| United States Constitution | |
Page one of the original copy of the Constitution
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| Created | September 17, 1787 |
| Ratified | June 21, 1788 |
| Location | National Archives, Washington, D.C. |
| Author(s) | twelve state delegations in Philadelphia Convention |
| Signatories | 39 of the 55 Philadelphia Convention delegates |
| Purpose | National constitution to replace the Articles of Confederation |
| United States of America |
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| Original text of the Constitution |
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| Preamble Articles of the Constitution |
| Amendments to the Constitution |
| Bill of Rights I · II · III · IV · V VI · VII · VIII · IX · X Subsequent Amendments |
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The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the national government with its citizens, the states, and all those within the United States.
Unlike evolving historical constitutions, it is a prescriptive establishment of government.[1] The first three Articles of the Constitution establish the three branches of the national government: a legislature, the bicameral Congress; an executive branch led by the President; and a national judiciary headed by the Supreme Court. The last four Articles frame federal relationships among the governments of the nation and states for the people. The Tenth Amendment confirms its federal characteristics. All powers not enumerated are reserved to the respective states or to the people themselves.
The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in eleven states in the name of "the People". The first ten amendments to it are known as the Bill of Rights. The Constitution has been amended by the people living under its jurisdiction a total of twenty-seven times.
Writers of the Constitution are memorialized as the Framers. The oldest charter of supreme law in continuous use,[lower-alpha 1] it influenced later international figures establishing national constitutions. Its principles guide American society in law and political culture. Those principles are extended in courts of law by judicial review. Recent impulses for reform center on concerns for extending democracy and balancing the Federal budget.
Contents |
The Articles of Confederation and Perpetual Union were the first constitution of the United States of America.[2] The problem with the United States government under the Articles of Confederation was, in the words of George Washington, "no money".[3]
Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back.[3] No state paid all of their U.S. taxes; Georgia paid nothing. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more.[3] No interest was paid on debt owed foreign governments. By 1786, the United States would default on the dates the principal came due.[3]
The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny.[4]Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates' extortion demands. The Congress had no more credit if another military crisis had required action.[3]
The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.[3]
In Massachusetts during Shays' Rebellion, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteer army.[5] During the upcoming Convention, James Madison angrily questioned whether the Articles of Confederation was a compact or even government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years.[6] A rumor had it that a "seditious party" of New York legislators had opened communication with the Viceroy of Canada. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.[7]
Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. When only one member of a state was on the floor, then that state’s vote did not count. If a delegation were evenly divided, no vote counted towards the nine-count requirement.[8] Individual state legislatures independently laid embargoes, negotiated directly with foreigners, raised armies and made war, all violating the letter and the spirit of the “Articles of Confederation and Perpetual Union”. The Articles Congress had "virtually ceased trying to govern."[9] The vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin and Rufus King. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.[10]
On February 21, 1787, the Articles Congress called a convention of state delegates at Philadelphia to propose a plan of government. Unlike earlier attempts, it was not meant for new laws or piecemeal alterations, but for the “sole and express purpose of revising the Articles of Confederation”. It was not to be limited to commerce, it was intended to “render the federal constitution adequate to the exigencies of government and the preservation of the Union." The proposal might take effect when approved by Congress and the states.[11]
On the appointed day, May 14, only Virginia and Pennsylvania delegations were present. A quorum of seven met on May 25. Eventually twelve states were represented, 74 delegates were named, 55 attended, 36 signed. They arrived with backgrounds in local and state government and Congress. They were judges and merchants, war veterans and revolutionary patriots, native-born and immigrant, establishment easterners and westward-looking adventurers. The participating delegates are honored as the Constitution’s “Framers”.[12]
The sense of potential disaster and the need for drastic change pervaded the Constitutional Convention that began its deliberations on May 25, 1787. All of the delegates were convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation.
On May 29, Edmund Randolph, on behalf of the Virginia delegation, submitted fifteen propositions as a plan of government to the convention. Despite the fact that the delegates were limited by the instructions of their State legislatures to a revision of the Articles, Virginia had really recommended a new instrument of government. For example, a provision was made in the Virginia Plan for the separation of the three branches of government; under the Articles executive, legislative, and judicial powers were vested in the Congress. Furthermore, the legislature was to consist of two houses rather than one. On May 30, the Convention devolved into a committee of the whole to consider the fifteen propositions of the Virginia Plan seriatim. These discussions continued until June 13, when the Virginia resolutions in amended form were reported out of committee.
The delegates agreed that the new government would be composed of three separate branches, based on ideals enumerated in John Locke's Two Treatises of Government: legislative, judicial, and executive, each with distinct powers to balance those of the other two branches. It was also agreed that the legislative branch, like the British Parliament, and the state legislatures (except Pennsylvania's), should consist of two houses.
Beyond this point, however, there were sharp differences of opinion that at times threatened to disrupt the convention and cut short its proceedings before a constitution was drafted. The Virginia Plan provided for proportional representation in both houses, which dissatisfied the smaller states.
The large states argued in favor of proportional representation in the legislature, so that each state would have voting power equal to its population, calling equal representation per state, "confessedly unjust." The small states, fearing domination by the large ones, insisted on equal representation per state. The question was settled by the Connecticut Compromise or "Great Compromise". A compromise spirit began to prevail; however, the small States were not willing to support a strong national government.
The Great Compromise ended the rift between the large and small states, and throughout the summer, the delegates worked out numerous other compromises. Some delegates, fearful of giving too much power to the people, argued for indirect election of all federal officials; others wanted as broad an electoral base as possible. Some wanted to exclude the western territories from eventual statehood; others saw the future strength of the nation in the lands beyond the Appalachian Mountains. There were sectional interests to be balanced by the three fifths compromise; differing views to be reconciled on the term, powers, and method of selection of the president; and conflicting ideas on the role of the federal judiciary.
