Former TCC Chairman Howard Phillips delivered these lectures on the U.S. Constitution in 2011.
Lesson One – An Introduction to the U.S. Constitution of 1787
Thank you for joining me online for this seminar on the U.S. Constitution. I’m glad that you realize that understanding the Constitution is important. I hope you have a copy of the Constitution in front of you so that you can look at each part as I review it.
The Constitution is much like an owner’s manual – if you pay attention and follow its directions, things should run as intended. If you ignore it, and start violating the instructions, it can only lead to trouble. That’s what has happened to the United States. Instead of obeying our carefully drafted Constitution, with its wise provisions as to what the Federal government should and should not do, the Constitution has often been ignored and violated. The result is a Federal government that is too big, too intrusive, and also too ineffective at carrying out its genuine Constitutional responsibilities.
I’ll be talking about the Constitution as written by the Constitutional Convention of 1787, without the amendments that followed. However, from time to time, I will comment on how the amendments have changed the original Constitution – often for the worse.
Today we will begin discussing Article I, which deals with Congress. We often hear it said that the Constitution establishes a government of three equal branches, but when you read the Constitution, you find out that this is not true. Congress is to be the dominant branch. I’ll talk more about the details in the next lesson, regarding the specific powers granted to Congress, but Congress is supposed to have the upper hand over the Executive and Judicial branches. Congress can impeach the President, other executive branch officials, and Federal judges. Congress can abolish all Federal courts except the Supreme Court, and it can control that Court’s size. Congress can enact laws, even in the face of presidential opposition, by overriding his vetoes. The Senate even has veto power over many Presidential appointments. The Radical Republicans demonstrated during Reconstruction that a two-thirds majority in Congress can do just about anything it wants. As Madison said in Federalist 51, “in republican government, the legislative authority necessarily predominates”.
Article One begins with what appears to be a very clear statement. “All legislative Powers herein granted shall be vested in a Congress . . . .” It tells us, first, that only some powers are granted. The Federal government does not have unlimited authority. It can only do what is permitted by the Constitution. According to James Madison, writing in 1788, these powers are “few and defined”, with the states retaining authority over most matters.
Second, this statement tells us that the legislative powers are vested in Congress. It does not say that Congress shares the legislative power with the President or the Supreme Court. Only Congress has this power, and Congress has no authority to delegate this power. One of the most famous Supreme Court decisions of the New Deal period was the Schechter case, which struck down the National Recovery Act on the grounds that Congress had made an unconstitutional delegation of power to the President. The Act allowed the President to approve business regulatory codes which had the authority of law, but the Court rightly declared that “such a sweeping delegation of legislative power finds no support” in the Constitution.
Unfortunately, Schechter has been one of the very few times when the Supreme Court has been willing to stand up against the delegation of legislative authority. It has allowed the establishment of various regulatory commissions which issue regulations that have the force of law, acting as if they were a fourth branch of government capable of taking on legislative, executive, and judicial functions. As long as the Food and Drug Administration, Securities and Exchange Commission, the Federal Communications Commission and similar entities are allowed to exist, Congress will not fulfill its role as the exclusive legislator under the Constitution.
Presidents have also acted as if they had the ability to write law, issuing executive orders that have no basis in any existing statute. President Harry Truman took control of the steel mills during the Korean War, attempting to assist his political allies in the steelworkers’ union. This showed such blatant disregard for law that the Supreme Court ruled against him, requiring that the mills be returned to their rightful owners. However, just as with regulatory commissions, the Court has more often chosen to turn a blind eye to the legally and Constitutionally unauthorized executive orders of the President.
Article I next states that Congress shall be divided into two chambers, a House of Representatives and a Senate. This is something of an embarrassment for those who want to emphasize the role of Enlightenment thought on the American founding. European thinkers, including Tom Paine, believed that a unicameral legislature was essential in order to make a republican government more democratic. It would be able to act quickly, and mirror every whim of public opinion.
This concept was rejected by most Americans. Nearly all of the state governments had a bicameral legislature, and the first significant decision of the Constitutional Convention, made with only one dissenting state, was “that the National Legislature ought to consist of two branches.” When the New Jersey plan was later brought up for consideration, one of the objections raised against it was its unicameral Congress, and it was rejected by a vote of seven states to three.
The very point that made a unicameral Congress appealing to the Enlightenment made it unacceptable to Americans. They did not want a Congress that would act so quickly and follow public opinion so slavishly. As James Wilson said in the Convention on June 16, “If the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. . . .” Americans simply did not trust government to always be wise and just. The process for legislation must be slowed down, with adequate time for study, questioning, and reflection. Two different houses must be asked to keep watch on each other, with the people not putting their full trust in either.
Another point of significance came up when the Convention debated the point once more on June 20. Advocates of bicameralism believed that they were creating a true national government, one with enough power to make it dangerous, and therefore safeguards must be included. The supporters of a single house hoped for something that would be little changed from the Articles of Confederation. Their Congress would be more of a gathering of ambassadors from independent states, with so little real power granted to Congress that there was nothing to fear. Since it was already becoming clear that the new constitution would include a major increase in the authority of the national government, bicameralism was seen as essential by a majority of the delegates.
The House of Representatives is to be elected by the people, and for a two year term. Both of these points were controversial in the Convention. With the exception of Connecticut and Rhode Island, all states had chosen to have their legislature select their representatives to the Confederation Congress. Delegates who favored a stronger central government usually favored election by the people, hoping to increase popular interest in and support for that government. Delegates who hoped that the new government would have little more power than the Confederation saw no need to involve the people, and believed that selection by the legislatures was best. There were also some, such as Elbridge Gerry of Massachusetts, who did not believe that the people were qualified to choose the best men. Despite these objections, election by the people passed by a large majority.
Election by the people still left the question of which people. There was lengthy debate on August 7 concerning the qualifications for voters. Some delegates wished to set property requirements, some thought all taxpayers should vote, and George Mason urged giving the franchise to “every man having evidence of attachment to & permanent common interest with the Society . . . .” Unable to reach any agreement on a common national standard, they compromised by making voters in each state identical to those allowed to vote for the larger house of the state legislature.
One year terms were common in the state legislatures, and a longer term seemed dangerous to some of the delegates. They cited a popular adage that “tyranny begins where annual elections end.” James Madison and many other delegates preferred a three year term. Madison argued that the longer term was necessary for stability and in order to learn about the interests and needs of the entire country. He hoped for a government that would pass fewer, but also wiser laws. The Convention first settled on three years, but later compromised on two.
On the same day, June 12, that the Convention debated the length of terms, they also considered the provision of the Virginia Plan that imposed term limits. Without any recorded debate, and without a dissenting vote, they struck it from their draft and it was never brought up again. Judging from later debate on whether the President should be allowed to serve more than one term, there was serious concern about prohibiting the reelection of a man who had already proven his ability to do the job. Some of the delegates feared that few talented men would wish to travel a long distance to the national capital, leaving only a small pool of qualified men.
The Constitution establishes only three qualifications for members of the House. They must be at least twenty-five years old and have been citizens for at least seven years. As we shall see, both of these required qualifications are higher in the Senate. They must also be an inhabitant of the state from which they are elected, but are not required to live within the district. In the early years under the Constitution there were some states which elected all of their Representatives at large rather than from districts, and this continued until prohibited by Congress after the 1840 census. By avoiding any reference to congressional districts in the Constitution, this option was made available, and it was a deliberate decision.
Although the Constitution certainly allows the states to divide themselves into congressional districts, it provides no guidance and no rules for those districts. This allowed legislatures to draw the lines as they pleased, and to create districts that greatly varied in terms of the number of residents. In one case, an Illinois district in Chicago had a population more than eight times larger than one of the rural districts. Unfortunately, these inequities eventually brought the U.S. Supreme Court into the matter. Although nothing in Article I justified judicial intervention, the Court decided in the case of Baker v. Carr that the equal protection clause of the Fourteenth Amendment allowed it to step in and impose rules concerning the “correct” population for each district. This was later extended to determining the proper racial composition of each district, making sure that each one has neither too few nor too many minority residents.
Baker v. Carr was a highly controversial decision because it reversed precedents and because it dealt with state legislative districts, and only indirectly with congressional districts. Justice Harlan, in his dissent, observed that “I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to affect with approximate equality the voice of every voter. Not only is that proposition refuted by history, . . . but it strikes deep into the heart of our federal system.” Justice Frankfurter’s dissent pointed the Court toward the road it could have taken, saying “the Framers carefully and with deliberate forethought refused to enthrone the judiciary. In this situation, as in others of a like nature, appeal for relief does not belong here. Appeal must be made to an informed, civically militant electorate.”
The next paragraph of Section 2 is a compromise that was reached after much disagreement and debate, establishing the number of seats each state would have in the first House and, more importantly, laying out a procedure for reapportioning those seats at regular intervals.
When the Convention began, there was nothing even close to a consensus on how the relative size of the state delegations should be determined. Some delegates, especially from small states, thought each state should have only one vote. Others suggested that total tax payments, wealth, total population, or the total free population should be the standard. Some thought a combination of wealth and population would be best.
The idea of equality was quickly rejected, though the small states were kept in line through the hope that they might win their point for the Senate, and they were guaranteed that each state, no matter how small, would have at least one vote in the House. Tax collections were clearly unacceptable since customs duties were expected to be the main source of revenue. Wealth was given some weight in the apportionment for the first House, but never obtained enough support as a permanent measure despite persistent efforts.
The question of whether slaves should be counted for purposes of representation demonstrated that political hypocrisy is no new invention. Just a few years earlier, the Confederation Congress had debated whether to count slaves when deciding each state’s quota of payment for the government’s budget. Northern members had insisted that slaves were highly productive workers and should be included in the calculations, while Southerners had minimized the results of slave labor. Now, when the question was representation instead of taxation, they quickly switched sides and adopted each other’s arguments. While some Southern delegates hoped that slaves would be counted equally with the free population, most were more realistic and merely expected to repeat what had happened in the Confederation Congress, with five slaves being counted as equal to three free.
At first, the convention decided to count only the free population for representation, but an unhappy South was a threat to the success of the Convention. Gouverneur Morris of Pennsylvania devised the compromise that was acceptable to many members in both the North and South. He proposed that direct taxation, when imposed, would be apportioned according to population, with slaves counting as three-fifths of a free person. Representation would be apportioned according to the same formula as taxation. This gave Southern delegates the three-fifths clause they hoped for, while allowing Northern delegates to say that they had persuaded the South to allow slaves to be counted for taxation, and that allowing slaves to be counted for representation was nothing more than an indirect effect.
I will have more to say about direct taxation in a future lesson, when we examine the taxing powers of Congress.
Fixing a rule for representation was only a first step, since it left open the question of what would be done as population changes took place. This was especially important for the Southern delegates, since the Northern states would have a majority in the House at first. Most of the delegates, North and South, incorrectly believed that shifting population would soon make the South more populous than the North. The North, however, might use its original majority to block any changes and to deny the South its full representation. The delegates were well aware that state legislatures had been accused of maintaining a majority for the older, earlier settlements even when newer areas had become a majority of the population.
Therefore Southerners took the lead in demanding that there be a census at regular intervals, and that the census be used to update the apportionment of House seats among the states. In its final form it required a census every ten years, with the first being no later than three years after the establishment of the new government under the Constitution.
Notice that the language used in the Constitution is “actual Enumeration”, meaning an actual count. This has become an important phrase recently, when some people have urged that the count of real people be adjusted to compensate for what they believe are errors in the actual count. Allowing such adjustments would open the door for all sorts of manipulation. So far we have been saved from that by the existence of the phrase, “actual Enumeration”. Even the Supreme Court has had trouble explaining away that unequivocal statement.
The first House was to consist of sixty-five members, but throughout the convention delegates objected that this was too few to properly represent such a large nation. Efforts to amend it to increase representation, including one that would have doubled the size of the first House, were consistently defeated. Not until the final day of the Convention was there a breakthrough, and even then only because George Washington personally intervened. Speaking in favor of an amendment to allow future representation to be at the ratio of one for every thirty thousand people instead of forty thousand, Washington said that the smallness of the representation “had always appeared to himself among the exceptionable parts of the plan and . . . he thought it of so much consequence that it would give much satisfaction to see it adopted.” Even though the Constitution had already been printed, 40,000 was scratched through and 30,000 written in its place.
James Madison was among those who worried about the small size of the House, and he carried on the fight even after the Convention. When he introduced what we now call the Bill of Rights, he included an amendment to require that representation be set at the Constitutional maximum of one per 30,000, and to increase the minimum per state to two instead of one. His amendment would also have set a maximum size for the House, but he left the number blank. As revised and passed by Congress, though never ratified by the states, the amendment would have gradually increased the size of the House until it reached two hundred, after which representation would be permanently fixed at one per fifty thousand. Had this amendment been ratified, the House of Representatives would now have six thousand members. The amendment is still eligible for ratification, just as the 27th Amendment, concerning congressional pay, was finally ratified in the late twentieth century after similarly languishing since 1789.
Madison had more success following the first census, which took place in1790. He helped push through legislation which increased the size of the House from sixty-five to one hundred five, about one for every thirty-five thousand.
There is another interesting note on Congressional reapportionment. Following the 1920 census, Congress was unable to agree on an apportionment bill. The states that would have lost seats had enough power to block enactment of any change. Today the Federal courts would probably be eager to intervene, but in the 1920’s they still recognized that the legislative power is vested in Congress, not the Supreme Court, and the Court cannot order Congress to pass a bill, nor can it take over that function from Congress.
If a member of the House dies or resigns, the Constitution requires an election to replace him. This is different from the Senate, as we will soon see. The House was intended to be the part of the Federal government most representative of the people, and no one can gain a seat in the House except through election by the people.
This has been challenged recently by some who believe that, in case of a large number of vacancies, replacements should be quickly provided by appointment. The most common suggestion has been appointment by the governor of the state. While the Constitution has always allowed the possibility that governors might appoint a replacement for a senate vacancy, this was done in the knowledge that the House would stand as a bulwark in defense of the people. Appointed senators, no matter how numerous, could never pass a law without the consent of the House.
If governors were allowed to appoint replacements to the House following a large number of deaths resulting from a terrorist attack, natural disaster, or epidemic, one or two large-state governors might be able to change the balance of power in the House. Imagine what Governor Schwarzenegger could do if a terrorist bomb were to go off during a meeting of the California Democratic delegation in Washington. By giving California an all-Republican delegation, he would dramatically affect what legislation had a chance for passage. Of course a Democratic governor in a state such as Texas or Florida could do the same thing in reverse. Either way, the will of the people and the clear intent of the Founders would be overturned.
I also want you to notice the role that the states play in filling vacancies. The Federal government does nothing. It is the state governor who issues the writ for an election, and he does that according to state law which usually requires him to schedule the election within a certain period of time. In the early years of the Constitution, the only thing happening in the national capital was the swearing-in when the winner arrived with his certificate of election. Unfortunately, as we will see in a few minutes, the Federal government has exploited Section 4 of this Article to take a greater and greater role in the election process.
The House has the exclusive power to choose its own officers, including the speaker, who is its presiding officer. Nothing says that the speaker must be a member of the House, and occasionally there has been talk of choosing a non-member. When Republicans gained seats in 1980 but fell short of a majority, there was an attempt to rally conservative Democrats to join with Republicans in voting for former President Gerald Ford as speaker. However, this failed to line up enough support, and every speaker elected to this date has been a member of the House.
The House is given the “sole power of impeachment”. This has always been done by majority vote since the Constitution does not specify a supermajority. Not until we get to Article II will we find a listing of who can be impeached and for what reasons. However, it is worth noting that there is no method of appealing an impeachment except by a defense in the Senate. The Supreme Court does not have jurisdiction over the decision of the House.
Section 3 describes the Senate, which is very different from the House. It is smaller, its members serve a longer term, states are equally represented, and the Senate was originally elected in a different manner.
The Senate was intended to represent the states, or the people of each state, just as the House was intended to represent the people more as individuals. One of the disputes which threatened to tear apart the Constitutional Convention and send the delegates home in failure was whether states should be represented equally, as they were in the Confederation Congress (and in the Convention itself), or according to population and perhaps wealth. The delegates from smaller states, although often in favor of a stronger Federal government, were determined not to allow three or four large states enough votes to control that government. Delaware, which knew it would have the smallest delegation in case of representation by population, had instructed its delegates to walk out of the Convention rather than agree to such a change.
Some delegates, including Madison and Hamilton, blamed the equal representation in the Confederation Congress for its inadequacy. The large states, they said, would never grant sufficient power to the Federal government if states representing a minority could control such important matters as taxation and spending. These men also threatened to walk out of the Convention if they were denied what they considered justice.
While one side insisted on representation by population in both houses, and the other insisted on nothing but state equality, other delegates sought a compromise. The convention had been at work for little more than a week when John Dickinson of Pennsylvania first hinted at representation by population for the House and equality in the Senate. Nearly six weeks later, with some additional concessions to the large states, this became the basis for an enduring compromise. It was so fundamental to the Constitution that, just two days before adjourning, the Convention changed Article V to prevent this part of the document from being amended.
Almost as important as representation was the question of how the senators should be elected. Suggestions that they be elected by the House of Representatives or appointed by the President went nowhere. The only viable choices were election by the state legislatures or by the people. The more nationalist-oriented delegates favored popular election, but John Dickinson and others argued persuasively that the Senate would be a better check on the House if it were elected differently. In the end, the decision was approved by a unanimous vote of the states.
This was overturned by the Seventeenth Amendment. The arguments made against election by the legislatures were that wealthy men were coming to dominate the Senate through bribery of the legislators, and that Senate seats sometimes were left vacant for months or years when the two houses of the legislature insisted on different candidates. Wealthy men continue to dominate the Senate under the present system of popular election, and the problem of the split legislature could have been solved by requiring a joint ballot. Little has been gained by this change, and much lost. Today the Senate has no accountability to the state government, and the result has been a Congress that constantly infringes on the authority of the state governments, requiring them to do some things while prohibiting others. The problem of what is called unfunded mandates, when Congress imposes expensive obligations on the states, is something that would probably never have happened if the Senate still depended on the legislatures for reelection.
