The usa constitution what the word

Constitution of the United States
Page one of the officially engrossed copy of the Constitution signed in Philadelphia by delegates of the Constitutional Convention in 1787[1]
Overview
Jurisdiction	United States of America
Created	September 17, 1787
Presented	September 28, 1787
Ratified	June 21, 1788
Date effective	March 4, 1789 (234 years ago)[2]
System	Constitutional presidential federal republic
Government structure
Branches	3
Chambers	Bicameral
Executive	President
Judiciary	Supreme, Circuits, Districts
Federalism	Yes
Electoral college	Yes
Entrenchments	2, 1 still active
History
First legislature	March 4, 1789
First executive	April 30, 1789
First court	February 2, 1790
Amendments	27
Last amended	May 5, 1992
Citation	The Constitution of the United States of America, As Amended (PDF), July 25, 2007
Location	National Archives Building in Washington, D.C., U.S.
Commissioned by	Congress of the Confederation in Philadelphia, U.S.
Author(s)	Philadelphia Convention
Signatories	39 of the 55 delegates
Media type	Parchment
Supersedes	Articles of Confederation

The Constitution of the United States is the supreme law of the United States of America.^[3] It superseded the Articles of Confederation, the nation’s first constitution, in 1789. Originally comprising seven articles, it delineates the national frame and constraints of government. The Constitution’s first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress (Article I); the executive, consisting of the president and subordinate officers (Article II); and the judicial, consisting of the Supreme Court and other federal courts (Article III). Article IV, Article V, and Article VI embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article VII establishes the procedure subsequently used by the 13 states to ratify it. The Constitution of the United States is the oldest and longest-standing written and codified national constitution in force in the world today.^[4][a]

The drafting of the Constitution, often referred to as its framing, was completed at the Constitutional Convention that took place in Philadelphia in 1787 from late May through mid-September.^[5] Delegates to the convention were chosen by the state legislatures of 12 of the 13 original states; Rhode Island refused to send delegates.^[6] The convention’s initial mandate was limited to amending the Articles of Confederation, which had proven highly ineffective in meeting the young nation’s needs.^[7] Almost immediately, however, delegates began considering measures to replace the Articles.^[8] The first proposal discussed, introduced by delegates from Virginia, called for a bicameral (two-house) Congress that was to be elected on a proportional basis based on state population, an elected chief executive, and an appointed judicial branch.^[9] An alternative to the Virginia Plan, known as the New Jersey Plan, also called for an elected executive but retained the legislative structure created by the Articles, a unicameral Congress where all states had one vote.^[10]

On June 19, 1787, delegates rejected the New Jersey Plan with three states voting in favor, seven against, and one divided. The plan’s defeat led to a series of compromises centering primarily on two issues: slavery and proportional representation.^[11][12] The first of these pitted Northern states, where slavery was slowly being abolished, against Southern states, whose agricultural economies depended on slave labor.^[13] The issue of proportional representation was of similar concern to less populous states, which under the Articles had the same power as larger states.^[14] To satisfy interests in the South, particularly in Georgia and South Carolina, the delegates agreed to protect the slave trade, that is, the importation of slaves, for 20 years.^[15] Slavery was protected further by allowing states to count three-fifths of their slaves as part of their populations, for the purpose of representation in the federal government, and by requiring the return of escaped slaves to their owners, even if captured in states where slavery had been abolished.^[16] Finally, the delegates adopted the Connecticut Compromise, which proposed a Congress with proportional representation in the lower house and equal representation in the upper house (the Senate) giving each state two senators.^[17] While these compromises held the Union together and aided the Constitution’s ratification, slavery continued for six more decades and the less populous states continue to have disproportional representation in the U.S. Senate and Electoral College.^[18][12]

Since the Constitution was ratified in 1789, it has been amended 27 times.^[19][20] The first ten amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice and place restrictions on the powers of government within the U.S. states.^[21][22] The majority of the 17 later amendments expand individual civil rights protections. Others address issues related to federal authority or modify government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document. The original U.S. Constitution^[23] was handwritten on five pages of parchment by Jacob Shallus.^[24]
The first permanent constitution,^[b] it is interpreted, supplemented, and implemented by a large body of federal constitutional law and has influenced the constitutions of other nations.

