United States Constitution

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The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court. Besides providing for the organization of these branches, the Constitution carefully outlines which powers each branch may exercise. It also reserves numerous rights for the individual states, thereby establishing the United States' federal system of government. It is the shortest and oldest written constitution of any major sovereign state.[1]

The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by conventions in each U.S. state in the name of "The People"; it has since been amended twenty-seven times, the first ten amendments being known as the Bill of Rights.[2][3] The Articles of Confederation and Perpetual Union was actually the first constitution of the United States of America.[4] The U.S. Constitution replaced the Articles of Confederation as the governing document for the United States after being ratified by nine states. The Constitution has a central place in United States law and political culture.[5] The handwritten, or "engrossed", original document penned by Jacob Shallus is on display at the National Archives and Records Administration in Washington, D.C.

Contents

History

Drafting and ratification requirements

In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Congress of the Confederation endorsed the plan to revise the Articles of Confederation on February 21, 1787.[6] Twelve states, Rhode Island being the only exception, accepted this invitation and sent delegates to convene in May 1787.[6] The resolution calling the Convention specified that its purpose was to propose amendments to the Articles, but through discussion and debate it became clear by mid-June that, rather than amend the existing Articles, the Convention decided to propose a rewritten Constitution.[7] The Philadelphia Convention voted to keep the debates secret, so that the delegates could speak freely. They also decided to draft a new fundamental government design, which eventually stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect (for the participating states).[7] Current knowledge of the drafting and construction of the United States Constitution comes primarily from the diaries left by James Madison, who kept a complete record of the proceedings at the Constitutional Convention.[8]

Work of the Philadelphia Convention

The Virginia Plan was the unofficial agenda for the Convention, and was drafted chiefly by James Madison, considered to be "The Father of the Constitution" for his major contributions.[8] It was weighted toward the interests of the larger states, and proposed among other points:

An alternative proposal, William Paterson's New Jersey Plan, gave states equal weights and was supported by the smaller states.[10] Roger Sherman of Connecticut brokered The Great Compromise whereby the House would represent the people, a Senate would represent the states, and a president would be elected by electors.[11]

The contentious issue of slavery was too controversial to be resolved during the convention. As a result, the original Constitution contained four provisions tacitly allowing slavery to continue for the next 20 years. Section 9 of Article I allowed the continued "importation" of such persons, Section 2 of Article IV prohibited the provision of assistance to escaping persons and required their return if successful and Section 2 of Article I defined other persons as "three-fifths" of a person for calculations of each state's official population for representation and federal taxation.[12] Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. The failure to do so was a contributing factor to the Civil War.[13]

Ratification

Ratification of the Constitution
  Date State Votes
Yes No
1 December 7, 1787 Delaware 30 0
2 December 11, 1787 Pennsylvania 46 23
3 December 18, 1787 New Jersey 38 0
4 January 2, 1788 Georgia 26 0
5 January 9, 1788 Connecticut 128 40
6 February 6, 1788 Massachusetts 187 168
7 April 26, 1788 Maryland 63 11
8 May 23, 1788 South Carolina 149 73
9 June 21, 1788 New Hampshire 57 47
10 June 25, 1788 Virginia 89 79
11 July 26, 1788 New York 30 27
12 November 21, 1789 North Carolina 194 77
13 May 29, 1790 Rhode Island 34 32

Contrary to the process for "alteration" spelled out in Article 13 of the Articles, Congress submitted the proposal to the states and set the terms for representation.

On September 17, 1787, the Constitution was completed in Philadelphia at the Federal Convention, followed by a speech given by Benjamin Franklin who urged unanimity, although they decided only nine states were needed to ratify the constitution for it to go into effect. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation.[9]

Once the Congress of the Confederation received word of New Hampshire's ratification, it set a timetable for the start of operations under the Constitution, and on March 4, 1789, the government under the Constitution began operations.

Historical influences

Several of the ideas in the Constitution were new, and a large number of ideas were drawn from the literature of Republicanism in the United States, from the experiences of the 13 states, and from the British experience with mixed government. The most important influence from the European continent was from Montesquieu, who emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius' 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic.) John Locke is known to have been a major influence, and the due process clause of the United States Constitution was partly based on common law stretching back to the Magna Carta of 1215.[9]

Influences on the Bill of Rights

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.[14] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. For example, both require jury trials, contain a right to keep and bear arms, and prohibit excessive bail as well as "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the United States Bill of Rights.

