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United States Constitution
Created September 17, 1787
Ratified June 21, 1788
The United States Constitution is the supreme law of the United States of
America. The Constitution, originally comprising seven articles, delineates
the national frame of government. Its first three articles entrench the doctrine
of the separation of powers, whereby the federal government is divided into
three branches: the legislative, consisting of the bicameral Congress; the
executive, consisting of the President; and the judicial, consisting of the
Supreme Court and other federal courts. Articles Four, Five and Six entrench
concepts of federalism, describing the rights and responsibilities of state
governments and of the states in relationship to the federal government. Article
Seven establishes the procedure subsequently used by the thirteen States to
ratify it.
Since the Constitution came into force in 1789, it has been amended twenty-seven
times. In general, the first ten amendments, known collectively as the Bill
of Rights, offer specific protections of individual liberty and justice and
place restrictions on the powers of government. The majority of the seventeen
later amendments expand individual civil rights. Others address issues related
to federal authority or modify government processes and procedures. Amendments
to the United States Constitution, unlike ones made to many constitutions
world-wide, are appended to the end of the document. At seven articles and
twenty-seven amendments, it is the shortest written constitution in force. All
five pages of the original U.S. Constitution are written on parchment.
The Constitution is interpreted, supplemented, and implemented by a large body
of constitutional law. The Constitution of the United States is the first
constitution of its kind, and has influenced the constitutions of other nations.
Historical context
First government
From September 5, 1774 to March 1, 1781,
the Continental Congress functioned as the provisional government of the United
States. Delegates to the First (1774) and then the Second (1775–1781)
Continental Congress were chosen by different methods, but largely through the
action of committees of correspondence in various colonies rather than through
the colonial or later state legislatures. In no formal sense was it a gathering
representative of existing colonial governments; it represented the people, the
dissatisfied elements of the people, such persons as were sufficiently
interested to act, despite the strenuous opposition of the loyalists and the
obstruction or disfavor of colonial governors. The process of selecting the
delegates for the First and Second Continental Congresses underscores the
revolutionary role of the people of the colonies in establishing a central
governing body. Endowed by the people collectively, the Continental Congress
alone possessed those attributes of external sovereignty which entitled it to be
called a state in the international sense, while the separate states, exercising
a limited or internal sovereignty, may rightly be considered a creation of the
Continental Congress, which preceded them and brought them into being.
Articles of Confederation
The Articles of Confederation and Perpetual Union
was the first constitution of the United States. It was drafted by the Second
Continental Congress from mid-1776 through late-1777, and ratification by all 13
states was completed in early 1781. Under the Articles of Confederation, the
central government's power was kept quite limited. The Confederation Congress
could make decisions, but lacked enforcement powers. Implementation of most
decisions, including modifications to the Articles, required unanimous approval
of all thirteen state legislatures.
Although in a way, the Congressional powers in Article 9 made the "league of
states as cohesive and strong as any similar sort of republican confederation in
history", the chief problem with the new government under the Articles of
Confederation was, in the words of George Washington, "no money". The
Continental Congress could print money; but, by 1786, the currency was
worthless. (A popular phrase of the times chimed that a useless object or person
was ... not worth a Continental, referring to the Continental dollar.) Congress
could borrow money, but couldn't pay it back. No state paid all their U.S.
taxes; Georgia paid nothing, as did New Jersey in 1785. 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 outstanding debts as their dates came due.
Internationally, the Articles of Confederation did little to enhance the United
States' ability to defend its sovereignty as an independent nation. Most of the
troops in the 625-man United States Army were deployed facing — but not
threatening — British forts being maintained on American soil. Those troops had
not been paid; some were deserting and others threatening mutiny. Spain closed
New Orleans to American commerce; U.S. officials protested, but to no effect.
Barbary pirates began seizing American ships of commerce; the Treasury had no
funds to pay their extortionate demands. If any extant or new military crisis
required action, the Congress had no credit or taxing power to finance a
response.
Domestically, the Articles of Confederation was proving inadequate to the task
of bringing unity to the diverse sentiments and interests of the various states.
Although the Treaty of Paris (1783) was signed between Great Britain, the U.S.,
and each of the American states by name, various individual states proceeded
blithely to violate it. New York and South Carolina repeatedly prosecuted
Loyalists for wartime activity and redistributed their lands over the protests
of both Great Britain and the Confederation Congress. Individual state
legislatures independently laid embargoes, negotiated directly with foreign
authorities, raised armies, and made war, all violating the letter and the
spirit of the Articles.
During Shays' Rebellion in Massachusetts, Congress could provide no money to
support an endangered constituent state. Nor could Massachusetts pay for its own
internal defense; General Benjamin Lincoln was obliged to raise funds from
Boston merchants to pay for a volunteer army. During the next Convention, James
Madison angrily questioned whether the Articles of Confederation was a binding
compact or even a viable 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 a conversation with the Viceroy of
Canada. To the south, the British were said to be openly funding Creek Indian
raids on white settlers in Georgia and adjacent territory. Savannah
(then-capital of Georgia) had been fortified, and the state of Georgia was under
martial law.