Background

First government

From September 5, 1774 to March 1, 1781, the Continental Congress functioned as the provisional government of the United States. Delegates to the First Continental Congress in 1774 and then the Second Continental Congress from 1775 to 1781 were chosen largely from the revolutionary committees of correspondence in various colonies rather than through the colonial governments of the Thirteen Colonies.^[27]

Articles of Confederation

The Articles of Confederation and Perpetual Union was the first constitution of the United States.^[28] The document was drafted by a committee appointed by the Second Continental Congress in mid-June of 1777 and was adopted by the full Congress in mid-November of that year. Ratification by the 13 colonies took more than three years and was completed March 1, 1781. The Articles gave little power to the central government. While the Confederation Congress had some decision-making abilities, it lacked enforcement powers. The implementation of most decisions, including amendments to the Articles, required legislative approval by all 13 of the newly-formed states.^[29][30]

Despite these limitations, based on the Congressional authority granted in Article 9, the league of states was considered as strong as any similar republican confederation ever formed.^[31] The chief problem was, in the words of George Washington, «no money».^[32] The Confederated Congress could print money but it was worthless, and while the Congress could borrow money, it could not pay it back.^[32] No state paid its share of taxes to support the government, and some paid nothing. A few states did meet the interest payments toward the national debt owed by their citizens, but nothing greater, and no interest was paid on debts owed foreign governments. By 1786, the United States was facing default on its outstanding debts.^[32]

Under the Articles, the United States had little ability to defend its sovereignty. Most of the troops in the nation’s 625-man army were deployed facing non-threatening British forts on American soil. Soldiers were not being paid, some were deserting, and others were threatening mutiny.^[33] Spain closed New Orleans to American commerce, despite the protests of U.S. officials. When Barbary pirates began seizing American ships of commerce, the Treasury had no funds to pay toward ransom. If a military crisis required action, the Congress had no credit or taxing power to finance a response.^[32]

Domestically, the Articles of Confederation was failing to bring unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris in 1783 was signed between Britain and the U.S., and named each of the American states, various states proceeded to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands.^[32] Individual state legislatures independently laid embargoes, negotiated directly with foreign authorities, raised armies, and made war, all violating the letter and the spirit of the Articles.

In September 1786, during an inter–state convention to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected, James Madison questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and «positively refused» to pay U.S. assessments for two years.^[34] A rumor at the time was that a seditious party of New York legislators had opened a conversation with the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on Georgia, and the state was under martial law.^[35] Additionally, during Shays’ Rebellion (August 1786 – June 1787) in Massachusetts, Congress could provide no money to support an endangered constituent state. General Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army.^[36]

Congress was paralyzed. It could do nothing significant without nine states, and some legislation required all 13. When a state produced only one member in attendance, its vote was not counted. If a state’s delegation was evenly divided, its vote could not be counted towards the nine-count requirement.^[37] The Congress of the Confederation had «virtually ceased trying to govern».^[38] The vision of a respectable nation among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin, and Rufus King. Their dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.^[39][40]

On February 21, 1787, the Confederation Congress called a convention of state delegates in Philadelphia to propose revisions to the Articles.^[41] Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the «sole and express purpose of revising the Articles of Confederation». The convention was not limited to commerce; rather, it was intended to «render the federal constitution adequate to the exigencies of government and the preservation of the Union.» The proposal might take effect when approved by Congress and the states.^[42]

History

1787 drafting

On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present, and the convention’s opening meeting was postponed for lack of a quorum.^[43] A quorum of seven states met and deliberations began on May 25. Eventually twelve states were represented; 74 delegates were named, 55 attended and 39 signed.^[6] The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation.

Two plans for structuring the federal government arose at the convention’s outset:

• The Virginia Plan, also known as the Large State Plan or the Randolph Plan, proposed that the legislative department of the national government be composed of a Bicameral Congress, with both chambers elected with apportionment according to population. Generally favoring the most highly populated states, it used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke to emphasize civil liberties.^[9]
• The New Jersey Plan proposed that the legislative department be a unicameral body with one vote per state. Generally favoring the less-populous states, it used the philosophy of English Whigs such as Edmund Burke to rely on received procedure and William Blackstone to emphasize sovereignty of the legislature. This position reflected the belief that the states were independent entities and, as they entered the United States of America freely and individually, remained so.^[10]

On May 31, the Convention devolved into the Committee of the Whole, charged with considering the Virginia Plan. On June 13, the Virginia resolutions in amended form were reported out of committee. The New Jersey Plan was put forward in response to the Virginia Plan.

