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The Constitution of the United States of America

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Why a reference?

Good question. It seems to me that nobody has actually read the Constitution, which is a shame because it is so readable (really: written in clear, if somewhat antiquated, English) and so short (really: a five-minute read). So get down to it!

The hierarchy of the United States Government

The Constitution comes first

Well, here goes: At the top of the pile is The United States Constitution (here linked at The National Archives). The Constitution lays-out the structure of the government, it explcitly and implictly enumerates rights of the people, and it provides the framework for the structure and function of the United States Federal Government.

The Federal Government as framed in the Constitution

The Legislature

Beneath the Constitution is the government itself. The Constitution says that legislative powers shall be vested in Congress:

Article I, Section 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

It provides a means of selecting that legislature, which historically includes the "three-fifths compromise," an unfortunate attempt to placate southern slave-holders and the first step on the road to the Civil War; this is also where the mandate for the decennial census is located:

Article 1, Section 2

(in part)

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

Certain powers are explicitly granted to the Congress:

Article I, Section 8

The Congress shall have Power

Oh! Look at that third clause: that's the "Interstate Commerce Clause." "Wow!" you might say, and well you should. That clause is the basis for a tremendous amount of legislation and Federal authority, as just about everything has something to do with commerce, and if it crosses state lines (in any way immaginable) it is interstate! WOW!

Also, certain powers are explicitly forbidden from the Congress:

Article I, Section 9

I'm a little fuzzy on that first clause: it looks suspicsously like sop to the southern states. The fourth clause was superceded by the 16th Amendment. The second and third clauses (habeas corpus and bills of attainder & ex post facto laws) are crucial to the liberty of the people.

The Executive

It was never mentioned in the Constitution that this guy was supposed to become a rock-star. And The President as Rock-Star is not such a good idea anyway: it vests too much charismatic authority in the one person, when after-all the legal authority (limited as it is) is what is really intended to be the foundation of the office.

Article II, Section 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term... [the rest of this has been superceded by various amendments]

Article II, Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article II, Section 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Article II, Section 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

That's it: that's all it says about the President: not a lot there, and the whole "rock-star" things seems to be absent.

Oh! An important note here: "Treason, Bribery, or other high Crimes and Misdemeanors" does not include lying (under oath) about sex with an intern.

The Judiciary

I've always wondered why the judicial power of the United States gets involved with torts. I mean, why is there even such a thing? Why get the government involved in what is fundamentally a personal matter between individuals (just like marriage). There must be a compelling state interest there somewhere, right? Anyway, here it is:

Article III, Section 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Article III, Section 2.

The judicial Power shall extend

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Article III, Section 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

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

That's it: that's all it says about the judiciary. Note that the standard for judges' behaviour is "good" as opposed to the executive. Note also in Article III, Section 2, the first clause ("to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States..."), which lays the foundation, although not explicitly stated, for the Supreme Court to review the constitutionality of laws. Finally, note the added Congressional perquisite and limitation here in Article III, Section 3, second clause.

Relations among the states

A few interesting notes here:

Article IV, Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

So what's done in one state, marriage for example, must be recognized in all other states.

Article IV, Section 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

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

Fortunately, that last clause was repealed.

Article IV, Section 3.

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

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Article IV, Section 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article IV is interesting: did it really take the 24th Amendment to eliminate poll taxes? Wasn't that a non-Republican form of government? Of course beyond that, the ability of certain states to maintain the hold of the "Jim Crow" laws for so long is testimony to the unwillingness of the Federal government to enforce this article.


Article V is one brief paragraph on the process for amendmending the constitution.

Article VI.

[Paragraph one:] All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. [Now essentially obsolete.]

[Paragraph two:] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

That means the absolute supremacy of the Constitution and the laws and treaties of Federal government over the various states (somewhat muddled by the 10th Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."--which is a nice sentiment). This provides the foundation for the Federal Premption of state and local laws.

[Paragraph three:] The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Wow! Did you see that? The second (i.e., last) clause? Let's just state it again to make sure it's clear:

[B]ut no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Really? It surely doesn't seem that way.

Ratification and marginal notes

Obsolete now.

And that's it.

