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US Constitution study guide

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"Constitution of the United States Popup Study Guide" or "Constitution of the United States Annotated Study Guide

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Notes on the US Constitution

Notes on the Constitution

  • Articles I through VII are the original Constitution.
  • The Constitution replaced the Articles of Confederation.
  • The principal author of the Constitution was James Madison
    James Madison
    • is considered the "Father of the Constitution because he was its principal author and its leading philosophical proponent (explained "why")
    • Madison was a leading as a Representative to the House in the first Congress and an important ally and advisor to President George Washington
    • Madison was elected on the promise to support a Bill or Rights, and he fulfilled the promise by introducing the Bill of Rights on June 8, 1789
    • Madison became the 4th President (1809-1817)
    .
  • The Constitution was debated and drafted by the Constitutional Conventiona gathering of representatives of the States who gathered at Philadelphia from May 25 to September 17, 1787 which adopted it on September 15, 1787known as "Constitution Day" and sent it to the Continental Congress, which then submitted it to the States for ratification.
  • the Congress of the Confederation
    • the Congress and national government as operating under the authority of the "Articles of Confederation and Perpetual Union"
    • considered the Third Continental Congress, the Congress of Confederation was adopted following the end of hostilities in the Revolutionary War in 1781
    submitted the proposed Constitution to the states for "ratification"
    Ratification:
    • formal and official adoption of a document, treaty, or agreement;
    • the states acted as independent sovereigns to "ratify" the Constitution and thus join the new government as established by it
    • as per "Article 7.", upon ratification by the ninth of the original thirteen states, the Constitution went into effect
    • Delaware was the first state to ratify it, on December 7, 1878
    • New Hampshire became the ninth state to ratify it on June 21, 1788
    • The Congress of the Confederation certified the new Constitution's ratification on September 13, 1788
    • the new Congress first "convened" (officially met) on March 4, 1789
    • George Washington became the first President on April 30, 1789
    • a series of amendments, known as the "Bill of Rights", were transmitted to the states for ratification on September 25, 1789
      • ten of the proposed amendments went into effect upon ratification by the 11th state, Virginia (marking 3/4ths of the now 14 states) on December 15, 1791.
    .
  • The original Constitution structured the Federal government
    Federal government
    • "federal" is a union of independent states that give up certain powers to a central government while reserving other, mostly internal, powers for themselves
    • the "federal government" thereby is that central government that governs the union of states with specified, or limited, powers
    • from Latin "foedus" which means "league" or union of people w/ a common purpose
  • The Constitution's text and plain meaning may be modified by "amendments".
  • It legal meaning is modified via "judicial review"judicial review:
    • the power of the courts to "interpret" the meaning and purpose of the Constitution
    • the Constitution provides no such power to the Courts, which under "Marbury v. Madison" (1803), the Supreme Court ruled that it did have that power, including the power to strike down a law as "unconstitutional" (i.e. the law is illegal under the Constitution)
     by the courts.

Federalists v. Anti-Federalists debates over adoption of the Constitution

  • During the debates over adoption of the Constitution, the "Anti-Federalists
    Anti-Federalists are:
    • those who argued against adoption of the Constitution were called the "Anti-Federalists"
    • i.e., for opposing the arguments of the pro-Constitution "Federalists"
    • a group of New York Anti-Federalists called themselves, the "Federal Republican Committee", however they came to be called the "Anti-Federalists"
    • Revolution Era hero Patrick Henry was the most prominent Anti-Federalist
    • prominent Anti-Federalist pamphlets were signed anonymously as "Brutus", "Centennial," and "A Federal Farmer"
    The Anti-Federalists argued that:
    • the federal government would be too strong & the presidency was "monarchical" (had powers of a king)
    • the federal judiciary had too much autonomy (self-rule) and too few constraints (limits)
    • the federal government would negate state powers and rights and would be unresponsive to local needs
    The anti-Federalist legacy includes:
    • adoption of the Bill of Rights
    • states-rights philosophy or movements that distrust a powerful central government
    ," who opposed it, argued forcefully that the Constitution gave too much power to the central government and offered no protections for the people and their rights (which were commonly expressed in a "Bill of Rights" in England, the colonies and some of the new states).
  • The Federalists
    Federalists:
    argued that a stronger federal government was necessary for a functioning Republic.
  • The prominent Federalists Madison, Alexander Hamilton and John Jay wrote a series of pamphlets called the Federalist Papers
    The Federalist Papers are a series of pamphlets the authors signed anonymously as "Publius" (likely after a hero of the early Roman Republic, Publius Valerius Publicola)
    • The Papers consist of 85 essays that argued for different aspects of the proposed Constitution, its workings, and the reasons for it
  • Madison importantly outlined the concepts of "separation of powers" and "checks and balances" and the need for a "large" republic (a self-governed country led by representatives elected by the people) in order to protect against abuse of a minority (under 50%) by majority (over 50%) rule.

who argued for adoption of the Constitution.

    • The Federalists Papers carry today the important legacies of:
      • providing insight into the intent and purposes of the Constitution by its "Framers"a "framer" is someone who writes a law or constitution
      • providing a philosophical explanation for the structure of the federal government
      • serving as an expression of "intent" (purpose) by the Founders of the Constitution, especially for Court cases.

Notes on the adoption of the Bill or Rights (Amendments 1-10)

  • The first ten amendments to the Constitution are known collectively as the "Bill or Rights" (BOR) and was ratified on Dec 15, 1791.
  • The BOR protects certain rights of the people and the states from Federal infringement (violation) or otherwise place limits on certain powers of the Federal government regarding individual rights.
  • The BOR protections were originally upon the Federal government and not the states (see annotations in the text of the Constitution below on this topic).
  • Madison was the principal author of the Bill of Rights.
    • Madison he argued that the Constitution merely structured the new central government and therefor any powers or protection not in it belonged to the people.
    • though he did not consider the amendments essential, he understood the political need for them to resolve the contentious debate over ratification of the Constitution.
    • It was thereby understood by both Federalists and Anti-Federalists that a Bill or Rights would be added to the Constitution following adoption of it and commencement of the new government in 1790
    • When the Revolutionary heroes, Samuel Adams and John Hancock, both anti-Federalists, agreed to support adoption of the Constitution if accompanied by proposed amendments to it, including protection of certain individual rights,

Massachusetts in Dec 1787-Jan 1788,

    • Subsequently, Virginia and New York ratified it along with proposed amendments
  • Madison feared that a general convention, called by the states per Article V, might take the opportunity for direct amendment of the Constitution, as opposed to merely adding the BOR
    • therefore he and the Federalists, who controlled the first Congress, used Article V power for Congress by 2/3rds vote to propose amendments for consideration by the states
    • a series of amendments were introduced to the House of Representatives by Madison, including one to apply the BOR to the states and another to add the protection of natural rights to the Preamble
    • the House approved 17 Articles, the Senate approved 12
    • the states ratified 10 of them as of Dec 15, 1791
    • one of the two remaining Articles was adopted on May 5, 1992 as the 27th amendment (regarding Congressional compensation)

Sources for the U.S. Constitution

Constitution terminology

The following is the text of the Constitution

a "constitution"
  • is fundamental law that:
    • sets the underlying rules and structures for a government or organization
    • in the United States it is the supreme law of the land
    • the United States Constitution is the oldest and shortest written constitution in the world.
    • the purpose of the U.S. Constitution was to structure a new government and to set the extents (powers) and limits of it
    • the Constitution has been amended 27 times, with the first ten amendments being known as the "Bill of Rights"
    • the U.S. Constitution was adopted by the Constitutional Convention of 1787, and went into effect once it was ratified by nine of the thirteen original states
    • the new government it formed was opened on March 4, 1789

of the United States of America

"United States":
  • a state is an independent, sovereign country or nation
  • upon independence from Great Britain, the original thirteen "states" became independent sovereign political entities
  • they had, however, under the Articles of Confederation, yielded certain powers to a confederacy of the states to be called "The United States of America"
  • the Preamble of the Constitution calls itself the "Constitution for the United States of America"

  • WE THE PEOPLE [the "Preamble" states general purpose of the Constitution]

    [The Preamble overview] The Preamble:

    • the Constitution's 1st paragraph is known as the "Preamble"
    • it states the Constitution's general purposes
    • and proclaims that its authority is derived from the people

    WE THE PEOPLE in Order to form a more perfect Union{{{2}}}, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare "General Welfare" ⇒

    • that the Constitution is to benefit the general welfare of the nation
      • as part of the preamble, the "general welfare" is a purpose and not an "expressed" or "enumerated" power
      • however, Article I, Section 8 states it as an enumerated power of Congress and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    Article 1. [Legislative branch]

    Section 1. [Establishes the House of Representatives]

    [Section 1 overview.] Establishes the House of Representatives as one of two "houses" of Congress (bicameral legislature; other house ⇒ Senate)
    All legislative Powers law-making, from the Latin, "legis," for "law" herein granted shall be vested in a Congressa "congress" ⇒

    • a gathering, usually of a legislative or organizing body
    • the term, "a congress," as regards the two-year duration of a "session of Congress"
      • which is marked by the two-year terms (elective office) of Members of the House of Representatives
      • the 2021-2023 Congress is the 117th of the United States, which shall consist of a Senate and House of Representatives.

    Section 2. [composition of the House & requirements for office, Enumeration clause & impeachment]

    [Section 2. overview]Section 2. defines the composition of and requirements for election to the House of Representatives, including:

    • how the members of the House will be elected
    • how representation will be calculated from the population ("apportionment") via a census
      • since no census had been conducted, Section 2. sets the number of representatives per each of the original states

    The House of RepresentativesBy "representatives" the Constitution establishes the "lower house" as direct representative of the people

    • here is a fundamental application of the concept of "republicanism," as outlined in the Federalist Papers
    • members of the House shall be elected very two years
    • ⇒ representatives of the people divided by population not by state
    • therefore the House represents distribution of power by population and time (2 year terms per member)
    • ⇒ an important element in "checks and balances" of the Government
    • the House is supposed to be the "People's House"
      • i.e., it is to represent directly the will of the people
    • the Constitution sets a minimum of 30,000 people per Representative
    • the "Apportionment Act of 1911" set the maximum number of Representatives at 435 shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisitei.e., to represent a state in the House the representative must also be eligible to represent the representative body in that state for Electors of the most numerous Branch of the State Legislature.

    No Person shall be a Representative who shall not have attained to the Age of twenty five Years{{{2}}}, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

    Representatives and direct Taxes"direct Taxes"

    • direct tax ⇒ a tax imposed directly upon individuals or incomes derived from their property
    • the original Constitution required that any "direct Taxes" be "apportioned," i.e. divided by population per state
    • the requirement created an unworkable tax, as it meant that direct taxes would have to be calculated by ratio of state populations, meaning that if state A had twice as many residents as state B, then state A would have to account for twice amounted taxed on the smaller state
    • the apportionment requirement made a federal "direct" tax on incomes or property per person impractical
    • instead, Congress taxed transactions, so the dominant sources of tax revenue up until the 16th amendment (1913) were tariffs (taxes on imported goods) and excise taxes (taxes upon transactions)
    • this provision was annulled by the 16th amendment which instituted a direct income tax on individuals without "apportionment" shall be apportionedApportionment:
    • ⇒ dividing up, or allotting (distributing)
    • ⇒ counting the population for representation in the House of Representatives or for dividing up the population for taxes among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed"free persons & "Indians not taxed"
    • the 13th Amendment banned slavery, including indentured servants
    • Native Americans are now taxed, so the exclusion of "Indians not taxed" is no longer in effect, three fifths of all other PersonsKnown as the "3/5ths Clause":
    • ⇒ "apportionment" of the slave population as every 1 slave ⇒ 3/4ths of 1 population count for purposes of calculating representation in the House
    • ⇒ a compromise was reached during the Constitutional Convention to settle the problem of representation for slaves who were not considered citizens
    • Southern states wanted slaves to count in apportionment, as it would increase their population counts and, thus, their number of representatives
    • Northern states wanted that the slaves not be counted for apportionment in order to reduce the number of representatives from slave states
    • the compromise was an inverted copy of the compromise reached during the Revolutionary War regarding the apportionment (division) of the expenses of the Revolution by which the South demanded that the slaves not be counted, while the North argued that slaves should be counted -- the opposite of their arguments over apportionment for representation in the House during the Constitutional Convention
    • the Thirteenth amendment abolished slavery
    • the Fourteenth amendment gave full citizenship to "all persons born or naturalized in the United States," which annulled the need for apportionment regarding slaves. The actual Enumeration Enumeration
    • ⇒ counting for purposes of apportionment of representation and direct taxes
    • the entire paragraph here is known as the "Enumeration clause" shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

    When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

    The House of Representatives shall choose their speaker and other Officers; and shall have the sole Power of Impeachment{{{2}}}.

