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United States Constitution

The Constitution of the United States is the supreme law of the United States of America. The first three Articles of the Constitution establish the rules and separate powers of the three branches of the federal government: a legislature, the bicameral Congress; an executive branch led by the President; and a federal judiciary headed by the Supreme Court. The last four Articles frame the principle of federalism. The Tenth Amendment confirms its federal characteristics.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in eleven states. The first ten amendments are known as the Bill of Rights. The Constitution has been amended seventeen times (for a total of 27 amendments) and its principles are applied in courts of law by judicial review.

The Constitution guides American society in law and political culture. It is the oldest charter of supreme law in continuous use, and it influenced later international figures establishing national constitutions. Recent impulses for reform center on concerns for extending democracy and balancing the Federal budget.

Contents


History

First government


              

The Articles of Confederation and Perpetual Union were the first constitution of the United States of America.[1] The problem with the United States government under the Articles of Confederation was, in the words of George Washington, "no money".

Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back. No state paid all of their U.S. taxes; Georgia paid nothing. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more. No interest was paid on debt owed foreign governments. By 1786, the United States would default on the dates the principal came due.

The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny.Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates' extortion demands. The Congress had no more credit if another military crisis had required action.

The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.

In Massachusetts during Shays' Rebellion, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteer army. During the upcoming Convention, James Madison angrily questioned whether the Articles of Confederation was a compact or even government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years. A rumor had it that a "seditious party" of New York legislators had opened communication with the Viceroy of Canada. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.

Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. When only one member of a state was on the floor, then that state s vote did not count. If a delegation were evenly divided, no vote counted towards the nine-count requirement. Individual state legislatures independently laid embargoes, negotiated directly with foreigners, raised armies and made war, all violating the letter and the spirit of the Articles of Confederation and Perpetual Union . The Articles Congress had "virtually ceased trying to govern." The vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin and Rufus King. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.

Constitutional Convention

On February 21, 1787, the Articles Congress called a convention of state delegates at Philadelphia to propose a plan of government. Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the sole and express purpose of revising the Articles of Confederation . The convention was not limited to commerce; rather, it was intended to render the federal constitution adequate to the exigencies of government and the preservation of the Union." The proposal might take effect when approved by Congress and the states.[2]

On the appointed day, May 14, only the Virginia and Pennsylvania delegations were present. A quorum of seven states met on May 25. Eventually twelve states were represented; 74 delegates were named, 55 attended and 36 signed. The delegates arrived with backgrounds in local and state government and Congress. They were judges and merchants, war veterans and revolutionary patriots, native-born and immigrant, establishment easterners and westward-looking adventurers. The participating delegates are honored as the Constitution s Framers .[3]

Drafting the Constitution

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy. The Constitutional Convention began deliberations on May 25, 1787. The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation. The high quality of the delegates to the convention was remarkable. As Thomas Jefferson in Paris wrote to John Adams in London, "It really is an assembly of demigods."

Delegates used two streams of intellectual tradition, and any one delegate could be found using both or a mixture depending on the subject under discussion, foreign affairs or the economy, national government or federal relationships among the states. The Virginia Plan recommended a consolidated national government, generally favoring the big population states. It used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke emphasizing equity in outcomes. The New Jersey Plan generally favored the small population states, using the philosophy of English Whigs such as Edmund Burke to rely on received procedure, and William Blackstone emphasizing sovereignty of the legislature.

The Convention devolved into a Committee of the Whole to consider the fifteen propositions of the Virginia Plan in their numerical order. These discussions continued until June 13, when the Virginia resolutions in amended form were reported out of committee.

All agreed to a republican form of government grounded in representing the people in the states. For the legislature, two issues were to be decided, (1) how the votes were to be allocated among the states in the Congress, and (2) how the representatives should be elected. The question was settled by the Connecticut Compromise or "Great Compromise". In the House, state power was to be based on population and the people would vote. In the Senate, state power was to be based on state legislature election, two Senators generally to be elected by different state legislatures to better reflect the long term interests of the people living in each state.

The Great Compromise ended the stalemate between patriots and nationalists , leading to numerous other compromises in a spirit of accommodation. There were sectional interests to be balanced by the three-fifths compromise; reconciliation on Presidential term, powers, and method of selection; jurisdiction the federal judiciary. Debates on the Virginia resolutions continued. The 15 original resolutions had been expanded into 23.

On July 24, a committee of five (John Rutledge (SC), Edmund Randolph (VA), Nathaniel Gorham (MA), Oliver Ellsworth (CT), and James Wilson (PA) was elected to draft a detailed constitution. The Convention adjourned from July 26 to August 6 to await the report of this "Committee of Detail". Overall, the report of the committee conformed to the resolutions adopted by the Convention, adding some elements.

From August 6 to September 10, the report of the committee of detail was discussed, section-by-section, and clause-by-clause. Details were attended to, further compromises were effected. Toward the close of these discussions, on September 8, another committee of five (William Samuel Johnson (CT), Alexander Hamilton (NY), Gouverneur Morris (PA), James Madison (VA), and Rufus King (MA). was appointed to revise the style of and arrange the articles which had been agreed to by the house. On Wednesday, September 12, the report of the "committee of style" was ordered printed for the convenience of the delegates. For three days, the Convention compared this report with the proceedings of the Convention. The Constitution was then ordered engrossed on Saturday, September 15 by Jacob Shallus. The Convention met on Monday, September 17, for its final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony, three remaining refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up addressing the Convention, "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it is not the best."