In 1787 the Senate was seen as the guardian of the states. Today no branch of the Federal government consistently plays that role, so power becomes more and more concentrated in Washington.
Senators have six year terms, much longer than the two years of the House. This was intended to serve two purposes. First, it gave them more time to learn their job. The Convention knew that many representatives would serve a single two year term and then retire, rather than endure long periods in the capital away from home and business. The senators would have the time to gain valuable experience and could use this to identify and repair faulty legislation that might pass the House. Some delegates were worried that the Convention might have gone too far, and that the Senate would eventually become the body that drafted and first passed legislation, with the House doing little more than giving its consent. As we shall see, this led to certain restrictions on the Senate.
This desire to make the Senate a wiser, more experienced body is also seen in that fact that its members must be older than the House, with a minimum age of 30 instead of 25, and must have been a citizen for at least nine years instead of seven. There was considerable worry among the delegates that foreigners, especially the wealthy and well-educated, would flock to the United States to enjoy the blessings of liberty, and might be capable of winning election to Congress while still thinking primarily as Europeans rather than Americans. The citizenship requirement was an important safeguard to make it likely that they would have been in the United States long enough to be assimilated.
The longer term, combined with the fact that only one-third of the Senate would be facing reelection at any given moment, was also meant to allow the Senate to be a temporary barrier against public opinion. The House, with its entire membership facing the electorate every two years, should mirror public opinion while the Senate, using what was hoped to be superior wisdom, would be able to block misguided legislation that had only temporary support. The Senate would give the people the chance for second thoughts. If public opinion held firm, then the Senate itself could be changed over a longer period of time and the public would get its way. If the public found itself convinced by the objections of the Senate, the House would then reflect that change and would drop its attempts at passage.
Although election by the state legislature was the rule, an exception was made in the case of a vacancy which occurred while the legislature was not in session. The governor could appoint a replacement who would serve until the legislature met again. Since legislative sessions were usually short in the eighteenth century, this was a significant exception. Resignations were also far more common in the eighteenth and nineteenth centuries than in today’s era of professional politicians. There was the additional possibility that the man chosen by the legislature might decline to serve, and because of the slow communications of that period this might only become known after the legislature had adjourned. The opportunity for turnover can be seen in fact that during the 1789-1795 term for one Virginia senate seat there was a death and a resignation, as well as one refusal to serve. During those six years, seven different men held Virginia’s two seats without any incumbent being defeated for reelection.
The Vice President is the presiding officer of the Senate, and may vote to break a tie. This is an unusual mixing of the executive and legislative branches, and caused some concern at the Convention and during the debate over ratification. The early vice presidents took this responsibility seriously, and customarily were in Senate President’s chair during most sessions. However, over time, vice presidents have been assigned by the president a greater role in executive branch functions, and today they usually preside only if a tie vote is expected or for ceremonial events such as the state of the union speech.
Officers who have been impeached by the House of Representatives face a trial in the Senate. While impeachment, which is similar to indictment, requires only a majority of the House, conviction in the Senate can only be obtained by a supermajority of at least two-thirds of those present. This has been an important barrier against partisan use of the impeachment process. Even the Radical Republicans of the Reconstruction era, with a Republican majority of more than two-thirds in the Senate, fell one vote short of being able to convict President Andrew Johnson in a partisan attempt to remove him for disagreeing with Congressional policy. The two-thirds requirement may sometimes allow the guilty to escape punishment, but majority vote would render the procedure subject to great abuse.
Impeachment trials are a quasi-judicial process, presided over by the Chief Justice of the Supreme Court. However, using the Senate as the jury for the trial introduces an undeniable political element as well. Senators are exactly the type who would normally be struck from a jury pool since they have an interest in the outcome, and often approach the trial with their minds already made up or at least leaning strongly in one direction. However, this was a very deliberate decision by the Convention. They also considered leaving the verdict to the Supreme Court, but some of its members might have been appointed by the president on trial, and its small size meant that the use of unethical means to win over just a few could determine the outcome. The Senate, being larger, more independent, and perhaps wiser, seemed to be the best choice.
Impeachment is also a political process as far as the penalty is considered. If convicted, the defendant faces no criminal penalties. He is neither imprisoned nor fined. He is merely removed from office, and perhaps prohibited from holding Federal office at any future time. This last is a matter of some dispute. Some believe that conviction automatically brings with it both removal and disqualification. However, the Senate handled an early impeachment of a Federal judge by holding two separate votes on conviction and disqualification, and Rep. Alcee Hastings was allowed to take his seat after being elected to the House of Representatives despite having been impeached and convicted while serving as a Federal judge.
While impeachment and conviction do not carry any criminal penalties, the Constitution is explicit in saying that an official who has been convicted by the impeachment process may also be subjected to a criminal trial for the same acts. This is not a case of double jeopardy.
Section 4 begins by allowing Congress to amend or replace state laws for “the Times, Places, and Manner” of elections for members of Congress. This is an overwhelming grant of power, and seems out of place in a document that is carefully worded to grant the Federal government sufficient authority while still protecting the powers of the states. The opponents of the Constitution seized on this, and emphasized the potential for abuse. They pointed out that Congress could go so far as to establish only a single polling place in a state, locating it in a town where the population could be counted on to elect representatives sympathetic to the congressional majority that had chosen that location. The Federalists could not deny that this was possible. Their answer was that Congress could be trusted not to abuse the power, and that it was necessary to guarantee the elections would be held. Some Federalists genuinely feared that state legislatures might attempt to sabotage the new government by refusing to hold elections, and therefore Congress must have the power to act on its own if necessary.
This provision has been superfluous as far as it original intention, but it has served as a foot in the door for Federal interference in elections, and has been bolstered by later amendments guaranteeing the vote to certain groups of people, always including the statement that “Congress shall have the power to enforce this article by appropriate legislation”. While the power is formally applicable only to Federal elections, states find it impractical to have two different sets of elections laws, especially since the great majority of states hold state and Federal elections simultaneously.
The final portion of Section 4 requires Congress to convene at least once a year, and sets a default date for that meeting, one that can be changed by law. There was some debate over whether Congress would need to meet every year. Many of the delegates to the Convention hoped that Congress would pass few laws, and some believed that annual sessions would be a waste of taxpayer dollars as well as a temptation to legislate unnecessarily. However, the majority held that regular oversight of the executive branch would always be needed, even if legislation was not. The men who wrote the Constitution took seriously the necessity of having each branch serve as a check on the others, and expected Congress to keep a close eye on executive branch activities.
The final clause, concerning the day of meeting, was also a matter of controversy. The first Monday in December was chosen primarily because it would be convenient for those whose occupation was farming, but other dates were put forward as either more convenient for travel or for carrying out public business more expeditiously.
There was also disagreement over whether the Constitution should fix an unchangeable date, or allow Congress to handle the matter by law. The final wording was a compromise. Congress was given the power to establish a date, but if it failed to do so the December date guaranteed that Congress would have a clearly known time to convene.
The Twentieth Amendment changed the date to January 3 and also made that the day that congressional terms begin and end.
Section 5 begins with a paragraph that establishes each house as the sole judge of the “Elections, Returns, and Qualifications” of its members. This is another matter which the Constitution puts beyond appeal to the Supreme Court. Decisions of the House and Senate concerning who has been elected and is qualified to serve cannot be reviewed. If the Minnesota courts had decided the disputed 2008 senate election in favor of Norm Coleman, the Democratic majority in the Senate would still have had the raw power to seat Al Franken, subject only to the penalties of the court of public opinion. This is one example of something that delegates frequently mentioned during the Convention – the fact that all power is subject to abuse, and the only true solution is an alert population that will hold their elected officials accountable for their actions.
The rest of the first paragraph of Section 5 deals with a quorum for doing business. After much controversy and discussion, the Convention decided that a majority of each house would be a reasonable quorum. Some hoped for a larger number, fearing that the senators and representatives from distant states such as Georgia would be at a disadvantage compared to those who lived close to the capital, while others remembered the poor attendance record of the Confederation Congress and predicted that majority attendance would seldom be achieved. Fortunately, the latter concern proved unfounded, as the increased power of the new government provided a strong incentive for members from all parts of the country to attend, if only to protect the interests of their state or district.
An important question, and one which has not been clearly settled, is whether the majority refers to a majority of a full House or Senate, or a majority of the members holding office. This is especially important in the House, which because of death and resignation often has less than the full 435 members. If a large number of members were to be killed or disabled by some event, such as a terrorist attack, the exact nature of a quorum could become a crucial point.
Each house has full authority to write its own rules, as long as they do not violate any provision of the Constitution. The Senate has traditionally used this to provide for a free and full debate, a rule commonly known as the filibuster. While both Republicans and Democrats, when in the majority, have attacked the filibuster as unconstitutional, the Senate is completely within its rights to establish rules governing debate. The House, on the other hand, has moved in the direction of using its rules to severely limit debate. The House Rules Committee determines how much time should be allowed for debate, and also decides which amendments may be offered on the House floor. The result, of course, is that a narrow majority in the House is often able to force through highly controversial legislation, only to see that same bill die in the Senate. As I mentioned earlier, the Senate was always intended to play this sort of role.
This part of the Constitution provides the only way of forcing a member of Congress out of office before the end of his term. Members are not subject to impeachment, but they can be expelled by a two-thirds vote. As with impeachment, the two-thirds rule makes it likely that expulsion will take place only when the evidence is compelling, and even then the guilty will sometimes escape because of partisan support. However, not even two-thirds is enough to be an absolute guarantee against abuse. During Reconstruction, when Senate Republicans were about to lose their two-thirds majority by the seating of a new Democrat, they quickly expelled another Democrat to maintain the status quo.
The expulsion process appears to be another of those matters that is the exclusive jurisdiction of each house. However, when the House of Representatives expelled Adam Clayton Powell on the grounds of corruption, Powell persuaded the Federal courts to take up the case, and the Supreme Court eventually ruled in his favor. While this might have been a straw in the wind, indicating a growing willingness of the courts to intervene in the internal matters of Congress, the passing of the Warren Court seems to have buried such tendencies.
That’s as far as we’ll go today. At this time, you may submit any questions you have.
Today we’ll pick up where we left off in Section 5 of Article I.
The requirement that each House keep an official journal was considered too weak by many when the Constitution was first written. They feared that failing to require the journals to be published at regular intervals, and allowing each House to judge what should be kept secret, was an open invitation to delay and abuse. However, from the very beginning, newspaper reporters provided an unofficial daily account of business and debates in the House, and did the same in the Senate once it opened its doors to the public. This removed any incentive to delay publication, and attempts at secrecy were plagued by the same sort of leaks that we see today.
A recorded vote must be taken if one-fifth of the members present request it. This met with opposition from delegates who grumbled that members would be forced to vote on unpopular matters, and that those who saw the list would not know the reasons that had impelled their elected representative to vote that way. This may be one reason why congressional newsletters are almost as old as Congress itself, with the first “circular letters” to constituents appearing no later than 1791.
The final paragraph of Section 5 attempts to require a minimal degree of cooperation between the two Houses. Neither House can decide to adjourn and go home without the consent of the other, nor can one change its location.
Section 6 takes up some very sensitive matters, especially the questions of congressional pay and the appointment of congressmen to executive branch office. There was a broad range of opinion on how to handle congressional pay. There was disagreement over whether it should come from the Federal treasury or from the states. Should the amount of compensation be set by Congress or by the Constitution? Should it be fixed forever, increased by a cost-of-living measure, or left entirely flexible? A desire to make the members more loyal to the national government led to payment from the Federal treasury, but this forced the delegates to face the other questions rather than leaving them to the states. James Madison pressed hard for putting a precise amount in the Constitution itself, then adjusting it regularly for cost of living. He warned that allowing Congress to set its own pay, the only viable alternative, was “indecent”. Other delegates warned that if Congress made the decision, public opinion would force them to make the pay too little to attract talented and well-qualified men. The majority, however, decided that Congress could be trusted and left the matter entirely in its hands.
Madison did not let the issue die. As with the question of reapportionment, he introduced a congressional pay amendment along with the Bill of Rights and secured passage by Congress. This amendment would prohibit any congressional pay increase from taking effect until after the next election. Although it was not ratified along with the Bill of Rights, the amendment had no expiration date and remained in limbo until states were persuaded to consider it in the late twentieth century, and it became the Twenty-seventh Amendment.
Congress responded to this by establishing a system in which they receive an automatic cost of living increase. Since this increase always takes place after passage of the legislation that originated it, Congress believes that it meets the requirements of the amendment. It has not yet received a definitive ruling by the Supreme Court.
Members of Congress are protected from arrest for minor violations of the law during each session of Congress, which is intended to shield them from potential persecution by another branch of government, usually the executive. Their comments on the floor of the house are exempt from claims of libel, allowing them to speak freely when conducting the nation’s business.
The delegates to the Constitutional Convention were heavily influenced by their knowledge of the patronage system which was so important in the British government. The King and his prime minister relied on patronage appointments, sometimes to jobs with great power, sometimes to jobs with good pay and little work, to maintain a majority in Parliament. This made the Convention extremely wary of anything that might allow a president to control Congress through patronage.
There were some members who would have solved the problem by prohibiting anyone who had ever served in Congress from ever holding any executive branch position. They were convinced that anything less would allow the new American government to become as corrupt as the British. Others, including Alexander Hamilton, opposed all such restrictions, being convinced that patronage was a legitimate form of influence for the president.
For a while a majority of the delegates favored prohibiting a member of Congress from accepting any appointment during his term of office and for one year after. However, many were still concerned that this would deprive the executive branch of needed talent and should be loosened. The result was a compromise that prohibited appointment only to offices that had been created during the member’s current term, and those whose salary had been increased. Even these would be open to him one year after the end of that term. This at least prevented the possibility that the president and a corrupt majority would work together to create lucrative offices and immediately step into those offices. Members were absolutely prohibited from holding an appointive office while serving in Congress, a sharp contrast with the British system. In order to accept a presidential appointment, a member must resign and allow someone new to fill his seat. Most of the delegates hoped that this would prevent a president from corruptly maintaining a permanent majority in Congress, and their judgment appears to have been correct.
Today this part of the Constitution rarely comes up except when a member of Congress is nominated to a position whose salary has recently been increased. Congress normally responds by temporarily restoring the salary to its earlier level, before the Senate votes to confirm the member.
Section 7 begins with a restriction which was an important part of the Great Compromise involving representation in the House and the Senate. Some delegates were unwilling to accept equal representation in the Senate unless the House enjoyed the same privileged position as the British House of Commons in regard to bills for taxation and spending. They insisted that the compromise give the House the exclusive right to introduce such bills and prohibit the Senate from amending them, allowing it merely an up or down vote. Because the House was elected directly by the people, it deserved this advantage in handling the people’s money. This had been considered several times previously and defeated, but its supporters were a key bloc whose votes were needed to adopt the compromise, and they won their point, at least temporarily.
Those who opposed discrimination believed that the Senate could and should play an equal role in money bills, applying what might be its superior wisdom. They briefly gained the upper hand and removed this clause, but this threatened to reopen the Great Compromise. Following a lengthy debate on August 13, discrimination in favor of the House was finally restored in a weaker form, with the Senate allowed to amend bills originating in the House.
Section 7 next describes the process by which a bill may be enacted into law. It must first be approved by both the House and Senate, and then submitted by them to the President. From that point, there are three ways in which it may become a law. The simplest occurs when the President shows his agreement by signing the bill, and this is what usually happens. However, there are times when president has reservations and is reluctant to sign, but is nevertheless willing to allow it to become law. In this case, he simply does nothing and, after ten days, the bill is automatically enacted.
Note that the ten day period contains an important exception. Sundays are not to be counted. The Constitution here explicitly recognizes the Christian Sabbath, and incorporates it into the procedure for making a bill a law. The President is to be allowed to observe the Sabbath, without being required to use that day for consideration of whether to sign a bill.
There is an important limitation on this ten day period. If the Congress adjourns before the ten days are up, and the President still fails to sign the bill, it dies instead of becoming law. This is usually referred to as a pocket veto, allowing a President to kill a bill without exercising his veto power formally.
That brings us to the presidential veto. The president may return the bill to Congress without his signature, and with a message stating his objections. The bill will then become law only if each house approves it with at least two-thirds in support. If either house fails to do this, the bill dies. This allows a president to block legislation if he has the cooperation of at least 34 senators or 146 representatives. This makes the president a major player in the legislative process, and deliberately so. Although the veto power was intended especially to allow the President to protect himself against congressional usurpation of his powers, he was also expected to use it to block other unconstitutional bills and even unwise policy.
The last part of Section 7 requires the signature of the President on all items, except adjournment, approved by both houses. James Madison proposed this to prevent Congress from trying to evade a veto by labeling a measure a resolution instead of a bill.
Now we come to Section 8 of Article I. First, however, you may have noticed that I began these lessons with Article I, skipping over the preamble. I did that to emphasize that the preamble does not contain the substance of the Constitution. It does set forth the general goals for which the Constitution was written, but no more. If you want to know whether Congress has the authority to pass a certain law, you should not look to the preamble and ask whether the law would promote the “general welfare” or “common defense”. Instead, you should look in the body of the Constitution and especially in Article I, Section 8 to determine exactly what power has been given to Congress as a means of pursuing the goals of the preamble.
As we begin looking at the authority granted by the states to the Federal government, we must be aware of the historical context. The Convention was called because there was almost universal agreement that the government established by the Articles of Confederation was too weak. It lacked the powers necessary to carry out even the limited functions that had been assigned to it. Therefore, the purpose of the convention was to create a government with substantially more power. The Constitution is sometimes described as if its sole purpose was to limit the power of the Federal government and protect liberty, but those who met in Philadelphia in 1787 understood that their role was primarily to increase the power of government while also protecting the rights of states and individuals as much as possible.