Congress was paralyzed. It could do nothing significant without nine states, and
some legislation required all thirteen. When a state produced only one member in
attendance, its vote was not counted. If a state's delegation were evenly
divided, its vote could not be counted towards the nine-count requirement. 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.
Their dream of a republic, a nation without hereditary rulers, with power
derived from the people in frequent elections, was in doubt.
On February 21, 1787, the Confederation 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.
1787 Drafting
Signing the Constitution, September 17, 1787On the appointed day, May 14, 1787,
only the Virginia and Pennsylvania delegations were present. A quorum of seven
states met and deliberations began on May 25. Eventually twelve states were
represented; 74 delegates were named, 55 attended and 39 signed. 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." According to one view, the Framers embraced
ambiguity in the constitutional text, since it allows for compromise and
cooperation about broad concepts rather than specific circumstances.
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, the economy, national government, or federal relationships
among the states. The Virginia Plan recommended a consolidated national
government, generally favoring the most highly populated states. It used the
philosophy of John Locke to rely on consent of the governed, Montesquieu for
divided government, and Edward Coke to emphasize civil liberties. The New Jersey
Plan generally favored the less-populated states, using the philosophy of
English Whigs such as Edmund Burke to rely on received procedure and William
Blackstone to emphasize 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: how
the votes were to be allocated among the states in the Congress, and 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, with two Senators generally to be elected by
their respective 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; and
jurisdiction of 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 (South Carolina), Edmund
Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth
(Connecticut), and James Wilson (Pennsylvania) — was elected to draft a detailed
constitution. The Convention recessed 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,
and further compromises were effected. Toward the close of these discussions, on
September 8, a "Committee of Style" of five was appointed. Its final version was
taken up on Monday, September 17, at the Convention's final session. Several of
the delegates were disappointed in the result, a makeshift series of unfortunate
compromises. Some delegates left before the ceremony, and three others 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 unanimous support of
all twelve states represented in the Convention. Their accepted 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 delegate from New York, Mr. Hamilton.
1788 Ratification
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 ratified in 1787 or 1788, and all thirteen had done
so by 1790. The Articles Congress certified eleven states to begin the new
government, and called the states to hold elections to begin operation. It then
dissolved itself on March 4, 1789, the day the first session of the First
Congress began. George Washington was inaugurated as President two months later.
Territorial extent of the United States, 1790.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
two-thirds 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' approval was a
controversial decision at the time, since the Articles of Confederation could
only be amended by unanimous vote of all the states.
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, resolved unanimously to submit the
Constitution to the States for action, "in conformity to the resolves of the
Convention", but with no recommendation either for or against its adoption.
Two parties soon developed, one in opposition, the Anti-Federalists, and one in
support, the Federalists, of the Constitution; and the Constitution was debated,
criticized, and expounded upon 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
as a result of 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 to be more united, and only they coordinated action among different
states; the Anti-Federalists were localized and did not attempt to reach out to
other states.
The Continental Congress — which still functioned at irregular intervals —
passed a resolution on September 13, 1788, to put the new Constitution into
operation with eleven states. North Carolina and Rhode Island ratified by
May 1790.
Influences
Several ideas in the Constitution were new. These were associated with the
combination of consolidated government along with federal relationships with
constituent states.
The Due Process Clause of the Constitution was partly based on common law and on
Magna Carta (1215), which had become a foundation of English liberty against
arbitrary power wielded by a ruler.
Both the influence of Edward Coke and William Blackstone were evident at the
Convention. In his Institutes of the Lawes of England, Edward Coke interpreted
Magna Carta protections and rights to apply not just to nobles, but to all
British subjects. 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.
British political philosopher John Locke following the Glorious Revolution
(1688) 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 under a social
contract among the sovereign people was to serve the people by protecting their
rights. These basic rights were life, liberty and property.
Montesquieu emphasized the need for balanced forces pushing against each other
to prevent tyranny (reflecting the influence of Polybius's 2nd century BC
treatise on the checks and balances 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.
A substantial body of thought had been developed from the literature of
republicanism in the United States, including work by John Adams and applied to
the creation of state constitutions.
The constitution was a federal one, and was influenced by the study of other
federations, both ancient and extant.
The United States Bill of Rights
consists of 10 amendments added to the Constitution in 1791, as supporters of
the Constitution had promised critics during the debates of 1788. 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 frame
Neither the Convention which drafted the Constitution, nor the Congress which
sent it to the thirteen states for ratification in the autumn of 1787, gave it a
lead caption. To fill this void, the document was most often titled "A frame of
Government" when it was printed for the convenience of ratifying conventions and
the information of the public. This Frame of Government consisted of a preamble, seven articles and
a signed closing endorsement.
Preamble
The preamble to the Constitution serves as an introductory statement of the
document's fundamental purposes and guiding principles. It neither assigns
powers to the federal government, nor does it place specific limitations on
government action. Rather, it 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".
Article One
Article One describes the Congress, the legislative branch of the
federal government. 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." 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 8 enumerates the powers delegated to the legislature.
Financially, Congress has the power to tax, borrow, pay debt and provide for the
common defense and the general welfare; to regulate commerce, bankruptcies, and
coin money. To regulate internal affairs, it has the power to regulate and
govern military forces and militias, suppress insurrections and repel invasions.
