Constitution of the United States
Constitution of the United States
Constitution of the United States, system of fundamental laws of the United States of America. The Constitution was drawn up by 55 delegates to the Constitutional Convention in Philadelphia during the summer of 1787 and ratified by the states in 1788. The Constitution defines distinct powers for the Congress of the United States, the president, and the federal courts. This division of authority is known as a system of checks and balances, and it ensures that none of the branches of government can dominate the others. The Constitution also establishes and limits the authority of the federal government over the states and spells out freedoms and liberties for U.S. citizens.
2) 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.
3) THE CONSTITUTIONAL CONVENTION
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 was Jefferson, then in Paris as ambassador to France, and Adams, then in London as ambassador to Great Britain.
At least one delegate came from each state except Rhode Island. Of the 74 delegates who had been appointed, 55 attended. Patrick Henry refused to attend, fearing that the convention would concentrate too much power in the central government. Another 18 delegates either declined to come or could not attend.
The delegates settled most of the scores of issues quickly. Four questions proved far more difficult to resolve: conflicts over how the people were to be represented in Congress; what to do about slavery; the powers of the president and the procedures for election to the office; and the powers and functions of the federal courts.
A) Congressional Representation
On the key question of congressional representation, the convention eventually agreed on a compromise between Edmund Randolph’s Virginia Plan and William Patterson’s New Jersey Plan. Randolph proposed that members of both houses of Congress be apportioned (divided) according to the population of each state. Because the population in three states alone—Virginia, Pennsylvania, and Massachusetts—made up nearly half the country, Randolph’s plan would have given these populous states control of the nation. Patterson’s New Jersey Plan favored small states, giving all states equal representation in a one-chamber Congress regardless of population. Under the New Jersey Plan, the more numerous small states could unify against the larger ones. Not until mid-July did the delegates adopt a compromise originally put forth by Roger Sherman of Connecticut: Let the states have it both ways. Give the states an equal voice in the upper house, the Senate, and representation apportioned by population in the lower house, the House of Representatives. This bargain became known as the Great Compromise.
The Great Compromise sparked a heated and no less contentious dispute over slavery. Even though the words slave and slavery do not appear in the Constitution, the convention included ten provisions dealing with slavery. The most serious dispute arose over how to assign House seats to Southern states. If seats in the House of Representatives were apportioned according to state populations that included slaves, Southern states would gain an advantage because of their large slave populations. Northern states pushed to exclude slaves from the population calculations altogether. Southern states resisted, threatening to scuttle the entire Constitution. Finally abolitionists from northern states compromised. They agreed to the infamous clause in Article I that counted slaves as only three-fifths of a person and that barred Congress from ending the slave trade before 1808. The settlement over slavery led the convention to accept the Great Compromise.
Debate on the nature of the presidency and the manner of the president’s election dragged the convention into September. The delegates considered various proposals for a single three-year, six-year, and seven-year term. They debated whether the executive branch should be headed by a single leader or by many, and whether the chief executive should have the power to veto legislation, should be elected by Congress or the people, should be eligible to run for reelection, and should command the armed forces. Some delegates even hoped for a limited monarchy. Not until September 8, more than three months after the convention started, did the final shape of the presidency emerge: a single leader, elected to a four-year term and eligible for reelection, with authority to veto bills enacted by Congress. The president was also given command of the military and the power to appoint federal officials, subject to confirmation by the Senate.
Early on at the convention, Randolph of Virginia had proposed a Council of Revision, composed of federal judges and the president, to veto laws made by both Congress and state legislatures. The delegates rejected variations of this plan four times because, as Pennsylvania’s Gouverneur Morris said, those who interpret the laws “ought to have no hand in making them.” Instead, the framers agreed to create a single Supreme Court and to permit Congress to create lower federal courts.
E) Approval of the Constitution
After numerous votes settled the details, a committee on style and revision was assigned in early September to put the final results in language to submit to the people for ratification. This committee consisted of Hamilton, Morris, Madison, William Samuel Johnson of Connecticut, and Rufus King of Massachusetts. According to Madison, it was Morris who was largely responsible for the language and style of the Constitution.
The framers approved the text of the Constitution on September 15, and on September 17 all but three of the remaining delegates signed, attesting to “the unanimous consent of the States present.” This was no longer merely a compact between states, but a constitution for a new nation, recognized in the last two days when the framers adopted a preamble that began, “We, the People of the United States.”
4) 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.
5) 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 supporter’s secured victory only by promising to amend the Constitution at the first opportunity.
Delaware became the first state to ratify, on December 7, 1787. It was followed by Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, and South Carolina. On June 21, 1788, New Hampshire became the ninth state to ratify, thus making the Constitution legally effective. But without ratification by New York and Virginia, it was doubtful the Constitution could succeed. Virginia ratified four days later, but by the narrow margin of 10 votes out of 168 cast. New York finally ratified on July 26, by a vote of 30 to 27. North Carolina eventually ratified in 1789, and Rhode Island in 1790.