The advocates of the Constitution were anxious to obtain the unanimous support of all twelve states represented in Convention. Their agreed to formula was, Done in Convention, by the unanimous consent of the States present. George Washington noted in his diary that night, the proposal was agreed to by eleven state delegations and the lone Mr. Hamilton for New York. Transmitted to the Articles Congress then sitting in New York City, the Constitution was forwarded to the states by Congress recommending the ratification process outlined in the Constitution. Each state legislature was to call elections for a Federal Convention to ratify the Constitution. They expanded the franchise beyond the Constitutional requirement to more nearly embrace the people . Eleven of the thirteen ratified to begin, all thirteen unanimously did so a year later. The Articles Congress certified eleven states beginning the new government, and called the states to hold elections to begin operation. It then dissolved itself on that date, the day the first session of the First Congress began March 4, 1789 and George Washington was inaugurated as President two months later.

Ratification

The 13 colonies in 1775 It was within the power of the old congress to expedite or block the ratification of the new Constitution. The document that the Philadelphia Convention presented was technically only a revision of the Articles of Confederation. But the last article of the new instrument provided that when ratified by conventions in nine states (or 2/3 at the time), it should go into effect among the States so acting.

Then followed an arduous process of ratification of the Constitution by specially constituted conventions. The need for only nine states was a controversial decision at the time, since the Articles of Confederation could only be amended by unanimous vote of all the states. However, the new Constitution was ratified by all thirteen states, with Rhode Island signing on last in May 1790.

Three members of the Convention Madison, Gorham, and King were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, unanimously decided to submit the Constitution to the States for action. It made no recommendation for or against adoption.[4]

Two parties soon developed, one in opposition, the Antifederalists, and one in support, the Federalists, of the Constitution, and the Constitution was debated, criticized, and expounded clause by clause. Hamilton, Madison, and Jay, under the name of "Publius, wrote a series of commentaries, now known as the Federalist Papers, in support of the new instrument of government; however, the primary aim of the essays was for ratification in the state of New York, at that time a hotbed of anti-federalism. These commentaries on the Constitution, written during the struggle for ratification, have been frequently cited by the Supreme Court as an authoritative contemporary interpretation of the meaning of its provisions. The closeness and bitterness of the struggle over ratification and the conferring of additional powers on the central government can scarcely be exaggerated. In some states, ratification was effected only after a bitter struggle in the state convention itself. In every state, the Federalists proved more united, and only they coordinated action between different states, as the Anti-federalists were localized and did not attempt to reach out to other states.

Delaware, on December 7, 1787, became the first State to ratify the new Constitution, with its vote being unanimous. Pennsylvania ratified on December 12, 1787, by a vote of 46 to 23 (66.67%). New Jersey ratified on December 19, 1787, and Georgia on January 2, 1788, both with unanimous votes. The requirement of ratification by nine states, set by Article Seven of the Constitution, was met when New Hampshire voted to ratify, on June 21, 1788.

In New York, fully two thirds of the convention delegates were at first opposed to the Constitution. Hamilton led the Federalist campaign, which included the fast-paced appearance of the Federalist Papers in New York newspapers. An attempt to attach conditions to ratification almost succeeded, but on July 26, 1788, New York ratified, with a recommendation that a bill of rights be appended. The vote was close yeas 30 (52.6%), nays 27 due largely to Hamilton's forensic abilities and his reaching a few key compromises with moderate anti-Federalists led by Melancton Smith. The Continental Congress which still functioned at irregular intervals passed a resolution on September 13, 1788, to put the new Constitution into operation.

Historical influences

Fundamental law

Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.

Enlightenment and Rule of law
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John Locke
Two Treatises of Government
life, liberty and property

The due process clause of the Constitution was partly based on common law stretching back to Magna Carta (1215). The document established the principle that the Crown's powers could be limited. The "law of the land" was the King in Parliament of Lords and Commons. The once sovereign King was to be bound by law. Magna Carta as "sacred text" would become a foundation of English liberty against arbitrary power wielded by a tyrant.

Both the influence of Edward Coke and William Blackstone were evident at the Convention. In his Institutes of the Laws of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects of the Crown equally. Coke extended this principle overseas to colonists. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone's "Commentaries on the Laws of England" were the most influential books on law in the new republic among both lawyers generally and judges.

The most important influence from the European continent was from Enlightenment thinkers John Locke and Montesquieu.

British political philosopher John Locke following the Glorious Revolution was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his "Two Treatises of Government". Government's duty in a social contract with the sovereign people was to serve them by protecting their rights. These basic rights of English and by extension all humanity, were life, liberty and property.

Montesquieu, emphasized the need to have balanced forces pushing against each other to prevent tyranny (this in itself reflects the influence of Polybius's 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic). In his "The Spirit of the Laws", Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial.

Division of power in a republic was informed by the British experience with mixed government, as well as study of republics ancient and modern. A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams. The experiences among the thirteen states after 1776 was remarkably different among those which had been charter, proprietary newly created royal colonies.

Native Americans

The Iroquois nations' political confederacy and democratic government under the Great Law of Peace have been credited as influences on the Articles of Confederation and the United States Constitution.[5] Relations had long been close, as from the beginning the colonial English needed allies against New France. Prominent figures such as Thomas Jefferson in colonial Virginia and Benjamin Franklin in colonial Pennsylvania, two colonies whose territorial claims extended into Iroquois territory, were involved with leaders of the New York-based Iroquois Confederacy.[6]

In the 1750s at the Albany Congress, Franklin called for "some kind of union" of English colonies to effectively deal with Amerindian tribes.[7] John Rutledge (SC) quoted Iroquoian law to the Constitutional Convention, "We, the people, to form a union, to establish peace, equity, and order..." [8]

The Iroquois experience with confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive control over the constituent members, and decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from "too much democracy" and the long term independence of the Iroquois confederation suffered from intrigues within each Iroquois nation.[9]

The 1787 United States had similar problems, with individual states making separate agreements with European and Amerindian nations apart from the Continental Congress. Without the Convention's proposed central government, the framer's feared that the fate of the confederated Articles' United States would be the same as the Iroquois Confederacy.

