United States Constitution
United States Constitution
Page one of the original copy of the Constitution
Page one of the original copy of the Constitution
Created September 17, 1787
Ratified June 21, 1788
Location National Archives,
Washington, D.C.
Authors twelve state delegations in
Philadelphia Convention
Signatories 39 of the 55 Philadelphia Convention delegates
Purpose National constitution to replace the Articles of Confederation

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.

The first three Articles of the Constitution establish the three branches of the national government: a legislature, the bicameral Congress; an executive branch led by the President; and a judicial branch headed by the Supreme Court. They also specify the powers and duties of each branch. All powers not enumerated are reserved to the respective states and the people, thereby establishing the federal system of government.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of "The People". It has been amended twenty-seven times; the first ten amendments are known as the Bill of Rights.[1][2]

The United States Constitution is the oldest written constitution (when defined as a single document) still in use by any nation in the world.[3] Parts of San Marino's Constitution are older, dating to the 1600s.[4][5] It holds a central place in United States law and political culture.[6] The handwritten original document penned by Jacob Shallus is on display at the National Archives and Records Administration in Washington, D.C.

Contents

1. History : Convention
2. Original text : three branches
3. Amendments : procedure
4. Judicial review : establishment
5. “Civic religion” : The Shrine
6. Worldwide : national Constitutions

History

First government

The Articles of Confederation and Perpetual Union were the first constitution of the United States of America.[7] The problem with the United States government under the Articles of Confederation was, in the words of George Washington, "no money".[8]

Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back.[8] Under the Articles, Congress requisitioned money from the states. But no state paid all of their requisition; Georgia paid nothing. A few states paid the U.S. an amount equal to interest on the national debt owed to their citizens, but no more.[8] Nothing was paid toward the interest on debt owed to foreign governments. By 1786 the United States was about to default on its contractual obligations when the principal came due.[8]

The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny.[9] Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates' extortion demands. The Congress had no more credit if another military crisis had required action.[8]

The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.[8]

Mobbing "committees" disrupted cities in Ma, Ct, Pa, SC[10] like Shays' Rebellion. here, Paxtons at Philadelphia

In Massachusetts during Shays' Rebellion, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteer army.[11] During the upcoming Convention, James Madison angrily questioned whether the Articles of Confederation was a “solemn compact” or even government. Connecticut had not only sent none of its requisition, it had “positively refused" to pay Confederation assessments for two years.[12]A rumor had it that a "seditious party" among the New York legislature had opened communication with the Viceroy of Canada. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.[13]

Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. By April 1786 there had been only three days out of five months with nine states present. When nine states did show up, and there was only one member of a state on the floor, then that state’s vote did not count. If a delegation were evenly divided, the division was duly noted in the Journal, but there was no vote from that state towards the procedural nine-count requirement.[14] Individual state legislatures independently laid embargoes, negotiated unilaterally abroad, provided for armies and made war, all violating the letter and the spirit of the Articles of Confederation and Perpetual Union. The Articles Congress had “virtually ceased trying to govern.”[15]

The vision of a "respectable nation" among nations seemed to be fading in the eyes of such men as Virginia’s George Washington and James Madison, New York’s Alexander Hamilton and John Jay, Pennsylvania’s Benjamin Franklin and George Clymer and Massachusetts’ Henry Knox and Rufus King. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.[16]

Convention

Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787.[17] While the resolution calling the Convention specified that its purpose was to propose amendments to the Articles, through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design.[18]

Sessions

In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.[17] The plan called on each state legislature to send delegates to a convention “’for the sole and express purpose of revising the Articles of Confederation’ in ways that, when approved by Congress and the states, would ‘render the federal constitution adequate to the exigencies of government and the preservation of the Union.’”[19]

the nationalists organize

To amend the Articles into a workable government, 74 delegates from the twelve states were named by their state legislatures; 55 showed up, and 39 eventually signed. [20] On May 3rd, eleven days early, James Madison arrived to Philadelphia and met with James Wilson of the Pennsylvania delegation to plan strategy. Madison outlined his plan in letters that (1) State legislatures each send delegates, not the Articles Congress. (2) Convention reaches agreement with signatures from every state. (3) The Articles Congress approves forwarding it to the state legislatures. (4) The state legislatures independently call one-time conventions to ratify, selecting delegates by each state’s various rules of suffrage. The Convention was to be "merely advisory" to the people voting in each state.[21]

Convening

George Washington arrived on time, Sunday, the day before scheduled opening. His participation lent his prestige to the proceedings, attracting some of the best minds in America.[22] For the entire duration of the Convention, Washington was a guest at the home of Robert Morris, Congress’ financier for the American Revolution and a Pennsylvania delegate. William Jackson, in two years to be the president of the Society of the Cincinnati, had been Morris' agent in England for a time. He won election as a non-delegate to be the Convention Secretary over Benjamin Franklin's grandson. Morris entertained among the delegates lavishly.

The convention was scheduled to open May 14, but only Pennsylvania and Virginia delegations were present. The Convention was postponed until a quorum of seven states gathered on Friday the 25th.[23]

The Philadelphia Convention
George Washington, the President of the Convention,
will later become the first President of the United States

George Washington was elected the Convention president, and Chancellor (judge) George Wythe (Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday.[24] Nathaniel Gorham (Ma) was elected Chair of the "Committee of the Whole", a parliamentary situation where individuals spoke freely, and votes could be retaken to allow for bargaining. Provisions in the draft articles were repeatedly made, reconnected and remade as the order of business proceeded. The Convention officials and procedures were in place before arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (Md).[25] By the end of May, the stage was set.

The Constitutional Convention voted to keep the debates secret so that the delegates could speak freely, negotiate, compromise and change. Both House of Commons and the colonial assemblies were secret. Debates of the Articles Congress were not reported. Yet since the proposal was for fundamental change from a confederation to a new, consolidated yet federal government, the surprise itself made Convention secrecy a major issue in the very public debates leading up to the crowd-filled ratification conventions.[26] Nevertheless, delegates continued in positions of public trust. Of those participating in the Convention, ten members would also number in the 33 chosen by their state legislatures for the Articles Congress that September.[27]

Outside the Convention in Philadelphia, there was a national convening of the Society of the Cincinnati. Washington was said to be embarrassed. The 1776 “old republican” delegates like Elbridge Gerry (Ma) found anything military or hereditary anathema. The Presbyterian Synod of Philadelphia and New York convention was meeting to redefine its Confession, dropping the faith requirement for civil authority to prohibit false worship.[28] Protestant Episcopalian Washington attended a Roman Catholic Mass and dinner.[29] Revolution veteran Jonas Phillips, of the Mikveh Israel Synagogue, petitioned the Convention to avoid a national oath for both Old and New Testaments.[30] Merchants of Providence, Rhode Island, petitioned for consideration, even though their Assembly had not sent a delegation. Congregational minister Manasseh Cutler, former Army chaplain from Massachusetts arrived into town from New York, flush with his lobbying victory during the Northwest Ordnance negotiations in the Articles Congress. He carried grants of five million acres to parcel out among The Ohio Company and “speculators”, some of whom would be found among the delegates.[31] Noah Webster staying in Philadelphia, would write a pamphlet as “A Citizen of America” in October. Immediately after the signing, "Leading Principles of the Federal Convention" advocated adoption of the Constitution. It was published much earlier and more widely circulated than today's better known Federalist Papers.[32]

Agenda

Every few days, new delegates arrived, happily noted in Madison’s Journal. But as the Convention went on, individual delegate coming and going meant that a state's vote could change with the change of delegation composition. The volatility added to the inherent difficulties, making for an “ever-present danger that the Convention might dissolve and the entire project be abandoned.”[33]

nationalist floor leaders from biggest states
most speeches, they seconded one another's motions

Although twelve states sent delegations, there were never more than eleven represented in the floor debates, often fewer. State delegations absented themselves at votes different times of day. There was no minimum for a state delegation; one would do. Daily sessions would have thirty members present. Members came and went on public and personal business. The Articles Congress was meeting at the same times so members would absent themselves to New York City on Congressional business for days and weeks at a time.[34]

But the work before them was continuous, even if attendance was not. The Convention resolved itself into a “Committee of the Whole”, and could remain so for days. It was informal, votes could be taken and retaken easily, positions could change without prejudice, and importantly, no formal quorum call was required. The nationalists were resolute. As Madison put it, the situation was too serious for despair. [35]

They used the same State House as the Declaration signers. The building setback from the street was still dignified, but the “shaky” steeple was gone. The summer was hot, but city hand-pump wells were nearby. Flies were thick and nearby building construction made the street noisy. Sessions followed the customary six-day work week. Breakfast was before sunup. The Hall was still cool at ten, but hot by noon. Delegates sweltered in the closed room for secrecy, sentries kept passers-by from under the windows. After three, Delegates usually adjourned for dinner, or escaped into the green countryside, or along miles of riverside quays for offshore breezes.[36] When they adjourned each day, they lived in nearby lodgings, as guests, roomers or renters. They ate supper with one another in town and taverns, “often enough in preparation for tomorrow’s meeting.”[37]

national plans v. federal plans
re-constitution of a republican legislature

Delegates reporting to the Convention presented their credentials to the Secretary, Major William Jackson of South Carolina. The state legislatures of the day used these occasions to say why they were sending representatives abroad. New York thus publically enjoined its members to pursue all possible “alterations and provisions” for good government and “preservation of the Union”. New Hampshire called for “timely measures to enlarge the powers of Congress”. Virginia stressed the “necessity of extending the revision of the federal system to all its defects”. [38]

On the other hand, Delaware categorically forbade any alteration of the Articles one-state, equal vote, one-vote-only provision in the Articles Congress.[39] The Convention would have a great deal of work to do to reconcile the many expectations in the chamber. At the same time, delegates wanted to finish their work by fall harvest and its commerce.[40]

Current knowledge of drafting the Constitution comes primarily from the Journal left by James Madison,[41] It can be found chronologically incorporated in “The Records of the Federal Convention of 1787”, edited by Max Farrand, available online. [42] The source documents are organized by date including those from the Convention Journal, Rufus King (Ma), and James McHenry (Md), along with later Anti-federalists Robert Yates (NY), and William Paterson (NJ). Farrand corrects errors among revisions that Madison made to his Journal while in his seventies.[43]

The Virginia Plan[41] proposed by Governor Edmund Randolph (Va) was the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. Provisions of this "Randolph Plan" including the following: (1) A bicameral legislature of a House proportioned to population and variable state representation in a Senate (2) An executive chosen by the national legislature, (3) A judiciary, with life-terms of service and vague powers, (4) The national legislature would be able to veto state laws.[44]

An alternative proposal, William Paterson's New Jersey Plan, contained proposals geared toward smaller states: (1) A unicameral national legislature with each state legislature sending an equal number to represent it, (2) An executive branch appointed by the legislature, and (3) A judicial branch appointed by the executive.[45]

Slavery in debate

The contentious issue of slavery was too controversial to be resolved during the Convention. The issue of slavery, although always an undercurrent during deliberations and side-discussions, was at center stage in the Convention three times, June 7 regarding who would vote for Congress, June 11 in debate over how to proportion relative seating in the ‘house’, and August 22 relating to commerce and the future wealth of the nation.

slavery issue in Convention:
regulation, not abolition

Eighteenth Century America had the widest franchise of any nation of the world. But it was a society of its time. Property gave a man “a stake in society, made him responsible, worthy of a voice, and with enough taxable property, eligible for office holding. Many could vote because most property was held as family farms. Though a substantial part of wealthy white America rested on slavery as property, the Convention met, not to reform society, but to create government for society as it existed. In determining who should vote, the property requirements among the states could not be reconciled. Pennsylvania, Delaware and New Hampshire were already for abolishing property requirements. To allow all states their own rules of suffrage, the Constitution was written with no property requirements. Slavery was taken out of that equation after the debate June 7. [46]

Once the Convention turned to how to proportion the House representation, tempers among several delegates exploded over slavery again. If the number of seats depended on wealth, Pierce Butler (SC) wanted to include slaves. Elbridge Gerry (Ma) answered that the South could not have it both ways, if slaves were property and to be counted for Congress, then the North could count horses and cows. The attacks turned pointedly personal. Benjamin Franklin (Pa) interrupted with a speech about dividing up Pennsylvania so state populations were more nearly equal. He took some time. No vote was taken, tempers cooled, and the three-fifths non-free population count proposed by J. Wilson (Pa) passed using the Articles Congress “federal ratio”.[47]

On August 6, the Committee of Detail reported its revisions to the Randolph Plan. A preamble was drafted. Delegates turned their thoughts to political economy that might best secure the public welfare and general happiness in the long run, for posterity. Again the question of slavery came up, and again it was met with attacks of moral outrage, relative poverty of the whites, and they were answered by appeals to local wealth by local means, and southern delegates inability to carry ratification in their states if slavery were threatened. By August 22, the delegates wove a web of mutual compromises relating to commerce and trade, north and south, port-states and landlocked, slave-holding, and free, relating to navigation laws, import taxes, population counts, national regulation of western territories and trade on the Mississippi. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only if there were national majorities for it both among the states in the 'senate' and among the people in the 'house', when it came time, then.[48] Later generations could try out their own answers. The delegates were trying to make a government that might last that long.[49]

Aiding slave escape. Freedmen in Revolutionary generation were motivated by kinship ties[50]

The Constitution’s Section 9 of Article I allowed the continued “migration” of the free or “importation” of indentures and slaves as the states chose, defining slaves as persons, not property. Article 1, section 2, provided for long-term power to flow to states with increasing population, away from those decreasing. That change would be counted in a census every ten years. Apportionment in the House of Representatives would not be by any wealth as initially allowed in the Randolph Plan. It would be representing people, the count to be made of the free citizens and other persons. [51] To the whole number of men and women, free and indentured, would be added “three-fifths” the number of “other persons”, meaning propertyless slaves and taxed Indian farming families.[52]

Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. As the date neared in 1806, President Thomas Jefferson sent a message to the House and Senate congratulating the 9th Congress on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade which was perpetrating “violations of human rights … on the unoffending inhabitants of Africa”.[53] Signed into law March 3, 1807, The "Act Prohibiting Importation of Slaves" took effect the fist instant the Constitution allowed, January 1, 1808. The United States would join the British Parliament, that year in the first “international humanitarian campaign”.[54]

Just as the abolitionist George Mason refused to sign the Constitution, in the ratification conventions of Massachusetts and Virginia, the anti-slavery delegates began as anti-ratification votes. Still, the Constitution "as written" was an improvement over the Articles from an abolitionist point of view. In the Massachusetts Ratification Convention, Federalist anti-slavery delegate Isaac Backus confronted abolitionist Anti-Federalist Thomas Dawes. Trying to gain his support for adoption, he reasoned that the Constitution provided for abolition of the slave trade but the Articles did not. Sometimes those opposed to slavery were persuaded that the evils of a broken Union would bring worse consequences than allowing the fate of slavery to be determined gradually over time. [55] Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia’s Ratification Convention, Federalist George Nicholas dismissed fears on both sides. Objections to the Constitution were inconsistent, “At the same moment it is opposed for being promotive and destructive of slavery!” [56] But the contradiction was never resolved peaceably, and the failure to do so contributed to the Civil War.[57]