    Section 3. [establishes the Senate, its composition & requirements for office and impeachment]

    Section 3 overview. Establishes the Senate:

    • creates the Senate as one of two "houses" of Congress
    • therefore creates a "bicameral" or two-house legislature with other house ⇒ House of Representatives)

    The Senate of the United StatesThe Senate

    • represents the states
    • Senators elected every six years (one-third of the Senate being up for election every two years)
    • ⇒ distribution of power by geography (states) and time (6 year terms per member)
    • ⇒ important element in "checks and balances" of the Government
    • the Senate is supposed to be the "deliberative body"
    • which is a check against the passions of democracy which are to be expressed in the House of Representatives
    • the Senate now consists of 100 members shall be composed of two Senators from each State, chosen by the Legislature thereof"chosen by the Legislature"
    • the Seventeenth amendment (1913) removed the power of legislatures to select Senators
    • and created a Constitutional requirement that Senators be elected by direct, popular vote in each state, for six Years; and each Senator shall have one Vote.

    Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second YearRotating elections of Senators:

    • one-third of the Senate is elected every two years
    • so it takes three election cycles (six years) for every Senator to face election or re-election
    • ⇒ distribution of power over time
    • ⇒ the election of the Senators shall be spread over six years
      • so that only 1/3rd of the Senate will be up for election every two years.
      • this requirement marks the Senate's representation of time
        • it takes longer for the Senate to change hands than for the House; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such VacanciesFilling of vacancies:
    • the Seventeenth amendment (1913) changed the selection of Senators from the legislatures to a direct vote
    • thereby this power granted to the Legislatures was altered in the Seventeenth amendment to provide that
    • state governors are to call for a special election
    • and may make temporary appointments to serve until that election

    No Person shall be a Senator who shall not have attained to the Age of thirty Years{{{2}}}, and been nine Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

    The Vice President of the United States{{{2}}} shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall choose their other Officers, and also a President pro temporePresident pro tempore

    • ⇒ 2nd highest officer of the Senate, after the Vice President
    • role is to preside ("oversee") over the Senate in the absence of the Vice President
    • the President pro tempore is elected by the Senate
    • (in practical terms, will therefore be selected by the majority party)
    • the President pro tempore is 4th in line of succession of the presidency, per the 25th Amendment
    • otherwise the office has few powers (unlike the Speaker of the House)
    • in practice (not constitutionally defined) the office operates as official representative of the Senate, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

    The Senate shall have the sole Power to try all ImpeachmentsImpeachment:

    • ⇒ removal from office
    • articles of impeachment (charges) are brought against an office holder by the House
    • conviction requires a supermajority of 2/3rds the members of the Senate
    • in the Constitution, impeachment has two steps:
    1. the House has the power to "impeach," or accuse, an officer of the government (president, judges, officials)by by simple majority vote
    2. the Senate has the power to "try" (judge in the form of a judicial trial) the impeachment to determine guilt or innocence
      • a guilty verdict requires 2/3rds the Senate.
    • the extent of impeachment is limited to removal from office. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present{{{2}}}.

    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.

    Section 4. [election of Senators & timing of sessions of Congress]

    [Section 4. overview]Senate elections:

    • protects the powers of state legislatures to elect Senators
    • and to decide when and how to hold those elections
    • note that the power is given to the state legislatures directly and not to the governors or to the states in general
    • this section was partially amended by the Seventeenth Amendment (1915)

    The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

    The Congress shall assemble at least once in every YearRequirement to meet at least once a year:

    • the Constitution requires that Congress meet at least once every year
    • the President may "call" a "special session" of Congress if Congress is not "in session"
    • ⇒ protection against abuse by a majority or a President who might keep Congress from meeting for some political advantage, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different DayThe 20th amendment set the beginning date of each Congress at the 3rd day of January (unless set differently by law), changing the dates set the original constitution and by the 12th amendment..

    Section 5. [independence of each house of Congress]

    Section 5. overview{{{2}}}

    Each House shall be the Judge of the Elections, Returns, and Qualifications of its own MembersJudge of the Elections

    • each House may "judge" for itself over disputes in elections of its members
    • ⇒ act as a "legislative tribunal" and thereby proceed with powers of investigation, witnesses, evidence, etc.
    • ⇒ the House or Senate will act as judges of a disputed election by majority vote of Members
    • "Returns" means the official counts or results of an election
    • "Qualifications" means the power to judge if a Member is qualified (age, citizenship, etc.) to hold the office, and a Majority of each shall constitute a

    Quorum"Quorum" ⇒

    • the minimum number of representatives necessary for either house to meet
    • this number is set at 51% of the total number of representatives in either house (House or Senate) to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

    Each House may determine the Rules of its ProceedingsIndependence of the two houses of Congress:

    • each house can make its own rules,
    • i.e., they are self-governed
    • and thereby each is protected from interference from the other
      • ⇒ separation of powers
    • generally, the House operates by majority vote, which gives the controlling party almost complete control
    • in the Senate individual Senators have more power, especially that of debate, which can only be shut down by a cloture vote requiring 3/5ths the Senate (60 Senators)
    • Madison's Federalist no. 51 discusses the theory of "Separate and distinct" powers between the houses of Congress, punish its Memberspunish its Members
    • each house has the power to "punish" "disorderly" conduct
    • there is no definition of what constitutes "disorderly" or to "punish", so it would be anything that a majority of the body decides
    • however, punishments have generally been in the form of censure, removal from Committee assignments, or monetary fines for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Memberexpel a Member
    • to expel a Member would be to overturn an election
    • so the Founders require a super-majority to take such an action (as opposed to a simple majority).

    Each House shall keep a journal of its ProceedingsPublication of the proceedings of Congress:

    • ⇒ an essential protection for the people
      • a legislature that operates in secret is not accountable to the people
      • even so, the Constitution allows the Congress to hold some sessions in secret
      • however, the Constitution requires that the Congress identify
    • publication of the "proceedings" of Congress is called the "Congressional Record"
    • the additional requirement that "one fifth" of Members may demand ("the Desire") that the attendance of Members be recorded is another important element of accountability of Congress to the people
    • these seemingly innocuous requirements are in directly response to the abuses of the English kings upon Parliament, of Parliament itself, and of the abuses upon the Americans in their colonial governments, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the journal.

    Neither House, during the Session of Congress, shall, without the Consent{{{2}}} of the other, adjourn adjournment or "to adjourn" ⇒ either

    • a temporary suspension during a session of Congress
    • or an end to a session of Congress
      • when a session has ended, it is called a recess
    • the protection is against one house arbitrarily (outside of rules) adjourning in order to stop legislation from passing
      • again, it is an important protection derived from the American colonial and British Civil War experiences for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

    Section 6. [protections against persecution and limits on holding office for Members of Congress]

    [Section 6. overview]Protects members of Congress from political persecution and prohibits them from holding other offices

    The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest

    • the Constitution protects the Members of Congress from arrest by any of the States while they are on official duty to the Congress or traveling to/from a session of Congress
    • it also protects them from being detained "Questioned" about a speech given in the Congress.
    • the idea here is to protect Members from harassment and coercion on the part of a State or faction
      • implicit in this equation is the idea that States are independent political units that have the ability to arrest citizens, including Congressmen, thus the protection. during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

    No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

    Section 7. [legislation process & veto]

    [Section 7. overview]Section 7 sets rules and processes for legislation to become law, including:

    • bills for taxes must originate in the House
    • signature of President required
    • veto rules & process

    All Bills for raising RevenueBills regarding taxes must "originate" in the House

    • ⇒ sole power of the House.
    • the idea is that since taxes are to be apportioned by population, the House should be responsible for any possible laws for "raising revenue" -- or taxes.
    • for any tax to pass, as with any law, however, the Senate and the President must also agree
    • ⇒ separation of powers and checks and balances
    • the Senate may propose amendments shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

    Every Bill{{{2}}} which shall have passed the House of Representatives and the Senate, shall, before it become a LawFrom a bill to a law:

    • for a bill to become law it must be passed by both the House and the Senate
    • and then receive the signature of the President.
    • ⇒ part of the idea of checks and balances, divided government, and separation of powers
    • these requirements makes it very difficult for laws to be passed; indeed, most laws are not passed, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return itVeto
    • "veto" is Latin for "I forbid"
    • veto ⇒ power of the President to reject a law passed by Congress
    • Congress has the power to "override" the President's veto by voting for the law again
    • but with a super-majority of 2/3ds of both houses of Congress
    • ⇒ an important part of the Constitution's system of checks and balances, divided government, and separation of powers, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the BillCongress may "override" a presidential veto
    • by voting for the law again, but with a super-majority of 2/3ds of both houses of Congress, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons votingCongress must record votes
    • some laws may be passed by a "voice vote" or other informal measurement of "nays" and "yeahs"
    • however, the Constitution requires that Members of Congress be held accountable for votes for or against overriding a veto for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten DaysUnsigned veto:
    • if the President does not sign a bill, it becomes a law after ten days
    • so long as Congress is still in session (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law Pocket veto:
    • if Congress adjourns (closes) before the ten day period required for the President to sign a bill
    • it does not become a law
    • this is known as a "pocket veto" because the President doesn't have to formally reject the law for it to not become a law
    • the pocket-veto is less common in the modern period when Congress is more often in session than not
    • however, it becomes a powerful weapon for the President upon the end of a Congressional session, which forces adjournment of Congress and during which there is usually much last-minute law-making activity.

