United States Constitution

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United States Constitution
Constitution of the United States, page 1.jpg
Page one of the original copy of the Constitution
Created September 17, 1787
Ratified June 21, 1788
Location National Archives,
Washington, D.C.
Author(s) Philadelphia Convention
Signatories 39 of the 55 delegates
Purpose To replace the Articles of Confederation (1777)
United States of America
Great Seal of the United States
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United States Constitution

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Preamble

Amendments to the Constitution

Ratified Amendments
The first ten Amendments are collectively known as the Bill of Rights

Unratified Amendments

Full text of the Constitution
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The Constitution of the United States is the supreme law of the United States of America.[1] The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles entrench the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress; the executive, consisting of the President; and the judicial, consisting of the Supreme Court and other federal courts. Articles Four, Five and Six entrench concepts of federalism, describing the rights and responsibilities of state governments and of the states in relationship to the federal government. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it.

Since the Constitution was put into effect in 1789, it has been amended twenty-seven times.[2] Amendments to the Constitution, unlike ones made to many constitutions world-wide, are appended to the end of the document. Structurally, the Constitution's original text and all prior amendments remain untouched. The precedent for this practice was set in 1789, when Congress considered and proposed the first several Constitutional amendments, known collectively as the Bill of Rights. At seven articles and twenty-seven amendments, it is the shortest written constitution in force.[3]

The Constitution is interpreted, supplemented, and implemented by a large body of constitutional law. The Constitution of the United States was the first constitution of its kind, and has influenced the constitutions of other nations.

History

First government

The government of the First and Second Continental Congress, the period from September 1774 to March 1, 1781 is referred to as the Revolutionary Congress. Prior to the Articles of Confederation, and the Articles Congress, the Supreme Court in Ware v. Hylton and again in Penhallow v. Doane's Administrators, perceived Congress as exercising powers derived from the people, expressly conferred through the medium of state conventions or legislatures, and, once exercised, "impliedly ratified by the acquiescence and obedience of the people.” The process created the United States "by the people in collectivity, rather than by the individual states.” because only four had state constitutions at the time of the Declaration of Independence founding the nation, and three of those were provisional.[4]

Articles of Confederation

The Articles of Confederation and Perpetual Union was the first constitution of the United States.[5] It was drafted by the Second Continental Congress from mid-1776 through late-1777, and ratification by all 13 states was completed in early 1781. Under the Articles of Confederation, the central government's power was kept quite limited. The Confederation Congress could make decisions, but lacked enforcement powers. Implementation of most decisions, including modifications to the Articles, required unanimous approval of all thirteen state legislatures.[6]

Although in a way, the Congressional powers in Article 9 made the "league of states as cohesive and strong as any similar sort of republican confederation in history,”[7] the chief problem with the new government under the Articles of Confederation was, in the words of George Washington, "no money."[8] The Continental Congress could print money; but, by 1786, the currency was worthless. (A popular phrase of the times chimed that a useless object or person was .. not worth a Continental, referring to the Continental dollar.) Congress could borrow money, but couldn't pay it back.[8] No state paid all their U.S. taxes; Georgia paid nothing, as did New Jersey in 1785. Some few paid an amount equal to interest on the national debt owed to their citizens, but no more.[8] No interest was paid on debt owed foreign governments. By 1786, the United States would default on outstanding debts as their dates came due.[8]

Internationally, the Articles of Confederation did little to enhance the United States' ability to defend its sovereignty as an independent nation. Most of the troops in the 625-man U.S. Army were deployed facing—but not threatening—British forts being maintained on American soil. Those troops had not been paid; some were deserting and others threatening mutiny.[9] Spain closed New Orleans to American commerce; U.S. officials protested, to no effect. Barbary Pirates began seizing American ships of commerce; the Treasury had no funds to pay the pirates' extortionate demands. If any extant or new military crisis required action the Congress had no credit or taxing power to finance a response.[8]

Domestically, the Articles of Confederation was proving inadequate to the task of bringing unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris (1783) was signed between Great Britain and the United States and each of the states by name, the various individual states proceeded blithely to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Confederation Congress.[8] Individual state legislatures independently laid embargoes, negotiated directly with foreigners, raised armies and made war, all violating the letter and the spirit of the Articles.

During Shays' Rebellion in Massachusetts, Congress could provide no money to support an endangered constituent state. Nor could Massachusetts pay for its own internal defense; General Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army.[10] During the next Convention, James Madison angrily questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years.[11] A rumor had it that a "seditious party" of New York legislators had opened a conversation with the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on white settlers in Georgia and adjacent territory. Savannah was fortified and the State of Georgia was under martial law.[12]

Congress was paralyzed. It could do nothing significant without nine states, and some legislation required all thirteen. When a state produced only one member in attendance, its vote was not counted. If a state's delegation were evenly divided, its vote could not be counted towards the nine-count requirement.[13] The Articles Congress had "virtually ceased trying to govern."[14] The vision of a "respectable nation" among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin and Rufus King. Their dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.[15]

Constitutional Convention

On February 21, 1787, the Articles Congress called a convention of state delegates at Philadelphia to propose a plan of government.[16] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the Articles of Confederation". The convention was not limited to commerce; rather, it was intended to “render the federal constitution adequate to the exigencies of government and the preservation of the Union." The proposal might take effect when approved by Congress and the states.[17]

On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present. A quorum of seven states met on May 25. Eventually twelve states were represented; 74 delegates were named, 55 attended and 39 signed. The delegates arrived with backgrounds in local and state government and Congress. They were judges and merchants, war veterans and revolutionary patriots, native-born and immigrant, establishment easterners and westward-looking adventurers. The participating delegates are honored as the Constitution’s "Framers".[18]

Drafting the Constitution

Signing the Constitution, 'unanimous' by delegation. Eleven states ratify to begin in 1789, unanimously 1790

The Constitutional Convention began deliberations on May 25, 1787. The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation. The high quality of the delegates to the convention was remarkable. As Thomas Jefferson in Paris wrote to John Adams in London, "It really is an assembly of demigods." According to one view, the Framers embraced ambiguity in the constitutional text, since it allows for compromise and cooperation about broad concepts rather than specific circumstances.[19]

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

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

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

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

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

From August 6 to September 10, the report of the committee of detail was discussed, section-by-section, and clause-by-clause. Details were attended to, and further compromises were effected. Toward the close of these discussions, on September 8, a "Committee of Style" of five was appointed. Its final version was taken up on Monday, September 17, at the Convention's final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony, and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up addressing the Convention, "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it is not the best."