A Committee of Eleven, including one delegate from each state represented, met from July 2 to 16^[44] to work out a compromise on the issue of representation in the federal legislature. All agreed to a republican form of government grounded in representing the people in the states. For the legislature, two issues were to be decided: how the votes were to be allocated among the states in the Congress, and how the representatives should be elected. In its report, now known as the Connecticut Compromise (or «Great Compromise»), the committee proposed proportional representation for seats in the House of Representatives based on population (with the people voting for representatives), and equal representation for each State in the Senate (with each state’s legislators generally choosing their respective senators), and that all money bills would originate in the House.^[45]

The Great Compromise ended the stalemate between patriots and nationalists, leading to numerous other compromises in a spirit of accommodation. There were sectional interests to be balanced by the Three-Fifths Compromise; reconciliation on Presidential term, powers, and method of selection; and jurisdiction of the federal judiciary.

On July 24, a Committee of Detail, including John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut), and James Wilson (Pennsylvania), was elected to draft a detailed constitution reflective of the resolutions passed by the convention up to that point.^[46] The Convention recessed from July 26 to August 6 to await the report of this «Committee of Detail». Overall, the report of the committee conformed to the resolutions adopted by the convention, adding some elements. A twenty-three article (plus preamble) constitution was presented.^[47]

From August 6 to September 10, the report of the committee of detail was discussed, section by section and clause by clause. Details were attended to, and further compromises were effected.^[44][46] Toward the close of these discussions, on September 8, a Committee of Style and Arrangement, including Alexander Hamilton from New York, William Samuel Johnson from Connecticut, Rufus King from Massachusetts, James Madison from Virginia, and Gouverneur Morris from Pennsylvania, was appointed to distill a final draft constitution from the 23 approved articles.^[46] The final draft, presented to the convention on September 12, contained seven articles, a preamble and a closing endorsement, of which Morris was the primary author.^[6] The committee also presented a proposed letter to accompany the constitution when delivered to Congress.^[48]

The final document, engrossed by Jacob Shallus,^[49] was taken up on Monday, September 17, at the convention’s final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up, addressing the convention: «There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.» He would accept the Constitution, «because I expect no better and because I am not sure that it is not the best».^[50]

The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the convention. Their accepted formula for the closing endorsement was «Done in Convention, by the unanimous consent of the States present.» At the end of the convention, the proposal was agreed to by eleven state delegations and the lone remaining delegate from New York, Alexander Hamilton.^[51]

Ratification by the states

Within three days of its signing on September 17, 1787, the Constitution was submitted to the Congress of the Confederation, then sitting in New York City, the nation’s temporary capital.^[52][53][54] The document, originally intended as a revision of the Articles of Confederation, instead introduced a completely new form of government.^[55][56][57] While members of Congress had the power to reject it, they voted unanimously on September 28 to forward the proposal to the thirteen states for their ratification.^[58][59] Under the process outlined in Article VII of the proposed Constitution, the state legislatures were tasked with organizing «Federal Conventions» to ratify the document. This scheme ignored the amendment process dictated by the Articles of Confederation which required a unanimous vote of all the states. Instead, Article VII called for approval by just nine of the 13 states. a two-thirds majority.^[60][29][61]

Two factions soon emerged, one supporting the Constitution, the Federalists, and the other opposing it, the so-called Anti-Federalists.^[62][63] Over the ensuing months, the proposal was debated, criticized, and expounded upon clause by clause. In the state of New York, at the time a hotbed of anti-Federalism, three delegates from the Philadelphia Convention who were also members of the Congress—Hamilton, Madison, and Jay—published a series of commentaries, now known as The Federalist Papers, in support of ratification.^[64][65]

Before the year’s end, three state legislatures voted in favor of ratification. Delaware was first with a unanimous 30-0 vote, Pennsylvania second, approving the measure 46-23,^[66][67][68] and New Jersey third with an unanimous vote.^[69] As 1788 began, Connecticut and Georgia followed Delaware’s lead with almost unanimous votes, but the outcome became less certain as leaders in key states such as Virginia, New York, and Massachusetts expressed concerns over the lack of protections for people’s rights.^{[70][71][72][73]} Fearing the prospect of defeat, the Federalists relented, promising that if the Constitution was adopted, amendments would be added to secure individual liberties.^[74] With that, the anti-Federalists’ position collapsed.^[75]

On June 21, 1788, New Hampshire became the ninth state to ratify. Three months later, on September 17, Congress adopted the Constitution as the law of the land. It then passed resolutions setting dates for choosing the first senators and representatives, the first Wednesday of January (January 7, 1789); electing the first president, the first Wednesday of February (February 4); and officially starting the new government, the first Wednesday of March (March 4), when the first Congress would convene.^[76] As its final act, the Congress of Confederation agreed to purchase 10 square miles from Maryland and Virginia for establishing a permanent capital.