    Every Order, Resolution, or Vote Order, Resolution, or Vote

    • the Constitution establishes the procedure for making laws (bills) which require both Congressional and Presidential approval
    • however, Congress can do other things than just pass laws
    • these are defined as "orders," "resolutions" or "votes" -- on anything
    • following the philosophies of checks & balances and divided government, when any of these orders, resolutions, or votes require concurrence of both houses of Congress, they also require the signature of the President
    • except in the cases of a veto override (2/3rds vote of both houses of Congress) and votes for adjournment (majority vote)
    • note that each house of Congress can conduct business regarding its own operations without the concurrence of the other house or of the President to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

    Section 8. [Enumerated powers of the Congress, including General Welfare, Commerce & Necessary & Proper clauses]

    [Section 8. overview]Section 8 sets the powers of Congress:

    • ⇒ is among the most contested and judicially reviewed sections of the Constitution:
    • Section 8 "enumerates" or "expresses" the powers of Congress
    • i.e, Section 8 lists out exactly what Congress can do in law
    • nominally (meaning stated but not in reality), Congress can only do what is expressed here & elsewhere in the Constitution
    • however, the "General welfare," "Commerce" and "Necessary and Proper" clauses allow Congress to do most anything it wants so long as it or the courts can justify it under these clauses
    • the modern bureaucratic state exists only under "expansive" or broad interpretations of those clauses by Congress and the Courts

    The Congress shall have Power ToThe "enumerated" or "expressed" powers of Congress

    • the most important of these regard taxation, the general welfare, the national defense, international & interstate commerce, the military, declaration of war, the nation's capital, postal service & roads, bankruptcy, patents & copyrights, among others.
    • by listing these powers, the Constitution is following idea of limited government

    - that the government's authority is given to it by the people - and the government must follow specific rules and processes as laid out by the Constitution - that the government has limits on its powers

    • however, these expressed powers become complicated by the "necessary and proper" clause (see below), which extends the authority and powers of the government beyond the strict expression of those powers in Section 8. lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"General welfare" clause
    • has been construed either as
    • stating the purpose of Article 1. Section 8 (as in the Preamble)
    • i.e., the enumerated powers have this purpose
    • or an expressed power of the Congress,
    • i.e. Congress can do anything that is promotes "general welfare" of the nation; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the Credit of the United States; To regulate Commerce with foreign Nations, and among the several StatesThe "Commerce Clause"
    • provides the Federal government with the power to regulate any commerce between the states
    • but not within the states
    • however, the Congress and the Courts have extended that power to regulation just about any economic activity, even within a state because of its impact upon "inter-state" commerce
    • the Courts have alternatively extended and restricted this power, but it is now a general power of Congress to regulate all commerce, i.e. just about anything, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and DiscoveriesPatents and Copyrights:
    • the Constitution protects "intellectual property" of inventions and "copyrights" (publications, generally)
    • but only for limited times
    • however, copyright has been extended up to 95 years after publication, largely due to commercial interests such as Disney (extensions of copyright are known as "Mickey Mouse Laws")
    • "fair use" exemptions were encoded in the 1976 Copyright Act, allowing for "copying" for educational and non-commercial purposes
    • patent protection has remained 12 years
    • however, patent protections now include computer code, which is problematic; to constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare WarDeclare war
    • the Constitution reserves the power to declare war to the legislature
    • ⇒ granting that power to the representatives of the people and the states
    • ⇒ separation of powers and an important protection of the people against arbitrary decisions by the Executive to make war
    • however, since WWII, the Congress has abrogated (given up) this power to the Executive
    • see Article II for Presidential powers as Commander in Chief for more on Congress and declaring war, grant Letters of Marque and ReprisalLetters of Marque
    • ⇒ grants to "privateers", essentially pirates, the right to attack the ships or lands of overseas enemies and to share in the bounty (loot, takings) of those attacks with the government
    • European monarchs distributed "letters of marque and reprisal" either directly or through colonial governors
    • the Founders considered that power arbitrary and thus reserved the power to the legislature as representative of the will of the people and the states, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing PowersNecessary and Proper Clause
    • ⇒ Article I, Section 8 clause which provides Congress with the "necessary and proper" powers to carry out any of its enumerated (or :explicit," "delegated" or "expressed") powers.
    • the Necessary and Proper clause is one of the primary sources of Congresses' implied" powers
    • or the nformal powers that are not expressly stated in the Constitution
    • McCoullough v. Maryland affirmed this power of Congress, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Section 9. [Enumerated limits on the powers of Congress]

    Section 9. overviewEnumerated limits on the powers of Congress

    • here the Constitution puts restrictions on certain actions or laws issued by Congress and upon the federal government, generally
    • many of these restrictions represent limits on abuses of powers experienced by the colonies under British rule

    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eightCongress may not ban importation of slaves or indentured servants before 1808

    • here the Constitution addresses the slave trade (as ever, without calling slavery by its name) with the compromise that importation of slaves end by that date
    • Southern states agreed to the prohibition largely out of the necessity of compromise along with the notion that the end of slave importation would enhance the value of existing slaves
    • by 1808, the South no longer objected to an importation ban and the "Act Prohibiting Importation of Slaves" was passed in 1807, banning importation of slaves as of January 1, 1808
    • this provision was annulled by the Thirteenth Amendment which banned slavery, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    The Privilege of the Writ of Habeas CorpusWrit of Habeas Corpus

    • legal order to "show the body"
    • court order ("writ") that a prisoner or person held by the government be brought to a court, judge, or magistrate to be charged and/or tried with a crime
    • a fundamental procedural right that protects against imprisonment without being charged
    • a tactic of totalitarian governments is to hold political opponents in prison and not make formal charges or bring them to trial, which would allow them the opportunity to defend themselves
    • therefore this protection is a fundamental protection against arbitrary law and "illegal confinement (Blackstone)
    • however, the Constitution calls this writ a "privilege", which indicates that it is not an inherent right
    • legal scholars have argued that this protection merely means that the Congress cannot suspend the "privilege of the Writ of Habeas Corpus" except in cases of rebellion or invasion.
    • nevertheless, claims for the writ are common, even after trials as method of asking for a mistrial or re-trial over some error in an original criminal trial shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require itSuspension of habeas corpus
    • the Constitution limits the "public safety" to "Cases of" rebellion or invasion
    • Presidents Lincoln, Grant and F. Roosevelt suspended habeas corpus protections under the Civil War, Reconstruction and WWII
    • opponents of border control have sued the government for detaining illegal aliens without charges or trial, and the Supreme Court in Boumediene v. Bush (2008) ruled that some of the terrorist detainees at Guatanamo Bay were being held without cause, and 5, all from Algeria, were subsequently released.

    No Bill of AttainderBill of Attainder

    • ⇒ a law or legislative act that declares a person or specific group of people guilty of a crime and punishes them without a trial
    • this Constitutional protection keeps individuals from being singled out in state or federal laws for punishment
    • "Attainders" (meaning "tainted") come from English law, where the process of declaring a person guilty and confiscating property and/or imprisoning them was a power of the Parliament
    • note: "Private bills" were those acts of Parliament that applied to a specific person; "private bills" only become an '"attainder" if the act includes a punishment. In America, the Congress may pass legislation directed at a specific person, only it must not include a punishment or sanction.
    • the protection against Bills of Attainder:
    • ⇒ a procedural right / protection against arbitrary law
    • ⇒ equal a separation of powers, for bills of attainder allow a legislature sit in judgment of a crime. or eex post facto Lawex post facto
    • ⇒ "after the fact"
    • the Constitution protects against Congress or the States from enacting laws that can be applied backwards in time
    • i.e., making illegal an action that was previously legal and enforcing the new law against old actions. shall be passed.

    No Capitation, or other direct, TaxCapitation or "direct" Tax

    • ⇒ taxes laid directly on citizens without any specific reason such as income or property
    • the Constitution here requires that any direct tax be apportioned across the states based on population
    • the limitation was ruled by the Supreme Court in 1895 ("Pollock v Farmers' Loan & Trust") to prohibit a direct tax on incomes
    • the 16th amendment removed this limitation and allowed for a federal tax on individual incomes
    • for more notes see the Enumeration clause in Article I, Section 2 shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

    No Tax or Duty shall be laid on Articles exported from any State.

    No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

    No money shall be drawn from the Treasury but in Consequence of Appropriations made by LawSpending must authorized by duly enacted law

    • ⇒ a requirement that Congress must pass a law for money to be spent
    • along with the subsequent requirement that Congress must issue "a regular statement and account" of revenue and expenditures,
    • ⇒ a protection against arbitrary rule; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

    No Title of NobilityNo Title of Nobility

    • ⇒ prohibition against assigning titles of nobility (duke, lord, prince, etc.)
    • nobility ⇒ hereditary and is thereby arbitrary
    • this prohibition can be seen as a protection against arbitrary law
    • the prohibition is repeated in Article I, Section 10, where it is applied to the States shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

    Section 10. [limits on powers of the states]

    Section 10. overview Section 10 imposes restrictions upon certain powers of the states:

    • some of the restricted powers listed that would normally be considered those of a national government
    • others represent limits on abuses of power, especially as experienced by the colonies under British rule
    • these restrictions mark, in part, the exchange of sovereignty between the states and the federal government
    • Section 10 places explicit limits on State sovereignty, especially as regards;
      • diplomacy
      • coinage
      • duties (import/export taxes)
      • protections of procedural rights of bill of attainder and ex post facto laws
      • war and navies and armies
    • Two interesting limits on States are
    1. the protection of contacts ; and
    2. the prohibition on granting a Title of Nobility.
    • both are protections against arbitrary law

    No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emits Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of ContractsLaw impairing the Obligation of Contracts

    • prohibits States from voiding contracts
    • ⇒ a limit on State Sovereignty that was designed to avoid arbitrary State actions designed to assist particular individuals who held debts
    • the "contracts" clause is, then, a protection against arbitrary law (one can imagine a monarch arbitrarily deciding who shall and who shall not be obligated to pay debts), or grant any Title of NobilityNo Title of Nobility
    • here the Constitution repeats the prohibition of a federal power upon the states
    • ⇒ prohibition against assigning titles of nobility (duke, lord, prince, etc.)
    • nobility ⇒ hereditary titles and is thereby arbitrary
    • this prohibition can be seen as a protection against arbitrary law.

    No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

    No State shall, without the Consent of the Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    Article II [Executive branch]

    Article II overview"Executive power"

    • "execute" means "to carry out"
    • therefore the "executive branch" is to "carry out" (execute) the laws
    • this core separation of powers between the legislative and executive branches avoids the problems of abuse by overlapping powers of a powerful executive

    Section 1. [Establishes the office the President & processes for election and removal]

    Section 1. overview{{{2}}}

    The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four YearsTerm of four years

    • Representatives serve two year terms, Senators six
    • so ⇒ another distribution of power over time
    • the idea is to hold the Executive accountable without have too much turnover or time per term
    • during the Constitutional Convention, several of the plans called for a life term for the president, which would have changed its nature dramatically from what was adopted, a four-year term.
    • the 22nd Amendment limited the office of the presidency to any one person to two terms. The only person to have served for more than two terms was Franklin Roosevelt, who was elected four times (and died during his fourth term). The 22nd Amendment was adopted in response to Roosevelt. Prior to him it was considered that all presidents should only serve two terms because George Washington had only served two terms., and, together with the Vice PresidentVice President
    • ⇒ "president" (leader) of the Senate.
    • the Vice President has no official duty other than the preside over the Senate and to cast a vote in case of a tie in the Senate.
    • the Vice Presidency is an office of the Senate, and not of the Executive.
    • originally, the Vice President was the person who received the second-most votes in the electoral college (presidential election). The election of the Vice President was changed in the 12th amendment, which separated the votes in the Electoral College for President and Vice President. Effectively, the winning candidate for Vice President is the candidate aligned with the winning candidate for President., chosen for the same term, be elected, as follows

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and RepresentativesElectoral College

    • ⇒ the body of representatives of the States, chosen by the States, who elect the President.
    • thereby the election of the President is "indirect", i.e. through the states
    • Representation, or apportionment, in the Electoral College is prescribed in the Constitution as:
    • "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress..."
    • ⇒ one elector for every member of congress (House + Senate). In this way, the States retain representation on an equal basis as per the Senate, and the people maintain their representation as per the House (apportioned per each State)" ⇒
      • 1 vote for every Senator
      • 1 vote for every Representative of that state
      • as of 2021 there are 538 total electors to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    The Electors shall meet in their respective StatesSummary of the Electoral College:

    • the Electoral College represents the States, not the people directly
    • in practice, the electors are chosen by the people in proportion to their majority votes, and the electors almost always respect the wishes of the voters, but not always.
    • (ex. in 2000, the elector for the District of Columbia refused to cast a vote in the Electoral College, even though the voters had overwhelmingly instructed her to vote for Al Gore; she did not vote in protest to the contested election of 2000)
    • the Electoral College is designed to be a "check" on direct democracy, by applying the republican theory of representation
    • the 23rd amendment changed the Electoral College representation to include the District of Columbia. Therefore, there are 538 electors, which comes from 435 Representatives, 100 Senators and 3 electors from DC, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a majority of the whole Number of Electors appointedElectoral College majority requirement:
    • the winning candidate must have a majority (more than half) of the Electoral College votes
    • ⇒ rather than the candidate with the most votes (a plurality), it must be a majority
    • this requirement was designed to reduce the impact of factions who might split up the vote and thus yield a plurality winner (say 35%) who does not represent a larger consensus (51%)
    • as a practical, if unintended effect, the majority requirement is a major reason for the "two-party system", as the need to create a majority requires that factions join into larger coalitions that are capable of winning 51% of the Electoral College votes ; and if there be no more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President: and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by the states, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice Presidentselection of Vice President:
    • the original process was that the person with the highest number of votes becomes President
    • and that person with the 2nd highest votes becomes the Vice President
    • while this entire paragraph was replaced by the Twelfth Amendment, this clause on selection of the Vice President was the primary purpose of the change
    • the election of 1800 caused confusion and political crisis, as Thomas Jefferson and his running mate, Aaron Burr, received the same number of votes, throwing the election into the House of Representatives, which was ultimately selected Jefferson but after great argument and discord
    • the necessity to change this selection process to "tickets" of President and Vice-President was generally agreed upon and the Twelfth Amendment was quickly adopted. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice President.