"Great Compromise"

Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention.[58] Arriving right behind the nationalist leaders on May 30, Sherman was reported to prefer a “patch up” of the existing Confederacy.[59] Another small state delegate, George Read (DE) agreed with the nationalists that state legislatures were a national problem. But rather than see larger states overshadow the small, he’d prefer to see all state boundaries erased. Big-state versus small-state antagonisms hardened early.[60]

On June 11, Roger Sherman proposed his first version of the Convention’s “Great Compromise”. It was like the proposal he made in the 1776 Continental Congress. Representation in Congress should be both by states and by population. There, he was voted down by the small states in favor of all states equal, one vote only.[61] Now in 1787 Convention, he wanted to balance all the big-state victories for population apportionment. He proposed that in the second ‘senate’ branch of the legislature, each state should be equal, one vote and no more.[62] Sherman argued that the bicameral British Parliament had a House of Lords equal with the House of Commons to protect their propertied interests apart from the people. He was voted down, this time by the big states.[63] The motion for equal state representation in a ‘senate’ failed: 6 against, 5 for.[64]

"men of original principles"
equality of the states

Friday, June 15 Paterson introduced his New Jersey Plan. The “old patriots” of 1776 and the “men of original principles” had organized.[65] Roger Sherman (Ct), a signer of the Declaration of Independence, was with them. John Lansing (NY) observed that the Paterson Plan “sustained the sovereignty of the states”, while that of Mr. Randolph destroyed state sovereignty in a national, consolidated government. William Paterson (NJ) attacked the nationalists. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. James Wilson (PA) answered, The Convention could not conclude anything, but it could recommend anything.[66]

Lansing (NY) had objected that if the New York legislature knew anything about proposals for consolidated government, it would not have sent anyone. Edmund Randolph (Va) countered, With the salvation of the American republic at stake, it would be treason to withhold any proposal believed necessary for good government and the Union.[67] Three sessions after its introduction, Paterson’s plan was off the table. It failed : 7 against, 3 for, 1 divided.[68] For nearly a month there was no progress; small states were seriously thinking of walking out of the Convention.[69]

In a related resolution, the "original principles" men won a victory on June 25. The ‘senate’ would be chosen by the state legislatures, not the people, passed: 9 for, 2 against. [70] On June 27, the basis of representation for both the ‘house’ and the ‘senate’ re-surfaced. Roger Sherman (Ct) tried a second time to get his idea for a ‘house’ on the basis of population and a ‘senate’ on an equal states basis. The big state delegates beat him again. The 'house' would be chosen directly by the population voting. On the motion for equal state representation in the 'senate', the majority simply adjourned “before a determination was taken in the House.” [71] Luther Martin (Md) insisted that he would rather live under a regional government than submit to a United States under the Randolph Plan.[72]

Sherman’s proposal came again two days later for the third time from Oliver Ellsworth (CT). In the ‘senate’, the states should have equal representation. If this cannot be agreed to, somehow, the union of states would end up separated. Wilson (Pa) countered, the purpose of population apportionment was not to make big states powerful, it was to “tear down a rotten house” of equal state representation.[73] Gunning Bedford (DE) spoke hotly, “I do not, gentlemen, trust you.” If the equal-state principle was lost, the small states could confederate with a foreign power showing “more good faith”. Elbridge Gerry (MA) warned, If the states cannot unite themselves, being conquered by “some foreign sword will probably do the work for us”.[74] On June 29, the majority running things, the Convention adjourned “before a determination was taken in the House.” on the question of equal state representation.[75]

On July 2, the Convention for the fourth time considered a ‘senate’ with equal state votes. This time a vote was taken, but it stalled again, tied at 5 yes, 5 no, 1 divided. The Convention elected one delegate from each state onto a Committee to make a proposal; it reported July 5.[76] Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest.[77] No direct vote on the basis of ‘senate’ representation was pushed on the floor for another week.

But the first new ‘house’ seat apportionment was agreed, balancing big and small, north and south. The big states got a decennial census for 'house' apportionment to reflect their future growth. Northerners had insisted on counting only free citizens for the ‘house’; southern delegations wanted to add property. Benjamin Franklin's compromise was that there would be no “property” provision to add representatives, but states with large slave populations would get a bonus added to their free persons by counting three-fifths other persons.[78]

On July 16, Sherman’s “Great Compromise” prevailed on its fifth try. Every state was to have equal numbers in the United States Senate.[79] Washington ruled it passed on the vote 5 yes, 4 no, 1 divided, using precedent established in the Convention earlier.[80] Now some of the big-state delegates talked of walking out, but none did. Debate over the next ten days developed an agreed general outline for the Constitution.[81] Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan.[82]

Two new branches

The Constitution innovated two branches of government that were not a part of the U.S. government during the Articles of Confederation. Previously, a thirteen member committee had been left behind when Congress adjourned to carry out the "executive" functions. Suits between states were referred to the Articles Congress, and treated as a private bill to be determined by majority vote of members attending that day.

President, the national "chief magistrate"

On June 7, the “national executive” was taken up in Convention. The “chief magistrate”, or ‘presidency’ was of serious concern for a formerly colonial people fearful of concentrated power in one person. But to secure a "vigorous executive", nationalist delegates such as James Wilson (Pa), Charles Pinckney (SC), and John Dickenson (De) favored a single officer. They had someone in mind whom everyone could trust to start off the new system, George Washington.

After introducing the item for discussion, there was a prolonged silence. Benjamin Franklin (Pa) and John Rutledge (SC) had urged everyone to speak their minds freely. When addressing the issue with George Washington in the room, delegates were careful to phrase their objections to potential offenses by officers chosen in the future who would be 'president' "subsequent" to the start-up. Roger Sherman (Ct), Edmund Randolph (Va) and Pierce Butler[83] (SC) all objected, preferring two or three persons in the executive, as had the ancient Roman Republic.

Nathaniel Gorham was Chair of the Committee of the Whole. The vote for a one-man ‘presidency’ carried 7-for, 3-against, New York, Delaware and Maryland in the negative. George Washington, sitting in the Virginia delegation, voted yes. With that vote for a single ‘presidency’, George Mason (Va) gravely considered the Confederation’s “federal government as in some measure dissolved by the meeting of this Convention.” [84]

Judiciary, the national court(s)

The Convention was following the Randolph Plan, taking each resolve in turn when it moved forward. They returned to items when overnight coalitions required adjustment to previous votes to secure a majority on the next item of business. June 19, the Ninth Resolve on the national court system, and the nationalist proposal for the inferior (lower) courts.

Pure 1776 republicanism had not given much credit to judges, who would set themselves up apart from and sometimes contradicting the state legislature, the voice of the sovereign people. Under the precedent of English Common Law according to William Blackstone, the legislature, following proper procedure, was for all constitutional purposes, “the people.” This dismissal of unelected officers sometimes took an unintended turn among the people. One of John Adams clients believed the First Continental Congress in 1775 had assumed the sovereignty of Parliament, and so abolished all previously established courts in Massachusetts.[85]

In the Convention, looking at a national system, Judge Wilson (Pa) sought appointments by a single person to avoid legislative payoffs. Judge Rutledge (SC) was against anything but one national court, a Supreme Court to receive appeals from the highest state courts, like the South Carolina court he presided over as Chancellor. Rufus King (Ma) thought national district courts in each state would cost less than appeals that otherwise would go to the ‘supreme court’ in the national capital. National inferior courts passed but making appointments by ‘congress’ was crossed out and left blank so the delegates could take it up later after “maturer reflection.” [86]

Re-allocate power

The Constitutional Convention created a new, unprecedented form of government by reallocating powers of government. Every previous national authority had been either a centralized government, or a “confederation of sovereign constituent states.” The American power-sharing was unique at the time. The sources and changes of power were up to the states. The foundations of government and extent of power came from both national and state sources. But the new government would have a national operation. [87] To meet their goals of cementing the Union and securing citizen rights, Framers allocated power among executive, senate, house and judiciary of the central government. But each and every state government in their variety continued exercising powers in their own sphere.[88]

Increase Congress

The Convention did not start with national powers from scratch, it began with the powers already vested in the Articles Congress with control of the military, international relations and commerce.[89] The Constitution added ten more. Five were minor relative to power sharing, including business and manufacturing protections.[90] One important new power authorized Congress to protect states from the “domestic violence” of riot and civil disorder, but it was conditioned by a state request. [91]

The Constitution increased Congressional power to organize, arm and discipline the state militias, to use them to enforce the laws of Congress, suppress rebellions within the states and repel invasions. But the Second Amendment would ensure that Congressional power could not be used to disarm state militias.[92]

Taxation substantially increased the power of Congress relative to the states. It was limited by restrictions, forbidding taxes on exports, per capita taxes, requiring import duties to be uniform and that taxes be applied to paying U.S. debt. But the states were stripped of their ability to levy taxes on imports, which was at the time, “by far the most bountiful source of tax revenues”.

Congress had no further restrictions relating to political economy. It could institute protective tariffs, for instance. Congress overshadowed state power regulating interstate commerce; the United States would be the “largest area of free trade in the world.” [93] The most undefined grant of power was the power to “make laws which shall be necessary and proper for carrying into execution” the Constitution’s enumerated powers.[94]

Limit governments

As of ratification, sovereignty was no longer to be theoretically indivisible. With a wide variety of specific powers among different branches of national governments and thirteen republican state governments, now "each of the portions of powers delegated to the one or to the other … is … sovereign with regard to its proper objects".[95] There were some powers that remained beyond the reach of both national powers and state powers,[96] so the logical seat of American “sovereignty” belonged directly with the people-voters of each state.[97]

Besides expanding Congressional power, the Constitution limited states and central government. Six limits on the national government addressed property rights such as slavery and taxes.[98] Six protected liberty such as prohibiting ex post facto laws and no religious tests for national offices in any state, even if they had them for state offices.[99] Five were principles of a republic, as in legislative appropriation.[100] These restrictions lacked systematic organization, but all constitutional prohibitions were practices that the British Parliament had “legitimately taken in the absence of a specific denial of the authority.” [101]

The regulation of state power presented a “qualitatively different” undertaking. In the state constitutions, the people did not enumerate powers. They gave their representatives every right and authority not explicitly reserved to themselves. The Constitution extended the limits that the states had previously imposed upon themselves under the Articles of Confederation, forbidding taxes on imports and disallowing treaties among themselves, for example.[102]

In light of the repeated abuses by ex post facto laws passed by the state legislatures, 1783-1787, the Constitution prohibited ex post facto laws and bills of attainder to protect United States citizen property rights and right to a fair trial. Congressional power of the purse was protected by forbidding taxes or restraint on interstate commerce and foreign trade. States could make no law “impairing the obligation of contracts.”[103] To check future state abuses the framers searched for a way to review and veto state laws harming the national welfare or citizen rights. They rejected proposals for Congressional veto of state laws and gave the Supreme Court appellate case jurisdiction over state law because the Constitution is the supreme law of the land.[104] The United States had such a geographical extent that it could only be safely governed using a combination of republics. Federal judicial districts would follow those state lines.[105]

Population power

The British had relied upon a concept of “virtual representation” to give legitimacy to their House of Commons. It was not necessary to elect anyone from a large port city, or the American colonies, because the representatives of “rotten boroughs”, the mostly abandoned medieval fair towns with twenty voters, "virtually represented" thriving mercantile ports such as Birmingham’s tens of thousands. Philadelphia in the colonies was second in population only to London.[106]

They were all Englishmen, supposed to be a single people, with one definable interest. Legitimacy came from membership in Parliament of the sovereign realm, not elections from people. As Blackstone explained, the Member is “not bound … to consult with, or take the advice, of his constituents.” As Constitutional historian Gordon Wood elaborated, “The Commons of England contained all of the people’s power and were considered to be the very persons of the people they represented.” [107]

While the English “virtual representation” was hardening into a theory of Parliamentary sovereignty, the American theory of representation was moving towards a theory of sovereignty of the people. In their new constitutions written since 1776, Americans required community residency of voters and representatives, expanded suffrage, and equalized populations in voting districts. There was a sense that representation “had to be proportioned to the population.” [108] The Convention would apply the new principle of "sovereignty of the people" both to the House of Representatives, and to the United States Senate.

House changes. Once the Great Compromise was reached, delegates in Convention then agreed to a decennial census to count the population. The Americans themselves did not allow for universal suffrage for all adults.[109] Their sort of "virtual representation" said that those voting in a community could understand and themselves represent non-voters when they had like interests that were unlike other political communities. There were enough differences among people in different American communities for those differences to have a meaningful social and economic reality. Thus New England colonial legislatures would not tax communities which had not yet elected representatives. When the royal governor of Georgia refused to allow representation to be seated from four new counties, the legislature refused to tax them.[110]

The 1776 Americans had begun to demand expansion of the franchise, and in each step, they found themselves pressing towards a philosophical “actuality of consent.” [111] The Convention determined that the power of the people, should be felt in the House of Representatives. Regardless of state heritage, militias or amassed wealth they would be counted, increasing and decreasing in their state communities. They would be counted by populations[112] every ten years, the decennial census.

Senate changes. The Convention found that it was harder trying to give expression to the will of the people in new states. Virginia Resolves ‘ten’ was agreed to without dissent, “that provision ought to be made for the admission of States lawfully arising within the limits of the United States.” Then the debate began as to what state, if any, might be “lawfully arising” states outside the boundaries of the existing confederated thirteen states. [113]

new states or provinces forever
for the people moving into new territory

The new government was like the old, to be made up of pre-existing states. Now there was to be admission of new states. Regular order would provide new states by state legislatures for Kentucky out of Virginia, Tennessee from North Carolina, Maine of Massachusetts. But the Articles Congress by its Northwest Ordnance presented the Convention another issue by its promise to settlers in the Northwest Territory. Land was sold to them by contract, they were to have all rights of U.S. citizenship, and they might one day constitute themselves into “no more than five” states. More difficult still, most delegates anticipated adding alien peoples of Canada, Louisiana and Florida to United States territory.[114]

G. Morris (Pa) was reluctant to expand into any so “remote wilderness”, it would retard the commercial development of the east. Western peoples were the least desirable, least governable he knew. He would bar them from statehood forever, make them into perpetual provinces. He did not have the votes in Convention, but he made it possible in the future by giving Congress power to regulate and dispose of U.S. territory or other property.[115] For Elbridge Gerry (Ma), any new unknown states could be a majority in the Senate when they outnumbered the original thirteen states, and that would be intolerable. They would feel their power and abuse it, they would “enslave” the original thirteen. They would come “under some foreign influence” like the Spanish funded the Creek Indians to attack the east, and the British funded the Iroquois. “Foreign gold” would corrupt their state legislatures.