It is to provide for naturalization, standards of weights and measures, post
offices and roads, and patents; to directly govern the federal district and
cessions of land by the states for forts and arsenals. Internationally, Congress
has the power to define and punish piracies and offenses against the Law of
Nations, to declare war and make rules of war. The final Necessary and Proper
Clause, also known as the Elastic Clause, expressly confers incidental powers
upon Congress without the Articles' requirement for express delegation for each
and every power. Article I, Section 9 lists eight specific limits on
congressional power.
The Supreme Court has sometimes broadly interpreted the Commerce Clause and the
Necessary and Proper Clause in Article One to allow Congress to enact
legislation that is neither expressly allowed by the enumerated powers nor
expressly denied in the limitations on Congress. In McCulloch v. Maryland
(1819), the Supreme Court read the Necessary and Proper Clause to permit the
federal government to take action that would "enable [it] to perform the high
duties assigned to it [by the Constitution] in the manner most beneficial to the
people", even if that action is not itself within the enumerated powers. Chief
Justice Marshall clarified: "Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are Constitutional."
Article Two
Article Two describes the office of the President of the United States. The
President is head of the executive branch of the federal government, as well as
the nation's head of state and head of government.
Article Two describes the office, qualifications and duties of the President of
the United States and the Vice President. It is modified by the 12th Amendment
which tacitly acknowledges political parties, and the 25th Amendment relating to
office succession. The president is to receive only one compensation from the
federal government. The inaugural oath is specified to preserve, protect and
defend the Constitution.
The president is the Commander in Chief of the United States Armed Forces and
state militias when they are mobilized. He makes treaties with the advice and
consent of a two-thirds quorum of the Senate. To administer the federal
government, he commissions all the offices of the federal government as Congress
directs; he may require the opinions of its principle officers and make "recess
appointments" while Congress is not in session. The president is to see that the
laws are faithfully executed, though he may grant reprieves and pardons except
regarding Congressional impeachment of himself or other federal officers. The
president reports to Congress on the State of the Union, and by the
Recommendation Clause, recommends "necessary and expedient" national measures.
He may convene and adjourn Congress under special circumstances.
Section 4 provides for removal of the president and other federal officers. The
president is removed on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.
Article Three
Article Three describes the court system (the judicial branch),
including the Supreme Court. There shall be one court called the Supreme Court.
The article describes the kinds of cases the court takes as original
jurisdiction. Congress can create lower courts and an 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.
Section 1 vests the judicial power of the United States in federal courts, and
with it, the authority to interpret and apply the law to a particular case. Also
included is the power to punish, sentence, and direct future action to resolve
conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary
Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S.
Code describes judicial powers and administration.
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 (circuit courts) with exclusive jurisdiction heard regional appeals
before consideration by the Supreme Court. The Supreme Court holds discretionary
jurisdiction, meaning that it does not have to hear every case that is brought
to it.
To enforce judicial decisions, the Constitution grants federal courts both
criminal contempt and civil contempt powers. The court's summary punishment for
contempt immediately overrides all other punishments applicable to the subject
party. Other implied powers include injunctive relief and the habeas corpus
remedy. The Court may imprison 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.
Clause 1 of Section 2 authorizes the federal courts to hear actual cases and
controversies only. Their judicial power does not extend to cases which are
hypothetical, or which are proscribed due to standing, mootness, or ripeness
issues. Generally, a case or controversy requires the presence of adverse
parties who have some interest genuinely at stake in the case. Also required 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.
Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction
in cases involving ambassadors, ministers and consuls, for all cases respecting
foreign nation-states, and also in those controversies which are subject to
federal judicial power because at least one state is a party. 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.
No part of the Constitution expressly authorizes judicial review, but the
Framers did contemplate the idea. The Constitution is the supreme law of the
land. Precedent has since established that the courts could exercise judicial
review over the actions of Congress or the executive branch. 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.
Section 3 bars Congress from changing or modifying Federal law on treason by
simple majority statute. Treason is also defined in this section. It's not
enough merely to think a treasonous thought, 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.
Article Four
Article Four outlines the relation between the states and the relation between
each state and the federal government. In addition, it provides for such matters
as admitting new states and 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.
Article Five
Article Five outlines the process for amending the Constitution.
Eight state constitutions in effect in 1787 included an amendment mechanism.
Amendment making power rested with the legislature in three of the states and in
the other five it was given to specially elected conventions. The Articles of
Confederation provided that amendments were to be proposed by Congress and
ratified by the unanimous vote of all thirteen state legislatures. This proved
to be a major flaw in the Articles, as it created an insurmountable obstacle to
constitutional reform. The amendment process crafted during the Philadelphia
Constitutional Convention was, according to The Federalist No. 43, designed to
establish a balance between pliancy and rigidity:
It guards equally against that extreme facility which would render the
Constitution too mutable; and that extreme difficulty which might perpetuate its
discovered faults. It moreover equally enables the General and the State
Governments to originate the amendment of errors, as they may be pointed out by
the experience on one side, or on the other.