Madison, elected to the first Congress, pushed through a series of proposals that became the first ten amendments, also known as the Bill of Rights. These amendments safeguard freedom of speech, freedom of the press, and freedom of religion; guarantee a fair, open, and speedy trial for people accused of crimes; prohibit cruel and unusual punishments; and provide many other protections against tyrannical government. The states ratified the Bill of Rights in 1791.
The Constitution spells out in six articles (sections) the powers of the federal government and the states. Later amendments expanded some of these powers and limited others. The Constitution prevents tyrannical abuses of authority through the separation of powers: Each branch of government has its own responsibilities and cannot take action in areas assigned to the other branches. Congress enacts laws, leaving enforcement of the laws to the executive branch and interpretation of them to the judicial branch.
The Constitution does not include the term separation of powers. The first three articles establish the separation mechanism and mark out areas of responsibility for each branch of government. Article I vests (places) the legislative power of the federal government in Congress. Only Congress can enact general laws applicable to all the people, such as outlawing counterfeiting or promoting a national environmental policy.
Article II vests the executive power in the president, including the authority to appoint federal officials and to prosecute federal crimes. Congress cannot decide whether a particular person should be brought to trial for violating the law. Only the executive branch has that authority.
Article III vests the federal judicial power, including the power to conduct trials, in the Supreme Court and in other federal courts that Congress creates. Neither Congress nor the president or executive branch officials can declare a person guilty. Only a judge or jury can make these decisions.
No member of Congress may serve simultaneously as a member of the executive branch. This separation differs strikingly from the British practice, in which the prime minister and other executive officials are also members of Parliament.
The Constitution divides governmental powers in other ways, both within the federal government and between the federal government and the states. Article I splits the legislative power by creating a bicameral (two-chamber) legislature—the House of Representatives and the Senate. This article also details the specific powers that Congress can exercise, including imposing taxes, maintaining a military, and setting import duties. Congress cannot exercise powers not enumerated (listed) in the Constitution. Article I, however, grants Congress the right to make laws that it deems “necessary and proper” to carry out the enumerated powers. This implied power gives Congress wide leeway in lawmaking.
The Constitution leaves other powers to the states to exercise at their discretion, with two exceptions. First, Article VI says the Constitution is the “supreme law,” so the states cannot make laws that conflict with federal laws. Second, the Constitution guarantees to the people certain civil liberties (the right to be free of government interference) and civil rights (the right to be treated as a free and equal member of the country).
These liberties and rights are spelled out primarily in the Bill of Rights and in the 13th, 14th, 15th, and 19th amendments. Civil liberties include such cherished American freedoms as the freedom of speech, press, and religion, and the right to a fair trial. Civil rights include the right to vote and to be treated equally regardless of race or ethnic origins.
By dividing and limiting various governmental powers, the Constitution creates a system of checks and balances. If one branch threatens to become too powerful, other branches may act to block or thwart it. For example, if the president steps beyond his or her powers, Congress can refuse to provide funds, or the courts can rule the president’s actions unconstitutional.
7) 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 conflict with the Constitution.
The Mar bury case made the Supreme Court the main arbiter (decision-maker) in struggles over state and federal power. Marshall used this power in 1819, in McCulloch v. Maryland, to give vast authority to Congress and the federal government. The case arose when Congress created a national bank, the Bank of the United States. Some states objected and tried to tax the bank out of existence. The Supreme Court decided that even though the Constitution did not explicitly give Congress the power to create a bank, Congress could do so under the Necessary and Proper Clause of the Constitution. The clause empowers Congress to take whatever actions it deems appropriate to achieve its legitimate goals, such as regulating the economy. In the nearly two centuries since the Marshall court’s broad interpretation of the Necessary and Proper Clause, the federal government has expanded into nearly every aspect of U.S. social and economic life.
The Supreme Court cannot force other branches of government to obey its decisions. In 1832 the court ruled in Worcester v. Georgia in favor of the Cherokees in a treaty dispute with the United States. Upon hearing of the decision, President Andrew Jackson is said to have retorted: “John Marshall has made his decision, now let him enforce it.” Jackson ignored the court’s decision, and Georgia stripped the Cherokee of their land. In the next century and a half, federal and state governments sometimes ignored judicial decisions. Some Southern states evaded the Court’s 1954 desegregation ruling in Brown v. Board of Education of Topeka for years. Arkansas, for example, refused to abide by the Court’s decision until 1957, when President Dwight Eisenhower sent federal troops to enforce it. But the principle of judicial review has historically been so widely respected that eventually the Court’s declaration of constitutional principles has prevailed.