The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the Convention. Their accepted formula was "Done in Convention, by the unanimous consent of the States present." George Washington noted in his diary that night, the proposal was agreed to by eleven state delegations and the lone Mr. Hamilton for New York.

Ratification

Transmitted to the Articles Congress then sitting in New York City, the Constitution was forwarded to the states by Congress recommending the ratification process outlined in the Constitution. Each state legislature was to call elections for a "Federal Convention" to ratify the Constitution. They expanded the franchise beyond the Constitutional requirement to more nearly embrace "the people". Eleven ratified initially, and all thirteen unanimously did so a year later. The Articles Congress certified eleven states' beginning the new government, and called the states to hold elections to begin operation. It then dissolved itself on March 4, 1789, the day the first session of the First Congress began. George Washington was inaugurated as President two months later.

Territorial extent of the United States, 1790.

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

Then followed an arduous process of ratification of the Constitution by specially constituted conventions. The need for only nine states was a controversial decision at the time, since the Articles of Confederation could only be amended by unanimous vote of all the states.

Three members of the Convention – Madison, Gorham, and King – were also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress, on September 28, after some debate, unanimously decided to submit the Constitution to the States for action, "in conformity to the resolves of the Convention".[20] Congress unanimously left the decision to the states, without any recommendation for or against adoption.[21]

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

The Continental Congress – which still functioned at irregular intervals – passed a resolution on September 13, 1788, to put the new Constitution into operation with eleven states.[22] North Carolina and Rhode Island ratified by May 1790.

Historical influences

Fundamental law

Enlightenment and Rule of law
John Locke by Herman Verelst.png
John Locke
Two Treatises of Government
life, liberty and property

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

The due process clause of the Constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a tyrant.

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

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

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

Division of power in a republic was informed by the British experience with mixed government, as well as the study of republics ancient and modern. A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams and applied to the creation of state constitutions.

Native Americans

The Iroquois nations' political confederacy and democratic government under the Great Law of Peace have been credited as influences on the Articles of Confederation and the United States Constitution.[23] Relations had long been close, as from the beginning, the colonial English needed allies against New France. Prominent figures, such as Thomas Jefferson in colonial Virginia and Benjamin Franklin in colonial Pennsylvania, two colonies whose territorial claims extended into Iroquois territory, were involved with leaders of the New York-based Iroquois Confederacy.[24]

In the 1750s, at the Albany Congress, Franklin called for "some kind of union" of English colonies to effectively deal with Amerindian tribes.[25] John Rutledge (SC) quoted Iroquoian law to the Constitutional Convention, "We, the people, to form a union, to establish peace, equity, and order..." [26]

The Iroquois experience with confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive control over the constituent members, and decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from "too much democracy" and the long term independence of the Iroquois confederation suffered from intrigues within each Iroquois nation.[27]

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

Other bills of rights

The United States Bill of Rights consists of the 10 amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.[28] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Frame of government

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

Neither the Convention which drafted the Constitution nor the Congress which sent it to the thirteen states for ratification in the fall of 1787 gave it a lead caption. To fill this void, the document was most often titled "A frame of Government" when it was printed for the convenience of ratifying conventions and the information of the public.[29] This Frame of Government consisted of a preamble, seven articles and a signed closing endorsement.

Preamble

The Preamble to the Constitution sets out the origin, scope and purpose of the Constitution. Its origin and authority is in "We, the people of the United States". This echoes the Declaration of Independence. "One people" dissolved their connection with another, and assumed among the powers of the earth, a sovereign nation-state. The scope of the Constitution is twofold. First, "to form a more perfect Union" than had previously existed in the "perpetual Union" of the Articles of Confederation. Second, to "secure the blessings of liberty", which were to be enjoyed by not only the first generation, but for all who came after, "our posterity".[30]

It is an itemized social contract of democratic philosophy. It details how the more perfect union was to be carried out between the national government and the people. The people are to be provided (a) justice, (b) civil peace, (c) common defense, (d) those things of a general welfare that they could not provide themselves, and (e) freedom. A government of "liberty and union, now and forever", unfolds when "We" begin and establish this Constitution.[a][32]

Article One

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

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

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

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

Article I, Section 9 lists eight specific limits on congressional power.

The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would "enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people,"[33] even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."[33]

Article Two

Article Two describes the office of the President of the United States. The President is head of the executive branch of the federal government, as well as the nation's, head of state and head of government.

The office of the Vice President is also established by Article Two. The Vice President and the President are both elected to serve an identical four year term. Section 1 specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns. The later 25th Amendment clarifies this. Additionally, the original procedure (replaced in the Twelfth Amendment) for electing the President and Vice President is contained in this article.

In order to qualify to serve as president, a person must be a natural born citizen of the United States or a citizen at the time of the adoption of the Constitution, at least 35 years old and a resident of the United States for at least 14 years.[34] The first president to be born an American citizen was Martin Van Buren.[35]

The President receives Compensation, and this compensation may not be increased or decreased during the president's term in office. The president may not receive other compensation from either the United States or any of the individual states. Additionally, every President must take an oath when assuming office, prescribed here in the final clause of the First Section, to preserve, protect, and defend the Constitution.

Section 2 grants substantive powers to the president:

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

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

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

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

  • The president reports on the state of the union.
  • The Recommendation Clause:[36] The president has the power and duty[37] to recommend to Congress's consideration such measures which the president deems as "necessary and expedient".
  • The president may convene either house, or both houses, of Congress.
  • When the two houses of Congress cannot agree on the time of adjournment, the president may adjourn them to some future date.