Articles of the Constitution

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

Preamble: Statement of purpose

The Preamble states:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

The Preamble does not grant any particular authority to the federal government and it does not prohibit any particular authority. It establishes the fact that the federal government has no authority outside of what follows the preamble, as amended. "We the people", is one of the most-quoted sections of the Constitution. It was thought by the Federalists during this time that there was no need for a bill of rights as they thought that the preamble spelled out the people's rights.reference required

Article One: Legislative power

Article One describes the congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of the lower house of the House of Representatives and the Senate as the upper house.

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

In Article I Section I, the Constitution reads "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.

Article I Section 8 enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch:

The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Article I Section IX provides a list of eight specific limits on Congressional power and Article I Section X 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 the 1819 McCulloch v. Maryland ruling, the 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..."

Article Two: Executive power

Article Two describes the presidency (the executive branch). The article establishes the manner of election and qualifications of the President, the oath to be affirmed and the powers and duties of the office. The President must be a natural born citizen of the United States, be at least 35 years old, and a resident of the United States for at least 14 years. It also provides for the office of Vice President, and 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") leaves 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, and this was followed in practice; the 25th Amendment explicitly states that the Vice President becomes President in those cases. Article Two also provides for the impeachment and removal from office of all officers of the government.

Article Three: Judicial power

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; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also creates the right to trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it. This Article also sets the kinds of cases that may be heard by the federal judiciary, which cases the Supreme Court may hear first (called original jurisdiction), and that all other cases heard by the Supreme Court are by appeal under such regulations as the Congress shall make.

Article Four: States' powers and limits

Article Four describes the relationship between the states and the Federal government and amongst 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: Amendments

Once proposed — whether submitted by Congress or by a national convention — amendments must then be ratified by three-fourths of the states to take effect. Article Five gives Congress the option of requiring ratification by state legislatures or by special convention. The convention method of ratification has only been used to approve the 21st Amendment. Article Five currently places only one limitation on the amending power — that no amendment can deprive a state of its equal representation in the Senate without that state's consent (limitations regarding slavery and taxation having expired in 1808.)

Article Six: Federal power

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

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

Article Seven: Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose, and it would only apply to those states which ratified it.[7] (See above Drafting and ratification requirements.)

Amendment process

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an over-rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered.[15]

Amending the Constitution is a two-part process: amendments must be proposed and then they must be ratified. Amendments can be proposed one of two ways. The only way that has been used to date is through a two-thirds majority vote in both houses of Congress. Alternatively, two–thirds of the legislatures of the States can call a Constitutional Convention to consider one or more amendments. This second method has never been used, and it is unclear exactly how, in practice, such a Constitutional Convention would work.

Regardless of how the amendment is proposed, the amendment must be approved by three-fourths of states, a process called ratification. Depending on the amendment, this requires either the state legislatures or special state conventions to approve the amendment by simple majority vote. Amendments generally go to state legislatures to be ratified, only the Twenty-first Amendment called for special state conventions.

Unlike many other constitutions, amendments to the U.S. constitution are appended to the existing body of the text without altering or removing what already exists. There is no provision for deleting either obsolete text or rescinded provisions, including passages that are directly contradicted by subsequent amendments (for example, the 18th and 21st).

Judicial review

The way the Constitution is understood is also influenced by the decisions of the court system, and especially the Supreme Court. These decisions are referred to, collectively, as precedents. The ability of the courts to interpret the Constitution was decided early in the history of the United States, in the 1803 case of Marbury v. Madison. In that case, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has affected a change in the way many Constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also 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 agencies of the federal government have a similar effect. If the actions of Congress or federal agencies are challenged as to their constitutionality, however, it is the court system that ultimately decides whether or not they are allowable under the Constitution.

Subsequent amendments

The Constitution has a total of twenty-seven amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)

It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the First Amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that commonwealth's first month of statehood.

Subsequent amendments (11–27)

Amendments to the Constitution subsequent to 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 a total of 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth.

Unratified amendments

Over 10,000 Constitutional amendments have been introduced in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are offered. Most of these concepts never get out of Congressional committee, and far fewer get proposed by the Congress for ratification. Backers of some amendments have attempted the alternative, and thus-far never-utilized, method mentioned in Article Five. In two instances—reapportionment in the 1960s and a balanced federal budget during the 1970s and 1980s—these attempts have come within just two state legislative "applications" of triggering that alternative method.

Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures—and four of those six are still technically pending before state lawmakers (see Coleman v. Miller). Starting with the 18th Amendment, each proposed amendment (except the 19th Amendment and the still-pending Child Labor Amendment of 1924) has specified a deadline for passage. The following are the unratified amendments:

  • The Congressional Apportionment Amendment, proposed by the 1st Congress on September 25, 1789, defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last being Kentucky in June 1792 (Kentucky's initial month of statehood), this amendment contains no expiration date for ratification. In principle it may yet be ratified, though as written it became moot when the population of the United States reached ten million.
  • The so-called missing thirteenth amendment, or "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 actually ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked.[17] Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification. It may yet be ratified.
  • 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 (a delicate way of referring to slavery). It was ratified by only Ohio and Maryland lawmakers before the outbreak of the Civil War. Illinois lawmakers—sitting as a state constitutional convention at the time—likewise approved it, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification and may yet be ratified. However, adoption of the 13th, 14th, and 15th Amendments after the Civil War likely means that the amendment would be ineffective if adopted.
  • A child labor amendment proposed by the 68th Congress on June 2, 1924, which stipulates: "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' powers under the commerce clause.

Properly placed in a separate category from the other four constitutional amendments that Congress proposed to the states, but which not enough states have approved, are the following two offerings which—because of deadlines—are no longer subject to ratification.

  • The Equal Rights Amendment, or ERA, which reads in pertinent 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, depending upon one's point of view of a controversial three-year extension of the ratification deadline, which was passed by the 95th Congress in 1978. Of the 35 states ratifying it, four later rescinded their ratifications prior to the extended ratification period which commenced March 23, 1979 and a fifth—while not going so far as to actually rescind its earlier ratification—adopted a resolution stipulating that its approval would not extend beyond March 22, 1979. There continues to be diversity of opinion as to whether such reversals are valid; no court has ruled on the question, including the Supreme Court. But a precedent against the validity of rescission was first established during the ratification process of the 14th Amendment when Ohio and New Jersey rescinded their earlier approvals, but yet were counted as ratifying 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 it 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—less than half of the required 38—the proposed amendment expired on August 22, 1985.

There are currently only a few proposals for amendments which have entered mainstream political debate. These include the proposed Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. All three of these proposed amendments are primarily supported by conservative members of the Republican Party.reference required Since the opposing Democratic Party obtained the Presidency and solid majorities in the U.S. House and Senate during the 2008 election, it is therefore not expected that these will be submitted through the legislative process anytime in the near future.reference required


Part of this article consists of modified text from Wikipedia, and the article is therefore licensed under GFDL.

References

  1. U.S. Constitution Center. Retrieved on 2008-09-21.
  2. WikiSource. WikiSource: Constitution of the United States of America. Retrieved on 2007-12-16.
  3. Library of Congress. Primary Documents in American History: The United States Constitution. Retrieved on 2007-12-16.
  4. Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 131 [ISBN 978-0-521-88188-3 (noting that "Madison, along with other Americans clearly understood" the Articles of Confederation "to be the first federal Constitution.")
  5. Casey (1974)
  6. 6.0 6.1 NARA. National Archives Article on the Constitutional Convention. Retrieved on 2007-12-16.
  7. 7.0 7.1 7.2 NARA. National Archives Article on the Constitution. Retrieved on 2007-12-16.
  8. 8.0 8.1 NARA. National Archives Article on James Madison. Retrieved on 2007-12-16.
  9. 9.0 9.1 9.2 NARA. National Archives Article on the Entire Constitutional Convention. Retrieved on 2007-12-16.
  10. NARA. National Archives Article on William Paterson. Retrieved on 2007-12-16.
  11. NARA. National Archives Article on Roger Sherman. Retrieved on 2007-12-16.
  12. Section 2 of Article I provides in part: "Representatives and direct taxes shall be apportioned among the several states . . . by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."
  13. See South Carolina Declaration of Causes in Seccession (December 24, 1860), reprinted in Richard Hofstadter, Great Issues in American History. Volume II, Vintage Books (1958), p.76-7; Abraham Lincoln, Message to Congress (July 4, 1861) reprinted in Hofstadter, supra.
  14. NARA. National Archives Article on the Bill of Rights. Retrieved on 2007-12-16.
  15. Lutz, Donald (1994). Toward a theory of constitutional amendment. 
  16. Findlaw.com
  17. The Missing Thirteenth Amendment
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