    The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

    No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President"No person except"

    • requirements for eligibility of office for President:
    • eligibility for the office is restricted to citizens of the United States at the time of adoption of the Constitution,
    • and any one "natural born" in the country after Declaration of Independence (1776)
    • all Presidents up to Martin Van Buren (8th president, 1837-1841) were born before the Declaration; Van Buren was born in 1782
    • One way to think through the meaning of this section is to consider Alexander Hamilton's original draft:

    "No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States."; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years{{{2}}}, and been fourteen Years a Resident within the United States.

    In Case of the Removal of the President from Office Sets the order of succession as:

      1. Vice President
      2. . As decided by Congress if both the President and Vice President die, resign, removed or cannot serve ("Inability to discharge the Powers")
    • in such case that Congress replaces the President and Vice President will be "acting until either that original person recovers ("until the Disability be removed") or a new election is held
    • the 25th amendment clarifies the transition of power to the Vice President and the conditions under which a President can be declared unable to fulfill the duties ("discharge") of office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

    The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of themthe "Domestic Emoluments Clause"

    • forbids the President from receiving any other compensation from the federal or state governments outside of the regular salary (as determined by Congress
    • that salary must remain the same throughout the presidents' term may seem logical or technical, but Constitution is protecting against corruption by which the Congress (or the states) could "buy off" a President
    • during the Trump administration (2019-2021), opponents accused him of violating this clause because one of his hotels was located on federal property and thereby he received compensation, if indirectly, through it from the government; these accusations were not taken seriously by the Courts.

    Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: I do solemnly swear (or affirm)Oath of office

    • ⇒ requirement that the president swear to uphold and defend the Constitution
    • a similar oath is required of members of Congress and of state legislatures, as well as all judicial and executive branch officials (in Article VI)
    • note that the oath is only about the Constitution and not about such things as "defending the American people", which could be inferred from the oath; however, on its face, the oath is to uphold the Constitution that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

    Section 2. [Powers and roles of the President]

    Section 2. overviewPowers and roles of the President, including:

    • Commander in chief of the military
    • can grant pardons
    • serves as Chief diplomat and appoints U.S. ambassadors with Senate concurrence (agreement)
    • appoints executive officers with Senate concurrence
    • appoints federal Judges with Senate concurrence

    The President shall be Commander in ChiefCommander in Chief

    • a core problem with Continental Congress (under Articles of Confederation) was the absence of an executive who could give direct oversight of the military (instead, the military reported directly to the Congress)
    • the President assumes that role under the Constitution, however the power to declare war is reserved to the Congress
    • in the modern era, Congress has granted the executive branch authority to initiate hostilities (see the War Powers Act of 1973)
    • since WWII the United States has not formally declared War, despite engaging in numerous wars since WWII
    • thereby the President has assumed tremendous additional solitary powers of military and diplomatic action not envisioned by the original Constitution of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

    He shall have Power, by and with the Advice and Consent of the SenateAdvice and Consent of the Senate

    • the President may negotiate treaties, appoint public officials, etc., but the Senate must provide its "consent" or agreement
    • by "advice" the Constitution means that the Senate may deliberate and advise the President on these powers
    • this power of the Senate ⇒ a key separation of powers between the executive and the legislative branches
    • as well as between the houses of Congress, as only the Senate has the powers of "Advice and Consent" in these ways, including:
    • confirm treaties, Executive branch appointments, judicial appointments
    • Senate confirmation requires 2/3rds vote (a super-majority)
    • as a practical matter, Senate powers of advice and consent creates a dependency of the Executive upon the good will of the Senate
    • Presidents who do not receive Senate advice and consent of negotiated treaties, appointments, etc. frequently act without Senate authority through "recess appointments", per the next clause, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the SenateRecess appointments

    • this clause allows the President to appoint officials without Senate consent whenever the Senate in in "recess", or not in session
    • the appointment would expire at the end of the next Senate session
    • the original idea was that the President may need to make appointments during lengthy periods of Congressional recess
    • however, since the Congress is in session almost the entire year now, the recess appointment is not longer about the functioning of the government
    • it is instead a way for presidents to put into office appointees who do not or likely will not receive Senate confirmation

    - "recess appointments" which are appointments of Executive branch officials (not judges) while the Senate is not in session, thus allowing the President to put a person into an office temporarily, by granting Commissions which shall expire at the End of their next Session.

    Section 3. [Requirements & duties of the presidency]

    Section 3. overviewRequirements and duties of the President, including:

    • occasional State of the Union report requirement
    • power to recommend legislation (which means can't introduce it to Congress directly)
    • power to convene a Congress
    • power to resolve disagreement between the House and Senate over date of adjournment of a Congress
    • receive foreign diplomats
    • duty to "faithfully" execute (carry out) the laws
    • power to "commission" officers of the government (put them into office after concurrence from the Senate)

    He shall from time to time give to the Congress Information of the State of the UnionState of the Union address

    • the Constitution requires that the President, as executive, inform Congress, "from time to time" on the "state", or condition, of the nation ("the Union")
    • this important function of reporting to Congress has become a political event in the modern period
    • although Washington and Adams submitted their "state of the union" reports in person, Presidents from Jefferson through William Howard Taft submitted them in writing
    • in 1913, Woodrow Wilson submitted his "State of the Union" as a speech instead of as a written document
    • Wilson thereby used the Constitutional function as a pretext for making a political speech in favor of his policies
    • the Congress must invite the President to the Capitol for the speech, and resolutions are required by both the House and the Senate to receive the President for the speech, and recommend to their Consideration such Measures as he shall judge necessary and expedient"Recommend Measures"
    • the President is not allowed by the Constitution to introduce legislation
    • however, the Constitution here makes it clear that a function of the executive is to offer advice to Congress on "measures", i.e., laws; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think properConvene or Adjourn Congress
    • the Founders expected that Congress would not be in session the entire year, so the power of a President to call a Congress in times of need or emergency (to declare war, especially) was considered essential
    • the power of the President to adjourn the Congress exists in order to settle a dispute between the House and the Senate as to the date of adjournment
    • so the President cannot adjourn the Congress unilaterally
    • the English Civil War was a result, in part, of the adjournment of Parliament by the King
    • so the Founders wanted to protect against an arbitrary power of the President to adjourn Congress; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executedLaws shall be Faithfully executed
    • known as the "Take Care Clause", i.e., the President must "take care" that the laws are carried out
    • ⇒ protection against arbitrary application of the law by the executive
    • i.e., the power to make laws resides with Congress, however, if the President were to ignore or arbitrarily (randomly) "execute" (apply) the laws, then it would become essential a law-making power
    • nevertheless, Presidents regularly ignore laws, apply them as they see fit (i.e., with prejudice)
    • the Supreme Court has ruled on disputes over this clause and executive power/ limitation, and shall Commission all the Officers of the United StatesCommission officers
    • the President has the power to "commission" or appoint officers of the Executive branch
    • does not just mean military "officers," but offices, generally
    • note that the Congress has the power to create Departments and offices, but the President has the power to appoint them
    • however, the President also has the sole power to "commission" them, which means that even if an officer has been approved by the Senate, the President alone has the power to install that person in the office (or not).

    Section 4. [Impeachment]

    Section 3. overviewImpeachment

    • Section 4 subjects the President, Vice President and all civil officials to removal from office, a process called "impeachment"

    The President, Vice President, and all civil Officers of the United States, shall be removed from Office on ImpeachmentImpeachment

    • the extent of impeachment is removal from office only
    • does not imply any criminal or other legal actions
    • "civil Officers" ⇒ non-military government officials in the Executive and Judicial branches (and not the Legislature)
    • the military has a different set of standards for removal of officers
    • Article I, Section 2 (House) gives the power of Impeachment (making the charge for removal) to the House by a simple majority vote
    • Article I, Section 3 (Senate) gives the Senate "sole Power to try all Impeachments" with the Chief Justice of the Supreme Court to preside as judge and conviction requires two-thirds (super-majority) vote (of "Members present") for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

    Article III [Judicial branch]

    Section 1. [Establishes the Judicial branch]

    [Section 1. Overview]Section 1:

    • creates a Supreme Court
    • gives Congress the power to create lower courts
    • sets lifetime terms of office for judges (server for "good Behaviour")

    The judicial Power of the United StatesEstablishes the Judicial branch

    • important separate of powers & checks & balances
    • note that the Constitution did not consider the matter of "judicial review", which was established by precedent in the 1804 Madison v. Marbury case, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establishCongress has power to make the courts by law
    • while the Supreme Court is a constitutional branch, the Congress can create lower courts below it
    • the Constitution does not set the number of judges to serve on the Supreme Court or other courts
    • the Judiciary Act of 1789 set the number of justices at 6
    • other laws set the number at 7 and 10 (sometimes Congress required that an open seat from retired justice not be filled, thus reducing the number)
    • the 1869 Circuit Judges Act set the number at 9, where it has remained since
    • in 1937, Democrat President Franklin Roosevelt attempted to "pack the court" with additional justices appointed by him in order to move the Court votes to partisans who favored him and his policies
    • the "Court Packing" scheme was considered dangerous and a law to add the judges was voted down in the Democratic-majority Senate 70-20
    • in 2021, President Joe Biden created by Executive Order a commission to make recommendations on the size of the Court, among other changes, and that commission recommended no changes in the number of judges, largely because that would create an arbitrary situation whereby Presidents and friendly-Congresses would change the number of justices to suit their politics and not to follow the Constitution. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good BehaviourGood behavior:
    • ⇒ lifetime appointments for judges
    • a key temporal element in the separation of powers (as in House, Senate and Presidential limited terms)
    • lifetime appointments for judges is to designed to remove them from the influences of electoral politics and other temporary passions and factions
    • ⇒ a "republican principle", and shall, at stated Times, receive for their Services, a CompensationSalaries for justices
    • the Founders considered salaries and other forms of compensation to make officials subject to corruption or influence from whoever sets the salaries
    • therefore by ensuring compensation, the Congress cannot take that away
    • and by prohibiting a reduction in salaries, Congress cannot punish judges in that way
    • therefore ⇒ an important separation of power which protects the Judiciary from interference from Congress, which shall not be diminished during their Continuance in Office.