Bills of rights before

The United States Bill of Rights consists of the ten amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.[10] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Original text

The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.

Authority and purpose

"We the People", as it appears in an original copy of the Constitution.

The Preamble sets out the origin, scope and purpose of the Constitution. Its origin and authority is in We, the people of the United States . This echoes the Declaration of Independence. One people dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, to form a more perfect Union than had previously existed in the perpetual Union of the Articles of Confederation. Second, to secure the blessings of liberty , which were to be enjoyed by not only the first generation, but for all who came after, our posterity .

This is an itemized social contract of democratic philosophy. It details how the more perfect union was to be carried out between the national government and the people. The people are to be provided (a) justice, (b) civil peace, (c) common defense, (d) those things of a general welfare that they could not provide themselves, and (e) freedom. A government of "liberty and union, now and forever", unfolds when We begin and establish this Constitution.[11]

National government

Legislature

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Old House Wing (left)
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Old House Chamber
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Old Senate Wing
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Old Senate Chamber
Old Senate Wing

Article One describes the Congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the House of Representatives and the Senate.

The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.

Article I, Section 1, reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Article I, Section 8 enumerates the legislative powers, which include:

Article I, Section 9 provides a list of eight specific limits on congressional power and Article I, Section 10 limits the rights of the states.

The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the United States Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had "[t]he foregoing powers and all other powers..."

Executive

Article II, Section 1 creates the presidency. The section states that the executive power is vested in a President. The presidential term is four years and the Vice President serves the identical term. This section originally set the method of electing the President and Vice President, but this method has been superseded by the Twelfth Amendment.

Qualifications
The President must be a natural born citizen of the United States, at least 35 years old and a resident of the United States for at least 14 years. An obsolete part of this clause provides that instead of being a natural born citizen, a person may be a citizen at the time of the adoption of the Constitution. This clause is sometimes said to have been written for the benefit of Alexander Hamilton, who was born in Nevis.[12] The first president to be born an American citizen was Martin Van Buren.[13]
Succession
Section 1 specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns. The original text ("the same shall devolve") left it unclear whether this succession was intended to be on an acting basis (merely taking on the powers of the office) or permanent (assuming the Presidency itself). After the death of William Henry Harrison, John Tyler set the precedent that the succession was permanent; this practice was followed when later presidents died in office. Today the 25th Amendment states that the Vice President becomes President upon the death or disability of the President.
Pay
The President receives "Compensation" for being the president, and this compensation may not be increased or decreased during the president's term in office. The president may not receive other compensation from either the United States or any of the individual states.
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The President s House
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James Hoban design
The President s House
Oath of office
The final clause creates the presidential oath to preserve, protect, and defend the Constitution.

Section 2 grants substantive powers to the president:

  • The president is the Commander in Chief of the United States Armed Forces, and of the state militias when these are called into federal service.
  • The president may require opinions of the principal officers of the federal government.
  • The president may grant reprieves and pardons, except in cases of impeachment (i.e., the president cannot pardon himself or herself to escape impeachment by Congress).

Section 2 grants and limits the president's appointment powers:

  • The president may make treaties, with the advice and consent of the Senate, provided two-thirds of the senators who are present agree.
  • With the advice and consent of the Senate, the President may appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise described in the Constitution.
  • Congress may give the power to appoint lower officers to the President alone, to the courts, or to the heads of departments.
  • The president may make any of these appointments during a congressional recess. Such a "recess appointment" expires at the end of the next session of Congress.

Section 3 opens by describing the president's relations with Congress:

  • The president reports on the state of the union.
  • The president may convene either house, or both houses, of Congress.
  • When the two houses of Congress cannot agree on the time of adjournment, the president may adjourn them to some future date.

Section 3 adds:

  • The president receives ambassadors.
  • The president sees that the laws are faithfully executed.
  • The president commissions all the offices of the federal government.

Section 4 provides for removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Judiciary

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U.S. Capitol Building
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Old Supreme Court
U.S. Capitol basement

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court, and sets the kinds of cases it takes as original jurisdiction. Congress can create lower courts and appeals process. Congress enacts law defining crimes and providing for punishment. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.

Judicial power. Article III, Section 1. is the authority to interpret and apply the law to a particular case contested by litigants. It connotes the power to punish, sentence, and direct future action to resolve conflicts. The Constitution provides an outline for the U.S. judicial system. Congress in the Judiciary Act of 1789 began to fill in detail. Current operating authority is Title 28 of the U.S. Code.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts. In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts with exclusive jurisdiction were made up of districts. These heard regional appeals before consideration on a national level at the Supreme Court. The Supreme Court holds discretionary jurisdiction. Cases are not admitted before the Supreme Court until it decides that the Constitutional issues apply nationally.

To enforce its decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers to coerce individuals. The court s summary punishment for contempt immediately overrides all other punishments applicable to the subject party. Other implied powers include injunctive relief and habeas corpus remedies. The Court may imprisonment for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings. But in rare cases, the theory of justice as equity can be used to intervene. In equity, a court takes up a concern for fairness. It rules on not only the letter of the law, but what may bring about good and right between the parties.

Arisings Clause. The Diversity (of Citizenship) Clause. Article III, Section 2, Clause 1. Citizens of different states are citizens of the United States. Cases arising under the laws of the United States and its treaties come under the jurisdiction of Federal courts. Cases under international maritime law and conflicting land grants of different states come under Federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under Federal jurisdiction. The trials will be in the state where the crime was committed.

