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WIKIMAG n. 6 - Maggio 2013
United States Constitution
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The Constitution of the United States is the
supreme law of the
United States of America.[1]
The first three Articles of the
Constitution establish the rules and
separate powers of the three branches of the federal government: a
legislature, the
bicameral
Congress; an executive branch led by the
President; and a federal judiciary headed by the
Supreme Court. The last four Articles frame the principle of
federalism. The Tenth Amendment confirms its
federal characteristics.
The Constitution was adopted on September 17, 1787, by the
Constitutional Convention in Philadelphia, Pennsylvania, and
ratified by conventions in eleven
states. It went into effect on March 4, 1789.[2]
The United States Constitution can be changed through the amendment
process.
Constitutional amendments are added to it, altering its effect. The
first ten amendments, ratified by three-fourths of the states in 1791,
are known as the
Bill of Rights. The
Constitution has been amended seventeen additional times (for a
total of twenty-seven amendments). Principles of the Constitution, as
amended, are applied in courts of law by
judicial review.
The Constitution guides American
law and
political culture.
Its writers composed the first constitution of its kind
incorporating recent developments in
constitutional theory with multiple traditions, and their work
influenced later writers of national
constitutions. It is supplemented and interpreted by a large body of
United States constitutional law. Recent impulses for reform center
on concerns for extending
democracy and
balancing the federal budget.
History
First government
The
Articles of Confederation and Perpetual Union was the first
constitution of the United States of America.[3]
The chief problem with the new government under the Articles of
Confederation was, in the words of
George Washington, "no money."
The Continental Congress could print money; but, by 1786, the
currency was worthless. (A popular phrase of the times chimed that a
useless object or person was .. not worth a Continental,
referring to the Continental dollar.) Congress could borrow money, but
couldn't pay it back.
No state paid all their U.S. taxes; Georgia paid nothing, as did New
Jersey in 1785. Some few paid an amount equal to interest on the
national debt owed to their citizens, but no more.
No interest was paid on debt owed foreign governments. By 1786, the
United States would default on outstanding debts as their dates came
due.
In the world of 1787, the United States could not defend its
sovereignty as an independent nation. Most of the troops in the 625-man
U.S. Army were deployed facing—but not threatening—British forts being
maintained on American soil. Those troops had not been paid; some were
deserting and others threatening mutiny.
Spain closed New Orleans to American commerce; U.S. officials protested,
to no effect.
Barbary Pirates began seizing American ships of commerce; the
Treasury had no funds
to pay the pirates' extortionate demands. If any extant or new
military crisis required action the Congress had no credit or taxing
power to finance a response.
The new government (of the united states) was proving
inadequate to the obligations of
sovereignty within the
confederation of the individual states. That is, although the
Treaty of Paris (1783) was signed between Great Britain and the
United States and each of the states by name, the various individual
states proceeded blithely to violate it. New York and South Carolina
repeatedly prosecuted Loyalists for wartime activity and redistributed
their lands over the protests of both Great Britain and the
Confederation Congress.
Individual state legislatures independently laid embargoes, negotiated
directly with foreigners, raised armies and made war, all violating the
letter and the spirit of the “Articles of Confederation and Perpetual
Union”.
During
Shays' Rebellion in Massachusetts, Congress could provide no money
to support an endangered constituent state. Nor could Massachusetts pay
for its own internal defense; General
Benjamin Lincoln was obliged to raise funds from Boston merchants to
pay for a volunteer army.
During the next Convention,
James Madison angrily questioned whether the Articles of
Confederation was a binding compact or even a viable government.
Connecticut paid nothing and "positively refused" to pay U.S.
assessments for two years.
A rumor had it that a "seditious
party" of New York legislators had opened a conversation with the
Viceroy of Canada. To the south, the British were said to be openly
funding
Creek Indian raids on white settlers in Georgia and adjacent
territory. Savannah was fortified and the State of Georgia was under
martial law.
Congress was paralyzed. It could do nothing significant without nine
states, and some legislation required all thirteen. When a state
produced only one member in attendance, its vote was not counted. If a
state's delegation were evenly divided, its vote could not be counted
towards the nine-count requirement.
The Articles Congress had "virtually ceased trying to govern."
The vision of a "respectable nation" among nations seemed to be fading
in the eyes of revolutionaries such as
George Washington,
Benjamin Franklin and
Rufus King. Their dream of a republic, a nation without hereditary
rulers, with power derived from the people in frequent elections, was in
doubt.
Constitutional Convention
On February 21, 1787, the Articles Congress called a convention of
state delegates at Philadelphia to propose a plan of government. Unlike
earlier attempts, the convention was not meant for new laws or piecemeal
alterations, but for the “sole and express purpose of revising the
Articles of Confederation”. The convention was not limited to commerce;
rather, it was intended to “render the federal constitution adequate to
the
exigencies of government and the preservation of the Union." The
proposal might take effect when approved by Congress and the states.[12]
On the appointed day, May 14, 1787, only the Virginia and
Pennsylvania delegations were present. A quorum of seven states met on
May 25. Eventually twelve states were represented; 74 delegates were
named, 55 attended and 39 signed. The delegates arrived with backgrounds
in local and state government and Congress. They were judges and
merchants, war veterans and revolutionary patriots, native-born and
immigrant, establishment easterners and westward-looking adventurers.
The participating delegates are honored as the Constitution’s
“Framers”.[13]
Drafting
the Constitution
The Constitutional Convention began deliberations on May 25, 1787.
The delegates were generally convinced that an effective central
government with a wide range of enforceable powers must replace the
weaker Congress established by the Articles of Confederation. The high
quality of the delegates to the convention was remarkable. As Thomas
Jefferson in Paris wrote to John Adams in London, "It really is an
assembly of demigods." According to one view, the Framers embraced
ambiguity in the constitutional text, since it allows for compromise and
cooperation about broad concepts rather than specific circumstances.[14]
Delegates used two streams of intellectual tradition, and any one
delegate could be found using both or a mixture depending on the subject
under discussion: foreign affairs, the economy, national government, or
federal relationships among the states. The
Virginia Plan recommended a consolidated national government,
generally favoring the most populated states. It used the philosophy of
John Locke to rely on consent of the governed,
Montesquieu for divided government, and
Edward Coke to emphasize
civil liberties. The
New Jersey Plan generally favored the less populated states, using
the philosophy of English Whigs such as
Edmund Burke to rely on received procedure, and
William Blackstone to emphasize sovereignty of the legislature.
The Convention devolved into a “Committee
of the Whole” to consider the fifteen propositions of the Virginia
Plan in their numerical order. These discussions continued until June
13, when the Virginia resolutions in amended form were reported out of
committee.
All agreed to a republican form of government grounded in
representing the people in the states. For the legislature, two issues
were to be decided: how the votes were to be allocated among the states
in the Congress, and how the representatives should be elected. The
question was settled by the
Connecticut Compromise or "Great Compromise". In the House, state
power was to be based on population and the people would vote. In the
Senate, state power was to be based on state legislature election, with
two Senators generally to be elected by different state legislatures to
better reflect the long term interests of the people living in each
state.