B) Regulating Business and Commerce
Congress has no broader power than that which it exercises under the Commerce Clause. Under the Articles of Confederation, uncontrolled economic competition between the states stifled the country’s economy. Conflicts over navigation rights and the practice of taxing goods from other states helped spur the states to call the Constitutional Convention. The framers sought to avoid such problems by assigning to Congress the power to regulate interstate and foreign commerce. In 1824 in Gibbons v. Ogden, Chief Justice Marshall gave the Commerce Clause a sweeping definition, establishing Congress’s commerce power as a broad tool for national policy making. Commerce is more than just buying and selling, he said, and the authority to regulate commerce includes the right to control nearly all areas of the national economy. This power grew throughout the 19th century, especially after the Civil War (1861-1865) as manufacturing and industry grew in importance in the American economy. The commerce power gave Congress the authority to create regulatory agencies that set railroad rates and conditions, regulated the quality of foods and drugs, and subjected more and more of the economy to governmental oversight.
In the late 19th century the Supreme Court narrowed the reach of the Commerce Clause, pointing to the Tenth Amendment of the Constitution, which reserves power to the states that is not delegated to the federal government. Activities such as manufacturing, the Court said, are not part of interstate commerce because they are local activities, and therefore only the states may regulate them. The Court struck down several congressional attempts to regulate labor practices, wages, and industrial conditions.
But in the late 1930s, in the midst of the Great Depression, the Supreme Court began to rethink these limitations. By 1940, when President Franklin D. Roosevelt had appointed several new justices, the Court proclaimed a new doctrine: Anything that affects interstate commerce falls within Congress’s commerce power. Since then, Congress has had a free hand to regulate industrial and economic activities in countless ways. Major civil rights laws outlawing discrimination, for example, were enacted under the commerce power.
In the 1990s the Supreme Court revived some of the earlier doctrines, putting brakes on Congress’s exercise of the commerce power for the first time in 60 years. In 1995 in United States v. Lopez, the Court struck down a federal law outlawing guns in schools across the country because there was no showing of an effect on commerce. Congress does not have a general power to police evils, the Court said. This power is for the states to exercise. The Supreme Court has also given new life to the Tenth Amendment, but not as broadly as in the early 20th century. In 1997 in Printz v. United States and Mack v. United States the court struck down a federal gun control law that required state officials to conduct a background check on gun buyers. The Court invalidated the background checks because under the Tenth Amendment, Congress may not direct state officials to take particular actions, even if those actions relate to commerce.
C) Protecting Personal Rights
The original, unamended text of the Constitution does not guard against unequal treatment of individuals, except in one minor way. The Privileges and Immunities Clause of Article IV forbids states from favoring their own citizens against nonresidents within their borders. Nothing in the Constitution, however, barred the states from discriminating against people because of their race or gender. Formal legal equality became a constitutional principle only upon ratification of the 13th Amendment in 1865 and the 14th Amendment in 1868. The 13th Amendment abolished slavery, and it is the only constitutional provision that applies directly to all U.S. citizens rather than simply to the government. The 14th Amendment imposed limitations on state power for the first time since the Constitution itself was ratified.
One part, the Equal Protection Clause, prohibits a state from denying to any person within its borders “the equal protection of the laws.” This clause was intended to bar Southern states from discriminating against former slaves. Courts enforced the Equal Protection Clause sparingly for nearly a century. During this period the Supreme Court struck down only a few laws on the grounds that they were racially discriminatory. In 1880, for example, the Supreme Court ruled unconstitutional a West Virginia law denying blacks the right to serve on juries. But in 1883 in the Civil Rights Cases the Supreme Court held that the Equal Protection Clause applies only to activities carried out by the states themselves, not by private citizens. This decision permitted racial segregation in private facilities such as hospitals, restaurants, and hotels. In 1896, in the notorious case of Plessey v. Ferguson, the Supreme Court ruled that a state could officially segregate blacks and whites as long as the black facilities were “equal.”
This separate-but-equal doctrine lasted until 1954 when the Court ruled in the landmark case Brown v. Board of Education that schools racially segregated by government decree can never be equal. In Bolling v. Sharpe that same year, which involved segregated schools in the District of Columbia, the Court ruled that the due process clause of the Fifth Amendment binds the federal government under the same equal protection rule.
Since 1954 the Equal Protection Clause has figured in dozens of landmark Supreme Court cases and in thousands of lower-court cases around the country. In 1967, for example, the Court ruled in Loving v. Virginia that the State of Virginia could not make it a criminal offense for black and white individuals to marry. By 1970 the Court had made it clear that racial discrimination of any sort is unconstitutional.
