WE THE PEOPLE OF THE UNITED STATES, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The preamble to the Constitution is a statement of aspiration—a promise to Americans about the things that the new federal government intended to achieve for “We the People of the United States.” Some of the specific objects of government stated in the preamble—the establishment of justice, insuring the peaceful operation of society, and providing for the common defense—had long been understood to be the primary responsibilities of any government. The promises to promote the general welfare and to “secure the Blessings of Liberty” are more open-ended, suggesting that the government’s responsibilities extend not merely to providing essential services but also to benevolent oversight of the polity. Although the words of the preamble do not carry the force of law, they have had substantial rhetorical power over the life of the Constitution.
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.
It is no accident that the first article of the Constitution deals with the structure and powers of the Congress, for virtually all of those who took part in the drafting of the Constitution considered the legislative branch to be the most important and, rightfully, the most powerful of the three branches of government.
There was broad agreement among the framers of the Constitution that the Congress should consist of a bicameral legislature. The House of Representatives, the “lower house,” was conceived to be the “great repository” of the people of the nation at large, while the Senate, “the upper house,” was to be composed of only the most knowledgeable, well-educated, and virtuous, who could be relied upon to act as a moderating influence on the whims of the people at large.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
The framers of the Constitution stipulated that members of the House of Representatives, the people’s house, should serve relatively short terms of only two years, after which they would be required to seek reelection should they wish to continue to represent their state. The delegates could not agree on who should be allowed to vote for members of the House of Representatives, so they left the matter of voting requirements up to the state legislatures, which had up to that time set the qualifications for voters in each of the states. In 1787 all the states except New Jersey (which briefly permitted females to vote) limited the franchise to “free men” (a term usually interpreted to exclude free blacks) and most required that voters own at least some form of property. By the 1820s, most states had opened up the franchise to free white males regardless of whether they owned property. Subsequent amendments—the Fifteenth, prohibiting the denial of the franchise on account of “race, color, or previous condition of servitude”; the Nineteenth, enfranchising women; and the Twenty-sixth, establishing a uniform voting age of eighteen—served to create a common national standard for voting in federal elections.
The requirement that members of the House of Representatives reside in the state in which they were chosen reflected the belief that representatives, if they are to serve the people who elect them, must have close and meaningful ties to the communities in which those people live.
The “three fifths of all other Persons” referred to in this section is the result of the infamous “three-fifths compromise,” in which slaves, though not mentioned by name, were to be counted as three-fifths of a person in the apportionment of representation in the House of Representatives as well as in the apportioning of the amount of direct taxes to be paid by each state. The three-fifths ratio was a purely arbitrary one. It was a consequence of a fundamental contradiction that the Convention delegates were unable to resolve: slaves were human beings, but by the laws of most states they were also regarded as property. The passage of the Thirteenth Amendment abolishing slavery rendered this portion of Article I, Section 2 null and void.
Although the original Constitution laid down a formula for representation based on population (and “three fifths of all other Persons”), none of the delegates to the 1787 Convention really knew what the actual population of each of the states was. The initial apportionment of representation was merely a guess, but the Constitution did provide for a census of the population to be taken every ten years, a practice that began in 1790 and has continued to the present day.
The “sole Power of Impeachment” referred only to the first step—the equivalent of an indictment or bringing to trial—in the removal of a federal official. The grounds for impeachment set down in Article II, Section 4—“Treason, Bribery, or other High Crimes and Misdemeanors”—have been subject to widely varying interpretations.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The Senate, as the “upper house,” was conceived as a more deliberative body, whose members would be comprised of the most virtuous and knowledgeable citizens in the land. The framers of the Constitution believed that Senators should therefore serve longer terms in order that they might be better insulated from the immediate pressures of public opinion. One of the means by which Senators would be protected from popular whims was to provide for an indirect method for their election, with the legislatures of the individual states being given the power over such election. The provision for staggered terms of service was designed to prevent sudden, convulsive turnover in the membership of the Senate.
Consistent with the view that the members of the Senate were expected to possess superior knowledge and experience, the minimum age of Senators was set at thirty, and the length of time after becoming a citizen nine years, as opposed to twenty-five years of age and seven years of citizenship for members of the House of Representatives.
The framers of the Constitution were aware of the necessity of providing for a vice president, who would assume the president’s duties in the event of his death, disability, or removal, but they had a hard time thinking of any other functions the vice president might perform. The provision of Article I, Section 2, designating the vice president as the presiding officer of the Senate, is the only item in the Constitution that speaks to the limited official duties of the vice president.
The Senate, as the more deliberative of the two legislative bodies, was given the responsibility of trying impeachment cases. Seeking to reinforce the principle of separation of powers, the Constitution designates the chief justice of the U.S. Supreme Court as the person who would preside over an impeachment trial of the president.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
As was the case in the instance of voting requirements, the framers of the Constitution were content to leave the matter of when congressional elections should be held to the state governments.
The stipulation that Congress should assemble on the first Monday in December was altered by the passage of the Twentieth Amendment in 1933. The practical effect of the original terms of Article I, Section 4, was to delay the seating of new members of Congress until March, creating a period of months during which a lame-duck Congress would be in session. Improvements in transportation and communications made it possible, and desirable, to move the stipulated time of the meeting of Congress to January 3.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
The items in Article I, Section 5, giving each branch of the legislature control over its own proceedings, reflect a long-standing desire, dating back to the gradual evolution of the English parliament as a legislative body with powers independent of those of the king, to preserve the independence of the legislature from executive encroachment. This section of the Constitution also encourages openness in the publication and dissemination of the proceedings of Congress.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
The provision for paying salaries to members of Congress provoked some disagreement among the delegates, as at least some members of the Constitutional Convention thought that public servants should be virtuous and wealthy “gentlemen” capable of serving in office without the need to seek compensation.
The provision providing immunity from arrest except in cases of treason, felony, or breach of the peace was another attempt to ensure the independence of members of the legislature, and the provision prohibiting service in other public offices while serving in Congress marked a rejection of practices in the English parliament, where members of Parliament also served as ministers in the king’s cabinet; more generally it reflected a desire to reinforce the principle of separation of powers.
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
The power over the “purse” was considered the most important of the powers that any government could wield; indeed it was the British parliament’s attempt to tax the colonies without their consent that precipitated the American Revolution. The decision to give the federal government the power to levy taxes—a power denied to the government under the Articles of Confederation—may well have been the most important one made by the delegates to the Convention. It is noteworthy, however, that they gave the “people’s body,” the House of Representatives, the power to originate revenue bills.
The next, lengthy portion of Article I, Section 7, is one of the hallmarks of the system of separation of powers and checks and balances. It spells out the process by which a legislative proposal must pass both houses of Congress and then receive the assent of the president before it can become law. It provides for a limited executive veto over congressional legislation but gives to the Congress the power, if it can muster a two-thirds majority, to override a presidential veto.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States:
To Borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
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.
Many Americans think of their Constitution as a document that protects the liberties of American citizens by defining those things that the federal government cannot do. This is the central concern of the first ten amendments to the Constitution, which today we call the Bill of Rights. But in fact, in many respects Article I, Section 8, constitutes the heart and soul of the U.S. Constitution. It specifically enumerates the powers that the federal government is permitted to exercise. The initial version of this article, as outlined in the Virginia Plan, gave an open-ended grant of power to the Congress, simply providing that Congress would have the power “to legislate in all cases to which the separate States are incompetent,” but when the Committee of Detail produced a comprehensive first draft of a constitution in early August 1787, that general grant of power was replaced by the more specific enumeration of powers that appears in Article I, Section 8. Among the most important powers enumerated in Article I, Section 8, are:
1. As previously mentioned, the power to levy taxes—the ability of the government to provide for itself a permanent revenue with which to finance its operations—was the single most important power given to the new federal government. The broad purposes for which that power was granted—to “provide for the common Defence and general Welfare of the United States”—have been interpreted in widely different ways over the course of the nation’s history, with the general trend leading toward an expansion of activity financed by the federal taxation power.
2. The “commerce power” has proven to be one of the most important and far-reaching provisions of the federal Constitution. Utilizing an ever-expanding definition of its power to regulate commerce “among the several States,” the federal government has broadened the definition of “commerce” to include not only the shipment of goods across state lines but also many other forms of activity: the building of interstate roads; the power to regulate the business activities of corporations; and the power to pass environmental legislation, consumer-protection laws, and occupational-safety regulations.