The Great Compromise ended the stalemate between “patriots” and
“nationalists”, leading to numerous other compromises in a spirit of
accommodation. There were sectional interests to be balanced by the
three-fifths compromise; reconciliation on Presidential term,
powers, and method of selection; and jurisdiction of the federal
judiciary. Debates on the Virginia resolutions continued. The 15
original resolutions had been expanded into 23.
On July 24, a committee of five (John Rutledge (SC), Edmund Randolph
(VA), Nathaniel Gorham (MA), Oliver Ellsworth (CT), and James Wilson
(PA)) was elected to draft a detailed constitution. The Convention
adjourned from July 26 to August 6 to await the report of this "Committee
of Detail". Overall, the report of the committee conformed to the
resolutions adopted by the Convention, adding some elements.
From August 6 to September 10, the report of the committee of detail
was discussed, section-by-section, and clause-by-clause. Details were
attended to, and further compromises were effected. Toward the close of
these discussions, on September 8, a "Committee of Style" of five was
appointed. Its final version was taken up on Monday, September 17, at
the Convention's final session. Several of the delegates were
disappointed in the result, a makeshift series of unfortunate
compromises. Some delegates left before the ceremony, and three others
refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up
addressing the Convention, "There are several parts of this Constitution
which I do not at present approve, but I am not sure I shall never
approve them." He would accept the Constitution, "because I expect no
better and because I am not sure that it is not the best."
The advocates of the Constitution were anxious to obtain the
unanimous support of all twelve states represented in the Convention.
Their accepted formula was “Done in Convention, by the unanimous consent
of the States present.” George Washington noted in his diary that night,
the proposal was agreed to by eleven state delegations and the lone Mr.
Hamilton for New York. Transmitted to the Articles Congress then sitting
in New York City, the Constitution was forwarded to the states by
Congress recommending the ratification process outlined in the
Constitution. Each state legislature was to call elections for a
“Federal Convention” to ratify the Constitution. They expanded the
franchise beyond the Constitutional requirement to more nearly embrace
“the people”. Eleven ratified initially, and all thirteen unanimously
did so a year later. The Articles Congress certified eleven states'
beginning the new government, and called the states to hold elections to
begin operation. It then dissolved itself on March 4, 1789, the day the
first session of the First Congress began. George Washington was
inaugurated as President two months later.
Ratification
It was within the power of the old congress to expedite or block the
ratification of the new Constitution. The document that the Philadelphia
Convention presented was technically only a revision of the Articles of
Confederation. But the last article of the new instrument provided that
when ratified by conventions in nine states (or 2/3 at the time), it
should go into effect among the States so acting.
Then followed an arduous process of
ratification of the Constitution by specially constituted
conventions. The need for only nine states was a controversial decision
at the time, since the
Articles of Confederation could only be amended by unanimous vote of
all the states. However, the new Constitution was ratified by all
thirteen states, with Rhode Island signing on last in May 1790.
Three members of the Convention –
Madison,
Gorham, and
King – were also Members of Congress. They proceeded at once to New
York, where Congress was in session, to placate the expected opposition.
Aware of their vanishing authority, Congress, on September 28, after
some debate, unanimously decided to submit the Constitution to the
States for action. It made no recommendation for or against adoption.[15]
Two parties soon developed, one in opposition, the
Antifederalists, and one in support, the
Federalists, of the Constitution, and the Constitution was debated,
criticized, and expounded clause by clause.
Hamilton,
Madison, and
Jay,
under the name of
Publius,
wrote a series of commentaries, now known as the
Federalist Papers, in support of the new instrument of government;
however, the primary aim of the essays was for ratification in the state
of New York, at that time a hotbed of anti-federalism. These
commentaries on the Constitution, written during the struggle for
ratification, have been frequently cited by the Supreme Court as an
authoritative contemporary interpretation of the meaning of its
provisions. The closeness and bitterness of the struggle over
ratification and the conferring of additional powers on the central
government can scarcely be exaggerated. In some states, ratification was
effected only after a bitter struggle in the state convention itself. In
every state, the Federalists proved more united, and only they
coordinated action between different states, as the Anti-federalists
were localized and did not attempt to reach out to other states.
The Continental Congress – which still functioned at irregular
intervals – passed a resolution on September 13, 1788, to put the new
Constitution into operation.
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.
The
due process clause of the Constitution was partly based on
common law and on
Magna Carta (1215), which had become a foundation of English liberty
against arbitrary power wielded by a tyrant.
Both the influence of
Edward Coke and
William Blackstone were evident at the Convention. In his
Institutes of the Laws of England, Edward Coke interpreted Magna
Carta protections and rights to apply not just to nobles, but to all
British subjects. In writing the
Virginia Charter of 1606, he enabled the King in Parliament to give
those to be born in the colonies all rights and liberties as though they
were born in England. William Blackstone's
Commentaries on the Laws of England were the most influential
books on law in the new republic.
British political philosopher
John Locke following the
Glorious Revolution was a major influence expanding on the contract
theory of government advanced by
Thomas Hobbes. Locke advanced the principle of
consent of the governed in his
Two Treatises of Government. Government's duty under a
social contract among the sovereign people was to serve them by
protecting their rights. These basic rights were
life, liberty and property.
Montesquieu emphasized the need for balanced forces pushing against
each other to prevent tyranny (reflecting the influence of
Polybius's 2nd century BC treatise on the
checks and balances of the
Roman Republic). In his
The Spirit of the Laws, Montesquieu argues that the separation
of state powers should be by its service to the people's liberty:
legislative, executive and judicial.
Division of power in a republic was informed by the
British experience with
mixed government, as well as study of republics ancient and modern.
A substantial body of thought had been developed from the literature of
republicanism in the United States, including work by
John Adams and applied to the creation of
state constitutions.
Native Americans
The
Iroquois nations' political confederacy and democratic government
under the
Great Law of Peace have been credited as influences on the Articles
of Confederation and the United States Constitution.[16]
Relations had long been close, as from the beginning, the colonial
English needed allies against
New
France. Prominent figures, such as Thomas Jefferson in colonial
Virginia and Benjamin Franklin in colonial Pennsylvania, two colonies
whose territorial claims extended into Iroquois territory, were involved
with leaders of the New York-based Iroquois Confederacy.[17]
In the 1750s, at the
Albany Congress, Franklin called for "some kind of union" of English
colonies to effectively deal with Amerindian tribes.[18]
John Rutledge (SC) quoted Iroquoian law to the Constitutional
Convention, "We, the people, to form a union, to establish peace,
equity, and order..."
[19]
The Iroquois experience with confederacy was both a model and a
cautionary tale. Their "Grand Council" had no coercive control over the
constituent members, and decentralization of authority and power had
frequently plagued the Six Nations since the coming of the Europeans.
The governance adopted by the Iroquois suffered from "too much
democracy" and the long term independence of the Iroquois confederation
suffered from intrigues within each Iroquois nation.[20]
The 1787 United States had similar problems, with individual states
making separate agreements with European and Amerindian nations apart
from the Continental Congress. Without the Convention's proposed central
government, the framers feared that the fate of the confederated
Articles' United States would be the same as the Iroquois Confederacy.
