Constitution
of the United States, document embodying the
fundamental principles upon which the American republic is
conducted. Drawn up at the Constitutional
Convention in Philadelphia in 1787, the Constitution was
signed on Sept. 17, 1787, and ratified by the required number
of states (nine) by June 21, 1788. It superseded the original
charter of the United States in force since 1781 (see Confederation,
Articles of) and established the system of federal
government that began to function in 1789. The Constitution is
concise, and its very brevity and its general statement of
principles have, by accident more than by design, made
possible the extension of meaning that has fostered growth.
There are seven articles and a preamble; 27 amendments have
been adopted (see the table entitled Text
of the Constitution of the United States).
The wording of the
Constitution is general, necessitating interpretation, and any
short summary is only rough and approximate. From its very
beginnings, the Constitution has been subject to stormy
controversies, not only in interpretation of some of its
phrases, but also between the “loose constructionists” and
“strict constructionists.” The middle of the 19th cent.
saw a tremendous struggle concerning the nature of the Union
and the extent of states' rights. The Civil War decided the
case in favor of the advocates of strong union, and since that
time the general tendency has been toward the centralization
and strengthening of federal power.
The Preamble
The Preamble does not confer
power, but its first words, “We the People of the United
States,” describe the source of the powers conferred by the
rest of the Constitution and have been used by the advocates
of a strong union arguing against the proponents of states'
rights. The Preamble also states the purpose of the
document. One of the statements of purpose, “to...promote
the general welfare,” has been of great importance in the
20th cent. in upholding social legislation, for which no
warrant could be found in the enumerated powers of Congress.
The Articles
The first three articles set
up the threefold separation of powers, said to have been
modeled on Montesquieu's study, which on this point was
incorrect, of the British government. In actuality this
separation has been weakened by the granting of greater powers
to the President and his administrative agencies, which now
have legislative and judicial as well as executive functions.
1: Congress
Article 1 provides for the
establishment of the bicameral Congress composed of the Senate
and the House of Representatives. The various powers of the
Congress and the respective houses, together with their
methods of election, are enumerated in the article. The
Seventeenth Amendment, passed in 1916, instituted the direct
popular election of Senators and removed the power of their
election from the state legislatures as had originally been
provided in Article 1.
Section 4 of Article 1 gives
the states power over the conduct of federal elections but
permits the Congress to alter such regulations at any time. In
1842 the Congress imposed the district system on the United
States. In 1962 the Supreme Court dealt with proper
apportionment of election districts and in its decision in Baker
v. Carr allowed voters to go into a federal court to
force equitable representation in a state legislature. This
decision was, however, based on the equal protection clause of
the Fourteenth Amendment. Later, the court ruled (1964) that
state legislative apportionment must reflect the one-person
one-vote principle.
As a legislative body Congress
has certain inherent powers. Among these are the power to
investigate pursuant to legislative needs. Congressional
investigations have led to a great many court decisions
concerning the right of a witness before a Congressional
committee to refuse to testify even when granted immunity from
prosecution.
Section 8 of Article 1 lists
the enumerated powers of the Congress. The clause of this
section, the “commerce clause,” which grants the Congress
the right to “regulate commerce with foreign nations, and
among the several States,” has, in the 20th cent., been used
as a strong argument for the expansion of government power.
Since the historic case of Gibbons
v. Ogden (1824), the commerce clause has been the
battleground over which much of the struggle for and against
increased federal regulation of private enterprise has been
fought. Until the late 1930s Congress exercised its powers
under the clause solely with reference to transportation. But
after a series of dramatic reversals by the Supreme Court,
Congress began to enter areas that had previously been
controlled only by the states. The commerce clause is now the
source of important peacetime powers of the national
government and an important basis for the judicial review of
state actions.
Besides its enumerated and
inherent powers, the Congress has implied powers under Article
1 “to make all laws which shall be necessary and proper for
carrying into execution” the enumerated or expressed powers.
Sections 9 and 10 of Article 1 contain guarantees of the writ
of habeas
corpus, prohibit bills of attainder and ex post facto
laws, and also improve certain limitations on state power.
2: The Executive Branch
Article 2 creates the
executive branch of government headed by the President,
elected, along with the Vice President, for a term of four
years (see president;
electoral
college). The Twenty-second Amendment (1951) provides that
no person may be elected President more than twice. The
Twenty-third Amendment (1961) permits District of Columbia
residents to vote in presidential elections. Since the
adoption of the Constitution there have been two conflicting
views of Article 2. The first is that the powers of the
President are limited to those enumerated in the article. The
opposite view is that the President is given executive power
not limited by the provisions of the rest of the article.
Every President has had to make the choice of interpretations
for himself.
3: The Judiciary
Article 3 provides for a
judiciary and defines treason.
Besides its enumerated powers, the judiciary has the inherent
authority to interpret laws and the Constitution with an
authority that must be deferred to. Article 3 also guarantees
trial by jury in criminal cases and lays the basis for federal
jurisdiction. The Eleventh Amendment (1798), which prohibits
suits against any state by citizens of another state or
foreigners (see sovereignty),
was passed in reaction to the Supreme Court's accepting
jurisdiction of a suit against a state by a citizen of another
state.