    Section 2. [Defines Court powers and limits]

    Section 2. overview]

    The judicial Power shall extend to all CasesJudicial power or jurisdiction:

    • "jurisdiction" ⇒ the extent of powers of a court to rule on laws and disputes
    • the Constitution limits the Judicial branch jurisdiction to cases "arising under this Constitution"
    • ⇒ separation of powers between the federal and state governments
    • specifically, the Constitution provides Court jurisdiction to:
      • "cases" (disputes) regarding federal laws and treaties
      • cases regarding overseas parties
      • cases in which the federal government is involved
      • cases between states
      • cases between citizens of one state and another state
      • cases between citizens of different states
      • cases between U.S. citizens and foreign nations or citizens
    • essentially, the jurisdiction of the federal judiciary is set by the sovereignty of the federal government, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another stateControversies between states and citizens of different states:
    • this clause was changed by the Eleventh Amendment
    • which clarified that the Judicial power of the government shall "not construed to extend" to suits between a state and citizens of another state or foreigners
    • the problem was the in Chisholm v Georgia, 1793, the Supreme Court took authority over a suit by a citizen of South Carolina against the state of Georgia
    • the states considered this a usurpation of their own authority
    • the Eleventh Amendment thus overruled the Supreme Court's decision; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original JurisdictionOriginal Jurisdiction

    • ⇒ such cases will "originate" in the Supreme Court itself
    • and not in lower courts
    • these cases are importantly cases or disputes between sovereign parties, viz, other nations and the States. In all the other Cases before mentioned, the supreme Court shall have appellate JurisdictionAppellate jurisdiction
    • ⇒ to resolve cases or disputes that have been reviewed by lower courts
    • appellate review ⇒ the primary role and function of the Supreme Court
    • note that the Constitution gives the Supreme Court the power to review both "Law and Fact"
    • normally, juries decide facts and judges decide law
    • but the Constitution reserves the power to decide facts to the Supreme Court
    • subject to rules or laws created by Congress
    • ⇒ additional checks and balances and separation of powers, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by JuryTrial by jury:

    • ⇒ important protection against arbitrary and tyrannical rule
    • such as that the colonists experienced under British rule when juries were denied and judges were agents of the monarchy or governors
    • the Constitution thereby protects the right of trial "by peers", i.e. juries of people from where the crime was committed
    • as well as that the trials be held where the "Crimes shall have been committed"
    • ⇒ protection against arbitrary relocation of trials to courts and places that would be less friendly to a defendant and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Section 3. [Treason]

    [Section 3. overview]Treason & Jury Trials

    • here the Constitution defines "treason" and requires jury trials for charges of it
    • ⇒ important protection and separation of powers

    TreasonTreason

    • ⇒ "betrayal of one's country"
    • treason is a highly political charge, so the Constitution specifically defines its definition
    • European monarchs and legislatures abused "treason" charges as a way of stifling dissent and political opposition
    • so the Founders specifically required that treason charges be tried by juries and not just magistrates who may be subject to pressure from the Legislature or Executive.
    • Jury trials are an important protection of the rights of the people against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    Article IV [Relations between States, and between States & the Federal Government]

    Section 1. [Full Faith & Credit clause]

    [Section 1. Summary]Full faith and credit clause

    • establishes relationship, rules & limits between the States & the States and the Federal Government
    • requires states to respect and obey one another's laws

    Full Faith and CreditFull faith and credit

    • ⇒ requirement of the Constitution that every State recognize and respect the validity of "public acts" (laws), "Records" (such as birth certificates), "and judicial Proceedings" of every other state
    • in other words, a person's birth certificate from one State must be considered valid identification by all States
    • usually the clause pertains to court cases, such as judgments (decisions) and decrees (orders) from one State, requiring that the other State recognize as valid those court outcomes
    • examples would be a law suit that ended in damages of money:
      • the person who was ordered to pay could not avoid payment by moving to another state
      • as the Full Faith and Credit clause would require the second state to respect and enforce the first State's court order
    • criminal Law is different, and the Constitution addresses this under the "Extradition" clause, which requires that one State return to another any fugitive from the law. shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    Section 2. [Privileges and Immunities clause]

    [Section 2. Summary]Privileges and Immunities clause:

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several StatesPrivileges & Immunities clause

    • ⇒ Constitutional requirement that the States must not treat citizens of the other States unfairly with respect to their own citizens
    • each state must make available to other States' citizens all the rights available to its own citizens, including the courts, the right to travel, marriage, property, ownership, etc.
    • in other words, with a few exceptions, States cannot discriminate against citizens of other states
    • A few exceptions to this clause regard, called "reasonable distinctions," include:

    1) in-state tuition for college, giving preference via lower fees to state residents; 2) require in-state residency to hold office 3) require licenses for practice of certain businesses or professions. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the CrimeExtradition Clause:

    • ⇒ Constitutional requirement that States return criminal fugitives to the State that has jurisdiction over the crime committed
    • in other words, criminals can't avoid capture by running off to another State
    • extradition is to invoked upon request of the state in which the crime was committed
    • (as opposed to the next clause which requires surrendering runaway slaves upon request of the slave owner)
    • it also means that the states surrender their sovereignty to protect a person from extradition.

    No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be dueFugitive Slave clause:

    • prohibits protection of fugitive (runaway slaves) by requiring their return upon demand of the slave owner in another state
    • the clause thereby treated fugitive slaves as civil and not criminal matters
    • the 1793 Fugitive Slave Act enforced the Fugitive Slave Clause, terms for which were strengthened under the Fugitive Slave Act of 1850
    • the clause was extremely controversial and caused much intersectional (North-South) tension leading up to the Civil War
    • the clause was submitted into the text of the Constitution after the 3/5ths Clause and with little opposition; at that time, 1787, Vermont was a free state, but by 1790 all of New England had abolished slavery or was phasing it out)
    • it marked a tremendous challenge to Northern states who were forced to surrender their sovereignty over slavery bans
    • however, in practice, it was difficult for slave owners to enforce and among the justifications for secession (leaving the Union), South Carolina pointed to flagrant northern refusals to enforce the Fugitive Slave Acts
    • the Fugitive Slave Clause was annulled by the Thirteenth amendment which abolished slavery.

    Section 3. [Admission of new states & the Property Clause]

    [Section 3. Summary]New states

    • new states may be admitted
    • but if they are created out of parts of an existing state, that state must consent to the formation of a new state
    • (West Virginia was created during the Civil War, so Virginia, in rebellion, had no say on its formation)
    • Congress may set rules for the administration and entrance into states of territories
    • the issue of slavery deeply impacted the administration and admission of new states into the 19th century up to the Civil War

    New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

    The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States Property or Territory ClauseProperty or Territory Clause:

    • affirms Federal ownership of and authority over territories and federal properties within states
    • as western territories were admitted as states, the Federal government maintained ownership of much land, such as in Arizona, where the Federal government owns 80% of the land
    • most federal holdings are of national parks and forests, military bases, federal buildings and tracts of land not ceded to the new states (generally, lands now managed by the Bureau of Land Management) ; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State"shall be so construed"
    • ⇒ the Property Clause will not "harm" or prejudice against any "claims" (assertion of ownership)
    • i.e., any disputes over claims must be settled outside of this clause.

    Section 4. [Guarantees of Republican governance, protection against invasion & domestic violence]

    Section 4. overview Guarantees to the states, including:

    • republican form of government
    • protection against invasion
    • protection against domestic violence

    The United States shall guarantee to every State in this Union a Republican form of governmentRepublican form

    • ⇒ representative democracy
    • this clause has rarely been invoked, but was important to the Reconstruction following the Civil War as a guarantee that Southern states re-entering the Union would be required to have republican forms of government
    • the Supreme Court has otherwise mostly held that legal application of this clause is a "political" (to be decided by the legislature) and not "justiciable" (to be decided by the courts), although it has never been tested in terms of, say, a governor declaring a dictatorship in a state, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic ViolenceProtect against domestic violence:
    • the idea is that the Federal government has an obligation to respond to a state's request for help restoring order
    • but the federal government can only intervene at the request of a state
    • Shay's Rebellion was an important catalyst in the convening of the Constitutional Convention, as the federal government under the Articles of Confederation had no powers to intervene (the rebellion was put down by the state of Massachusetts)
    • the state of Colorado invoked the clause in 1914 for Federal help to put down armed miners who were avenging the "Ludlow Massacre", an attack by state and mining company guards upon the campsite of a group of striking coal miners and their families
    • during the political turmoil of 2020, President Trump offered to help states suppress riots across the country, especially in Oregon, but, per the domestic violence clause, he needed the states to request that assistance, and so without that request was able only to send federal forces to protect federal properties (courthouses, etc.) .

    Article V [Constitutional amendment]

    [Article V. overview]Amendment of the Constitution

    • the Constitution sets a process for its amendment as:
    1. proposals for amendment allowed following:
      1. two-thirds vote of both Houses of Congress; or
      2. two-thirds of the state legislatures calling for a convention to propose amendment
    2. ratification (confirmation) of proposed amendments by:
      1. three-fourths of the state legislatures
      2. ratified by conventions in three-fourths of the states
    • in general, the Constitution's supermajority requirement does two things:
    1. protects the minority (less than 50%), which is consistent with "republican" ideology
    2. requires a consensus for amendment but not unanimity (100% agreement) as was required for amendment of the Articles of Confederation

    The Congress, whenever two thirds of both HousesFirst step in amendment:

    • proposed amendments must arise from:
    • 2/3rds of both Houses Congress or
    • 2/3rds of state legislatures shall deem it necessary, shall propose Amendments to this ConstitutionAmendments to this Constitution
    • following the republican principle of self-government regulated by law, the Constitution allows for its own amendment
    • but requires super-majorities for it
    • ⇒ a protection of the minority
    • the 3/4ths super-majority is difficult to achieve without large consensus, so the Constitution has been amended only 17 times following the adoption of the Bill of Rights
    • as a result, the Constitution has been effectively amended by judicial interpretation, mostly through the Commerce, General Welfare and Necessary and Proper clauses, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof"when ratified by":
    • 3/4ths of the states or
    • conventions in 3/4ths of the states
    • note that Congress cannot ratify a proposed amendment, as the one or the other Mode of RatificationMode of Ratification:
    • the "mode" refers to the form of ratification
    • Congress may require one or the other mode may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One Thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Articleno Amendment prior to 1808:
    • prohibits amendment prior to 1808 of:
    • Article 1, Section 9: direct tax clause
    • Article 1, Section 9: slave trade ban prohibition
    • both clauses were annulled by Amendments 16 and 13 respectively); and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senateequal Suffrage in the Senate
    • the Constitution here guarantees each state equal representation in the Senate
    • but since clause is in Section V regarding amendment, it means that the Constitution can not be amended to "deprive" a state equal representation in the Senate .

    Article VI [Debts, Supremacy clause, Oath of Office & no religious Test]

    [Article 6. overview]Article 6 provides for:

    • transfer of debts from before the Constitution
    • the Constitution and federal laws enacted under it will be "supreme" over state laws
    • federal and state officers must take an oath to support the Constitution
    • there will be no "religious Test" for holding office

    All Debts contracted and Engagements entered into, before the Adoption of this ConstitutionAssumption of Debts

    • a key point in adoption of the Constitution concerned the disposition of debts accrued by the states during and after the Revolution
    • in other words, the individual states and the government under the Articles of Confederation owed money
    • the Constitution affirmed that those debts could not be annulled, or canceled, by the change in form of the national government
    • the issue of "assumption" of debts was a deeply divisive political matter into Washington's first presidency, settled by the agreement to exchange "assumption" of state debts by the national government for placement of the nation's capital in the South (between Maryland and Virginia), shall be as valid against the United States under this Constitution, as under the Confederation.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the LandSupremacy clause:

    • affirmed that in case of any conflict between federal and state law, the federal law would prevail
    • ⇒ a transfer of sovereignty from the states to the federal government
    • however, that transfer of powers was to be to a "limited" federal government that itself was constrained by law, starting with the Constitution; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this ConstitutionOath of office

    • ⇒ a similar oath to that required of the president
    • this oath is required of members of Congress and of state legislatures, as well as all judicial and executive branch officials (in Article VI); but no religious Test"no religous Test:
    • protects from a requirement that to hold office one must adhere to a certain religion
    • this clause comes from the long colonial experience with religious dissent and freedom, as well as the long troubles in Britain over religious qualifications, as the British government had required not just that government officials belong to the Church of England, but that all citizens must attend its mass
    • the religious Test applies only to official offices, but it marks an important affirmation of the protection of religious freedom shall ever be required as a Qualification to any Office or public Trust under the United States.