We see this emphasis on additional power immediately as Section 8 begins with one of the most important and controversial powers of government, allowing Congress to “lay and collect Taxes, Duties, Imposts, and Excises”. Under the Articles of Confederation, Congress had no power to tax anyone. Instead, after deciding how much it would spend each year, it divided that amount among the states and each state was supposed to levy taxes to pay its share and then send the money to Congress.
The requisition process, as this was called, turned out to be a fiscal disaster. Few states paid the full amount of their requisition, and some paid nothing at all. Each state had its own sob story about why its citizens could not bear a heavier tax burden, and there is no question that the voters in every state were hostile to tax increases. In fact, historians have recently begun to recognize that Americans at this period were often against being taxed at all, at least directly.
There had been two attempts to amend the Articles of Confederation to allow Congress to collect a tax on imports, that is, an “impost” or tariff, but such amendments required unanimous approval by the states, and each amendment fell one or two states short. An amendment to allow Congress to directly collect the requisition from states that failed to pay, by taxing the citizens of those states, had been drafted but never came up for a vote.
It is a sign of how much public opinion had changed, at least among the politically active, that the Constitution ignored these small reforms and granted Congress an almost unlimited power of taxation. Only one type of tax is prohibited, a tax on exports. All other taxes are permitted, including direct taxes on property. There is no limit on the amount that can be collected. The only other restriction is that tax rates must be uniform, although we shall see that an additional restriction on direct taxes contains an exception to this.
This was possibly the most controversial portion of the Constitution. During the ratification debate in the states it was held up by the Antifederalists as proof that the proposed Federal government would be expensive and oppressive. Federalists responded that because the Federal government would be responsible for protecting America’s survival as a nation, especially during wartime, it must be empowered to collect whatever amount of money was needed for that supreme goal. The Federalists also assured people that popular opinion would prevent Congress from abusing this power during peacetime. It was a close call, but the Federalists proved to be slightly more persuasive.
The purpose of the taxing power is described as “to pay the Debts and provide for the common Defense and general Welfare”. Here we have a reference to the “general Welfare” that is within the body of the Constitution, and some point to this as justification for any legislation that will serve the common good. However, this point of view was discussed and repudiated during the ratification debate. This phrase was copied from the highly restrictive Articles of Confederation and gave no such broad powers there. Furthermore, if we take a broad interpretation of this phrase, there is no need for the enumerated powers in the rest of Section 8. Those other powers were included because no one believed that a reference to “general Welfare” conferred broad powers on the Federal government.
Congress is allowed to run a deficit and to borrow in order to pay its bills. The common belief at the time was that borrowing would be essential in time of war, but that the debt should then be paid down in time of peace. One purpose of granting the taxing power was so that the Federal government could begin paying the debt incurred during the American Revolution. After the ratification of the Constitution, the Washington administration struggled to erect a tax system that would produce a surplus and begin to reduce the debt, and by end of his second term this was in place. Reducing the debt during peacetime, except during depressions, continued to be customary until after World War II, and peacetime deficits did not become the rule rather than the exception until the 1960’s.
This part of the Constitution led to a much-overlooked debate on August 16, when the Convention discussed whether Congress should be allowed to issue paper money. After a heated debate, the delegates voted down the idea. The Supreme Court briefly recognized this truth when it ruled the paper money issued during 1860’s to be unconstitutional, but President Grant used his appointments to the Court to create a majority that reversed the decision.
Congress is empowered to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes”. This has been one of the most thoroughly abused powers of Congress. In regard to foreign nations, Congress has to a large degree surrendered this power by joining the World Trade Organization and NAFTA. The only remaining vestige of independence is that usually decisions of by WTO and NAFTA are not enforced by the Federal courts, but must be enacted by Congress, and Congress sometimes refuses to obey.
Interstate commerce has become the favorite means of justifying domestic legislation, with its definition vastly expanded beyond the normal meaning of goods and services moving across state lines. The Supreme Court has decided that interstate commerce includes elevators, since their passengers may be moving from state to state. It has even ruled that a man who grows food on his own farm and consumes it himself is affecting interstate commerce by withholding that food from the interstate market. The Court has recently demonstrated a willingness to put some limits on this abuse of the interstate commerce clause, but few justices are willing to begin the work of rolling it back.
Congress, with its responsibility for national legislation, must decide on the rules for becoming a naturalized citizen. Such rules are to be uniform throughout the United States, rather than allowing each state to establish its own, as was the case prior to the Constitution.
Congress is also allowed to establish a national bankruptcy law, but this is a good example of how public opinion and political culture can trump what the Constitution allows. For several decades after ratification the states continued to be the source of bankruptcy laws, as the voters made clear that they were not ready to see this shifted to the Federal government and Congress dared not act.
The power to coin money and regulate its value was and is a vital aspect of government. Money is to be coined, not printed, another indication that paper money is not permitted. American money was based on the Spanish dollar, and was to have exactly the same amount of silver as its Spanish counterpart. The U.S. government did not print paper money until the 1860’s, using only gold and silver coins during that period. Fixing the standard of weights and measures is therefore also necessary in order to protect the value of coins, which is why that power appears here.
The decision to avoid paper money was based on experience. During the American Revolution the Continental Congress, having no taxing power, had relied on paper money to finance the war. By 1780 the amount in circulation was so great that its value dropped to zero, and Congress had to stop the printing presses. That generation never forgot what hyperinflation was like, and they intended to prevent it from happening again. Unfortunately, by allowing Federal Reserve Notes to be legal tender, meaning that they are legally recognized as money and must be accepted in payment for purchases, Congress has allowed the return of persistent inflation and today’s Federal Reserve dollar has lost almost all of the value it had in 1913.
Naturally the Federal government must have the power to prosecute and punish those who counterfeit coins or Federal bonds.
Congress is allowed, though not required, to establish a postal service. At the time of the Constitution the Post Office was expected to operate at a profit, and Alexander Hamilton included this profit in his plan to finance the operations and pay the debt of the United States.
Congress is allowed to pass laws to protect patents and copyrights for a limited time. The purpose of this is clearly stated as “To promote the Progress of Science and useful Arts”, and this passage is sometimes quoted out of context as if it was a grant of power in itself.
The Constitution requires a Supreme Court, but it is up to Congress to establish any Federal courts below that level. While there was some sentiment for allowing the state courts to serve as lower Federal courts, with a right of appeal to the Supreme Court, the basic three-level system including District and Appeals courts has been in place since the Judiciary Act of 1789. The authority of Congress to not only create, but also abolish these courts was tested in the early 1800’s. The Federalist Congress of 1799-1801 added many new judges, and these positions were filled by the appointment of Federalist President John Adams. Since passage of the law and the appointments had taken place between the time that the Federalists lost the election and the time that the Republicans took office, Republicans naturally cried foul and quickly repealed the act of 1801. Some judges who lost their position filed suit on the grounds that they could only be removed for a violation of good behavior. The Supreme Court, led by Federalist John Marshall, disagreed and upheld the authority of Congress.
Although states play the primary role in criminal law, there are some locations where the states lack jurisdiction. Therefore, Congress is given the power to deal with “Piracies and Felonies committed on the high seas”. It also handles “Offenses against the Law of Nations” since that is a matter of international relations, and could not be properly left to the states.
Congress has the power to declare war, and the Convention was very clear on the fact that the President had no such power. The delegates were well aware that the King of England, rather than Parliament, held the power of declaring war, and they explicitly rejected that model. The President, as commander-in-chief, would be in charge of conducting the war but only after Congress decided that war was the right choice.
This has become one of the most flagrantly violated parts of the Constitution. Early presidents, such as Adams and Jefferson, carried on undeclared wars after receiving what they considered congressional authorization in the form of special appropriations and taxes. President Truman went far beyond this in 1950 when he committed U.S. troops to the defense of South Korea on his own initiative, justifying it as observance of the United Nations treaty. The political results of this were so negative that Presidents since then have sought to hide behind congressional resolutions calling for military action, thereby making Congress share the responsibility. President George W. Bush reached new heights when, in 2002, he pushed through Congress a resolution which made it entirely his decision whether to go to war against Iraq.
I do not believe in a “living constitution”, but we now have a de facto living constitution which gives the President the power of declaring war. Congress could do the nation no greater service than to resume exclusive control over this important decision.
Congress, as part of its war powers, also may issue what are called letters of Marque and Reprisal. These allow private individuals to engage in military action, and in the eighteenth century were used to encourage attacks on enemy shipping, usually called privateering. Although these have fallen out of use, there have been suggestions that they be revived to allow private action against Islamic terrorists.
Congress may “raise and support Armies”, this being clearly a function for the national government. However, the possibility of a standing army in peacetime was as controversial as the unlimited taxing power. The danger that a standing army would become an instrument of tyranny was a well-known tenet of English political theory, and the Americans had learned the lesson even better than their cousins across the Atlantic. They had won their independence and liberty only after defeating, in an eight-year war, a professional standing army. Since the treaty of peace, the United States had possessed only a tiny army to garrison a few posts, depending mainly on militia to deal with Indians on the frontier.
There were many who favored a prohibition on a standing army during peacetime, though some were willing to compromise by limiting it to a small size. However, these proposals would not allow the government to prepare in advance for war, no matter how likely it might appear. The compromise reached in the Convention was that no appropriation of funds for the army could be for more than two years, so that a President who tried to use the army to establish a dictatorship would have only a limited time before Congress could disband the army by denying it funds. It would be impossible for a President to take a slow, incremental road to tyranny. Federalists also argued during the ratification debates that Congress would be subject to public opinion in determining the size of the army. Only if the voters desired a large army, and the taxes to support it, would Congress provide the money. The Federalists were certainly correct about this. Not until the Cold War era were taxpayers willing to accept a large standing army in peacetime. One reason for the Republican victory in the election of 1800 was a desire to disband the army that had been created in case of war with the French, and to repeal the taxes enacted to fund it.
There is no such limitation on appropriations for the Navy, since a Navy is much less suited than an army for overthrowing the government and establishing a dictatorship. Congress is also empowered to establish the rules governing both the Army and the Navy.
Fear of a standing army caused Americans to put great faith in the militia, the citizen-soldiers of the nation. An effective militia would reduce the need for a standing army, and unlike professional soldiers would be no threat to the civil authorities. The militia was made up of most adult males, each of whom was required to own a military-style weapon and to attend training sessions at regular intervals.
The militia had always been the responsibility of the states (and earlier, of the colonies), and were seen as an indispensable guardian of the states. However, the Federal government would also have to be able to call on the militia if it were to avoid being dependent on a large standing army. Therefore, the Constitution says that Congress “shall provide for calling forth the Militia” for certain purposes, and for those purposes only. Notice that only Congress has this power. The President, who commands the militia once called into service, can call them only to the degree allowed by Congress and following procedures established by Congress. He does not have unlimited authority in this matter.
Three purposes justify calling out the militia. The first is to enforce Federal laws. As a practical matter, this will rarely be necessary unless the second purpose, to “suppress Insurrections”, is also involved. The Whiskey Rebellion, for example, required the use of a militia army both to put down the insurrection and to attempt to enforce the law imposing a tax on whiskey. The third purpose is to repel invasions. Only during the War of 1812 has this been done on a large scale. It raised the question of whether militia could be ordered to serve outside the boundaries of the United States. A strict reading would say no, but military necessity sometimes requires defending one’s own borders by taking and holding a more defensible position in the enemy’s country. A more extreme position would be that preventing invasion can even require defeating the enemy and occupying his territory. The militia got their way during the War of 1812, but the exact Constitutional limits of militia service have not been definitively settled.
If the militia were to sometimes be called into Federal service, then the Federal government needed to impose a degree of uniformity on the militia. Congress is given the power to organize, arm, and discipline the militia. While “arming” the militia sounds to us as if Congress is to give them weapons, one of the delegates to the Convention clarified this during debate by saying that arming only meant specifying what types of weapons the militia should use. Congress is allowed to make sure that the militia of all states use the same weapons, organize into units of a uniform size, and are trained in the same way. Just as Congress passes laws to govern the army and navy, it may pass similar laws for the militia, but those laws only apply when the militia are in Federal service. At all other times, the militia are governed by state law. The state governments also appoint the officers of the militia, which was intended to give the states confidence that the militia would remain loyal to their states.
Unfortunately, the militia was always more popular in theory than in practice, and today the institution exists only in the form of the “unorganized militia”. These are males of military age who are theoretically available for service, but are subject to no requirements for training or armament. Enforcing attendance at militia drills was always unpopular, and in the early twentieth century Woodrow Wilson committed another of his many sins against the Constitution by creating the National Guard and allowing the militia to die of negligence.
Congress was allowed to establish a capital district as large as ten miles square, and is to hold exclusive legislative authority over the capital. As part of the deal for the Federal assumption of state debts, this capital was placed on the Potomac River on land provided by Maryland and Virginia, although the Virginia portion was later returned. Congress is still the ultimate legislative body for the district, even though the District of Columbia has its own elected government. Laws passed by the District’s council do not go into effect until Congress has had time to block them, and Congress can, at any time, overturn a District law.
The Constitution makes no provision for the District to be represented in Congress, and originally did not allow its participation in presidential elections. The Twenty-third Amendment granted it electoral votes for the presidency, but an amendment passed by Congress in 1978 to provide Congressional representation did not come close to ratification. A subsequent attempt to make the District a state was defeated on both constitutional and practical grounds in 1993. More recently Congress has considered granting the District representation only in the House. This is also clearly unconstitutional, since the Constitution provides only for the representation of states. This bill has not yet passed, and would probably be struck down by the Supreme Court in any case. A lower Federal court ruling on a similar question found that there was nothing in the Constitution to allow the District to be represented in Congress.
Congress may also purchase land for “Forts, Magazines, Arsenals, dock-yards, and other needful Buildings”. If given permission by the states in which these buildings are located, Congress may take legal jurisdiction, so that they are subject only to the laws of Congress and not the state. Notice that all the items listed involve various government installations. There is nothing in the Constitution that allows the government to hold vast tracts of land, nothing that allows it to establish parks or wilderness areas. In the nineteenth century the Federal government began to retain ownership of large amounts of public land when new states were created, and it has made such ownership permanent. A Congress which respected the Constitution would sell this land and use the money to reduce the national debt.
Section 8 ends with words which have perhaps been abused as much as the interstate commerce clause. Congress is authorized 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”. During the ratification debate, opponents realized that this phrase could be used to read into the Constitution powers which were neither explicitly given nor intended. They recommended going back to the wording of the Articles of Confederation, which said that Congress had only those powers “expressly delegated”.
`However, the “necessary and proper” clause had been written in order to avoid the problems caused by the “expressly delegated” clause. Federalists, led by James Madison, insisted that it was impossible to enumerate everything that Congress was allowed to do. Therefore, some implied powers were essential. Madison also pointed out that Congress was not being allowed to do whatever it considered “necessary and proper”, but only whatever was needed to carry out the powers enumerated in Section 8 and elsewhere in the Constitution.
In hindsight, we can see that both were right. A complete enumeration of powers is impossible, but “necessary and proper” has become a major Constitutional loophole. Madison himself learned this to his dismay as early as 1791, when Hamilton used it to justify creating a national bank.
Section 9 contains a variety of unrelated items. The first paragraph is a compromise concerning the importation of slaves, though it is carefully phrased to avoid ever using the word “slave”. South Carolina and Georgia attempted to preserve the right to bring in more slaves purchased in Africa, while other delegates insisted on an end to the slave trade. The final language protects the slave trade until 1808, and allows Congress to prohibit it after that time. Each side seems to have hoped that by 1808 it would control Congress, so each was willing to put off a final decision. Allowing an import tax of ten dollars per slave was included since it was assumed that all other imports would be taxed. The North did not want imported slaves treated more favorably than other imports, and the Deep South knew that allowing Congress discretion could result in a tax so high that it would be the same as an outright prohibition.
The next two sentences are sometimes referred to as a Little Bill of Rights. The right of habeas corpus is protected except in the extreme cases of rebellion or invasion, when it may be suspended. Because this provision is in Article I, dealing with Congress, it became the center of a controversy in 1861. President Lincoln delayed the convening of Congress until six weeks after the first shots were fired at Fort Sumter, and acted on his own to suspend habeas corpus. Chief Justice Roger Taney ruled, in the case of John Merryman, that the President had no power to suspend habeas corpus. Lincoln used the army to nullify Taney’s ruling, and Congress later passed laws giving Lincoln the suspension power and ratifying everything he had done before they convened. Wartime Congresses have often shown themselves eager to cut Constitutional corners, and this was no exception.
Bills of attainder and ex post facto laws were prohibited without any exceptions. A bill of attainder bypasses judicial proceedings and uses the legislature to declare someone guilty of a crime. Lacking the usual protections of a criminal trial, it had demonstrated itself to be easily abused. Ex post facto laws made behavior, which had been legal, retroactively illegal. No man could be safe under such conditions since he could never know whether what he was doing might become illegal after it was done.
The next sentence deals with direct taxation, and requires some historical context. It was correctly assumed in 1787 that most of the Federal government’s tax revenue would come from what are called indirect taxes – that is, tariffs and perhaps excise taxes. The tax would be paid by the businessman, who would pass it along to his customers in higher prices. However, it was understood that at least during wartime there would be a need for additional revenue. This would require levying taxes directly on property, especially land, buildings, and slaves. Direct taxes were a substantial source of income for most state governments, but they were much more unpopular than indirect taxes since the taxpayer saw what he was paying, instead of having it hidden in the price of his purchases.
Furthermore, direct taxes could be unfairly distributed by politically-motivated decisions. State governments often did not have their own assessors. Instead, the legislature would assign each county a certain amount of the total tax bill, leaving it to the county to assess and collect from each property owner. Needless to say, counties supporting the majority faction in the legislature got off easily, while those of the minority shouldered a heavy burden.