Other bills of
rights
The
United States Bill of Rights consists of the 10 amendments added to
the Constitution in 1791, as supporters of the Constitution had promised
critics during the debates of 1788.[21]
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
"We the People", as it appears in an original copy of the
Constitution.
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.
The Preamble sets out the origin, scope and purpose of the
Constitution. Its origin and authority is in “We, the people of the
United States”. This echoes the Declaration of Independence. “One
people” dissolved their connection with another, and assumed among the
powers of the earth, a sovereign nation-state. The scope of the
Constitution is twofold. First, “to form a more perfect Union” than had
previously existed in the “perpetual Union” of the Articles of
Confederation. Second, to “secure the blessings of liberty”, which were
to be enjoyed by not only the first generation, but for all who came
after, “our posterity”.
This is an itemized social contract of democratic philosophy. It
details how the more perfect union was to be carried out between the
national government and the people. The people are to be provided (a)
justice, (b) civil peace, (c) common defense, (d) those things of a
general welfare that they could not provide themselves, and (e) freedom.
A government of "liberty and union, now and forever", unfolds when “We”
begin and establish this Constitution.[a][24]
National
government
Legislature
Article One describes the
Congress, the
legislative branch of the federal government. Section 1, reads, "All
legislative powers herein granted shall be vested in a Congress of the
United States, which shall consist of a
Senate and
House of Representatives."
The article establishes the manner of
election and the qualifications of members of each body.
Representatives must be at least 25 years old, be a citizen of the
United States for seven years, and live in the state they represent.
Senators must be at least 30 years old, be a citizen for nine years, and
live in the state they represent.
Article I, Section 8 enumerates the legislative powers, which
include:
To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof.
Article I, Section 9 lists eight specific limits on congressional
power.
The
United States Supreme Court has interpreted the
Commerce Clause and the
Necessary and Proper Clause in Article One to allow Congress to
enact legislation that is neither expressly listed in the enumerated
power nor expressly denied in the limitations on Congress. In
McCulloch v. Maryland (1819), the Supreme Court read the
Necessary and Proper Clause to permit the federal government to take
action that would "enable [it] to perform the high duties assigned to it
[by the Constitution] in the manner most beneficial to the people,"[25]
even if that action is not itself within the enumerated powers.
Chief Justice Marshall clarified: "Let the end be legitimate, let it
be within the scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the Constitution,
are Constitutional."[25]
Executive
Article II, Section 1 creates the
presidency. The section vests the executive power in a President.
The President and Vice President serve identical four-year terms. 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 or a citizen at the time of the adoption of the Constitution,
at least 35 years old and a resident of the United States for at
least 14 years.[26]
The first president to be born an American citizen was
Martin Van Buren.[27]
- 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 later
25th Amendment clarifies this.
- Pay
- The President receives Compensation, and this compensation may
not be increased or decreased during the president's term in office.
The president may not receive other compensation from either the
United States or any of the individual states.
- 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 Recommendation Clause:[28]
The president has the power and duty[29]
to recommend to Congress's consideration such measures which the
president deems as "necessary and expedient".
- The president may convene either house, or both houses, of
Congress.
- When the two houses of Congress cannot agree on the time of
adjournment, the president may adjourn them to some future date.
Section 3 adds:
- The president receives ambassadors.
- The president sees that the laws are faithfully executed.
- The president commissions all the offices of the federal
government.
Section 4 provides for removal of the president and other federal
officers. The president is removed on
impeachment for, and conviction of, treason, bribery, or other high
crimes and misdemeanors.
Judiciary
Article Three describes the
court system (the
judicial branch), including the
Supreme Court. There shall be one court called the Supreme Court.
The article describes the kinds of cases the court takes as
original jurisdiction. Congress can create lower courts and an
appeals process. Congress enacts law defining crimes and providing for
punishment. Article Three also protects the right to
trial by jury in all
criminal cases, and defines the crime of
treason.
Judicial power. Article III, Section 1 is the authority to
interpret and apply the law to a particular case. It includes the power
to punish, sentence, and direct future action to resolve conflicts. The
Constitution outlines the U.S. judicial system. In the
Judiciary Act of 1789, Congress began to fill in details. Currently,
Title 28 of the U.S. Code
describes judicial powers and administration.
As of the First Congress, the Supreme Court justices rode circuit to
sit as panels to hear appeals from the
district courts.[b]
In 1891, Congress enacted a new system. District courts would have
original jurisdiction. Intermediate appellate courts (circuit
courts) with
exclusive jurisdiction heard regional appeals before consideration
by the Supreme Court. The Supreme Court holds
discretionary jurisdiction, meaning that it does not have to hear
every case that is brought to it.
To enforce judicial decisions, the Constitution grants federal courts
both
criminal contempt and
civil contempt powers. The court’s summary punishment for contempt
immediately overrides all other punishments applicable to the subject
party. Other implied powers include injunctive relief and the habeas
corpus remedy. The Court may imprison for
contumacy, bad-faith litigation, and failure to obey a
writ of mandamus. Judicial power includes that granted by Acts of
Congress for rules of law and punishment. Judicial power also extends to
areas not covered by statute. Generally, federal courts cannot interrupt
state court proceedings.
Arisings Clause. The Diversity (of Citizenship) Clause.
Article III, Section 2, Clause 1. Citizens of different states are
citizens of the United States. Cases arising under the laws of the
United States and its treaties come under the jurisdiction of federal
courts. Cases under international maritime law and conflicting land
grants of different states come under federal courts. Cases between U.S.
citizens in different states, and cases between U.S. citizens and
foreign states and their citizens, come under federal jurisdiction. The
trials will be in the state where the crime was committed.
Judicial review. Article III, Section 2. U.S. courts have the
power to rule legislative enactments or executive acts invalid on
constitutional grounds. The Constitution is the supreme law of the land.
Any court, state or federal, high or low, has the power to refuse to
enforce any statute or executive order it deems repugnant to the U.S.
Constitution. Two conflicting federal laws are under "pendent"
jurisdiction if one presents a strict constitutional issue. Federal
court jurisdiction is rare when a state legislature enacts something as
under federal jurisdiction.[c]
To establish a federal system of national law, considerable effort goes
into developing a spirit of
comity
between federal government and states. By the doctrine of ‘Res
Judicata’, federal courts give "full faith and credit" to State Courts.[d]
The Supreme Court will decide Constitutional issues of state law only on
a case by case basis, and only by strict Constitutional necessity,
independent of state legislators motives, their policy outcomes or its
national wisdom.[e]
Exceptions Clause. Article III, Section 2, Clause 2. The
Supreme Court has original jurisdiction in cases about Ambassadors and
other public ministers and consuls, for all cases respecting foreign
nation-states.[31]
Standing. Article III, Section 2, Clause 2. This is the rule
for federal courts to take a case.