The high quality of the delegates to the convention eased the way to compromise. Only a few of the great leaders of the American Revolution were absent: Thomas Jefferson and John Adams, both future presidents, were serving as America's envoys to France and Britain, respectively; John Jay was busy as secretary of foreign affairs of the Confederation, although he later wrote some of the Federalist Papers. A handful of others, including Samuel Adams, Thomas Paine, and Patrick Henry, chose not to participate, believing that the existing governmental structure was sound. Of those in attendance, the best known by far was George Washington, commander of American troops and hero of the Revolution, who presided over the convention. Benjamin Franklin, the scientist, scholar, and diplomat, was also there. Therefore, there were such outstanding men as James Madison of Virginia, Gouverneur Morris of Pennsylvania, and Alexander Hamilton, the brilliant young lawyer and soldier from New York.
Even the youngest delegates, still in their twenties and thirties, had already displayed political and intellectual gifts. As Thomas Jefferson in Paris wrote to John Adams in London, "It really is an assembly of demigods."
Debates on the Virginia resolutions continued. The 15 original resolutions had been expanded into 23. Since these resolutions were largely declarations of principles, on July 24, a committee of five (John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania) was elected to draft a detailed constitution embodying the fundamental principles that had thus far been approved. The Convention adjourned from July 26 to August 6 to await the report of this "Committee of Detail". This committee, in preparing its draft of a Constitution, turned for assistance to the State constitutions, to the Articles of Confederation, to the various plans that had been submitted to the Convention and other available material. Overall, the report of the committee conformed to the resolutions adopted by the Convention, though on many clauses the members of the committee left the imprint of their individual and collective judgments. In a few instances, the committee avowedly exercised considerable discretion.
Some of the ideas the Constitution embodied were new, but many were drawn from Classical Antiquity and the British governmental tradition of mixed government, which was practiced in 12 of the 13 states and was advocated by the writings of Charles de Secondat, Baron de Montesquieu. The United States Constitution was partly based on ideas from the uncodified constitution of the United Kingdom, such as Article 39 from the British Magna Carta of 1215, which states:
"No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land."
The British Bill of Rights also acted as a source of ideas for the United States Constitution. For example, like the British Bill of Rights, the U.S. Constitution requires jury trials, contains a right to bear arms, and prohibits excessive bail and of "cruel and unusual punishments".
The Declaration of Independence also acted as an important guide, keeping the minds of the delegates fixed on the ideas of self-government and preservation of fundamental human rights. The writings of such European political philosophers as Montesquieu and John Locke were influential. What they sought to create was a balanced government of checks and balances.
From August 6 to September 10, the report of the committee of detail was discussed, section-by-section, and clause-by-clause. Details were attended to, further compromises were affected. Toward the close of these discussions, on September 8, another committee of five (William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and Rufus King of Massachusetts.) was appointed “to revise the style of and arrange the articles which had been agreed to by the house.”
On Wednesday, September 12, the report of the "committee of style" was ordered printed for the convenience of the delegates. For three days, the Convention compared this report with the proceedings of the Convention. The Constitution was then ordered engrossed on Saturday, September 15, and the work was done by Jacob Shallus.
The Convention met on Monday, September 17, for its final session. Several of the delegates were disappointed in the result. A few deemed the new Constitution a mere makeshift, a series of unfortunate compromises. Some delegates left before the ceremony, and three of those remaining refused to sign: Edmund Randolph and George Mason of Virginia, and Elbridge Gerry of Massachusetts. Of the thirty-nine who did sign, probably no one was completely satisfied, and their views were ably summed up by Benjamin Franklin, who said, "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, however, "because I expect no better and because I am not sure that it is not the best."
An amendment was agreed upon to change "the number of Representatives shall not exceed one for every forty thousand" to "the number of Representatives shall not exceed one for every thirty thousand." A paragraph making clear this change and a few minor modifications was appended to the document by Shallus, and attested to by secretary William Jackson.
The advocates of the Constitution, realizing the impending difficulty of obtaining the consent of the States to the new instrument of Government, were anxious to obtain the unanimous support of the delegations from each State. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, to ensure the action of the Convention appeared unanimous, Gouverneur Morris devised the formula “Done in Convention, by the unanimous consent of the States present the 17th of September...In witness where of we have here unto subscribed our names.” Thirty-nine of the forty-two delegates present there upon “subscribed” to the document.
It was within the power of the old congress to expedite or block the ratification of the new Constitution. The document that the Philadelphia Convention presented was technically only a revision of the Articles of Confederation. But the last article of the new instrument provided that when ratified by conventions in nine states (or 2/3 at the time), it should go into effect among the States so acting.
Then followed an arduous process of ratification of the Constitution by specially constituted conventions. The need for only nine states was a controversial decision at the time, since the Articles of Confederation could only be amended by unanimous vote of all the states. However, the new Constitution was ratified by all thirteen states, with Rhode Island signing on last in May 1790.
Three members of the Convention—Madison, Gorham, and King—were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, unanimously decided to submit the Constitution to the States for action. It made no recommendation for or against adoption.[13]
Two parties soon developed, one in opposition, the Antifederalists, and one in support, the Federalists, of the Constitution, and the Constitution was debated, criticized, and expounded clause by clause. Hamilton, Madison, and Jay, under the name of "Publius, wrote a series of commentaries, now known as the Federalist Papers, in support of the new instrument of government; however, the primary aim of the essays was for ratification in the state of New York, at that time a hotbed of anti-federalism. These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. The closeness and bitterness of the struggle over ratification and the conferring of additional powers on the central government can scarcely be exaggerated. In some states, ratification was effected only after a bitter struggle in the state convention itself. In every state, the Federalists proved more united, and only they coordinated action between different states, as the Anti-federalists were localized and did not attempt to reach out to other states.
