I | INTRODUCTION |
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.
B | Slavery |
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.
C | Presidency |
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. See also President of the United
States.
D | Judiciary |
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.
VI | OVERVIEW |
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 |
C1 | Equality |
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
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.
C2 | The Right to Privacy |
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 (see Birth Control). 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.
C3 | Free Speech |
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.
C4 | Religious Rights |
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 Supreme 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.
In two cases in 2005 the Court ruled on the question of whether religious
displays violated the Establishment Clause. In Van Orden v. Perry
the Court ruled that a granite monument of the Ten Commandments displayed on the
grounds of the Texas capitol was not in violation of the clause. However, in
McCreary County v. American Civil Liberties Union, the Court ruled
that framed copies of the Ten Commandments on the walls of two Kentucky
courthouses were unconstitutional. The Court 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.
C5 | Rights of the Accused |
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.
C6 | Other Civil Liberties |
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.
X | THE CONSTITUTION TODAY |
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 |
A | Preamble |
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.
B | Article I |
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.
C | Article II |
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.
D | Article III |
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.
E | Article IV |
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.
F | Article V |
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.
G | Article VI |
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.
H | Article VII |
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 | 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.
B | Amendment 2 |
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.
C | Amendment 3 |
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).
D | Amendment 4 |
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.
E | Amendment 5 |
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.
F | Amendment 6 |
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.
G | Amendment 7 |
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.
H | Amendment 8 |
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.
I | Amendment 9 |
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.
J | Amendment 10 |
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 | 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.
L | Amendment 12 |
(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.
M | Amendment 13 |
(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.
N | Amendment 14 |
(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.
O | Amendment 15 |
(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.
P | Amendment 16 |
(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.
Q | Amendment 17 |
(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.
R | Amendment 18 |
(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.
S | Amendment 19 |
(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.
T | Amendment 20 |
(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.
U | Amendment 21 |
(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.
V | Amendment 22 |
(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.
W | Amendment 23 |
(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.
X | Amendment 24 |
(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.
Y | Amendment 25 |
(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.
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