Justiciability is the standing to sue. A case cannot be hypothetical
or concerning a settled issue. In the U.S. system, someone must have
direct, real and substantial personal injury. The issue must be concrete
and "ripe", that is, of broad enough concern in the Court’s jurisdiction
that a lower court, either federal or state, does not geographically
cover all the existing cases before law. Courts following these
guidelines exercise judicial restraint. Those making an exception are
said to be judicial activist.[f]
Treason. Article III, Section 3. This part of the Constitution
strips Congress of the Parliamentary power of changing or modifying the
law of
treason by simple majority statute. It's not enough merely to think
treasonously; there must be an
overt
act of making war or materially helping those at war with the United
States. Accusations must be corroborated by at least two witnesses.
Congress is a political body and political disagreements routinely
encountered should never be considered as treason. This allows for
nonviolent resistance to the government because opposition is not a life
or death proposition. However, Congress does provide for other less
subversive crimes and punishments such as
conspiracy.[g]
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).
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
Amending clause. Article V, Section 1. Article V provides for
amendments. Amendment of 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 very next session, meeting by the same authority, could
likewise undo the work of any previous sitting assembly. 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 two existing options for changing the supreme "law of the
land", (a) too easy by the states, and (b) too hard by the Articles, the
Constitution offered a federal balance of the national legislature and
the states. Two-thirds of both houses of Congress could propose an
Amendment, which can become valid "for all intents and purposes" as the
Constitution, when three-fourths of the states approve.[h]
No Amendment can ever take away equal State votes in the U.S. Senate
unless a state first agrees to it. No amendment regarding slavery or
direct taxes could be permitted until 1808. Slavery was abolished by the
Thirteenth Amendment in December 1865, direct tax on income was
effected by the
Sixteenth Amendment in February 1913.[34]
Incorporated Amendments. The
Fourteenth Amendment is used by federal courts to incorporate
Amendments into the state constitutions as provisions to protect United
States citizens. By 1968, the Court would hold that provisions of the
Bill of Rights were "fundamental to the American scheme of justice" and
apply it to the states in their relationship to individual United States
citizens in every state.[35]
Among the Bill of Rights, Doug Linder counts the First, Second,
Fourth, and Sixth Amendment as fully incorporated into State governance.
Most of the Fifth Amendment is incorporated, and a single provision of
the Eighth. The Third Amendment is incorporated only in the U.S. Second
Circuit, the states of New York, Connecticut and Vermont. The Supreme
Court has not determined the Constitutional issue is yet "ripe" for
national application in every state. The Seventh Amendment is not
incorporated.[36]
Twentieth Century Amendments use the prohibitive phrase, "neither the
United States nor any State" to comprehensively incorporate the
Amendment into the States at the time of its ratification into the
Constitution.
Federal 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 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
Ratification clause. Article VII, Section 1. Article Seven
details how to initiate the new government as proposed. The Constitution
was transmitted to the Articles Congress, then after debate, forwarded
to the states. States were to
ratify the Constitution in state conventions specially convened for
that purpose. The ratification conventions would arise directly from the
people voting, and not by the forms of any existing State constitutions.[37]
The new national Constitution would not take effect until at least
nine states ratified. It would replace the existing government under the
Articles of Confederation only after three-fourths of the existing
states agreed to move together by special state elections for one-time
conventions. It would apply only to those states that ratified it, and
it would be valid for all states joining after.
The Articles Congress certified eleven ratification conventions had
adopted the proposed Constitution for their states on September 13,
1788, and in accordance with its resolution, the new Constitutional
government began March 4, 1789.
(See above
Ratification and beginning.)
The 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.[citation
needed]
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 |
-
House-passed 12 proposals
2/3-majority, then to Senate
(States later ratify 10 of 12)
-
Senate-passed 12 proposals
2/3-majority, then 3/4 States =
Bill of Rights
|
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 an
Article V Convention to propose an amendment, or amendments, which
would only be valid if ratified by a vote of three-fourths of 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.[i]
In the first step, the proposed Amendment must be supported by
two-thirds in Congress, both House and Senate. The second step requires
a three-fourths majority of the states ratifying the amendment. Congress
determines whether the state legislatures or
special state conventions ratify the amendment.[39]
On attaining Constitutional ratification of the proposal by
three-fourths of the states, at that instant, the "fundamental law" is
expressed in that Amendment. It is operative without any additional
agency. 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 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[citation
needed]."
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.[j]
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.
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 respecting an
establishment of religion" – was ratified by the states before all
states had, of their own accord, disestablished their official churches.
The
Federalist Papers argued that amendments were not necessary to adopt
the Constitution. But without the promise in their ratification
conventions, Massachusetts, Virginia and New York could not have joined
the Union as early as 1789.
James Madison, true to his word, managed the proposed amendments
through the new House of Representatives in its first session. The
amendments that became the Bill of Rights were ten proposals of the
twelve that Congress sent out to the states in 1789.[k]
Later in American history, applying the Bill of Rights directly to
the states developed only with the
Fourteenth Amendment.
No State shall make or enforce any law which shall abridge the
privileges ... of citizens ... nor ... deprive any person
of life, liberty, or property, without due process of law;
nor deny ... the equal protection of the laws.
The legal mechanism that courts use today to extend the Bill of
Rights against the abuses of state government is called "incorporation".
The extent of its application is often at issue in modern jurisprudence.
Generally, the Bill of Rights can be seen as the States addressing
three major concerns: individual rights, federal courts and the national
government’s relationships with the States.
Individual rights
The first Amendment defines American political community, based on
individual integrity and voluntary association. Congress cannot
interfere with an individual’s religion or speech. It cannot restrict a
citizen’s communication with others to form community by worship,
publishing, gathering together or petitioning the government.
- The
First Amendment addresses the rights of
freedom of religion (prohibiting Congress from
establishing a religion and protecting the right to
free exercise of religion),
freedom of speech,
freedom of the press,
freedom of assembly, and
freedom of petition.
Trial and
sentencing
Given their history of colonial government, most Americans wanted
guarantees against the central government using the courts against state
citizens. The Constitution already had individual protections, such as
strictly defined
treason,
no
ex post facto law and guaranteed
habeas corpus except during riot or rebellion. Now, added
protections came in five Amendments.
- Protecting the accused. The
Fourth Amendment guards against
searches, arrests, and seizures of
property without a specific warrant or a "probable
cause" to believe a crime has been committed. Some rights to
privacy have been found in this amendment and others by the Supreme
Court.
- The
Fifth Amendment forbids
trial for a major
crime
except after
indictment by a
grand jury; prohibits
double jeopardy (repeated trials), except in certain very
limited circumstances; forbids punishment without
due process of law; and provides that an accused person may not
be compelled to
testify against himself (this is also known as "Taking
the Fifth" or "Pleading the Fifth"). This is regarded as the
"rights of the accused" amendment, otherwise known as the
Miranda rights after the Supreme Court case. It also prohibits
government from taking private property for public use without "just
compensation", the basis of
eminent domain in the United States.
- The
Seventh Amendment assures trial by jury in
civil cases.
