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DISENCHANTED with British rule, thirteen American colonies sent delegates to the Continental Congress in Philadelphia in 1776. There they adopted the Declaration of Independence, which was confirmed after the Revolution by the Treaty of Paris in 1783. The colonies had become independent states.
They had also established a confederation. Shortly after declaring independence, the Continental Congress had proposed the Articles of Confederation, and by 1781 all thirteen states had ratified them. These Articles were the first constitution of the United States.
The confederation created by the articles was quite feeble. The central government did have broad powers over military and foreign affairs. In domestic matters, however, except for the coining and regulation of money, nearly all authority was reserved to the individual states. There was no independent executive authority, and there were essentially no federal courts. Congress lacked power even to impose taxes to cover federal expenditures. The central government was dependent upon the states.
Dissatisfaction with the Articles of Confederation prompted the states in 1787 to send delegates to Philadelphia once again, in hopes of strengthening the central government. Though authorized only to propose amendments to the articles, the convention resolved to scrap them entirely and propose a brand new Constitution. Moreover, invoking the principle of popular sovereignty embodied in the Declaration of Independence, the delegates decided to disregard a provision in the articles requiring the consent of all thirteen state legislatures before they could be altered. "We must go to the original powers of Society," James Wilson argued; "the House on fire must be extinguished, without a scrupulous regard to ordinary rights." Within two years, after ratification by conventions in nine states as provided in its seventh Article, the new Constitution went into effect.
This Constitution has been amended from time to time, but its basic provisions are still in force. It consists of seven articles and twenty-six (or twenty-seven) amendments. It grants powers to the central government, divides those powers among the various branches, and limits the powers of both the central government and the states.
The government the Constitution established was in the main a free and representative one, though marred by provisions recognizing the existence of slavery. It was also a limited one, for despite their perception of the need for additional federal authority the framers were distrustful of government in general and of the central government in particular. Among the most prominent characteristics of the Constitution, therefore, are three great structural principles designed to guard against the possible abuse of governmental power.
The principle of federalism limits the risk of official oppression by dividing power between the nation and its constituent states; that of separation of powers does so by allocating authority among the three branches of the federal government. The principle of checks and balances provides further protection by giving one branch authority to impede misguided or illegal actions of another. None of these three principles is mentioned by name in the Constitution, but each is reflected in a number of its express provisions.
Article I, § 1 entrusts federal legislative authority to the United States Congress, which is composed of two chambers—the Senate and the House of Representatives. Members of the House are elected directly by the people for two-year terms, and the seats are distributed among the states according to population (art. I, § 2). California thus has more than fifty representatives; Delaware and Alaska have only one.
In the Senate, on the other hand, each state has two members (art. I, § 3), and under article V this provision effectively cannot be amended. These concessions to the smaller states were the price of their approval of the Constitution.
Originally Senators were elected by the state legislatures, permitting the states themselves to play a role in the national government. The Seventeenth Amendment altered this procedure in the interest of democracy; since 1913 Senators too have been directly elected by the people.
Article I imposes minimal age, citizenship, and residence requirements for both Senators and Representatives. Neither Congress nor the states may add to these qualifications. As the Supreme Court said in striking down term limits for members of Congress in 1995, the constitutional list is exclusive; beyond the most fundamental restrictions, the framers meant to give voters maximum freedom to elect whomever they chose.
Most of the subjects of possible federal legislation are listed in article I, § 8. Congress may raise and support armies and navies and declare war. It may regulate commerce with foreign nations, among the states, and with Indian tribes. It may coin money and make rules for the naturalization of foreigners. It may enact patent, copyright, and bankruptcy laws, establish post offices, and govern the District of Columbia. It may impose taxes and borrow money to pay federal obligations. Finally, it may enact all laws "necessary and proper" to the execution of any powers entrusted to the central government.
Other provisions give Congress miscellaneous additional powers. Article IV authorizes it to admit new states, govern federal territories, and prescribe the effect of one states laws and decisions in the courts of another, article V empowers Congress to propose constitutional amendments. Amendments 13–15, 19, 23–24, and 26 authorize Congress to enforce their provisions "by appropriate legislation."
On their face these powers do not seem very extensive. Apart from relatively minor or incidental matters, the Constitution added to the authority already conferred by the articles of Confederation only the powers to tax and to regulate commerce. Even this limited authority, moreover, is further restricted by article I, § 9, which among other things forbids Congress to tax exports or to prefer one states ports over another and requires that "direct" taxes be apportioned among the states according to population. This last restriction effectively prevented federal income taxes until the Sixteenth Amendment was adopted in 1913.
