said Crimes shall
have been committed; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.
Comment: Americans have a right to a jury trial in significant
cases, and the trial must be held in the state where the crime is alleged to
have occurred. Congress can enact laws to handle the rare cases that involve
offenses occurring outside of the states.
Section 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
Comment: Congress can only define a few types of offenses as
treason. A person accused of treason can only be convicted if there are two
witnesses to the crime, or if the person confesses in court.
The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
Comment: Congress can impose punishments and fines and can
confiscate property from those convicted of treason. The heirs of the convicted
person retain a right to inherit any estate, however.
Section 1. Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect thereof.
Comment: States must accept most laws and legal decisions made
in other states.
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
Comment: The states must offer most fundamental legal rights to
both residents and nonresidents of the state.
A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on Demand of
the executive Authority of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.
Comment: People accused of serious crimes cannot take refuge in
other states.
No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or Regulation
therein, be discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be due.
Comment: The Fugitive Slave Clause barred states from passing
laws that freed escaped slaves and required that such slaves be returned to
their owners. The 13th Amendment, which abolished slavery, made this clause
obsolete.
Section 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the Jurisdiction of
any other State; nor any State be formed by the Junction of two or more States,
or Parts of States, without the Consent of the Legislatures of the States
concerned as well as of the Congress.
Comment: Congress controls the admission of new states. Congress
and the legislatures of the states involved must approve the merger of two
states or the creation of a new state within the boundaries of an existing
state.
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging to
the United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.
Comment: The government has the right to use federal buildings,
lands, and property in almost any way it sees fit.
Section 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of them against
Invasion; and on Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.
Comment: The federal government has an obligation to protect the
political and physical integrity of the states. The federal government must take
responsibility for stopping invasions and, if the states ask, to squelch
domestic unrest.
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the Application
of the Legislatures of two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One Thousand
eight hundred and eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.
Comment: Both the states and Congress can propose amendments to
the Constitution. It takes two-thirds of the states to call a constitutional
convention to propose amendments, which must then be approved by state
legislatures in three-quarters of the states. Congress can propose amendments to
the Constitution if two-thirds of the members in both chambers vote to support
the amendment. After Congress proposes an amendment, it then requires approval
by three-quarters of the state legislatures, or three-quarters of special state
conventions, whichever Congress specifies.
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United States under
this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
Comment: All laws in the United States—federal, state, and
local—must be consistent with the Constitution. All judges must hold the U.S.
Constitution above all other law.
The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial Officers, both
of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public Trust under the United
States.
Comment: Members of Congress, the state legislatures, state and
federal judges, and state and federal executive officials must agree to support
the Constitution. This clause was intended to bind all government officials,
including those at the state level, to support the Constitution and federal
laws.
The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the States so
ratifying the Same.
Comment: Only 9 of the original 13 states were needed to approve
the Constitution. New Hampshire became the ninth on June 21, 1788.
XII |
|
AMENDMENTS TO THE CONSTITUTION |
Comment: The first ten Amendments were ratified December 15,
1791, and form what is known as the Bill of Rights.
A |
|
The Bill of Rights |
Amendment 1 |
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Comment: The First Amendment guarantees freedom of speech,
freedom of the press, and freedom of association and assembly. It also protects
the rights of citizens to worship as they please and the right not to be forced
to support someone else’s religion. The First Amendment also provides for the
right to demand a change in government policies.
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.
Comment: Legal scholars disagree about what right is protected
by the Second Amendment. Some scholars have concluded that this amendment
affirms a broad individual right to gun ownership. Others interpret the
amendment as protecting only a narrow right to possess firearms as members of a
militia. Supreme Court decisions have not resolved the debate. However, the
courts have held that the Second Amendment does not preclude certain government
regulations on gun ownership, such as laws prohibiting ownership of firearms by
felons.
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.
Comment: The Third Amendment forbids the government from
quartering soldiers in private residences during peacetime without the
resident’s permission, and during wartime only according to law. Under British
rule, American colonists were forced to feed and house British soldiers deployed
to help enforce colonial tax laws. The colonists resented this practice, and so
banned it with this amendment. This amendment has been basically irrelevant
since the end of the American Revolution (1775-1783).
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
Comment: The Fourth Amendment prohibits the police and other
government officials from searching people’s homes or offices or seizing their
property without reasonable grounds to believe that a crime has been committed.