- Restraining the judges. The
Sixth Amendment guarantees a speedy public trial for criminal
offenses. It requires trial by a
jury,
guarantees the right to
legal counsel for the accused, and guarantees that the accused
may require
witnesses to attend the trial and testify in the presence of the
accused. It also guarantees the accused a right to know the charges
against him. The Sixth Amendment has several court cases associated
with it, including
Powell v. Alabama,
United States v. Wong Kim Ark,
Gideon v. Wainwright, and
Crawford v. Washington. In 1966, the Supreme Court ruled
that the fifth amendment prohibition on forced self-incrimination
and the sixth amendment clause on right to counsel were to be made
known to all persons placed under arrest, and these clauses have
become known as the
Miranda rights.
- The
Eighth Amendment forbids excessive
bail or
fines, and
cruel and unusual punishment.
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.[citation
needed] And if the Constitution did not say
something was for Congress to do, then the States have the power to do
it without asking.[citation
needed]
Potential
military coercion
The
Second Amendment guarantees the right of citizens to keep their own
weapons apart from state-run arsenals.[l]
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."[m]
Over time, this amendment has been confirmed by the courts to protect
individual rights and used to overturn state legislation regulating hand
guns.
Applying the Second Amendment only to the federal government, and not
to the states, persisted for much of the nation's early history. It was
sustained in
United States v. Cruikshank (1876) to support disarming
African-Americans holding arms in self-defense from Klansmen in
Louisiana. The Supreme Court held, citizens must "look for their
protection against any violation by their fellow-citizens from the
state, rather than the national, government." Federal protection of an
individual interfering with the state’s right to disarm any of its
citizens came in
Presser v. Illinois (1886). The Supreme Court ruled the citizens
were members of the federal militia, as were "all citizens capable of
bearing arms." A state cannot "disable the people from performing their
duty to the General Government". The Court was harking back to the
language establishing a federal militia in 1792.[n]
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.[o]
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.[p]
Once again viewing federal relationships, the Supreme Court in
McDonald v. Chicago (2010) determined that the right of an
individual to "keep and bear arms" is protected by the Second Amendment.
It is incorporated by the Due Process Clause of the Fourteenth
Amendment, so it applies to the states.
The
Third Amendment prohibits the government from using private homes as
quarters for soldiers during peacetime without the consent of the
owners. The states had suffered during the Revolution following the
British Crown confiscating their militia's arms, which were stored in
arsenals in places such as Concord, Massachusetts, and Williamsburg,
Virginia. Patrick Henry had rhetorically asked, shall we be stronger,
"when we are totally disarmed, and when a British
Guard shall be stationed in every house?"
The only existing case law directly regarding this amendment is a lower
court decision in the case of
Engblom v. Carey.[41]
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,[q]
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 the right to vote
due to her sex. The
Twenty-sixth Amendment (1971) prohibits the federal government and
the states from forbidding any citizen of age
18
or greater the right to vote on account of his or her age.
The
Twenty-third Amendment (1961) grants presidential electors to the
District of Columbia. DC has three votes in the Electoral College as
though it were a state with two senators and one representative in
perpetuity. On the other hand, if Puerto Rico were given the same
consideration as other state apportionment, it would have seven
Electoral College votes.[r]
Three branches
Seven amendments relate to the three branches of the federal
government. Congress has three, the Presidency has four, the Judiciary
has one.
The
Sixteenth Amendment (1913) authorizes unapportioned federal
taxes on income.
Twentieth Amendment (1933), in part, changes details of
congressional terms. The
Twenty-seventh Amendment (1992) limits congressional pay raises.
The
Twelfth Amendment (1804) changes the method of
presidential elections so that members of the
Electoral College cast separate ballots for president and vice
president. The
Twentieth Amendment (1933), in part, changes details of presidential
terms and of
presidential succession. The
Twenty-second Amendment (1951)
limits the president to two elected terms unless a vice president
succeeds to the office for less than two years prior to election. The
Twenty-fifth Amendment (1967) further changes details of
presidential succession, provides for temporary removal of president,
and provides for replacement of the vice president.
The
Eleventh Amendment (1795), in part, clarifies judicial power over
foreign nationals.
States and abuses
State citizen lawsuits. Citizens are limited when suing their
states in federal court under the
Eleventh Amendment (1795) which, in part, limits ability of citizens
to sue
states in federal courts and under federal law.
Alcohol. (a) The states must not allow alcohol to be sold for
profit. (b) The states may or may not allow alcohol sold for profit. The
Eighteenth Amendment (1919) prohibited the manufacturing, importing,
and exporting of alcoholic beverages (see
Prohibition in the United States). 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[citation
needed] have had to strip state legislatures of
some few privileges due to widespread, persisting violations to
individual rights. States must administer equal protection under the
Constitution and the Bill of Rights. States must guarantee rights to all
citizens of the United States as their own. State legislatures will not
be trusted to elect U.S. Senators. States must allow all men to vote.
States must allow women to vote. States cannot tax a U.S. citizen’s
right to vote.
- Under the Constitution, the U.S. government was restricted from
infringing on citizen rights. The
Fourteenth Amendment (1868) in part, defines a set of guarantees
for
United States citizenship; prohibits states from
abridging citizens'
privileges or immunities and rights to
due process and the
equal protection of the law.
- The right to vote in the states has not always been so universal
as it is today. Women, some men and persons 18 to 21 years of age
were not universally guaranteed the right to vote. In 1870,
regardless of practice, most states had no legal racial bar to
voting by African-Americans, Asians or Native-Americans. The
Fifteenth Amendment (1870) prohibits the federal government and
the states from using a citizen's race, color, or previous status as
a slave as a qualification for voting. Then all men could vote by
law. In 1920, while most states allowed at least some women's
suffrage, the
Nineteenth Amendment (1920) prohibitted 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 and six have failed ratification by the
required three-quarters of the state legislatures. Of these six, two
have passed their deadlines; the other four are technically in the eyes
of a Court, still pending before state lawmakers (see
Coleman v. Miller). All but one are dead-ends.
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.[42]
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
- The
Corwin Amendment, sent to the states 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
practice of slavery. The Confederacy ignored it and it was quickly
forgotten. Instead, in 1865, the Thirteenth Amendment abolished
slavery.
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.[s]
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
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 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.".[t]
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.
Early Court roots in the founding |
|
The basic theory of American Judicial review is summarized by
constitutional legal scholars and historians as follows: the written
Constitution is fundamental law. It can change only by extraordinary
legislative process of national proposal, then state ratification. The
powers of all departments are limited to enumerated grants found in the
Constitution. Courts are expected (a) to enforce provisions of the
Constitution as the supreme law of the land, and (b) to refuse to
enforce anything in conflict with it.
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.
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."[u]
The Supreme Court was initially made up of jurists who had been
intimately connected with the framing of the Constitution and the
establishment of its government as law.
John
Jay (NY), a co-author of the Federalist Papers, served as Chief
Justice for the first six years. The second Chief Justice for a term of
four years, was
Oliver Ellsworth (Ct), a delegate in the Constitutional Convention,
as was
John Rutledge (SC), Washington’s recess appointment as Chief Justice
who served in 1795.