Delaware, on December 7, 1787, became the first State to ratify the new Constitution, with its vote being unanimous. Pennsylvania ratified on December 12, 1787, by a vote of 46 to 23 (66.67%). New Jersey ratified on December 19, 1787, and Georgia on January 2, 1788, both with unanimous votes. The requirement of ratification by nine states, set by Article Seven of the Constitution, was met when New Hampshire voted to ratify, on June 21, 1788.
In New York, fully two thirds of the convention delegates were at first opposed to the Constitution. Hamilton led the Federalist campaign, which included the fast-paced appearance of the Federalist Papers in New York newspapers. An attempt to attach conditions to ratification almost succeeded, but on July 26, 1788, New York ratified, with a recommendation that a bill of rights be appended. The vote was close—yeas 30 (52.6%), nays 27—due largely to Hamilton's forensic abilities and his reaching a few key compromises with moderate anti-Federalists led by Melancton Smith.[lower-alpha 2] The Continental Congress— which still functioned at irregular intervals— passed a resolution on September 13, 1788, to put the new Constitution into operation.
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On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin. Franklin urged unanimity, although the Convention had decided only nine state ratification conventions were needed to inaugurate the new government. The Convention submitted the Constitution to the Congress of the Confederation.[14]
Massachusetts' Rufus King assessed the Convention as a creature of the states, independent of the Articles Congress, submitting its proposal to Congress only to satisfy forms. Though amendments were debated, they were all defeated. On September 28, 1787, the Articles Congress resolved "unanimously" to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure.[15] Several states enlarged the numbers qualified just for electing ratification delegates. In doing so, they went beyond the Constitution's provision for the most voters for the state legislature to make a new social contract among, more nearly than ever before, "We, the people".[lower-alpha 3]
Following Massachusetts's lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments.[22] A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s Luther Martin argued that the federal convention had exceeded its authority; he still called for amending the Articles.[23] Article 13 of the Articles of Confederation stated that the union created under the Articles was "perpetual" and that any alteration must be "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State".[24]
However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s John Lansing, Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution "as it was", seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. New York Anti’s "circular letter" was sent to each state legislature proposing a second constitutional convention for "amendments before". It failed in the state legislatures. Ultimately only North Carolina and Rhode Island would wait for amendments from Congress before ratifying.[22]
Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect for the participating states.[25] After a year had passed in state-by-state ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March,[26] and on March 4, 1789, the government duly began operations.
George Washington had earlier been reluctant to go the Convention for fear the states "with their darling sovereignties" could not be overcome.[27] But he was elected the Constitution's President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist Patrick Henry.[28] The new Congress was a triumph for the Federalists. The Senate of eleven states would be 20 Federalists to two Virginia (Henry) Anti-federalists. The House would seat 48 Federalists to 11 Antis from only four states: Massachusetts, New York, Virginia and South Carolina.[29]
Antis' fears of personal oppression by Congress were allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments became known as the Bill of Rights.[30]
| Ratification of the Constitution -- dates, states and votes -- |
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| Date | State | Votes | ||
| Yes | No | |||
| 1 | December 7, 1787 | Delaware | 30 | 0 |
| 2 | December 11, 1787 | Pennsylvania | 46 | 23 |
| 3 | December 18, 1787 | New Jersey | 38 | 0 |
| 4 | January 2, 1788 | Georgia | 26 | 0 |
| 5 | January 9, 1788 | Connecticut | 128 | 40 |
| 6 | February 6, 1788 | Massachusetts | 187 | 168 |
| 7 | April 26, 1788 | Maryland | 63 | 11 |
| 8 | May 23, 1788 | South Carolina | 149 | 73 |
| 9 | June 21, 1788 | New Hampshire | 57 | 47 |
| 10 | June 25, 1788 | Virginia | 89 | 79 |
| 11 | July 26, 1788 | New York | 30 | 27 |
| 12 | November 21, 1789 | North Carolina | 194 | 77 |
| 13 | May 29, 1790 | Rhode Island | 34 | 32 |
Objections to a potentially remote federal judiciary were reconciled with 13 federal courts (11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South.[31] Suspicion of a powerful federal executive was answered by Washington’s cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and Thomas Jefferson as Secretary of State.[32][33] What Constitutional historian Pauline Maier calls a national "dialogue between power and liberty" had begun anew.[34]
Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.
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The due process clause of the Constitution was partly based on common law stretching back to Magna Carta (1215).[14] The document established the principle that the Crown's powers could be limited.
The "law of the land" was the King in Parliament of Lords and Commons. The once sovereign King was to be bound by law. Magna Carta as "sacred text" would become a foundation of English liberty against arbitrary power wielded by a tyrant.
Both the influence of Edward Coke and William Blackstone were evident at the Convention.
In his Institutes of the Laws of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects of the Crown equally. Coke extended this principle overseas to colonists. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England.
William Blackstone saw the Parliament as legislature, the representative of the people, and so sovereign over judges in equity law. In his "Commentaries on the Laws of England" discussing cases, where ruling judges provided no rationale, he wrote one so as to connect and relate law and cases to one another in a way that had not been done so extensively before. "Commentaries" were the most influential books on law in the new republic among both lawyers generally and judges.
The most important influence from the European continent was from Enlightenment thinkers John Locke and the brilliant Montesquieu.
British political philosopher John Locke following the Glorious Revolution was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his "Two Treatises of Government". Government's duty in a social contract with the sovereign people was to serve them by protecting their rights. These basic rights of English and by extension all humanity, were life, liberty and property.
Montesquieu, emphasized the need to have balanced forces pushing against each other to prevent tyranny (this in itself reflects the influence of Polybius's 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic). In his "The Spirit of the Laws", Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial. The actuating spring driving an aristocracy is excellence and honor, the despot requires compliance and fear. In a democracy the activating spring is public virtue,
Division of power in a republic was informed by the British experience with mixed government, as well as study of republics ancient and modern. A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams. The experiences among the thirteen states after 1776 was remarkably different among those which had been charter, proprietary newly created royal colonies.