    Article VII [Ratification]

    Article VII overviewRatification

    • ratification, or adoption, of the Constitution
    • needs nine (9) of the thirteen (13) states
    • at which point the Constitution would be operative for those nine states
    • the Constitution went into effect on June 21, 1788 upon ratification by the 9th state, New Hampshire
    • Virginia and New York soon after ratified it
    • North Carolina and Rhode Island were the remaining hold outs
    • after a failed convention in August, 1788, North Carolina ratified on Nov. 21, 1789
    • North Carolina objected to certain parts of the Constitution and the absence of a Bill of Rights; the 1788 convention issued a "Declaration of Rights" and a list of amendments to the Constitution
    • upon submission of twelve amendments (10 were ratified, now called the Bill or Rights) on Sept. 25, 1789, and reassured by George Washington's leadership, North Carolina ratified, while still submitting a list of 8 amendments
    • after numerous failed conventions, Rhode Island ratified May 29, 1790, after the Senate passed a bill to boycott trade with Rhode Island, which had been issuing paper money in order to pay off its War debts
    • the federal government officially began operations on March 4, 1789

    The Ratification of the Conventions of nine StatesConventions of nine States

    • the Constitution would be ratified by "conventions" specifically called for its consideration
    • thereby meaning that its ratification would be outside of the existing State governments and their legislatures, as well as of the national government under Articles of Confederation
    • the number of nine states meant that, of the thirteen states, it would take five to keep the Constitution from ratification
    • whereas under the Articles one state alone could stop a change in the Articles , shall be sufficient for the Establishment of this ConstitutionEstablishment of this Constitution
    • by "Establishment" here the Constitution means to put into existence, the creation of the Constitution as law
    • but that does not mean the new government would be immediately operable
    • in Owings v. Speed (1820) the Court held that two governments could not exist at the same time, so the new government under the Constitution only came into effect after the dissolution of the old government under the Articles of Confederations, as measured by the departure of its representatives from its final Congress between the States so ratifying the Same"so ratifying the Same"
    • means that the Constitution will be operable by those that ratify it,
    • thereby meaning that those states who do not ratify it will not be part of the government so established
    • this clause importantly forced all thirteen states into ratification since they did not want to be left out of the new government.

    Amendments to the Constitution

    Bill of Rights [Amendments 1-10]

    [BIll of Rights overview]Bill of Rights

    • ⇒ the first ten Amendments that were adopted as a group of Amendments in 1791
    • known collectively as the "Bill of Rights" (BOR)
    • BOR protects certain individual rights from "infringement" by the federal government
    • the BOR does not establish those rights, it protects rights that already exist
    • instead, it prohibits the government from violating those rights

    Issues, problems & limits:

    • as originally enacted and interpreted by the Courts, the BOR did not apply to the states
      • see the 14th Amendment for how that Amendment opened the path for judicial application of the BOR to state law (called "incorporation" of the BOR
    • the BOR protections have been construed (interpreted) by the Courts to include other rights or privileges that are not listed in the BOR
    • ex., the courts have construed the Sixth Amendment right to counsel in criminal cases to mean that the government must pay for an attorney for someone who cannot afford one
    • in general, limits on the BOR protections are based on the public safety or public interest
      • that is, individual protections may be limited by public needs, especially in times of crisis
    • important BOR protections include:
      • protection against "arbitrary" law (randomly or unequally applied law)
      • upholds "procedural law" (requires that the "procedures" or processes of the law) be followed completely
      • and if not, the governmental action is in violation of the law and historical backgroundhistorical background:
    • see the introduction above the Constitution text for notes on the adoption of the Bill or Rights

    Amendment 1 [protections of religion, speech, press, assembly & petition]

    [Amendment 1 overview]First Amendment

    • the essential 1st Amendment protection is of individual belief and expression
      • ⇒ speech, religion, press, assembly & petition
    • while these rights are protected from government infringement, they are not absolute (not 100% protected)
    • i.e., there are exceptions to when government can infringe upon them
    • as per the above, those exceptions are generally related to the public safety or interest

    Congress shall make no lawCongress shall make no law

    • ⇒ prohibition on the power of Congress to make certain laws
    • ⇒ affirmation of the natural rights of religion and speech and the civil liberties of the press, public assembly, and petition of the government respecting an establishment of religion"Establishment clause"
    • prohibits the government from establishing a religion

    Background:

    • under the Church of England during 16th and 17th centuries, British subjects were required to join the Church of England and to go to its services
    • it effectively banned all other religions and churches
    • on its face the Establishment clause prohibits establishment of a national church or religion
    • it is generally interpreted to mean a ban on direct federal aid, sponsorship or active involvement to or with a religious organization
    • Thomas Jefferson wrote in a private letter that there must be a "wall of separation between Church & State"

    Issues, problems & limits:

    • the Court has employed the "Lemon Test" (from Lemon v Kurtzman, 1971) to measure if a law 1) lacks a secular purpose; 2) advances or inhibits religion; 3) constitutes an "entanglement" (being wrapped up or otherwise involved) with religion
    • however, it is unclear as to the extent of the Establishment clause regarding any government interaction with a church or religion, for example:
    • can the government provide assistance to a religious school?
    • is prayer allowed in a public school?
    • does "In God We Trust" on coinage constitute an establishment?
    • in general, while it is not in the Constitution, Jefferson's term "Wall between Church & State" marks the purpose and application of the Establishment clause, or prohibiting the free exercise thereof"free exercise"
    • ⇒ protects the rights of the citizens to "exercise" (follow, adhere to) of religion
    • ⇒ prohibition on any governmental restriction upon religion
    • thus, for example, praying in a public school, if "exercised" by students and not required or sponsored by the school would not, under the Free exercise clause, constitute a violation of the Establishment clause
    • note that almost all of the colonies had "established" churches (Church of England in the South, Puritan (or Congregationalist) in New England with legal requirements to attend services and pay tithes (religious tax)
    • the middle colonies generally had no established church, Rhode Island, especially, as a founding principal of the colony was religious tolerance
    • Massachusetts was the last state to fully "disestablish" its state church in 1833[1]; or abridging the freedom of speechfreedom of speech
    • ⇒ protection of the right of expression
    • "speech" is interpreted as writing, broadcast, internet, and * "symbolic" speech (displaying or burning flags, armbands, etc.)
    • the protection is against suppression of speech by government; private entities may define accepted speech for and only within their own realms

    Issues, problems & limits:

    • accepted limits on the "freedom of speech" include:
      • direct threats of violence, obscenity, defamation (speech that causes harm with false accusations)
    • that the Founders called rights to speech and the press "freedom" as opposed to a "rights" means that speech and press "freedoms" are not "absolute rights", i.e., they have limits, or of the pressfreedom of the press
    • here the Constitution distinguishes between "speech" and "press"
    • ⇒ recognition that the "press" is an integral function of a free, democratic and pluralistic society

    Issues, problems & limits:

    • this "freedom" is not absolute: the Courts have imposed limits upon the right to print ("press")
    • publishers ("press") may not publish deliberate lies or defamation (deliberate, false attacks upon someone), harmful or obscene content, or anything that may be understood as harmful to society
    • the rights of the press are balanced against the public safety
      • i.e., can a press publish state secrets? if during peacetime that may be different from if during war
    • notably, in the internet age, Section 230 of the Internet Freedom Act (1995<< confirm) protects internet platforms from liability (responsibility) from censoring harmful or obscene speech[2], or the right of the people peaceably to assemblepeacebly to assemble
    • ⇒ the government cannot limit citizens from gathering in public so long as it is peaceful
    • the Founders were fearful of mob-rule, yet street demonstrations were common and effective tools of citizen action, especially in the years leading up to the Revolution itself

    Issues, problems & limits:

    • the key to this limitation on governmental power is "peaceably"
    • thereby the Constitution does not allow for violent or disruptive protest (which are common around the world even today)
    • it is generally accepted that in the interest of the public safety and order, organizers of political protests and other assemblies may be required to acquire a "permit" for the use of the public space from the local government
    • notable assemblies include the "Bonus Army" protests of the early 1930s (by WWI veterans), Vietnam-era protests (1960s-70s), and the 2011 "Occupy" movement which commadeered (seized) public space in NYC and Washington, DC, and to petition the Governmentpetition the Government
    • "petition" ⇒ to ask for; "redress" ⇒ to fix; grievances" ⇒ complaints
    • ⇒ protection of the people's right to ask something of the Government
    • under monarchies, subjects were allowed at times to ask for the monarch's assistance to fix some wrong
    • however, these petitions would be subject to the monarch's whims, making them arbitrary

    Issues, problems & limits:

    • citizens have a constitutional right to organize "petitions" to change or make a law, although this is not related to the 1st Amendment right
    • in Constitutional Law, this right is not controversial, although lobbying, which is a form of "petitioning" the government is very controversial
    • note that most Constitutional questions regarding restrictions on lobbying regard the 1st Amendment right to Speech rather than the right to Petition
    • Congress and States have enacted many restrictions on lobbying and lobbyists, especially regarding money and gifts to governmental officials for a redress of grievances.

    Amendment 2 [right to bear arms]

    [Amendment 2 overviewSecond Amendment:

    • protects the right of the people to "keep and bear Arms" ("shall not be infringed")
    • justifies that protection by the need for a "well regulated Militia"
    • however, the individual right to keep and bear arms is not contingent (dependent) on that justification
    • the Supreme Court ruled in "District of Columbia v. Heller" (2008) that the right to bear arms is an individual right (overruling restrictions upon gun ownership)

    Issues, problems & limits:

    • Courts have restricted the "right to bear arms" by limiting the type, size, and lethality or type of those weapons, generally maintaining the right for individuals to own those types of arms that would be used by a common "militia" (i.e., rifles, handguns, and not machine guns, tanks, etc.)
    • Courts have also restricted or allowed localities to restrict the right to bear arms and to regulate such things as "conceal carry" (bearing an arm beneath one's clothing, i.e., not visible to others), automatic weapons, etc.
    • gun-control advocates (anti-2nd Amendment) argue that the Amendment creates a "collective" right, i.e., of the states to maintain militias and not one of individuals
    • however, "the right of the people" is understood to be an individual right, as per its same expression in the First, Fourth, Ninth & Tenth Amendments and notes on its syntax & interpretationSecond Amendment syntax (word choice & punctuation)& interpretation:
    • some argue that the right "to bear arms" is constrained to the need for a "A well regulated Militia", frequently pointing to the comma separating "the right... bear arms" from the verb
    • however, "A well regulated Militia" is "prefatory" (acts as a preface) and is not the subject of the verb, "shall not be infringed"
    • so the subject of the sentence is "the right of the people to keep and bear Arms" , shall not be infringed"
    • thus creating the main or "operative" clause, "the right of the people to keep and bear Arms" , shall not be infringed"
      • by conventions of the Founding era, the comma after "Arms" does not separate the subject ("the right") from the verb "infringed"
      • this type of sentence construction is found frequently across the Constitution itself and other documents from the period of it and the BOR's writing
    • nevertheless, the prefatory clause has been interpreted as a limit upon the individual right, yielding two general interpretations:
      1. the "prefatory" interpretation ⇒ gun control or "states militia" advocates who see the 2nd Amendments as granting states the power to maintain militias and not as an individual right
      2. the "operative" interpretation ⇒ the right to bear arms is an individual right or protection (and thus the prefatory clause protects the right of states to maintain militias)
    • in "District of Columbia v. Heller" (2008), the Supreme Court clarified the right as an individual right, overturning prior decisions that more largely held to the "prefatory" or state militia argument]

    A well regulated MilitiaMilitia

    • ⇒ part-time citizen soldiers
    • as opposed to a "professional" or "standing" (i.e. full time) army, which the founders distrusted, being necessary to the security of a free State"security of a free State"
    • is justification for the need for a militia
    • i.e, that a militia is necessary in order to defend a "free state", meaning a state or country of free people, "free" meaning a people that can defend itself, the right of the people to keep and bear Arms"keep and bear Arms"
    • "keep" ⇒ "to own," which protects the right to purchase, manufacture or otherwise acquire arms
    • "bear" ⇒ "to wield", or to hold, maintain, or use, shall not be infringed.