Section 3 adds:

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

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

Article Three

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

Section 1 vests the judicial power of the United States in federal courts. and with it, the authority to interpret and apply the law to a particular case. Also included is the power to punish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S. Code[38] describes judicial powers and administration.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts.[b] In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court. The Supreme Court holds discretionary jurisdiction, meaning that it does not have to hear every case that is brought to it.[38]

To enforce judicial decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers. The court’s summary punishment for contempt immediately overrides all other punishments applicable to the subject party. Other implied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings.[38]

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case. Also required is of broad enough concern in the Court’s jurisdiction that a lower court, either federal or state, does not geographically cover all the existing cases before law. Courts following these guidelines exercise judicial restraint. Those making an exception are said to be judicial activist.[c]

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases involving ambassadors, ministers and consuls, for all cases respecting foreign nation-states,[39] and also in those controversies which are subject to federal judicial power because at least one state is a party. Cases arising under the laws of the United States and its treaties come under the jurisdiction of federal courts. Cases under international maritime law and conflicting land grants of different states come under federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under federal jurisdiction. The trials will be in the state where the crime was committed.[38]

No part of the Constitution expressly authorizes judicial review, but the Framers did contemplate the idea. The Constitution is the supreme law of the land. Precedent has since established that the courts could exercise judicial review over the actions of Congress or the executive branch. Two conflicting federal laws are under "pendent" jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state legislature enacts something as under federal jurisdiction.[d] To establish a federal system of national law, considerable effort goes into developing a spirit of comity between federal government and states. By the doctrine of 'Res judicata', federal courts give "full faith and credit" to State Courts.[e] The Supreme Court will decide Constitutional issues of state law only on a case by case basis, and only by strict Constitutional necessity, independent of state legislators motives, their policy outcomes or its national wisdom.[f]

Section 3 bars Congress from changing or modifying Federal law on treason by simple majority statute. Treason is also defined in this section. It's not enough merely to think a treasonous thought, there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.[g]

Article Four

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

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

Article Five

Article Five outlines the process for amending the Constitution. Eight state constitutions in effect in 1787 included an amendment mechanism. Amendment making power rested with the legislature in three of the states and in the other five it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This proved to be a major flaw in the Articles, as it created an insurmountable obstacle to constitutional reform. The amendment process crafted during the Philadelphia Constitutional Convention was, according to The Federalist No. 43, designed to establish a balance between pliancy and rigidity:[40]

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

There are two steps in the amendment process. Proposals to amend the Constitution must be properly Adopted and Ratified before becoming operative.

A proposed amendment may be adopted and sent to the states for ratification by either:
To become part of the Constitution, an adopted amendment must be ratified by either (as determined by Congress):
  • The legislatures of three-fourths (presently 38) of the states; OR,
  • State ratifying conventions in three-fourths (presently 38) of the states.

The decision of which ratification method will be used for any given amendment is Congress' alone to make.[41] The latter procedure has been utilized only once, for the Twenty-first Amendment.[42]

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code § 106b. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each Governor. Each Governor then formally submits the amendment to their state's legislature. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state’s action. Ratification documents are examined by the Office of the Federal Register for facial legal sufficiency and an authenticating signature.[43]

Article Five ends by shielding certain clauses in the new frame of government from being amended. Article One, Section 9, Clauses 1 prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808, plus the fourth clause from that same section, which reiterates the Constitutional rule that direct taxes must be apportioned according state populations. These clauses were explicitly shielded from Constitutional amendment prior to 1808. On January 1, 1808, the first day it was permitted to do so, Congress approved legislation prohibiting the importation of slaves into the country. On February 3, 1913, with ratification of the Sixteenth Amendment, Congress gained the authority to levy an income tax without apportioning it among the states or basing it on the United States Census. The third textually entrenched provision is Article One, Section 3, Clauses 1, which provides for equal representation of the states in the Senate. The shield protecting this clause from the amendment process is less absolute—"no state, without its consent, shall be deprived of its equal Suffrage in the Senate"—but permanent.

Article Six

Article Six establishes the Constitution, and all federal laws and treaties of the United States made according to it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state. Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Article Seven

Article Seven describes the process for establishing the proposed new frame of government. Anticipating that the influence of many state politicians would be Antifederalist, delegates to the Philadelphia Convention provided for ratification of the Constitution by popularly elected ratifying conventions in each state. The convention method also made it possible that judges, ministers and others ineligible to serve in state legislatures, could be elected to a convention. Suspecting that Rhode Island, at least, might not ratify, delegates decided that the Constitution would go into effect as soon as nine states (two-thirds rounded up) ratified.[44] Once ratified by this minimum number of states, it was anticipated that the proposed Constitution would become this Constitution between the nine or more that signed. It would not cover the four or fewer states that might not have signed.[45]

Adopted amendments

The Constitution has twenty-seven amendments. Among these, Amendments 1–10 are collectively known as the Bill of Rights, and Amendments 13–15 are known as the Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was pending before the states for 202 years, 225 days, the longest pending amendment that was successfully ratified was the Twenty-second Amendment, which took 3 years, 343 days. The Twenty-sixth Amendment was ratified in the shortest time, 100 days. The average ratification time for the first twenty-six amendments was 1 year, 252 days, for all twenty-seven, 9 years, 48 days.

A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 States). There is no further step. The text requires no additional action by Congress or anyone else after ratification by the final state. [46] Thus, when the Office of the Federal Register verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the nation's frame of government. This certification is published in the Federal Register Federal Register and United States Statutes at Large and serves as official notice to Congress and to the nation that the ratification process has been successfully completed.[43]

"Bill of Rights"

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

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

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

No State shall make or enforce any law which shall abridge the privileges ... of citizens ... nor ... deprive any person of life, liberty, or property, without due process of law; nor deny ... the equal protection of the laws.

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

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

Individual rights

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

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

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

Protecting the accused. The Fourth Amendment guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been found in this amendment and others by the Supreme Court.
The Fifth Amendment forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment, otherwise known as the Miranda rights after the Supreme Court case. It also prohibits government from taking private property for public use without "just compensation", the basis of eminent domain in the United States.
The Seventh Amendment assures trial by jury in civil cases.
Restraining the judges. The Sixth Amendment guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
The Eighth Amendment forbids excessive bail or fines, and cruel and unusual punishment.
Potential military coercion

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

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

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

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

The Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The states had suffered during the Revolution following the British Crown confiscating their militia's arms, which were stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorically asked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationed in every house?"[47] The only existing case law directly regarding this amendment is a lower court decision in the case of Engblom v. Carey.[48] However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court's holding that the constitution protects the right to personal privacy.