All of this was on the minds of the delegates when they debated how to handle direct taxes. Most were convinced that direct taxes must be permitted, but there was great concern that Congress would manipulate the tax system so as to throw an unfair burden on certain states. For example, a tax on slaves would be paid mostly by the South. A tax on ships would hit New England especially hard.
The solution was to require that the direct taxes paid by the people of each state would be “in Proportion to the Census”. If a state had ten percent of the population at the time of the last census, its people would pay ten percent of the amount to be collected from a direct tax. Population might not be precisely the same as property values, but it was close enough that the states could feel confident that they would pay something close to their fair share. Extreme manipulation would be impossible.
Adopting this rule for direct taxation brings it into contrast with the rule for all other taxes. As you will recall, the rates for those taxes must be uniform, no matter where they are collected in the United States. With a direct tax, however, the rates must vary from state to state in order to collect the proper amount within each state. When the direct tax of 1798 was being collected, the procedure within each state was first to assess all the property, then to determine what tax rate would raise exactly the amount required.
Direct taxation turned out to be much less practical than most had expected. When the first direct tax was enacted in 1798 to help finance the undeclared war with France, collection was much slower and more expensive than predicted. The intrusive procedure of examining and assessing property was disliked, and there was even a small anti-tax rebellion in Pennsylvania. Congress tried again while also experimenting with alternatives during the War of 1812, and the last direct tax ever enacted, that of 1861, was repealed so quickly that most of the money remained uncollected.
Direct taxation became an issue again in 1895, when the Supreme Court considered the constitutionality of the income tax of 1894. The Court had previously ruled that taxes on wages, salaries, commissions, etc. should be considered as excise taxes, and were therefore properly treated by the tax laws of the 1860’s. The 1895 case turned on the question of whether a tax on income from the ownership of property should be considered a direct tax, just as a tax on property was. The Court agreed that it should, declaring that this part of the income tax could not be subject to uniform rates in each state, but would have to be apportioned according to population. The Court decided that this flaw justified striking down the entire act, even though much of it was constitutional if looked at separately. This decision led eventually to the Sixteenth Amendment, which allowed income of all types to be taxed at uniform rates.
Another interesting issue in that same case was the question of whether Congress could tax different levels of income at different rates. The plaintiff argued that uniformity of rates mandated a single tax rate. The Court, however, looking at the evidence that the intent of the Convention had been to avoid discrimination among the states, ruled in favor of the constitutionality of graduated rates.
We’ll continue our discussion of Section 9 next week. You many now submit any questions you have.
Section 9 of Article I contains the prohibition on export taxes mentioned earlier. While all states were major importers in 1787, a few southern states were the major exporters. An export tax was seen by them as sectional warfare, and it might have been impossible to get enough states to ratify the Constitution without this provision.
Next comes a prohibition on giving legal preference to certain ports, which is another protection for the states. The desire to seek special benefits for one’s constituents was no less strong in 1787 than it is today. Marylanders, for example, were well aware of how Baltimore might suffer if Virginia were able to win legal preferences for Norfolk.
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. I cannot emphasize enough how important this was to the men who wrote the Constitution. Throughout the colonial period the elected legislators had used the power of the purse to protect and expand their power, preventing appointed governors from ruling unilaterally. It was an article of faith with them that the people’s money must not be spent without the permission of the people’s representatives. This was another principle that took a severe wound in 1861 when President Lincoln accumulated a huge debt during the six weeks before Congress convened, but he correctly surmised that they would give their retroactive approval. In more recent times the principle has been stretched to the breaking point by the creation of programs which, although not legally guaranteed by the Federal government, are commonly understood to have an implicit guarantee. Fannie Mae was an example of such a program, and Congress bailed it out even though no such promise had ever been made. In effect, Congress allowed Fannie Mae to write checks drawn on Congress, and Congress made the appropriation later.
Titles of Nobility are prohibited as an act of the U.S. government. Such titles, in Europe, often included special privileges and sometimes even an income. Granting titles of nobility was one way for the King to win over supporters, and was seen as an example of European corruption that must not be allowed in America. The Constitution goes even further in saying that no one holding office under the U.S. government may accept a title or a gift from a foreign government unless Congress gives permission. For almost two centuries this permission was handled on a case-by-case basis, until Congress passed a law setting forth general conditions under which such gifts were permitted.
Having dealt in Sections 8 and 9 with what Congress may and may not do, Section 10 provides a list of powers that are prohibited to the states. Most of these are powers which are to be exercised exclusively by Congress. The states are not allowed to enter into treaties with any foreign government. This would be a direct conflict with the treaty-making power of the Federal government, and would allow foreign nations to play off one state against another. There are to be no state letters of Marque and Reprisal, for it is the duty of Congress and only Congress to decide who is an enemy deserving of such treatment. States may neither coin nor print money. They may not allow debtors to pay off their creditors with anything other than gold and silver.
The states join the Federal government in being prohibited from bills of attainder and ex post facto laws, and titles of nobility. They are also not allowed to interfere in the obligations of contracts. This was a serious problem in the 1780’s, as state legislatures responded to debtors by passing laws that postponed the date of payment, often passing such laws year after year until the creditor despaired of ever receiving payment.
Some states, especially those exporting tobacco, had inspection laws in order to protect the quality of what was exported, and thereby keep the selling price higher. The states were allowed to continue taxing these items to pay for the cost of inspection, but only with the oversight of Congress.
A final category of prohibitions is not as strict as the other, since it allows Congress to give permission for exceptions. These include taxing incoming ships according to their weight, maintaining armed forces during peacetime, making agreements with other states or foreign nations, and going to war except in self defense.
Article II establishes the Executive Branch. We need to look at the state governors first to appreciate how different the new presidency was. Most of the early state constitutions provided for a very weak governor. He usually had no veto power, little appointive power, and was elected by the legislature which made him necessarily compliant to their wishes if he hoped for another term. This weakness was a reaction against the royal and proprietary governors, who had often used their extensive powers in conflict with public opinion in the colonies.
However, many of the delegates to the Convention believed that the reaction had gone too far, and that the states were now the victims of legislative tyranny because the governors could not act as a check on the legislature. The stronger governors of New York and Massachusetts, exercising some real power, were their preferred models. These men wanted a president who would have the ability to say no to Congress, and make it stick. Although they had a difficult battle against delegates who preferred the more familiar example of the state governors, and who feared that the Constitution was creating a new form of king, they were successful in the end.
Article II begins much like Article I, saying that the executive power is vested in the President. Although Section 2 lists some of his responsibilities, this executive power is less defined than that of Congress, and relies more on the implied powers that seem to be inherent in the executive office. However, we must remember that the delegates drew a sharp distinction between the powers of the President and those of the King of Great Britain. We find some of the differences, and therefore a better understanding of executive power, by looking back at Article I.
The President cannot declare war. He cannot confer titles of nobility. He cannot fill his cabinet with members of Congress, chosen for the purpose of making their factions part of his coalition. His army will disband within two years unless Congress consents to continue it, and he cannot call up the militia unless Congress has provided the rules by which to do it. His veto is not final, but may be overridden by Congress. As the ultimate sanction, he may be impeached, convicted, and removed from office. This is no king, but rather an officer who shares power with Congress and who, like them, is accountable to the people of the United States.
The four-year term is longer than that of the state governors, but for much of the convention it appeared that it would be seven years with no reelection allowed. The goal was to give the President the independence he would need to in order to exercise his own judgment, even against a majority in Congress, and his veto was to serve as a barrier against unwise or unconstitutional laws. Since it was taken for granted that he would be elected by Congress, he must not be allowed to run for a second term. Having no incentive to bend to the will of Congress, the President could spend seven years exerting his executive power for the common good.
A single seven-year term may have seemed necessary to some, but others noticed the problems. If a President turned out to be poorly qualified, seven years might be a dangerously long time to leave him in power. If he demonstrated that he was especially well-qualified, his talents might be needed beyond his seven-year term, especially in time of war or diplomatic crisis. Election by Congress would often mean that the choice would depend on corrupt bargaining among the members, with the merits of the candidates being irrelevant. There was also the danger that foreign nations might try to influence the election, even resorting to bribery.
There was also the question of whether the prohibition on reelection would create the wrong incentives for a President. An ambitious man might use seven years to prepare for the seizure of power as the end of his term approached, while a corrupt man would seek to fully exploit the opportunity for seven years of plunder. If a President were allowed to seek reelection, it would channel his ambition in a more favorable direction, and provide an incentive for good behavior.
Yet the President could not have the desired independence from Congress unless he was denied reelection or was elected in a way that bypassed Congress. The search for an alternative method of election occupied much of the Convention’s time, and was not completed until just a few days before it adjourned, when a series of carefully-drafted compromises resulted in agreement by most of the delegates.
The major alternatives were election by the people and election by some form of Electoral College. The few strong state governors were elected directly by the people, and Maryland had a Senate chosen by an electoral college which had been an effective check on the popularly elected House. Both methods, however, had their critics. Some delegates feared that the people would become the prey of demagogues, lacked the knowledge to choose the best man, or that they would always choose someone from their own state. The smaller states were especially concerned that their candidates would be placed at a hopeless disadvantage by popular election. Furthermore, with the vote splintered among the favorite sons of each state, no candidate would have anything close to a majority, and the final decision would probably have to be made by Congress after all, choosing from among those with the most votes. Southern states had the additional concern that popular election would deprive them of the advantage of the three-fifths rule, while election by Congress would allow them to increase their voting power through the partial representation for slaves. Facing all of these objections, popular election never won majority support.
The Electoral College followed a more complex path, being considered in various forms and rejected several times, then accepted, then rejected again, only to be revived as the Convention was finishing its work. It had the advantages of taking the choice out of the hands of Congress, giving it to men who would presumably be chosen for their knowledge and judgment, and could be structured to include the three-fifths clause. Since it was expected that they would gather in one place, probably the national capital, they could continue in session until a President had been selected by a majority vote, even if no one had a majority in the early balloting.
Critics worried that it would be too expensive to bring so many men to the capital, and that the best men would often be too busy to undertake such a long journey. Electors might end up being simply those who were willing to serve, rather than those who were best qualified. When the delegates decided on July 26 to reverse their earlier decision in favor of an Electoral College and return to a President elected by Congress to serve a single seven-year term, it looked as if the debate were finished.
However, in late August the Convention found itself in a new controversy on the question of how Congress would go about electing the President. The small states wanted to take full advantage of their equality in the Senate by having the House and Senate vote separately, and continue voting until they agreed on a candidate. The larger states preferred a joint ballot of the two houses, which would maximize the effect of their greater representation in the House. When the large states won, the dissatisfaction of the smaller states created an opportunity to reopen the entire question of the method of election, and the Convention soon found that it was deadlocked, unable to find a majority for any proposal.
The problem was referred to a committee, and on September 4 they reported a compromise that had been very carefully written so as to meet as many as possible of the objections raised during three months of debate. The President would be chosen by electors , with the state legislatures deciding how the electors would be selected. This provided satisfaction for those who feared that the American people were unqualified to vote even for electors, much less for the President himself. Yet, it did not rule out a role for the people, leaving that battle to be fought state by state. Each state would have a number of electors equal to its House and Senate representation. The smaller states could rejoice in the disproportionate strength they would receive, and the South would gain still more benefit from the three-fifths clause.
The electors would meet in their own state, rather than go through the time and expense of traveling to one central location. Dividing the election among different localities also would have the benefit of making it more difficult for domestic factions or foreign nations to exert influence. Each elector would vote for two candidates, only one of whom could be from his own state.
The winner must gain the votes of a majority of the electors, and if no candidate had a majority, the Senate would pick a winner from among the top five. No candidate could use one or two large states as a base for a plurality victory, and leaving even the fifth-place finisher in the running gave the smaller states a chance to put a man into the finals. The smaller states would enjoy the further advantage of their equal Senate representation when the final choice was made. The Senate would also choose the winner in case of a tie.
A new office, that of Vice President, would go to whoever finished second. Congress was empowered to decide the dates on which electors would be chosen and would meet in their states.
With this new method of election, the Presidential term would now be four years with no limit on reelection.
The primary objection to this plan was that the final choice might often be made by the Senate, with its advantage for the small states. Not only would this bring back all of the disadvantages of election by Congress; it would also create the possibility that the President and Senate might join forces to rule the nation as a de facto aristocracy. While many delegates were confident that one candidate would usually win a majority and prevent the Senate from choosing the President, the concerns resulted in the plan being amended by shifting election from the Senate to the House, and preserving the advantage of the small states by having the House vote by states instead of individuals.
The final compromise on the Electoral College gave the smaller states the protection they considered essential, and without which they might not have accepted the Constitution. Any proposal to do away with the Electoral College undermines this fundamental compact.
Having the electors vote only for President, and making the runner-up the Vice President, was the great flaw in this plan and was soon corrected. By 1796 political parties were contesting for the Presidency, with candidates informally designated for President and Vice President. However, since all votes were formally being cast for President, this left open great possibilities confusion and unintended consequences. The outcome in 1796 was the election of Federalist John Adams as President and his opponent, Republican Thomas Jefferson, as Vice President. The relationship between these two became so strained that by 1799 Jefferson suspected that Adams was trying to use the Sedition Act to have him both imprisoned and impeached.
The election of 1800 brought even greater complications. Some Federalists schemed to manipulate the electoral vote so as to elect their Vice Presidential candidate, C. C. Pinkney, to the Presidency and demote Adams to Vice President. The Republicans encountered an even worse problem. Concerned about the fact that in 1796 many Republican electors had voted for Jefferson but not for Vice Presidential candidate Aaron Burr, they put such effort into avoiding a repeat performance that Jefferson and Burr ended in a tie. This threw the election into the House of Representatives in which Federalists took the side of Burr, and Jefferson was not finally chosen until the thirty-sixth ballot. For a while it appeared that no president might be elected, and there were threats of civil war.
This brought about the passage of the Twelfth Amendment, which provided that the electors would vote separately for President and Vice President. It also reduced, from the top five to the top three, the number of candidates who could be considered by the House if no candidate received a majority. This had a significant impact in 1824 when Henry Clay, Speaker of the House, finished fourth. Under the old rule, Clay might have been able to use his great influence among House members to elect himself, but because of the Twelfth Amendment he could only act as kingmaker, throwing his support to John Quincy Adams.
The Convention also debated a point which we often take for granted – whether the Presidency should be held by one man. There were a few delegates, including George Mason, who believed that it was safer to divide the power among at least three men. They would be a check on each other, just as the House and Senate were in Congress. However, the great majority saw two good reasons for vesting the executive power in a single man. First, it would allow for the strong and energetic presidency they preferred. The President would be able to make his own decisions and quickly carry them out, rather than being delayed by endless debate. Second, responsibility would be focused on this one man. Success or failure would be his, since poor performance by his subordinates would reflect on his judgment in choosing those men.
At this point it is again worth mentioning the differences between the U.S. Constitution and Enlightenment thinking. A strong executive, independent of the legislature, is another of these examples. Enlightenment thought, especially as put into practice during the French Revolution, emphasized the legislative supremacy that the Convention was trying to avoid. This led to an amusing incident a few years later when the French Assembly sent a letter to the United States. President Washington at first refused to open it because it was addressed to Congress. Congress refused to open it, because all communications from foreign governments must go through the President, a point that the French could not comprehend. They had assumed that all real power was in Congress, which had been true under the Articles of Confederation, and that it would only be natural for the two legislative bodies to correspond with each other. Fortunately, Congress insisted on obeying the Constitution and refused to encroach on executive authority.
The President must be at least thirty-five years old and a natural born citizen, meaning that he may not be one who obtained his citizenship by naturalization after first being a citizen of another country. This contrasts with the House and Senate, in which a naturalized citizen may be elected a member after a certain amount of time. It shows the importance which the delegates placed on having the President be a man of the American political culture, rather than one whose ideas had been shaped in a foreign country. The Constitution then goes even farther, saying that a President must have been a resident of the United States for fourteen years, so that a man born in the United States but later moving to a foreign nation must return and be here long enough to shed his foreign ideas. This is another break with many Enlightenment thinkers, who believed that government and law should be uniform throughout the world, with no variation to take into account national custom and tradition.
The Vice President replaces the President in case of a vacancy. There is some evidence in the Convention debates that the delegates saw the Vice President as becoming acting President until Congress could call for a new election. However, when John Tyler moved into the White House following the death of William Henry Harrison in 1841, he insisted that he was now the President, not acting President. Tyler served the remaining three years and eleven months of the term, with Congress making no effort to hold a new election despite constant conflict with the new President, and the question was never seriously raised after that. The Twenty-fifth Amendment closed the matter by explicitly declaring that “the Vice President shall become President”.
Congress is empowered to decide who shall become President if both the Presidency and Vice Presidency become vacant at the same time. Congress is limited to choosing an “Officer”, and that somewhat vague term has also generated controversy. At this time the law puts the President Pro Tempore of the Senate and the Speaker of the House next in line, then the members of the cabinet. However, there has never been agreement on whether officers of Congress are included in the original meaning, or if the delegates meant only executive branch officers. The Twenty-fifth Amendment attempts to minimize the need to ever go farther than the Vice President in the line of succession by allowing the President to appoint, with the consent of the Senate, a new Vice President when that office becomes vacant. Following the resignation of Vice President Spiro Agnew in 1973 and President Richard Nixon in 1974, this left the United States for the first time with a President and Vice President neither of whom had been elected to that office.
The Constitution also recognizes that the President may be temporarily disabled. Dealing with this has always been a problem. Allowing any man, or group of men, the power to temporarily remove and replace the President is obviously something that could be abused through partisanship, corruption, or even otherwise honest disagreements over policy. While the Constitution of 1787 left this hot potato in the hands of Congress, the Twenty-fifth Amendment established a more permanent procedure, vesting in the hands of the Vice President and a majority of the cabinet the power to decide when the President is no longer capable of doing his job, and should be replaced by the Vice President. However, Congress is still allowed to shift this power to some other “body”, and the amendment put no explicit restrictions on the choice of that “body”, though the intent must certainly have been to limit it to something within the Federal government.