The enumeration of congressional powers implies that Congress has only the authority given it by the Constitution, and the Tenth Amendment confirms this conclusion: "The powers not delegated to the United States by the Constitution, and not prohibited by it to the States, are reserved to the States respectively, or to the people." Through the process of interpretation, however, the modest provisions just described have been held to give Congress surprisingly broad legislative authority.
Like the Constitution itself, statutes lawfully enacted by Congress are "the supreme law of the land" (art. VI). Thus if federal and state law conflict, the former prevails.
Article II, § 1 entrusts federal executive power to the President of the United States, who is elected for four years and (since adoption of the Twenty-second Amendment in 1951) no more than twice. Because the authors of the Constitution did not trust the people to make a wise choice, the President is elected not directly but by "electors" chosen by the voters of the several states (art. II, § 1; and amend. 12). This system never worked as the framers intended; from almost the outset, electors have been mere figureheads who rubber-stamp the voters' choice.
Each state elects a number of electors corresponding to the total of its Senators and Representatives, and since 1961 the District of Columbia (which has no vote in Congress) chooses no more "than the least populous state" (amend. 23). Since each state has two Senators regardless of population, the smaller states are somewhat overrepresented in the choice of a President as well. Moreover, state laws generally provide that the winner of the popular vote within a state receives all of its electoral votes. These factors make it possible for a candidate who receives a majority of the total popular vote to lose the election. This actually occurred when Rutherford B. Hayes defeated Samuel Tilden in 1876.
If no candidate receives a majority of the electoral votes, the House of Representatives selects the President "from the persons having the highest numbers not exceeding three." In this process each state has only one vote regardless of its number of Representatives, and a majority of all states is required (amend. 12).
Originally the candidate finishing second in the presidential balloting became Vice-President. After the unexpected tie vote between Thomas Jefferson and his running mate Aaron Burr in 1800, however, the Twelfth Amendment required the electors to vote separately for the two offices.
The Vice-President's principal function is to assume the duties of a President who dies or becomes incapable of carrying out his duties (art. II, § 1; amend. 25). The Vice-President also "act[s] as President" if (through inability of any candidate to obtain a majority in either the Electoral College or the House) no President has been selected (amend. 20).
So long as there is a competent President, the Constitution gives the Vice-President little to do beyond the largely mechanical task of presiding over the Senate—with the occasionally significant prerogative of voting to break a tie (art. I, § 3). This substantial lack of duties was the basis of the waggish inquiry, "whatever became of Hubert?"—the respected and influential Senator Hubert Humphrey, who became Vice-President in 1965—and disappeared.
The President's independence from Congress is strengthened by the fact that he (or she) can be removed only by the difficult process of impeachment. A majority vote of the House of Representatives is required to bring charges against the President, and a two-thirds vote of the Senate is required for removal (art. I, §§ 2, 3). Like other federal officers, a President may not be removed for political reasons, but only for "treason, bribery, or other high crimes and misdemeanors"—an imprecise concept that basically requires a serious abuse of official power.
No President has actually been removed from office by this procedure. After the Civil War an essentially political attempt to remove Andrew Johnson failed by a single vote in the Senate. In 1974, in what was widely regarded as a vindication of the impeachment provisions, Richard Nixon resigned after the House Judiciary Committee voted to charge him with concealing information about the burglary of a Democratic campaign office, discriminatory enforcement of federal laws against political opponents, and disobedience of a subpoena issued by the committee itself. President Clinton was impeached in 1998 for perjury and obstruction of justice in connection with the Monica Lewinsky scandal, but the Senate failed to convict him.
The independence of members of Congress from the executive and judicial branches is reinforced by the provision of article I, § 6 that "for any speech or debate in either House, they shall not be questioned in any other place." There is no comparable provision expressly protecting the President from outside interference, but the Supreme Court has found such protection implicit in article II's provisions for an independent executive. The confidentiality of executive communications is guarded by a conditional "executive privilege" that can be overridden by important countervailing interests; to avoid deterring the President from performing his duties, he may not be sued for damages arising out of his official actions.
Clinton v. Jones, decided in 1997, refused to extend these precedents to permit a President to defer a damage suit unrelated to his duties until he was out of office. President Jefferson had powerfully stated the argument for immunity in resisting the suggestion that he could be ordered to give evidence in person in the treason trial of Aaron Burr. There might be many such demands, he said, on a President's time; "[t]o comply with such calls would leave the nation without an executive branch, whose agency is understood to be so constantly necessary that it is the sole branch which the constitution requires to be always in function. It could not, then, intend that it should be withdrawn from its station by any co-ordinate authority."