The Iroquois nations' political confederacy and democratic government have been credited as influences on the Articles of Confederation and the United States Constitution.[35] From the beginning, the colonial English needed allies to check expanding French networks, while both Virginia and Pennsylvania colonial claims extended north and west to Iroquois territory. Prominent figures such as Thomas Jefferson in colonial Virginia and Benjamin Franklin in colonial Pennsylvania were involved with leaders of the New York-based Iroquois Confederacy.[36]
This concern extended the length of the English settlement. In the 1750s at the Albany Congress, Benjamin Franklin (PA) called for "some kind of union" of English colonies to effectively deal with Amerindian tribes.[37] John Rutledge (SC) quoted Iroquoian law to the Constitutional Convention, "We, the people, to form a union, to establish peace, equity, and order..." [38]
The Iroquois experience with confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive control over the constituent members. This decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from "too much democracy". The long term independence of the Iroquois confederation suffered from international intrigues within each Iroquois nation.[39]
The diplomatic and military world of the 1787 United States was inhabited by the same Europeans. During the Articles of Confederation period, individual states had been making separate agreements with European and Amerindian foreign nations apart from Congress. Without the Convention's proposed central government, the framer's feared that the fate of the confederated Articles' United States would be the same as the Iroquois Confederacy.
The United States Bill of Rights consists of the ten amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.[40] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.
The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.
| “ | 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. | ” |
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—United States Constitution, Preamble |
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The Preamble sets out the origin, scope and purpose of the Constitution. Its origin and authority is in “We, the people of the United States”. This echoes the Declaration of Independence. “One people” dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, “to form a more perfect Union” than had previously existed in the “perpetual Union” of the Articles of Confederation. Second, to “secure the blessings of liberty”, which were to be enjoyed by not only the first generation, but for all who came after, “our posterity”.[41]
This is an itemized social contract of democratic philosophy. It details how the more perfect union was to be carried out between the national government and the people. The people are to be provided (a) justice, (b) civil peace, (c) common defense, and (d) those things of a general welfare that they could not provide themselves. A government of "liberty and union, now and forever", unfolds when “We” begin and establish this Constitution.[lower-alpha 4][43]
Article One describes the Congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the House of Representatives and the Senate.
The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.
Article I, Section 1, reads, "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." This provision gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.
Article I Section 8 enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch:
| “ | The Congress shall have power... 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. | ” |
Article I Section 9 provides a list of eight specific limits on congressional power and Article I Section 10 limits the rights of the states.
The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the United States Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had "[t]he foregoing powers and all other powers..."
Section 1 creates the presidency. The section states that the executive power is vested in a President. The presidential term is four years and the Vice President serves the identical term. This section originally set the method of electing the President and Vice President, but this method has been superseded by the Twelfth Amendment.
Section 2 grants substantive powers to the president:
Section 2 grants and limits the president's appointment powers:
Section 3 opens by describing the president's relations with Congress:
Section 3 adds:
Section 4 provides for removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court, and sets the kinds of cases it takes as original jurisdiction. Congress can create lower courts and appeals process. Congress enacts law defining crimes and providing for punishment. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.
Judicial power. III.Sec.1. is the authority to interpret and apply the law to a particular case contested by litigants. It connotes the power to punish, sentence, and direct future action to resolve conflicts. The Constitution provides an outline for the U.S. judicial system. Congress in the Judiciary Act of 1789 began to fill in detail. Current operating authority is Title 28 of the U.S. Code.[44]
As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts.[lower-alpha 5] In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts with exclusive jurisdiction were made up of districts. These heard regional appeals before consideration on a national level at the Supreme Court. The Supreme Court holds discretionary jurisdiction. Cases are not admitted before the Supreme Court until it decides that the Constitutional issues apply nationally.[44]
To enforce its decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers to coerce individuals. The court’s summary punishment for contempt immediately overrides all other punishments applicable to the subject party. Other implied powers include injunctive relief and habeas corpus remedies. The Court may imprisonment for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings. But in rare cases, the theory of justice as equity can be used to intervene. In equity, a court takes up a concern for fairness. It rules on not only the letter of the law, but what may bring about good and right between the parties.[44]
Arisings Clause. The Diversity (of Citizenship) Clause. III.Sec.2 Clause 1. Citizens of different states are citizens of the United States. Cases arising under the laws of the United States and its treaties come under the jurisdiction of Federal courts. Cases under international maritime law and conflicting land grants of different states come under Federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under Federal jurisdiction. The trials will be in the state where the crime was committed.[44]
Judicial review. III.Sec.2. U.S. courts have the power to rule legislative enactments or executive acts invalid on constitutional grounds. The Constitution is the supreme law of the land. Any court, state or federal, high or low, has the power to refuse to enforce any statute or executive order it deems repugnant to the U.S. Constitution. Two conflicting federal laws are under "pendent" jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state Legislature enacts something as under federal jurisdiction.[lower-alpha 6] To establish a federal system of national law, considerable effort goes into developing a spirit of comity between Federal government and states. By the doctrine of ‘Res Judicata’, federal courts give "full faith and credit" to State Courts.[lower-alpha 7] The Supreme Court will decide Constitutional issues of state law only on a case by case basis, and only by strict Constitutional necessity, independent of state legislators motives, their policy outcomes or its national wisdom.[lower-alpha 8]
Exceptions Clause. III. Sec.2. Clause 2. The Supreme Court has original jurisdiction in cases about Ambassadors and other public ministers and consuls, for all cases respecting foreign nation-states. >[45]
Standing. III. Sec2. Clause 2 – This is the rule for Federal courts to take a case. Justiciability is the standing to sue. A case cannot be hypothetical or concerning a settled issue. In the U.S. system, someone must have direct, real and substantial personal injury. The issue must be concrete and "ripe", that is, of broad enough concern in the Court’s jurisdiction that a lower court, either Federal or state, does not geographically cover all the existing cases before law. Courts following these guidelines exercise judicial restraint. Those making an exception are said to be judicial activist.[lower-alpha 9]
Treason. III.Sec.3. This part of the Constitution strips Congress of the Parliamentary power of changing or modifying the law of treason by simple majority statute. It's not enough to merely think treasonously; there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.[lower-alpha 10]
Article Four outlines the relation between the states and the relation between the federal government. In addition, it provides for such matters as admitting new states as well as border changes between the states. For instance, it requires states to give "full faith and credit" to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records, or proceedings may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan).