    Amendment 3 [protection against housing soldiers in private homes]

    [Amendment 3 overview]Third Amendment:

    • tyrannical governments can control a populace by placing soldiers in their midst
    • during the Revolutionary Era, in order to suppress colonial agitation and dissent, the British "quartered" (or "housed") soldiers in private homes
    • by doing so, all other rights of dissent, disagreement or petition were squashed
    • here we see the Founders' reliance upon Congress to express the will of the people
    • so if the people deem it necessary, then their representatives would pass such a law

    Issues, problems & limits:

    • the ban on quartering (housing) soldiers is absolute for times of peace (except w/ owner's consent), but not for times of war
    • there have been no Court "explication" (judicial review or interpretation) over the Third Amendment

    No Soldier shall, in time of peace"time of peace"

    • ⇒ a strict ban on placement of soldiers in homes without consent of the owner during peacetime be quartered"quartered"
    • "quarters" are living accommodations or lodgings
    • so "to quarter" ⇒ to put someone into a lodging or house, in this case private houses in any house, without the consent of the Owner, nor in time of war"nor in time of war"
    • ⇒ allows for "quartering" during a war
    • but only under a law passed by Congress for it
    • note that the Constitution and its Amendments frequently allow for extra governmental powers under special circumstances, but in a manner to be prescribed by lawprescribed by law
    • ⇒ that any placement of soldiers in private homes must be according to law
    • ⇒ passed by the Congress and signed into law by the President
    • therefore the Founders considered the possible need to "quarter" soldiers in private homes but limited the government's ability to do so by legislative and not executive action
    • i.e., as Commander in Chief, the President cannot place soldiers in homes without "consent" (agreement) of the owner or a law authorizing it.

    Amendment 4 [unreasonable searches, warrants & probable cause]

    [Amendment 4 overviewFourth Amendment:

    • ⇒ protections against government abuse by "searching" and "seizing" people and their private materials
      • tyrannical governments frequently use false accusations or just arbitrarily (randomly) ("show me your papers!") in order to enforce their will
    • the 4th Amendment creates a "procedure" or process (i.e. ⇒ procedural law) for searches and seizures, including
      • "probable cause" ⇒ likely that a law has been broken, thus the search or seizure is justified
      • upon "Oath or affirmation" ⇒ recorded testimony or witness
      • "describing" the "place" to be searched and the "person" or "things" to be seized,
      • i.e., the search and seizure must be consistent with the probable cause and cannot go beyond it
    • in Katz v. United States (1967), the Court established a test of "reasonable expectation of privacy" and additional notes(con't)

    Issues, problems & limits:

    • the term "reasonable" is vague and subject to interpretation
    • probably cause is also vague and subject to interpretation, such as:
      • is that a person runs away from a crime scene constitute probable cause of criminality?
      • what constitutes probable cause to search a car? (speeding, a headlight out, expired tag?)
      • can searches under legitimate probable cause that discover other evidence of crimes be allowed as evidence, since they were not listed in the original warrant (statement of items)?
      • can a search of a home based upon probable cause of one suspect include the belongings of other residents of that home?
    • under what circumstances do 4th amendment protections not apply? (such as at international borders, secure locations, sobriety checkpoints and other matters of public safety?
    • what other "rights" does the 4th Amendment create? (such as abortion, sexuality and online privacy rights)]

    The right of the people to be secure in their persons, houses, papers, and effects"to be secure..."

    • by "persons" that means physical arrest or detention
    • "papers" ⇒ a specific protection of the privacy of one's private correspondence
    • effects" ⇒ belongings, against unreasonable searches and seizuresunreasonable searches and seizures
    • unreasonable ⇒ vague but arguable
      • i.e., it's a measurement of the extent to which a search or seizure is valid and not abusive
    • "search" ⇒ of "persons, houses, papers, and effects", i.e. just about anything related to a person, including a person's clothes and body
    • "seizure" ⇒ confiscation, generally of anything that serves as evidence of criminality, shall not be violated, and no WarrantsWarrants shall issue
    • ⇒ a legal order, usually issued by a judge or magistrate (court or public official)
    • the warrant is a strong protection because it requires that the government official state its purpose in a search or seizure
      • i.e., "shall issue", but upon probable cause{{{2}}}, supported by Oath or affirmationOath or affirmation
    • again, here the Founders consider an "oath" to be a serious statement of truth
    • thereby an "oath" that is a lie is illegal
      • just as a lie in court is perjury, so is a lie to support a warrant, and particularly describing the place to be searchedWarrants must be specific:
    • the warrant must be specific in its purpose to be legal
    • "seizure" of a person ⇒ arrest or detention, and the persons or things to be seized.

    Amendment 5 [legal protections, due process & takings clause

    Fifth Amendment overviewFifth Amendment:

    • generally protects against abuse in criminal prosecutions
    • as well as importantly requiring the government to compensate for property "takings"
    • the 5th most importantly protects citizens from arbitrary (random) application of the laws ("due process")
      • "procedural law" is one of the most important protections in the Constitution
      • ⇒ that the "process" of the law must be followed in order for a law to be prosecuted
    • other protections and rights:
      • grand juries for indictment (criminal accusation)
      • protects against self-incrimination and multiple charges for a crime
      • compensation for "takings" (seizure) of private property for public use

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand JuryGrand Jury

    • ⇒ tribunals of citizens, usually 12-23 (16-23 under current Federal law) who decide or authorize criminal charges (indictments)
    • grand juries require simple majorities, i.e. +50% (as opposed to courtroom juries which require unanimous, or 100%, agreement for conviction)
    • grand juries are designed to ensure public oversight of criminal prosecutions
      • i.e., they are designed to protect against arbitrary (random) or abusive prosecutions by requiring citizen input

    Issues, problems & limits:

    • prosecutors have enormous powers to compel grand juries to act on their behalf, especially by
      • holding them for extended periods of time
      • controlling the jury's access to witnesses and information (providing, as it were, "only half the story")
      • compelling witness testimony, especially in "fishing expeditions"
      • ⇒ when prosecutors use a grand jury to gather new information and not to merely to decide to bring charges on something already known, except in cases arising in the land or naval forces, or in the Militiamilitary law
    • ⇒ the Constitution here distinguishes civil from military law
    • i.e., the standards of behavior and criminality are different in the military than in civilian life
    • the Constitution here again makes an exception for greater governmental powers concerning times of emergency, threats to the public safety and war, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"Double jeapardy" clause
    • "jeopardy" means in danger of punishment for a crime
    • protects against re-indictment of a crime that has already been prosecuted
    • especially so that a person who is acquitted (found innocent) of a crime will not be charged again for the same crime
    • or receive multiple punishments for a single crime
      • which is why prosecutors frequently make multiple charges (violation of the law) on a single criminal act
      • i.e. "multiple counts" ⇒ a single criminal act may constitution violation of multiple laws
    • thus the protection against "double jeopardy" is a protection against arbitrary application of the law

    Issues, problems & limits:

    • the protection against double jeopardy does not extend to multiple jurisdictions (places or levels of sovereignty, i.e, local, state and Federal law)
    • the "Separate sovereigns doctrine" holds that a single act that violates both a state or Federal law may, or other states' laws, be prosecuted separately
      • the doctrine was upheld by the Supreme Court in Gamble v. U.S. (2019)
    • problems with the separate sovereigns doctrine include:
      • it creates "overlapping" and not "separate" sovereignties
      • growth in Federal criminal law duplicates much state law
      • creates opportunity for prosecutorial abuse (prosecutions that are intended to target someone and not merely uphold the law)
      • raises questions about Governor or Presidential pardons, i.e., does a Presidential pardon for a crime also apply to a conviction for the same crime under state law?; nor shall be compelled in any criminal case to be a witness against himself{{{2}}}, nor be deprived of life, liberty, or property, without due process of law"Due Process Clause"
    • "due process" means that the law and protections in the Constitution must be followed completely for imposition of penalties ("deprived of life, liberty, or property") as a consequence of violating a law
    • ⇒ an important protection against arbitrary (random or select) application of the law and "fair" and "orderly" justice
      • ie., that the laws be carried out evenly and according to established legal rules and principles
    • the Fourteenth Amendment explicitly extended this protection to state law
    • a core application of this clause is that the government can not, for example, use evidence acquired without the Fourth Amendment protection against "unreasonable search and seizures"
    • the Court has categorized the Due Process Clause into:
    • procedural due process
      • ⇒ guarantees of fairness and appropriateness in a court proceeding
      • ex., a Court must have legal jurisdiction (authority) in order to prosecute a case
      • "process" means the laws, guarantees and protections must be followed
    • substantive due process
      • ⇒ protects the "substantial" or fundamental rights of individuals
      • even if those rights are not explicit in the law
      • ex., one's right to hold a job or a right to privacy
      • substantive due process is problematic in that it involves Court "creation" of rights not in laws drawn by the Constitution or legislatures; nor shall private property be taken for public use, without just compensation"Just Compensation Clause"
    • also known as the "Takings Clause"
    • ⇒ the government may seize property for "public use"
      • i.e., to build a park or a road
    • but the government must provide "just compensation" for that property, i.e. must pay a fair price for it (usually a current "market" price, i.e, what someone else would reasonable pay for the property)
    • ⇒ an important protection against arbitrary rule, under which a government can just take someone's property
      • such power exists in many other countries, and their citizens are thereby subject to an arbitrary, or random/select, governmental power

    Issues, problems & limits:

    • the definition of "public use" has been extended beyond what traditionally was understood to be a specific common property (a road, bridge, railroad, park, school, etc.)
      • and in Kelo v. City of New London (2005) was allowed to include a general public benefit such to promote "economic activity" in an area by seizing properties and selling them to private interests with the intent to build something that would create economic activity (in "Kelo" this was a private "redevelopment" of an impoverished part of the city)
      • some states have codified (explicit law) "public use" to forbid such private transfers of property under the guise (pretension/purpose) of "public use"
      • however, "Kelo" is Federal law and has allowed for a "broad" or "expansive" interpretation of what constitutes "public use".