On his return home, Luther Martin (Md) argued that westerners could not reasonably tolerate suffering under the dominance of eastern states. They would be justified in civil war to “shake off so ignominious a yoke.” G. Morris (Pa) had it that if they were allowed to be states, westerners would drag the country into an inevitable war with Spain for the Mississippi River, involving the whole continent. [116] These were poor people. How could they pay their fair share of taxes to the Union, or even pay for their own militia to defend against Amerindian nations? Were there to be so many western states that these poor and ignorant would outvote the eastern maritime states in the Senate? The east needed a way to protect its own interest, Nathaniel Gorham (Ma) suggested giving out representation to the west only as it suited the east. George Clymer (Pa), an “old patriot” of ’76, thought the whole western state idea was “suicide” for the original states. [117] Roger Sherman (Ct) countered that the people of the west would be “our children and our grandchildren.” Elbridge Gerry (Ma) retorted some of those grandchildren would be left behind, and they had interests too. There were so many foreigners moving out west, it could not be certain how things would turn out. [118]

East-west jealousies were very much alive in the Convention. Delegates knew of them and benefitted from them. In Pennsylvania, Virginia and the Carolinas, state legislatures enshrined inequality of east-west representation in their state constitutions. Massachusetts and New York had in their past. [119] Virginia's Thomas Jefferson, absent the Convention, would complain that it took 15 voting men west of the Blue Ridge Mountains to equal one man east. Representative pportionment for states with a western “back-country” was a mix of population, voters and property. That status quo was captured in the original Randolph Plan for apportionment by “population or property” for both the ‘house’ and the ‘senate’. Instead, the Convention chose a formula for representing people as in a democracy.</ref> The demographic world of the states was changing underfoot. Populations were rapidly deploying west in such numbers, that delegates from Rhode Island and Massachusetts complained of the persistent interest in westward expansion. [120]

But in the light of the debate over new states from western territories, delegates had pause over the number agreed to for House representation, 40,000 might be too small, too easy for the westerners. “States” had been declared out west already. They called themselves republics, and set up their own courts directly from the people without colonial charters from the sovereign states. In Transylvania, Westsylvania, Franklin, Vandalia, “legislatures” met with emissaries from British and Spanish Empires in violation of the Articles of Confederation, just as the sovereign states had done. Luther Martin (Md) stopped that claim by ensuring that the United States owned all the backlands ceded by the states.[121] He was successful in delivering a provision in the final draft of the Constitution, no majorities in Congress could break up the larger states without their consent.[122]

James Wilson (Pa) had no fear of western states achieving a majority one day. The majority should rule. The British were jealous of our growth, and sought to curb it. That brought our hate, then our separation. If we follow the same rule, we will get the same results. Congress has never been able to discover a better rule than majority rule. Madison (Va) was of the “firm opinion” that there could be no discrimination against the west. And as they grow, all their trade goes by New Orleans. Imposts will more surely be collected there. Until then, they must get all their supplies from eastern businesses. Character is not determined by points of a compass. States admitted are equals, they will be made up of our brethren. George Mason (Va) reasoned that we must commit to right principles, even if the right way one day benefits other states. They will be free like ourselves, their pride will not allow anything but equality. [123] It was at this time in the Convention that Reverend Manasseh Cutler arrived to lobby for what he had won in the Articles Congress. He has secured guaranteed protection of contracts in western land sales. He brought acres of land grants to parcel out. Their sales would fund most of the U.S. government expenditures for its first few decades. There were allocations for the Ohio Company stockholders at the Convention, and for others delegates too. In December, 1787, good to his word, Cutler led a small band of pioneers into the Ohio Valley.[124]

The provision for admitting new states became relevant at the purchase of Louisiana It was constitutionally justifiable under the "Treaty Making" power of the Federal government. The agrarian advocates sought to make the purchase of land that had never been administered, conquered, or formally ceded to any of the original thirteen states. Jefferson’s Democratic-Republicans would divide the Louisiana Purchase into states, speeding land sales to finance the Federal government with no new taxes. There would be no war for the possession of the Mississippi River. The new populations of new states would swamp the commercial states in the Senate. They would populate the House with egalitarian Democrat-Republicans to overthrow the Federalists.[125] Jefferson dropped the proposal of Constitutional Amendment to permit the Purchase, and with it, his notion of a confederation of sovereign states.[126]

Ratification and beginning

On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin. Franklin urged unanimity, although the Convention had decided only nine state ratification conventions were needed to inaugurate the new government. The Convention submitted the Constitution to the Congress of the Confederation.[44]

ratification conventions in the states
more nearly "the people"

Massachusetts’s Rufus King assessed the Convention as a creature of the states, independent of the Articles Congress, submitting its proposal to Congress only to satisfy forms. Though amendments were debated, they were all defeated. On September 28, 1787, the Articles Congress resolved “unanimously” to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure.[127] Several states enlarged the numbers qualified just for electing ratification delegates. In doing so, they went beyond the Constitution's provision for the most voters for the state legislature to make a new social contract among, more nearly than ever before, "We, the people".[128]

Following Massachusetts's lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments.[129] A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s Luther Martin argued that the federal convention had exceeded its authority; he still called for amending the Articles.[130] Article 13 of the Articles of Confederation stated that the union created under the Articles was "perpetual" and that any alteration must be "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State".[131]

However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s John Lansing, Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution “as it was”, seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. New York Anti’s “circular letter” was sent to each state legislature proposing a second constitutional convention for "amendments before". It failed in the state legislatures. Ultimately only North Carolina and Rhode Island would wait for amendments from Congress before ratifying.[129]

Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect for the participating states.[1] After a year had passed in state-by-state ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March, [132] and on March 4, 1789, the government duly began operations.

Washington’s Oath of office. All was precedent,
from the inauguration to serving two terms.

George Washington had earlier been reluctant to go the Convention for fear the states “with their darling sovereignties” could not be overcome.[133] But he was elected the Constitution's President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist Patrick Henry.[134] The new Congress was a triumph for the Federalists. The Senate of eleven states would be 20 Federalists to two Virginia (Henry) Anti-federalists. The House would seat 48 Federalists to 11 Antis from only four states: Massachusetts, New York, Virginia and South Carolina.[135]

Antis' fears of personal oppression by Congress were allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments became known as the Bill of Rights. [136] Objections to a potentially remote federal judiciary were reconciled with 13 federal courts (11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South.[137] Suspicion of a powerful federal executive was answered by Washington’s cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and Thomas Jefferson as Secretary of State.[138][139]

What Constitutional historian Pauline Maier calls a national “dialogue between power and liberty” had begun anew. [140]

Historical influences

Fundamental law

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

rule of law by Enlightenment and Common Law

The due process clause of the Constitution was partly based on common law stretching back to Magna Carta (1215).[44] The document established the principle that the Crown's powers could be limited.

The "law of the land" was the King in Parliament of Lords and Commons. The once sovereign King was to be bound by law. Magna Carta as "sacred text" would become a foundation of English liberty against arbitrary power wielded by a tyrant.

Both the influence of Edward Coke and William Blackstone were evident at the Convention.

In his Institutes of the Laws of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects of the Crown equally. Coke extended this principle overseas to colonists. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England.

William Blackstone saw the Parliament as legislature, the representative of the people, and so sovereign over judges in equity law. In his "Commentaries on the Laws of England" discussing cases, where ruling judges provided no rationale, he wrote one so as to connect and relate law and cases to one another in a way that had not been done so extensively before. "Commentaries" were the most influential books on law in the new republic among both lawyers generally and judges.

The most important influence from the European continent was from Enlightenment thinkers John Locke and the brilliant Montesquieu.

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

Montesquieu, emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius's 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic.) In his "The Spirit of the Laws", Montesquieu argues that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial. The actuating spring driving an aristocracy is excellence and honor, the despot requires compliance and fear. In a democracy the activating spring is public virtue,

Division of power in a republic was informed by the British experience with mixed government, as well as study of republics ancient and modern. A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams. The experiences among the thirteen states after 1776 was remarkably different among those which had been charter, proprietary newly created royal colonies.

Native Americans

The Iroquois nations' political confederacy and democratic government have been credited as influences on the Articles of Confederation and the United States Constitution.[141][142] Historians debate how much the colonists borrowed from existing Native American models of government. But several founding fathers had contact with Native American leaders and had learned about their styles of government.

The Iroquois Confederation could not be overlooked. They were “the most powerful Indian group on the continent.” Their government did not always work perfectly, unanimously, but they were once secure within their territory, and had been “nearly invincible” to outsiders over the lifetime of the Convention delegates.[143]

Prominent figures such as Thomas Jefferson in colonial Virginia and Benjamin Franklin in colonial Pennsylvania were involved with leaders of the New York-based Iroquois Confederacy. The English needed allies to check expanding French networks. Both Virginia and Pennsylvania colonial claims extended north and west to Iroquois territory. The English could not expand without somehow bridging the cultural differences antagonizing their Amerindian neighbors.

This concern extended the length of the English settlement, and it motived study of Amerindian culture and governance. John Rutledge of South Carolina in particular is said to have read lengthy tracts of Iroquoian law to the other framers in Convention, beginning with the words, "We, the people, to form a union, to establish peace, equity, and order..."[144]

Even in the 1750s and at the Albany Congress, Benjamin Franklin had seen that no single English colony could effectively deal with Amerindian tribes or expand against the ever-present French. Franklin argued that there should be some sort of diplomatic and self-defense concert among the British colonies. “If the Iroquois could form a powerful union … some kind of union ought not to be beyond the capacity of a dozen English colonies.”[145]

Pontiac Odawa "Giving a talk"
In negotiations, gift-giving
for Amerindians, lessened the giver,
for Europeans, subordinated the receiver.

The delegates meeting at Albany were unable to align the independent assemblies that they represented. But seeing the dangers before them, they made recommendations outside proper channels, going over the heads of the colonial legislatures. The Albany Congress went directly to the sovereign Parliament. In this they exceeded their authority, “like those who met at Philadelphia in 1787 would,” when the Constitutional Convention bypassed the independent state legislatures and appealed directly to the sovereign people.[146]

The Iroquois experience with confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive control over the constituent members. This decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from “too much democracy,” among their national parts. Their long term welfare suffered at the hands of French and English intrigues fostered among each separate Iroquois nation.[147]

The new United States faced a diplomatic and military world inhabited by the same Europeans. During the Articles period, individual states had been making separate agreements with European and Amerindian foreign nations apart from Congress. Without the Convention's central government, the framer's feared that the fate of the confederated Articles United States would be the same as the Iroquois Confederacy.

But in its experiment of national self-governance, the Convention relied on past and present. The Constitution used Iroquois and Greek forms of government, Roman and English Common Law, philosophies of republics and the Enlightenment. To commemorate the contribution of Iroquois forms of government to American fundamental law, in October 1988, the U.S. Congress passed Concurrent Resolution 331 to recognize the influence of the Iroquois Constitution upon the U.S. Constitution and Bill of Rights.[148]

Bills of rights before

The United States Bill of Rights consists of the ten amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.[149] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Original text

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

Authority and purpose

opening phrase
inspires friends, provokes opponents.
virtual tour online[150]
We the People of the United States,
in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our Posterity,

do ordain and establish this Constitution for the United States of America.

—United States Constitution, Preamble

National government

Legislature

19th Century Growth - government housing its branches

Article One describes the Congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the House of Representatives and the Senate.

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

Article I, Section 1, reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This provision gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.

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

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

Article I Section 9 provides a list of eight specific limits on congressional power and Article I Section 10 limits the rights of the states.

The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the United States Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had "[t]he foregoing powers and all other powers..."

Executive

Section analysis Section 1 creates the presidency. The section states that the executive power is vested in a President. The presidential term is four years and the Vice President serves the identical term. This section originally set the method of electing the President and Vice President, but this method has been superseded by the Twelfth Amendment.

  • Qualifications. The President must be a natural born citizen of the United States, at least 35 years old and a resident of the United States for at least 14 years. An obsolete part of this clause provides that instead of being a natural born citizen, a person may be a citizen at the time of the adoption of the Constitution. The reason for this clause was to extend eligibility to Citizens of the United States at the time of the adoption of the Constitution, regardless of their place of birth, who were born under the allegiance of a foreign sovereign before the founding of the United States. Without this clause, no one would have been eligible to be president until thirty-five years after the founding of the United States.
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  • Succession. Section 1 specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns. The original text ("the same shall devolve") left it unclear whether this succession was intended to be on an acting basis (merely taking on the powers of the office) or permanent (assuming the Presidency itself). After the death of William Henry Harrison, John Tyler set the precedent that the succession was permanent; this practice was followed when later presidents died in office. Today the 25th Amendment states that the Vice President becomes President upon the death or disability of the President.
  • Pay. The President receives "Compensation" for being the president, and this compensation may not be increased or decreased during the president's term in office. The president may not receive other compensation from either the United States or any of the individual states.
  • Oath of office. The final clause creates the presidential oath to preserve, protect, and defend the Constitution.

Section 2 grants substantive powers to the president:

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

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

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

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

  • The president reports on the state of the union.
  • The president may convene either house, or both houses, of Congress.
  • When the two houses of Congress cannot agree on the time of adjournment, the president may adjourn them to some future date.

Section 3 adds:

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

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

Judiciary

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

Federal relationships

The States

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


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Original text of the Constitution
Preamble

Articles of the Constitution
I · II · III · IV · V · VI · VII

Amendments to the Constitution
Bill of Rights
I · II · III · IV · V
VI · VII · VIII · IX · X

Subsequent Amendments
XI · XII · XIII · XIV · XV
XVI · XVII · XVIII · XIX · XX
XXI · XXII · XXIII · XXIV · XXV
XXVI · XXVII
Unratified Amendments
I(1) · XIII(1) · XIII(2) · XX(1) · XXVII(1) · XXVII(2)


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

Amendments

An amendment may be ratified in three ways:

  • The new amendment may be approved by two-thirds of both houses of Congress, then sent to the states for approval.
  • Two-thirds of the state legislatures may apply to Congress for a constitutional convention to consider amendments, which are then sent to the states for approval.
  • Congress may require ratification by special convention. The convention method has been used only once, to approve the 21st Amendment (repealing prohibition, 1933).

Regardless of the method of proposing an amendment, final ratification requires approval by three-fourths of the states.

Today Article Five places only one limit on the amending power: no amendment may deprive a state of equal representation in the Senate without that state's consent. The original Article V included other limits on the amending power regarding slavery and taxation; however, these limits expired in 1808.