Judicial review. Article III, Section 2. U.S. courts have the power to rule legislative enactments or executive acts invalid on constitutional grounds. The Constitution is the supreme law of the land. Any court, state or federal, high or low, has the power to refuse to enforce any statute or executive order it deems repugnant to the U.S. Constitution. Two conflicting federal laws are under "pendent" jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state Legislature enacts something as under federal jurisdiction. To establish a federal system of national law, considerable effort goes into developing a spirit of comity between Federal government and states. By the doctrine of Res Judicata , federal courts give "full faith and credit" to State Courts. The Supreme Court will decide Constitutional issues of state law only on a case by case basis, and only by strict Constitutional necessity, independent of state legislators motives, their policy outcomes or its national wisdom.

Exceptions Clause. Article III, Section 2, Clause 2. The Supreme Court has original jurisdiction in cases about Ambassadors and other public ministers and consuls, for all cases respecting foreign nation-states.[14]

Standing. Article III, Section 2, Clause 2. This is the rule for Federal courts to take a case. Justiciability is the standing to sue. A case cannot be hypothetical or concerning a settled issue. In the U.S. system, someone must have direct, real and substantial personal injury. The issue must be concrete and "ripe", that is, of broad enough concern in the Court s jurisdiction that a lower court, either Federal or state, does not geographically cover all the existing cases before law. Courts following these guidelines exercise judicial restraint. Those making an exception are said to be judicial activist.

Treason. Article III, Section 3. This part of the Constitution strips Congress of the Parliamentary power of changing or modifying the law of treason by simple majority statute. It's not enough to merely think treasonously; there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.

Federal relationships

The States

Article Four outlines the relation between the states and the relation between the federal government. In addition, it provides for such matters as admitting new states as well as border changes between the states. For instance, it requires states to give "full faith and credit" to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records, or proceedings may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan).

It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous and costly process. Article Four also provides for the creation and admission of new states. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence.

Amendments

Amending clause. Article V, Section 1. Article V provides for amending the supreme "law of the land". Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The very next session, meeting by the same authority, could likewise undo the work of any previous sitting assembly. This was not the "fundamental law" the founders such as James Madison had in mind.

Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment. Between the two existing options for changing the supreme "law of the land", (a) too easy by the states, and (b) too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states. Two-thirds of both houses of Congress could propose an Amendment, which can become valid "for all intents and purposes" as the Constitution, when three-fourths of the states approve. No Amendment can ever take away equal State votes in the U.S. Senate unless a state first agrees to it. No amendment regarding slavery or direct taxes could be permitted until 1808. Slavery was abolished by the Thirteenth Amendment in December 1865, direct tax on income was effected by the Sixteenth Amendment in February 1913.[15]

Incorporated Amendments. The Fourteenth Amendment is used by Federal courts to incorporate Amendments into the state constitutions as provisions to protect United States citizens. By 1968, the Court would hold that provisions of the Bill of Rights were "fundamental to the American scheme of justice". The Amendment in view by the Supreme Court was applicable to the states in their relationship to individual United States citizens in every state.[16]

Among the Bill of Rights, Doug Linder counts the First, Second, Fourth, and Sixth Amendment as fully incorporated into State governance. Most of the Fifth Amendment is incorporated, and a single provision of the Eighth. The Third Amendment is incorporated only in the U.S. Second Circuit, the states of New York, Connecticut and New Hampshire. The Supreme Court has not determined the Constitutional issue is yet "ripe" for national application in every state. The Seventh Amendment is not incorporated.[17] Twentieth Century Amendments use the prohibitive phrase, "neither the United States nor any State" to comprehensively incorporate the Amendment into the States at the time of its ratification into the Constitution.

Federal government

Article Six establishes the Constitution, and the laws and treaties of the United States made according to it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.

Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Ratification

Ratification clause. Article VII, Section 1. Article Seven details how to initiate the new government as proposed. The Constitution was transmitted to the Articles Congress, then after debate, forwarded to the states. States were to ratify the Constitution in state conventions specially convened for that purpose. The ratification conventions would arise directly from the people voting, and not by the forms of any existing State constitutions.[18]

The new national Constitution would not take effect until at least nine states ratified. It would replace the existing government under the Articles of Confederation only after three-fourths of the existing states agreed to move together by special state elections for one-time conventions. It would apply only to those states that ratified it, and it would be valid for all states joining after. The Articles Congress certified eleven ratification conventions had adopted the proposed Constitution for their states on September 13, 1788, and in accordance with its resolution, the new Constitutional government began March 4, 1789. (See above Ratification and beginning.)

The Amendments

Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The next session of a regularly elected assembly could do the same. This was not the "fundamental law" the founders such as James Madison had in mind.

Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment. Between the options for changing the "supreme law of the land", too easy by the states, and too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states.

Procedure

Three steps to
Amendments
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House-passed 12 proposals
2/3-majority, then to Senate
(States later ratify 10 of 12) File:Proposed Amendments to the U.S. Constitution as Passed by the Senate, Printed September 14, 1789.djvu |
Senate-passed 12 proposals
2/3-majority, then 3/4 States =
Bill of Rights

                    

Changing the "fundamental law" is a two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call a constitutional convention to propose an amendment, then to be ratified by the states.

To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. Over 10,000 constitutional amendments have been introduced in Congress since 1789; during the last several decades, between 100 and 200 have been offered in a typical congressional year. Most of these ideas never leave Congressional committee, and of those reported to the floor for a vote, far fewer get proposed by Congress to the states for ratification.