Constitutional relationships

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

Subsequent

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

Citizen rights

Several of the amendments have more than one application, but five amendments have concerned citizen rights.

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

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

Three branches

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

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

The Twelfth Amendment (1804) changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. The Twentieth Amendment (1933), in part, changes details of presidential terms and of presidential succession. The Twenty-second Amendment (1951) limits the president to two elected terms unless a vice president succeeds to the office for less than two years prior to election. The Twenty-fifth Amendment (1967) further changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.

The Eleventh Amendment (1795), in part, clarifies judicial power over foreign nationals.

States and abuses

State citizen lawsuits. Citizens are limited when suing their states in federal court under the Eleventh Amendment (1795) which, in part, limits ability of citizens to sue states in federal courts and under federal law.

Alcohol. (a) The states must not allow alcohol to be sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth Amendment (1919) prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Twenty-first Amendment (1933) repeals the Eighteenth Amendment, however it permits states to prohibit the importation of alcoholic beverages.

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

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

Inoperative amendments

Collectively, members of the House and Senate typically propose around 200 amendments during each two–year term of Congress.[49] Most however, never get out of the Congressional committees in which they were proposed, and only a fraction of those that do receive enough support to win Congressional approval to actually go through the constitutional ratification process.

Six amendments approved by Congress and sent to the states have not been ratified by the required number of states to become part of the Constitution and are thus inoperative. Four of these are still technically still pending, as Congress did not set a time limit (see Coleman v. Miller) for their ratification. The other two are no longer pending, as both had a time limit attached and in both cases the time period set for their ratification expired.

Congressional Apportionment Amendment

The Congressional Apportionment Amendment, which was one of twelve articles of amendment proposed by the 1st Congress on September 25, 1789, would, if ratified, establish a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states following each constitutionally mandated decennial census. At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. That number rose to eleven on March 4, 1791, when Vermont joined the Union. By the end of 1791, the amendment was only one state short of the mark. However, when Kentucky attained statehood on June 1, 1792, the number climbed to twelve, and, even though Kentucky ratified the amendment that summer (along with the other eleven amendments), it was still one state short. No additional states ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-seven would be required. A federal statute approved April 14, 1792 apportioned the House of Representatives at 33,000 persons per representative in consequence of the 1790 census. Reapportionment has since been effected by statute.

Titles of Nobility Amendment

The Titles of Nobility Amendment, proposed by the 11th Congress on May 1, 1810, would, if ratified, strip United States citizenship from any citizen who accepted a title of nobility from a foreign country. On two occasions between 1812 and 1816 it was within two states of the number needed to become a valid part of the Constitution. When submitted to the states, ratification by thirteen states was required for it to become part of the Constitution; eleven had done so by early 1812. However, with the addition of Louisiana into the Union that year (April 30, 1812), the ratification threshold rose to fourteen. Thus, when New Hampshire ratified it in December 1812, the Titles of Nobility Amendment again came within two states of being ratified. No additional states ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-six would be required. Several federal statutes address this subject matter.

Corwin Amendment

The Corwin Amendment, proposed by the 36th Congress on March 2, 1861,[50] was one of several measures considered by Congress in an ultimately unsuccessful attempt to attract the seceding states back into the Union and to entice border slave states to stay.[51] It would, if ratified, shield "domestic institutions" of the states (which in 1861 included slavery) from the constitutional amendment process and from abolition or interference by Congress. Three states ratified the amendment in the early 1860s, but none have since. To become part of the Constitution today, ratification by an additional thirty-five states would be required. The subject of this proposal was subsequently addressed by the 1865 Thirteenth Amendment which abolished slavery.

Child Labor Amendment

The Child Labor Amendment, proposed by the 68th Congress on June 2, 1924, would, if ratified, specifically authorize Congress to limit, regulate and prohibit labor of persons less than eighteen years of age. The amendment was proposed in response to Supreme Court rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) that found federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 unconstitutional. When submitted to the states, ratification by 36 states was required for it to become part of the Constitution, as there were forty-eight states. Twenty-eight had ratified the amendment by early 1937, but none have done so since. To become part of the Constitution today, ratification by an additional tenwould be required.[52] A federal statute approved June 25,1938, regulated the employment of those under 16 or 18 years of age. The Supreme Court, by unanimous vote in United States v. Darby Lumber Co. (1941), found this law constitutional, effectively overturning Hammer v. Dagenhart. As a result of this development, the movement pushing for the amendment concluded.[53]

Equal Rights Amendment

The Equal Rights Amendment, proposed by the 92nd Congress on March 22, 1972, would have prohibited deprivation of equality of rights (discrimination) by the federal or state governments on account of sex. Initially, a seven year ratification time limit–March 22, 1979 was placed on the amendment, but as the deadline approached, Congress extended that deadline to June 30, 1982. Thirty-five states had ratified the amendment (three short of the number required for it to be implemented) prior to the original deadline, but none did so during the extension period, thus the amendment failed to be adopted.

District of Columbia Voting Rights Amendment

The District of Columbia Voting Rights Amendment, proposed by the 95th Congress on August 22, 1978, the District of Columbia Voting Rights Amendment would have granted the District of Columbia full representation in the United States Congress as if it were a state, repealed the 23rd Amendment and granted the District full representation in the Electoral College system in addition to full participation in the process by which the Constitution is amended. A seven year ratification time limit–August 22, 1982 was placed on the amendment. Sixteen states ratified the amendment (twenty-two short of the number required for it to be implemented) prior to the deadline, thus the amendment failed to be adopted.