Central government

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

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

Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose, and it would only apply to those states that ratified it.[18] (See above Drafting and ratification requirements.)

Amendments

Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The next session of a regularly elected assembly could do the same. This was not the “fundamental law” the founders such as James Madison had in mind.

Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment. Between the options for changing the “supreme law of the land”, too easy by the states, and too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states.

Procedure

Three steps to
Amendments

Changing the “fundamental law” is a two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call a constitutional convention to propose an amendment, then to be ratified by the states.

To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. Over 10,000 constitutional amendments have been introduced in Congress since 1789; during the last several decades, between 100 and 200 have been offered in a typical congressional year. Most of these ideas never leave Congressional committee, and of those reported to the floor for a vote, far fewer get proposed by Congress to the states for ratification.[151]

In the first step, the proposed Amendment must find a national super majority of 67% in Congress, both House (people) and Senate (states). The second step requires a super-super 75% majority of the states ratifying, representing a majority of the people in the states ratifying. Congress determines whether the state legislatures or special state conventions ratify the amendment.[152]

On attaining Constitutional ratification of the proposal by three-fourths of the states, at that instant, the “fundamental law” for the United States of America is expressed in that Amendment. It is operative without any additional agency. Although the Founders considered alternatives, no signature is required from the President. Congress does not have to re-enact. The Supreme Court does not have to deliberate. There is no delay from a panel of lawyers to re-draft and re-balance the entire Constitution incorporating the new wording. The Amendment, with the last required state ratifying, is the “supreme law of the land.

Unlike amendments to most constitutions, amendments to the United States Constitution are appended to the body of the text without altering or removing what already exists. Newer text is given precedence.[153] Subsequent printed editions of the Constitution may line through the superseded passages with a note referencing the Amendment. Notes often cite applicable Supreme Court rulings incorporating the new fundamental law into American jurisprudence, when the first precedent was given, and in what way the earlier provisions were found void.

Over the last thirty years, there have been a few proposals for amendments in mainstream political debate. These include the Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. Another may be repeal of the 17th Amendment, restoring selection of U.S. Senators to state legislatures.

Successful

The Constitution has twenty-seven amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously by 1791. The next seventeen were ratified separately over the next two centuries.

"Bill of Rights"

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

The Federalist Papers argued that amendments were not necessary to adopt the Constitution. But without the promise in their ratification conventions, Massachusetts, Virginia and New York could not have joined the Union as early as 1789. James Madison, true to his word, managed the proposed amendments through the new House of Representatives in its first session. The amendments that became the Bill of Rights were ten proposals of the twelve that Congress sent out to the states in 1789.[154]

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

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

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

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

Individual rights

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

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

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

Protecting the accused. The Fourth Amendment guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.
The Fifth Amendment forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment, otherwise known as the Miranda rights after the Supreme Court case. It also prohibits government from taking private property for public use without "just compensation", the basis of eminent domain in the United States.
The Seventh Amendment assures trial by jury in civil cases.
Restraining the judges. The Sixth Amendment guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
The Eighth Amendment forbids excessive bail or fines, and cruel and unusual punishment.
Congress nor States

In 1789, future Federal-state relations were uncertain. To begin, the States in their militias were not about to be disarmed. And, if Congress wanted a standing army, Congress would have to pay for it, not “quarter” soldiers at state citizen expense. The people always have all their inalienable rights, even if they are not all listed in government documents. If Congress wanted more power, it would have to ask for it from the people in the states. And if the Constitution did not say something was for Congress to do, then the States have the power to do it without asking.

Potential military coercion

The Second Amendment guarantees the right of adult men in state militias to keep their own weapons apart from state-run arsenals.[155] Once the new Constitution began government, states petitioned Congress to propose amendments including militia protections. New Hampshire’s proposal for amendment was, “Congress shall never disarm any citizen unless such as are or have been in actual rebellion.” New York proposed, “… a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free State.” [156] Over time, this amendment has been expanded by the courts to individual rights, including their overturning state legislation regulating hand guns.

Applying the Second Amendment only to the Federal government, and not to the states, persisted for much of the nation's early history. It was sustained in United States v. Cruikshank (1876) to support disarming African-Americans holding arms in self-defense from Klansmen in Louisiana. The Supreme Court held, citizens must “look for their protection against any violation by their fellow-citizens from the state, rather than the national, government.” Federal protection of an individual interfering with the state’s right to disarm any of its citizens came in Presser v. Illinois (1886). The Supreme Court ruled the citizens were members of the federal militia, as were “all citizens capable of bearing arms.” A state cannot “disable the people from performing their duty to the General Government”. The Court was harking back to the language establishing a federal militia in 1792.[157]

In 1939, the Supreme Court returned to a consideration of militia. In U.S. v. Miller, the Court addressed the enforceability of the National Firearms Act of 1934 prohibiting a short-barreled shotgun. Held in the days of Bonnie Parker and Clyde Barrow, this ruling referenced units of well equipped, drilled militia, the Founders “trainbands”, the modern military Reserves.[158] It did not address the tradition of an unorganized militia. Twentieth century instances have been rare but Professor Stanford Levinson has observed consistency requires giving the Second Amendment the same dignity of the First, Fourth, Ninth and Tenth.[159]

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

The Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The states had suffered during the Revolution following the British Crown confiscating their militia's arms stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorically asked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationed in every house?” [160] The only existing case law directly regarding this amendment is a lower court decision in the case of Engblom v. Carey.[161] However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court's holding that the constitution protects the right to personal privacy.

Constitutional relationships

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

Subsequent

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

Citizen rights

Several of the amendments have more than one application, but five amendments have concerned citizen rights. American citizens are free. There will be equal protection under the law for all. Men vote, women vote, DC residents vote,[162] and 18-year olds vote.

The Thirteenth Amendment(1865) abolishes slavery and authorizes Congress to enforce abolition. The Fourteenth Amendment(1868) in part, defines a set of guarantees for United States citizenship. Fifteenth Amendment(1870) prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. The Nineteenth Amendment(1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. The Twenty-third Amendment(1961) grants presidential electors to the District of Columbia. The Twenty-sixth Amendment(1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greaterto vote on account of their age.

Three branches

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

Congress will begin in January, not March. It can tax income. It cannot raise its own pay before re-election.

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

The Presidency has had four amendments regulating the office. The President will be chosen by name, not selected from a pool. The President is succeeded by the Vice President without a special election. The President is limited to two terms. Presidential succession is through the Vice President, elected officers of the Congress, then executive Cabinet.

The Twelfth Amendment (1804) changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. The Twentieth Amendment (1933) in part, changes details of presidential terms and of presidential succession. The Twenty-second Amendment (1951) gives the president Limits of two terms. The Twenty-fifth Amendment (1967) changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.

The Judiciary has one amendment effecting its jurisdiction. The Eleventh Amendment (1795) in part, clarifies judicial power over foreign nationals.

States and abuses

State citizens. The states have been protected from their citizens by a Constitutional Amendment. Citizens are limited when suing their states in Federal Court. The Eleventh Amendment (1795) in part, limits ability of citizens to sue states in federal courts and under federal law.

Most states. All states have been required to conform to the others when those delegations in Congress could accumulate super-majorities in the U.S. House and U.S. Senate, and three-fourths of the states with the same opinion required it of all. (a) The states must not allow alcohol sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth Amendment (1919) prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Repealed by the Twenty-First Amendment. Twenty-first Amendment (1933) repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages.

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

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

Unratified

Of the thirty-three amendments that have been proposed by Congress, twenty-seven have passed. Six have failed ratification by the required three-quarters of the state legislatures. Two have passed their deadlines. Four are technically in the eyes of a Court, still pending before state lawmakers (see Coleman v. Miller). All but one are dead-ends.

Cultural and economic
diversity in federal union.[163]
State Capitols - Part II

One remaining

The "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting "any Title of Nobility or Honour" from any foreign power. Some maintain that the amendment was ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked.[164]

The proposed amendment addressed the same “republican” and nationalist concern evident in the original Constitution, Article I, Section 9. No officer of the United States, “without the Consent of the Congress, [shall] accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” The Constitutional provision is unenforceable because the offense is not subject to a penalty.
Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification and could still be ratified were the state legislatures to take it up.

Abandoned

Quit by practice
As written, it became inapplicable when the population of the United States reached ten million. Allocation of seats for a state delegation is no longer increased or decreased by each change of 10,000 population. Since 1940, the number of Representatives in the U.S. House has been fixed at 435. Decennial population counts are apportioned among the states in a formula by law.
  • The Corwin Amendment, proposed by the 36th Congress on March 2, 1861, would have forbidden any attempt to subsequently amend the Constitution to empower the federal government to "abolish or interfere" with the "domestic institutions" of the states, meaning slavery.
It was ratified by only Ohio, Maryland and controversially, Illinois, before the outbreak of the Civil War.[165] Lincoln took it under consideration in his First Inaugural as a means of preserving the Union. Four additional states seceded and war came. Before his assassination, Lincoln pushed the Thirteenth Amendment through Congress and out to the state legislatures to abolish slavery forever.[166]
Quit by policy

Starting with the proposal of the 18th Amendment in 1917, each proposed amendment has included a deadline for passage in the text of the amendment. Five without a deadline became Amendments.[167] One proposed amendment without a deadline has not been ratified. The Child Labor Amendment of 1924.

  • A child labor amendment proposed by the 68th Congress on June 2, 1924. It provides, "The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age." This amendment is highly unlikely to be ratified, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress's powers under the Commerce Clause.
Time ran out

There are two amendments that were approved by Congress but were not ratified by enough states prior to the ratification deadline set by Congress:

  • The Equal Rights Amendment (ERA), which reads in part "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979 or on June 30, 1982, following a controversial three-year extension of the ratification deadline passed by the 95th Congress in 1978.
Of the 35 states ratifying it, four later rescinded their ratifications before the extended ratification period. A fifth stipulated that its first approval would not extend with Federal law. Such reversals are controversial; no court has ruled on the question. During ratification of the 14th Amendment Ohio and New Jersey rescinded their earlier approvals. But their ratifications were counted towards three-fourths of the states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.
  • The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had this amendment been ratified, it would have granted to Washington, D.C. two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states (out of the required 38), the proposed amendment expired on August 22, 1985.

Judicial review

Also see Appellate Review in law distinguished from Judicial review.

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

Judicial Review
first of states, then Federal branches,
then incorporating states

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

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

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”.[168]

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, Federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the Twentieth Century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature. [169]

Chief Justices of the Supreme Court
first four - roots in the founding

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it. [171]

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a “Council of Revision” by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist’s proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause. [172]

As to judicial review and the state legislatures, the Convention had a draft clause unanimously agreed to, that Congress would have power to “negative all laws passed by the several States, contravening, in the opinion of the national legislature, the articles of union.” Cooler heads prevailed, and according to the political scientist Herman Pritchet, the clause was determined to be a clumsy, inconvenient device which would stir up resentment in the states. It was replaced with the Supremacy Clause which specifically required state judges to apply the Federal Constitution to state laws or constitutions. [173]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. “A limited constitution can be preserved in practice no other way” than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people’s authority over legislatures rests “particularly with judges.” [174]

John Jay (NY), a co-author of the Federalist Papers, served as Chief Justice for the first six years. The second Chief Justice for a term of four years, was Oliver Ellsworth (Ct), a delegate in the Constitutional Convention, as was John Rutledge (SC), Washington’s recess appointment as Chief Justice who served in 1795. John Marshall (Va), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His service on the Court would extend 34 years over some of the most important rulings to help establish the nation the Constitution had begun.

In the first years of the Supreme Court, members of the Constitutional Convention who would serve included James Wilson (Pa) for ten years, John Blair, Jr. (Va) for five, John Rutledge (SC) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. “The fate of judicial review was in the hands of the Supreme Court itself.” [175] John Marshall, newly confirmed Chief Justice had been a Federalist in the Virginia Ratification Convention of 1788. On the Marshall Court, which handed down decisions unanimously for its first twenty years, were several Justices with distinguished pasts.

establishing judicial review
Justices of the Marshall Court[176]

William Paterson (NJ) had been a delegate to the Constitutional Convention, an important U.S. Senator drafting the Judiciary Act of 1789, and was on the Court for 13 years until 1806. William Cushing (Ma) was Washington’s longest seated nominee to the Supreme Court, serving until 1810. He had presided over the 1783 case in Massachusetts which abolished slavery in that state by judicial interpretation of the State Constitution. Joseph Story (Ma) succeeded Cushing on the Court as Madison’s appointee. He was Marshall’s scholar of reference, influential in maritime, equity, and anti-slavery law. These three converged in Joseph Story’s opinion in the 1841 Amistad case.

Alfred Moore (NC), who served until 1804, was a Revolutionary War veteran as was John Marshall. Following Washington’s inauguration, Moore had helped secure North Carolina’s ratification as the 12th state after its first Ratification Convention had rejected Union. As North Carolina Attorney General, he argued unsuccessfully against federal judicial review in Bayard v. Singleton. William Johnson (SC) succeeded Moore as the first non-Federalist (Jefferson’s) Supreme Court appointee. He had been speaker of the South Carolina House, and would be influential on the Court during the Nullification Crisis. Samuel Chase (Md), a signer of the Declaration was on the Court 14 years until 1811 with a politically volatile career.[177]

While review of state legislation and appeals from state supreme courts was understood, in the Marshall Court's landmark Barron v. Baltimore, the ruling held that the Bill of Rights restricted only the federal government, and not the states. For a list of major rulings in the Marshall Court, see Marshall Court Cases.