If the President claims he is ready to resume his duties, but the Vice President and cabinet disagree, the amendment gives Congress the final decision.
Before we move on, notice that Article II, Section 1 contains two grants of legislative power even though this is the Executive branch article. Congress is empowered to decide the day on which members of the Electoral College are to be chosen, and to determine the line of presidential succession. This should be a reminder that we cannot look only at Article I, Section 8, when researching the powers of Congress. There are others scattered throughout this document, so we must be familiar with the entire Constitution.
The President’s salary is determined before he takes office, and cannot be changed during his term. This was intended to prevent Congress from using the President’s salary as a means of controlling him. The states are prohibited from paying the President since this might cause the President to show favoritism, and would at least cause his impartiality to be doubted
The President’s Oath of Office is included in the Constitution, unlike those for Congress and the Judicial branch. The President must promise to “preserve, protect, and defend the Constitution of the United States.” He is to do this both in the way he carries out the laws and through the use of his veto power to block unconstitutional laws. If our Presidents took this oath seriously, their conduct today would be far different. They would veto much of what is passed by Congress, and would refuse to carry out many of the laws already on the books. As I will discuss later when we get to Article III, the President’s responsibility to interpret the Constitution is as vital as that of the Federal courts. If he neglects it, he violates his oath of office.
Section 2 lists the major responsibilities of the President, beginning with his role as commander-in-chief of the armed forces. As much as the delegates wanted Congress to control the decision between war and peace, they expected the President to be in charge of carrying out the war once it had been declared. Many of them remembered from personal experience the difficulties of having the Continental Congress in charge of the American Revolution, with General Washington submitting important questions of strategy for Congressional debate, and with Congress even deciding which general would command in each theater. They wanted a commander who could quickly and decisively act, making strategic decisions, shifting troops, appointing and removing army commanders. They also hoped that he would be less subject to local political pleading, looking instead at the national interest.
This goal of vigorous military leadership has generally been fulfilled. Failures such as James Madison and Lyndon Johnson were more the fault of their own personalities than the Constitution, and no Constitution can guarantee the election of effective commanders-in-chief to the Presidency.
A more recent debate regarding the commander-in-chief has to do with the assignment of U.S. military forces to United Nations missions where they serve under foreign commanders. Prior to this there had been occasions during the two world wars when American units were placed in armies under foreign commanders, but these were ad hoc arrangements and with no danger that they could become permanent. Even with the creation of NATO, when some American soldiers became part of a NATO army, the commander of NATO was always an American. Likewise the “United Nations” army in Korea was always under an American commander who answered to the President of the United States, not the U.N. Security Council.
Today’s U.N. peacekeeping missions are usually not under American command, and American soldiers may be asked to wear U.N. insignia and carry a U.N. identification card. Combining this with the U.N.’s goal of becoming a world government with its own armed forces, we have an unprecedented situation. No one ever had reason to fear that putting U.S. soldiers under a British general during World War II might lead to the loss of American independence. That cannot be said about the United Nations. The best policy would be for the United States to refuse to assign any of our armed forces to any United Nations mission.
We should remember that even the strong commander-in-chief created by the Constitution does not have unlimited power over the armed forces. It is still Congress that decides on the laws governing each branch of the service. It was Congress which in 1993 passed a law declaring that homosexual conduct is inconsistent with military service, and President Obama will need the permission of Congress to carry his plan to homosexualize the armed forces. Congress still has the power of the purse, and uses that to decide what types of weapons will be produced, how large the armed forces will be, and how they are organized. Congress also plays a role in approving the promotion of officers.
The President is not only the commander of the armed forces of the Federal government; he also assumes command of the militia during the time that they are called into national service. Here the President shares power with the states, which are responsible for organizing and training the militia, and Congress, which establishes the rules for the militia and also sets the procedure by which they may be called into national service. The first Militia Act, that of 1792, required the President to demonstrate to a Federal judge that one of the Constitutional events allowing the calling out of the militia had occurred. Therefore, before calling up a militia army to deal with the Whiskey Rebellion, President Washington obtained the official recognition by Supreme Court Justice James Wilson that a state of rebellion did exist in western Pennsylvania. These checks and balances are a very deliberate attempt to minimize the danger that a President might use the militia to undermine or overthrow rather than to defend the Constitution.
The President may require his cabinet officers to send him written reports on matters relevant to their duties. The Convention wisely rejected attempts to write into the Constitution a specific listing of the cabinet positions. Instead, they left it to Congress to determine how the Executive branch would be organized, making whatever adjustments they might consider necessary as time passed.
The President has the power to pardon, but with one major exception. He cannot protect an officer of the government from impeachment and removal by Congress. The Convention realized that a President might be partial towards members of his administration, and that in the worst case a President might protect himself by pardoning those who could reveal his own crimes. The impeachment process therefore had to be completely beyond the power of the President.
Negotiating treaties with foreign nations is a presidential function. Although this is usually carried out primarily by his appointees in the State Department, the President is responsible for the content of treaties. He must make sure that they protect the interests of the United States and come within the limitations of the Constitution. Since no President has perfect judgment, and a bad treaty could be very harmful to the national interest, no treaty may become effective unless approved by a two-thirds vote in the Senate. Although few treaties have been defeated, the requirement for Senate approval forces the President to take the opinion of the Senate into account when negotiating the terms. There have also been quite a few treaties, such as SALT II arms control treaty and the Kyoto climate treaty, which avoided defeat only because the President decided not to submit them to a hostile Senate. The defeat of the treaty with Germany at the end of World War I, containing membership in the League of Nations, shows what can happen if a President ignores the Senate, follows only his own wishes, and then submits the treaty for a vote.
There are currently many United Nations treaties which have been awaiting Senate action for years because even liberal Presidents have been reluctant to press for a vote. President Obama has indicated that he will throw his support behind these, including the Law of the Sea Treaty, which would give the United Nations jurisdiction over 70% of the world’s surface. These U.N. treaties, which raise both constitutional and policy questions, are likely to be hotly debated if brought to the Senate floor, and the President may have a hard time getting the necessary 67 votes.
The two-thirds vote for treaties has caused Presidents to look for alternatives, even though that means going outside of the Constitution. Some treaties are submitted as if they were simple laws, and passed by a majority vote in each house. This was the procedure followed for NAFTA, the North American Free Trade Agreement.
Another end-run is the executive agreement. The President makes an agreement with a foreign nation and carries it out solely through his own actions as President, never asking for Senate or Congressional approval. Though the Presidents who follow are under no legal obligation to continue the agreement, they are handicapped by the fact that foreign nations expect compliance, and breaking the agreement will damage diplomatic relations. A president truly devoted to the Constitution could perform no greater service than to insist on an end to the evasion of the treaty process.
Article II gives the President extensive, but far from unlimited powers of appointment. The process of Presidential appointment and Senate confirmation seems natural to us, but was a late change in the Convention, which originally planned to have the Senate make many or most appointments, including ambassadors and Federal judges, with no role for the President. This was a natural assumption for men familiar with government under the Articles of Confederation, which had no chief executive and vested executive as well as legislative powers in Congress. It was also a common practice in the state governments. However, it was in conflict with the idea of a strong and independent President, and especially with the concept of making one man take responsibility for the quality of those appointed to government jobs. Once the election of the President had been shifted from Congress to an Electoral College, giving him the desired independence, the President was given a much larger role in appointments, following the example of the Massachusetts Constitution.
Nevertheless, the role of the Senate should not be minimized. Some delegates wanted the President to appoint without any Senate participation, and there was also a suggestion that his appointments should be final unless overruled by a two-thirds vote. Most delegates, however, insisted on making the Senate a significant partner in the process. Whenever an appointment runs into Senate opposition, especially an appointment to the Supreme Court, we hear the cry that the Senate is guilty of being obstructionist, and that the President, who was elected by the people to make these appointments, should be allowed to do his job. Both Democrats and Republicans can be counted on to say this whenever they occupy the White House. The fact is that the Senate was also elected to do a job, and that job includes oversight of Presidential appointments. The Convention decided that the President simply could not be trusted with an unlimited power of appointment, and they assigned to the Senate the task of evaluating the President’s choices.
This power certainly could be abused by the Senate. In 1860, following the election of Abraham Lincoln, some southern Democrats argued that the Democratic majority in the Senate should reject all of his cabinet choices, and insist that he appoint pro-slavery Democrats instead. Few seem to have taken this proposal seriously. However, Senate approval of judges has had the perhaps unintended effect of restoring to it some of the appointive power that the Convention appeared to have removed. Federal District Court judges are usually selected by the President from names recommended by one or both Senators from that state, so that the Senate plays a greater role than the President at that level.
The Constitution does not require that all offices be filled by Presidential appointment and Senate confirmation. Congress may, by law, choose a different process for those not specifically mentioned in this section. These lower offices may be filled without Senate confirmation by the President, cabinet officers, or judges. Congress once tried to stretch this, allowing each party’s leaders in the House and Senate to appoint some members of the Federal Election Commission. The Supreme Court struck this down, since the Constitution does not provide for Congressional officers to make appointments, and the law was revised so that all appointments are now by the President, who unofficially confers with the Congressional leaders and nominates their choices.
The President is allowed to make appointments to vacancies when Congress is not in session, and those who are appointed may hold the office until the end of the next session of Congress. The purpose of this was to allow the President to respond quickly during the long periods when Congress was not in session. In the eighteenth and nineteenth centuries there were sometimes gaps of eight or nine months between sessions. Presidents have taken advantage of this power of “recess appointment” when Congress is in recess for only a few days, putting in a controversial appointee without Senate confirmation. The Senate has proven that it can also play the game, avoiding an official recess by having one or two Senators conduct a brief official session each day while all the other members are taking a de facto recess.
Although the Constitution has a long passage on the power of appointments, it says nothing about removal. This led to a contentious debate in the First Congress when the cabinet departments were being established, and members raised the question of how an appointed officer could be removed. A few members of the House, denying the existence of any implied powers in the Constitution, insisted that officers could not be removed except by impeachment. In their view, these appointments were for “good behavior”, and a well-behaving officer would enjoy a lifetime job.
Most members, however, recognized the existence of implied powers, and the real debate was whether the President could remove, without first getting Senate approval, an officer whose appointment had required Senate approval. The Constitution is silent on this point, and a majority decided that removal of subordinate officers was part of the inherent executive power vested in the President. The Reconstruction Congresses later rejected this interpretation and attempted to limit the removal power of the President. It was President Johnson’s attempt to remove Secretary of War Stanton, without Senate approval, that caused the House to begin impeachment proceedings. The question did not finally reach the Supreme Court until the early twentieth century, when it agreed with the First Congress that the President may remove without Senate approval.
The President is commanded to provide Congress with information on “the State of the Union”, and to recommend measures which he believes Congress should consider. President Washington began the practice of an annual message to Congress soon after it convened, now known as the State of the Union Address. Washington’s addresses are a model of Constitutional fidelity. When he speaks about a matter involving taxation or appropriations, he makes clear that he is speaking to the House, which must originate such bills. When dealing with such questions as treaties, he speaks to the Senate. Washington did not present Congress with a laundry list of detailed demands, but brought to their attention the general questions which he believed required the consideration of Congress, and left it to Congress to come up with actual legislation.
The President may convene Congress earlier than the next scheduled session, if he determines that a special session is needed. He may also adjourn Congress until a stated time if the two houses are unable to agree on a date for the next session. The delegates were usually very reluctant to let the President play a significant part in the timing of congressional sessions, but they wanted the certainty that there could not be a permanent deadlock between House and Senate.
Presidential leadership in foreign affairs includes being the one who formally recognizes and welcomes the ambassadors of other nations. As I mentioned earlier, foreign contact with the U.S. government is exclusively through the President and those he appoints as his representatives.
A far-reaching assignment for the President is that he “take Care that the Laws be faithfully executed”. This is another aspect of the responsibility that is vested in this one man – a responsibility that he can neither delegate nor deny. While the President can never be aware of every action by every executive branch employee, it is his job to do whatever he can to be sure that the law and the Constitution are being obeyed by them. He must seek to uncover abuse of power, corruption, negligence, and incompetence. He must set an example that will send a message to all those who work in his administration.
The Civil Service Act has made it more difficult for the President to carry out this part of his job. Although he may fire at will a few top-level appointees, removing most executive branch employees is a difficult and time-consuming process. Holding them fully accountable is impossible, and taxpayers end up with the bill because the President cannot carry out one of his Constitutional functions.
Article II closes with another reminder of accountability. It states that the President, Vice President, and all civil officers are subject to impeachment. It was the phrase ‘civil officers” which convinced the House of Representatives in 1797 that Senator William Blount was not subject to impeachment. Since then it has been generally accepted that members of Congress can be removed only by expulsion, not impeachment.
While Article I described the procedure for impeachment, Article II lists the impeachable offenses. These are “Treason, Bribery, or other high Crimes and Misdemeanors”. Treason is defined in Article III, Section 3 of the Constitution, and bribery is generally understood. It is the “high Crimes and Misdemeanors” that have been the subject of endless debate. In any impeachment controversy, supporters argue for a broad definition and opponents for a narrow one. It is not unusual to see them switch arguments when another impeachment comes along, as we saw when some of those involved in the near-impeachment of President Nixon were later faced with the impeachment of President Clinton.
A broad definition seems more in tune with the intention of the Convention. They wanted Congress to be able to act when necessary, and “high crimes and misdemeanors” allows Congress to consider many offenses while still protecting the President and others from impeachment on purely political grounds. The requirement of a two-thirds vote for conviction provides the ultimate protection against abuse, since it is nearly impossible to achieve this except in a case of clear wrongdoing. As a practical matter, Gerald Ford was right when he declared that an impeachable offense is anything the House says it is. No outside body can prevent impeachment if the House is satisfied, nor can any outside body prevent the Senate from convicting.
Next week we’ll take up Article III. You may now submit any questions you have.
Today we will begin by looking at Article III of the Constitution, the article which establishes the Judicial branch of the Federal government.
The Articles of Confederation did not include a Judicial branch, so the idea of a national judiciary was both new and controversial. The possibility that Federal judges could overturn the decisions of state courts in certain types of cases was even harder for many to accept. Concern about whether a Federal judiciary might hurt the chances for ratification of the Constitution was a factor in the drafting of Article III.
Section 1 begins with the now familiar language about vesting of power. However, in Articles I and II, the legislative and executive powers were vested in a permanent Congress and President. Article III assigns the judicial power to “one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish”. Except for the Supreme Court, there is no requirement for any Federal court system. Lower courts exist only if Congress establishes them by law.
This was a compromise between those delegates who considered a full system of Federal courts to be essential, and those who believed that only a Supreme Court was needed. The latter group was confident that the states courts were fully capable of serving a dual role, handling both state and Federal law, with a final appeal from the highest state court to the U. S. Supreme Court. They were suspicious of Federal power, and hoped to minimize its role. The cost of a parallel court system and the patronage power it would confer on a distant President were also considerations with some.
John Rutledge of South Carolina summed up their position when he insisted that “the State tribunals might and ought to be left in all cases to decide in the first instance, the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgments”.
The more nationalist delegates were appalled at the thought of setting up a new and more powerful Federal government, and then relying on the state courts for the interpretation and enforcement of its laws. The state courts could not be trusted, Edmund Randolph explained, because the “objects of jurisdiction are such as will often place the General and local policy at variance”. The purpose of the convention was to establish a Federal government that would be assigned certain functions and to give that government the full power needed to carry out its assignments. State courts would inevitably show a bias toward state law, and would have no incentive to interpret Federal law faithfully if it was unpopular locally. Furthermore, the decisions of state courts would often be final, since few would have the time and money required for an appeal to a Supreme Court which would surely be located in the capital city. If Federal law was to be enforced, the nationalists warned, it must be done by a full system of Federal courts, so that the state courts could be entirely bypassed.
The compromise on this matter was reached quickly; only a week after the Convention began considering the Virginia Plan with its mandate for a system of lower courts. The delegates first removed that requirement from the plan on a vote of five states to four. The nationalists then moved to add language merely allowing but not requiring Congress to set up lower courts, and this passed on a vote of eight to two. It satisfied men such as Roger Sherman of Connecticut, who said that he “was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done, with safety to the general interest”. Although this compromise was challenged from time to time during the Convention, it survived because most delegates found it to be a reasonable accommodation to the concerns of both sides. It provided the Federalists with a powerful argument in the state ratification conventions, allowing them to hold out the possibility that Congress would be in no hurry to establish lower Federal courts. Needless to say, this led to some disappointment when the First Congress immediately passed legislation setting up a full system of Federal courts and denying the state courts any role whatsoever.
The Supreme Court is the only court established by the Constitution, but Congress is given considerable discretion in its composition. The Constitution does not say how large the Court should be, leaving Congress to determine the number of justices. The Judiciary Act of 1789 set up a Court of six justices, and that number has gone as low as five and as high as ten before settling on the present nine. Congress has not been above using this power for partisan advantage. Twice the size of the court has been reduced in order to prevent a president elect (Thomas Jefferson) or a current president (Andrew Johnson) from making an appointment the next time a justice resigned or died. In 1863 Congress went in the opposite direction, adding a new seat so that President Lincoln could make an appointment and gain a justice favorable to his war policies, and in 1869 did so again to allow President Grant to make an appointment. President Franklin Roosevelt discovered that such gamesmanship has its limits when he proposed, in 1937, a bill that would have allowed him to appoint six new justices. This was seen as going far beyond reasonable limits, and was never even brought to a vote in Congress.