John Marshall (Va), the fourth Chief Justice, had served in the
Virginia Ratification Convention in 1788. His service on the Court would
extend 34 years over some of the most important rulings to help
establish the nation the Constitution had begun. In the first years of
the Supreme Court, members of the Constitutional Convention who would
serve included
James Wilson (Pa) for ten years,
John Blair, Jr. (Va) for five, and
John Rutledge (SC) for one year as Justice, then Chief Justice in
1795.
Establishment
When John Marshall followed Oliver Ellsworth as Chief Justice of the
Supreme Court in 1801, the federal judiciary had been established by the
Judiciary Act, but there were few cases, and less prestige. "The
fate of judicial review was in the hands of the Supreme Court itself."
Review of state legislation and appeals from state supreme courts was
understood. But the Court’s life, jurisdiction over state legislation
was limited. The Marshall Court's landmark Barron v. Baltimore
held that the Bill of Rights restricted only the federal government, and
not the states.
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.[v][w]
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".
"This argument has been ratified by time and by practice ..."[x][y]
"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.
Something of a crisis arose when, in 1935 and 1936, the Supreme Court
handed down twelve decisions voiding Acts of Congress relating to the
New Deal. President
Franklin D. Roosevelt then responded with his abortive "court
packing plan". Other proposals have suggested a Court super-majority
to overturn Congressional legislation, or a Constitutional Amendment to
require that the Justices retire at a specified age by law. To date, the
Supreme Court’s power of judicial review has persisted.
Self-restraint
The power of judicial review could not have been preserved long in a
democracy unless it had been "wielded with a reasonable measure of
judicial restraint, and with some attention, as
Mr. Dooley said, to the election returns." Indeed, the Supreme Court
has developed a system of doctrine and practice that self-limits its
power of judicial review.
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.[z]
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. By themselves, neither having the money to sue
or being injured by government action are not enough.
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."
Separation of
powers
The Supreme Court balances several pressures to maintain its roles in
national government. It seeks to be a co-equal branch of government, but
its decrees must be enforceable. The Court seeks to minimize situations
where it asserts itself superior to either President or Congress, but
federal officers must be held accountable. The Supreme Court assumes
power to declare acts of Congress as unconstitutional but it self-limits
its passing on constitutional questions.
But the Court’s guidance on basic problems of life and governance in a
democracy is most effective when American political life reinforce its
rulings.
Justice Brandeis summarized four general guidelines that the Supreme
Court uses to avoid constitutional decisions relating to Congress:[aa]
The Court will not anticipate a question of constitutional law nor
decide open questions unless a case decision requires it. If it does, a
rule of constitutional law is formulated only as the precise facts in
the case require. The Court will choose statutes or general law for the
basis of its decision if it can without constitutional grounds. If it
does, the Court will choose a constitutional construction of an Act of
Congress, even if its constitutionality is seriously in doubt.
Likewise with the Executive Department, Edwin Corwin observed that
the Court does sometimes rebuff presidential pretentions, but it more
often tries to rationalize them. Against Congress, an Act is merely
"disallowed." In the executive case, exercising judicial review produces
"some change in the external world" beyond the ordinary judicial sphere.
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."
John Marshall recognized how the president holds "important political
powers" which as
Executive privilege allows great discretion. This doctrine was
applied in Court rulings on President (Grant)’s duty to enforce the law
during Reconstruction. It extends to the sphere of foreign affairs.
Justice
Robert Jackson explained, Foreign affairs are inherently political,
"wholly confided by our Constitution to the political departments of the
government ... [and] not subject to judicial intrusion or inquiry."
Critics of the Court object in two principle ways to self-restraint
in judicial review, deferring as it does as a matter of doctrine to Acts
of Congress and Presidential actions.
- Its inaction is said to allow "a flood of legislative
appropriations" which permanently create an imbalance between the
states and federal government.
- Supreme Court deference to Congress and the executive
compromises American protection of civil rights, political minority
groups and aliens.
Subsequent Courts
Supreme Courts under the leadership of subsequent Chief Justices have
also used judicial review to interpret the Constitution among
individuals, states and federal branches. Notable contributions were
made by the Chase Court, the Taft Court, the Warren Court, and the
Rehnquist Court.
Salmon P. Chase was a Lincoln appointee, serving as Chief Justice
from 1864 to 1873. His career encompassed service as a U.S. Senator and
Governor of Ohio. He 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.
Scope of judicial review expanded |
|
William Howard Taft was a Harding appointment to Chief Justice from
1921 to 1930. A
Progressive Republican from Ohio, he was a one-term President.
As Chief Justice, he advocated the
Judiciary Act of 1925 that brought the Federal District Courts under
the administrative jurisdiction of the Supreme Court 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.
Earl Warren was an Eisenhower nominee, Chief Justice from 1953 to
1969. Warren’s Republican career in the law reached from County
Prosecutor, California state attorney general, and three consecutive
terms as Governor. His programs stressed progressive efficiency,
expanding state education, re-integrating returning veterans,
infrastructure and highway construction.
In 1954, the Warren Court overturned a landmark
Fuller Court ruling on the Fourteenth Amendment interpreting racial
segregation as permissible in government and commerce providing
"separate but equal" services. Warren built a coalition of Justices
after 1962 that developed the idea of natural rights as guaranteed in
the Constitution.
Brown v. Board of Education banned segregation in public
schools.
Baker v. Carr and
Reynolds v. Sims established Court ordered "one-man-one-vote."
Bill of Rights Amendments were incorporated into the states. Due process
was expanded in
Gideon v. Wainwright" and
Miranda v. Arizona. First Amendment rights were addressed in
Griswold v. Connecticut concerning privacy, and
Engel v. Vitale relative to free speech.
William Rehnquist was a Reagan appointment to Chief Justice, serving
from 1986 to 2005. While he would concur with overthrowing a state
supreme court’s decision, as in Bush v. Gore, he built a
coalition of Justices after 1994 that developed the idea of federalism
as provided for in the Tenth Amendment. In the hands of the Supreme
Court, the Constitution and its Amendments were to restrain Congress, as
in
City of Boerne v. Flores.
Nevertheless, the Rehnquist Court was noted in the contemporary
"culture wars" for overturning state laws relating to privacy
prohibiting late-term abortions in
Stenberg v. Carhart, prohibiting sodomy in
Lawrence v. Texas, or ruling so as to protect free speech in
Texas v. Johnson or affirmative action in
Grutter v. Bollinger.
Civic religion
There is a viewpoint that some Americans have come to see the
documents of the Constitution, along with the
Declaration of Independence and the
Bill of Rights as being a cornerstone of a type of
civil religion. This is suggested by the prominent display of the
Constitution, along with the Declaration of Independence and the Bill of
Rights, in massive, bronze-framed, bulletproof, moisture-controlled
glass containers vacuum-sealed in a rotunda by day and in multi-ton
bomb-proof vaults by night at the
National Archives Building.[60]
The idea of displaying the documents strikes some academic critics
looking from the point of view of the 1776 or 1789 America as
"idolatrous, and also curiously at odds with the values of the
Revolution."