3. Establishing post offices and post roads may seem mundane enterprises, but this provision of the Constitution, in conjunction with an expansive view of Congress’s role in promoting the “general Welfare” and regulating commerce, marked the beginnings of the creation of a national infrastructure that would tie the thirteen previously independent and sovereign states into a single nation.
4. The clause relating to the promotion of science and useful arts gives to Congress the power to enact patent and copyright laws.
5. Clauses ten through sixteen of Article I, Section 8, deal with the war powers of Congress. If the “power over the purse” has long been considered to be the most important of a government’s powers, the power over the “sword”—the ability not only to declare war but also to vote on appropriations for the financial support of war—has run a close second. Congress’s power to declare war overlaps with the power of the president, as commander in chief of the nation’s armed forces, to direct the actual conduct of war. In one sense, this overlap is part of the Constitution’s system of separation of powers, but in another it has become a significant source of constitutional controversy in recent years. In numerous cases since the mid-twentieth century—in the Korean War, the Vietnam War, the First Gulf War, and most recently, the wars in Iraq and Afghanistan—the president has proceeded with the prosecution of the war without a formal congressional declaration of war.
6. Congress’s power over the appropriation of money gives it a substantial say over how—or whether—a war should be fought, but it has only rarely denied funds for the support of an army or navy once a war is under way.
7. The seventeenth clause, giving to Congress the power to “exercise exclusive Legislation . . . over such District . . . as may . . . become the Seat of the Government,” is the basis on which Congress created the District of Columbia, which is regarded not as a state but as a federal territory and the nation’s capital.
8. The final provision of Article I, Section 8, has proven to be one of the most important—and controversial—provisions of the Constitution. By giving Congress the power to make all laws “necessary and proper” for carrying into effect the previously enumerated powers, the framers of the Constitution opened the door to a significant expansion of federal power. Within just a few years of the adoption of the Constitution, some of the most important figures of the revolutionary era found themselves in bitter disagreement on the meaning of the phrase “necessary and proper,” with President Washington’s secretary of the treasury, Alexander Hamilton, arguing for a broad construction of its meaning (for example, as “needful,” “useful,” or “conducive to”) and Thomas Jefferson and James Madison arguing for a strict construction (for example, as “absolutely necessary”). This line of constitutional difference between “broad constructionists” and “strict constructionists” was a bitter source of contention in the period leading up to the Civil War and continues in somewhat diminished form between the respective proponents of a more limited or more active federal government even today.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
Article I, Section 9, outlines those actions that the federal government may not take.
The most controversial of these prohibitions is contained in the very first item. The Convention delegates from South Carolina and Georgia, whose slave economies were still expanding, insisted that no legislation interfering with the African slave trade be permitted until at least twenty years after the adoption of the Constitution. The prohibition of any legislation affecting “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” was intended to ensure that protection. As in all instances in which the Constitution deals with the institution of slavery, neither the word “slave” nor “slavery” is explicitly mentioned in the text of the document. In 1808 the U.S. Congress enacted legislation abolishing the international slave trade, but during that twenty-year interval some two hundred thousand slaves were imported from Africa into the United States.
Many of the most important prohibitions to federal government action laid down in Article I, Section 9, were designed to protect fundamental liberties handed down to Americans through English common law. Perhaps the most important of these was the privilege of habeas corpus, the right of a prisoner to challenge his imprisonment in a court of law. On at least a few occasions American presidents have suspended this privilege while either suppressing rebellion or protecting the public safety. During the Civil War, President Abraham Lincoln held “disloyal persons” suspected of giving aid and comfort to the Confederate cause in prison without benefit of trial. More recently, President George W. Bush, citing provisions of the Patriot Act as well as implied executive powers, sanctioned the holding of several hundred “enemy combatants” in the “war on terror.”
The prohibition against bills of attainder, the issuing of edicts aimed at punishing individuals or groups of individuals without benefit of trial, and the ban on ex post facto laws—criminal laws aimed at punishing individuals for actions taken before the law itself was passed—were also rooted in traditions of English common law. The prohibition of taxes on exports was a purely political bargain between northern and southern states, and was designed to protect the interests of the South, whose agricultural exports formed an important part of its economy. The prohibition against direct taxes unless such taxes were levied precisely in proportion to the number of citizens in each of the states was another attempt to protect the institution of slavery from being taxed out of existence; this provision was subsequently changed by the passage of the Sixteenth Amendment, making possible the imposition of a federal income tax.
While it would be unthinkable today for our federal government to grant a title of nobility to any of its citizens, the provision in Article I, Section 9, prohibiting the granting of titles of nobility and placing additional restrictions on receiving a “present, Emolument, Office, or Title” from a foreign state reflected the strong commitment of the framers of the Constitution that their government should be a “republican” one, and not one that reflected the aristocratic ways of Europe.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The provisions in Article I, Section 10, stipulate those things that the state governments are prohibited from doing. The most important of these are:
1. Individual states may not enter into separate treaties with foreign nations.
2. The governments of the states are bound by the same requirements as the federal government in the prohibition of bills of attainder, ex post facto laws, laws impairing obligations of contracts, and granting titles of nobility.
3. State governments may not issue currency for the purpose of paying debts unless that currency is in gold and silver. This provision came in reaction to the laxness of some state governments that issued depreciated or, in some cases, worthless currency during the period of the Revolution. This provision marked the beginning—but only the beginning—of the creation of a single national currency.
4. During the period of the Confederation, many states, eager to raise their own revenues, levied tariffs on goods entering their ports from other states. The new Constitution reserved the power of taxing imports to the federal government alone, preventing states from enacting their own tariffs.
5. Although the individual states were permitted to maintain their own militias for the maintenance of order within their boundaries, the Constitution prohibits states from maintaining either a standing army or a navy in time of peace; it also prohibits the states from entering into agreements with other states or foreign powers for military purposes.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The opening words of Article II, Section 1, are both remarkably simple and maddeningly vague: “The executive Power shall be vested in a President of the United States of America.” While other sections of Article II provide some specificity on the nature and extent of presidential power, for the most part the language of Article II relating to executive power is far less specific than that of Article I defining congressional power.
Opinions about the length of the president’s term varied widely, with proposals ranging from a minimum of two years to a term of “during good behavior”—or, effectively, for life. The delegates also disagreed about whether the president should be eligible for reelection. The decision on a four-year term seemed to satisfy most delegates and, by avoiding mentioning anything about the president’s eligibility for reelection, the framers left the question of how many terms a president should serve up to the voters. George Washington’s decision to serve only two terms in office set a precedent that lasted until the presidency of Franklin D. Roosevelt, who won election to the presidency four times, serving from 1933 until his death in 1945. In 1951 Congress passed, and the states ratified, the Twenty-second Amendment, limiting presidents to two terms.
The next part of Article II, Section 1, reflects the torment the Convention delegates experienced as they wrestled with the question of how to give the president sufficient power without giving him excessive power, as well as how to free him from excessive dependence on the legislature while at the same time assuring that he did not become, in their terms, an “elective monarch.” While one would think that the best way to do this would be to have the president elected by and answerable to the people of the nation at large, the vast majority of delegates feared that the American people were simply too provincial—too ignorant of the merits of possible presidential candidates across a land as vast as that of the thirteen states of which America was then comprised—to make a wise choice. For that reason, for most of the Convention the delegates inclined toward election of the president by the Congress or, at least, by the more popular branch of Congress, the House of Representatives. But this method ran the risk of violating the principles of separation of powers by making the president unduly dependent upon the Congress for his election. For much of the summer of 1787, the delegates argued unproductively about various alternatives for electing the president, and finally, in the tortured language of Article II, Section 1, they called for the creation of an electoral college: a group of independent electors, selected in each of the states “in such Manner as the Legislature thereof may direct,” who would then cast their ballots for a president and vice president.
Although initially designed as a decidedly elitist device by which only the most knowledgeable and distinguished men—those selected to be electors—would use their own independent judgment in casting their ballots for the president, by the election of Thomas Jefferson in 1800 the presidential electoral system had been entirely transformed by the unexpected invention of organized political parties. The newly created political party system functioned in a way that caused slates of presidential electors to be pledged in advance to vote for particular candidates, with the result being that American voters, whose numbers were expanding as the number of citizens eligible to vote expanded, were now casting their votes, not on the basis of the identity of the individual electors, but on the merits of the candidates themselves. The invention of political parties—a development occurring wholly outside America’s constitutional system—fundamentally changed the way the Constitution operated, transforming it from a “republican” but elitist political system into a truly democratic one.