The Constitution allows Congress discretion in assigning the justices to judicial tasks other than their Supreme Court duties. The Judiciary Act of 1789 required the first Supreme Court justices to also fill the role of Appeals Court judges, riding circuit in an appeals district of three to five states. Rather than spend money on separate appeals court judges, Congress created a system in which two Supreme Court justices would join with a district court judge, and the three-member panel would then hear appeals from district court decisions. It seems strange to us that a district judge, having already ruled on the case, would sit as one of the appeals judges, and that if the case were appealed further to the Supreme Court, two of the six justices would already have made up their minds at the appeals court level. However, this was typical of eighteenth-century American appeals procedures, and seemed quite natural at the time. The major critics were the Supreme Court justices, who complained about the amount of travel involved and lobbied successfully to have this eliminated in the Judiciary Act of 1801. This, of course, allowed lame-duck President John Adams to appoint the new appeals court judges before President-elect Thomas Jefferson could take office. Republicans promptly repealed the Act of 1801, and the justices went back to circuit riding until finally relieved of this responsibility in 1869.
I stated above that Congress may assign justices to other judicial tasks, but this leaves open the question of whether they may be given non-judicial responsibilities. The Constitution does not explicitly prohibit this, but the eighteenth century understanding of the separation of powers did. The Convention repeatedly debated the possibility of giving Supreme Court justices a role in the presidential veto, and consistently rejected the idea. President Washington’s appointment of Chief Justice John Jay to a temporary diplomatic position in 1794 was highly controversial since Jay refused to resign as Chief Justice despite being out of the country for more than a year. An early attempt by Congress to assign administrative duties relating to pension applications met with a unanimous refusal to accept the task.
Congress has full discretion to arrange the system of all other Federal courts as it pleases, or to have no other Federal courts at all. While the basic system of district and appeals courts has been in place since 1789, Congress has added new districts and appeals circuits from time to time, or has increased the number of judges for each district and circuit, as population growth and the increasing number of Federal laws and regulations has increased the workload of the judges.
In order to preserve the independence of the judges, their salaries may not be reduced by Congress. Unlike Congress and the President, whose salaries also may not be increased during their term, the judges may have their pay increased. This is made necessary by the fact that they serve during good behavior, which often means for life, rather than for a specific term of years. This is a potential threat to their independence since a hostile Congress and President, especially during a time of rapid inflation, might use a freeze in pay as an incentive for mass resignations. Although judges have not been shy in complaining about the need for their salaries to keep pace with inflation, political manipulation has not yet been a serious issue.
The “good Behaviour” clause is the primary foundation of judicial independence, which was considered as vital to justice in the eighteenth century as it is today. Judges were to interpret and apply the law without regard to pressure from the President or Congress. In criminal cases this protects citizens from arbitrary arrest and punishment by the Executive branch. The Executive branch must show that the conduct of the accused has violated an existing law, while judges and juries are to act impartially, carefully examining the evidence and the law before reaching a decision.
While the good behavior clause allows a judge to act independently, it does not guarantee that he will. The importance of this was demonstrated by the 1863 case of Clement Vallandigham, a candidate for governor of Ohio who was arrested for criticizing the war. Vallandigham had broken no law, but he was arrested by the army, tried and convicted by an army tribunal, and sentenced to prison by an army general. The Federal courts, eager to defer to President Lincoln and the military, refused to intervene in his case. Instead, they waited until the war was over and then used another case, ex parte Milligan, for a unanimous Supreme Court ruling that military courts had no jurisdiction in areas under peaceful civilian control with the civil courts open for prosecution. The Court followed a similar pattern during World War II, when it allowed Japanese-Americans to be rounded up and placed in internment camps without trial, and without any evidence of wrongdoing, only to rule against such treatment at the end of 1944, just as the government announced its intention to begin closing the internment camps. In both these cases Federal judges surrendered their independent judgment, gave the Executive branch the benefit of every doubt, and refused to seriously consider the arguments of the defendants until “wartime necessity” was no longer an issue.
The injustice in cases such as these reminds us how much our liberty depends on the character of Federal judges. If they are unwilling to act as independent arbiters, the Constitution becomes nothing more than a worthless scrap of paper.
We often hear Federal judges described as holding lifetime appointments, but the Constitution says that they serve during good behavior. That makes it necessary to define good behavior, which the Constitution does not do explicitly. Congress first dealt with this question during the impeachment trial of district judge John Pickering in 1803 and 1804. Pickering’s behavior, apparently caused by a combination of alcoholism and insanity, was anything but “good”. The final straw came when he “ranted, raved, and shouted profanities” in court, while refusing to allow the district attorney to call any witnesses in support of the prosecution, asserting that his mind was already made up. Since each Federal district had only one judge at this time, Pickering had to preside over every Federal case in New Hampshire, and impeachment charges were inevitable.
Was his behavior impeachable by the standards of the Constitution? Some Senators argued that violations of good behavior could be nothing more than the “Treason, Bribery, and other high Crimes and Misdemeanors” of Article II. This was a weak argument, since there was an extensive record, before as well as during and after the Convention, linking impeachment with violations of good behavior apart from any enumeration of offenses, and establishing its independence of Article II. The term good behavior also had a long history in British law. Others insisted that just as an insane man could not be held legally responsible for a crime, he could not be impeached and convicted for behavior caused by insanity. Wavering Republican Senators appeared to be especially concerned by this claim. Federalist Senator Gouveneur Morris was very firm on this point, despite the fact that, in the Convention on July 20, 1787, Morris had assured the delegates that “incapacity” would be an impeachable offense, and Pickering was surely incapable of continued service.
With Pickering’s conviction in doubt, Republican leaders reminded the undecided Senators that the Constitution mentioned no method except impeachment for the removal of judges, and that Pickering would either be convicted or remain in place as New Hampshire’s Federal judge. The lack of an alternative persuaded doubting Senators to either vote for conviction or be conveniently absent rather than vote no, and the necessary two-thirds vote was obtained.
President Jefferson found the whole procedure unsatisfactory, and let it be known that he favored amending the Constitution “so that the President should be authorized to remove a Judge from office, on the address of the two Houses of Congress.” Such an amendment had previously been urged by some Virginia Republicans, was already in four state constitutions that did not provide for impeachment, and had been considered but rejected by the Convention.
However, there is a respectable body of opinion which holds that Jefferson, Madison, and Senators Baldwin and Butler (who had been delegates to the Convention) were mistaken in believing that the Convention’s intention was that judges could be removed only by impeachment. Raoul Berger, one of the greatest Constitutional scholars of the twentieth century, argued that Federal judges are not subject to impeachment for misbehavior, and can be removed on those grounds only by a common law judicial procedure known as scire facias, though he admitted that there was no actual precedent in American or British law. Some early state constitutions included provisions allowing judges to be removed by some form of judicial proceeding. There are other scholars who believe that Congress and the President already have the type of removal power described by Jefferson, and Congressman Ron Paul has introduced legislation to implement this.
The Pickering impeachment set the stage for a further testing of the definition of good behavior in the impeachment of Supreme Court Justice Samuel Chase. Chase had been very outspoken and indiscreet in comments delivered from the bench. While speaking officially to a grand jury he declared that the Republicans were taking “away all security for property and personal liberty” and that the United States would soon “sink into a mobocracy, the worst of all popular governments.” It was generally believed that his impeachment was motivated almost entirely by partisan politics, and that the charges against him were weak on their merits. This time Jefferson and the Republican leaders decided not to press for a conviction, and Chase was acquitted. This result has customarily been cited as demonstrating that the impeachment process is not purely political but rather quasi-judicial, and that the good behavior clause is not infinitely elastic.
One aspect of good behavior has seldom been raised officially – the question of whether a judge can be guilty of misbehavior by misinterpreting the Constitution. Since Federal judges are given the responsibility of faithfully interpreting the Constitution and Federal law, it would be thoroughly illogical to claim that a judge could be acting within the bounds of good behavior while constantly ignoring their plain meaning and imposing his own personal beliefs of what they should say. Of course a judge should not be impeached for one bad decision, except perhaps one that is extraordinarily outrageous, but a pattern of misinterpretation should be considered impeachable.
The good behavior clause was also a key issue in a Supreme Court decision that I mentioned earlier, when Congress repealed the Judiciary Act of 1801 and automatically eliminated the jobs of the judges who had been appointed to the new positions created by that Act. The ousted judges claimed that the good behavior clause guaranteed them continuance in office, beyond any power of Congress except impeachment. In Stuart v. Laird the Court rejected their claim, though on narrow grounds that did not necessarily settle the question entirely. It would be especially interesting to see what the Court would say if Congress were to abolish a portion of the Federal court system, then replace it with a new and similar system whose judges would all be appointed by a new President. That might be viewed as a much more obvious attack on the independence of the Federal judiciary.
After setting forth minimal structural requirements in Section 1, the Constitution uses Section 2 to define the jurisdiction of the Federal courts. The first category is cases “arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority”. It was vital to many of the delegates in 1787 that the Federal government have the power to enforce its laws through its own courts, free of state bias against Federal authority. Some of the most revealing debates in the Convention were over the question of whether Federal enforcement measures should be aimed at states or individuals. Advocates of a weaker national government argued that the system of the Articles of Confederation, in which Congress made decisions but relied on the states to carry them out, was sufficient. The only change needed to the existing system was to make it possible for Congress to exercise effective coercion against states that refused to comply with its decisions.
Advocates of a stronger national government pointed out that this approach, by creating conflict between the states and the Federal government, and encouraging coercion of the states, was a recipe for frequent civil war. Coercion meant using the nation’s armed forces against a state, causing indiscriminate suffering for both the innocent and the guilty. It would be much better, they insisted, to allow the Federal government to pass laws which would apply directly to individuals, bypassing the states, and empower the Federal government to enforce those laws through its own executive and judicial branches. Federal laws would, of course, be limited to those responsibilities delegated to it by the Constitution.
The Constitution was written at a time when the judicial role was undergoing a controversial transition. The British Constitution had not been a permanent written document and required no formal amendments for change. Parliament had, at least in theory, the ability to change this “constitution” at will. The fact that Americans now had new written constitutions at the state level had raised the question of how the provisions of those constitutions were to be enforced. To some it seemed obvious that judges, who already held the responsibility to interpret the constitution, should also determine whether a law violated that same constitution, and that such a law should be considered invalid and unenforceable. A few state court decisions had already claimed this power.
However, this claim for what came to be known as judicial review was unacceptable to the many Americans who believed that only the elected branches of government could be trusted with power of deciding what the law should be. According to their point of view, anyone who believed that a law violated the constitution must rely on the legislature to see its error and amend or repeal the law. Until that happened, the judges must enforce the law without questioning its constitutionality.
While a majority of Americans probably rejected judicial review at the time, the delegates to the Convention had a much more favorable opinion. On numerous occasions they declared their assumption that the Federal courts would strike down unconstitutional laws, and brushed aside objections from the few delegates with a different point of view. In Federalist 78, Hamilton made the same argument publicly, explaining that the courts had a duty to “declare all acts contrary to the manifest tenor of the Constitution void.” This did not, he said, make courts superior to Congress. It was the Constitution that was superior, and the courts were to keep Congress within its constitutional limits.
One of the delegates to the Virginia ratifying convention, a young man named John Marshall, made a similar argument in the Virginia ratifying convention, but he was careful to phrase it in terms of the Federal courts protecting the states against the Federal government. Marshall assured Virginians that “if they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard: --- They would not consider such a law as coming under their jurisdiction. --- They would declare it void.”
This carefully qualified presentation of judicial review, including Hamilton’s assurance that the judicial branch was by far the weakest of the three, and no danger to the others, was successful enough that the issue did not prevent ratification of the Constitution despite nagging doubts. Ironically, it was the foes of powerful Federal government who soon went to court, asking Federal judges to exercise judicial review. The case, Hylton v U.S., challenged the 1794 carriage tax, claiming the tax was void because it had been levied as if it were an excise when it was really a direct tax. It went all the way to the Supreme Court, which upheld the constitutionality of the tax.
It was not until 1803, in the landmark case of Marbury v. Madison, that the Supreme Court declared a law unconstitutional, and the guiding hand was none other than John Marshall of Virginia, now serving as Chief Justice. Marshall faced a difficult situation. William Marbury had been properly appointed as a Justice of the Peace in the District of Columbia just before President Adams left office, but his commission had not yet been sent when the new Republican administration took office. The new Secretary of State, James Madison, decided not to deliver the commission, thereby depriving Marbury of his position. Marbury sued, asking that Madison be compelled to deliver the commission. Marshall knew that if the Court ruled in favor of Marbury, Jefferson and Madison might simply refuse to obey. This would highlight the very weakness pointed out by Hamilton – that the Court had no ability to enforce its own decisions, but must rely on the compliance of the executive and legislative branches. However, ruling against Marbury would ignore the facts of his appointment, and might encourage the Jefferson administration to continue pushing the envelope of discretionary powers.
Marshall escaped the dilemma by finding that Marbury was legally entitled to his commission, but that the Court could not rule in his favor because the law granting jurisdiction over such cases was an unconstitutional extension of the Court’s authority. This avoided a confrontation with the executive branch and reinforced the Court’s claim to judicial review. However, it was not until 1857 that the Court declared another Federal law unconstitutional. Instead, Marshall led the court in a series of decisions striking down various state laws, while upholding Federal laws that many Americans believed to go beyond the enumerated powers. Probably the most famous of these was McCullouch v. Maryland, which upheld the power of Congress to establish a national bank and make it immune from state laws.
It is important to note that the Court’s decision in Marbury did not claim that Federal judges were to have some form of legislative power superior to Congress, but only that “an act of the legislature repugnant to the Constitution is void”. Judges were to rule on whether a law violated the Constitution, not whether they believed it to be good policy. The Convention was quite clear in depriving the judges of a legislative role. On several occasions there were attempts to have one or more judges participate in the veto process, and this was always rejected. As one delegate, Nathaniel Ghorum of Massachusetts said, “As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures”.
Marbury also did not go beyond saying that the courts should refuse to enforce an unconstitutional law. It did not claim that the courts had an exclusive right to interpret the Constitution, as modern judicial supremacists do. All three branches of government have not only the right, but the obligation to interpret the Constitution to the best of their ability. Members of Congress should vote against any bill which they believe to be unconstitutional. The President should veto any unconstitutional bill which reaches him, as Andrew Jackson did with the charter of the Second Bank of the United States. Each branch has the ability to prevent an unconstitutional law from taking effect.
During the early years of the New Deal, when neither Congress nor the President was worrying much about the Constitution, the Supreme Court overturned several major laws, including the National Recovery Act and the Agricultural Adjustment Act. However, the Court was never consistent in following the Constitution, and seems to have been pulled to the left by public opinion, threats of court-packing, and eventually by Roosevelt’s appointment of new justices. For many decades after this the Court was reluctant to challenge the expansion of Federal power.
That began to change, though only in a small way, towards the end of the twentieth century. An early sign was when the Court refused to accept a nebulous connection to “interstate commerce” as an all-purpose justification for regulation and spending. More recently the Court has begun chipping away at Federal restrictions on free speech related to elections. Whether this favorable trend will continue, and how far it will go, remains to be seen. The Court’s most flagrant usurpations of power, striking down state laws against abortion and sexual perversion, appear all too safe for the foreseeable future.
In addition to having jurisdiction in the broad matters relating to the Constitution, Federal law, and treaties, the Federal courts also handle certain narrower categories that are especially appropriate for national consideration. One is any case involving a foreign diplomat, removing the possibility that U.S. relations with a foreign nation might be imperiled by law enforcement problems at the state or local level. This also holds true for cases involving both a U.S. citizen and a foreigner. Cases arising outside the jurisdiction of the states, on the high seas, are a Federal matter. Any case in which the United States is a party, and disputes between states or citizens of different states are also to be heard in a Federal court, rather in a state court which the Constitution presumes to be biased in favor of that state.
The Constitution as first written also gave Federal courts jurisdiction in any case involving a state and a citizen of another state. During the ratification debate there had been objections to allowing a state to be sued in Federal court, and Federalists had explained that they meant only that the states themselves could go to Federal court to sue a citizen of another state. However, in the 1793 case of Chisholm v. Georgia, the Supreme Court ruled that a resident of South Carolina could sue the state of Georgia. The Court found nothing in the text of Article III, Section 2 that would limit jurisdiction to suits filed by the states. This was followed by a firestorm of outrage, and quickly resulted in passage of the Eleventh Amendment, which protected a state from being sued by a citizen of another state or a foreign nation.
While most cases reach the Supreme Court by starting in lower courts and being appealed, those involving foreign diplomats or a state government go straight to the Supreme Court. This is called “original jurisdiction”. All other cases may reach the court on appeal, if Congress allows such appeals. The power to make exceptions allows Congress to limit the types of cases that the Supreme Court may hear. Congress could, for example, prohibit the Court from taking cases relating to a claim of a constitutional right to abortion.
Jury trials are guaranteed in all criminal cases. The lack of an identical guarantee in civil cases was a major objection of the Anti-federalists, who claimed that it meant jury trials must be prohibited. The actual reason was that state law exhibited such diversity regarding which types of civil trials required a jury that the Convention preferred to leave it to Congress to work out something rather than establish a permanent national rule. However, because of the public uproar, the Bill of Rights included a guarantee of a jury trial in any case involving more than twenty dollars.
In order to minimize travel for those involved in a criminal trial, it must be held in the state in which the crime was committed. Of course, this applies only to the initial trial, and not to appeals.
Section 3 begins with a definition of treason, one of the few definitions given within the Constitution. This was intended to prevent Congress from adopting a more expansive definition, possibly one which would even threaten civil liberties. It is easy to imagine the Federalist Congress of 1798, which passed the Sedition Act, also enacting a treason statute that would include criticism of the government or failure to give full support to the war effort. Instead of allowing that, the Convention limited treason to levying war against the United States, adhering to the nation’s enemies, or giving aid and comfort to those enemies. This followed the example of the British Parliament, which had acted to protect their citizens against royal persecution, and narrowed the definition even further.