Amendments: The first ten, "The Bill of Rights"
The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So much in one small amendment:

  1. freedom of-and-from religion,
  2. free press,
  3. free speech,
  4. free assembly,
  5. freedom to petiton (i.e., complain to-and-about) the state:

WOW! They really nailed this one.

The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

My question to the United States Supreme Court under Chief Justice John Roberts and to the National Rifle Association is this:

What part of "well regulated" don't you get?

Don't get me wrong: I'm not in favor of a disarmed population, but I just don't see a limitlessly armed population in that first clause. In fact, I don't get this whole text: yes, I know, the courts and constitutional scholars have been poring over this for two centuries. But the framers did no elucidation on this elsewhere, so who really knows how this is supposed to read? Take a choice (all I'm doing is substituting brackets for a comma to mark a clause and then graying for emphasis: nothing more):

  1. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  2. A well regulated Militia, being necessary to the security of a free State, [the right of the people to keep and bear Arms] shall not be infringed.
  3. A well regulated Militia [being necessary to the security of a free State, the right of the people to keep and bear Arms], shall not be infringed.

Going from one to three here, the collective right to "keep and bear arms" exists only under the supervision of a "well regulated milita."

Going the other way,

  1. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  2. [A well regulated Militia] being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  3. [A well regulated Militia, being necessary to the security of a free State] the right of the people to keep and bear Arms, shall not be infringed.

Going from one to three here, the necessity of a "well regulated milita" has morphed into an individual "right of the people."

This is not an area for judicial activism, which has become a hallmark of the Roberts Court: why didn't the framers of the Constitution simply write what they meant? In a document otherwise so clearly written, this is amazing. An author at Wikipedia provides an interesting and seemingly comprehensive background on the Second Amendment, including earlier drafts; however, no obvious specific intention or deliberative history emerges.

The Third Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I guess that somebody thought this was important at the time, but today it remains fairly obscure. It has been used as the basis for a "right to privacy" [Griswold v. Connecticut, 381 U.S. 479, 484 (1965)], and was used to prevent the eviction of New York State prison guards from housing to allow quartering of New York State National Guard troops during the 1979 Corrections Officers' strike [Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982)].

However, taken with the Fourth Amendment, it appears that there is indeed an absolute incorporated right to physical privacy in the Constitution, and along with the First Amendment, this right to privacy extends to personal thought and action, rights that are therefore equally protected under the Ninth Amendment's explicitly stated incorporation of rights broadly, not just those specifically stated in the constitution (which directly implies that Roe v. Wade was correctly decided).

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

One of the biggies: the stuff of limitless plot devices in Law and Order. And no midnight knocks on the front door.

The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Another of the biggies: what more needs to be said?

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

One more of the biggies:

  1. speedy trial
  2. public trial
  3. jury trial
  4. local jurisdiction
  5. disclosure of accusation
  6. confrontation of witnesses
  7. subpoena power
  8. counsel

The very founddation of our criminal justice system; but, I feel, often over-looked.

The Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Oh, here's that tort stuff again: shouldn't that $20.00 be adjusted for inflation? It should be, I believe, adjusted for inflation since 1788, all of which has happend since the First World War, about $340 by now. But an important aspect of the finality of a jury trial: isn't that a prohibition against double-jeopardy, too?

The Eight Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Another block-buster: how do we still have capital punishment: do we really not consider that "cruel"?

The Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There is explicitly stated here that there are rights that are not enumerated in the Constitution, but that those rights do exist (e.g., "Natural Rights" as envisioned during the Enlightment) and are incorporated in the Constitution by this reference. (Thus, any argument about a right not being protected because "'it' is not stated in the constitution" is spurious, as "it" is implicitly incorporated here.)

The Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Clearly, there is the intent is to preserve rights at the lowest hierarchical level, the people and/or the states, and to remove them from the meddling of a central government.

What next?

That is how the country was founded. There have been an additional 17 amendments to the constitution. These have included the following:

A few numbers

Of the 17 ammendments,

A lot of tinkering going on with voting and the Presidency.

rev.: 4 July 2010 [ TOP ] [ Politics Pages Home ] [ Notes-&-Rants Page ] [ HOME ]

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