In the first step, the proposed Amendment must find a national super majority of 67% in Congress, both House (people) and Senate (states). The second step requires a super-super 75% majority of the states ratifying, representing a majority of the people in the states ratifying. Congress determines whether the state legislatures or special state conventions ratify the amendment.[19]

On attaining Constitutional ratification of the proposal by three-fourths of the states, at that instant, the "fundamental law" for the United States of America is expressed in that Amendment. It is operative without any additional agency. Although the Founders considered alternatives, no signature is required from the President. Congress does not have to re-enact. The Supreme Court does not have to deliberate. There is no delay from a panel of lawyers to re-draft and re-balance the entire Constitution incorporating the new wording. The Amendment, with the last required state ratifying, is the "supreme law of the land."

Unlike amendments to most constitutions, amendments to the United States Constitution are appended to the body of the text without altering or removing what already exists. Newer text is given precedence. Subsequent printed editions of the Constitution may line through the superseded passages with a note referencing the Amendment. Notes often cite applicable Supreme Court rulings incorporating the new fundamental law into American jurisprudence, when the first precedent was given, and in what way the earlier provisions were found void.

Over the last thirty years, there have been a few proposals for amendments in mainstream political debate. These include the Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. Another may be repeal of the 17th Amendment, restoring selection of U.S. Senators to state legislatures.

Successful

The Constitution has twenty-seven amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously by 1791. The next seventeen were ratified separately over the next two centuries.

"Bill of Rights"

The National Archives displays the Bill of Rights as one of the three "Charters of Freedom". The original intent of these first ten Amendments was to restrict Congress from abusing its power. For example, the First Amendment "Congress shall make no law" establishing a religion was ratified by the states before all states had, of their own accord, disestablished their official churches.

The Federalist Papers argued that amendments were not necessary to adopt the Constitution. But without the promise in their ratification conventions, Massachusetts, Virginia and New York could not have joined the Union as early as 1789. James Madison, true to his word, managed the proposed amendments through the new House of Representatives in its first session. The amendments that became the Bill of Rights were ten proposals of the twelve that Congress sent out to the states in 1789.

Later in American history, applying the Bill of Rights directly to the states developed only with the Fourteenth Amendment.

The legal mechanism that courts use today to extend the Bill of Rights against the abuses of state government is called "incorporation". The extent of its application is often at issue in modern jurisprudence.

Generally, the Bill of Rights can be seen as the States addressing three major concerns: individual rights, federal courts and the national government s relationships with the States.

Individual rights

The first Amendment defines American political community, based on individual integrity and voluntary association. Congress cannot interfere with an individual s religion or speech. It cannot restrict a citizen s communication with others to form community by worship, publishing, gathering together or petitioning the government.

The First Amendment addresses the rights of freedom of religion (prohibiting Congress from establishing a religion and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.
Trial and sentencing

Given their history of colonial government, most Americans wanted guarantees against the central government using the courts against state citizens. The Constitution already had individual protections such as strictly defined treason, no ex post facto law and guaranteed habeas corpus except during riot or rebellion. Now added protections came in five Amendments.

Protecting the accused. The Fourth Amendment guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been found in this amendment and others by the Supreme Court.
The Fifth Amendment forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment, otherwise known as the Miranda rights after the Supreme Court case. It also prohibits government from taking private property for public use without "just compensation", the basis of eminent domain in the United States.
The Seventh Amendment assures trial by jury in civil cases.
Restraining the judges. The Sixth Amendment guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
The Eighth Amendment forbids excessive bail or fines, and cruel and unusual punishment.
Congress nor States

In 1789, future Federal-state relations were uncertain. To begin, the States in their militias were not about to be disarmed. And, if Congress wanted a standing army, Congress would have to pay for it, not "quarter" soldiers at state citizen expense. The people always have all their inalienable rights, even if they are not all listed in government documents. If Congress wanted more power, it would have to ask for it from the people in the states. And if the Constitution did not say something was for Congress to do, then the States have the power to do it without asking.

Potential military coercion

The Second Amendment guarantees the right of adult men to keep their own weapons apart from state-run arsenals. Once the new Constitution began government, states petitioned Congress to propose amendments including militia protections. New Hampshire s proposal for amendment was, "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." New York proposed, "... a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free State." Over time, this amendment has been confirmed by the courts to protect individual rights and used to overturn state legislation regulating hand guns.

Applying the Second Amendment only to the Federal government, and not to the states, persisted for much of the nation's early history. It was sustained in United States v. Cruikshank (1876) to support disarming African-Americans holding arms in self-defense from Klansmen in Louisiana. The Supreme Court held, citizens must "look for their protection against any violation by their fellow-citizens from the state, rather than the national, government." Federal protection of an individual interfering with the state s right to disarm any of its citizens came in Presser v. Illinois (1886). The Supreme Court ruled the citizens were members of the federal militia, as were "all citizens capable of bearing arms." A state cannot "disable the people from performing their duty to the General Government". The Court was harking back to the language establishing a federal militia in 1792.

In 1939, the Supreme Court returned to a consideration of militia. In U.S. v. Miller, the Court addressed the enforceability of the National Firearms Act of 1934 prohibiting a short-barreled shotgun. Held in the days of Bonnie Parker and Clyde Barrow, this ruling referenced units of well equipped, drilled militia, the Founders "trainbands", the modern military Reserves. It did not address the tradition of an unorganized militia. Twentieth century instances have been rare but Professor Stanford Levinson has observed consistency requires giving the Second Amendment the same dignity of the First, Fourth, Ninth and Tenth.

Once again viewing federal relationships, the Supreme Court in McDonald v. Chicago (2010) determined that the right of an individual to "keep and bear arms" is protected by the Second Amendment. It is incorporated by the Due Process Clause of the Fourteenth Amendment, so it applies to the states.

The Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The states had suffered during the Revolution following the British Crown confiscating their militia's arms stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorically asked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationed in every house?" The only existing case law directly regarding this amendment is a lower court decision in the case of Engblom v. Carey.[20] However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court's holding that the constitution protects the right to personal privacy.