The Court then began applying the Equal Protection Clause to laws and policies that treated men and women unequally. But not all were struck down. In 1981, for instance, the Court ruled in Rostker v. Goldberg that the federal government could require men, but not women, to register for the military draft. On the whole, however, the Equal Protection Clause bars gender-based discrimination in nearly all other areas of U.S. society. The clause has also been used to void laws that discriminated against foreigners residing in the United States and against children born to parents who were not married.
Two fiercely debated issues are as yet unresolved. First, the Court has not equated “sexual orientation” with “protected classes” such as race or ethnic origin. As a consequence, the Court has so far not declared any general constitutional right of homosexuals to be free from discrimination. Second, the Court has said that race may be taken into account when necessary to remedy past constitutional violations, so that an affirmative-action program designed to increase the number of minorities working for a municipal police or fire department is constitutional if those departments had discriminated in the past. But in a series of cases in the 1990s, the Court has suggested that affirmative-action programs that set aside a certain number of places or dollars for members of minorities, without regard to past discrimination, are unlikely to withstand constitutional scrutiny.
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, those parents have a broad but limited right to raise their children as they see fit.
This idea—that the Constitution protects people’s right to live their lives as they desire—did not excite much comment until 1965. That year the Supreme Court in Griswold v. Connecticut struck down a state law prohibiting married couples from using contraceptives. There was no rational reason for such a law, the Court said, and it too drastically interfered with the basic intimacy of the marriage bond. Most states had laws similar to Connecticut’s, but few if any actually enforced them; so the Court’s ruling as a practical matter reflected prevailing values. But Griswold paved the way for a far more controversial case.
In 1973 the Court held in Roe v. Wade that the states cannot bar a woman from having an abortion because of the constitutional right to privacy. Because it went against the deep convictions of many people, Roe ignited a firestorm of political controversy that has continued ever since. Although the court has heard many abortion cases in the years since Roe and has changed the rules somewhat, it has declined to back away from the central point: A woman has a constitutional right to control her body.
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 court ruled in Cantwell v. Connecticut that the religion clauses bind the states just as the press and speech clauses do.
The application of the Establishment Clause usually turns on whether and to what degree the government may provide support for religious activities. The court has prohibited officially sponsored school prayer, although children in public schools may pray on their own. The Court’s decisions in other areas have been less consistent. The Court has permitted displays of religious symbols, such as a Christmas scene, in public areas such as parks and municipal buildings in some instances and not in others. Similarly, it has approved government expenditures that benefit religious schools in some cases and not in others. The outcome of each case turns on the specific facts involved.
More difficult questions arise when the government outlaws an activity that incidentally affects a religious practice. In Employment Division v. Smith (1990) the Court ruled that Oregon could prohibit the use of peyote, a hallucinogen, even though it is used in some Native American religious ceremonies. The Court reasoned that because the law was general in scope and had the secular (nonreligious) purpose of outlawing dangerous drugs, the law did not violate the Constitution merely because it also resulted in the banning of a particular religious practice. On the other hand, a law is not necessarily general and neutral just because the government says so. In 1993 the Court unanimously struck down a Hialeah, Florida, municipal ordinance that banned animal sacrifice. Although the ban seemed neutral, the court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that the law unfairly targeted the Santería religion.
The legal interpretation of the separation of church and state raises perplexing legal issues because the Free Exercise Clause sometimes conflicts with the Establishment Clause. If the government taxes church property, for example, does the tax violate the church’s right to “free exercise” of its religion? If, on the other hand, the state exempts churches from property taxes, does the exemption constitute an unconstitutional “establishment” of religion. In 1971 the Supreme Court upheld property tax exemptions for religious groups in Walz v. Tax Commission of the City of New York, but the tension between the Establishment and Free Exercise clauses still defies simple resolution by the Supreme Court.
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 warning, 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.
8) 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.
9) Amendments in 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.
10) 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.
11) TEXT OF THE CONSTITUTION
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
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 are 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;
1) To borrow Money on the Credit of the United States;
2) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
3) To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
4) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
5) To provide for the Punishment of counterfeiting the securities and current Coin of the United States;
6) To establish Post Offices and post Roads;
7) 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;
8) To constitute Tribunals inferior to the supreme Court;
9) To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
10) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
11) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
12) To provide and maintain a Navy;
13) To make Rules for the Government and Regulation of the land and naval Forces;
14) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
15) 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;
16) 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
17) 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.
1) No Tax or Duty shall be laid on Articles exported from any State.
2) 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 Behavior, 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.
12) 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 defense.
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 (non criminal) 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 non collectable 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.
Z) Amendment 26 (Ratified July 1, 1971)
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Comment: The minimum voting age in all federal, state, and local elections in the United States is 18.
AA) Amendment 27 (Ratified May 7, 1992)
No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.
Comment: Congressional pay rates cannot be changed until an intervening House of Representatives election has occurred.