As an additional protection, conviction for treason is made more difficult than for any other crime by requiring that there must be two witnesses to the same act of treason. A confession is also sufficient, but only if it is given in open court. Forged confessions or those obtained by torture will not do.
Congress is even limited in its punishment of treason. In Britain, under what was called “corruption of blood”, conviction for treason could deprive a man of the right to pass on his property to his children. The property would be confiscated by the King. The U.S. Constitution unequivocally forbids this. Property may be taken from the convicted man during his life, but at his death must be restored to his heirs.
This prohibition on the forfeiture of property had practical implications in 1865 when General Sherman issued Special Field Order Number 15. His plan was to use confiscated land along the coast of South Carolina and Georgia to create a large, totally segregated area, much like an Indian reservation, on which he would settle freedmen, giving each family as much as 40 acres. Sherman failed to understand that, even if the legitimate landowners had been convicted of treason, he could not permanently transfer ownership of the land to the freedmen. President Johnson, much better informed about the Constitution, quickly nullified Sherman’s order.
Article IV begins with the “full faith and credit” clause, requiring that the “public Acts, Records, and Judicial Proceedings” of each state be recognized by other states. It is this clause which has raised concern over whether the existence of homosexual marriage in some states might be used to force its recognition in other states. Something similar has already happened in Virginia, where state courts upheld the custody judgment of a Vermont court, and transferred custody of a child from her biological mother to the mother’s former civil union partner. The mother, after renouncing homosexuality, had brought her daughter to Virginia, which does not allow homosexual marriage or civil unions. Fortunately, the Constitution provides that Congress may regulate the full faith and credit procedures by legislation, and it is possible that statutes such as the Defense of Marriage Act will prevent such injustices. Until the Supreme Court begins ruling on these cases, the matter will remain in doubt.
Section 2 declares that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”. This was another provision intended to make all Americans truly citizens of a single nation, preventing discrimination by the states in favor of their own citizens. Very similar language had been in the Articles of Confederation, but with no means of enforcement. There was no recorded discussion in the Convention of exactly what privileges and immunities were included, but the Federal courts have generally understood it to refer to the natural rights of man, and have rejected arguments such as that charging higher college tuition to out of state students should be considered unconstitutional.
Section 2 also provides for the extradition of criminal suspects who have fled to another state. They are to be returned to the state in which the crime has been committed so that they may stand trial. Although the Constitution says that they “shall” be returned, the Supreme Court ruled in 1861 that it had no power to enforce this requirement. That decision was overturned in 1987 after some well-publicized cases in which governors, responding to political pressure, refused extradition for men charged with serious violent crimes.
A more controversial extension of this principle was the following paragraph, usually known as the fugitive slave clause. This imposed a similar requirement regarding slaves who escaped to another state, even if the laws of that state did not recognize slavery. This provision was one of the non-negotiable demands by the South Carolina delegates, and was accepted with little discussion. Congress passed a fugitive slave law in 1793 to provide a method for enforcement, allowing slave owners to come into another state, recapture the fugitive, and obtain a certificate allowing him to be taken home. This law became more controversial over time as many states abolished slavery, and some questioned the law’s constitutionality. In 1842, in Prigg v. Pennsylania, the Supreme Court found the law to be constitutional, but also ruled that Congress could not require state officials to participate in enforcing it. Revised in 1850 in an attempt to make the law more effective, it more often aroused increased opposition in states where slavery was illegal. Some of those states passed personal liberty laws in an attempt to nullify the fugitive slave law. The adoption of the Thirteenth amendment in 1865 effectively repealed this part of the Constitution. However, an important legacy is the Prigg ruling that prevents the Federal government from forcing state or local officials to enforce a Federal law. This principle has more recently been upheld when Congress attempted to make local law enforcement officials take part in gun control efforts, and might be litigated again regarding some of the provisions of the health care bill passed this year. Of course, it does not prevent the states from voluntarily participating in enforcement, as some have chosen to do concerning illegal immigration, but the states are always free to decline.
Section 3 of Article IV gives Congress the power to admit new states. The only limitation on this power is that states cannot be divided or combined without the consent of their own legislatures. This was an important matter in 1787. There was already talk of creating the new states of Kentucky and Maine from territory that was then part of Virginia and Massachusetts, respectively. New York had long insisted that Vermont was part of its territory. There was also speculation that a small state, such as Delaware, would benefit from uniting with a larger neighbor. No state wanted to be divided or swallowed up without its consent. The same concerns are behind the final portion of the next paragraph, stating that “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular state”. There was an ongoing dispute as to whether the western land claimed by some states, especially Virginia and North Carolina, were valid, or if the land was owned by the United States as a whole. The Constitution made clear that it would not give a better claim to either side, and allowed the compromises already being negotiated to move to a conclusion.
The Constitution also made it easier to add new states. Congress under the Articles of Confederation could bring in new states only if nine of the thirteen states agreed, but the Constitution allows it to be done by a simple majority.
There was extensive debate during the Convention over whether the new states should be limited so as to keep political power in the hands of the original thirteen. Some delegates favored limiting the representation of new states so that they would always be a minority in Congress. The Convention rejected all such proposals, but it also rejected a motion that new states would be brought into the union on an equal basis with the old. The Supreme Court did not provide a definitive ruling on the question of whether new states are fully equal to the old until the 1911 case of Coyle v. Smith. Congress had granted Oklahoma statehood under the requirement that the state capital remain in Guthrie until 1913, but the capital had nevertheless been moved to Oklahoma City in 1910. The Court ruled in favor of Oklahoma, denying that a state could be treated as anything less than an equal. This is an important point in answering those who argue that only the original thirteen states can claim states’ rights against the Federal government, because the newer states are the creation of that government rather than its creators. It is clear that the Supreme Court has rejected that point of view. A state is a state. None are second-class, and all share the same Constitutional rights, protections, and responsibilities.
Congress is given the power to “dispose of” and to “make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States”. This became a matter of intense controversy when Congress debated whether to prohibit slavery in the territories, and some denied that this clause included the power to limit property rights in this way. Although the Supreme Court ruled such laws to be unconstitutional in 1857, Congress restored the prohibition following the secession of most slave states, and the Thirteenth Amendment settled the question before it could return to the Supreme Court.
The phrase “dispose of” indicates an exception in the Senate’s treaty-making power, which is usually carried out with no participation by the House of Representatives. Treaties which surrender U.S. territory should require approval by Congress, rather than by the Senate alone. Unfortunately, when the treaties giving up the Panama Canal were approved in 1978, the House failed to insist upon its role in the process, and settled for a smaller role in enacting the implementing legislation a year later.
The last part of Article IV guarantees each state a republican form of government, as well as protection against invasion and “domestic Violence”. The “republican government” guarantee was in the Virginia Plan that served as the basis for debate at the beginning of the convention, while protection against domestic violence was added as one means of making this guarantee effective. It reminds us that the Founders saw the United States as a test case of whether republican government could be an effective, stable, and enduring form of government. The Federal government itself would, if necessary, intervene to prevent any overthrow of the republican form. However, to maintain the balance between state and Federal power, the Federal government could not decide on its own to send in military force to deal with domestic violence. It must be invited by the state’s legislature, or by the governor if the unrest prevented a meeting of the legislature.
The Supreme Court first dealt with this issue in the 1849 case of Luther v. Borden. The Court was asked to rule that Rhode Island, which had been operating under its 1663 charter and restricted voting to landowners, did not have a Republican form of government. Opponents of the old charter had in 1841 and 1842 written and ratified a new constitution, held elections, claimed to be the legitimate government of Rhode Island, and attempted to seize the state arsenal. The government suppressed the revolt and called a constitutional convention which extended the suffrage to all white males, so the matter had been settled by the time the Supreme Court took up Martin Luther’s claim that he had been arrested and convicted by an illegitimate, non-republican government. The Court failed to rule on the main question, finding that it was up to Congress rather than the courts to determine the republican nature of a state government. President Tyler had turned down the 1842 request of the Rhode Island legislature for military intervention, correctly assessing the threat as too minor to require Federal assistance.
In the case of Texas v. White, dealing with the question of secession, Chief Justice Chase’s majority opinion declared that it was the guarantee of republican government clause that justified sending an army to invade Texas and overthrow the elected government, even though the ordinance of secession had been approved first by a convention elected by the citizens of Texas, and then directly by a majority of those citizens in a referendum. Majority rule, Chase said, had resulted in rebellion and was therefore no longer republican government. It was necessary to forcibly replace it with a government that would not represent a majority of Texans, and would therefore be considered republican. Such logic hardly requires further comment.
During the 1930’s, when Huey Long ruled Louisiana with an iron hand as Governor and later Senator, there were suggestions that the Federal government should break his power by declaring that the state had become a dictatorship rather than a republic, but cooler heads prevailed. The voters of Louisiana were allowed to continue living under the government they had elected, however unwise their choice may have been. More recently, some conservatives have suggested that the Federal courts should strike down state court decisions legalizing homosexual marriage on the grounds that this was not approved by elected officials, and is therefore a violation of republican government. By this logic, favorable court decisions striking down state laws that restrict freedom of speech and religion would also have to be overturned, and state legislatures would be able to ignore all constitutional limitations.
Next week I will wrap up our lessons by covering Articles V, VI, and VII. You may now submit any questions you have.
Article V sets forth the procedure for amending the Constitution, and it is worth comparing this with the same procedure in the Article of Confederation. Under the Articles, amendments could only originate in Congress and then had to be approved unanimously by the legislatures of the states. The Constitution takes a different course in every respect. It allows the states to bypass Congress in beginning the amendment process. It provides an alternative to ratification by the legislatures. It allows ratification by three-fourths of the states instead of unanimity.
The Virginia Plan, the Convention’s starting point, said merely that there should be a process for amendments and that it should not require Congressional participation. George Mason explained that amendments might be needed to put further restrictions on Congress, which would block such amendments if it had the chance. However, this was a controversial position and the matter was postponed several times after brief debate. It was not included in the plan approved by the Committee of the Whole on June 13, which included no details on how the amendment process would work. There had been no change by July 26 when the Committee of Detail was assigned to rewrite the Convention’s resolutions in the form of Constitution. It was that Committee which recommended that Congress be required to call for a Constitutional Convention if requested by two-thirds of the state legislatures, but this new draft still said nothing about ratification. At least one delegate interpreted this to mean that the conventions would be empowered to amend the Constitution without approval by any other body, but that seems unlikely. Perhaps it was assumed that amendments of a second convention would be subject to the same form of approval as the Convention of 1787, which the Committee of Detail said should be by conventions in each state, with the required number of states left blank for further debate.
Soon objections were raised to leaving it to the states to originate the amending process. Some delegates feared that this would mean that only amendments which increased the power of the states at the expense of the Federal government would ever be written. Madison, who had expressed concern over the practical aspects of calling another convention for amendments, suggested that Congress should be given the authority to propose amendments whenever two-thirds of each house agreed that it was necessary. His motion would also have required Congress to draft an amendment whenever two-thirds of the states asked for one. Ratification would be by three-fourths of the states, either through their legislatures or by special conventions. Madison’s plan was approved, but it stood untouched for only a few days. Delegates objected to the fact that Congress would now be in total control of the actual drafting of amendments, and insisted on restoring the possibility of a convention called by two-thirds of the states. It was in that form that Article V was finally approved.
Despite all the debate concerning whether Congress or a convention should be in charge of writing and proposing amendments, Congress has found itself alone it that role. No convention has ever been called, although the Anti-federalists made a strong effort in the first few years after ratification of the Constitution. In 1861 twenty-one states sent delegates to a convention seeking compromise amendments to prevent disunion, but this was done outside the Constitutional process, and the convention merely submitted its amendments to Congress. More than two-thirds of the states called for conventions during the thirty-six year period from 1893 through 1929, but Congress refused to call a convention on the grounds that the state resolutions called for amendments on a variety on matters, no single one of which had two-thirds support.
Since the New Deal, the most notable efforts to call a convention have come from the right. A majority of states called for a tax limitation amendment during the 1940’s and 1950’s, and the reaction to the Supreme Court’s legislative apportionment decisions fell just two states short of two-thirds. Advocates of a balanced budget amendment have more recently come close to the mark.
However, many conservatives, and I include myself among them, strongly disagree with this approach. James Madison was correct when he pointed out the many unanswered questions concerning such a convention. Could it be limited to only one subject? That seems doubtful since the Constitutional Convention of 1787 went far beyond the drafting of a few amendments that many had expected to be its only responsibility. A new convention might decide to rewrite the entire constitution, just as happened in 1787. It might even try to change the rules of ratification, as was done successfully in 1787. Our federal system grew from the concessions made necessary in 1787 by the equal representation of each state in the Convention, but large states would certainly insist on proportional representation in a new convention, and both federalism and the rights of small states would be in jeopardy. I find it impossible to see any potential gain from a convention that would justify taking such enormous risks.
The requirement that Congress approve amendments by a two-thirds vote in each house has also been a barrier to ideas that lack broad support for a long period of time. Only thirty-three amendments have passed Congress, and only twenty-one in the two hundred twenty-one years since the Bill of Rights.
As I mentioned earlier, the Articles of Confederation required unanimous approval by the states for any amendment, which was recognition of the fact stated in Article II, that “each state retains its sovereignty, freedom and independence”. Unanimity proved to be an impossible hurdle. In 1781 and again in 1783 Congress drafted amendments giving it a limited taxing power in order to deal with its financial crisis. Even though there was general agreement that Congress needed some ability to levy taxes, and even though the amendments were carefully drafted with an eye toward approval by the states, each fell slightly short of ratification. The result was a bankrupt Federal government.
The delegates to the convention frequently mentioned that they would not allow ratification of the Constitution to be blocked by a single small state such as Rhode Island, and this same thinking carried over to the ratification of amendments. Rather than allow each state to claim a right to veto any amendment, they decided that requiring the approval of three fourths of the states should be enough to justify imposing that amendment on the other states.
The three-fourths figure is often cited as protection for the smaller states, and it is true that in 1787 four states with less than 10% of the U.S. population could have blocked passage of an amendment. However, this also protected the large states against a coalition of the smaller states. If amendments were to be approved by a majority of states, then seven states with only about 27% of the population in 1787 could have forced an amendment on the other 73%. Even a three-fifths approval would have allowed little more than one-third to overrule almost two-thirds. What was probably even more important at the time was that New England, the South, and the Middle States each had the power to block an amendment unfavorable to their region.
Allowing ratification by state conventions as well as state legislatures was another innovation, one which probably reflected the belief that legislatures were overly protective of the power of the states but that the general public was more willing to consider whether it made sense to shift a certain power to the Federal government. I will discuss this more in regard to Article VII.
All amendments have been approved by the state legislatures, with one exception. When Congress sent the twenty-first amendment, repealing prohibition, to the states, it was considered to be such a hot potato that conventions were chosen as the ratifying method. This allowed state legislators to avoid taking a position on it, putting the responsibility only on those who volunteered for it by running as delegates to the conventions.
Article V contains two exceptions, two parts of the Constitution that are not subject to the normal amending process. One week before the Convention adjourned, John Rutledge of South Carolina expressed his concern that an earlier compromise might be violated if the Constitution were soon amended to allow Congress to prohibit the slave trade before 1808. His motion to put that portion of the Constitution beyond the power of amendment was approved on a vote of nine states to one. A few days later, however, Roger Sherman of Connecticut followed his example by suggesting a further change that “no state shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate.” Madison feared that the door was opening to endless exceptions, and led the successful fight to defeat Sherman’s motion. The small states struck back with an unsuccessful effort to prohibit amendments altogether. Seeing the discontent among the small states, and looking ahead to the ratification battle in each state, Madison and his allies agreed to guarantee that no amendment could overturn the equality of states in the Senate.
When Congress approved an amendment, in 1978, to give the District of Columbia two senators, one of the objections raised against it was that it violated this guarantee of equality in the Senate. By granting two votes to something that was not a state, the voting strength of each state was clearly diluted. Congress rejected the argument that the amendment was itself unconstitutional, and since the amendment was not ratified the question never made it into the courts.
Only six amendments have been approved by Congress and failed to be ratified by three fourths of the states. The first was one to increase the size of the House of Representatives, which I mentioned in our first session, and which was one of twelve amendments approved by Congress at its first session in 1789. An 1810 amendment would have deprived of his citizenship any American who accepted a title of nobility. During the secession crisis of 1861, when Republicans were trying to deflect criticism for blocking every attempt at compromise, they joined in passing a superfluous amendment, denying Congress the power to abolish or interfere with slavery in any state. Of course, Congress had no such power under the Constitution, as the Republican platform had conceded. This was merely a cynical political move.
In 1924 Congress sent to the states an amendment prohibiting child labor and authorizing Congress to enforce it by Federal legislation which would take priority over state laws. Strong concerns over this extension of Federal power led to its defeat.
The two most recent unsuccessful efforts had the strong support not only of liberal Democrats, but also many establishment Republicans. The misleadingly-named Equal Rights Amendment was approved by Congress in 1972 and appeared to be on its way to quick and easy ratification until grass roots activists, many of them motivated by Eagle Forum leader Phyllis Schlafly, began educating state legislators about the actual effects of its provisions. Although its early momentum almost carried it across the finish line, Schlafly and her allies stopped it three states short and persuaded other states to rescind their ratifications.
The lessons learned in the fight against the ERA were put to use in 1978 when Congress passed an amendment giving the District of Columbia representation as if it were a state, with two U.S. senators and as many representatives as its population deserved. The Conservative Caucus and many other conservative groups immediately began lobbying state legislators, and this amendment never gained the momentum that had almost meant victory for ERA. Only sixteen of the necessary 38 states had ratified when the seven year time limit expired.