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. It finds were that Marbury and the others had a right to their commissions as judges in the District of Columbia. The law afforded Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.[178] The United States government, as created by the Constitution is a limited government, and a statute contrary to it is not law. In this case, both the Constitution and the statutory law applied to the particulars at the same time. “The very essence of judicial duty” according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising “under the Constitution.” Courts were required to choose the Constitution over Congressional law. Further, justices take a Constitutional oath to uphold it as “Supreme law of the land”. [179]

“This argument has been ratified by time and by practice …” [180] "Marshall The Supreme Court did not declare another Act of Congress unconstitutional until the disastrous Dred Scott decision in 1857, held after the voided Missouri Compromise statute, had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year. [181]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court under a reactionary majority, handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive “court packing plan”. Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court’s power of judicial review has persisted.[182]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been “wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns.” Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review. [183]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid expressing an opinion if it sees an issue is currently embarrassing or difficult. The Supreme Court limits itself by defining for itself what is a “justiciable question.” First, the Court is fairly consistent in refusing to make any “advisory opinions” in advance of actual cases.[184] Second, “friendly suits” between those of the same legal interest are not considered. Third, the Court requires a "personal interest", not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Having the money to sue or being injured by government action alone are not enough. [185]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their “standards of litigability”. Under the Court’s practice, there are cases left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. “The Supreme Court is not only a court of law but a court of justice.” [186]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but it wants to avoid handing down decrees it cannot enforce. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but it is expected to hold Federal officers accountable for their actions under law. The Supreme Court’s “most striking claim” is assuming power to declare acts of Congress as unconstitutional. To sustain this power, it self-limits its passing on constitutional questions.[187]

doctrine of judicial review
from later courts

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress.[189] (1) The Court will not anticipate a question of constitutional law nor decide open questions unless absolutely necessary to arrive at a case decision. (2) A rule of constitutional law is not formulated more broadly than the precise facts in the case require. (3) Even if constitutional grounds are properly presented to break new ground, the Court will choose statutes or general law for the basis of its decision if it can. (4) Even if the constitutionality of an Act of Congress is seriously in doubt, if it can be interpreted in a way so as to make it constitutional, the Court will choose that constitutional construction. [190]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretentions, but it more often tries to rationalize them. It is tactically much more difficult to confront a President. Against Congress, an Act is merely “disallowed.” In the executive, exercising judicial review to void presidential policy produces “some change in the external world” beyond the ordinary judicial sphere. [191]

John Marshall was one of the first to recognize how the president holds “important political powers” which are untouchable by judicial review. The president’s executive and political privilege allows great discretion. There are areas where he is “accountable to his country only in his political character, and to his own conscience.” For the Supreme Court to enforce performance of presidential duties in law would be “an absurd and excessive extravagance.” Marshall was quoted in Court rulings on the President’s duty to enforce the law during Reconstruction. This doctrine extends to the sphere of foreign affairs. Chief Justice Robert Jackson explained the Courts self-limitation where “without relevant information” it would review or nullify action taken on information properly held secret. Foreign affairs are inherently political, “wholly confided by our Constitution to the political departments of the government … [and] not subject to judicial intrusion or inquiry.” [192]

The “political question” doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court’s limitation when political process allowed future policy change, but a judicial ruling would “attribute finality”. Political questions lack “satisfactory criteria for a judicial determination.” [193]

Critics of the Court object in two principle ways to its self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions. Its inaction is said to allow “a flood of legislative appropriations” which permanently create an imbalance between the states and federal government “never dreamed of by the Founding Fathers.” On the other hand, Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens. [194]

The Supreme Court cannot be imprudent without risking its status as a co-equal branch of government. It is most effective when American political life reinforce its rulings. “But self-restraint is not the ultimate in judicial wisdom.” The Court has a duty to give guidance on basic problems of life and governance in a democracy. [195]

Subsequent Courts

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

Chase Court

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

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

A complete list of Supreme Court cases under his leadership can be found at Chase Court cases. For more on his life and service, see the Salmon P. Chase article.

William H. Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, his earlier Republican career included Ohio Supreme Court, U.S. Solicitor General, U.S. Governor-General of the Philippines, and Theodore Roosevelt’s Secretary of War. He was a one-term President. He sought non-coercive foreign policies in “Dollar Diplomacy” and in his private foundation, “League to Enforce Peace.” In his presidential term, Taft’s domestic agenda encompassed trust-busting and strengthening the Instate Commerce Commission.

Taft Court

As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court and the newly united branch of government initiated its own separate building in use today. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Arizona, New Mexico, Alaska and Hawaii. Later extensions added the Spanish-American War acquisitions of the Commonwealth of the Philippines and Puerto Rico.

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

A complete list of Supreme Court cases under his leadership can be found at Taft Court cases. For more on his life and service, see the William Howard Taft article.

Earl Warren was an Eisenhower nominee, Chief Justice from 1943 to 1953. Warren’s Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

Warren Court

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

A complete list of Supreme Court cases under his leadership can be found at Warren Court cases. For more on his life and service, see the Earl Warren article.

William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. Following study at Stanford and Harvard, he clerked under Justice Robert Jackson, served as a legal adviser and writer for Barry Goldwater in his presidential campaign, and practiced law in Arizona before his Nixon appointment as Justice in 1971.

Rehnquist Court

As Chief Justice, Rehnquist was a team builder. In conference, no Justice spoke a second time until all had spoken. No Justice, including himself, was assigned to write a second holding for the Court until all had written one. When Rehnquist was in the minority, he deferred to the majority to choose the writer of the majority opinion. While he would concur with overthrowing a state supreme court’s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. Fundamental law was not only to restrain states. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores.

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

A complete list of Supreme Court cases under his leadership can be found at Rehnquist Court cases. For more on his life and service, see the William Rehnquist article.

"Civic religion"

The National Archives preserves and displays the Declaration of Independence, the Constitution and the Bill of Rights. These texts are enshrined in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a cathedral-like Rotunda by day, in multi-ton bomb-proof vaults by night.[200] The ‘Charters of Freedom’ are flanked by Barry Faulkner’s two grand murals, one featuring Jefferson amidst the Continental Congress, the other centering on Madison at the Constitutional Convention. Alongside the Charters of Freedom is a dual display of the “Formation of the Union”, which is documents related to the evolution of the U.S. government from 1774 to 1791. These include Articles of Association (1774), Articles of Confederation (1778), Treaty of Paris (1783) and Washington’s Inaugural Address (1789). [201] The Constitution has a past, and it is also living in a way.

Façade of National Archives Building

While political scientists, sociologists, and legal scholars study the Constitution and how it is used in American society, on the other hand, historians are concerned with putting themselves back into a time and place, in context. It would be anachronistic for them to look at the documents of the “Charters of Freedom” and see America’s modern “civic religion” because of “how much Americans have transformed very secular and temporal documents into sacred scriptures”.[202] The whole business of erecting a shrine for the worship of the Declaration of Independence strikes some academic critics looking from point of view of the 1776 or 1789 America as “idolatrous, and also curiously at odds with the values of the Revolution.” It was suspicious of religious iconographic practices. At the beginning, in 1776, it was not meant to be that at all.[203]

On the 1782 Great Seal of the United States, the date of the Declaration of Independence and the words under it signify the beginning of the “new American Era” on earth. Though the inscription, Novus ordo seclorum, does not translate from the Latin as “secular”, it also does not refer to a new order of heaven. It is a reference to generations of society in the western hemisphere, the millions of generations to come.[204]

Even from the vantage point of a new nation only ten to twenty years after the drafting of the Constitution, the Framers themselves differed in their assessments of its significance. Washington in his Farewell Address pled that "the Constitution be sacredly maintained."' He echoed Madison in "The Federalist No. 49", that citizen "veneration" of the Constitution might generate the intellectual stability needed to maintain even the "wisest and freest governments” amidst conflicting loyalties. But there is also a rich tradition of dissent from "Constitution worship". By 1816 Jefferson could write that "[s]ome men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched." But he saw imperfections and imagined that potentially, there could be others, believing as he did that "institutions must advance also”.[205]

Making a nation

American identity has an ideological connection to these “Charters of Freedom”. Samuel P. Huntington discusses common connections for most peoples in nation-states, a national identity as product of common ethnicity, ancestors and experience, common language, culture and religion. The United States has a fate different from “most peoples.” American identity is “willed affirmation” of what Huntington refers to as the ‘American creed.’ The creed is made up of (a) individual rights, (b) majority rule, and (c) a constitutional order of limited government power. American independence from Britain was not based on cultural difference, but on the adoption of principles found in the Declaration. Whittle Johnson in the Yale Review sees a sort of “covenanting community” of freedom under law, “transcending the ‘natural’ bonds of race, religion and class, itself takes on transcendent importance”. [206]

National Archives Rotunda
virtual tour online[207]

These political ideals, which emphasize political orthodoxy, make it possible for an ethnic diversity unequaled in Britain, France, Germany or Japan. And, lacking the ancestor who may have landed on Plymouth Rock or a distant cousin “purportedly” related to those of 1776, Anne Norton has explained that it is the only way immigrants can establish a commonality with those who had an ethnic history like those Founding Fathers. That singular commonality has become the criterion for belonging which is almost unique in its openness to strangers.[208]

The touchstone of becoming a naturalized citizen in the United States is demonstration of an understanding of the Declaration, the Constitution and the Bill of Rights. One's attachment to the Charters of Freedom is signified by a public oath supporting the Constitution. Hans Kohn described the United States Constitution as “unlike any other: it represents the lifeblood of the American nation, its supreme symbol and manifestation. It is so intimately welded with the national existence itself that the two have become inseparable.” Indeed, abolishing the Constitution in Huntington’s view would abolish the United States, it would “destroy the basis of community, eliminating the nation, [effecting] … a return to nature.”[209]

As if to emphasize the lack of any alternative “faith” to the American nation, Thomas Grey in his article “The Constitution as scripture”, contrasted those traditional societies with divinely appointed rulers enjoying heavenly mandates for social cohesion with that of the United States. He pointed out that Article VI, third clause, requires all political figures, both federal and state, “be bound by oath or affirmation to support this Constitution, but no religious test shall ever be required…” This was a major break not only with past British practice commingling authority of state and religion, but also with that of most American states when the Constitution was written.[210]

Escape clause.Whatever the oversights and evils the modern reader may see in the original Constitution, the Declaration that “all men are created equal” --in their rights-- informed the Constitution in such a way that Frederick Douglass in 1860 could label the Constitution, if properly understood, as an antislavery document.[211] He held that “the constitutionality of slavery can be made out only by disregarding the plain and common-sense reading to the Constitution itself. [T]he Constitution will afford slavery no protection when it shall cease to be administered by slaveholders,” a reference to the Supreme Court majority at the time.[212] With a change of that majority, there was American precedent for judicial activism in Constitutional interpretation, including the Massachusetts Supreme Court, which had ended slavery there in 1783.[213]

Accumulations of Amendments under Article V of the Constitution and judicial review of Congressional and State law have fundamentally altered the relationship between U.S. citizens and their governments. Some scholars refer to the coming of a “second Constitution" with the Thirteenth Amendment, we are all free, the Fourteenth, we are all citizens, the Fifteenth, men vote, and the Nineteenth, women vote. The Fourteenth Amendment has been interpreted so as to require States to respect citizen rights in the same way that the Constitution has required the Federal government to respect them. So much so, that in 1972, the U.S. Representative from Texas, Barbara Jordan, could affirm, "My faith in the Constitution is whole, it is complete, it is total ...”[214]

After discussion of the Article V provision for change in the Constitution as a political stimulus to serious national consensus building, Sanford Levinson performed a thought experiment which was suggested at the bicentennial celebration of the Constitution in Philadelphia. If one were to sign the Constitution today,[215] whatever our reservations might be, knowing what we do now, and transported back in time to its original shortcomings, great and small, “signing the Constitution commits one not to closure but only to a process of becoming, and to taking responsibility for the political vision toward which I, joined I hope, with others, strive. [216]

The shrine

At first, whatever the veneration of the Constitution as a set of first principles might have been, little interest was shown in the parchment object itself. Madison had custody of it as Secretary of State (1801-9) but having left Washington DC, he had lost track of it in the years leading to his death. A publisher had access to it in 1846 for a book on the Constitution. Historian J. Franklin Jameson found the parchment in 1883 folded in a small tin box on the floor of a closet at the State, War and Navy Building. In 1894 State sealed the Declaration and Constitution between two glass plates and kept them in a safe.[217]

National Archives frieze, north façade
”This building holds in trust the records of our national life and symbolizes our faith in the permanency of our national institutions”

The two parchment documents were turned over to the Library of Congress by executive order, and in 1924 President Coolidge dedicated the bronze-and-marble shrine for public display of the Constitution at the main building. The parchments were laid over moisture absorbing cellulose paper, vacuum-sealed between double panes of insulated plate glass, and protected from light by a gelatin film. Although building construction of the Archives Building was completed in 1935, in Dec 1941 they were moved from the Library of Congress until September 1944, stored at the U.S. Bullion Depository, Fort Knox, Kentucky. In 1951 following a study by the National Bureau of Standards to protect from atmosphere, insects, mold and light, the parchments were re-encased with special light filters, inert helium gas and proper humidity. They were transferred to the National Archives in 1952.[218]

The design of the National Archives Building was authorized by Congress as a part of a massive New Deal public building program in the center of Washington DC to beautify the central market area immediately west of the Capitol. (Eastern Market east of the Capitol is still extant.) When John Russell Pope was added to the Board of Architectural Consultants, his vision brought its location to the foot of Capitol Hill and transformed it into a monumental building.

Since 1952, the 'Charters of Freedom' have been displayed in the Rotunda of the National Archives Building. Visual inspections have been enhanced by electronic imaging. Changes in the cases led to removal from their cases July 2001, preservation treatment by conservators, and installment in new encasements for public display September, 2003. [219][220]

The Archives were set up by Franklin Roosevelt in 1934. It keeps 1-3% of government documents to be kept forever. These are over 9 billion text records, 20 million photographs, 7 million maps, charts, and architectural drawings and over 365,000 reels of film. The monumental Archives Building was inadequate by the 1960s, so new facilities were built in College Park, MD. Work on electronic archives progresses.[221]

Original Errata. During its first century, the parchment ‘Copy of the Constitution’ was not directly viewed for public purposes, and most of the penned copies sent to the states are lost.[222]

But on inspection of one of the remaining copies held at the National Archives, there is an apparent spelling error in the original parchment Constitution, in the so-called Export Clause of Article 1, Section 10 on page 2, where the possessive pronoun its appears to be spelled with an apostrophe, turning it into it's.[223] However, the letters t and s are connected, and the mark interpreted as an apostrophe is somewhat inconspicuous; different U.S. government sources have transcribed this phrase with and without the apostrophe.[224][225]

The spelling Pensylvania is used in the list of signatories at the bottom of page 4 of the original document. Elsewhere, in Article 1, Section 2, the spelling that is usual today, Pennsylvania, is used. However, in the late 18th century, the use of a single n to spell "Pennsylvania" was common usage — the Liberty Bell's inscription, for example, uses a single n.[223]

Worldwide

National constitutions

The world historian William Hardy McNeill taking a long view, sees the U.S. as “one of a family of peoples and nations” making a history apart from the European civilization of their colonization.[226]

A. Lincoln born 1809
expanded American community under law
of, by, for the people[227]
Benito Juarez born 1806
expanded Mexican polity
"Respect for the rights of others is peace".[228]
Jose Rizal born 1861
promoted Filipino political community under law: liberty, education, industry[229]
Sun Yat-sen born 1866
expanded Chinese citizenship
nationalism, democracy, common welfare[230]

The United States Constitution is an expression of diverging from their colonial rule. Its effect is reflected in the ideals of a democratic republican constitution as limiting the rulers of a state apart and above sitting law-givers in a parliament. The concepts of governance influencing others internationally are not only found among similarities in phrasing and entire passages from the U.S. Constitution. They are in the principles of the rule of law and recognition of individual rights. The American experience of fundamental law with amendments and judicial review has motivated foreign constitutionalists to reconsider possibilities for their own future. [231]

Generally the influence of the Constitution is documented in trans-national history of ideas, foreign translations, and exchanges between Americans and their counterparts from the beginning with smuggled translations into Spanish America until today with conferences among national legislators. Innovations include constitutional conventions, written constitutions, ratification and amendment procedures. There are common provisions for presidential executives, federalism and judicial review.[232]

George Athan Billias, studying the Constitution and related documents, describes six waves of influence: (1) From 1776-1811, after the American Revolution began, it influenced northwestern Europe and its colonial connections. (2) from 1811-1848, after the decline of Napoleon's reputation, it was referenced by Latin American, Caribbean, and European nationalists. (3) From 1898-1918, after the Spanish American War, nationalist movements borrowed from the U.S. Constitution in Asia and Latin America. (4) From 1918-1945, after World War I, its influence spread with anti-colonial movements in Africa Mid-east and Asia. (5) From 1945-1974, after World War II, independence movements consulted it. Most recently, (6) From 1974-1989, after United Nations expansion, once nondemocratic regimes, including European ones, transitioned towards constitutional democracies incorporating elements of the U.S. Constitution.[232]

This influence is beyond theory or ideology; rather, it addresses people living together under a common governance in a modern nation-state. The variety of state constitutions, the Articles of Confederation, Convention debates, Federalist Papers, ratification debates and the Bill of Rights, all show a way to a constitutional federalism which reconciles national power, social diversity and personal liberty across different places, populations and cultures.