In most cases, police can conduct a search of a person’s home or office only
after they get a written search warrant from a judge, detailing where they will
search and what they expect to find.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Comment: The Fifth Amendment provides five important protections
against arbitrary government actions. First, no one may be prosecuted for a
federal crime without first being indicted (formally accused) by a grand jury.
Second, a criminal suspect may be prosecuted only once for each crime. If a jury
acquits the accused person, there can be no retrial. Third, a person cannot be
forced to testify against himself or herself in any criminal case. This is the
right against self-incrimination. Fourth, the due process Clause bars the
government from arbitrarily depriving anyone of life, liberty, or property.
Fifth, the government may not take anyone’s private property unless it is
necessary for a public purpose and unless the government pays a fair price for
it.
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been
previously ascertained 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 favor, and to have the Assistance of
Counsel for his defence.
Comment: The Sixth Amendment guarantees people accused of crimes
the right to a speedy and public trial. Defendants in federal cases are entitled
to be tried in the area in which the crime was committed, and both state and
federal defendants have the right to have an impartial jury decide their guilt
or innocence. The Sixth Amendment prohibits the government from prosecuting an
accused person without first informing him or her of the nature of the charges
against him or her. The accused has the right to “confront”—that is, to
cross-examine witnesses who testify against him or her at trial. Those accused
also have a right to subpoena (compel) supporting witnesses to testify in court
and to have a lawyer assist in their legal defense.
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried
by a jury, shall be otherwise re-examined in any Court of the United States,
than according to the rules of the common law.
Comment: The Seventh Amendment, which does not apply to the
states, guarantees the right to a jury in some types of federal civil (noncriminal)
trials.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
Comment: The courts must allow most criminal defendants out of
jail before their trial if the defendants put up a reasonable bail-a financial
guarantee that they will come to the trial. If a person is convicted of a crime,
the government cannot impose unreasonable fines or inflict inhumane punishments.
What is “cruel and unusual” has no fixed meaning, and so decisions interpreting
the clause are sometimes controversial. The Supreme Court has generally held
that a punishment that is wildly disproportionate to the crime committed is
cruel and unusual. The Court has also upheld the death penalty against claims
that putting someone to death, regardless of what that person did, is cruel and
unusual.
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
Comment: The Ninth Amendment declares that just because certain
rights are not mentioned in the Constitution does not mean that they do not
exist. Courts may not infer from the silence of the Constitution that an
unlisted right is unavailable to protect individuals from the government.
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or
to the people.
Comment: The Tenth Amendment restates a fundamental
constitutional rule: If a particular power was not assigned to the federal
government by the Constitution itself, then the states may exercise the power,
unless the Constitution also prohibits the states from exercising it. The Tenth
Amendment also states that people are free to act, without permission of the
federal government, in areas outside the scope of the federal government's
powers.
K |
|
Other Amendments |
Amendment 11 |
(Ratified February 7, 1795)
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.
Comment: State governments have immunity from some types of
suits in federal courts.
(Ratified July 27, 1804)
The Electors shall meet in their respective States and vote by
ballot for President and Vice President, one of whom, at least, shall not be an
inhabitant of the same State with themselves; they shall name in their ballots
the person voted for as President, and in distinct ballots the person voted for
as Vice President, and they shall make distinct lists of all persons voted for
as President, and of all persons voted for as Vice President, and of the number
of votes for each, which lists they shall sign and certify, and transmit sealed
to the seat of the government of the United States, directed to the President of
the Senate;—The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall then be
counted;—The person having the greatest number of votes for President, shall be
the President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having the
highest numbers not exceeding three on the list of those voted for as President,
the House of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the
representation from each state having one vote; a quorum for this purpose shall
consist of a member or members from two-thirds of the states, and a majority of
all the states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right of choice shall
devolve upon them, before the fourth day of March next following, then the Vice
President shall act as President, as in the case of the death or other
constitutional disability of the President.—The person having the greatest
number of votes as Vice President, shall be the Vice President, if such number
be a majority of the whole number of Electors appointed, and if no person have a
majority, then from the two highest numbers on the list, the Senate shall choose
the Vice President; a quorum for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the office of
President shall be eligible to that of Vice President of the United States.
Comment: If no presidential candidate wins a majority in the
electoral college, then the House of Representatives, voting by state, chooses
the president, and the Senate chooses the vice president.