[61] By 1816 Jefferson wrote that "[s]ome men look at
constitutions with sanctimonious reverence and deem them like the
ark of the covenant, too sacred to be touched." But he saw
imperfections and imagined that potentially, there could be others,
believing as he did that "institutions must advance also".
Some commentators depict the multi-ethnic, multi-sectarian United
States as held together by a political orthodoxy, in contrast with a
nation state of people having more "natural" ties.
Worldwide
The United States Constitution has had a considerable influence
worldwide on later constitutions. International leaders have followed it
as a model within their own traditions. These leaders include
Benito Juarez of Mexico,
José Rizal of the Philippines and
Sun Yat-sen of China.
Criticisms
The United States Constitution has faced various criticisms since its
inception in 1787.
See also
Related documents
Notes
-
^ The discussion in
Adler cites Lincoln's explication of the preamble that "common
welfare" meant those things the people could not provide
themselves. In 1830, Senator Haynes of South Carolina had made a
speech for "Liberty first, and Union afterwards". Daniel Webster
of Massachusetts made a "Reply to Haynes" speech for "Union and
Liberty, now and forever, one and inseparable".
-
^ The
Judiciary Act of 1789 established six Supreme Court
justices. The number was periodically increased, reaching ten in
1863, allowing Lincoln additional appointments. After the Civil
War, vacancies reduced the number to seven. Congress finally
fixed the number at nine.
-
^ Judicial Review is
explained in Hamilton's
Federalist No. 78. It also has roots in Natural Law
expressions in the Declaration of Independence. The Supreme
Court first ruled an act of Congress unconstitutional in
Marbury v. Madison, the second was
Dred Scott.
-
^ For instance,
‘collateral estoppel’ directs that when a litigant wins in a
state court, they cannot sue in federal court to get a more
favorable outcome.
-
^ Recently numerous
habeas corpus reforms have tried to preserve a working
"relationship of comity" and simultaneously streamline the
process for state and lower courts to apply Supreme Court
interpretations.
-
^ The four concepts
which determine "justiciability", the formula for a federal
court taking and deciding a case, are the doctrines of (a)
standing, (b) real and substantial interests, (c) adversity, and
(d) avoidance of political questions.
-
^ Contrary to this
source when viewed, the Constitution provides that punishments,
including forfeiture of income and property, must apply to the
person convicted. "No attainder of treason shall work
corruption of blood or forfeiture" on the convicted
traitor’s children or heirs. This avoids the perpetuation of
civil war into the generations by Parliamentary majorities as in
the
War of the Roses.
-
^ An alternative
method of proposing an Amendment consists of application to
Congress by the super-majority of two-thirds of the state
legislatures call for another constitutional convention. That
convention’s proposal then requires ratification by the same
super-super majority as the first method, three-fourths of the
states. While this has never been done, in the 1980s, 32 of the
necessary 34 states called for a convention to propose a
"balanced budget amendment."
-
^ As no convention
has been called, it is unclear how one would work in practice.
-
^ 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.
-
^ 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.
-
^ 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.
-
^ 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.
-
^ 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.
-
^ 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.
-
^ Governor
William Tuck of Virginia used the unorganized militia to
break a 1946 strike by employees of the
Virginia Electric and Power Company.
-
^ 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.
-
^ Since the 1964
presidential election, the
Electoral College has equaled 538, the sum of 100 Senators,
435 Representatives, and 3 for DC. Were DC to have been made a
state, its allotted representation in Congress would have been
one. Since the 1960s, both major political parties nominating
presidential candidates make provision for proportionate
representation in their national conventions for DC and the U.S.
Territories as though they were states. Except for DC, no
Constitutional provision has been made for them in the Electoral
College. For example, the U.S. citizens of
Puerto Rico would have seven Electoral College votes, that
is, two count for senators, five for its proportion in the House
over the last three censuses. As it is, they have one non-voting
delegate in the House who can cast a vote in committees of
direct concern to Puerto Rico.
-
^ 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).
-
^
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.
-
^ 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
-
^ In this, John
Marshall leaned on the argument of Hamilton in
Federalist No. 78.
-
^ 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.
-
^ 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."
-
^ 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.
-
^ "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.
-
^ Louis Brandeis
concurring opinion, ‘’Ashwander v. Tennessee Valley Authority’’,
1936.
-
^ The
Chase Court, 1864–1873, in 1865 were the Hon. Salmon P.
Chase, Chief Justice, U.S.; Hon. Nathan Clifford, Maine; Stephen
J. Field, Justice Supreme Court, U.S.; Hon. Samuel F. Miller,
U.S. Supreme Court; Hon. Noah H. Swayne, Justice Supreme Court,
U.S.; Judge Morrison R. Waite
-
^ The
Taft Court, 1921–1930, in 1925 were – James Clark
McReynolds, Oliver Wendell Holmes, Jr.,William Howard Taft
(Chief Justice), Willis Van Devanter, Louis Brandeis. – Edward
Sanford, George Sutherland, Pierce Butler, Harlan Fiske Stone
-
^ The
Warren Court, 1953-1969, in 1963 were Felix Frankfurter;
Hugo Black; Earl Warren (Chief Justice); Stanley Reed; WIlliam
O. Douglas. - Tom Clark; Robert H. Jackson; Harold Burton;
Sherman Minton
-
^ The
Rehnquist Court, , 1986–2005.
Citations
-
^ Maier, Pauline.
“Ratification: the people debate the constitution, 1787-1788”.
2010.
ISBN 978-0-684-86854-7, p. 35.
-
^
Paul Rodgers (2011).
United States Constitutional Law: An Introduction.
McFarland. p. 109.
-
^ 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.")
-
^ Maier, Pauline
(2010). Ratification : the people debate the Constitution,
1787–1788. New York: Simon & Schuster.
ISBN 978-0-684-86854-7 p.21.
-
^ Bowen, Catherine
(2010) [First published 1966]. Miracle at Philadelphia : the
story of the Constitutional Convention, May to September, 1787.
New York: Little, Brown.
ISBN 978-0-316-10261-2. p.11.
-
^
John E. Finn (2006). "Civil
Liberties and the Bill of Rights Part I: Lecture 4: The Court
and Constitutional Interpretation". The Teaching Company.
pp. 52–4. "The most obvious mechanism for change is not the
freedom to amend the Constitution, not the authority to engage
in a new Constitutional revolution, but to build play into the
joints, to build ambiguity and flexibility into the very words
of the Constitution so that they might mean different things to
different generations."
-
^ Morris (1987) pp
298–99.
-
^ Armstrong,
Virginia Irving (1971). I Have Spoken: American History Through
the Voices of the Indians. Pocket Books. p. 14. ISBN
671-78555-9. See also,
House Concurrent Resolution 331, October 21, 1988. United
States Senate. Retrieved 2008-11-23.. 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.
-
^ Greymont, Barbara.