Americans have grumbled about the imperfections of the electoral college system from the days when it was first debated in the Constitutional Convention up to the present, but for the most part, it has managed to produce victors in the presidential contests whose legitimacy as duly elected chief executives has not been challenged. There have been exceptions: the election of John Quincy Adams, decided by the House of Representatives in 1824; the election of a “minority” Republican president, Abraham Lincoln, in 1860, which led to the secession of the Southern states; the disputed 1876 presidential election between Samuel Tilden and Rutherford B. Hayes, in the final days of Reconstruction; and the contested election of George W. Bush in 2000, ultimately decided by the Supreme Court. Each of these cases has provoked criticism of the electoral college system, but up to this point neither Congress nor the American people have moved to the obvious alternative: direct popular election of the president.
The decision to require that the president be a “natural born Citizen” of the United States was made in the Convention with little discussion and probably with little thought. Indeed, eight of the delegates to the Convention had themselves been born outside British North America (all were born in the British Isles and would in any case have been eligible to serve as president because they were citizens of the United States at the time of the adoption of the Constitution). In an age in which America’s economy, culture, and politics are increasingly shaped by recent immigrants, this particular constitutional provision seems a good candidate for amendment.
This provision defines the vice president’s most important duty: to succeed the president in case of his death, disability, or removal from office. The framers left the line of succession in the event of the vice president’s death, disability, resignation, or removal up to Congress. The Twenty-fifth Amendment, adopted in 1967, provided a means by which a president could select, with the confirmation of a majority of members of Congress, another vice president.
Although Congress is given responsibility for setting the president’s salary, it may not increase or decrease his salary during his term of service, a provision designed to render the president independent of the Congress’s will.
The presidential oath is a remarkably simple one, wholly appropriate to a republican society. In taking the oath of office for the first time on April 30, 1789, George Washington added the words “So help me, God” to his oath, a tradition that has been continued by nearly every subsequent president.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Article II, Section 2, is principally concerned with outlining the powers of the president, but given the enormous power of the modern presidency, it seems remarkably short and vague in its prescriptions. Certainly, the most important—and controversial—of those powers has devolved from the president’s role as commander in chief of the army and navy of the United States and of the militias of the several states. That role, which has given the president enormous power to “make war,” has sometimes come in conflict with the power of Congress to “declare war” as well as with Congress’s power to control the financial appropriations necessary to make fighting a war possible.
By the terms of Article II, Section 2, the president has the primary role in entering into treaties with other nations, although it reserves to the Senate the right to approve any treaty before it assumes the force of law.
The president has the power, with the advice and consent of the Senate, to appoint ambassadors, ministers, justices of the Supreme Court, and “all other Officers of the United States.” In recent decades, as the Supreme Court has become a more powerful and assertive branch of the federal government, members of the Senate have responded by asserting more vigorously their right to advise and consent with respect to the appointment of justices of the Court.
The president’s use of the power to appoint “all other Officers of the United States” has increased in direct proportion to the growing power of the federal government and of the executive branch in particular. Although the Founding Fathers no doubt assumed that the president would appoint members of a presidential “cabinet,” they would perhaps have been surprised at the growth in the size and scope of the bureaucracy serving each of the cabinet departments. The president’s cabinet has expanded from four members in President Washington’s day (the secretaries of treasury, war, and state and the attorney general) to fifteen (not including the vice president) today.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Presidents Washington and Adams addressed the Congress directly on the “State of the Union,” but from 1801 to 1909 the president merely sent the Congress written messages. Beginning in 1913, and continuing to the present day, the formal State of the Union address to Congress, given at the beginning of each year, has become an important national ritual. Some presidents, including President Barack Obama, have convened both houses of Congress on other “extraordinary Occasions,” to address them on subjects that they have considered important.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
This is another one of the provisions of Article II that is remarkably simple and maddeningly vague. The framers of the Constitution all agreed that a president should be removed from office if he committed treason, bribery, or other “high Crimes,” but most of them also believed that the president might be removed if he were found culpable of “malfeasance in office” (a term used in one of the earlier drafts of the Constitution). On the other hand, most of the framers agreed that it would be improper for Congress to remove a president simply because a majority of members of Congress might disagree with him, and since “malfeasance” was a term with a meaning that might vary in the eye of the beholder, they substituted the term “Misdemeanors” for “malfeasance.” It was a term that left no one wholly satisfied, and it has caused considerable confusion in those rare cases (during the presidencies of Andrew Johnson, Richard Nixon, and William Jefferson Clinton) in which impeachment proceedings against a president have been initiated.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Just as the framers of the Constitution considered the Congress to be the most vital branch of the new government and therefore dealt with that branch in the very first article of the Constitution, so too was the placement of the judicial branch in Article III of the Constitution a reflection of their view of the relative importance of that branch. The brevity and vagueness of the language in Article III are similarly a reflection of their relative lack of concern about the judicial branch as well as of their uncertainty about its function in the new federal union.
Article III, Section 1, stipulates that there would be one “supreme” court in the nation but is vague about the number and extent of the “inferior” courts. The provision that all federal judges should hold their offices during “good Behaviour” was intended to protect the independence of the judiciary and reinforce the separation of powers among the three branches of the new government.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Article III, Section 2, defines the jurisdiction and mode of procedure of the federal courts. The key phrase is “to all Cases, in Law and Equity, arising under this Constitution.” In other words, the jurisdiction of the federal courts extends to those areas in which the United States government itself has jurisdiction. That jurisdiction, vaguely defined in 1787, has steadily increased over the more than two centuries in which the Constitution has been in operation.
Although Article III, Section 2, makes no mention of a power of judicial review (the power of the Supreme Court or any other federal court to pass judgment on whether a federal or state law violates the terms of the Constitution), many, if not most, of the delegates to the Convention probably assumed that the federal courts would exercise at least some limited form of that power. In 1803, in the case of Marbury v. Madison, the Supreme Court, in an opinion written by its chief justice, John Marshall, enunciated a limited power of judicial review.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article III, Section 3, is the only instance in which the U.S. Constitution defines a specific crime, that of treason. Treason is defined either as levying war against the United States or as giving “Aid and Comfort” to the enemies of the United States. The “Aid and Comfort” clause expands the definition of treason beyond physical acts of violence—e.g., to the passing on of state secrets to another nation—but the Constitution also lays down specific legal procedures by which people accused of treason might be convicted of such an act. The Constitution further limits the punishment of treason to the person actually committing the act, not to family members or close associates.
In 1807, in the treason trial of Aaron Burr, for his role in an alleged plan to lead parts of the Louisiana territory in a secessionist movement from the United States, Chief Justice John Marshall laid down further limitations on the definition of treason, establishing the doctrine of “constructive treason,” meaning that the mere planning of an act that might be considered treasonous was not sufficient grounds for conviction; in order to be convicted of treason one actually had to commit, or at least be in the process of committing, the act. Moreover, the act of simply speaking, however stridently, in a manner that some might believe to be giving aid and comfort to the enemy was given further protection by the free speech guarantees of the First Amendment.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The first section of Article IV stipulates that the laws of one state must be given “full Faith and Credit” (i.e., be recognized as legitimate) in another state. This provision was an important step in creating a uniform standard of law and of rights in the nation. For example, if the state of Massachusetts recognizes the marriage of a gay couple as legally valid, then other states, even if they do not have laws permitting the marriage of a gay couple, must recognize that marriage as valid.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The first provision of Article IV, Section 2, is a cornerstone of a common standard for equal protection under the law for all American citizens. It gives to citizens of every state all the legal protections enjoyed by citizens of other states if they should be residing in or traveling through one of those other states. This means, for example, that New Jersey cannot give citizens of that state one set of rights while at the same time denying a citizen of New York living or working in New Jersey any of those same rights. Therefore New Jersey cannot impose higher taxes on New Yorkers working in New Jersey than it imposes on its own residents.
The other side of the “privileges and immunity” clause is that which requires states to respect the laws of other states aimed at punishing persons charged with “Treason, Felony, or other Crime” by extraditing (delivering up) such persons to the state having jurisdiction over the crime.