Over its international history, American constitutionalism has waxed and waned in influence. Democratizing countries have often chosen the more centralized, consolidated British or French models. Internationally, it appears that those of Confucian and Islamic cultures do not readily adopt some of its premises. Nevertheless, “the influence of American constitutionalism abroad was profound in the past and remains a remarkable contribution to humankind’s search for freedom under a system of laws.” [232]

Translations

The Constitution has been translated into many languages, many of which can be found online. Sources include governmental agencies and universities, private foundations and associations.

Democracy worldwide - Political rights and civil liberty
two categories scored, averaged and combined[233]
  Free (87) top 40% two-category avg.; top 33% totaled scores
  Partly Free (60), 2nd 40%; middle 33% tot.   Not Free (47)

The Federal Judicial Center has links to other materials about the United States government and judicial system. The site has materials in 16 languages besides English, such as Dari, Indonesian, Malay, Serb, and Turkish. [234] The Center's statutory mission includes compiling histories and research resources and conferences. Its goal is to improve administration of justice in the U.S. and foreign countries. The Center works with judges and court officials of other nations, and other judicial education organizations.[235]

The Columbia Law Review sponsors the International Constitutional Law Project. It has over 100 constitutions and provides English translations of and other textual material related to constitutional documents. The Project cross-references those documents for quick comparison of constitutional provisions internationally, internally within each document, and with background information. [236] The Historical Society of Philadelphia lists translations of the United States Constitution into various foreign languages. One example is Armenian.[237]

University of Chicago Library features constitutional resources on the influence of the U.S. Constitution abroad. It holds texts of non-U.S. Constitutions, case reports, books, journals, articles and current commentary. [238] At the University of Richmond’s Constitution Finder, there are international constitutions, historical constitutions, and state constitutions. For China, there is the 1982, 1947, and Hong Kong Constitutions, and other documents. For the United States, there is the Constitution of 1787 with amendments and five unpassed amendments, the Articles of Confederation, the Confederate Constitution and 84 state constitutions past and present.[239]

Professor James Chen has annotated the Spanish translation prepared by the U.S. State Department. His notes focus on the problems and nuances of this translation.[240] Nguyen Canh Binh has translated the Constitution into Vietnamese.[241] The Bill of Rights has been translated into Hawaiian.[242] Elizabeth Claire has rewritten the Constitution into simplified English.[243] Some of the many translations of The Constitution into other languages are listed below.

Commemoratives

National governments since the 19th Century have widely issued stamps in the administration of their internal and international communication. The government-run postal services use stamps to picture cherished national figures and symbolic scenes. They commemorate events that the issuing government represents as significant to their population. The U.S. Constitution has been commemorated both in the United States and internationally among those revering its contribution to their law and politics.

In 1937, the U.S. Post Office under the Presidency of Franklin Delano Roosevelt released a commemorative postage stamp celebrating the 150th anniversary of the signing of the U.S. Constitution. The engraving on this issue is after an 1856 painting by Junius Brutus Stearns of Washington and shows delegates signing the Constitution at the 1787 Convention. George Washington is on dais with an open document in hand, James Madison sitting at table with pages taking his famous notes on the convention.

Amendments to the United States Constitution are treated as integral to the document. One commemoration of the 19th Amendment permitting women the right to vote was celebrated in a U.S. commemorative in 1950 and again in 1970 (pictured). The woman is voting in a curtained mechanical voting booth. She choses levers to punch or mark her votes on a paper roll. The Model T has a man driver with a banner "Votes for women" on the car, women riders and marchers as though in a parade.

The Second Polish Republic issued a commemorative stamp of the U.S. and Polish Constitutions in 1938 under the government of Prime Minister, Major General Składkowski It features George Washington in military regalia, holding an 48-star American Flag and a drawn sword. Thomas Paine holds a book on a rod, and Kosciuszko poses with a cross and saber. The next scene is of a line of infantry flying a polish flag. The right panel shows the Statue of Liberty imposed in front of the New York 1930s skyline.

In 1937, the Second Spanish Republic commemorated the 150th anniversary of the signing of the U.S. Constitution under the government of Prime Minister Juan Negrín of the Spanish Socialist Workers' Party (PSOE). The Statue of Liberty is the central focus, flanked by Spanish flags and United States Flags. The Spanish Republic Flag of red, yellow and purple, as battle flag or civil ensign, lacks the coat of arms.

Criticism

Several academics have criticized the Constitution. University of Virginia professor Larry Sabato wants an amendment to organize primaries to prevent a "frontloaded calendar" long before the election. Such an amendment would prevent a "race by states to the front of the primary pack", which subverts the national interest, in Sabato's view.[265] Sabato details more objections in his book A More Perfect Constitution.[265] In an interview in Policy Today, Sabato is critical of the "incoherent organization of primaries and caucuses,"[266] and faults the Constitution for enabling presidents to continue unpopular wars,[266] for requiring presidents to be "natural born citizens",[266] for lifetime tenure for Supreme Court judges which "produces senior judges representing the views of past generations better than views of the current day."[266] He also writes that "If the 26 least populated states voted as a bloc, they would control the U.S. Senate with a total of just under 17% of the country’s population."[266] Richard Labunski appeals to the same Article V to apply popular pressure outside of established partisan and corporate channels. Like minded citizens could connecting by internet, organize congressional district meetings, gather in a state convention, and send delegates to a “pre-convention” in D.C. It would forward subject areas for Constitutional amendment to the States. The participating states would then trigger a Second Constitutional Convention. In his book "The Second Constitutional Convention", Labunski outlines ten subject areas that should be considered for constitutional amendments.[267] Harvard law school professor Lawrence Lessig has called for state-based activism to summon a Second Constitutional Convention.[268]

University of Texas law professor Sanford Levinson wonders whether it makes sense to give "Wyoming the same number of votes as California, which has roughly seventy times the population".[269] Levinson thinks this imbalance causes a "steady redistribution of resources from large states to small states."[269] Levinson is critical of the Electoral College because the Electoral College allows the possibility of electing presidents who do not win the majority of votes.[269] Three times in American history, presidents have been elected by the Electoral College despite failing to win the popular vote: 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison) and 2000 (George W. Bush).[270][271][272][273] The current Constitution does not give the people a quick way to remove incompetent or ill presidents, in his view.[273] Others have criticized the politically driven redistricting process popularly known as gerrymandering.[274]

Yale professor Robert A. Dahl sees a problem with an American tendency towards worship of the Constitution itself. He sees aspects of American governance which are "unusual and potentially undemocratic: the federal system, the bicameral legislature, judicial review, presidentialism, and the electoral college system."[275] Levinson and Labunski and others have called for a Second Constitutional Convention,[276] although professors like Dahl believe there is no real hope this would ever happen.[275]