4: The States
Article 4 deals with the
relations of the states (see conflict
of laws), providing that “Full faith and credit shall be
given in each State to the public acts, records, and judicial
proceedings of every other State.” Section 2 prohibits any
state from discriminating against citizens of other states, or
in favor of its own. It also provides for the extradition of
criminals. The article guarantees a republican form of
government to every state and provides for the admission of
new states as well as the government of territories.
5: Amending the
Constitution
Article 5 provides for
amending the Constitution. The supremacy of the federal
Constitution and of federal law over those of the states is
the heart of the federal system and is established by Article
6. Article 6 also provides for an oath of office for members
of the three branches of the federal government and the states
and specifically forbids any religious qualification for
office. Article 7 declares that the Constitution should go
into force when ratified by nine states.
The
Amendments
The Constitution has undergone
gradual alteration with the growth of the country. Some of the
26 amendments were brought on by Supreme Court decisions.
However, the first 10 amendments, which constitute the Bill of
Rights, were added within two years of the signing of the
federal Constitution in order to ensure sufficient guarantees
of individual liberties. The Bill of Rights applied only to
the federal government. But since the passage of the Fourteenth
Amendment (1868), many of the guarantees contained in the
Bill of Rights have been extended to the states through the
“due process” clause of the Fourteenth Amendment.
The Bill of Rights
The First Amendment guarantees
the freedom of worship, of speech, of the press, of assembly,
and of petition to the government for redress of grievances.
This amendment has been the center of controversy in recent
years in the areas of free speech and religion. The Supreme
Court has held that freedom of speech does not include the
right to refuse to testify before a Congressional
investigating committee and that most organized prayer in the
public schools violates the First Amendment.
The right to bear arms
openly—adopted with reference to state militias—is
guaranteed by the Second Amendment, while freedom from
quartering soldiers in a house without the owner's consent is
guaranteed by the Third Amendment. The Fourth Amendment
protects people against unreasonable search and seizure, a
safeguard only recently extended to the states.
The Fifth Amendment provides
that no person shall be held for “a capital or otherwise
infamous crime” without indictment, be twice put in
“jeopardy of life or limb” for the same offense, be
compelled to testify against himself, or “be deprived of
life, liberty, or property without due process of law.” The
privilege against self-incrimination has been the center of a
great deal of controversy as a result of the growth of
Congressional investigations. The phrase “due process of
law,” which appears in the Fifth Amendment, is also included
in the Fourteenth Amendment. As a result there has been much
debate as to whether both amendments guarantee the same
rights. Those in favor of what is termed fixed due process
claim that all the safeguards applied against the federal
government should be also applied against the states through
the Fourteenth Amendment. The supporters of the concept of
flexible due process are only willing to impose those
guarantees on the states that “are implicit in the concept
of ordered liberty.”
The Sixth Amendment guarantees
the right of speedy and public trial by an impartial jury in
all criminal proceedings, while the Seventh Amendment
guarantees the right of trial by jury in almost all common-law
suits. Excessive bail, fines and “cruel and unusual”
punishment are prohibited by the Eighth Amendment. The Ninth
Amendment states that “The enumeration in the Constitution
of certain rights shall not be construed to deny or disparage
others retained by the people.”
By the Tenth Amendment “The
powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” Powers reserved to the
states are often termed “residual powers.” This amendment,
like the commerce clause, has been a battleground in the
struggle over states' rights and federal supremacy.
The Other Amendments
Of the succeeding sixteen
amendments, the Eleventh, Seventeenth, Twenty-second and
Twenty-third Amendments have already been discussed under
Articles 1, 2, and 3. The Twelfth (1804) revised the method of
electing President and Vice President. The Thirteenth (1865),
Fourteenth (1868), and Fifteenth (1870) are the Civil War and
Reconstruction amendments; they abolish slavery, while
guaranteeing civil rights and suffrage to U.S. citizens,
including former slaves. The Sixteenth Amendment (1913)
authorizes the income
tax. Prohibition
was established by the Eighteenth Amendment (1919) and
repealed by the Twenty-first (1933). The Nineteenth (1920)
grants woman
suffrage. The Twentieth (1933) abolishes the so-called
lame-duck Congress and alters the date of the presidential
inauguration. The poll tax and any other tax made a
requirement for voting in primaries and elections for federal
office was outlawed by the Twenty-fourth Amendment (1964). The
Twenty-fifth (1967) establishes the procedure for filling the
office of Vice President between elections and for governing
in the event of presidential disability. The Twenty-sixth
Amendment (1971) lowers the voting age in all elections to 18.
The Twenty-seventh Amendment (1992), first proposed in 1789,
establishes procedures for Congressional pay increases.
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The
Columbia Electronic Encyclopedia, Sixth Edition
Copyright © 2003, Columbia University Press.
Licensed from Columbia University Press. All rights
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