There are two steps in the amendment process. Proposals to amend the
Constitution must be properly adopted and ratified before they change the
Constitution. First, there are two procedures for adopting the language of a
proposed amendment, either by a) Congress, by two-thirds majority in both the
Senate and the House of Representatives, or b) national convention. Second,
there are two procedures for ratifying the proposed amendment, which requires
three-fourths of the states' (presently 38 of 50) approval: a) consent of the
state legislatures, or b) consent of state ratifying conventions. The
ratification method is chosen by Congress for each amendment. State ratifying
conventions were used only once, for the Twenty-first Amendment.
Presently, the Archivist of the United States is charged with responsibility for
administering the ratification process under the provisions of 1 U.S. Code §
106b. The Archivist submits the proposed amendment to the states for their
consideration by sending a letter of notification to each Governor. Each
Governor then formally submits the amendment to their state's legislature. When
a state ratifies a proposed amendment, it sends the Archivist an original or
certified copy of the state's action. Ratification documents are examined by the
Office of the Federal Register for facial legal sufficiency and an
authenticating signature.
Article Five ends by shielding certain clauses in the new frame of government
from being amended. Article One, Section 9, Clauses 1 prevents Congress from
passing any law that would restrict the importation of slaves into the United
States prior to 1808, plus the fourth clause from that same section, which
reiterates the Constitutional rule that direct taxes must be apportioned
according state populations. These clauses were explicitly shielded from
Constitutional amendment prior to 1808. On January 1, 1808, the first day it was
permitted to do so, Congress approved legislation prohibiting the importation of
slaves into the country. On February 3, 1913, with ratification of the Sixteenth
Amendment, Congress gained the authority to levy an income tax without
apportioning it among the states or basing it on the United States Census. The
third textually entrenched provision is Article One, Section 3, Clauses 1, which
provides for equal representation of the states in the Senate. The shield
protecting this clause from the amendment process is less absolute — "no state,
without its consent, shall be deprived of its equal Suffrage in the Senate" —
but permanent.
Article Six
Article Six establishes the Constitution, and all federal 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."
Article Seven
Article Seven describes the process for establishing the
proposed new frame of government. Anticipating that the influence of many state
politicians would be Antifederalist, delegates to the Philadelphia Convention
provided for ratification of the Constitution by popularly elected ratifying
conventions in each state. The convention method also made it possible that
judges, ministers and others ineligible to serve in state legislatures, could be
elected to a convention. Suspecting that Rhode Island, at least, might not
ratify, delegates decided that the Constitution would go into effect as soon as
nine states (two-thirds rounded up) ratified. Once ratified by this minimum
number of states, it was anticipated that the proposed Constitution would become
this Constitution between the nine or more that signed. It would not cover the
four or fewer states that might not have signed.
Ratified amendments
The Constitution has twenty-seven amendments. Structurally, the Constitution's
original text and all prior amendments remain untouched. The precedent for this
practice was set in 1789, when Congress considered and proposed the first
several Constitutional amendments. Among these, Amendments 1–10 are collectively
known as the Bill of Rights, and Amendments 13–15 are known as the
Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was
pending before the states for 202 years, 225 days, the
longest pending amendment that was successfully ratified was the Twenty-second
Amendment, which took 3 years, 343 days. The Twenty-sixth
Amendment was ratified in the shortest time, 100 days. The average ratification
time for the first twenty-six amendments was 1 year, 252 days, for all
twenty-seven, 9 years, 48 days.
A proposed amendment becomes an operative part of the Constitution as soon as it
is ratified by three-fourths of the States (currently 38 of the 50 States).
There is no further step. The text requires no additional action by Congress or
anyone else after ratification by the final state. Thus, when the Office
of the Federal Register verifies that it has received the required number of
authenticated ratification documents, it drafts a formal proclamation for the
Archivist to certify that the amendment is valid and has become part of the
nation's frame of government. This certification is published in the Federal
Register and United States Statutes at Large and serves as official notice to
Congress and to the nation that the ratification process has been successfully
completed.
Safeguards of liberty (Amendments 1, 2, 3)
The First Amendment (1791)
prohibits Congress from obstructing the exercise of certain individual freedoms:
freedom of religion, freedom of speech, freedom of the press, freedom of
assembly, and right to petition. Its Free Exercise Clause guarantees a person's
right to hold whatever religious beliefs he or she wants, and to freely exercise
that belief, and its Establishment Clause prevents the federal government from
creating an official national church or favoring one set of religious beliefs
over another. The amendment guarantees an individual's right to express and to
be exposed to a wide range of opinions and views. It was intended to ensure a
free exchange of ideas even if the ideas are unpopular. It also guarantees an
individual's right to physically gather with a group of people to picket or
protest; or associate with others in groups for economic, political or religious
purposes. Additionally, it guarantees an individual's right to petition the
government for a redress of grievances.
The Second Amendment (1791) protects the right of individuals to keep and bear
arms. Although the Supreme Court has ruled that this right applies to
individuals, not merely to collective militias, it has also held that the
government may regulate or place some limits on the manufacture, ownership and
sale of firearms or similar devices. Requested by several states during the
Constitutional ratification debates, the widespread desire for such an amendment
reflected the lingering resentment over the widespread efforts of the British to
confiscate the colonists' firearms at the outbreak of the Revolutionary War.