The seven year time limit, which has become standard practice, was not a part of early amendments. It first appeared in the Eighteenth Amendment, passed by
Congress in 1918, and seems to have been intended as a means of making ratification of Prohibition less likely. The first suggestion was to limit ratification to just five years. In subsequent amendments, the time limit was sometimes included in the text of the amendment, and sometimes in the resolution of Congressional approval. This became controversial when Congress granted the ERA an extension of more than three years, arguing that because it was not part of the text of the amendment that Congress therefore had the right to amend the terms of its approval. Since the extra three years resulted in no additional ratifications, the question was never resolved in a definitive manner.
The purpose of the time limit is to make sure that ratification reflects the approval not only of three fourths of the states, but of those three fourths at approximately the same time. This question was highlighted when the 1789 amendment regarding Congressional pay finally reached the three-fourths mark in 1992. Previous Supreme Court decisions had declared that Congress, not the Court, must determine whether the time period is to be considered acceptable. When the Archivist of the United States certified that the required number of states had approved the amendment, Congress gave silent approval by failing to take any contrary action.
Some advocates of the Equal Rights Amendment have responded to ratification of the Congressional pay amendment by insisting that the ERA is still alive and has 35 ratifications. However, the Supreme Court’s 1921 decision in Dillon v. Gloss confirmed the power of Congress to set time limits, and there has been no sign that the Court is inclined to overturn that precedent.
The fight over the ERA also highlighted another question – whether a state that has approved an amendment may then reverse its decision and rescind that approval. Five of the states that had quickly approved ERA later passed resolutions of rescission. When the Fourteenth Amendment was ratified, Congress refused to recognize the rescissions by two states, but the question was irrelevant since there were enough states to make three-fourths even without those two. A lower Federal court ruled in favor of one of the ERA rescissions, but the matter never reached the Supreme Court for a definitive ruling. The Constitution itself is silent on the matter. It does seem logical that ratification by the legislature is a legislative act, and the legislature could repeal its approval just as it can repeal other acts. It should be noted that, under the Articles of Confederation, several states did rescind their approval of amendments.
The ratification of the Fourteenth Amendment is noteworthy not only because of the controversy over rescission but also because of the way that Congress handled the eleven states that had seceded to form the Confederate States of America. By the time that Congress approved the amendment in 1866, these states had been conquered and forcibly restored to the Union. Therefore, they had to be counted in determining the number of states that would constitute three-fourths, and it would be impossible to ratify unless some of them approved the amendment. However, Congress had refused to recognize elected, civilian governments in these states, and had likewise refused to seat the Representatives and Senators elected there. If these states had no legitimate government, then they had no legislatures that could ratify. Congress solved this problem with a law that made recognition of the state governments conditional on ratification of the Fourteenth Amendment. In other words, the allegedly illegitimate state legislatures could legitimately ratify the amendment, and would then become legitimate state governments. Given the coercive nature of this ratification, and the question of whether the state legislatures were legally qualified to ratify, it is safe to say that the Fourteenth Amendment’s status as a part of the Constitution is very doubtful.
Article VI begins with an assurance that the debts of the Confederation would not be affected by the change of government, and would continue to be equally valid under the Constitution. Notice that it did not actually say that the debts would be valid, but only that they would be as valid as they had been under the Confederation. This eliminated any chance that the worthless paper currency, which had been effectively repudiated already, could be considered a binding obligation.
The Virginia Plan included only the vaguest allusion to the national debt, saying that provision should be made to complete the engagements of Congress under the Confederation, and even this was deleted on July 18. Exactly one month later, Charles Pinkney recommended adding language “to secure all creditors under the New Constitution from a violation of the public faith when pledged by the authority of the Legislature”. William Livingston of New Jersey offered a revision to specifically guarantee the debts contracted during the war for independence. The Committee of Eleven, which considered these proposals, recommended saying that Congress “shall have the power to fulfil the engagements which have been entered into by Congress”. Some delegates thought it unnecessary to state what they considered to be an obvious fact, but a majority insisted that some clear language was needed to remove all doubt. The Convention then strengthened the wording to say that Congress “shall discharge the debts and fulfil the engagements, of the United States”. A few days later, the Convention reconsidered this change, and George Mason urged that the wording be softened to merely leave creditors on the same footing under the Constitution as under the Confederation. Mason feared that even the new government might be unable to pay its entire debt. Edmund Randolph suggested the language which was adopted and incorporated into the final version of the Constitution.
The next paragraph of Article VI has become known as the Supremacy Clause, because it declares that “this Constitutiion, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”. State judges are required to accept the authority of the Constitution, Federal laws, and treaties, even if this means ignoring their own state’s laws and constitution. It is this section that clearly makes the United States one nation, with a uniform system of laws relating to national concerns. However, the original goal of James Madison and some other nationalist delegates was for an even greater Federal power, and they regarded the supremacy clause as more of a defeat than a compromise.
Madison had observed the tendency of the states to act independently, refusing even to comply with the explicit requirements of the Articles of Confederation, and he feared that the United States might soon break up into several smaller nations unless a strong and effective national government was formed. He believed that this type of government would require that Congress have the power to nullify state laws. Therefore, the Virginia Plan gave Congress the power to “negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union”. There was no real limitation on this power, since Congress itself would be the only judge of whether a state law violated the Constitution.
The Convention gave tentative approval to this, but on June 8 Madison supported Charles Pinkney’s motion to go even farther, allowing Congress to nullify any state law it considered “improper” for whatever reason. This would prevent states from complaining that Congress was going beyond its power, since the power would be unlimited, and it would allow Congress to nullify states laws that it regarded as unjust. Many delegates were stunned by this proposal, and only three states supported it.
The first appearance of anything resembling the supremacy clause was in the New Jersey Plan. It called for Federal laws and treaties to be binding on the states and their citizens, and required state judges to give priority to those laws and treaties “any thing in the respective laws of the Individual States to the contrary notwithstanding”. The New Jersey Plan was silent on conflicts with the state constitutions. The Convention was satisfied with the Virginia Plan’s approach at this time, and rejected the alternative.
By July 17, many of the delegates were having second thoughts about Congressional nullification. They saw it as an affront to the states, and unnecessary since the Federal courts would strike down state laws violating the Constitution. Madison and Pinkney argued strenuously in favor, but it was removed with only three states in support. It was replaced by language similar to that of the New Jersey Plan.
The Committee of Detail’s report, three weeks later, followed this wording in general. Laws and treaties were to be the Supreme law of the land, and state judges were bound to act in accordance. However, the committee version said that the judges were to give Federal laws priority not only over state laws, but also over their state constitutions. The Convention made some changes in the wording without affecting the substance and voted down one final effort by Pinkney to give Congress veto power over state laws.
The Convention’s decision against Congressional nullification of state laws leaves no doubt that the Constitution establishes what we have come to call Federalism, with the Federal government given responsibility for some matters and the states everything else. The rejection of the extreme nationalist position affirmed that the states were to have complete discretion over purely internal matters, and Federal jurisdiction would extend only as far as necessary for genuinely national purposes. Madison understood very well that he had been defeated on this point. In his October 24 letter to Thomas Jefferson, describing what had gone on at the Convention, he devoted more space to this topic than to everything else combined, and lamented that the Constitution gave great power to the state governments. Those who believe that Congress has the authority to legislate on virtually any topic would do well to read Madison’s letter and be reminded that the Constitution sets strict limits on Federal power.
The fact that treaties are also to be considered “the supreme law of the land” has sometimes raised questions as to whether the terms of treaties are in any way limited by the Constitution. Supreme Court decisions in the nineteenth and early twentieth centuries seemed inconsistent, and the increasingly internationalist trend of U.S. policy after World War II sparked a movement for an amendment to explicitly declare that treaties could not grant the Federal government any powers not already granted by the Constitution. In 1954 the U.S. Senate took up the Bricker amendment, but strong lobbying by President Eisenhower, who wanted no new limits on presidential power, combined with the deft maneuvers of Senate Minority Leader Lyndon Johnson, resulted in the amendment falling one vote short of the necessary two-thirds. Fortunately, the Supreme Court spoke out more clearly just a few years later, leaving no doubt that the content of treaties is subject to the limitations of the Constitution.
The Convention was careful to include treaties as part of the law of the land because the Articles of Confederation had been woefully inadequate in that regard. The 1783 peace treaty with Great Britain had guaranteed that creditors would meet with “no lawful impediment” in collecting pre-war debts. Many states, however, enacted laws delaying payment and continually extended these laws. State courts ruled against creditors, upholding state law. British creditors complained to their government, which used this violation of the treaty as an excuse to retain forts inside territory ceded to the United States by the treaty. The Confederation Congress had no means of enforcing the treaty. There was no national judiciary, and Congress depended on the states to carry out its own enactments. This inability to enforce its treaties had been considered as one of the major failings of the Confederation.
Ratification of the Constitution and the establishment of Federal courts made it inevitable that the British would initiate more attempts to collect. The first case to reach the Supreme Court was that of Ware v. Hylton in 1796. Virginia had, during the war, passed a law confiscating the debts owed by Virginians to British citizens, and ordering that the debts be paid into the state treasury to finance the war. Ironically, it was future Chief Justice John Marshall who argued that the state’s confiscation law should be given precedence over the terms of the treaty. The Court disagreed, finding that the terms of the treaty nullified any contradictory state law, and ordered Hylton to pay once again the debt that he had already paid to his state.
The supremacy of the Constitution over state laws and constitutions is reinforced by requiring not only members of Congress, but also state legislators, governors, and state judges to swear to support the Constitution.
This brings up the question of nullification, which is defined as the right of a state to declare a Federal law unconstitutional, and unenforceable within that state. The first clear statement of this doctrine was the Kentucky Resolution of 1798, secretly authored by Vice President Thomas Jefferson. The resolution pointed out that the Constitution granted the Federal government only limited powers, and that the Tenth Amendment made this unequivocal. Denying that the Federal government could be allowed to judge the limits of its own powers, Kentucky asserted that “as in all cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well as infractions as of the mode and measure of address”. On these grounds the resolution found the Alien and Sedition Acts to be unconstitutional. The laws were declared to be “altogether void and of no force”. However, the only action called for by the resolution was that copies of the resolution should be sent to the Kentucky congressional delegation and to the legislatures of other states, to encourage repeal of the acts. The government of Kentucky was to take no action to prevent enforcement of the laws within its boundaries. A similar resolution adopted by Virginia (and written by James Madison) also referred only to cooperating with other states, despite an introductory statement of being “duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them”. No other state joined Kentucky and Virginia, while many passed resolutions disagreeing on all points. Although Kentucky and Virginia stood by their resolutions, neither took any further action, and the Adams administration arrested, tried and convicted James Callender for sedition in Virginia without encountering any attempt at obstruction. Kentucky’s 1799 resolution promised to “bow to the laws of the union” while continuing to protest their unconstitutionality.
It was another Vice President, John C. Calhoun, who devised a more systematic and extreme version of nullification. He took seriously Virginia’s statement of the need for a state to “interpose” for the protection of its people, and he described the procedure to be followed. A state could declare a law unconstitutional, use whatever means it chose to interpose and prevent its enforcement, and call on the other states to amend the constitution if they wished to overcome nullification. If three-fourths of the states failed to approve an amendment, the nullification would continue. Calhoun’s home state of South Carolina followed this procedure when it voted to nullify the tariff in 1832, though nullification was delayed and never took effect. Facing the threat of invasion by a Federal army, and without any allies among the other states, South Carolina found a face-saving compromise and repealed its nullification.
Though open and formal nullification never made any headway, more indirect methods have a history of some success. While President Jackson was threatening to invade South Carolina over the nullification of the tariff, Georgia was nullifying a treaty between the United States and the Cherokees by taking legal jurisdiction over Cherokee territory as the first step towards expelling the Cherokees. Kentucky ignored a Supreme Court decision, Green v. Biddle, and continued to enforce its land laws regardless of violation of contract. New England states often ignored Federal law during the Embargo of 1808-1809 and again during the War of 1812. Many northern states used personal liberty laws to nullify the Fugitive Slave Law. None of these violations were officially proclaimed as nullification, however. The states simply did as they pleased, and the Federal government was either unwilling or unable to act.
The many lawsuits filed against the recently enacted health care reform have led some to claim that this is another example of nullification, but this demonstrates a complete failure to understand the nature of nullification. Nullifiers such as Calhoun were absolutely clear in rejecting the U.S. Supreme Court as a legitimate arbiter of such questions. They held that the decision could only be made by the states, not by any branch of the Federal government. Filing suit in Federal court is more accurately described as a rejection of the nullification option, since the implication is that the decision of the Supreme Court will be treated as final.
Discussion of nullification leads inevitably to the question of secession, which is defined as the legal right to peacefully leave the union, although the word secession did not become commonly used in this manner until well into the next century. Secession is another matter that is not directly addressed by the text of the Constitution, though it is significant that the Constitution did not repeat the Confederation’s declaration of a “perpetual Union”. Various relevant comments made during the Convention are often ambiguous, since they could refer to either secession or rebellion. An exception to this is George Mason’s statement on July 23. Mason, speaking in opposition to the idea of ratification of the Constitution by state legislatures, said that if a legislature ratified then a subsequent legislature “having equal authority could undo their acts”. Ratification should be by the people, “with whom all power remains”, acting through a convention. Logically, then, another convention of the people could also exercise that power to “undo” the ratification by the earlier convention, as happened in 1860 and 1861.
During the ratification process there were also many ambiguous statements, perhaps referring to secession but more often seeming to refer to the unquestioned universal right of revolution. James Madison wrote a letter which might be interpreted as ruling out secession, but in context it is seen as saying that a state cannot place conditions on its ratification. Madison himself spoke during Virginia’s convention of the possibility of leaving the union, though with a reference to the militia which indicates he anticipated that it might have to be defended by force of arms.
The most compelling answer to the question of secession’s legality comes from the fact that, in the first decades following ratification of the Constitution, so many politicians from all parts of the country took for granted that their states had a right to withdraw. The assumption of state debts would never have passed in 1790 without the threat of secession by northern states. Liberal historian Gary Wills has noted that when New England Federalists discussed secession in 1804 they were concerned only with its practicality, assuming that there was no legal barrier. Even in 1861 there were many in the north who were willing to allow the seven deep south states to withdraw, until the firing on Fort Sumter aroused their fighting blood.
Article VI closes by saying that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”. This was added near the end of the Convention, on August 30, on the motion of Charles Pinkney. Madison records little debate, with Sherman of Connecticut asking whether the “prevailing liberality” made it necessary, while Gouverneur Morris and Charles Cotesworth Pinkney expressed their support. It was accepted without dissent.
Sherman’s comment about the “prevailing liberality” is revealing since every state, even Rhode Island and Pennsylvania, placed some religious restrictions on office-holding. Sherman’s statement indicates that the “liberality” he had in mind extended only to Christians, and perhaps only to Protestants. However, the prohibition on religious tests certainly opened the door for non-Christians, and during the ratification conventions this was made an objection to the Constitution. Henry Iredell responded in the North Carolina convention by explaining that only such broad language could provide protection for all of the Christian denominations in America. As to the danger that the lack of such a test would result in the election of non-Christians, Iredell answered that “it is never to be supposed that the people of America will trust their dearest rights to persons who have no religion at all, or a religion materially different from their own.” This seems to be an accurate reflection of the intent of this clause, preventing sectarian discrimination while trusting the people to choose wisely.
Article VII establishes the procedure for ratification of the Constitution in one sentence but it was a sentence filled with controversy in 1787. This was primarily because it ignored the amendment procedure of the Articles of Confederation. Instead of requiring unanimous approval by the legislatures of all thirteen states, it was to be considered by a special convention in each state. As soon as nine states had approved the Constitution, it was to be put into effect for those nine and for any that subsequently approved it. Not only would this bypass the Articles of Confederation, it also raised the possibility of breaking up the union of the thirteen states, since some might refuse to accept the Constitution.
The reasoning behind this decision was thoroughly practical. Many delegates were convinced that the state legislators, fearing the loss of power to the Federal government, would be far more hostile to the Constitution than would the general population. Special ratification conventions would deprive the legislatures of veto power. It would also, in the eyes of many, create a better foundation for the new government to have it approved by representatives chosen by the people for this one purpose, and therefore more representative of the people’s will.
The delegates also remembered how amendments to the Articles of Confederation had been blocked by the objection of only one or two states, making unanimous ratification an unacceptable requirement. However, even these delegates were unwilling to force the Constitution on any state, which meant that it must apply only to those that ratified while taking the risk that it might permanently disrupt the union.
The decision to forego unanimity proved to be vital to the success of ratification. New York would surely not have ratified if it had possessed the power to veto the Constitution, and Virginia might also have voted no. North Carolina refused ratification until 1789, and Rhode Island did not even call a convention until 1790. At best, these states would have forced a second constitutional convention which might have gained unanimous approval by sharply circumscribing the powers of the Federal government. However, there is no guarantee that any Constitution could have satisfied the varied desires of all thirteen states. Casting off unanimity was even more important than bypassing the state legislatures.
We must notice that ratification was not by the people of the United States, which would have required a national referendum or a second national convention, nor by the state governments. The Convention very deliberately chose ratification by the people of each state, keeping the states as the fundamental agent for the new government while granting the people a greater role in the decision. Working within the basic framework of the states was both a practical recognition of their status within the union since 1776 and an affirmation of the system of federalism promised by the new Constitution.
We have now covered the operative text of the Constitution, but must take a final look at the last words of the document. Just above the signatures of the delegates is the declaration that this was done “by the Unanimous Consent of the States present”, another reminder that the Constitution is the handiwork of the states. Then it gives the date on which the Convention adjourned, September 17 “in the Year of our Lord” 1787. Some may profess to see a “godless Constitution”, but the men who signed under this description saw no need to remove their “Lord” from the document.
That concludes our study of the U.S. Constitution of 1787. I hope you have enjoyed it and learned from it. If you have any further questions, you may submit them now.
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