    Amendment 6 [trial and court protections]

    [Amendment 6 overview]Sixth Amendment

    • regards criminal prosecutions
    • protects certain rights of the "accused" (someone charged with a crime), including:
      • jury trial by peers & in the jurisdiction in which the crime occurred
      • speedy trial
      • access to witnesses (know the accusers)
      • legal assistance ("counsel" for "lawyer")
    • the Sixth Amendment importantly affirms due process and protects against arbitrary application of the law*

    Issues, problems & limits

    • the Sixth amendment sets "ground rules" for criminal trials
    • however, criminal law and due process regarding its application is complicated, complex, and subject to tradition and case & statutory law
    • protection of the rights of criminals, even those charged with heinous crimes is an essential protection for all citizens

    In all criminal prosecutions"criminal prosecutions"

    • originally applied to the Federal government
    • "incorporation" (application) of the BoR via the Fourteenth amendment applies these protections to the states
    • with the growth of Federal police powers and criminal code, these protections are especially important, the accused shall enjoy the right to a speedy and public trial{{{2}}}, by an impartial jury"impartial jury"
    • the role of a jury is to decide the facts (not the law) thus, "impartial jury"
    • proving guilt: not in the Constitution but upheld by the Court:
      • "burden of proof" is upon the government and not the accused, who is "presumed innocent"
      • "beyond a reasonable doubt" ⇒ a criminal charge must be prove by the government
        • note that in civil law (disputes between parties, not criminal charges) the burden of proof is "preponderance of evidence" (likeliness of the evidence)

    Issues, problems & limits:

    • juries operate under court instructions, so "impartial" is limited by a judge's actions
    • the Supreme Court has exempted "petty crimes" from Sixth Amendment protection for a jury trial
      • ⇒ crimes with maximum punishments less than six months
    • jury trials can be political, subject to abuse or illegal behavior by prosecutors (such as withholding exculpatory evidence, i.e. evidence that shows innocence), witness tampering and witness perjury, etc.
    • nevertheless, the Courts, case law, tradition and statutory law are designed to make criminal trials as fair as possible
    • a fair criminal trial is an essential protection against arbitrary and tyrannical rule of the State and district wherein the crime shall have been committed"trial by peers"
    • ⇒ by holding a trial where the crime was committed means
      • that the government cannot arbitrarily move a trial to a place of its choosing or for its own benefit
        • such as choosing courts based upon desired outcomes
      • so this protection, while seemingly logical or obvious, is very important to avoid governmental abuse, which district shall have been previously ascertained by law"previously ascertained by law"
    • ⇒ the government cannot create a court or district in order to prosecute a case
      • i.e., the court must be already in existence, and to be informed of the nature and cause of the accusation"Right to Notice of Accusation"
    • ⇒ a right to know under what law one is being prosecuted
    • ⇒ a right to defend oneself against actual and not secret or arbitrary charges; to be confronted with the witnesses against him"face ones accusers"
    • makes charges public and knowable
    • holds accusers and the government accountable
    • protects against arbitrary prosecutions; to have compulsory process for obtaining witnesses in his favor"obtaining witnesses"
    • again, an important protection against government abuse
    • "compulsory process" ⇒ even a witness who does not want to testify may be compelled (forced) to testify if a defendant requests it, and to have the Assistance of Counsel for his defenceright to an attorney
    • the right to counsel (attorney) is an important protection against governmental abuse
      • since the law is complicated, trials can be one-sided, etc.
      • so a defendant has the right to have a legal expert and advocate (someone who speaks for the defendant)

    Issues, problems & limits

    • since impoverished defendants may not have the ability to hire an attorney, the Courts established the right to an attorney paid for by the government
    • this brings up many issues regarding the quality and perspective of that attorney, but it is an important protection.

    Amendment 7 [civil suits protection of jury & common law]

    [Amendment 7 overview]Seventh Amendment

    • sets certain protections under federal law regarding
      • right to jury trial in civil suits
      • protection against overruling jury decisions of fact (the "Rexamination clause")

    In Suits at common law{{{2}}}, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preservedjury trial in civil suits

    • preserves the right of a defendant to demand a jury trial in a civil case
      • however the value of the legal dispute must exceed $25.00
    • under the common law at the time of adoption of the Constitution, jury trial meant:
      • jury of 12 men (changed to a minimum of 6 persons in 1973)
      • requires unanimous verdict
      • jury subject to a trial judge's instructions regarding the law and permissible evidence
      • also allowed the judge to discretion to over-rule the jury on a verdict that the judge deems violates the law or the evidence
      • note that this power of judge is not allowed in criminal trials, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States* the Rexamination Clause
    • prohibits any court from overruling a decision of fact by a jury
      • note that this does not mean a jury decision of guilt, which can be re-examined, than according to the rules of the common law.

    Amendment 8 [excessive bail and limits on punishments]

    [Amendment 8 overview]Eighth Amendment

    • protects against arbitrary and "excessive" bail and punishments
    • these protections are very important to civil, democratic and free society
      • as tyrannical rulers will inflict severe and excessive penalties and punishments upon political or personal enemies

    Excessive bail{{{2}}} shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflictedabusive fines and punishments

    • protects against retributive or abusive justice designed to inflict physical or financial harm beyond reasonable and legal limits
    • ⇒ protection against arbitrary rule
    • problems and limits:
      • sometimes a minimum and usually a maximum fine is set by statutory law
      • however, a judge could still impose the least or the highest punishment according to personal or political whim, which is arbitrary
      • "cruel and unusual" creates a standard which has been disputed, especially regarding capital punishment (death penalty)
      • is it "cruel" and "unusual" to put someone to death?
      • it has been generally held by the courts that capital punishment is not inherently cruel or unusual,
      • however, carrying it out in cruel or unusual ways is in violation (i.e. causing excessive pain, or carrying out the execution in a bizarre manner).

    Amendment 9 [rights not enumerated belong to the people]

    [Amendment 9 overview]Ninth Amendment

    • affirms that the rights of the people are not limited to the rights that are "enumerated," or, explicitly stated, in the Constitution
    • it may seem obvious to people today that the rights of the people extend well past those protected by the original Constitution, as well as by subsequent amendments
      • however, it remains a significant limit upon the powers of the central government
      • and affirms that the rights of the people are not derived from the government
    • the Federalists (see Hamilton No. 84) argued that this Amendment sufficed to preserve all the rights of the people
      • thereby a "bill or rights" would be unnecessary
      • additionally, he reasoned, enumerating a bill of rights would risk limiting the rights of the people to the rights listed in a bill or rights
      • subsequently, judicial review has accomplished the same, but Hamilton's warning remains cogent (logical), as the Courts can only rule on disputes in the law
      • the Ninth amendment has been rarely adjudicated (ruled on by the Courts)
      • it was invoked in by the Court in Griswold v. Connecticut (1965)

    The enumeration in the Constitution, of certain rightsenumeration of rights

    • "enumeration" ⇒ explicit listing
    • therefore ⇒ the listing of "certain rights" in the Constitution, shall not be construedconstrued
    • ⇒ interpreted, "taken to mean" to deny or disparagedeny or disparage
    • "deny" ⇒ to take away
    • "disparage" ⇒ to treat as lesser, to ignore others retained by the peopleretained by the people
    • "retained" ⇒ held, reserved for
    • so the entire sentence affirms that even though the Constitution protects certain rights of the people, all other rights not listed (enumerated) are also protected.

    Amendment 10 [powers not delegated to the Federal gov reserved to the states & the people]

    [Amendment 10 overview]Tenth Amendment

    • "retains" or holds/ reserves all powers not "delegated" (given) to the Federal government under the Constitution to the states and/or the people

    limits and problems:

    • as the Courts have expanded the delegated and implied powers of Congress, the 10th amendment has been inherently weakened
    • the 10th Amendment is rarely used to invalidate a federal law
    • however, when the Courts do limit federal powers, the 10th amendment offers powerful context
      • such as in US v. Lopez (1995) which struck down a federal law that limited 2nd amendment rights
      • the Court ruled that the law at question extended beyond a "national" interest and encroached upon a "local" interest
        • the law barred gun possession within a certain distance from a school, and the Congress justified the law based on the Commerce Clause, which the Court rescinded

    The powers not delegatednot delegated

    • i.e., powers that are not provided/extended to the federal (central) government by the Constitution to the United States by the Constitution, nor prohibited by it to the States"prohibited by it to the states"
    • the states retain all powers except those "expressly" or directly provided to the federal government in the Constitution
    • except for those powers which are explicitly "prohibited" from the states in the Constitution (such as in Article VI)* , are reserved to the States respectively, or to the people.

    Amendments XI-XVII

    Amendment 11:limits certain judicial powers (ratified Feb. 7, 1795)

    Amendment 111795:

    • clarifies / limits judicial powers regarding suits between citizens & states & foreign nations

    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

    Amendment 12: presidential election by "ticket" (ratified July 27, 1804)

    Amendment 12

    • reorganizes presidential elections
    • esp. electoral college rules for selection of the Vice President
      • the 12th amendment joins the President and Vice President candidates into a "single ticket"
      • the problem before was that in the original Constitution, the Vice President was the runner up (2nd place)
      • 1796 election: John Adams became President, while his political opponent, Thomas Jefferson became Vice President
      • 1800 election: Jefferson and his Vice Presidential candidate, Aaron Burr, won the same number of electoral college votes, which threw the election into the House of Representatives

    The Electors shall meet in their respective States and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.

    Amendment 13:abolishes slavery (ratified Dec. 6, 1865)

    Amendment 13abolishes slavery

    Section 1. Neither Slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have power to enforce this article by appropriate legislation.

    Amendment 14: equal protection & due process (ratified July 9, 1868)

    Amendment 14protects civil liberties of freed slaves

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty one years of age in such State.

    Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two thirds of each House, remove such disability.

    Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provision of this article.

    Amendment 15: right to vote for all males (freed slaves) (ratified Feb. 3, 1870)

    Amendment 15 secures right to vote for former slaves

    Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    Amendment 16: income tax (ratified Feb. 3, 1913)

    Amendment 16establishes income tax

    The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

    Amendment 17:direct election of Senators (ratified April 8, 1913)

    Amendment 17direct election of Senators

    • removes the power of state legislatures to choose senators
    • senators to be elected by "direct vote" of the people
      • i.e., by popular vote
    • clarifies the language of the original Constitution regarding Senators
    • provides power to state governors to fill Senate vacancies by temporary appointment
      • and new election of that seat to be organized by the state legislature

    The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

    When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

    Amendment 18: abolition of sale of alcohol (ratified Jan. 16, 1919)

    Amendment 18abolition of interstate sale of alcohol

    Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

    Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

    Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

    Amendment 19: right to vote for women (ratified Aug. 18, 1920)

    Amendment 19secures right to vote for women

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

    Amendment 20: presidential inauguration moved to January (ratified Jan. 23, 1933)

    Amendment 20presidential inauguration & opening of new sessions of Congress moved to January from March

    • the new President and Vice President, and newly elected Congress were set by the original Constitution to open on March 4 of the year subsequent to those elections
    • after the 1932 election, the "lame duck" (powerless) presidency of outgoing President, Hoover and the sitting Congress led to an extended period of inaction and uncertainty as the Great Depression worsened
    • the Constitution was changed to ensure quicker inauguration of the newly elected government

    Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the third day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

    Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the third day of January, unless they shall by law appoint a different day.

    Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

    Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

    Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

    Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three fourths of the several States within seven years from the date of its submission.

    Amendment 21: repeal of 18th Amendment (ratified Dec. 5, 1933)

    Amendment 21overturns 18th amendment

    Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

    Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

    Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

    Amendment 22: limit President to 2 terms (ratified Feb. 27, 1951)

    Amendment 22

    Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

    Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three fourths of the several States within seven years from the date of its submission to the States by the Congress.

    Amendment 23: electoral college representation for DC (ratified March 29, 1961)

    Amendment 23

    Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

    A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    Amendment 24: abolition of poll taxes (ratified Jan. 23, 1964)

    Amendment 24

    Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    Amendment 25: presidential removal and succession (ratified Feb. 10, 1967)

    Amendment 25

    Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

    Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

    Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

    Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

    Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

    Amendment 26:age to vote set to 18 (ratified July 1, 1971)

    Amendment 26

    Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    Amendment 27: prohibits Congressional compensation raise during same term (ratified May 7, 1992)

    Amendment 27

    No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.

    Notes & sources

    Sources

    THE FOUL-UP IN THE CORE OF THE CONSTITUTION (law.utexas.edu)]

    1. ↑ See https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264; https://mtsu.edu/first-amendment/article/801/established-churches-in-early-america
    2. ↑ see: https://constitution.congress.gov/browse/essay/amdt1_2_1/
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