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 Third Amendment (1791) prohibits the federal government from forcing
individuals to provide lodging to soldiers in their homes during peacetime
without their consent. Requested by several states during the Constitutional
ratification debates, the widespread desire for such an amendment reflected the
lingering resentment over the Quartering Acts passed by the British Parliament
during the Revolutionary War, which had allowed British soldiers to take over
private homes for their own use.
Safeguards of justice (Amendments 4, 5, 6, 7, 8)
The Fourth Amendment (1791)
protects people against unreasonable searches and seizures of either self or
property by government officials. A search can mean everything from a frisking
by a police officer or to a demand for a blood test to a search of an
individual's home or car. A seizure occurs when the government takes control of
an individual or something in his or her possession. Items that are seized often
are used as evidence when the individual is charged with a crime. It also
imposes certain limitations on police investigating a crime and prevents the use
of illegally obtained evidence at trial.
The Fifth Amendment (1791) establishes the requirement that a trial for a major
crime may commence only after an indictment has been handed down by a grand
jury; protects individuals from double jeopardy, being tried and put in danger
of being punished more than once for the same criminal act; prohibits punishment
without due process of law, thus protecting individuals from being imprisoned
without fair procedures; and provides that an accused person may not be
compelled to reveal to the police, prosecutor, judge, or jury any information
that might incriminate or be used against him or her in a court of law.
Additionally, the Fifth Amendment also prohibits government from taking private
property for public use without "just compensation", the basis of eminent domain
in the United States.
The Sixth Amendment (1791) provides several protections and rights to an
individual accused of a crime. The accused has the right to a fair and speedy
trial by a local and impartial jury. Likewise, a person has the right to a
public trial. This right protects defendants from secret proceedings that might
encourage abuse of the justice system, and serves to keep the public informed.
This amendment also guarantees a right to legal counsel if accused of a crime,
guarantees that the accused may require witnesses to attend the trial and
testify in the presence of the accused, and guarantees the accused a right to
know the charges against them. In 1966, the Supreme Court ruled that, with the
Fifth Amendment, this amendment requires what has become known as the Miranda
warning.
The Seventh Amendment (1791) extends the right to a jury trial to federal civil
cases, and inhibits courts from overturning a jury's findings of fact. Although
the Seventh Amendment itself says that it is limited to "suits at common law",
meaning cases that triggered the right to a jury under English law, the
amendment has been found to apply in lawsuits that are similar to the old common
law cases. For example, the right to a jury trial applies to cases brought under
federal statutes that prohibit race or gender discrimination in housing or
employment. Importantly, this amendment guarantees the right to a jury trial
only in federal court, not in state court.
The Eighth Amendment (1791) protects people from having bail or fines set at an
amount so high that it would be impossible for all but the richest defendants to
pay and also protects people from being subjected to cruel and unusual
punishment. Although this phrase originally was intended to outlaw certain
gruesome methods of punishment, it has been broadened over the years to protect
against punishments that are grossly disproportionate to or too harsh for the
particular crime. This provision has also been used to challenge prison
conditions such as extremely unsanitary cells, overcrowding, insufficient
medical care and deliberate failure by officials to protect inmates from one
another.
Unenumerated rights and reserved powers (Amendments 9, 10)
The Ninth Amendment
(1791) declares that individuals have other fundamental rights, in addition to
those stated in the Constitution. During the Constitutional ratification debates
Anti-Federalists argued that a Bill of Rights should be added. One of the
arguments the Federalists gave against the addition of a Bill of Rights was
that, because it was impossible to list every fundamental right, it would be
dangerous to list just some of them, for fear of suggesting that the list was
explicit and exhaustive, thus enlarging the power of the federal government by
implication. The Anti-Federalists persisted in favor of a Bill of Rights, and
consequently several state ratification conventions refused to ratify the
Constitution without a more specific list of protections, so the First Congress
added what became the Ninth Amendment as a compromise. Because the rights
protected by the Ninth Amendment are not specified, they are referred to as
"unenumerated". The Supreme Court has found that unenumerated rights include
such important rights as the right to travel, the right to vote, the right to
keep personal matters private and to make important decisions about one's health
care or body.
The Tenth Amendment (1791) was included in the Bill of Rights to further define
the balance of power between the federal government and the states. The
amendment states that the federal government has only those powers specifically
granted by the Constitution. These powers include the power to declare war, to
collect taxes, to regulate interstate business activities and others that are
listed in the articles or in subsequent constitutional amendments. Any power not
listed is, says the Tenth Amendment, left to the states or the people. While
there is no specific list of what these "reserved powers" may be, the Supreme
Court has ruled that laws affecting family relations, commerce that occurs
within a state's own borders, and local law enforcement activities, are among
those specifically reserved to the states or the people.
Governmental authority (Amendments 11, 16, 18, 21)
The Eleventh Amendment
(1795) specifically prohibits federal courts from hearing cases in which a state
is sued by an individual from another state or another country, thus extending
to the states sovereign immunity protection from certain types of legal
liability. Article Three, Section 2, Clause 1 has been affected by this
amendment, which also overturned the Supreme Court's decision in Chisholm v.