Judicial review

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

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

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

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

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the twentieth century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.[54]

Early Court roots in the founding

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.[55]

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist’s proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.[56]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. "A limited constitution can be preserved in practice no other way" than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people’s authority over legislatures rests "particularly with judges."[57][p]

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

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. "The fate of judicial review was in the hands of the Supreme Court itself." Review of state legislation and appeals from state supreme courts was understood. But the Court’s life, jurisdiction over state legislation was limited. The Marshall Court's landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.[57]

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. It finds were that Marbury and the others had a right to their commissions as judges in the District of Columbia. The law afforded Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.[q][59][r] The United States government, as created by the Constitution is a limited government, and a statute contrary to it is not law. In this case, both the Constitution and the statutory law applied to the particulars at the same time. "The very essence of judicial duty" according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising "under the Constitution." Courts were required to choose the Constitution over Congressional law. Further, justices take a Constitutional oath to uphold it as "Supreme law of the land".[60]

"This argument has been ratified by time and by practice ..."[s][t] "Marshall The Supreme Court did not declare another Act of Congress unconstitutional until the disastrous Dred Scott decision in 1857, held after the voided Missouri Compromise statute, had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year.[62]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive "court packing plan". Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court’s power of judicial review has persisted.[58]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been "wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns." Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits its power of judicial review.[63]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way, it can avoid opinions on embarrassing or difficult cases. The Supreme Court limits itself by defining for itself what is a "justiciable question." First, the Court is fairly consistent in refusing to make any "advisory opinions" in advance of actual cases.[u] Second, "friendly suits" between those of the same legal interest are not considered. Third, the Court requires a "personal interest", not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Simply having the money to sue and being injured by government action are not enough.[63]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their "standards of litigability". Under the Court’s practice, there are cases left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. "The Supreme Court is not only a court of law but a court of justice."[64]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions.[65] But the Court’s guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings.[66]

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress:[v] The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an Act of Congress, even if its constitutionality is seriously in doubt. [65]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretensions, but it more often tries to rationalize them. Against Congress, an Act is merely "disallowed." In the executive case, exercising judicial review produces "some change in the external world" beyond the ordinary judicial sphere.[67] The "political question" doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court’s limitation when political process allowed future policy change, but a judicial ruling would "attribute finality". Political questions lack "satisfactory criteria for a judicial determination."[68]

John Marshall recognized that the president holds "important political powers" which as Executive privilege allows great discretion. This doctrine was applied in Court rulings on President Grant’s duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairs are inherently political, "wholly confided by our Constitution to the political departments of the government ... [and] not subject to judicial intrusion or inquiry."[69]

Critics of the Court object in two principle ways to self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions.

  1. Its inaction is said to allow "a flood of legislative appropriations" which permanently create an imbalance between the states and federal government.
  2. Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens.[70]

Subsequent Courts

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

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

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

Scope of judicial review expanded

William Howard Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, he was a one-term President.

As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Arizona, New Mexico, Alaska and Hawaii.

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

Earl Warren was an Eisenhower nominee, Chief Justice from 1953 to 1969. Warren’s Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing "separate but equal" services. Warren built a coalition of Justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered "one-man-one-vote." Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright" and Miranda v. Arizona. First Amendment rights were addressed in Griswold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech.

William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. While he would concur with overthrowing a state supreme court’s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores.

Nevertheless, the Rehnquist Court was noted in the contemporary "culture wars" for overturning state laws relating to privacy prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.

Civic religion

There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights as being a cornerstone of a type of civil religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights, in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda by day and in multi-ton bomb-proof vaults by night at the National Archives Building.[71]

The idea of displaying the documents strikes some academic critics looking from the point of view of the 1776 or 1789 America as "idolatrous, and also curiously at odds with the values of the Revolution." [72] By 1816 Jefferson wrote that "[s]ome men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." But he saw imperfections and imagined that potentially, there could be others, believing as he did that "institutions must advance also".[73]

Some commentators depict the multi-ethnic, multi-sectarian United States as held together by a political orthodoxy, in contrast with a nation state of people having more "natural" ties.[74][75]

Worldwide influence

The United States Constitution has had influence worldwide on later constitutions, as newly independent nations, like the United States, emerged from colonial rule. This influence is reflected in the ideals of limiting the rulers of a state apart and above sitting law-givers in a parliament. The concepts of governance influencing others internationally are not only found among similarities in phrasing and entire passages from the U.S. Constitution. They are in the principles of the rule of law and recognition of individual rights. The American experience of fundamental law with amendments and judicial review has motivated foreign constitutionalists to reconsider possibilities for their own future.[76] This view informed Abraham Lincoln during the American Civil War,[aa] his contemporary and ally Benito Juarez of Mexico,[ab] and the second generation of 19th constitutional nationalists, José Rizal of the Philippines[ac] and Sun Yat-sen of China.[ad]

Criticisms

The United States Constitution has faced various criticisms since its inception in 1787.

Until the Reconstruction Amendments were adopted between 1865 and 1870, the five years immediately following the Civil War, the Constitution did not abolish slavery, nor give citizenship and voting rights to former slaves.[82] These amendments did not include a specific prohibition on discrimination on the basis of sex; it took another amendment—the Nineteenth, ratified in 1920— for the Constitution to prohibit any United States citizen from being denied the right to vote on the basis of sex.[83]