The final part of Article IV, Section 2, may well be the most reprehensible provision in the original U.S. Constitution. It requires that the governments and citizens of every state in the union deliver up all persons “held to Service or Labour in one State, under the Laws thereof, escaping into another.” Although nowhere mentioned, those persons “held to Service or Labour” were slaves, and by requiring that citizens and states where slavery was not permitted cooperate with citizens and governments in slave-owning states in the return of their slaves, it made all Americans actively complicit in protecting the institution of slavery. This provision was rendered null and void by the passage of the Thirteenth Amendment, which abolished slavery.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
In 1787 the framers of the Constitution were mindful that, in addition to the thirteen original states, America consisted of a vast territory between the borders of those states and the Mississippi River. Article IV, Section 3, grants to Congress the authority to admit new states into the union on an equal basis with existing states. However, individual states are not permitted either to divide themselves into separate states (for example, California, by the terms of the Constitution, is not permitted to divide itself into two states; e.g., Northern California and Southern California), nor is it possible for two or more states (for example, Rhode Island and Connecticut) to combine their territories into a single state without the consent both of the legislatures of the states involved and of Congress.
The second part of Article IV, Section 3, gives to Congress considerable leeway as to what it might do in territories that have not achieved the status of a state within the federal union. Under this provision, Congress was able to grant independence to the Philippines, which was once a territory of the United States, and to extend certain rights (for example, the right of U.S. citizenship, although not the right to vote in presidential elections) to territories like Puerto Rico. This congressional jurisdiction also extends to the District of Columbia, which, though its citizens enjoy most of the rights of citizens of the fifty American states, is not at present fully represented in Congress.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
If there is a single idea expressed in Section 4 of Article IV on which all the framers of the Constitution agreed, it was that America should have a republican form of government, both in the polities of the individual states and in the new federal structure that they were creating. However, there were probably as many variations in the meaning of the word “republican” as there were delegates, ranging from those who wanted a democratic government directly responsive to the people to those who wished for a more elitist government, responsible to—but somewhat removed from—the people at large. The two core elements of republicanism on which all delegates could agree were that the government should be, either directly or indirectly, “representative” in character and that its officeholders should not base their claims to public office on hereditary privilege.
The second item in this section of Article IV was a direct response to one of the events that precipitated the calling of a Constitutional Convention: an armed uprising of farmers in western Massachusetts, known as Shays’ Rebellion. The Constitution promises states protection against both internal uprisings and invasions from abroad but at the same time assures the states that the government will not interfere in their defense unless asked to do so by officials in the states themselves.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The Constitutional Convention of 1787 was called together to amend the Articles of Confederation, the existing frame of government that sought to create a union among the thirteen independent and sovereign states. By the terms of the Articles of Confederation, unanimous approval of all of the state legislatures was required to amend any major feature of that frame of government. That provision proved to be fatally flawed, for it soon became apparent that it was impossible to attain unanimity on any matter of consequence. The delegates to the Constitutional Convention, having already gone forward not merely with amendments to the Articles of Confederation but rather with a decision to scrap the Articles altogether and create a vastly strengthened central government, felt no compunctions about changing the formula for amendment, providing two different routes by which the new Constitution could be amended. Amendments can be proposed either by a two-thirds vote of both houses of Congress or when two-thirds of the legislatures of the states agree on calling a national convention for the purpose of proposing amendments. Amendments proposed by either method must, in order to become part of the Constitution, receive the approval of three-quarters of the state legislatures or be approved by specially called conventions in at least three-quarters of the states. Most of the amendments to the Constitution have been first proposed by Congress and then adopted by three-quarters of the state legislatures, although the Twenty-first Amendment, repealing prohibition, was adopted by conventions in three-quarters of the states.
The amendment process is an arduous one, and for that reason, relatively few amendments have been passed during the more than two hundred years since the Constitution was adopted, making it one of the most concise written constitutions in the world. Ten of the amendments—those that we consider to be part of the Bill of Rights—were proposed by the First Congress of the United States and quickly adopted by the necessary number of states within a few years after the new government commenced operation. During the whole of the nineteenth century, only five amendments were adopted, three of them coming in the immediate aftermath of the Civil War and dealing with the rights of newly freed slaves. Twelve amendments were passed in the twentieth century. Among the most important were those authorizing a federal income tax, giving women a constitutional right to vote, providing for direct election of United States Senators, and guaranteeing all American citizens eighteen years or older the right to vote.
Article V also mentions three specific instances in which the Constitution is not subject to amendment: the provision prohibiting legislation affecting the international slave trade until 1808, the prohibition against direct taxation unless apportioned according to population, and the provision guaranteeing each state equal representation in the United States Senate.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
At the time the Constitution was created, the Continental government, the individual governments of the states, and many private citizens had all accumulated substantial debt obligations. The first item in Article VI was designed to ensure the sanctity of those debt obligations.
Article VI contains the so-called federal supremacy clause, the assertion that in cases of conflict between a state law and a federal law, the federal law takes precedence. Over the course of the nation’s history, there have been hundreds of cases where the overlapping jurisdictions of the states and the federal government (for example, in matters relating to the regulation of commerce, industry, or environmental policy) have led to lawsuits. In general, although not uniformly, the federal supremacy clause has worked to incline courts to side with the federal government.
The final item in Article VI requires officials in both the state and federal governments to uphold the Constitution of the United States. This item is also the only place in the body of the Constitution where religion is explicitly mentioned. It is notable that this sole mention of religion reinforces the principle of separation of church and state, decreeing that there shall be no religious test for holding public office.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Having exceeded their instructions from the Continental Congress by scrapping the Articles of Confederation and drafting a wholly new frame of government, the framers of the Constitution also ignored the provision in the Articles of Confederation requiring unanimous approval of the state legislatures in order to amend that frame of government. The decision to allow the Constitution to go into operation after the approval of only nine of the thirteen states made it much easier to secure ratification of the document. Moreover, the device of submitting the document for consideration by specially called state conventions rather than by state legislatures avoided some of the natural tendencies of state legislators to protect their powers and interests. Most important though, the use of conventions, elected directly by the people of the states and called together solely for the purpose of considering the new plan of union, signified that the proposed new government was intended to be a government founded on “We the People of the United States,” rather than merely on “we the states.”
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have here-unto subscribed our Names.
Attest William Jackson, Secretary
Go. Washington, President and deputy from Virginia
There were forty-one delegates present in the Assembly Room of the Pennsylvania State House on September 17, 1787. Thirty-eight of the delegates in the room signed the completed Constitution, with George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts refusing to add their assent. A forty-second delegate, John Dickinson of Delaware, had been suffering from debilitating headaches and went home a few days earlier, but he asked his Delaware colleague George Read to sign the document for him, bringing the total number of signatories to thirty-nine.
Gunning Bedford Jr.
Dan of St. Thos. Jenifer
James Madison Jr.
Richd. Dobbs Spaight
Charles Cotesworth Pinckney
Wm. Saml. Johnson
AMENDMENTS TO THE CONSTITUTION
The framers of the original Constitution assumed that it was not necessary to include a “bill of rights” in their proposed plan for the union. The ostensible reason for the omission was that most of the state constitutions already possessed bills of rights, and therefore the inclusion of a bill of rights in the federal Constitution would be redundant. Another, more compelling reason may have been that when the idea of a bill of rights was raised in early September by Virginia delegate George Mason, the members of the Convention, tired and desperate to return home, feared that a debate on the subject might extend their stay in Philadelphia by many weeks, if not months.
The omission of a bill of rights proved to be both a tactical and strategic error. When the Constitution was submitted to the states for ratification, many of the critics of the Constitution pointed to the absence of a bill of rights as a fatal flaw in the document. As a consequence, the supporters of the Constitution, who called themselves Federalists, came forward with a promise to make the drafting of a bill of rights the first item of business when the new Congress convened after the ratification of the Constitution. On September 25, 1789, Congress presented to the states twelve amendments, ten of which received the necessary approval of three-quarters of the states on December 15, 1791. It is those ten amendments that are commonly referred to as the Bill of Rights. One of the two amendments not approved, dealing with congressional representation, has not proved of any significance in the operation of the Constitution. The other, dealing with congressional salaries, was eventually incorporated into the Twenty-seventh Amendment.