It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous and costly process. Article Four also provides for the creation and admission of new states. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence.
Amending clause. V. Section 1. Article V provides for amending the supreme "law of the land". Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The very next session, meeting by the same authority, could likewise undo the work of any previous sitting assembly. This was not the "fundamental law" the founders such as James Madison had in mind.[46]
Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment.[47] Between the two existing options for changing the supreme "law of the land", (a) too easy by the states, and (b) too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states. Two-thirds of both houses of Congress could propose an Amendment, which can become valid "for all intents and purposes" as the Constitution, when three-fourths of the states approve.[lower-alpha 11] No Amendment can ever take away equal State votes in the U.S. Senate unless a state first agrees to it. No amendment regarding slavery or direct taxes could be permitted until 1808. Slavery was abolished by the Thirteenth Amendmentin December 1865, direct tax on income was effected by the Sixteenth Amendment in February 1913.[48]
Incorporated Amendments. The Fourteenth Amendment is used by Federal courts to incorporate Amendments into the state constitutions as provisions to protect United States citizens. By 1968, the Court would hold that provisions of the Bill of Rights were "fundamental to the American scheme of justice". The Amendment in view by the Supreme Court was applicable to the states in their relationship to individual United States citizens in every state.[49]
Among the Bill of Rights, Doug Linder counts the First, Second, Fourth, and Sixth Amendment as fully incorporated into State governance. Most of the Fifth Amendment is incorporated, and a single provision of the Eighth. The Third Amendment is incorporated only in the U.S. Second Circuit, the states of New York, Connecticut and New Hampshire. The Supreme Court has not determined the Constitutional issue is yet "ripe" for national application in every state. The Seventh Amendment is not incorporated.[50] Twentieth Century Amendments use the prohibitive phrase, "neither the United States nor any State" to comprehensively incorporate the Amendment into the States at the time of its ratification into the Constitution.
Article Six establishes the Constitution, and the laws and treaties of the United States made according to it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It also validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.
Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Ratification clause. VII. Sec. 1. Article Seven details how to initiate the new government as proposed. The Constitution was transmitted to the Articles Congress, then after debate, forwarded to the states. States were to ratify the Constitution in state conventions specially convened for that purpose. The ratification conventions would arise directly from the people voting, and not by the forms of any existing State constitutions.[51]
The new national Constitution would not take effect until at least nine states ratified. It would replace the existing government under the Articles of Confederation only after three-fourths of the existing states agreed to move together by special state elections for one-time conventions. It would apply only to those states that ratified it, and it would be valid for all states joining after.[44] The Articles Congress certified eleven ratification conventions had adopted the proposed Constitution for their states on September 13, 1788, and in accordance with its resolution, the new Constitutional government began March 4, 1789.[26] (See above Ratification and beginning.)
Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The next session of a regularly elected assembly could do the same. This was not the "fundamental law" the founders such as James Madison had in mind.
Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment. Between the options for changing the "supreme law of the land", too easy by the states, and too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states.
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Changing the "fundamental law" is a two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call a constitutional convention to propose an amendment, then to be ratified by the states.
To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. Over 10,000 constitutional amendments have been introduced in Congress since 1789; during the last several decades, between 100 and 200 have been offered in a typical congressional year. Most of these ideas never leave Congressional committee, and of those reported to the floor for a vote, far fewer get proposed by Congress to the states for ratification.[lower-alpha 12]
In the first step, the proposed Amendment must find a national super majority of 67% in Congress, both House (people) and Senate (states). The second step requires a super-super 75% majority of the states ratifying, representing a majority of the people in the states ratifying. Congress determines whether the state legislatures or special state conventions ratify the amendment.[52]
On attaining Constitutional ratification of the proposal by three-fourths of the states, at that instant, the "fundamental law" for the United States of America is expressed in that Amendment. It is operative without any additional agency. Although the Founders considered alternatives, no signature is required from the President. Congress does not have to re-enact. The Supreme Court does not have to deliberate. There is no delay from a panel of lawyers to re-draft and re-balance the entire Constitution incorporating the new wording. The Amendment, with the last required state ratifying, is the "supreme law of the land.
Unlike amendments to most constitutions, amendments to the United States Constitution are appended to the body of the text without altering or removing what already exists. Newer text is given precedence.[lower-alpha 13] Subsequent printed editions of the Constitution may line through the superseded passages with a note referencing the Amendment. Notes often cite applicable Supreme Court rulings incorporating the new fundamental law into American jurisprudence, when the first precedent was given, and in what way the earlier provisions were found void.
Over the last thirty years, there have been a few proposals for amendments in mainstream political debate. These include the Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. Another may be repeal of the 17th Amendment, restoring selection of U.S. Senators to state legislatures.
The Constitution has twenty-seven amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously by 1791. The next seventeen were ratified separately over the next two centuries.