See also

Related documents

Notes

  1. ^ The discussion in Adler cites Lincoln's explication of the preamble that "common welfare" meant those things the people could not provide themselves. In 1830, Senator Haynes of South Carolina had made a speech for "Liberty first, and Union afterwards". Daniel Webster of Massachusetts made a "Reply to Haynes" speech for "Union and Liberty, now and forever, one and inseparable".[31]
  2. ^ The Judiciary Act of 1789 established six Supreme Court justices. The number was periodically increased, reaching ten in 1863, allowing Lincoln additional appointments. After the Civil War, vacancies reduced the number to seven. Congress finally fixed the number at nine.
  3. ^ The four concepts which determine "justiciability", the formula for a federal court taking and deciding a case, are the doctrines of (a) standing, (b) real and substantial interests, (c) adversity, and (d) avoidance of political questions.[38]
  4. ^ Judicial Review is explained in Hamilton's Federalist No. 78. It also has roots in Natural Law expressions in the Declaration of Independence. The Supreme Court first ruled an act of Congress unconstitutional in Marbury v. Madison, the second was Dred Scott.[38]
  5. ^ For instance, 'collateral estoppel' directs that when a litigant wins in a state court, they cannot sue in federal court to get a more favorable outcome.
  6. ^ Recently numerous habeas corpus reforms have tried to preserve a working "relationship of comity" and simultaneously streamline the process for state and lower courts to apply Supreme Court interpretations.[38]
  7. ^ Contrary to this source when viewed, the Constitution provides that punishments, including forfeiture of income and property, must apply to the person convicted. "No attainder of treason shall work corruption of blood or forfeiture" on the convicted traitor’s children or heirs. This avoids the perpetuation of civil war into the generations by Parliamentary majorities as in the War of the Roses.[38]
  8. ^ The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it; as a result, after pending for two centuries, it became the Twenty-seventh Amendment. The first of the twelve, which is still technically pending before the state legislatures for ratification, pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that Commonwealth's first month of statehood.
  9. ^ Dispersing armaments in the face of superior force was a hard learned lesson. At the outbreak of hostilities in the American Revolution, Royal Governors captured arsenals of the colonial legislatures in Concord, Massachusetts, and Williamsburg, Virginia, for example.
  10. ^ Three states adopted the Constitution in ratification conventions addressing the need for an amendment guaranteeing state militia and citizen right to bear arms. Four states petitioned for protection of militia and the right to bear arms: New York, Rhode Island, Virginia and North Carolina. Pennsylvania and Massachusetts proposals included it as minority reports.[47]
  11. ^ In Presser v. Illinois, An armed mob of 400 in the city of Chicago paraded through the streets without a permit to intimidate an immigrant neighborhood. Illinois argued the armed individuals violated the state military code.[47]
  12. ^ Without a demonstrated relationship between "a barrel of less than eighteen inches in length" and "a well regulated militia", the Court could not say the Second Amendment guaranteed carrying it in public. The Court did not see it as "any part of the ordinary military equipment or that its use could contribute to the common defense [of the United States]." Moncure does not address any parallels between the 1930s of Al Capone and modern day drug cartels, nor any use of gun regulation by local law enforcement, state National Guard, or the armed forces for policing borders and homeland security.[47]
  13. ^ Governor William Tuck of Virginia used the unorganized militia to break a 1946 strike by employees of the Virginia Electric and Power Company.[47]
  14. ^ Since the 1964 presidential election, the Electoral College has equaled 538, the sum of 100 Senators, 435 Representatives, and 3 for DC. Were DC to have been made a state, its allotted representation in Congress would have been one. Since the 1960s, both major political parties nominating presidential candidates make provision for proportionate representation in their national conventions for DC and the U.S. Territories as though they were states. Except for DC, no Constitutional provision has been made for them in the Electoral College. For example, the U.S. citizens of Puerto Rico would have seven Electoral College votes, that is, two count for senators, five for its proportion in the House over the last three censuses. As it is, they have one non-voting delegate in the House who can cast a vote in committees of direct concern to Puerto Rico.
  15. ^ Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516, 529-530, 536 (1905)(concurring opinions of Justices Harlan and Brown), that once the Constitution has been extended to an area, its coverage is irrevocable; Boumediene v. Bush - That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.
  16. ^ The Supreme Court found 658 cases of invalid state statutes from 1790-1941 before the advent of Civil Rights cases in the last half of the Twentieth Century[58]
  17. ^ In this, John Marshall leaned on the argument of Hamilton in Federalist No. 78.
  18. ^ Although it may be that the true meaning of the Constitution to the people of the United States in 1788 can only be divined by a study of the state ratification conventions, the Supreme Court has used the Federalist Papers as a supplemental guide to the Constitution since their co-author, John Jay, was the first Chief Justice.
  19. ^ The entire quote reads, "This argument has been ratified by time and by practice, and there is little point in quibbling with it. Of course, the President also takes an oath to support the Constitution."[61]
  20. ^ The presidential reference is to Andrew Jackson's disagreement with Marshall's Court over Worcester v. Georgia, finding Georgia could not impose its laws in Cherokee Territory. Jackson replied, "John Marshall has made his decision; now let him enforce it!", and the Trail of Tears proceeded. Jackson would not politically interpose the U.S. Army between Georgia and the Cherokee people as Eisenhower would do between Arkansas and the integrating students.
  21. ^ "Advisory opinions" are not the same as "declaratory judgments." (a) These address rights and legal relationships in cases of "actual controversy", and (b) the holding has the force and effect of a final judgment. (c) There is no coercive order, as the parties are assumed to follow the judgment, but a "declaratory judgment" is the basis of any subsequent ruling in case law.
  22. ^ Louis Brandeis concurring opinion, ‘’Ashwander v. Tennessee Valley Authority’’, 1936.
  23. ^ The Chase Court, 1864–1873, in 1865 were the Hon. Salmon P. Chase, Chief Justice, U.S.; Hon. Nathan Clifford, Maine; Stephen J. Field, Justice Supreme Court, U.S.; Hon. Samuel F. Miller, U.S. Supreme Court; Hon. Noah H. Swayne, Justice Supreme Court, U.S.; Judge Morrison R. Waite
  24. ^ The Taft Court, 1921–1930, in 1925 were – James Clark McReynolds, Oliver Wendell Holmes, Jr.,William Howard Taft (Chief Justice), Willis Van Devanter, Louis Brandeis. – Edward Sanford, George Sutherland, Pierce Butler, Harlan Fiske Stone
  25. ^ The Warren Court, 1953-1969, in 1963 were Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; WIlliam O. Douglas. - Tom Clark; Robert H. Jackson; Harold Burton; Sherman Minton
  26. ^ The Rehnquist Court, , 1986–2005.
  27. ^ "Secession was indeed unconstitutional...military resistance to secession was not only constitutional but also morally justified.[77] "the primary purpose of the Constitution was ... to create ‘a more perfect union’... the Constitution was an exercise in nation building.[78]
  28. ^ Juarez regarded the United States as a model of republican democracy and consistently supported Abraham Lincoln.[79]
  29. ^ The institutions of the two countries which have most influenced constitutional development are Spain and the United States." One of the reforms, "sine quibus non", to use the words of Rizal and Mabini, always insisted upon by the Filipinos, was Philippine representation in the Spanish Cortez, the promulgation in the Islands of the Spanish Constitution, and the complete assimilation equal to that of any in the Spanish provinces on the continent.[80]
  30. ^ In the modern history of China, there were many revolutionaries who tried to seek the truth from the West in order to overthrow the feudal system of the Ching Dynasty. Dr. Sun Yat-sen for example was much influenced by American democracy, especially the U.S. Constitution.[81]