AMENDMENT I (1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment is remarkably brief considering the breadth of protection that it has provided. The section of the amendment prohibiting Congress from making any law “respecting an establishment of religion” is a cornerstone of the American notion of separation of church and state, and the guarantee of “free exercise” of religion has proven a powerful means by which people have been allowed to express their religious beliefs without fear of government reprisal. Similarly, the guarantees of freedom of speech, of the press, and of the “right of the people peaceably to assemble,” as well as the right to petition their government (and by implication to protest the actions of that government) are at the heart of the American constitutional definition of liberty.
Those freedoms have, however, been subject to some restrictions. Until the early twentieth century, the First Amendment applied only to the actions of the federal government; state governments were free to pass their own laws contravening some of the provisions of the First Amendment. For example, the state of Massachusetts continued to accord the Congregational Church special privileges and did not move to explicitly separate church and state until 1833. Moreover, throughout the nineteenth century, and sometimes into the twentieth, state governments have enacted laws placing restrictions on speech, freedom of the press, and on certain forms of public assembly. It was only in the twentieth century, through application of the “incorporation doctrine,” that the Fourteenth Amendment’s guarantee that states must not “abridge the privileges or immunities of citizens of the United States,” nor deny citizens “equal protection of the laws,” began to obligate state governments to guarantee their residents the same freedoms as those articulated in the First Amendment.
The precise extent of the guarantees of the First Amendment continues to be a subject of contention. Oliver Wendell Holmes, in a Supreme Court opinion in Schenck v. United States (1919), made the commonsense argument that the guarantees of free speech do not extend to the right to shout “fire in a theatre and causing a panic” when no such danger actually exists. Governments have often asserted the right to regulate public assemblies and protests in order to ensure public safety.
Similarly, the “wall of separation” between church and state is not impenetrable. The United States Congress continues to employ a chaplain, and the word of God is frequently invoked at many official government gatherings. The federal courts are frequently presented with cases in which litigants claim that public displays of religious belief (e.g., the displaying of a Nativity scene in a public square at Christmastime) violate the principle of separation of church and state. Thus far there is no clear resolution of where the boundary between a religious and a civic display lies.
AMENDMENT II (1791)
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Second Amendment contains two parts: a preface, which states that a “well regulated Militia” (meaning a citizens’ army authorized by the state) is a necessary and desirable thing, and the operative section of the amendment, which asserts the right of the people to keep and bear arms. Constitutional scholars have argued vociferously about whether the comma separating those two parts signifies that the right to keep and bear arms without state interference is confined to the use of such arms in conjunction with one’s duties as part of a government-sanctioned militia or army, or whether there is an individual right to keep and bear arms under any circumstances. The most recent ruling of the Supreme Court (District of Columbia v. Heller, 2008) suggests that the Second Amendment does guarantee an individual, as well as a collective, right to bear arms, but the Court has also conceded that there are some instances (e.g., regulating the sale of assault weapons) in which local, state, and federal governments do have the right to regulate the sale and use of arms. Like many aspects of the Constitution, the meaning of the Second Amendment is subject to varying interpretations.
AMENDMENT III (1791)
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
This amendment, which has lost much of its immediacy over the course of time, was considered of pressing importance by the members of the First Congress, who drafted it because attempts to force Americans to provide lodgings for British troops (whom they considered to be hostile occupiers of their land) during the years leading to the Revolution were an important cause of that revolution. The amendment does, “in a manner to be prescribed by law,” allow the government to use private homes to provide lodging for its own soldiers in time of war. More generally, the Third Amendment has—along with the Fourth, Fifth, and Ninth Amendments—been interpreted to imply another right not explicitly mentioned in the Constitution: the right of privacy.
AMENDMENT IV (1791)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The guarantees against “unreasonable searches and seizures” of persons, houses, and property, and the insistence that any such searches be based on “probable cause” and accompanied by search warrants, were another product of Americans’ experience during the Revolution, when British customs officers and soldiers carried out blanket searches and seizures without proper warrants. In recent years, through use of the incorporation doctrine, the Fourth Amendment has been interpreted to mean that police officers at all levels of government must demonstrate probable cause before stopping and searching anyone whom they might suspect of a crime. The precise definition of “probable cause” has been much debated, and in many cases police officers are forced to make difficult judgments about whether they should detain an individual and search his or her possessions.
In an age in which advances in technology have offered the government new ways to gather evidence of a possible crime—e.g., wiretapping and other means of sophisticated electronic surveillance—the federal courts have been presented with new dilemmas about how to interpret the provisions of the Fourth Amendment. Enactment of the Patriot Act in the aftermath of the 9/11 attacks in 2001 has significantly expanded the government’s ability to carry out such surveillance.
AMENDMENT V (1791)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Reflecting long-standing traditions of English common law, as well as the American perception that the British had violated those traditions in the years leading up to the American Revolution, the Fifth Amendment requires that people charged with capital crimes (i.e., a serious crime that falls under the jurisdiction of the federal courts) be first presented before a grand jury—a group of ordinary citizens drawn from the general population. Those serving in the military are not afforded that protection; they are to be tried in military courts, which set their own rules of judicial procedure.
Although indictment by a grand jury is standard practice in important civil and criminal proceedings at the federal level, many states have not used this mechanism for securing indictments of accused criminals, believing that grand juries are unnecessarily costly and time-consuming. Although many of the provisions of the Bill of Rights have been applied to the actions of state governments through the incorporation doctrine of the Fourteenth Amendment, the Supreme Court has not asserted that states are bound to conform to this particular provision of the Fifth Amendment.
The provision of the Fifth Amendment preventing double jeopardy stipulates that individuals cannot be tried for the same crime more than once. If a defendant is acquitted of a crime, the government does not have the right to prosecute that individual again, and if a defendant is convicted, the government may not impose multiple punishments for the same crime.
The phrase “taking the Fifth” refers to the provision of the Fifth Amendment ensuring the right against self-incrimination: the right to refuse to answer questions in court that might lead either to indictment or punishment for an alleged crime. Finally, the Fifth Amendment contains a very open-ended guarantee, echoing the words of the preamble of the Declaration of Independence, that no person can be deprived of the fundamental rights of life, liberty, or property without due process of law.
The concern for protection of property is further emphasized in the prohibition of the taking of private property for public use “without just compensation.” In fact, federal and state governments have often taken control of private property (for example, for the purposes of building a highway or some other necessary public work) by using the doctrine of “eminent domain.” In those cases, the owners are compensated for the value of their property, although in many cases not without significant litigation.
AMENDMENT VI (1791)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Sixth Amendment is appropriately considered the center-piece of the American criminal justice system. In addition to guaranteeing all criminal defendants a trial by jury, it provides an outline of the basic procedures to be followed in such trials. The trial shall be a speedy one, which is to say that accused criminals cannot be imprisoned for lengthy periods of time before receiving a trial. The trial must be public. The framers of the Sixth Amendment specifically rejected the format of English Star Chamber proceedings; that is, proceedings held in private, away from scrutiny by the public. The juries in criminal trials should, in normal instances, be drawn from ordinary citizens who are resident in the state and region where the crime was committed (although in unusual cases, if the crime is of such a sensational nature that it might prove impossible to impanel an impartial jury, the trial might be held in a jurisdiction other than the one in which the crime was committed).
The Sixth Amendment also guarantees to the accused the right to be confronted with the nature of the charges brought against him; the right to confront, either directly or through an attorney, the witnesses against him; and the right to present witnesses in his defense. Finally, criminal defendants are entitled to “Assistance of Counsel”; that is, a competent attorney to assist them in their defense. These basic guarantees have been elaborated in countless court cases in the more than two hundred years since the amendment was ratified and, through the incorporation doctrine, have become the standard procedure for criminal trials in states and other localities as well as in federal courts.
AMENDMENT VII (1791)
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The Seventh Amendment provides guarantees similar to those of the Sixth with respect to civil suits, although it does limit the right of trial by jury to suits in which there are substantial sums of money involved. The terms and extent of the application of this amendment have been worked out through myriad court cases involving plain-tiffs (the person bringing the suit) and defendants (the person being sued). For example, while the standard for conviction in a criminal trial is a jury’s unanimous verdict that the accused criminal is guilty “beyond a reasonable doubt,” a jury in a civil case may award damages to a plaintiff if a majority of jurors find a “preponderance of evidence” on his or her behalf. The incorporation doctrine has not been applied to this amendment and, for the present, civil suits tried in state and local courts may follow different procedures from those outlined in the Seventh Amendment.