See also

General

Related documents

Notes

  1. ^ a b WikiSource. "WikiSource: Constitution of the United States of America". http://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America. Retrieved 2007-12-16. 
  2. ^ Library of Congress. "Primary Documents in American History: The United States Constitution". http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html. Retrieved 2007-12-16. 
  3. ^ "Huntsman says the U.S. Constitution is the oldest". http://www.politifact.com/truth-o-meter/statements/2011/aug/08/jon-huntsman/oldest-surviving-one-document-text/. Retrieved 17 November 2011. 
  4. ^ Gli statuti di San Marino e la "Libertà perpetua" della repubblica. San Marino: Arti Grafiche Sammarinesi, 1927
  5. ^ CIA World Country Factbook, San Marino, Section: Government
  6. ^ Casey (1974)
  7. ^ Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 131 [ISBN 978-0-521-88188-3 (noting that "Madison, along with other Americans clearly understood" the Articles of Confederation "to be the first federal Constitution.")
  8. ^ a b c d e f Maier (2010), pp. 11-13
  9. ^ Maier, op. cit., p.12-13, 19
  10. ^ Wood, Gordon S., “The Creation of the American Republic 1776-1787” (1969) ISBN 0-393-00644-1 p.324-5
  11. ^ Maier, op. cit., p.15-16
  12. ^ Bowen, op.cit., p. 129-130
  13. ^ Bowen, op.cit., p. 31
  14. ^ Maier, op. cit., p.13
  15. ^ Wood, Gordon S., op.cit. p. 356-367, 359
  16. ^ Maier, op. cit., p.14, 30,66
  17. ^ a b NARA. "National Archives Article on the Constitutional Convention". http://www.archives.gov/exhibits/charters/charters.html. Retrieved 2007-12-16. 
  18. ^ a b National Archives and Records Administration. "National Archives Article on the Constitution". http://www.archives.gov/exhibits/charters/constitution_transcript.html. Retrieved 2008-09-01. 
  19. ^ Maier, Pauline. op. cit. p. 21.
  20. ^ Bowen, 2010 op.cit., p. 11.
  21. ^ Bowen, 2010 op.cit., p. 14-15. In the event, the signed Constitution was merely forwarded to the state legislatures without amendment or endorsement. But the states did receive a recommendation that each call a ratification convention apart from the state legislature according to each state’s suffrage and timing. All but Rhode Island did so. Rhode Island and North Carolina did not join the United States until after the Constitutional government began in 1789.
  22. ^ Though some 1776 notables did not attend, such as older generation Tom Paine, Samuel Adams, Patrick Henry, and middle generation Thomas Jefferson, and John Adams.
  23. ^ In the Articles Congress, a state could not be represented on the floor until two delegates were present. The Convention quorum of seven states was met the first day with New York with two of its five delegates present that first day, New Jersey with three, Pennsylvania with four of its eight, Delaware with three of its five, Virginia with all seven, North Carolina with four of its five, and South Carolina with all four. Massachusetts and Georgia had each one delegate of their respective four present on the 25th. See Constitutional Convention for a complete listing of state delegations arrived in Philadelphia.
  24. ^ The rules of a formal body can determine outcomes. The nationalist “Federalists” will make a point of setting the rules to win the later ratification conventions. Their ratification strategy was to take up each article and section, with no votes on measures until completing the document.(Maier, op.cit., p. 342) . This delay suited different objectives. The intent was to persuade in Massachusetts (p. 200), to accommodate in Virginia (p. 219), and to await news in New York (p. 348)
  25. ^ In view of the Martin-Lansing “small state” positions and their importance in U.S. intellectual history, relative sizes of the states in 1787 can be ranked from the Constitution’s enumeration for the first House of Representatives. States free or with gradual emancipation had 35 Representatives: Pennsylvania eight. Massachusetts eight, New York six, Connecticut five, New Jersey four, New Hampshire three, Rhode Island one. States with a sizable 3/5 bonus for non-citizen slaves had 30 representatives at first: Virginia ten, Maryland six, North Carolina five, South Carolina five, Georgia three and Delaware one. (See U.S. Constitution, Article I, Section 2.)
  26. ^ Bowen, Catherine Drinker., Miracle at Philadelphia: the story of the Constitutional Convention May to September 1787. (1966) 2010 Barnes & Noble ISBN 978-0-316-10261-2, p22, 267.
  27. ^ Maier, Pauline. op. cit. p. 52.
  28. ^ Irons, Lee., |The 1788 American Revision of the Westminster Standards, viewed September 15, 2011. Referencing “Records of the Presbyterian Church in the United States of America 1706-1788” (1969).
  29. ^ Bowen, op.cit., p.22
  30. ^ Bowen, 2010 op.cit., p. 19-20, 37, 173-6, 216-217
  31. ^ Bowen, 2010 op.cit., p. 37, 173-6, 216-217
  32. ^ Teaching American History.org, A citizen of America: an examination into the leading principles of America, viewed October 20, 2011. Scudder, Horace Elisha. Noah Webster, 1885 ed., p. 129.
  33. ^ Bowen, 2010 op.cit., p. 24
  34. ^ Bowen, 2010 op.cit., p. 24, 15
  35. ^ Bowen, 2010 op.cit., p. 19-20, 54, 15
  36. ^ Bowen, 2010 op.cit., p. 23, 41
  37. ^ Bowen, 2010 op.cit., p. 50, 52
  38. ^ Bowen, 2010 op.cit., p. 24
  39. ^ Bowen, 2010 op.cit., p. 33
  40. ^ Bowen, 2010 op.cit., p. 226
  41. ^ a b NARA. "National Archives Article on James Madison". http://www.archives.gov/exhibits/charters/charters.html. Retrieved 2007-12-16.  Although proposed by Governor Edmund Randolph (Va), it was drafted by James Madison who is acknowledged as "The Father of the Constitution" for his major contributions to its substance and his Convention floor leadership.
  42. ^ |“Farrand’s Records”, viewed September 15, 2011. The Yale University Press reprint is ISBN 978-0-30000-0801. The Avalon Project at Yale University Law School makes Madison's Journal available online by date-link, which is particularly helpful in comparing multiple editions. |Notes on the Debates in the Federal Convention. A complete Gregorian Calendar for the year is available online: |1787 Calendar. Madison’s Journal with errors from several sources can be found online as a searchable text and linked index edited by Gaillard Hunt (1903). |Journal of the Constitution in The Writings of James Madison, vol. IV. 1787. Putnam Sons 1903.
  43. ^ Farrad (1966) p. v-ix. The work includes additional sources, cross references in the daily notes, a general index, and an index of every clause in the Constitution throughout the debates.
  44. ^ a b c NARA. "National Archives Article on the Entire Constitutional Convention". http://www.archives.gov/exhibits/charters/charters.html. Retrieved December 16, 2007. 
  45. ^ NARA. "National Archives Article on William Paterson". http://www.archives.gov/exhibits/charters/charters.html. Retrieved 2007-12-16. 
  46. ^ Bowen, op.cit., p. 71-74
  47. ^ Bowen, op.cit., p.95
  48. ^ When the Constitution is ratified, it will balance states equally relative to slavery in the Senate. There are six states north of Pennsylvania, and six states south of it. Pennsylvania, the “keystone” state, split Senators one-one at first. After Pennsylvania abolishes slavery, the next state to enter the Union in 1792 is Kentucky with slavery. That maintains a “sectional equality” between free-soil states and slave-holding states, 7-7. Then in 1850, California was admitted as a free state, then Minnesota, Oregon and Kansas follow as free states before outbreak of the Civil War. The Constitution’s House of Representatives began nearly equal, but the decennial census reallocated power away from declining slave-economies and towards the places which supported more people. Over time, ten years at a time, under the Constitution, the state antecedents, wealth, commerce and militias matter less than the numbers of people it can sustain in its domestic economy.
  49. ^ Bowen, op.cit., p.197-204
  50. ^ Berlin, Ira. Many thousands gone: the first two centuries of slavery in North America 2000. ISBN 978-0674-00211-1, p.283.
  51. ^ Section 2 of Article I provides in part: "Representatives and direct taxes shall be apportioned among the several states . . . by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."
  52. ^ State population for U.S. representation or taxes was to exclude all numbers of untaxed Native-Americans.—“Representatives and direct taxes shall be apportioned among the several states … by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons”.
  53. ^ Annals of Congress, “House of Representatives, 9th Congress, 2nd Session”, History of Congress, “Importation of Slaves” p. 241-242. Viewed October 18, 2011.
  54. ^ Brown University Steering Committee on Slavery and Justice. “Slavery and Justice” p.35 Viewed October 18, 2011.
  55. ^ Maier, Pauline. Op. Cit., p.201, 284
  56. ^ Maier, Pauline. Op. Cit., p.284
  57. ^ See South Carolina Declaration of Causes of Secession (December 24, 1860), reprinted in Richard Hofstadter, Great Issues in American History. Volume II, Vintage Books (1958), p.76-7; Abraham Lincoln, Message to Congress (July 4, 1861) reprinted in Hofstadter, supra.
  58. ^ Bowen, op.cit., p.93. He was the son of a shoemaker, now a farmer and lawyer. Although awkward, vulgar and laughable to more polished colleagues, he was an honest political broker. The most frequent speakers on the Convention floor were Madison, Wilson, G. Morris, all nationalists. Roger Sherman of Connecticut, a small-state ‘federal’ delegate, was fourth. His legislative philosophy was, “When you are a minority, talk. When you are a majority, vote.” Among the small-state advocates, he would make the most speeches throughout the Convention.
  59. ^ Bowen, op.cit., p. 93-4
  60. ^ Bowen, op.cit., p. 75
  61. ^ Bowen, op.cit., p. 93-4
  62. ^ The nationalists had proposed a ‘senate’ smaller than the ‘house’, but still proportioned by population: one senator for small, two senators for medium, and three senators for large population states.
  63. ^ Bowen, op.cit., p. 94
  64. ^ Farrand, Max. “The Records of the Federal Convention of 1787” (1966, 1974), Yale University Press 1937 reprint four vols. Vol. I, pp. 202 Madison, Mr. Sherman’s motion June 11.
  65. ^ Bowen, op.cit., p. 104, 105, 107. The most important were Lansing and Yates (NY), Bedford (DE), Paterson and Brearly (NJ) and Martin (MD). Other supporters of note were Mason (VA), Gerry (MA), Ellsworth and Sherman (CT) (Bowen, p. 105).
  66. ^ Bowen, op.cit., p. 107
  67. ^ Bowen, op.cit., p. 107
  68. ^ Farrand, op.cit., Vol. I. p. 322 Madison, Mr. King’s motion June 19.
  69. ^ McDonald, op.cit., p. 227-8. Yates and Lansing (NY) would walk out July 10. New York voted as a “small” state on big-state-small-state issues. It had no western frontier like Pennsylvania and Virginia, for instance. In 1787, the Erie Canal did not tie New York to the west, and Philadelphia was still the nation’s largest commercial and banking center, followed by Boston.
  70. ^ Farrand, op.cit., Vol. I. p. 408 Madison, on the question “that the members of the 2nd branch be chosen by the individual legislatures.”. June 25.
  71. ^ Farrand, op.cit., V.I, p.436 Journal. June 27.
  72. ^ Bowen, op.cit., p. 124
  73. ^ Bowen, op.cit., p. 129-130
  74. ^ Bowen, op.cit., p. 131-132
  75. ^ Farrand, op.cit., V.I, p. 460. Journal.. June 29.
  76. ^ Bowen, op.cit., p. 138-139
  77. ^ Bowen, op.cit., p. 140, 187
  78. ^ McDonald, op.cit., p. 236
  79. ^ Bowen, op.cit., p. 185-186
  80. ^ McDonald, op.cit., p. 237
  81. ^ McDonald, op.cit., p. 227-228
  82. ^ Bowen, op.cit., p. 185-186
  83. ^ Pierce Butler of South Carolina was generally a nationalist, representing up-country interests against the state-dominating big plantations, but on this, he switched between Resolution 7 and Resolution 8, speaking with the small-states, supporting a two- or three-person ‘presidency’. Cromwell had started well enough, but his Interregnum turned out badly.
  84. ^ Bowen, op.cit., p. 55-62
  85. ^ Bowen, op.cit., p. 63-66
  86. ^ Bowen, op.cit., p. 63-66
  87. ^ McDonald, Forrest, Novus ordo seclorum: the intellectual origins of the Constitution 1985. SSBN 0-7006-0284-4, p.276-7.
  88. ^ McDonald, op.cit., p. 261
  89. ^ The Articles of Confederation gave Congress control of (1) the military: appoint and commission officers, build a navy, regulate uniform justice, and use privateers. (2) international relations: declare war and make peace, exchange ambassadors, enter treaties and alliances, establish admiralty courts, punish crimes on the high seas and regulate captures, and manage trade and affairs with non-state Indians. (3) commerce: value of coin, uniform standards of weights and measures, post offices, borrow money and establish courts to adjudicate issues between states. (McDonald, p.262)
  90. ^ McDonald lists his five “minor powers” as governing the federal district, punishing crimes against the law of nations, copyrights and patents, bankruptcies and counterfeiting.(McDonald, p.262-263)
  91. ^ McDonald, op.cit., p. 262-263
  92. ^ McDonald, op.cit., p. 267. U.S. Senate, The Second Amendment—Bearing Arms in the Constitution of the United States, p. 1193. Government Printing Office, 1995, viewed 08/11/2011
  93. ^ McDonald, op.cit., p. 263-267
  94. ^ McDonald, op.cit., p. 267
  95. ^ McDonald, op.cit., p.277-278
  96. ^ States would lose more powers with the addition of Constitutional Amendments, the 14th will extend national Bill of Rights freedoms to states, the 15th and 19th will enlarge state citizenship, and the 18th will strip state legislatures of U.S. Senator election.
  97. ^ McDonald, op.cit., p.279-280
  98. ^ Property right provisions included prohibiting restrictions on slavery within the country until 1808; banning export duties, direct taxes, and port preference; taxing interstate commerce, and confiscating estates.
  99. ^ Guarantees for liberty in the original Constitution included prohibiting suspension of the writ of habeas corpus except in times of rebellion or invasion, prohibiting ex post facto laws and bills of attainder, providing for impeachment of all civil officers, Jury trial in criminal cases, narrowing the definition of treason by direct action and two witnesses, and forbidding religious qualifications for national office. (McDonald, p.268-269)
  100. ^ In a republic, theory proposed that the people’s agent (represented by the House of Representatives) would originate money bills. No money could be spent but by legislative appropriation. Military appropriations were limited to two-years duration. There could be no dual office-holding in the national government and no titles of nobility. (McDonald, p.268-269)
  101. ^ McDonald, op.cit., p.268-269
  102. ^ McDonald, op.cit., p.270. The Articles prohibited each and every state from treating with foreign governments, exchanging ambassadors, grant titles of nobility, maintaining their own armies or ships of war or privateers, they were not to engage in war unless invaded, lay taxes on imports. The states under the Articles of Confederation were not to make treaties among themselves.
  103. ^ McDonald, op.cit., p.270. This was necessary since Blackstone held the British Parliament was restrained from ex post facto laws only in criminal matters. (McDonald, p.271-272)
  104. ^ McDonald, op.cit., p.275
  105. ^ McDonald, op.cit., p.279-280
  106. ^ Wood, Gordon S., op.cit. p.174-175.
  107. ^ Wood, Gordon S., op.cit. p.175-176.
  108. ^ Wood, Gordon S., op.cit. p.184, 186.
  109. ^ But because the 18th Century Founders did not choose universal suffrage for representatives or for direct proposition referendums does not mean that they did not have to argue the point down and outvote their opponents. In a letter to James Sullivan, May 26, 1776, John Adams asked rhetorically, “Shall we say, that every member of the community, old and young, male and female, as well as rich and poor, must consent, expressly, to every act of legislation?” His answer was, for 1776, No. (Wood, p.182)
  110. ^ Wood, Gordon S., op.cit. p.177-178, 183.
  111. ^ Wood, Gordon S., op.cit. p.179.
  112. ^ Populations counted for re-apportionment in the House of Representatives were the whole number of free and indentured citizens, and three-fifths the whole number of farming Amerindian families and property-less slaves. Untaxed Amerindians were not counted, nor were aliens, felons, nor vagabonds. For the U.S. Congress, persons alone were counted. Property was not counted in the calculations for legislative apportionment for either House or Senate, as it was in many states at the time.
  113. ^ Bowen, op.cit., p. 66.
  114. ^ McDonald, Forrest, op.cit., p. 282.
  115. ^ McDonald, Forrest, op.cit., p. 282-283.
  116. ^ Bowen, op.cit., p. 80-81, 177
  117. ^ Bowen, op.cit., p. 176.
  118. ^ Bowen, op.cit., p. 177-178.
  119. ^ Bowen, op.cit., p. 175.
  120. ^ Bowen, op.cit., p. 176-177. Read (De) demanded to know why Georgia would have two Representatives to older Delaware’s one. G. Morris (Pa) answered, Before the government can begin operation, it will have twice the population.
  121. ^ Bowen, op.cit., p. 176. This point was the principle reason for Maryland’s reluctance to ratify the Articles in the first place, delaying its unanimous adoption from 1777 to 1783.
  122. ^ McDonald, Forrest, op.cit., p. 282
  123. ^ Bowen, op.cit., p. 179-180.
  124. ^ Bowen, op.cit., p. 181, 184.
  125. ^ Federalists ruled the first twelve years of government with a President by Washington and Adams. The Democratic-Republicans ruled for the next twenty-four, and arguably after one-term John Quincy Adams, for another thirty years under the Jacksonian Democrats.
  126. ^ McDonald, Forrest, op.cit. p. 285
  127. ^ Maier, Pauline. op. cit. p. 54-58.
  128. ^ Maier, Pauline. op. cit. p. 134, Connecticut expanded electorate to add all town meeting voters; p.140, Massachusetts dropped property requirements; p.218, New Hampshire dropped some property requirements, and added town delegates; p.223, Rhode Island put the question to a referendum which rejected the ratification convention, the Federalist minority centered in Newport and Providence boycotted the election; p.228, Virginia dropped “legal and Constitutional requirements” to expand the freehold electorate; p.327, New York dropped property requirements, timed assembly elections at the same time, and allowed up to five sequential days of voting until the voting rolls were “complete”.
  129. ^ a b Maier, Pauline. op. cit. p. 431.
  130. ^ Maier, Pauline. op. cit. p. 430.
  131. ^ WikiSource. "Articles of Confederation". http://en.wikisource.org/wiki/Articles_of_Confederation. Retrieved 2009-07-18. 
  132. ^ Maier, Pauline. op. cit. p. 429.
  133. ^ Maier, Pauline. op. cit. p. 20.
  134. ^ Maier, Pauline. op. cit. p. 438.
  135. ^ Maier, Pauline. op. cit. p. 433.
  136. ^ Maier, Pauline. op. cit. p. 456.
  137. ^ Maier, Pauline. op. cit. p. 464.
  138. ^ "Founding Fathers: Virginia". FindLaw Constitutional Law Center. 2008. http://supreme.lp.findlaw.com/documents/fathers/virginia.html. Retrieved 2008-11-14. 
  139. ^ "The Jefferson Cyclopedia", Thomas Jefferson & John P. Foley, Funk and Wagnalls Company, NY and London 1900, “Anti-Federalists, and” p. 38
  140. ^ Maier, Pauline. op. cit. p. 468.
  141. ^ "The Six Nations: Oldest Living Participatory Democracy on Earth". Ratical.com. http://www.ratical.org/many_worlds/6Nations/index.html. Retrieved 2007-10-27. 
  142. ^ Armstrong, Virginia Irving (1971). I Have Spoken: American History Through the Voices of the Indians. Pocket Books. p. 14. SBN 671-78555-9. 
  143. ^ Graymont, Barbara. The Iroquois in the American Revolution, 1972. ISBN 0-8156-0083-6, p.vii.
  144. ^ Mee, Charles L., Jr. The Genius of the People. New York: Harper & Row, 1987. p. 237
  145. ^ Morgan, Edmund S., Benjamin Franklin 2002. ISBN 0-300-10162-7 (pbk) p.80-81
  146. ^ Morgan, Edmund S., op.cit. p.84
  147. ^ Greymont, Barbara. Op.cit. p.66
  148. ^ "H. Con. Res. 331, October 21, 1988". United States Senate. http://www.senate.gov/reference/resources/pdf/hconres331.pdf. Retrieved 2008-11-23. 
  149. ^ NARA. "National Archives Article on the Bill of Rights". http://www.archives.gov/exhibits/charters/charters.html. Retrieved 2007-12-16. 
  150. ^ http://www.digitalvaults.org/#/detail/105/?record=105 National Archives Experience. U.S. Constitution. Close ups of the U.S. Constitution, zoom in to read the original document. Linked to resources.
  151. ^ As no convention has been called, it is unclear how one would work in practice.
  152. ^ Lutz, Donald (1994). Toward a theory of constitutional amendment. . The 21st Amendment is the only successful Amendment that employed state conventions for ratification.
  153. ^ The new “supreme law of the land” takes the place of the old. For instance, the Thirteenth Amendment nullifies any permissive language relating to slavery in the original text of the Constitution. The Twenty-first Amendment repealed the Eighteenth Amendment. Constitutionally, nothing prevents a future amendment from actually changing the older text.
  154. ^ The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it; as a result, after pending for two centuries, it became the Twenty-seventh Amendment. The first of the twelve, which is still technically pending before the state legislatures for ratification, pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that Commonwealth's first month of statehood.
  155. ^ Dispersing armaments in the face of superior force was a hard learned lesson. At the outbreak of hostilities in the American Revolution, Royal Governors captured arsenals of the colonial legislatures in Concord, Massachusetts, and Williamsburg, Virginia, for example.
  156. ^ Moncure, Thomas M., Jr., Who is the militia – the Virginia Ratification Convention and the right to bear arms. Viewed November 11, 2011. Three states adopted the Constitution in ratification conventions addressing the need for an amendment guaranteeing state militia and citizen right to bear arms. Four states petitioned for protection of militia and the right to bear arms: New York, Rhode Island, Virginia and North Carolina. Pennsylvania and Massachusetts proposals included it as minority reports.
  157. ^ Moncure, Thomas M., Jr., op.cit. viewed November 11, 2011. In Presser v. Illinois, An armed mob of 400 in the city of Chicago paraded through the streets without a permit to intimidate an immigrant neighborhood. Illinois argued the armed individuals violated the state military code.
  158. ^ Moncure, Thomas M., Jr., op.cit. viewed November 11, 2011. Without a demonstrated relationship between “a barrel of less than eighteen inches in length” and “a well regulated militia”, the Court could not say the Second Amendment guaranteed carrying it in public. The Court did not see it as “any part of the ordinary military equipment or that its use could contribute to the common defense [of the United States].” Moncure does not address any parallels between the 1930s of Al Capone and modern day drug cartels, nor any use of gun regulation by local law enforcement, state National Guard, or the armed forces for policing borders and homeland security.
  159. ^ Moncure, Thomas M., Jr., op.cit. viewed November 11, 2011. Governor William Tuck of Virginia used the unorganized militia to break a 1946 strike by employees of the Virginia Electric and Power Company.
  160. ^ Moncure, Thomas M., Jr., Who is the militia – the Virginia Ratification Convention and the right to bear arms. Viewed November 11, 2011.
  161. ^ "Findlaw.com". Caselaw.lp.findlaw.com. http://caselaw.lp.findlaw.com/data/constitution/amendment03/. Retrieved 2009-05-04. 
  162. ^ DC residents constitutionally vote for President by the Amendment. The vote for a non-voting delegate in Congress, and local offices as Congress allows by law.
  163. ^ For cultural-economic-political divisions in North America, see Nine Nations of North America. The six sets of dates in gallery part I and part II refer to the six epochs of state admission to the Union.
  164. ^ "The Missing Thirteenth Amendment". Thirdamendment.com. http://www.thirdamendment.com/missing.html. Retrieved 2009-05-04. 
  165. ^ Illinois lawmakers—sitting as a state constitutional convention at the time—approved the unratified amendment, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification and a Court held it could not stop state legislatures from debating it.
  166. ^ The fundamental change in American society and its ethos, adoption of the 13th, 14th, and 15th Amendments after the Civil War, and 140 years of Federal and state jurisprudence makes an adoption restoring African slavery unlikely.
  167. ^ Amendments after the 18th Amendment which did not have deadlines and became Constitutional were (a) the 19th Amendment (women's voting), (b) the 23rd Amendment (DC electoral votes), (c) the 24th Amendment (poll taxes), (d) the 25th Amendment (Presidential succession), and (e) the 26th Amendment (voting age).
  168. ^ Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516, 529-530, 536 (1905)(concurring opinions of Justices Harlan and Brown), that once the Constitution has been extended to an area, its coverage is irrevocable; Boumediene v. Bush - That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.
  169. ^ Pritchet, C. Herman, “The American Constitution”, McGraw Hill, 1959, p.134.
  170. ^ John Rutledge was a Washington appointment during Senate recess. He was not confirmed as Chief Justice by the U.S. Senate.
  171. ^ Pritchet, C. Herman, op.cit., p.136.
  172. ^ Pritchet, C. Herman, op.cit., p.137-138.
  173. ^ Pritchet, C. Herman, op.cit., p.138.
  174. ^ Pritchet, C. Herman, op.cit., p.138. The Supreme Court found 658 cases of invalid state statutes from 1790-1941 before the advent of Civil Rights cases in the last half of the Twentieth Century (Pritchet, p. 142, note.)
  175. ^ Pritchet, C. Herman, op.cit., p.138.
  176. ^ Over Marshall's 34-year tenure as Chief Justice, there were a total of 14 Justices, including Marshall on the "Marshall Court". Over the course of Marshall's term as Chief Justice, they ranged from five justices in 1801 on the Bench at one time to seven in 1835.
  177. ^ Samuel Chase began his career as a fire-brand state-righter, then became a staunch Federalist. He was impeached by the Jefferson Republicans in Congress in 1804 led by Representative John Randolph (Va). Chase had fiercely objected to Jefferson’s party overturning the Judiciary Act of 1801 and eliminating the life-time appointed judgeships which the Act had created. Chase was impeached on eight counts of his practice as a lower court federal judge. Although the Senate trial was presided over by Republican Vice-President Aaron Burr, the old Federalist was acquitted. Nevertheless, judges became less publically partisan, political majorities deferred to judicial independence, and federal judges limited their instructions to juries in the future.
  178. ^ In this, John Marshall leaned on the argument of Hamilton in Federalist No. 78. (Pritchet, p. 140) Although it may be that the true meaning of the Constitution to the people of the United States in 1788 can only be divined by a study of the state ratification conventions, the Supreme Court has used the Federalist Papers as a supplemental guide to the Constitution since their co-author, John Jay, was the first Chief Justice.
  179. ^ Pritchet, C. Herman, op.cit., p.140-141.
  180. ^ The entire quote reads, "This argument has been ratified by time and by practice, and there is little point in quibbling with it. Of course, the President also takes an oath to support the Constitution." (Pritchet, p. 141) The presidential reference is to Andrew Jackson's disagreement with Marshall's Court over Worcester v. Georgia, finding Georgia could not impose its laws in Cherokee Territory. Jackson replied, "John Marshall has made his decision; now let him enforce it!", and the Trail of Tears proceeded. Jackson would not politically interpose the U.S. Army between Georgia and the Cherokee people as Eisenhower would do between Arkansas and the integrating students.
  181. ^ Pritchet, C. Herman, op.cit., p.141-142.
  182. ^ Pritchet, C. Herman, op.cit., p.142
  183. ^ Pritchet, C. Herman, op.cit., p.145.
  184. ^ ”Advisory opinions” are not the same as “declaratory judgments.” (a) These address rights and legal relationships in cases of “actual controversy”, and (b) the holding has the force and effect of a final judgment. (c) There is no coercive order, as the parties are assumed to follow the judgment, but a “declaratory judgment” is the basis of any subsequent ruling in case law.
  185. ^ Pritchet, C. Herman, op.cit., p.145.
  186. ^ Pritchet, C. Herman, op.cit., p.148-149.
  187. ^ Pritchet, C. Herman, op.cit., p.149.
  188. ^ Grayned v. City of Rockford, 408 U.S. 104 (1972), a majority opinion co-written with William Brennan overturning an anti-picketing statute used against civil rights demonstrators.
  189. ^ Louis Brandeis concurring opinion, ‘’Ashwander v. Tennessee Valley Authority’’, 1936.
  190. ^ Pritchet, C. Herman, op.cit., p.149.
  191. ^ Pritchet, C. Herman, op.cit., p.150.
  192. ^ Pritchet, C. Herman, op.cit., p.150-151.
  193. ^ Pritchet, C. Herman, op.cit., p.151.
  194. ^ Pritchet, C. Herman, op.cit., p.153.
  195. ^ Pritchet, C. Herman, op.cit., p.154.
  196. ^ U.S. Supreme Court, 1865. Hon. Salmon P. Chase, Chief Justice, U.S.; Hon. Nathan Clifford, Maine; Stephen J. Field, Justice Supreme Court, U.S.; Hon. Samuel F. Miller, U.S. Supreme Court; Hon. Noah H. Swayne, Justice Supreme Court, U.S.; Judge Morrison R. Waite, Supreme Court, U.S
  197. ^ U.S. Supreme Court, 1925. Seated (l to r) - James Clark McReynolds, Oliver Wendell Holmes, Jr.,William Howard Taft, Willis Van Devanter, Louis Brandeis. Standing (1 to r) - Edward Sanford, George Sutherland, Pierce Butler, Harlan Fiske Stone
  198. ^ The United States Supreme Court in 1953. Bottom from left: Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; WIlliam O. Douglas. Back from left: Tom Clark; Robert H. Jackson; Harold Burton; Sherman Minton
  199. ^ The United States Supreme Court in 1953.
  200. ^ Wood, Gordon S., Dusting off the Declaration, The New York Review of Books, Aug 14, 1997
  201. ^ National Park Service, Signers of the Constitution: Text and History Books on line series, viewed September 18, 2011.
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  203. ^ Wood, Gordon S., op.cit., Aug 14, 1997
  204. ^ Great Seal webpage. Viewed August 19, 2011.
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  206. ^ Levinson, op.cit., p.118
  207. ^ The United States National Archives Rotunda |The 360 NARA Rotunda Tour stands the visitor in the center, allows zoom in, click and drag to look at the inlaid marble floor and ornate ceiling.
  208. ^ Levinson, op.cit., p.119
  209. ^ Levinson, op.cit., p.119
  210. ^ Levinson, op.cit., p.120
  211. ^ Harper, Douglas., |Slavery in the North: Massachusetts. Viewed September 15, 2011.
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  213. ^ Harper, Douglas., |Slavery in the North: Massachusetts. Viewed September 15, 2011.
  214. ^ Levinson, op.cit., p.133, 130, 129
  215. ^ The visitor to the National Archives website today is invited to sign the Constitution online. Viewed September 11, 2011.
  216. ^ Levinson, op.cit., p.144
  217. ^ National Park Service, Signers of the Constitution: Text and History Books on line series, viewed September 18, 2011.
  218. ^ National Park Service, Signers of the Constitution: Text and History Books on line series, viewed September 18, 2011.
  219. ^ Since 1987, inspections were enhanced by an electronic imaging monitoring system developed for NARA by the Jet Propulsion Laboratory in California. In 1995, conservators noticed changes in the glass encasements of the Declaration of Independence and the Bill of Rights. Glass experts from Libby-Owens-Ford (the original manufacturer of the encasement glass) and the Corning Glass Museum identified signs of deterioration. Both the glass experts and the National Archives Advisory Committee on Preservation recommended that the Charters be re-encased by 2002 for document safety. (NARA website)
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  223. ^ a b Misspellings in the U.S. Constitution. U.S. Constitution Online.
  224. ^ Transcription using it's with an apostrophe: "The United States Constitution". U.S. House of Representatives.
  225. ^ Transcription using its without an apostrophe: "Constitution of the United States". U.S. Senate.
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  227. ^ Lincoln’s Constitution by Daniel A. Farber. 2003 ISBN 0-226-23793-1 P.3. “Secession was indeed unconstitutional…military resistance to secession was not only constitutional but also morally justified. P.198. “the primary purpose of the Constitution was … to create ‘a more perfect union’… the Constitution was an exercise in nation building.
  228. ^ Mexico and the United States, by Lee Stacy, Brown Reference Group. 2003. ISBN 0-7614-7402-1 (set) academic consultants: David E. Lorey, Hewett Foundation, Hector Manuael Lucero, University of Southern California. Vol. 2. p.436. “Juarez regarded the United States as a model of republican democracy and consistently supported Abraham Lincoln.”
  229. ^ Constitutional History of the Philippines, by George A. Malcolm, Associate Justice of the Supreme Court of the Philippine Islands. American Bar Association journal, Volume 6. Sep. 1920 p. 109 “The institutions of the two countries which have most influenced constitutional development are Spain and the United States.” One of the reforms, “sine quibus non”, to use the words of Rizal and Mabini, always insisted upon by the Filipinos, was Philippine representation in the Spanish Cortez, the promulgation in the Islands of the Spanish Constitution, and the complete assimilation equal to that of any in the Spanish provinces on the continent.”
  230. ^ The United States constitution: its birth, growth, and influence in Asia, By Joseph Barton Starr, American Studies Association of Hong Kong, .1988. ISBN 962-209-201-2p.193. “Dr. Sun Yat Sen and the U.S. Constitution, by Li Quing Yu, Associate Professor of History at Nanjing University, People’s Republic of China. “In the modern history of China, there were many revolutionaries who tried to seek the truth from the West in order to overthrow the feudal system of the Ching Dynasty. Dr. Sun was the greatest among them. The fact that Dr. Sun Yat-sen became a great revolutionary and thinker is inseparable from the influence of American democracy, especially the U.S. Constitution, upon him.”
  231. ^ “American constitutionalism heard round the world, 1776-1989: a global perspective NYU press 2009. George Athan Billias. Law. Winner of the 2010 Book Award from the New England Historical Association. Page xi – xv.
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References