Citations

  1. ^ Maier, Pauline. “Ratification: the people debate the constitution, 1787-1788”. 2010. ISBN 978-0-684-86854-7, p. 35.
  2. ^ "Amendments to the Constitution of the United States of America". The Constitution of the United States of America: Analysis and Interpretation. U.S. Government Printing Office. 1992. p. 25 n.2. 
  3. ^ "National Constitution Center". Independence Hall Association. Retrieved 2010-04-22. 
  4. ^ Morris, Richard B., American Historical Association Presidential Address AHA December 28, 1976. Viewed June 8, 2014.
  5. ^ Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 131 ISBN 978-0-521-88188-3 (noting that "Madison, along with other Americans clearly understood" the Articles of Confederation "to be the first federal Constitution.")
  6. ^ Jensen, Merrill (1950). The New Nation: A History of the United States During the Confederation, 1781–1789. Northeastern University Press. pp. 177–233. ISBN 978-0-930350-14-7. 
  7. ^ Wood, Gordon S., “The Creation of the American Republic, 1776-1787” (1972), ISBN 978-0-807-84723-7 p.359.
  8. ^ a b c d e f Maier 2010, pp. 11-13.
  9. ^ Maier 2010, pp. 12-13, 19.
  10. ^ Maier 2010, pp. 15-16.
  11. ^ Bowen 2010, pp. 129-130.
  12. ^ Bowen 2010, p. 31.
  13. ^ Maier 2010, p. 13.
  14. ^ Wood 1998, pp. 356-367, 359.
  15. ^ Maier 2010, pp. 14, 30, 66.
  16. ^ Resolution of Congress, 21 Feb. 1787 via The Founders’ Constitution (University of Chicago Press). The Articles Congress thus echoed a previous resolution of a conference at Annapolis. See Proceedings of Commissioners to Remedy Defects of the Federal Government : 1786.
  17. ^ Maier, Pauline (2010). Ratification : the people debate the Constitution, 1787–1788. New York: Simon & Schuster. ISBN 978-0-684-86854-7 p.21.
  18. ^ Bowen, Catherine (2010) [First published 1966]. Miracle at Philadelphia : the story of the Constitutional Convention, May to September 1787. New York: Little, Brown. ISBN 978-0-316-10261-2. p.11.
  19. ^ John E. Finn (2006). "Civil Liberties and the Bill of Rights Part I: Lecture 4: The Court and Constitutional Interpretation". The Teaching Company. pp. 52–4. "The most obvious mechanism for change is not the freedom to amend the Constitution, not the authority to engage in a new Constitutional revolution, but to build play into the joints, to build ambiguity and flexibility into the very words of the Constitution so that they might mean different things to different generations." 
  20. ^ Resolution of Congress of September 28, 1787, Submitting the Constitution to the Several States.
  21. ^ Morris (1987) pp 298–99.
  22. ^ Resolution of the Congress, of September 13, 1788, Fixing Date for Election of a President, and the Organization of the Government Under the Constitution, in the City of New York via the Avalon Project.
  23. ^ Armstrong, Virginia Irving (1971). I Have Spoken: American History Through the Voices of the Indians. Pocket Books. p. 14. ISBN 671-78555-9. See also, House Concurrent Resolution 331, October 21, 1988. United States Senate. Retrieved November 23, 2008.. In October 1988, the U.S. Congress passed Concurrent Resolution 331 to recognize the influence of the Iroquois Constitution upon the U.S. Constitution and Bill of Rights.
  24. ^ Greymont, Barbara. The Iroquois in the American Revolution 1972. ISBN 0-8156-0083-6, p.vii.
  25. ^ Morgan, Edmund S., Benjamin Franklin 2002. ISBN 0-300-10162-7 (pbk) p.80-81 Viewed December 29, 2011.
  26. ^ Mee, Charles L., Jr. The Genius of the People. New York: Harper & Row, 1987. p. 237
  27. ^ Greymont, Barbara. Op.cit. p.66 These intrigues were mounted by (a) the French and British empires, (b) the colonies, then states of New York, Pennsylvania and Virginia, and (c) the United States as the Continental Congress, the Articles Congress and subsequently.
  28. ^ NARA. "National Archives Article on the Bill of Rights". Retrieved December 16, 2007. 
  29. ^ James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Foreword by Denys P. Myers. Virginia Commission on Constitutional Government. p. i (of foreword). 
  30. ^ Adler 1975, p. 26, 80, 136.
  31. ^ Adler 1975, p. 87.
  32. ^ James Madison was said to believe that the speech alone would "crush" nullification forever. (This country of ours, H.E. Marshall Part VII, Chapter 73.)
  33. ^ a b 17. U.S. at 421
  34. ^ "The Presidency: Hamilton". Time. May 28, 1923. 
  35. ^ NARA.gov, Martin Van Buren
  36. ^ Sidak, Gregory (August 1989). "The Recommendation Clause". Georgetown Law Journal 77 (6): 2079–2135. Retrieved June 29, 2012. 
  37. ^ Sidak, J. Gregory (August 1989). Science Research Network "The Recommendation Clause In: Georgetown Law Journal, Vol. 77, No. 6". pp. 2079–2135. Retrieved June 28, 2012. [dead link]
  38. ^ a b c d e f g h O'Connor 2010.
  39. ^ FindLaw for legal professionals[dead link], with links to US Government Printing office official website, Cornell Law School, Emory Law School, and U.S. Supreme Court decisions since 1893, (1998, 2000 Supplement). Viewed November 28, 2011.
  40. ^ England, Trent; Spalding, Matthew. "Essays on Article V: Amendments". The Heritage Foundation. Retrieved July 31, 2014. 
  41. ^ http://www.clayton.edu/arts-sciences/Constitution-Day/Proposed-Amendments
  42. ^ Lutz, Donald (1994). "Toward a Theory of Constitutional Amendment". The American Political Science Review. 
  43. ^ a b "The Constitutional Amendment Process". http://www.archives.gov/. The U.S. National Archives and Records Administration. Retrieved July 27, 2014. 
  44. ^ Samuel Eliot Morison (1965). The Oxford History of the American People. Oxford University Press. p. 312. 
  45. ^ Gordon Lloyd. "The Six Stages of Ratification of the Constitution: Stage I — Now For the Bad News". TeachingAmericanHistory.org. Ashland, Ohio: The Ashbrook Center at Ashland University. Retrieved June 23, 2014. 
  46. ^ Neale, Thomas H. "The Proposed Equal Rights Amendment: Contemporary Ratification Issues". Congressional Research Service. Retrieved July 27, 2014. 
  47. ^ a b c d e Moncure 1990.
  48. ^ "U.S. Constitution: Third Amendment". FindLaw.com. Thomson Reuters. Retrieved May 4, 2009. 
  49. ^ "C-SPAN's Capitol Questions". Retrieved 2008-05-29. 
  50. ^ Walter, Michael (2003). "Ghost Amendment: The Thirteenth Amendment That Never Was". Retrieved December 2013. 
  51. ^ Samuel Eliot Morison (1965). The Oxford History of the American People. Oxford University Press. p. 609. 
  52. ^ James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Virginia Commission on Constitutional Government. pp. 68–69. 
  53. ^ Griffin, Stephen M. (1998). American Constitutionalism: From Theory to Politics. Princeton University Press. p. 89. ISBN 9780691002408. 
  54. ^ Pritchett 1959, p. 134.
  55. ^ Pritchett 1959, p. 136.
  56. ^ Pritchett 1959, pp. 137-138.
  57. ^ a b Pritchett 1959, p. 138.
  58. ^ a b Pritchett 1959, p. 142.
  59. ^ Pritchett 1959, p. 140.
  60. ^ Pritchett 1959, pp. 140-141.
  61. ^ Pritchett 1959, p. 141.
  62. ^ Pritchett 1959, pp. 141-142.
  63. ^ a b Pritchett 1959, p. 145.
  64. ^ Pritchett 1959, pp. 148-149.
  65. ^ a b Pritchett 1959, p. 149.
  66. ^ Pritchett 1959, p. 154.
  67. ^ Pritchett 1959, p. 150.
  68. ^ Pritchett 1959, p. 151.
  69. ^ Pritchett 1959, pp. 150-151.
  70. ^ Pritchett 1959, p. 153.
  71. ^ Wood, Gordon S., Dusting off the Declaration, The New York Review of Books, Aug 14, 1997
  72. ^ Wood, Gordon S., Dusting off the Declaration, The New York Review of Books, Aug 14, 1997. Viewed December 29, 2011.
  73. ^ Levinson 1987, p. 115.
  74. ^ Levinson 1987, p. 118.
  75. ^ Levinson 1987, p. 119.
  76. ^ Billias 2009, xi–xv.
  77. ^ Farber 2003, p. 3.
  78. ^ Farber 2003, p. 198.
  79. ^ Stacy 2003, p. 436.
  80. ^ Malcolm 1920, p. 109.
  81. ^ QuingYu 1988, p. 193.
  82. ^ Foner, Eric. "The Reconstruction Amendments: Official Documents as Social History." Gilderlehrman.org. The Gilder Lehrman Institute of American History, n.d. Web. 5 Dec. 2012(subscription required)
  83. ^ "The Constitution: The 19th Amendment." Archive.gov. National Archives, n.d. Web. 5 Dec. 2012.