AMENDMENT VIII (1791)
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The prohibition against excessive bail (a sum of money put up to gain release from prison while awaiting a trial and returned if and when the accused appears for trial) is a reflection of the belief that an accused criminal is “presumed innocent until found guilty.” The definition of “excessive bail” is a subjective one, but the intent of the amendment is to demand a sum of money sufficient to guarantee that the accused does show up for the trial, but not so high as to make it impossible for the accused to gain release.
The prohibition of “excessive fines” is intended to assure that “the punishment fits the crime.” It is closely connected in its rationale with the final section of the amendment, the guarantee against “cruel and unusual punishments.” Again drawing on English common law traditions, Americans were seeking to move away from ancient practices of gruesome punishments for relatively minor offenses. The definition of “cruel and unusual punishments” has often proven a point of contention. Currently, opponents of the death penalty argue that that punishment qualifies as cruel and unusual. Except for a period during the 1970s, the Supreme Court has not agreed, and both state governments and the federal government are free to permit executions if they desire (at present, thirty-five of the fifty states have laws permitting death penalties in some cases—usually, but not exclusively, murder cases).
AMENDMENT IX (1791)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One of the reasons given for the framers’ omission of a Bill of Rights from the original Constitution was their fear that if they unintentionally failed to mention some fundamental rights in such a listing, those rights might go unprotected. That concern caused many of the delegates to fear that any debate over a bill of rights might drag on for weeks or months, as they sought to cover every conceivable right. The Ninth Amendment makes it clear that the list of rights mentioned in the Constitution and its amendments do not constitute all the possible rights to which the people are entitled. Over the years, the courts have defined “unenumerated” rights, such as the right to vote; the right to move about freely; and, perhaps most controversially, the right to privacy, including the right of a woman to have some control over her health and reproductive decisions.
AMENDMENT X (1791)
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
When the Constitution was presented for ratification to the people of the thirteen independent states, many were surprised—and alarmed—by the extent to which powers previously exercised by the states (for example, taxation and control over commerce) were now to be exercised by the federal government. In the words of Virginia statesman Patrick Henry, the new government was not really “federal” in character but rather a “consolidated government,” one which would render the identity and powers of the states meaningless. The Tenth Amendment reserves all powers not specifically given to the federal government by the Constitution (most of which are contained in Article I, Section 8, in the enumeration of the powers of Congress) to the state governments; it was intended to allay fears about the federal government possessing excessive power.
In one sense, the Tenth Amendment is one of the most important features of the Constitution, for it articulates the principle that the federal government is one of specifically delegated powers, and that it should only exercise those powers explicitly enumerated in the Constitution. But in fact, the Tenth Amendment, because of its generality, has not proven to be much of an impediment to the steady expansion of federal power since the time the Constitution was adopted, although opponents of “big government” have in recent years invoked the Tenth Amendment in their arguments with greater frequency.
AMENDMENT XI (1795)
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In 1793 the Supreme Court ruled that it had a right to hear a suit brought by two citizens of South Carolina against the state of Georgia. Many members of Congress and of the state legislatures vigorously criticized the court’s ruling, claiming that the federal courts had no business interfering with the “sovereign immunity” of state courts. The Eleventh Amendment reserved to the individual states the right to hear cases brought against them either by citizens of another state or another country. As is the case with many of the amendments to the Constitution, the Supreme Court has ruled that there are exceptions to this general rule. For example, since 1824 the Supreme Court has held that state government officials are not immune from being sued in a federal court if they act in violation of a right guaranteed by the U.S. Constitution.
AMENDMENT XII (1804)
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
When the framers of the Constitution devised the complicated process by which presidential electors would select the nation’s president and vice president, they assumed that those electors would run for their offices as individuals, and that the voters would select them on the basis of their individual merits. In that original notion of the way the electoral system would work, it was expected that the electors would each cast two ballots, with no distinction between a presidential and a vice-presidential ballot, and that the person receiving the greatest number of votes would be elected president and the person receiving the next largest number of votes vice president.
The framers of the Constitution did not anticipate the emergence of an organized political party system in which two extra-constitutional political parties, the Federalists and Jeffersonian Republicans, would organize electors (or, in some states, slates of electors) pledged in advance to vote for presidential and vice-presidential candidates as part of a party “ticket.” In the election of 1800, the party ticket of Thomas Jefferson (the person whom the Republicans intended as their presidential candidate) and Aaron Burr (the person whom the Republicans intended as their vice-presidential candidate) received a majority of electoral votes. In fact, though, party discipline was so great that the electors cast their votes on their two ballots in such a way that Jefferson and Burr had an equal number of votes, with no constitutional mechanism for deciding which of the candidates was intended to be the presidential candidate and which the vice-presidential candidate. As a consequence, the election was thrown into the House of Representatives, where, after a great deal of intrigue, Jefferson was selected as president and Burr the vice president.
The adoption of the Twelfth Amendment was a necessary adjustment to the way in which the American party system had transformed America’s presidential elections. Although the provisions of the Twelfth Amendment are as mind-numbingly complicated as the original provisions of Article II, Section 1, the essential feature of the amendment was that henceforth electors would vote separately for the president and vice president. And while the original language in Article II, Section 1, stipulated that the House of Representatives would choose among the five leading candidates should no one receive a majority of electoral votes, the new provision in the Twelfth Amendment narrowed the choice to the top three candidates.
AMENDMENT XIII (1865)
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
The Thirteenth Amendment was passed by Congress in 1861, as the Southern states were seceding from the union, but not ratified until 1865, after the South had accepted defeat in the Civil War. It marked the first important step in bringing American constitutional practice into harmony with American libertarian values. Although there had been previous, private attempts to eliminate slavery, usually accompanied by promises of compensation for the value of the “property” lost as a consequence of the emancipation of slaves, the Thirteenth Amendment unequivocally abolished slavery, providing for the immediate emancipation of all slaves in the United States, without compensation to their owners. It also gave to Congress the power to enforce the emancipation of slaves, a power that it exercised in the Civil Rights Act of 1866.
AMENDMENT XIV (1868)
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Perhaps the most significant and far-reaching amendment to the Constitution, the Fourteenth Amendment is viewed by many scholars and jurists as the provision of the Constitution that has brought the principles enunciated in the preamble of the Declaration of Independence into the realm of constitutional law. The words of the preamble of the Declaration—“that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”—are purely exhortatory; they were important rhetorically in defining American purposes as they declared the colonies’ independence from Great Britain, but they do not have the force of law. At the heart of the Fourteenth Amendment is the stipulation that all Americans born or naturalized in the United States, including the newly freed slaves, are citizens of the United States, and that no state may make or enforce any law that shall infringe on the rights of American citizens, including those unalienable rights of “life, liberty or property” without due process of law. The Fourteenth Amendment’s promise that all persons are guaranteed “equal protection of the laws” would prove an important mechanism by which the Supreme Court, in a series of rulings in the twentieth century, would articulate a uniform standard by which many of the rights spelled out in the Bill of Rights would be guaranteed to all citizens in each of the states.
Section 2 of the Fourteenth Amendment had a more specific intent. It effectively repealed the three-fifths compromise by which slaves were counted as three-fifths of a person in the apportionment of representation and taxation, and stipulates that any state that attempts to deny the right to vote to any male United States citizen over the age of twenty-one will have its representation in Congress and the electoral college reduced proportionally to the number of citizens so disenfranchised. This part of Section 2 was clearly intended by the members of Congress who drafted it as a means of protecting the newly freed slaves’ right to vote. It is notable that the only exception to this protection of the right to vote is in the case of individuals who have participated “in rebellion, or other crime.” This exception not only applied to convicted criminals (who are still denied the right to vote in most states) but also to large numbers of Americans who had participated in the Southern “rebellion” during the Civil War.
Section 3 of the amendment explicitly excluded former Southern rebels from serving in any federal or state office until Congress, by a two-thirds vote, removed that prohibition. This constitutional device effectively turned over control of the “reconstruction” of the former secessionist states to individuals who had remained loyal to the union during the Civil War.
Section 4 of the amendment absolved the federal government of any responsibility for the debts incurred by the Southern states or by the Confederacy during the Civil War.