(Ratified December 6, 1865)
Section 1. Neither Slavery, nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall
exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
Comment: Slavery and peonage are illegal.
(Ratified July 9, 1868)
Section 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Comment: Anyone born or naturalized in the United States is a
citizen. All citizens are entitled to due process (basic fairness), according to
the Constitution and Bill of Rights. Laws must be enacted and enforced in a way
that treats people equally.
Section 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But when the right to vote
at any election for the choice of electors for President and Vice President of
the United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to any
of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male citizens shall bear to
the whole number of male citizens twenty-one years of age in such State.
Comment: If a state bars adult men from voting, the state’s
congressional representation is reduced proportionately. Historically, this
section has had very little effect.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an officer of the United States,
or as a member of any State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Comment: Those who pledged their loyalty to the Confederacy in
the Civil War were barred from serving in Congress, unless two-thirds of
Congress agreed to waive the restriction for an individual.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions and bounties
for services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provision of this article.
Comment: Debts incurred by the Confederacy during the Civil War
were declared invalid and noncollectable from the states and the federal
government.
(Ratified February 3, 1870)
Section 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on account of
race, color or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Comment: Neither state governments nor the federal government
can stop people from voting because of their race or because they were once
slaves. This amendment was enforced briefly in the 1870s, and after that not
until the 1960s and later.
(Ratified February 3, 1913)
The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
Comment: Congress can impose an income tax, and it need not be
tied to variances in state population.
(Ratified April 8, 1913)
The Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof for six years; and each Senator
shall have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of election to
fill such vacancies: Provided, That the legislature of any State may
empower the executive thereof to make temporary appointments until the people
fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election
or term of any Senator chosen before it becomes valid as part of the
Constitution.
Comment: Voters in each state elect two members to the United
States Senate. Previously Article I, Section 3, gave this power to state
legislatures. When there is a vacancy in a state’s Senate delegation, the
state’s governor can appoint a replacement until an election can be held to fill
the position.
(Ratified January 16, 1919)
Section 1. After one year from the ratification of this article the
manufacture, sale, or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United States and
all territory subject to the jurisdiction thereof for beverage purposes is
hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of the
several States, as provided in the Constitution, within seven years from the
date of the submission hereof to the States by the Congress.
Comment: This was the ban on alcohol known as Prohibition, which
was repealed in 1933.
(Ratified August 18, 1920)
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate
legislation.
Comment: Women have the right to vote.
(Ratified January 23, 1933)
Section 1. The terms of the President and Vice President shall end
at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the third day of January, of the years in which such
terms would have ended if this article had not been ratified; and the terms of
their successors shall then begin.
Comment: The terms of the president and vice president begin on
January 20th of each year following presidential elections. Members of Congress
assume office on January 3 after their election.
Section 2. The Congress shall assemble at least once in every year,
and such meeting shall begin at noon on the third day of January, unless they
shall by law appoint a different day.
Comment: Congressional sessions begin on January 3 unless
Congress decides otherwise.
Section 3. If, at the time fixed for the beginning of the term of
the President, the President elect shall have died, the Vice President elect
shall become President. If a President shall not have been chosen before the
time fixed for the beginning of his term, or if the President elect shall have
failed to qualify, then the Vice President elect shall act as President until a
President shall have qualified; and the Congress may by law provide for the case
wherein neither a President elect nor a Vice President elect shall have
qualified, declaring who shall then act as President, or the manner in which one
who is to act shall be selected, and such person shall act accordingly until a
President or Vice President shall have qualified.
Comment: If a newly elected president dies before taking office,
the newly elected vice president assumes the office. If no president has been
chosen when the new presidential term is set to begin, the newly elected vice
president becomes acting president until the president is chosen. If neither the
president nor the vice president has been chosen when the president’s term is
set to begin, Congress can determine who becomes acting president.
Section 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives may choose a
President whenever the right of choice shall have devolved upon them, and for
the case of the death of any of the persons from whom the Senate may choose a
Vice President whenever the right of choice shall have devolved upon them.
Comment: Congress can pass a law to determine the line of
presidential succession after the vice president. Currently the office goes to
the Speaker of the House, followed by the president pro tem of the Senate, and
then a sequence of cabinet officials.
Section 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of its
submission.