References

Further reading

  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993)
  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X
  • Bryce, James, viscount. The American Commonwealth (2nd ed., rev.; London: Macmillan and Co., 1891), vol. 1, p. [350]-397, [636]-645, 669-682, et passim.
  • Casey, Gregory (Spring 1974). "The Supreme Court and Myth: An Empirical Investigation". Law & Society Review 8 (3): 385–420. 
  • Elliot, Jonathan, The Debates in the Several State Conventions of the Adoption of the Federal Constitution 5 vols Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison’s Notes, Misc. Letters
  • Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, published during its Discussion by the People, 1787-1788, edited with notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y., 1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.
  • Fritz, Christian G. American Sovereigns: The People and America's Constitutional Tradition Before the Civil War. Cambridge University Press, 2008.
  • Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004.
  • Hall, Kermit, The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992.
  • Kaminski, John P. ed. Documentary History of the Ratification of the Constitution, 1976- (Published volumes 1-10, 13-23, forthcoming volumes 11-12, 24-29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5 ISBN 978-0-87020-439-5), Madison, The State Historical Society of Wisconsin, <http://www.wisconsinhistory.org/ratification> Edited by John P. Kaminski, Gaspare J. Saladino,Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.
  • Klos, Stanley L. (2004). President Who? Forgotten Founders. Pittsburgh, Pennsylvania: Evisum, Inc. p. 261. ISBN 0-9752627-5-0. 
  • Kurland, Philip B. and Lerner, Ralph, eds. The Founders' Constitution. The work consists of "extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced." (Liberty Fund ISBN 0-86597-279-6) The Online Edition is a joint venture of the University of Chicago Press and the Liberty Fund.
  • Levy, Leonard W. et al., ed. Encyclopedia of the American Constitution. 5 vol; 1992.
  • Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)
  • Robertson, David Brian, The Original Compromise: What the Constitutional Framers Were Really Thinking. New York: Oxford University Press, 2013.
  • Tribe, Laurence H. American Constitutional Law (1999)
  • Yale Law School: "The Avalon Project: Notes on the Debates in the Federal Convention". The Avalon Project at Yale Law School. Retrieved May 8, 2011. 

External links

National Archives

Official U.S. government sources

Non-governmental web sites