Finally, Section 5 granted to Congress broad authority to proceed with legislation that would enforce the provisions of the Fourteenth Amendment. In the immediate aftermath of the adoption of the amendment, Congress passed seven statutes aimed at guaranteeing civil rights to freed slaves as well as imposing conditions for readmission to the union on the states that had seceded from it. Over the course of the next two decades, many of the provisions of those statutes would be ruled unconstitutional by the Supreme Court, which adopted an increasingly narrow interpretation of the rights granted by the Fourteenth Amendment.
AMENDMENT XV (1870)
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have the power to enforce this article by appropriate legislation.
While the Fourteenth Amendment punished states that deprived newly freed slaves of the right to vote by reducing their representation in the House of Representatives, the Fifteenth Amendment categorically prohibits the denial of the right to vote on account of race, color, or previous condition of servitude. Notably, the amendment does not mention gender, which, to the dismay of advocates of women’s suffrage, meant that although newly freed male slaves were guaranteed a right to vote, women of all races were denied that right. In spite of the adoption of the Fifteenth Amendment, the states of the former Confederacy managed to find ways to continue to drastically curtail the right of African Americans to vote, through the use of poll taxes, literacy tests, and other discriminatory devices. It was not until the passage of the Voting Rights Act of 1965 that African Americans have had equal access to the polling place.
AMENDMENT XVI (1913)
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Although the original version of the Constitution gave Congress the power to levy direct taxes, such taxation was only to be levied on the states themselves, in direct proportion to their population. Although Congress during the Civil War was able to levy a direct tax on individuals as part of a wartime measure, the Supreme Court, in an 1895 ruling (Pollock v. Farmers Loan and Trust Co.), ruled that taxing the property of individuals was unconstitutional. The Sixteenth Amendment effectively reversed that ruling. It is silent on what the rate of taxation might be (for example, it does not speak to whether all individuals should be taxed at an equal rate or whether the rate of taxation should be progressively higher on higher incomes). Congress, which enacted a federal income tax law in October 1913, just seven months after the passage of the Sixteenth Amendment, opted for a modestly progressive tax rate. The rate of taxation imposed on the top taxation bracket has varied from 7 percent in 1913 to a high of 92 percent in 1952-53. The current rate of taxation in the top bracket is 38.6 percent, nearer the low end of that continuum.
AMENDMENT XVII (1913)
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
When the Constitution was first drafted, the framers believed that the Senate, the upper house, should be the repository of superior wisdom and virtue and, toward that end, stipulated that senators should be elected by the legislatures of each of the states, whose members would presumably be able to make a wiser choice than the people at large. As one of a series of reforms during the Progressive Era, Congress proposed, and the states endorsed, an amendment calling for direct, popular election of senators.
AMENDMENT XVIII (1919)
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Most of the amendments to the Constitution seek to grant specific rights to the people by placing restraints on the actions of the government. The Eighteenth Amendment is the only amendment that has sought to restrict the rights of the people—in this case the right to manufacture, sell, or transport “intoxicating liquors” within the United States. Interestingly, it does not prevent the consumption of liquor. Though liquor consumption declined markedly during the years when the amendment was in force, it certainly did not cease. Indeed, as people turned to illegal sources for their alcoholic beverages, the operation of the Eighteenth Amendment served to encourage otherwise law-abiding people to break the law and bolster the activities of organized crime.
AMENDMENT XIX (1920)
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
The Nineteenth Amendment was the culmination of more than three-quarters of a century of dedicated work by advocates of female suffrage. Although some states had passed legislation allowing women the right to vote prior to 1920, that right was not extended to all women until the adoption of the Nineteenth Amendment. Unlike the operation of the Fifteenth Amendment, which was thwarted by states that found ways to continue to deny the vote to African Americans, the amendment granting women the right to vote encountered little resistance in the aftermath of its passage.
AMENDMENT XX (1933)
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
Many of the most consequential amendments to the Constitution (e.g., the first ten amendments) are remarkably brief, while some of the more arcane amendments seem to require more elaborate verbiage. This is certainly the case with the Twentieth Amendment.
Traditionally, new presidents took office in March, creating a significant time gap between their election in November and their inauguration. In some cases, this time lag had serious consequences. For example, during the period between Abraham Lincoln’s election and inauguration, his Democratic predecessor, James Buchanan, found himself to be a lame-duck president at a time when Southern states were seceding from the union. In recognition of the improvements in communication and transportation since the Constitution was originally adopted, the Twentieth Amendment reduced the amount of time elapsing between the president’s election and his inauguration. It also moved the meeting time of a newly elected Congress from March to January 3, preventing the meeting of a lame-duck session of Congress whose actions might not be consonant with the will of the electorate as expressed in the November elections.
The remaining parts of the Twentieth Amendment seek to clarify the role of Congress in determining a plan of succession in case of the death or removal of both the president and vice president. For much of the nineteenth century, Congress designated the president pro tempore of the Senate as next in line of succession; from the 1880s until 1947, Congress stipulated that the secretary of state would be next in line. The decision to change the law and provide for the Speaker of the House to assume office in case of the president and vice president’s absence was shaped by the desire to have a popularly elected official—in this case the leader of the legislative branch most directly responsible to the people—assume the presidency.
AMENDMENT XXI (1933)
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Just as the Eighteenth Amendment is the only constitutional amendment to restrict the rights of the American people, the Twenty-first Amendment, which ended Prohibition, is the only amendment in the Constitution to repeal a previous amendment. The Twenty-first Amendment does not specifically allow for the manufacture, transport, or sale of liquors but, rather, returns to the states the right to regulate alcohol distribution and consumption. This amendment is unusual in that it specifies that state conventions, rather than state legislatures, should be the bodies responsible for ratifying the amendment.
AMENDMENT XXII (1951)
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
Although the people of the United States had expressed their will by electing Franklin D. Roosevelt president in four successive elections, in the aftermath of Roosevelt’s terms in office many Americans began to have second thoughts about the wisdom of allowing a president to exceed what had previously been the “twoterm tradition” set by George Washington. By the terms of the Twenty-second Amendment, Presidents are limited to two terms, or if they have served at least two years of a previous president’s term, to one term. Americans continue to disagree on whether “term limits”—either in the executive or legislative branches—are consistent with democratic governance, and there have been occasional attempts to repeal the Twenty-second Amendment, although none has come close to success thus far.
AMENDMENT XXIII (1961)
The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
The Congress shall have power to enforce this article by appropriate legislation.
The District of Columbia, seat of the nation’s government, has always occupied a peculiar place within our federal system. The Constitution empowered Congress to designate a territory “not exceeding ten Miles square” as the nation’s capital but specifically intended that the “federal district” not be within the boundaries or jurisdiction of any particular state. Therefore, while the federal government exercises much of its enormous power within the District of Columbia, that territory has been denied voting representatives in Congress, and until the passage of the Twenty-third Amendment, its residents were denied the right to vote in presidential elections. By the terms of the Twenty-third Amendment the residents of the District of Columbia are entitled to vote for presidential electors, with the number of electors representing the district being equal to the number of senators and representatives that the district would have if it were a state. On the basis of its present population, that means three electors.
AMENDMENT XXIV (1964)
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
The Congress shall have power to enforce this article by appropriate legislation.
Although the Fourteenth and Fifteenth Amendments were intended to ensure African Americans the right to vote, the imposition of a poll tax—a fee that citizens had to pay to the state or locality if they wished to vote—was a common device by which states, particularly those in the South, prevented low-income voters, who were often predominantly African American, from voting. The Twenty-fourth Amendment explicitly prohibits the imposition of taxes as a condition for voting. The amendment does not say anything about the use of the poll tax in state elections, but soon after the passage of the Twenty-fourth Amendment, the Supreme Court, citing the “equal protection” clause of the Fourteenth Amendment, ruled that it was unconstitutional for states to require the payment of poll taxes as a condition for voting in state elections.
AMENDMENT XXV (1967)
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Although the Twentieth Amendment deals in part with the issue of presidential succession, the Twenty-fifth Amendment provides a more detailed description of how Congress should proceed in the event of the death or removal of a president or vice president, or in the case of the temporary disability of the president (for example, if the president falls seriously ill or undergoes an operation and is not able for a period of time to exercise the duties of his office). Eight American presidents have died in office, and one has resigned. And there have been several occasions when a president has been temporarily disabled (for example, when Ronald Reagan was wounded by a would-be assassin’s bullet in 1985, he transferred power to his vice president, George H. W. Bush, while he was hospitalized).