The National Archives displays the Bill of Rights as one of the three "Charters of Freedom." The original intent of these first ten Amendments was to restrict Congress from abusing its power. For example, the First Amendment -- "Congress shall make no law" establishing a religion. -- was ratified by the states before all states had, of their own accord, disestablished their official churches.
The Federalist Papers argued that amendments were not necessary to adopt the Constitution. But without the promise in their ratification conventions, Massachusetts, Virginia and New York could not have joined the Union as early as 1789. James Madison, true to his word, managed the proposed amendments through the new House of Representatives in its first session. The amendments that became the Bill of Rights were ten proposals of the twelve that Congress sent out to the states in 1789.[lower-alpha 14]
Later in American history, applying the Bill of Rights directly to the states developed only with the Fourteenth Amendment.
| “ | No State shall make or enforce any law which shall abridge the privileges ... of citizens ... nor ... deprive any person of life, liberty, or property, without due process of law; nor deny ... the equal protection of the laws. | ” |
The legal mechanism that courts use today to extend the Bill of Rights against the abuses of state government is called "incorporation". The extent of its application is often at issue in modern jurisprudence.
Generally, the Bill of Rights can be seen as the States addressing three major concerns: individual rights, federal courts and the national government’s relationships with the States.
The first Amendment defines American political community, based on individual integrity and voluntary association. Congress cannot interfere with an individual’s religion or speech. It cannot restrict a citizen’s communication with others to form community by worship, publishing, gathering together or petitioning the government.
Given their history of colonial government, most Americans wanted guarantees against the central government using the courts against state citizens. The Constitution already had individual protections such as strictly defined treason, no ex post facto law and guaranteed habeas corpus except during riot or rebellion. Now added protections came in five Amendments.
In 1789, future Federal-state relations were uncertain. To begin, the States in their militias were not about to be disarmed. And, if Congress wanted a standing army, Congress would have to pay for it, not "quarter" soldiers at state citizen expense. The people always have all their inalienable rights, even if they are not all listed in government documents. If Congress wanted more power, it would have to ask for it from the people in the states. And if the Constitution did not say something was for Congress to do, then the States have the power to do it without asking.
Potential military coercion
The Second Amendment guarantees the right of adult men in state militias to keep their own weapons apart from state-run arsenals.[lower-alpha 15] Once the new Constitution began government, states petitioned Congress to propose amendments including militia protections. New Hampshire’s proposal for amendment was, "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." New York proposed, "... a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free State."[lower-alpha 16] Over time, this amendment has been expanded by the courts to individual rights, including their overturning state legislation regulating hand guns.
Applying the Second Amendment only to the Federal government, and not to the states, persisted for much of the nation's early history. It was sustained in United States v. Cruikshank (1876) to support disarming African-Americans holding arms in self-defense from Klansmen in Louisiana. The Supreme Court held, citizens must "look for their protection against any violation by their fellow-citizens from the state, rather than the national, government." Federal protection of an individual interfering with the state’s right to disarm any of its citizens came in Presser v. Illinois (1886). The Supreme Court ruled the citizens were members of the federal militia, as were "all citizens capable of bearing arms." A state cannot "disable the people from performing their duty to the General Government". The Court was harking back to the language establishing a federal militia in 1792.[lower-alpha 17]
In 1939, the Supreme Court returned to a consideration of militia. In U.S. v. Miller, the Court addressed the enforceability of the National Firearms Act of 1934 prohibiting a short-barreled shotgun. Held in the days of Bonnie Parker and Clyde Barrow, this ruling referenced units of well equipped, drilled militia, the Founders "trainbands", the modern military Reserves.[lower-alpha 18] It did not address the tradition of an unorganized militia. Twentieth century instances have been rare but Professor Stanford Levinson has observed consistency requires giving the Second Amendment the same dignity of the First, Fourth, Ninth and Tenth.[lower-alpha 19]
Once again viewing federal relationships, the Supreme Court in McDonald v. Chicago (2010) determined that the right of an individual to "keep and bear arms" is protected by the Second Amendment. It is incorporated by the Due Process Clause of the Fourteenth Amendment, so it applies to the states.
The Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The states had suffered during the Revolution following the British Crown confiscating their militia's arms stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorically asked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationed in every house?"[53] The only existing case law directly regarding this amendment is a lower court decision in the case of Engblom v. Carey.[54] However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court's holding that the constitution protects the right to personal privacy.
Constitutional relationships
The Ninth Amendment declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained by the people. The Tenth Amendment reserves to the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the states from exercising.
Amendments to the Constitution after the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787. Although the United States Constitution has been amended 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth.
Several of the amendments have more than one application, but five amendments have concerned citizen rights. American citizens are free. There will be equal protection under the law for all. Men vote, women vote, DC residents vote,[lower-alpha 20] and 18-year olds vote.
The Thirteenth Amendment (1865) abolishes slavery and authorizes Congress to enforce abolition. The Fourteenth Amendment (1868) in part, defines a set of guarantees for United States citizenship. Fifteenth Amendment (1870) prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. The Nineteenth Amendment (1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. The Twenty-sixth Amendment (1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age.
The Twenty-third Amendment (1961) grants presidential electors to the District of Columbia. DC has three votes in the Electoral College as though it were a state with two senators and one representative in perpetuity. If Puerto Rico were given the same consideration, it would have seven Electoral College votes.[lower-alpha 21]
Seven amendments relate to the three branches of the Federal government. Congress has three, the Presidency has four, the Judiciary has one.
Congress will begin in January, not March. It can tax income. It cannot raise its own pay before re-election.
The Sixteenth Amendment (1913) authorizes unapportioned federal taxes on income. Twentieth Amendment (1933) in part, changes details of congressional terms. The Twenty-seventh Amendment (1992) limits congressional pay raises.
The Presidency has had four amendments regulating the office. The President will be chosen by name, not selected from a pool. The President is succeeded by the Vice President without a special election. The President is limited to two terms. Presidential succession is through the Vice President, elected officers of the Congress, then executive Cabinet.