Constitutional relationships

The Ninth Amendment declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained by the people. The Tenth Amendment reserves to the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the states from exercising.

Subsequent

Amendments to the Constitution after the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787. Although the United States Constitution has been amended 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth.

Citizen rights

Several of the amendments have more than one application, but five amendments have concerned citizen rights. American citizens are free. There will be equal protection under the law for all. Men vote, women vote, DC residents vote, and 18-year olds vote.

The Thirteenth Amendment (1865) abolishes slavery and authorizes Congress to enforce abolition. The Fourteenth Amendment (1868) in part, defines a set of guarantees for United States citizenship. Fifteenth Amendment (1870) prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. The Nineteenth Amendment (1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. The Twenty-sixth Amendment (1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age.

The Twenty-third Amendment (1961) grants presidential electors to the District of Columbia. DC has three votes in the Electoral College as though it were a state with two senators and one representative in perpetuity. If Puerto Rico were given the same consideration, it would have seven Electoral College votes.

Three branches

Seven amendments relate to the three branches of the Federal government. Congress has three, the Presidency has four, the Judiciary has one.

Congress will begin in January, not March. It can tax income. It cannot raise its own pay before re-election.

The Sixteenth Amendment (1913) authorizes unapportioned federal taxes on income. Twentieth Amendment (1933) in part, changes details of congressional terms. The Twenty-seventh Amendment (1992) limits congressional pay raises.

The Presidency has had four amendments regulating the office. The President will be chosen by name, not selected from a pool. The President is succeeded by the Vice President without a special election. The President is limited to two terms. Presidential succession is through the Vice President, elected officers of the Congress, then executive Cabinet.

The Twelfth Amendment (1804) changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. The Twentieth Amendment (1933) in part, changes details of presidential terms and of presidential succession. The Twenty-second Amendment (1951) gives the president Limits of two terms. The Twenty-fifth Amendment (1967) changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.

The Judiciary has one amendment effecting its jurisdiction. The Eleventh Amendment (1795) in part, clarifies judicial power over foreign nationals.

States and abuses

State citizens. The states have been protected from their citizens by a Constitutional Amendment. Citizens are limited when suing their states in Federal Court. The Eleventh Amendment (1795) in part, limits ability of citizens to sue states in federal courts and under federal law.

Most states. All states have been required to conform to the others when those delegations in Congress could accumulate super-majorities in the U.S. House and U.S. Senate, and three-fourths of the states with the same opinion required it of all. (a) The states must not allow alcohol sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth Amendment (1919) prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Repealed by the Twenty-First Amendment. Twenty-first Amendment (1933) repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages.

State legislatures. Occasionally in American history, the people have had to strip state legislatures of some few privileges due to widespread, persisting violations to individual rights. States must administer equal protection under the Constitution and the Bill of Rights. States must guarantee rights to all citizens of the United States as their own. State legislatures will not be trusted to elect U.S. Senators. States must allow all men to vote. States must allow women to vote. States cannot tax a U.S. citizen s right to vote.

Under the Constitution, the U.S. government was restricted from infringing on citizen rights. The Fourteenth Amendment (1868) in part, defines a set of guarantees for United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law.
Voting in the states has not always been so universal as it is today, not all men, not women not 18-year olds. In 1870, regardless of practice, most states had no legal racial bar to voting by African-Americans, Asians or Native-Americans. But the Fifteenth Amendment (1870) prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. Then all men could vote by law. In 1920, while most states allowed at least some women's suffrage, the Nineteenth Amendment (1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. Then all women could vote by law. In 1971, states allowed voting at ages 21, 20, 19 and 18. The Twenty-sixth Amendment (1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age.
By 1913, several state legislatures allowed their selection of U.S. Senator by direct popular vote. However, the Seventeenth Amendment (1913) converts all state elections for U.S. senators to popular election.
Some state legislatures restricted the right to vote among their citizens more than others. Although most states in 1964 did not restrict voting by the use of poll taxes, the Twenty-fourth Amendment (1964) prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials. U.S. citizens cannot be taxed to vote.

Unratified

Of the thirty-three amendments that have been proposed by Congress, twenty-seven have passed. Six have failed ratification by the required three-quarters of the state legislatures. Two have passed their deadlines. Four are technically in the eyes of a Court, still pending before state lawmakers (see Coleman v. Miller). All but one are dead-ends.

One remaining

The "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting "any Title of Nobility or Honour" from any foreign power. Some maintain that the amendment was ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked.[21]

The proposed amendment addressed the same "republican" and nationalist concern evident in the original Constitution, Article I, Section 9. No officer of the United States, "without the Consent of the Congress, [shall] accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State." The Constitutional provision is unenforceable because the offense is not subject to a penalty.

Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification and could still be ratified were the state legislatures to take it up.

Abandoned

Quit by practice
As written, it became inapplicable when the population of the United States reached ten million. Allocation of seats for a state delegation is no longer increased or decreased by each change of 10,000 population. Since 1940, the number of Representatives in the U.S. House has been fixed at 435. Decennial population counts are apportioned among the states in a formula by law.
  • The Corwin Amendment, proposed by the 36th Congress on March 2, 1861, would have forbidden any attempt to subsequently amend the Constitution to empower the federal government to "abolish or interfere" with the "domestic institutions" of the states, meaning slavery.
It was ratified by only Ohio, Maryland and controversially, Illinois, before the outbreak of the Civil War. Lincoln took it under consideration in his First Inaugural as a means of preserving the Union. Four additional states seceded and war came. Before his assassination, Lincoln pushed the Thirteenth Amendment through Congress and out to the state legislatures to abolish slavery forever.
Quit by policy

Starting with the proposal of the 18th Amendment in 1917, each proposed amendment has included a deadline for passage in the text of the amendment. Five without a deadline became Amendments. One proposed amendment without a deadline has not been ratified. The Child Labor Amendment of 1924.

