Constitutional Law, Wolf, Spring 2013
The Constitution Explained
Preamble
The Preamble to the Constitution has no force in law; instead, it establishes the “Why” of the Constitution. Why is this document in existence? It reflects the desires of the Framers to improve on the government they currently had (to be “more perfect” than the Articles of Confederation), to ensure that that government would be just, and would protect its citizens from internal strife and from attack from the outside. It would be of benefit to the people, rather than to its detriment. And, perhaps as importantly, it intended to do the same for the future generations of Americans. A more extensive exploration of the Preamble is also available.
Article 1
Article 1 establishes the first of the three branches of the government, the Legislature. Section 1 establishes the name of the Legislature to be The Congress, a bicameral, or two-part, body.
Section 2 defines the House of Representatives, known as the lower house of Congress. It establishes a few minimum requirements, like a 25-year-old age limit, and establishes that the people themselves will elect the members for two years each. The members of the House are divided among the states proportionally, or according to size, giving more populous states more representatives in the House. The leader of the House is the Speaker of the House, chosen by the members.
Section 3 defines the upper house of Congress, the Senate. Again, it establishes some minimum requirements, such as a 30-year-old age limit. Senators were originally appointed by the legislatures of the individual states, though this later changed. They serve for six years each. Each state has equal suffrage in the Senate, meaning that each state has the exact same number of Senators, two each, regardless of the population. This Section introduces the Vice-President, who is the leader of the Senate (called the President of the Senate); the Vice-President does not vote unless there is a tie.
Section 4 says that each state may establish its own methods for electing members of the Congress, and mandates, or requires, that Congress must meet at least once per year.
Section 5 says that Congress must have a minimum number of members present in order to meet, and that it may set fines for members who do not show up. It says that members may be expelled, that each house must keep a journal to record proceedings and votes, and that neither house can adjourn without the permission of the other.
Section 6 establishes that members of Congress will be paid, that they cannot be detained while traveling to and from Congress, that they cannot hold any other office in the government while in the Congress.
Section 7 details how bills become law. First, any bill for raising money (such as by taxes or fees) must start out in the House. All bills must pass both houses of Congress in the exact same form. Bills that pass both houses are sent to the President. He can either sign the bill, in which case it becomes law, or he can veto it. In the case of a veto, the bill is sent back to Congress, and if both houses pass it by a two-thirds majority, the bill becomes law over the President's veto. This is known as overriding a veto.
There are a couple more options for the President. First, if he neither vetoes a bill nor signs it, it becomes a law without his signature after 10 days. The second option is called a pocket veto. It occurs if Congress sends the bill to the President and they then adjourn. If the President does not sign the bill within 10 days, it does not become law.
Section 8 lists specific powers of Congress, including the power to establish and maintain an army and navy, to establish post offices, to create courts, to regulate commerce between the states, to declare war, and to raise money. It also includes a clause known as the Elastic Clause which allows it to pass any law necessary for the carrying out of the previously listed powers.
Section 9 places certain limits on Congress. Certain legal items, such as suspension of habeas corpus, bills of attainder, and ex post facto laws are prohibited. No law can give preference to one state over another; no money can be taken from the treasury except by duly passed law, and no title of nobility, such as Prince or Marquis, will ever be established by the government.
Section 10, finally, prohibits the states from several things. They cannot make their own money, or declare war, or do most of the other things prohibited Congress in Section 9. They cannot tax goods from other states, nor can they have navies.
Article 2
Article 2 establishes the second of the three branches of government, the Executive. Section 1 establishes the office of the President and the Vice-President, and sets their terms to be four years. Presidents are elected by the Electoral College, whereby each state has one vote for each member of Congress. Originally, the President was the person with the most votes and the Vice-President was the person with the second most, though this is later changed. Certain minimum requirements are established again, such as a 35-year minimum age. Presidents must also be a natural-born citizen of the United States. The President is to be paid a salary, which cannot change, up or down, as long as he in is office.
Section 2 gives the President some important powers. He is commander-in-chief of the armed forces and of the militia (National Guard) of all the states; he has a Cabinet to aid him, and can pardon criminals. He makes treaties with other nations, and picks many of the judges and other members of the government (all with the approval of the Senate).
Section 3 establishes the duties of the President: to give a state of the union address, to make suggestions to Congress, to act as head of state by receiving ambassadors and other heads of state, and to be sure the laws of the United States are carried out.
Section 4 briefly discusses the removal of the President, called impeachment.
Article 3
Article 3 establishes the last of the three branches of government, the Judiciary. Section 1 establishes the Supreme Court, the highest court in the United States. It also sets the terms of judges, of both the Supreme Court and lower courts: that they serve as long as they are on “good behavior,” which usually means for life (no Justice and only a few judges have ever been impeached). It also requires that judges shall be paid.