Georgia.
The Sixteenth Amendment (1913) removed existing Constitutional constraints that
limited the power of Congress to lay and collect direct taxes on income.
Specifically, the apportionment constraints delineated in Article 1, Section 9,
Clause 4 have been removed by this amendment, which also overturned an 1895
Supreme Court decision, in Pollock v. Farmers' Loan & Trust Co., that declared a
federal income taxe on rents, dividends, and interest unconstitutional. This
amendment has become the basis for all subsequent federal income tax legislation
and has greatly expanded the scope of federal taxing and spending in the years
since.
The Eighteenth Amendment (1919) prohibited the making, transporting, and selling
of alcoholic beverages nationwide. It also authorized Congress to enact
legislation enforcing this prohibition. Adopted at the urging of a national
temperance movement, proponents believed that the use of alcohol was reckless
and destructive and that prohibition would reduce crime and corruption, solve
social problems, decrease the need for welfare and prisons, and improve the
health of all Americans. During prohibition, it is estimated that alcohol
consumption and alcohol related deaths declined dramatically. But prohibition
had other, more negative consequences. The amendment drove the lucrative alcohol
business underground, giving rise to a large and pervasive black market. In
addition, prohibition encouraged disrespect for the law and strengthened
organized crime. Prohibition came to an end in 1933, when this amendment was
repealed.
The Twenty-first Amendment (1933) repealed the Eighteenth Amendment and returned
the regulation of alcohol to the states. Each state sets its own rules for the
sale and importation of alcohol, including the drinking age. Because a federal
law provides federal funds to states that prohibit the sale of alcohol to minors
under the age of twenty-one, all fifty states have set their drinking age there.
Rules about how alcohol is sold vary greatly from state to state.
Safeguards of civil rights (Amendments 13, 14, 15, 19, 23, 24, 26)
The
Thirteenth Amendment (1865) abolished slavery and involuntary servitude, except
as punishment for a crime, and authorized Congress to enforce abolition. Though
millions of slaves had been declared free by the 1863 Emancipation Proclamation,
their post Civil War status was unclear, as was the status of other millions.
Congress intended the Thirteenth Amendment to be a proclamation of freedom for
all slaves throughout the nation and to take the question of emancipation away
from politics. This amendment rendered inoperative or moot several of the
original parts of the constitution.
The Fourteenth Amendment (1868) granted United States citizenship to former
slaves and to all persons "subject to U.S. jurisdiction". It also contained
three new limits on state power: a state shall not violate a citizen's
privileges or immunities; shall not deprive any person of life, liberty, or
property without due process of law; and must guarantee all persons equal
protection of the laws. These limitations dramatically expanded the protections
of the Constitution. This amendment, according to the Supreme Court's Doctrine
of Incorporation, makes most provisions of the Bill of Rights applicable to
state and local governments as well. The mode of apportionment of
representatives delineated in Article 1, Section 2, Clause 3 has been superseded
by that of this amendment, which also overturned the Supreme Court's decision in
Dred Scott v. Sandford.
The Fifteenth Amendment (1870) prohibits the use of race, color, or previous
condition of servitude in determining which citizens may vote. The last of three
post Civil War Reconstruction Amendments, it sought to abolish one of the key
vestiges of slavery and to advance the civil rights and liberties of former
slaves.
The Nineteenth Amendment (1920) prohibits the government from denying women the
right to vote on the same terms as men. Prior to the amendment's adoption, only
a few states permitted women to vote and to hold office.
The Twenty-third Amendment (1961) extends the right to vote in presidential
elections to citizens residing in the District of Columbia by granting the
District electors in the Electoral College, as if it were a state. When first
established as the nation's capital in 1800, the district had only five thousand
residents but they had neither a local government, nor the right to vote in
federal elections. By 1960 the population of the District of Columbia had grown
to over 760,000 people, who had all the responsibilities of citizenship — they
were required to pay federal taxes and could be drafted to serve in the military
— citizens in thirteen states with lower populations had more voting rights than
District residents.
The Twenty-fourth Amendment (1964) prohibits a poll tax for voting. Although
passage of the Thirteenth, Fourteenth, and Fifteenth Amendments helped remove
many of the discriminatory laws left over from slavery, they did not eliminate
all forms of discrimination. Along with literacy tests and durational residency
requirements, poll taxes were used to keep low-income (primarily African
American) citizens from participating in elections. The Supreme Court has since
struck down these discriminatory measures, opening democratic participation to
all, regardless of one's ability to pay.
The Twenty-sixth Amendment (1971) prohibits the government from denying the
right of United States citizens, eighteen years of age or older, to vote on
account of age. The drive to lower the voting age was driven in large part by
the broader student activism movement protesting the Vietnam War. It gained
strength following the Supreme Court's decision in Oregon v. Mitchell, which
held that Congress may set requirements for voting in federal elections, but not
for state or local elections. The measure, which overturns the Mitchell
decision, is another in a line of constitutional changes that expanded the right
to vote to more citizens.