  • A child labor amendment proposed by the 68th Congress on June 2, 1924. It provides, "The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age." This amendment is highly unlikely to be ratified, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress's powers under the Commerce Clause.
Time ran out

There are two amendments that were approved by Congress but were not ratified by enough states prior to the ratification deadline set by Congress:

  • The Equal Rights Amendment (ERA), which reads in part "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979 or on June 30, 1982, following a controversial three-year extension of the ratification deadline passed by the 95th Congress in 1978.
Of the 35 states ratifying it, four later rescinded their ratifications before the extended ratification period. A fifth stipulated that its first approval would not extend with Federal law. Such reversals are controversial; no court has ruled on the question. During ratification of the 14th Amendment Ohio and New Jersey rescinded their earlier approvals. But their ratifications were counted towards three-fourths of the states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.
  • The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had this amendment been ratified, it would have granted to Washington, D.C. two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states (out of the required 38), the proposed amendment expired on August 22, 1985.

Judicial review

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, executive agency rules and state laws, to decide their constitutionality, and to strike them down if found unconstitutional.

Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is.".

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, Federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the Twentieth Century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.

Early Court roots in the founding
File:John Jay (Gilbert Stuart portrait).jpg |
John Jay, 1789-1795
New York co-author
Federalist Papers
File:John Marshall by Henry Inman, 1832.jpg |
John Marshall, 1801-1835
Fauquier County delegate
Virginia Ratification Convention

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist s proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. "A limited constitution can be preserved in practice no other way" than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people s authority over legislatures rests "particularly with judges."

The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (NY), a co-author of the Federalist Papers, served as Chief Justice for the first six years. The second Chief Justice for a term of four years, was Oliver Ellsworth (Ct), a delegate in the Constitutional Convention, as was John Rutledge (SC), Washington s recess appointment as Chief Justice who served in 1795. John Marshall (Va), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His service on the Court would extend 34 years over some of the most important rulings to help establish the nation the Constitution had begun. In the first years of the Supreme Court, members of the Constitutional Convention who would serve included James Wilson (Pa) for ten years, John Blair, Jr. (Va) for five, and John Rutledge (SC) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. "The fate of judicial review was in the hands of the Supreme Court itself." Review of state legislation and appeals from state supreme courts was understood. But the Court s life, jurisdiction over state legislation was limited. The Marshall Court's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. It finds were that Marbury and the others had a right to their commissions as judges in the District of Columbia. The law afforded Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III. The United States government, as created by the Constitution is a limited government, and a statute contrary to it is not law. In this case, both the Constitution and the statutory law applied to the particulars at the same time. "The very essence of judicial duty" according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising "under the Constitution." Courts were required to choose the Constitution over Congressional law. Further, justices take a Constitutional oath to uphold it as "Supreme law of the land".

"This argument has been ratified by time and by practice ..." "Marshall The Supreme Court did not declare another Act of Congress unconstitutional until the disastrous Dred Scott decision in 1857, held after the voided Missouri Compromise statute, had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year.

Something of a crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive "court packing plan". Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court s power of judicial review has persisted.

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been "wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns." Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review.

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid expressing an opinion if it sees an issue is currently embarrassing or difficult. The Supreme Court limits itself by defining for itself what is a "justiciable question." First, the Court is fairly consistent in refusing to make any "advisory opinions" in advance of actual cases. Second, "friendly suits" between those of the same legal interest are not considered. Third, the Court requires a "personal interest", not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Having the money to sue or being injured by government action alone are not enough.

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their "standards of litigability". Under the Court s practice, there are cases left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. "The Supreme Court is not only a court of law but a court of justice."

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but Federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions. But the Court s guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings.

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress: The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt.

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretentions, but it more often tries to rationalize them. Against Congress, an Act is merely "disallowed." In the executive case, exercising judicial review produces "some change in the external world" beyond the ordinary judicial sphere. The "political question" doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court s limitation when political process allowed future policy change, but a judicial ruling would "attribute finality". Political questions lack "satisfactory criteria for a judicial determination."

John Marshall recognized how the president holds "important political powers" which as Executive privilege allows great discretion. This doctrine was applied in Court rulings on President (Grant) s duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairs are inherently political, "wholly confided by our Constitution to the political departments of the government ... [and] not subject to judicial intrusion or inquiry."

Critics of the Court object in two principle ways to its self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions. (1) Its inaction is said to allow "a flood of legislative appropriations" which permanently create an imbalance between the states and federal government. (2) Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens.

Subsequent Courts

Supreme Courts under the leadership of subsequent Chief Justices have also used judicial review to interpret the Constitution among individuals, states and Federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.

Salmon P. Chase was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a U.S. Senator and Governor of Ohio. He has coined the slogan, "Free soil, free Labor, free men." One of Lincoln s "team of rivals", he was appointed Secretary of Treasury during the Civil War, issuing "greenbacks". To appease radical Republicans, Lincoln appointed him to replace Chief Justice Roger B. Taney of Dred Scott case fame.

In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The "Chase Court" is famous for Texas v. White which asserted a permanent Union of indestructible states. Veazie Banks v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.

Scope of judicial review expanded
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Salmon P. Chase
Union, Reconstruction File:William Howard Taft.jpg |
William H. Taft
commerce, incorporation File:Earl Warren.jpg |
Earl Warren
due process, civil rights Image:William Rehnquist.jpg |
William Rehnquist
federalism, privacy

William Howard Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, his earlier Republican career included Ohio Supreme Court, U.S. Solicitor General, U.S. Governor-General of the Philippines, and Theodore Roosevelt s Secretary of War. He was a one-term President. He sought non-coercive foreign policies in "Dollar Diplomacy" and in his private foundation, "League to Enforce Peace." In his presidential term, Taft s domestic agenda encompassed trust-busting and strengthening the Instate Commerce Commission.