The Iroquois in the American Revolution 1972.
ISBN 0-8156-0083-6, p.vii.
-
^ Morgan, Edmund S.,
Benjamin Franklin 2002.
ISBN 0-300-10162-7 (pbk) p.80-81 Viewed December 29, 2011.
-
^ Mee, Charles L.,
Jr. The Genius of the People. New York: Harper & Row, 1987. p.
237
-
^ Greymont, Barbara.
Op.cit. p.66 These intrigues were mounted by (a) the French and
British empires, (b) the colonies, then states of New York,
Pennsylvania and Virginia, and (c) the United States as the
Continental Congress, the Articles Congress and subsequently.
-
^
NARA.
"National Archives Article on the Bill of Rights".
Retrieved 2007-12-16.
-
^ James Madison was
said to believe that the speech alone would "crush"
nullification forever. (This
country of ours, H.E. Marshall Part VII, Chapter 73.)
- ^
a
b
17. U.S. at 421
-
^
"The Presidency: Hamilton". Time. May 28, 1923.
-
^
NARA.gov, Martin Van Buren
-
^
Sidak, Gregory (August 1989).
"The Recommendation Clause". Georgetown Law Journal
77 (6): 2079–2135.
Retrieved 29 June 2012.
-
^
Sidak, J. Gregory (August 1989).
Science Research Network "The Recommendation Clause In:
Georgetown Law Journal, Vol. 77, No. 6". pp. 2079–2135.
Retrieved 28 June 2012.
-
^
FindLaw for legal professionals, with links to US Government
Printing office official website, Cornell Law School, Emory Law
School, and U.S. Supreme Court decisions since 1893, (1998, 2000
Supplement). Viewed November 28, 2011.
-
^
FindLaw for legal professionals, with links to US Government
Printing office official website, Cornell Law School, Emory Law
School, and U.S. Supreme Court decisions since 1893, (1998, 2000
Supplement).
-
^ Linder, Doug.
Exploring Constitutional Conflicts: The Incorporation Debate,
University of Missouri, Kansas City. viewed November 14, 2011.
-
^ Linder, Doug.
Op.Cit., viewed November 14, 2011.
-
^
National Archives and Records Administration.
"National Archives Article on the Constitution".
Retrieved 2008-09-01.
-
^
Lutz, Donald (1994). "Toward a
Theory of Constitutional Amendment". The American Political
Science Review..
The
21st Amendment is the only successful Amendment that
employed state conventions for ratification.
-
^
"U.S. Constitution: Third Amendment". FindLaw.com.
Thomson Reuters. Retrieved 4
May 2009.
-
^
"The Missing Thirteenth Amendment". Thirdamendment.com.
Retrieved 2009-05-04.
-
^ Wood, Gordon S.,
Dusting off the Declaration, The New York Review of Books,
Aug 14, 1997
-
^ Wood, Gordon S.,
Dusting off the Declaration, The New York Review of Books,
Aug 14, 1997. Viewed December 29, 2011.
References
- Adler,
Mortimer; Gorman, William (1975). The American testament :
for the Institute for Philosophical Research and the Aspen
Institute for Humanistic Studies. New York: Praeger.
ISBN 978-0-275-34060-5.
- Billias,
George (2009). American constitutionalism heard round the
world, 1776-1989 : a global perspective. New York: New York
University Press.
ISBN 978-0-8147-9107-3.
-
Bowen, Catherine (2010) [First published 1966].
Miracle at Philadelphia : the story of the Constitutional
Convention, May to September, 1787. New York: Little,
Brown.
ISBN 978-0-316-10261-2.
- Farber,
Daniel (2003). Lincoln's Constitution. Chicago:
University of Chicago Press.
ISBN 978-0-226-23793-0.
-
Levinson, Sanford (1987).
"Pledging Faith in the Civil Religion; Or, Would You Sign the
Constitution?". 29 Wm. & Mary L. Rev. 113.
Retrieved 15 December 2011.
-
McDonald, Forrest (1985). Novus ordo seclorum: the
intellectual origins of the Constitution. Lawrence:
University Press of Kansas.
ISBN 978-0-7006-0311-4.
-
Maier, Pauline (2010). Ratification : the people debate
the Constitution, 1787-1788. New York: Simon & Schuster.
ISBN 978-0-684-86854-7.
-
Malcolm, George A. (1920).
"Constitutional History of the Philippines". American Bar
Association journal 6.
-
Moncure, Thomas M., Jr (1990).
"Who is the militia – the Virginia Ratification Convention and
the right to bear arms". 19 LINCOLN L. REV. 1-25.
Retrieved 11 November 2011.
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O'Connor, Tom (2010).
"Constitutional structure".
Retrieved 14 November 2011.
-
Pritchett, C. Herman (1959). The American Constitution.
New York: McGraw-Hill.
- Quing
Yu, Li (1988). "Dr. Sun Yat Sen and the U.S. Constitution". In
Starr, Joseph Barton. The United States constitution: its
birth, growth, and influence in Asia. Hong Kong: Hong Kong
University Press.
ISBN 978-962-209-201-3.
- Stacy,
Lee, ed. (2003). Mexico and the United States 2.
London: Marshall Cavendish.
ISBN 978-0-7614-7402-9.
- Wood,
Gordon (1998). The creation of the American Republic,
1776-1787. Chapel Hill: University of North Carolina Press.
ISBN 978-0-8078-4723-7.
Further reading
- Klos, Stanley L. (2004).
President Who? Forgotten Founders. Pittsburgh, Pennsylvania:
Evisum, Inc. p. 261.
ISBN 0-9752627-5-0.
- 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.
- 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
- Casey, Gregory. "The Supreme Court and Myth: An Empirical
Investigation," Law & Society Review, Vol. 8, No. 3 (Spring,
1974), pp. 385–420
- Elliot, Jonathan,
The Debates in the Several State Conventions of the Adoption of
the Federal Constitution 5 vols Vol. 1, Constitution,
Declaration of Independence, Articles of Confederation, Journal of
Federal Convention, Vol. 2, State Conventions Massachusetts,
Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol.
3, Virginia, Vol. 4, North. and South. Carolina, Resolutions,
Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison’s Notes,
Misc. Letters
- Ford, Paul Leicester, ed.
Pamphlets on the Constitution of the United States, published
during its Discussion by the People, 1787-1788, edited with
notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y.,
1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah
Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe,
James Wilson, John Dickinson, Alexander Contee Hanson, Edmund
Randolph, Richard Henry Lee, George Mason, and David Ramsay. The
essay attributed to Gerry was in fact written by Mercy Otis Warren.
- Fritz, Christian G. American Sovereigns: The People and
America's Constitutional Tradition Before the Civil War
(Cambridge University Press, 2008) [ISBN
978-0-521-88188-3]Google
Books
- 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.
- 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.
Retrieved 2011-05-08.
External links
National Archives
Official U.S. government sources
This audio file was created from a revision of the " United
States Constitution" article dated 2008-07-17, and does
not reflect subsequent edits to the article. ( Audio
help)
Non-governmental web sites
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