The Twelfth Amendment (1804) changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. The Twentieth Amendment (1933) in part, changes details of presidential terms and of presidential succession. The Twenty-second Amendment (1951) gives the president Limits of two terms. The Twenty-fifth Amendment (1967) changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.
The Judiciary has one amendment effecting its jurisdiction. The Eleventh Amendment (1795) in part, clarifies judicial power over foreign nationals.
State citizens. The states have been protected from their citizens by a Constitutional Amendment. Citizens are limited when suing their states in Federal Court. The Eleventh Amendment (1795) in part, limits ability of citizens to sue states in federal courts and under federal law.
Most states. All states have been required to conform to the others when those delegations in Congress could accumulate super-majorities in the U.S. House and U.S. Senate, and three-fourths of the states with the same opinion required it of all. (a) The states must not allow alcohol sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth Amendment (1919) prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Repealed by the Twenty-First Amendment. Twenty-first Amendment (1933) repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages.
State legislatures. Occasionally in American history, the people have had to strip state legislatures of some few privileges due to widespread, persisting violations to individual rights. States must administer equal protection under the Constitution and the Bill of Rights. States must guarantee rights to all citizens of the United States as their own. State legislatures will not be trusted to elect U.S. Senators. States must allow all men to vote. States must allow women to vote. States cannot tax a U.S. citizen’s right to vote.
Of the thirty-three amendments that have been proposed by Congress, twenty-seven have passed. Six have failed ratification by the required three-quarters of the state legislatures. Two have passed their deadlines. Four are technically in the eyes of a Court, still pending before state lawmakers (see Coleman v. Miller). All but one are dead-ends.
The "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting "any Title of Nobility or Honour" from any foreign power. Some maintain that the amendment was ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked.[55]
The proposed amendment addressed the same "republican" and nationalist concern evident in the original Constitution, Article I, Section 9. No officer of the United States, "without the Consent of the Congress, [shall] accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State." The Constitutional provision is unenforceable because the offense is not subject to a penalty.
Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification and could still be ratified were the state legislatures to take it up.
Starting with the proposal of the 18th Amendment in 1917, each proposed amendment has included a deadline for passage in the text of the amendment. Five without a deadline became Amendments.[lower-alpha 24] One proposed amendment without a deadline has not been ratified. The Child Labor Amendment of 1924.
There are two amendments that were approved by Congress but were not ratified by enough states prior to the ratification deadline set by Congress:
The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, executive agency rules and state laws, to decide their constitutionality, and to strike them down if found unconstitutional.
Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.
Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.
The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is.".[lower-alpha 25]
Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, Federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the Twentieth Century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.[56]
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The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.[57]
In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist’s proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.[58]
The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. "A limited constitution can be preserved in practice no other way" than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people’s authority over legislatures rests "particularly with judges."[59][lower-alpha 26]
The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (NY), a co-author of the Federalist Papers, served as Chief Justice for the first six years. The second Chief Justice for a term of four years, was Oliver Ellsworth (Ct), a delegate in the Constitutional Convention, as was John Rutledge (SC), Washington’s recess appointment as Chief Justice who served in 1795. John Marshall (Va), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His service on the Court would extend 34 years over some of the most important rulings to help establish the nation the Constitution had begun. In the first years of the Supreme Court, members of the Constitutional Convention who would serve included James Wilson (Pa) for ten years, John Blair, Jr. (Va) for five, and John Rutledge (SC) for one year as Justice, then Chief Justice in 1795.
When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. "The fate of judicial review was in the hands of the Supreme Court itself." Review of state legislation and appeals from state supreme courts was understood. But the Court’s life, jurisdiction over state legislation was limited. The Marshall Court's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.[59]
In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. It finds were that Marbury and the others had a right to their commissions as judges in the District of Columbia. The law afforded Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.[lower-alpha 27][61][lower-alpha 28] The United States government, as created by the Constitution is a limited government, and a statute contrary to it is not law. In this case, both the Constitution and the statutory law applied to the particulars at the same time. "The very essence of judicial duty" according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising "under the Constitution." Courts were required to choose the Constitution over Congressional law. Further, justices take a Constitutional oath to uphold it as "Supreme law of the land".[62]
"This argument has been ratified by time and by practice ..."[lower-alpha 29][lower-alpha 30] "Marshall The Supreme Court did not declare another Act of Congress unconstitutional until the disastrous Dred Scott decision in 1857, held after the voided Missouri Compromise statute, had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year.[64]
Something of a crisis arose when, in 1935 and 1936, the Supreme Court under a reactionary majority, handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive "court packing plan". Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court’s power of judicial review has persisted.[60]
The power of judicial review could not have been preserved long in a democracy unless it had been "wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns." Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review.[65]
The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid expressing an opinion if it sees an issue is currently embarrassing or difficult. The Supreme Court limits itself by defining for itself what is a "justiciable question." First, the Court is fairly consistent in refusing to make any "advisory opinions" in advance of actual cases.[lower-alpha 31] Second, "friendly suits" between those of the same legal interest are not considered. Third, the Court requires a "personal interest", not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Having the money to sue or being injured by government action alone are not enough.[65]
These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their "standards of litigability". Under the Court’s practice, there are cases left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. "The Supreme Court is not only a court of law but a court of justice."[66]
The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but Federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions.[67] Any imprudence risks its status as a co-equal branch of government. But the Court’s guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings.[68]
Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress:[lower-alpha 32] The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt. [67]
Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretentions, but it more often tries to rationalize them. Against Congress, an Act is merely "disallowed." In the executive case, exercising judicial review produces "some change in the external world" beyond the ordinary judicial sphere.[69] The "political question" doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court’s limitation when political process allowed future policy change, but a judicial ruling would "attribute finality". Political questions lack "satisfactory criteria for a judicial determination."[70]
John Marshall recognized how the president holds "important political powers" which as Executive privilege allows great discretion. This doctrine was applied in Court rulings on President (Grant)’s duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairs are inherently political, "wholly confided by our Constitution to the political departments of the government ... [and] not subject to judicial intrusion or inquiry."[71]
Critics of the Court object in two principle ways to its self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions. (1) Its inaction is said to allow "a flood of legislative appropriations" which permanently create an imbalance between the states and federal government. (2) Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens.[72]
Supreme Courts under the leadership of subsequent Chief Justices have also used judicial review to interpret the Constitution among individuals, states and Federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.