Primary sources

  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993) ISBN 0-940450-42-9
  • Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X
  • Elliot, Jonathan, The Debates in the Several State Conventions of the Adoption of the Federal Constitution 5 vols Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison’s Notes, Misc. Letters
  • Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, published during its Discussion by the People, 1787-1788, edited with notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y., 1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.
  • Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.
  • Kaminski, John P. ed Documentary History of the Ratification of the Constitution, 1976- (Published volumes 1-10, 13-23, forthcoming volumes 11-12, 24-29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5 ISBN 978-0-87020-439-5), Madison, The State Historical Society of Wisconsin, (http://www.wisconsinhistory.org/ratification) Edited by John P. Kaminski, Gaspare J. Saladino,Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.
  • Kurland, Philip B. and Lerner, Ralph, eds. The Founders' Constitution. The work consists of “extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced.” (Liberty Fund ISBN 0-86597-279-6) The Online Edition is a joint venture of the University of Chicago Press and the Liberty Fund.
  • Maier, Pauline (2010). Ratification: The People Debate the Constitution, 1787-1788. Simon & Schuster. ISBN 978-0684868547. 
  • Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)
  • Tribe, Laurence H. American Constitutional Law (1999)
  • Yale Law School: "The Avalon Project: Notes on the Debates in the Federal Convention". The Avalon Project at Yale Law School. http://avalon.law.yale.edu/subject_menus/debcont.asp. Retrieved 2011-05-08. 

Reference books

  • Hall, Kermit, ed. The Oxford Companion to the Supreme Court of the United States. Oxford U. Press, 1992. 1032 pp.
  • Levy, Leonard W. et al., ed. Encyclopedia of the American Constitution. 5 vol; 1992; 3000 pp.

Secondary sources

Further reading

  • Klos, Stanley L. (2004). President Who? Forgotten Founders. Pittsburgh, Pennsylvania: Evisum, Inc.. p. 261. ISBN 0-9752627-5-0. 

External links

National Archives

Official U.S. government sources

Non-governmental web sites


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