Jefferson provided the court with the documentary evidence it demanded, but Chief Justice Marshall did not insist on his presence at the trial. Indeed he essentially conceded the correctness of Jefferson's position: If attendance in court would significantly interfere with the Presidents duties, he had only to say so and he would be excused.
The accommodating language that Marshall employed in acknowledging that the President's schedule might justify relieving him from the relatively trivial inconvenience of appearing at someone else's trial contrasts sharply with the lack of concern displayed by a unanimous Supreme Court in Clinton over subjecting one of his successors to the continuing burden of defending a personal tort action that endangered both his reputation and his fortune. Arguably the President should be put to the task of asserting, or more doubtfully of convincing the court, that the demands of the office preclude his devoting the requisite attention to the individual proceeding; but surely Jefferson and Marshall were right that there must be some means of ensuring that the President is not distracted from doing his job.
Most of the President's powers are enumerated in article II, §§ 2, 3. He is commander in chief of the armed forces. He has authority to pardon federal crimes, except in cases of impeachment. With Senate consent he appoints judges and other federal officers and makes treaties with foreign nations. In other respects as well he plays the leading role in international affairs—partly on the basis of the unprepossessing provision empowering him to "receive ambassadors and other public ministers" and partly on the theory that certain foreign-affairs powers are inherent in the office itself. The further direction that the President "take care that the laws be faithfully executed" gives him basic responsibility for the enforcement of federal law.
Finally, the President plays an important role in the legislative process by virtue of the veto power granted by article I, § 7: If he refuses to approve a bill passed by Congress, it becomes a law only if passed again by a two-thirds majority of each House. He also may, and often does, recommend legislation for congressional consideration (art. II, § 3).
Article III, § 1 entrusts federal judicial power to the Supreme Court of the United States and such inferior tribunals as Congress chooses to establish. Since 1789 there have been federal trial courts (United States District Courts) in every state, and since 1891 there have also been intermediate Courts of Appeals.
The same section provides that federal judges hold office "during good behavior." Apart from the limited possibility of impeachment, this is understood to mean for life, and a further provision assures that their compensation may not be reduced while they are in office. The purpose of these provisions is to ensure that the judges can do their job without fear of reprisals by other branches.
Like Congress, the federal courts have only the authority granted them by the Constitution. Their most important function is to decide "cases" and "controversies"—that is, lawsuits. Under article II, § 2 Congress may also authorize the courts to appoint "inferior officers" who otherwise would be named by the President with Senate approval. Although the context suggests that this provision was designed to permit courts to appoint their own clerks and other judicial officers, Congress in the wake of the Watergate affair authorized them to appoint special prosecutors as well, and the Supreme Court sustained the provision.
Not all lawsuits may be decided by federal courts; their authority is limited to certain kinds of controversies that the framers of the Constitution thought appropriate subjects of national concern.
The most important of these are cases involving the Constitution itself, federal laws, or treaties ("federal-question" cases). Federal authority to decide these disputes helps to ensure the supremacy and uniformity of federal law. Admiralty cases, which generally have to do with shipping, were included because of the international nature of the shipping business and its importance to the new nation.
Federal judicial authority also extends to controversies between citizens of different states ("diversity of citizenship" cases), in order to avoid the risk that a state court might prefer its own citizens in disputes with outsiders. For similar reasons, federal courts may also decide controversies between states and cases to which the United States is a party. The authority of federal courts to entertain suits against states, however, was limited by the Eleventh Amendment in 1795.
Excerpted from The Constitution of the United States by David P. Currie. Copyright © 2000 The University of Chicago. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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|The Bill of Rights||10|
|Origin and Justification||15|
|Scope and Limitations||19|
|The Commerce Clause and State Authority||31|
|4||The Separation of Powers|
|The Rule of Law||36|
|5||Due Process of Law|
|Substantive Due Process||50|
|Racial Discrimination and Segregation||59|
|Affirmative Action and De Facto Discrimination||61|
|The Right to Vote||70|
|7||Freedom of Speech and of the Press||74|
|Time, Place, and Manner Regulations||80|
|8||Church and State||83|
|The Free Exercise of Religion||83|
|Establishment of Religion||86|
|App. A: Chronology||95|
|App. B||The Constitution of the United States||102|