Salmon P. Chase was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a U.S. Senator and Governor of Ohio. He has coined the slogan, "Free soil, free Labor, free men." One of Lincoln’s "team of rivals", he was appointed Secretary of Treasury during the Civil War, issuing "greenbacks". To appease radical Republicans, Lincoln appointed him to replace Chief Justice Roger B. Taney of Dred Scott case fame.
In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The "Chase Court" is famous for Texas v. White which asserted a permanent Union of indestructible states. Veazie Banks v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.
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William Howard Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, his earlier Republican career included Ohio Supreme Court, U.S. Solicitor General, U.S. Governor-General of the Philippines, and Theodore Roosevelt’s Secretary of War. He was a one-term President. He sought non-coercive foreign policies in "Dollar Diplomacy" and in his private foundation, "League to Enforce Peace." In his presidential term, Taft’s domestic agenda encompassed trust-busting and strengthening the Instate Commerce Commission.
As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court and the newly united branch of government initiated its own separate building in use today. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Arizona, New Mexico, Alaska and Hawaii. Later extensions added the Spanish-American War acquisitions of the Commonwealth of the Philippines and Puerto Rico.
In 1925, the Taft Court issued a ruling overturning a Marshall Court ruling on the Bill of Rights. In Gitlow v. New York, the Court established the doctrine of "incorporation which applied the Bill of Rights to the states. Important cases included the Board of Trade v. Olsen that upheld Congressional regulation of commerce. Olmstead v. U.S. allowed exclusion of evidence obtained without a warrant based on application of the 14th Amendment proscription against unreasonable searches. Wisconsin v. Illinois ruled the equitable power of the United States can impose positive action on a state to prevent its inaction from damaging another state.
Earl Warren was an Eisenhower nominee, Chief Justice from 1943 to 1953. Warren’s Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.
In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing "separate but equal" services. Warren built a coalition of Justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered "one-man-one-vote." Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright" and Miranda v. Arizona. First Amendment rights were addressed in Grissold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech.
William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. Following study at Stanford and Harvard, he clerked under Justice Robert H. Jackson, served as a legal adviser and writer for Barry Goldwater in his presidential campaign, and practiced law in Arizona before his Nixon appointment as Justice in 1971.
As Chief Justice, Rehnquist was a team builder. In conference, no Justice spoke a second time until all had spoken. No Justice, including himself, was assigned to write a second holding for the Court until all had written one. When Rehnquist was in the minority, he deferred to the majority to choose the writer of the majority opinion. While he would concur with overthrowing a state supreme court’s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. Fundamental law was not only to restrain states. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores.
Nevertheless, the Rehnquist Court was noted in the contemporary "culture wars" for overturning state laws relating to privacy prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.
There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights as being a cornerstone of a type of civil religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights, in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda by day and in multi-ton bomb-proof vaults by night at the National Archives Building.[74]
The idea of displaying the documents strikes some academic critics looking from point of view of the 1776 or 1789 America as "idolatrous, and also curiously at odds with the values of the Revolution." [75] By 1816 Jefferson wrote that "[s]ome men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." But he saw imperfections and imagined that potentially, there could be others, believing as he did that "institutions must advance also".[76]
Samuel P. Huntington discusses common connections for most peoples in nation-states, a national identity as product of common ethnicity, ancestors and experience, common language, culture and religion. The United States has a fate different from "most peoples". according to Huntington, since American identity is "willed affirmation" of what Huntington refers to as the American creed: (a) individual rights (b) majority rule and (c) a constitutional order of limited government power. Whittle Johnson in The Yale Review sees a sort of "covenanting community" of freedom under law, which, "transcending the 'natural' bonds of race, religion and class, itself takes on transcendent importance".[77] According to this argument, political ideals emphasize a sort of political orthodoxy which enable an ethnic diversity unequaled in Britain, France, Germany or Japan.[78]
Veneration of the Constitution was assisted in 1924 when President Calvin Coolidge dedicated a bronze-and-marble shrine for public display of the Constitution parchments at the main building of the Library of Congress. Those original pages are now housed at the National Archives Building, erected in the 1930s during a New Deal building program at the National Mall, Washington DC.
This viewpoint suggests that the United States Constitution has had a considerable influence worldwide on subsequent constitutions. International leaders initiated new nation-states including it as a model among their own traditions. These include Benito Juarez of Mexico, Jose Rizal of the Philippines, and Sun Yat-sen of China.
It has influenced legal thinking around the world towards fostering equal justice by the rule of law, establishing representation in diverse federalism, and guaranteeing individual rights by fundamental law. The topic is studied by historians and scholars in many disciplines.
Its reach is indicated by the many translations and publications made worldwide over time. Internationally, a variety of commemoratives have been issued by post services to reflect the Constitution's influence in their national political life.
Exception to the Constitution did not end at ratification. New objections have been raised and improvements suggested in every age.
Minority objections have centered on (a) extending democracy and (b) preserving states rights. Successful majority movements have been incorporated Amendments into the Constitution.
Related documents
National Archives
Official U.S. government sources
Non-governmental web sites
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