Section 2 sets the kinds of cases that may be heard by the federal judiciary, which cases the Supreme Court may hear first (called original jurisdiction), and that all other cases heard by the Supreme Court are by appeal. It also guarantees trial by jury in criminal court.
Section 3 defines, without any question, what the crime of treason is.
Article 4
Article 4 concerns the states. Section 1 mandates that all states will honor the laws of all other states; this ensures, for example, that a couple married in Florida is also considered married by Arizona, or that someone convicted of a crime in Virginia is considered guilty by Wyoming.
Section 2 guarantees that citizens of one state be treated equally and fairly like all citizens of another. It also says that if a person accused of a crime in one state flees to another, they will be returned to the state they fled from. This section also has a clause dealing with fugitive slaves that no longer applies.
Section 3 concerns the admittance of new states and the control of federal lands.
Section 4 ensures a republican form of government (which, in this case, is synonymous with “representative democracy,” and both of which are opposed to a monarchical or aristocratic scheme – the state derives its power from the people, not from a king or gentry) and guarantees that the federal government will protect the states against invasion and insurrection.
Article 5
Article 5 details the method of amending, or changing, the Constitution. Please see The Amendments Page for more information.
Article 6
Article 6 concerns the United States itself. First, it guarantees that the United States under the Constitution would assume all debts and contracts entered into by the United States under the Articles of Confederation. It sets the Constitution and all laws and treaties of the United States to be the supreme law of the country. Finally, it requires all officers of the United States and of the states to swear an oath of allegiance to the United States and the Constitution when taking office.
Article 7
Article 7 details the method for ratification, or acceptance, of the Constitution: of the original 13 states in the United States, nine had to accept the Constitution before it would officially go into effect.
The Amendments
The first ten amendments to the Constitution were all adopted at the same time and are collectively known as the Bill of Rights.
The 1st Amendment protects the people's right to practice religion, to speak freely, to assemble (meet), to address (petition) the government, and of the press to publish.
The 2nd Amendment protects the right to own guns. There is debate whether this is a right that protects the state, or a right that protects individuals.
The 3rd Amendment guarantees that the army cannot force homeowners to give them room and board.
The 4th Amendment protects the people from the government improperly taking property, papers, or people, without a valid warrant based on probable cause (good reason).
The 5th Amendment protects people from being held for committing a crime unless they are properly indicted, that they may not be tried twice for the same crime, that you need not be forced to testify against yourself, and from property being taken without just compensation. It also c
ns are ambiguous. In addition, the facts of a modern case do not fit neatly into the textual framework of the Constitution.
Originalism:
· To resolve textual ambiguity, justices and scholars often examine the original intention of the framers of the Constitution.
· We look at the notes on the Constitutional Convention.
· The primary benefit of originalism is that the judicial decision-making becomes less subjective. The justice’s role is merely to implement the desire of the drafters and ratifiers of the Constitution.
· One disadvantage of originalism is that the historical materials are often incomplete or indeterminate. A second problem with originalism is that later generations of Americans might not wish to accord power over present-day decisions to the intentions of those who drafted the Constitution more than 200 years ago.
Natural Law: channeling God, channeling Aristotle, channeling Locke, channeling Hobbes: government is a contract among people.
· The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and the ends of legislative power will limit the exercise of it.
· This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal, or state, legislature cannot do, without exceeding their authority.
· An act of the legislature contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.
· Anti-Natural Law: If the legislature shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.
· The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have different upon the subject; and all that the Court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
· Natural law was mainly honored in the breach during the early years of the republic. Slavery and the conquest of the Native American population are particularly poignant examples.
· In modern times, pure natural law has not been brought directly into constitutional decision-making. However, many Supreme Court justices have undoubtedly interpreted vague constitutional text in accordance with their own notions of justice.
Pragmatism:
· The pragmatist school of interpretation rejects the very notion of a preferred technique for reading the Constitution. Pragmatists utilize components of various schools of constitutional interpretation to reach decisions.
· A pragmatist uses textual leanings, historical glosses, and philosophical arguments to argue for a particular reading of the Constitution. The pragmatist argues that this flexibility, on balance, provides a better mechanism to reach decisions than any one technique affords.
Precedent:
· Supreme Court justices use these interpretive techniques within a framework of precedent.
· The Supreme Court almost never overturns a previous decision concerning statutory construction. If the Court was “wrong” in determining what Congress intended, Congress can simply pass a statute amending the interpreted legislation to overturn the Supreme Court’s construction.