Government processes and procedures (Amendments 12, 17, 20, 22, 25, 27)The
Twelfth Amendment (1804) modifies the way the Electoral College chooses the
President and Vice President. It stipulates that each elector must cast a
distinct vote for President and Vice President, instead of two votes for
President. It also suggests that the President and Vice President should not be
from the same state. The electoral process delineated by Article II, Section 1,
Clause 3 has been superseded by that of this amendment, which also extends the
eligibility requirements to become President to the Vice President.
The Seventeenth Amendment (1913) modifies the way senators are elected. It
stipulates that senators are to be elected by direct popular vote. The amendment
supersedes Article 1, Section 2, Clauses 1and 2, under which the two senators
from each state were elected by the state legislature. It also allows state
legislatures to permit their governors to make temporary appointments until a
special election can be held.
The Twentieth Amendment (1933) changes the date on which a new President, Vice
President and Congress take office, thus shortening the time between Election
Day and the beginning of Presidential, Vice Presidential and Congressional
terms. Originally, the Constitution provided that the annual meeting was to be
on the first Monday in December unless otherwise provided by law. The Articles
Congress had determined, as a transitional measure to the new constitution, that
the date for "commencing proceedings" under the U.S. Constitution would be March
4, 1789. This became the date on which new federal officials took office in
subsequent years. This meant that, when a new Congress was elected in November,
it did not come into office until the following March, with a "lame duck"
Congress convening in the interim. However, as transportation and communications
improved, this became an unnecessarily long delay. By moving the beginning of
the president's new term from March 4 to January 20 (and in the case of
Congress, to January 3), proponents hoped to put an end to lame duck sessions,
while allowing for a speedier transition for the new administration and
legislators.
The Twenty-second Amendment (1951) limits an elected president to two terms in
office, a total of eight years. However, under some circumstances it is possible
for an individual to serve more than eight years. Although nothing in the
original frame of government limited how many presidential terms one could
serve, the nation's first president, George Washington, declined to run for a
third term, suggesting that two terms of four years were enough for any
president. This precedent remained an unwritten rule of the presidency until
broken by Franklin D. Roosevelt, who was elected to a third term as president
1940 and in 1944 to a fourth.
The Twenty-fifth Amendment (1967) clarifies what happens upon the death,
removal, or resignation of the President or Vice President and how the
Presidency is temporarily filled if the President becomes disabled and cannot
fulfill the responsibilities of the office. It supersedes the ambiguous
succession rule established in Article II, Section 1, Clause 6. A plan of
succession has frequently been necessary. Eight presidents have died in office
and one resigned from office mid-term. Similarly, seven vice presidents have
died in office and two resigned mid-term. This has meant that for nearly 20% of
U.S. history, there has been no Vice-President in office who can assume the
Presidency.
The Twenty-seventh Amendment (1992) prevents members of Congress from granting
themselves pay raises during the current session. Rather, any raises that are
adopted must take effect during the next session of Congress. Its proponents
believed that Federal legislators would be more likely to be cautious about
increasing congressional pay if they have no personal stake in the vote. Article
One, section 6, Clause 1 has been affected by this amendment, which remained
pending for over two centuries as it contained no time limit for ratification.
Unratified amendments
Collectively, members of the House and Senate typically
propose around 200 amendments during each two-year term of Congress. Most
however, never get out of the Congressional committees in which they were
proposed, and only a fraction of those that do receive enough support to win
Congressional approval to actually go through the constitutional ratification
process.
Six amendments approved by Congress and proposed to the states for consideration
have not been ratified by the required number of states to become part of the
Constitution. Four of these are technically still pending, as Congress did not
set a time limit (see also Coleman v. Miller) for their ratification. The other
two are no longer pending, as both had a time limit attached and in both cases
the time period set for their ratification expired.
Still pending
The Congressional Apportionment Amendment (proposed 1789) would, if ratified, establish a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states following each constitutionally mandated decennial census. At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. That number rose to eleven on March 4, 1791, when Vermont joined the Union. By the end of 1791, the amendment was only one state short of the mark. However, when Kentucky attained statehood on June 1, 1792, the number climbed to twelve. Thus, even though Kentucky ratified it that summer (along with the other eleven amendments), the amendment remained one state shy of the number needed for it to become part of the Constitution. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-seven would be required. The Apportionment Act of 1792 apportioned the House of Representatives at 33,000 persons per representative in consequence of the 1790 census. Reapportionment has since been effected by statute.
The Titles of Nobility Amendment (proposed 1810) would, if ratified, strip United States citizenship from any citizen who accepted a title of nobility from a foreign country. When submitted to the states, ratification by thirteen states was required for it to become part of the Constitution; eleven had done so by early 1812. However, with the addition of Louisiana into the Union that year (April 30, 1812), the ratification threshold rose to fourteen. Thus, when New Hampshire ratified it in December 1812, the amendment again came within two states of being ratified. No additional states ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-six would be required.
The Corwin Amendment (proposed 1861) would, if ratified, shield "domestic institutions" of the states (which in 1861 included slavery) from the constitutional amendment process and from abolition or interference by Congress. This proposal was one of several measures considered by Congress in an ultimately unsuccessful attempt to attract the seceding states back into the Union and to entice border slave states to stay. Three states ratified the amendment in the early 1860s, but none have since. To become part of the Constitution today, ratification by an additional thirty-five states would be required. The subject of this proposal was subsequently addressed by the 1865 Thirteenth Amendment which abolished slavery.