As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court and the newly united branch of government initiated its own separate building in use today. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Arizona, New Mexico, Alaska and Hawaii. Later extensions added the Spanish-American War acquisitions of the Commonwealth of the Philippines and Puerto Rico.

In 1925, the Taft Court issued a ruling overturning a Marshall Court ruling on the Bill of Rights. In Gitlow v. New York, the Court established the doctrine of "incorporation which applied the Bill of Rights to the states. Important cases included the Board of Trade v. Olsen that upheld Congressional regulation of commerce. Olmstead v. U.S. allowed exclusion of evidence obtained without a warrant based on application of the 14th Amendment proscription against unreasonable searches. Wisconsin v. Illinois ruled the equitable power of the United States can impose positive action on a state to prevent its inaction from damaging another state.

Earl Warren was an Eisenhower nominee, Chief Justice from 1943 to 1953. Warren s Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing "separate but equal" services. Warren built a coalition of Justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered "one-man-one-vote." Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright" and Miranda v. Arizona. First Amendment rights were addressed in Griswold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech. William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. Following study at Stanford and Harvard, he clerked under Justice Robert H. Jackson, served as a legal adviser and writer for Barry Goldwater in his presidential campaign, and practiced law in Arizona before his Nixon appointment as Justice in 1971. As Chief Justice, Rehnquist was a team builder. In conference, no Justice spoke a second time until all had spoken. No Justice, including himself, was assigned to write a second holding for the Court until all had written one. When Rehnquist was in the minority, he deferred to the majority to choose the writer of the majority opinion. While he would concur with overthrowing a state supreme court s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores. Nevertheless, the Rehnquist Court was noted in the contemporary "culture wars" for overturning state laws relating to privacy prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.

Civic religion

The 360 NARA Rotunda Tour] stands the visitor in the center, allows zoom in, click and drag to look at the inlaid marble floor and ornate ceiling. There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights as being a cornerstone of a type of civil religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights, in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda by day and in multi-ton bomb-proof vaults by night at the National Archives Building.[22]

The idea of displaying the documents strikes some academic critics looking from point of view of the 1776 or 1789 America as "idolatrous, and also curiously at odds with the values of the Revolution." [23] By 1816 Jefferson wrote that "[s]ome men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." But he saw imperfections and imagined that potentially, there could be others, believing as he did that "institutions must advance also".

Samuel P. Huntington discusses common connections for most peoples in nation-states, a national identity as product of common ethnicity, ancestors and experience, common language, culture and religion. The United States has a fate different from "most peoples". according to Huntington, since American identity is "willed affirmation" of what Huntington refers to as the American creed: (a) individual rights (b) majority rule and (c) a constitutional order of limited government power. Whittle Johnson in The Yale Review sees a sort of "covenanting community" of freedom under law, which, "transcending the 'natural' bonds of race, religion and class, itself takes on transcendent importance". According to this argument, political ideals emphasize a sort of political orthodoxy which enable an ethnic diversity unequaled in Britain, France, Germany or Japan.

Worldwide

File: Jose rizal 01.jpg |
Jose Rizal File: Sun Yat Sen portrait 2.jpg |
Sun Yat-sen

The United States Constitution has had a considerable influence worldwide on later constitutions. International leaders have followed it as a model within their own traditions. These leaders include Benito Juarez of Mexico, Jose Rizal of the Philippines and Sun Yat-sen of China.

Criticism

Exception to the Constitution did not end at ratification. In every age new objections have been raised and improvements suggested.

See also

Related documents

Notes

Citations

References

Further reading

  • Hall, Kermit, ed. The Oxford Companion to the Supreme Court of the United States. Oxford U. Press, 1992. 1032 pp.
  • Levy, Leonard W. et al., ed. Encyclopedia of the American Constitution. 5 vol; 1992; 3000 pp.
  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993) ISBN 0-940450-42-9
  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X
  • Casey, Gregory. "The Supreme Court and Myth: An Empirical Investigation," Law & Society Review, Vol. 8, No. 3 (Spring, 1974), pp. 385 420
  • Elliot, Jonathan, ''The Debates in the Several State Conventions of the Adoption of the Federal Constitution 5 vols Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison s Notes, Misc. Letters
  • Ford, Paul Leicester, ed. ''Pamphlets on the Constitution of the United States, published during its Discussion by the People, 1787-1788'', edited with notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y., 1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.
  • Fritz, Christian G. ''American Sovereigns: The People and America's Constitutional Tradition Before the Civil War'' (Cambridge University Press, 2008) [ISBN 978-0-521-88188-3
  • Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.
  • Kaminski, John P. ed. Documentary History of the Ratification of the Constitution, 1976- (Published volumes 1-10, 13-23, forthcoming volumes 11-12, 24-29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5 ISBN 978-0-87020-439-5), Madison, The State Historical Society of Wisconsin, <http://www.wisconsinhistory.org/ratification> Edited by John P. Kaminski, Gaspare J. Saladino,Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.
  • Kurland, Philip B. and Lerner, Ralph, eds. The Founders' Constitution. The work consists of "extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced." (Liberty Fund ISBN 0-86597-279-6) The Online Edition is a joint venture of the University of Chicago Press and the Liberty Fund.
  • Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)
  • Tribe, Laurence H. American Constitutional Law (1999)
  • Yale Law School:

External links

National Archives

Official U.S. government sources

Non-governmental web sites

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