(Ratified December 5, 1933)
Section 1. The eighteenth article of amendment to the Constitution
of the United States is hereby repealed.
Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in the several
States, as provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Comment: The ban on alcohol known as Prohibition was repealed,
but states retain the right to regulate alcohol.
(Ratified February 27, 1951)
Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of President,
or acted as President, for more than two years of a term to which some other
person was elected President shall be elected to the office of the President
more than once. But this Article shall not apply to any person holding the
office of President when this Article was proposed by the Congress, and shall
not prevent any person who may be holding the office of President, or acting as
President, during the term within which this Article becomes operative from
holding the office of President or acting as President during the remainder of
such term.
Section 2. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of its
submission to the States by the Congress.
Comment: Nobody can be elected to more than two terms as
president. This amendment was passed in reaction to Franklin D. Roosevelt’s four
terms.
(Ratified March 29, 1961)
Section 1. The District constituting the seat of Government of the
United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the
whole number of Senators and Representatives in Congress to which the District
would be entitled if it were a State, but in no event more than the least
populous State; they shall be in addition to those appointed by the States, but
they shall be considered, for the purposes of the election of President and Vice
President, to be electors appointed by a State; and they shall meet in the
District and perform such duties as provided by the twelfth article of
amendment.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Comment: Residents of Washington, D.C., can vote in presidential
elections.
(Ratified January 23, 1964)
Section 1. The right of citizens of the United States to vote in
any primary or other election for President or Vice President, for electors for
President or Vice President, or for Senator or Representative in Congress, shall
not be denied or abridged by the United States or any State by reason of failure
to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Comment: Nobody can be barred from voting because they have not
paid a poll tax—a special tax on voters used historically in the South to
prevent African Americans from participating in elections.
(Ratified February 10, 1967)
Section 1. In case of the removal of the President from office or
of his death or resignation, the Vice President shall become President.
Comment: If the president resigns, the vice president takes
over.
Section 2. Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice President who shall take office
upon confirmation by a majority vote of both Houses of Congress.
Comment: If there is no vice president, the president can
appoint a replacement, subject to the approval of a majority of both houses of
Congress.
Section 3. Whenever the President transmits to the President pro
tempore of the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice President as Acting
President.
Comment: The vice president takes over the presidency if the
president notifies congressional leaders that he or she is unable to continue in
office.
Section 4. Whenever the Vice President and a majority of either the
principal officers of the executive departments or of such other body as
Congress may by law provide, transmit to the President pro tempore of the Senate
and the Speaker of the House of Representatives their written declaration that
the President is unable to discharge the powers and duties of his office, the
Vice President shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President pro
tempore of the Senate and the Speaker of the House of Representatives his
written declaration that no inability exists, he shall resume the powers and
duties of his office unless the Vice President and a majority of either the
principal officers of the executive department or of such other body as Congress
may by law provide, transmit within four days to the President pro tempore of
the Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of
his office. Thereupon Congress shall decide the issue, assembling within
forty-eight hours for that purpose if not in session. If the Congress, within
twenty-one days after receipt of the latter written declaration, or, if Congress
is not in session, within twenty-one days after Congress is required to
assemble, determines by two-thirds vote of both Houses that the President is
unable to discharge the powers and duties of his office, the Vice President
shall continue to discharge the same as Acting President; otherwise, the
President shall resume the powers and duties of his office.
Comment: The vice president and a majority of cabinet members
can strip the president of powers if they certify to congressional leaders that
he or she has become incapable of doing the job. The president regains power by
notifying congressional leaders that he or she is fit to work. If the vice
president and a majority of the cabinet continue to maintain that the president
cannot serve, the president retains his or her power unless two-thirds of each
house of Congress vote that he or she is unfit.
(Ratified July 1, 1971)
Section 1. The right of citizens of the United States, who are 18
years of age or older, to vote shall not be denied or abridged by the United
States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Comment: The minimum voting age in all federal, state, and local
elections in the United States is 18.
(Ratified May 7, 1992)
No law, varying the compensation for the services of the Senators
and Representatives, shall take effect until an election of Representatives
shall have intervened.
Comment: Congressional pay rates cannot be changed until an
intervening House of Representatives election has occurred.
Contributed By:
Jethro K. Lieberman
Microsoft ® Encarta ® Reference Library 2004. © 1993-2003 Microsoft
Corporation. All rights reserved.
|