The amendment also deals with the delicate question of how to deal with the disability of a president when the president himself is not willing to declare such a disability. For example, in 1918 President Woodrow Wilson suffered a stroke and many believed that his disability prevented him from carrying out the duties of his office effectively, but there were no means by which to resolve the issue. The Twenty-sixth Amendment stipulates that Congress may, if two-thirds of the members of both houses agree, provide written declaration that the president is disabled and then transfer power to the vice president.
AMENDMENT XXVI (1971)
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
The Congress shall have power to enforce this article by appropriate legislation.
It is no accident that this amendment giving citizens eighteen years or older the right to vote was passed at the height of the Vietnam War. Some of the reasoning behind the amendment was that if young men and women are old enough to serve and risk their lives in the military, then they should also be given the right to vote.
AMENDMENT XXVII (1992)
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The Twenty-seventh Amendment was originally part of the package of twelve amendments submitted to the states by the First Congress in 1789, but it was not ratified at that time. Agitation to reconsider the amendment resurfaced in the 1980s, as the public became increasingly unhappy over a series of pay raises that members of Congress awarded themselves. The provisions of this amendment make it impossible for members of Congress to put into effect increases in their salaries before the session in which they are serving has ended. By this mechanism, members of Congress seeking reelection have to justify their proposed increases in salary to voters during their reelection campaigns.
SELECTIONS FROM THEFEDERALIST PAPERS
THE EIGHTY-FIVE ESSAYS appearing in New York City newspapers under the pseudonym Publius between October 1787 and May 1788 and later published as a single collection under the title The Federalist Papers have achieved justifiable fame as an important statement of American constitutional philosophy. Alexander Hamilton took the lead, recruiting James Madison and John Jay to join him in the effort. In all, Hamilton wrote fifty-one of the essays, Madison twenty-nine, and Jay five. The essays were written independently, with little collaboration among the three authors. Indeed, they were written under such constraints that there was seldom time for review or revision.
Looking at The Federalist Papers as a whole, one can see that Madison tended to write his essays on general issues of government and politics—on republicanism and representation in particular—while Hamilton focused on specific issues, such as taxation or the construction of the executive and judiciary. It is perhaps for that reason that Madison’s essays, though constituting only about a third of the total, are the ones most often quoted and reprinted.
The Federalist Papers have grown more influential over time and have come to be considered an important means of understanding the intent of the framers of the Constitution. In the period between 1790 and 1800, when leaders of the new republic were facing the challenge of creating a government that conformed to the precepts of their new Constitution, The Federalist (the original published collection containing seventy-seven of the essays) was cited by the Supreme Court only once. In the whole of the nineteenth century, the essays were cited 58 times. In the first half of the twentieth century, they were cited 38 times, but in the last half they were cited no fewer than 194 times.
However much The Federalist Papers may on some occasions rise to the level of high-minded political theory, readers should also be aware that they were initially intended as political propaganda. Madison and Hamilton, whatever their intellectual gifts, were also practical politicians with a specific goal: to secure ratification of the Constitution. In that sense, The Federalist Papers, like the Constitution they were defending, need to be understood not merely as abstract constitutional treatises but also as a product of the give-and-take of the turbulent era of eighteenth-century American politics.
This volume reprints the three Federalist essays that many scholars consider to be the most important of the eighty-five. “Federalist No. 10,” which deals with the benefits of an “extended republic” in controlling the effects of “faction,” and “Federalist No. 51,” which lays out the doctrine of “separation of powers,” were written by Madison. “Federalist No. 78,” written by Hamilton, is not only a defense of an independent judiciary but also lays out the constitutional argument for what would later be called “judicial review.” The essays are presented in slightly abridged form.
FEDERALIST NO. 10: JAMES MADISON, NOVEMBER 22, 1787
One of the most famous pieces of writing in all American history, “Federalist No. 10” takes a distinctly modern approach to the existence of “faction” and “interests” in American politics. Whereas most eighteenth-century commentators believed that the key to good government was to elect virtuous political leaders capable of transcending their own selfish interests, Madison accepted the existence of conflicting interests as an inherent part of any pluralist society. The best way to control the effects of faction, Madison argued, was to extend the sphere of government over a sufficiently large territory so that no one faction could obtain undue influence and subvert the public good.
Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have in truth been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American Constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side as was wished and expected. Complaints are every where heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice and the rights of the minor party; but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true. . . .
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it is worse than the disease. Liberty is to faction, what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts. But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of Government. . . .
It is in vain to say, that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote: It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government on the other hand enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. . . .
By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time, must be prevented; or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. . . .
From this view of the subject, it may be concluded that a pure Democracy, by which I mean, a Society, consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
A Republic, by which I mean a Government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure Democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the Union.
The two great points of difference between a Democracy and a Republic are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The effect of the first difference is, on the one hand to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive Republics are more favorable to the election of proper guardians of the public weal: and it is clearly decided in favor of the latter by two obvious considerations.
In the first place, it is to be remarked that however small the Republic may be, the Representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence the number of Representatives in the two cases, not being in proportion to that of the Constituents, and being proportionally greater in the small Republic, it follows, that if the proportion of fit characters, be not less, in the large than in the small Republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each Representative will be chosen by a greater number of citizens in the large than in the small Republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre on men who possess the most attractive merit and the most diffusive and established characters.
It must be confessed, that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The Federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular, to the state legislatures.
The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of Republican, than of Democratic Government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. . . .
Hence it clearly appears, that the same advantage, which a Republic has over a Democracy, in controlling the effects of faction, is enjoyed by a large over a small Republic—is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of Representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied, that the Representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the encreased variety of parties comprised within the Union, encrease this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States; a religious sect, may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it, must secure the national Councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government. And according to the degree of pleasure and pride we feel in being Republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
FEDERALIST NO. 51: JAMES MADISON, FEBRUARY 6, 1788
Madison hoped that the new federal government would be strong and energetic, but at the same time he wished to prevent any one branch of the government from becoming too powerful. “If angels were to govern men,” Madison reasoned, then “neither external nor internal controuls on government would be necessary.” But since the tendency of all men, and of all branches of government, is to attempt to increase their power, it was necessary to devise structures within the federal government to prevent excessive concentrations of power. “Ambition must be made to counteract ambition,” Madison asserted, and the way to do this was to create a system of government in which each branch of that government operated in its appropriate sphere, serving at the same time as a check on the other branches.
To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.
But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? . . .
There are moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.
Second. It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the Union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican forms, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. . . . In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; and there being thus less danger to a minor from the will of a major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.
FEDERALIST NO. 78: ALEXANDER HAMILTON, MAY 28, 1788
“Federalist No. 78” is Alexander Hamilton’s most significant contribution to The Federalist Papers. The principle topic of the essay is the importance of protecting the “weakest of the three departments” of government, the judiciary, from encroachments by the executive and, in particular, the legislative branches. Hamilton’s solution to this problem was to create a judicial branch that could operate as independently of influence from the other two branches of government as possible. The best way to do this, he argues, is to appoint federal judges for a term of “good behaviour”—in effect, for life.
In the course of his argument supporting lifetime terms for federal judges, Hamilton states explicitly what many of the Founding Fathers had long believed but had not written into the Constitution: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as the fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” This assertion of the right of “judicial review” would not be established as a constitutional precedent until the Supreme Court rendered its decision in Marbury v. Madison in 1803, but it was an important portent of constitutional developments to come.
We proceed now to an examination of the judiciary department of the proposed government.
In unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged; as the propriety of the institution in the abstract is not disputed: The only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points therefore our observations shall be confined.
The manner of constituting it seems to embrace these several objects—1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. . . .
According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behaviour, which is conformable to the most approved of the state constitutions; and among the rest, to that of this state. . . . The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: . . . And it proves, in the last place, that . . . from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security. . . .
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .
If then the courts of justice are to be considered the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute to much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. . . .
That inflexible and uniform adherence to the rights of the Constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
There is yet a further and a weighty reason for the permanency of the judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.
Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behaviour as the tenure of their judicial offices in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.