The Child Labor Amendment, (proposed 1924) would, if ratified, specifically authorize Congress to limit, regulate and prohibit labor of persons less than eighteen years of age. The amendment was proposed in response to Supreme Court rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) that found federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 unconstitutional. When submitted to the states, ratification by 36 states was required for it to become part of the Constitution, as there were forty-eight states. Twenty-eight had ratified the amendment by early 1937, but none have done so since. To become part of the Constitution today, ratification by an additional ten would be required. A federal statute approved June 25, 1938, regulated the employment of those under 16 or 18 years of age. The Supreme Court, by unanimous vote in United States v. Darby Lumber Co. (1941), found this law constitutional, effectively overturning Hammer v. Dagenhart. As a result of this development, the movement pushing for the amendment concluded.
No longer pending
The Equal Rights Amendment (proposed 1972) would have
prohibited deprivation of equality of rights (discrimination) by the federal or
state governments on account of sex. A seven-year ratification time limit was
initially placed on the amendment, but as the deadline approached, Congress
granted an extension. Thirty-five states had ratified the amendment, three short
of the number required for it to be implemented, prior to the original deadline
and none did so during the extension period, thus the amendment failed to be
adopted.
The District of Columbia Voting Rights Amendment (proposed 1978) would have
granted the District of Columbia full representation in the United States
Congress as if it were a state, repealed the 23rd Amendment, granted the
District unconditional Electoral College voting rights, and allowed its
participation in the process by which the Constitution is amended. A seven-year
ratification time limit was placed on the amendment. Sixteen states ratified the
amendment (twenty-two short of the number required for it to be implemented)
prior to the deadline, thus the amendment failed to be adopted.
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, federal executive, and all state branches of government, 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.
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 (New York), a co-author of the 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 (Connecticut), a delegate
in the Constitutional Convention, as was John Rutledge (South Carolina),
Washington's recess appointment as Chief Justice who served in 1795. John
Marshall (Virginia), 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 (Pennsylvania)
for ten years, John Blair, Jr. (Virginiaa) for five, and John Rutledge (South
Carolina) 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. Its findings 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 its 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 opinions on
embarrassing or difficult cases. 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. Simply having the
money to sue and being injured by government action 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 pretensions, 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 that 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 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.
Further information: Separation of powers under the United States Constitution
Subsequent CourtsMain article: History of the Supreme Court of the United States
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.
Further information: List of United States Supreme Court cases by the Chase
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
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 Bank 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.
Further information: List of United States Supreme Court cases by the Taft Court
William Howard Taft was a Harding appointment to Chief Justice from 1921 to
1930. A Progressive Republican from Ohio, he was a one-term President.
As Chief Justice, he advocated the Judiciary Act of 1925 that brought the
Federal District Courts under the administrative jurisdiction of the Supreme
Court. 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.
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 of City of Chicago v. Olsen that upheld
Congressional regulation of commerce. Olmstead v. United States 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.
Further information: List of United States Supreme Court cases by the Warren
Court
Earl Warren was an Eisenhower nominee, Chief Justice from 1953 to 1969. 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.
Further information: List of United States Supreme Court cases by the Rehnquist
Court
William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986
to 2005. 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 religionMain article: American civil religion
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.
The idea of displaying the documents strikes some academic critics looking from
the point of view of the 1776 or 1789 America as "idolatrous, and also curiously
at odds with the values of the Revolution." 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 there could potentially be others, believing as
he did that "institutions must advance also".
Some commentators depict the multi-ethnic, multi-sectarian United States as held
together by a political orthodoxy, in contrast with a nation state of people
having more "natural" ties.
Worldwide influence
The United States Constitution has been a notable model for governance around the world for two centuries. Its international influence is found in similarities of phrasing and borrowed passages in other constitutions, as well as in the principles of the rule of law, separation of powers and recognition of individual rights. The American experience of fundamental law with amendments and judicial review has motivated constitutionalists at times when they were considering the possibilities for their nation's future. It informed Abraham Lincoln during the Civil War, his contemporary and ally Benito Juárez of Mexico, and the second generation of 19th century constitutional nationalists, José Rizal of the Philippines and Sun Yat-sen of China. Since the latter half of the 20th century, the influence of the United States Constitution may be waning as other countries have revised their constitutions with new influences.
Criticisms
The United States Constitution has faced various
criticisms since its inception in 1787.
The Constitution did not originally define who was eligible to vote, allowing
each state to determine who was eligible. In the early history of U.S., most
states allowed only white male adult property owners to vote. Until the
Reconstruction Amendments were adopted between 1865 and 1870, the five years
immediately following the Civil War, the Constitution did not abolish slavery,
nor give citizenship and voting rights to former slaves. These amendments did
not include a specific prohibition on discrimination on the basis of sex; it
took another amendment — the Nineteenth, ratified in 1920 — for the Constitution
to prohibit any United States citizen from being denied the right to vote on the
basis of sex.
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