Influences

Several ideas in the constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.

The Due Process Clause of the constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a ruler.

Among the most prominent political theorists of the late eighteenth century were William Blackstone, John Locke, and Montesquieu.^[77]

Both the influence of Edward Coke and William Blackstone were evident at the convention. In his Institutes of the Lawes of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone’s Commentaries on the Laws of England were the most influential books on law in the new republic.

British political philosopher John Locke following the Glorious Revolution (1688) was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his Two Treatises of Government. Government’s duty under a social contract among the sovereign people was to serve the people by protecting their rights. These basic rights were life, liberty and property.

Montesquieu’s influence on the framers is evident in Madison’s Federalist No. 47 and Hamilton’s Federalist No. 78. Jefferson, Adams, and Mason were known to read Montesquieu.^[78] Supreme Court Justices, the ultimate interpreters of the constitution, have cited Montesquieu throughout the Court’s history.^[79] (See, e.g., Green v. Biddle, 21 U.S. 1, 1, 36 (1823).United States v. Wood, 39 U.S. 430, 438 (1840).Myers v. United States, 272 U.S. 52, 116 (1926).Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977).Bank Markazi v. Peterson, 136 U.S. 1310, 1330 (2016).) Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny (reflecting the influence of Polybius’s 2nd century BC treatise on the checks and balances of the Roman Republic). In his The Spirit of Law, Montesquieu argues that the separation of state powers should be by its service to the people’s liberty: legislative, executive and judicial.

A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams and applied to the creation of state constitutions.

The constitution was a federal one, and was influenced by the study of other federations, both ancient and extant.

The United States Bill of Rights consists of 10 amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.^[80] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid «cruel and unusual punishments». Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Original frame

Neither the Convention which drafted the Constitution nor the Congress which sent it to the 13 states for ratification in the autumn of 1787, gave it a lead caption. To fill this void, the document was most often titled «A frame of Government» when it was printed for the convenience of ratifying conventions and the information of the public.^[81] This Frame of Government consisted of a preamble, seven articles and a signed closing endorsement.

Preamble

The Preamble, the Constitution’s introductory paragraph, lays out the purposes of the new government:^[82]

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The opening words, «We the People», represented a new thought: the idea that the people and not the states were the source of the government’s legitimacy.^{[83][84][85][86][87][88]} Coined by Gouverneur Morris of Pennsylvania, who chaired the convention’s Committee of Style, the phrase is considered an improvement on the section’s original draft which followed the words We the people with a list of the 13 states.^[89][82] In place of the names of the states Morris used «United States» and then listed the Constitution’s six goals, none of which were mentioned originally.^[90][91]

Article I

Article I describes the Congress, the legislative branch of the federal government. Section 1, reads, «All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.» The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.

Article I, Section 8 enumerates the powers delegated to the legislature. Financially, Congress has the power to tax, borrow, pay debt and provide for the common defense and the general welfare; to regulate commerce, bankruptcies, and coin money. To regulate internal affairs, it has the power to regulate and govern military forces and militias, suppress insurrections and repel invasions. It is to provide for naturalization, standards of weights and measures, post offices and roads, and patents; to directly govern the federal district and cessions of land by the states for forts and arsenals. Internationally, Congress has the power to define and punish piracies and offenses against the Law of Nations, to declare war and make rules of war. The final Necessary and Proper Clause, also known as the Elastic Clause, expressly confers incidental powers upon Congress without the Articles’ requirement for express delegation for each and every power. Article I, Section 9 lists eight specific limits on congressional power.

The Supreme Court has sometimes broadly interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly allowed by the enumerated powers nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would «enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people»,^[92] even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: «Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.»^[92]

Article II

Article II describes the office, qualifications, and duties of the President of the United States and the Vice President. The President is head of the executive branch of the federal government, as well as the nation’s head of state and head of government.

Article two is modified by the 12th Amendment which tacitly acknowledges political parties, and the 25th Amendment relating to office succession. The president is to receive only one compensation from the federal government. The inaugural oath is specified to preserve, protect and defend the Constitution.

The president is the Commander in Chief of the United States Armed Forces, as well as of state militias when they are mobilized. The president makes treaties with the advice and consent of a two-thirds quorum of the Senate. To administer the federal government, the president commissions all the offices of the federal government as Congress directs; and may require the opinions of its principal officers and make «recess appointments» for vacancies that may happen during the recess of the Senate. The president ensures the laws are faithfully executed and may grant reprieves and pardons with the exception of Congressional impeachment. The president reports to Congress on the State of the Union, and by the Recommendation Clause, recommends «necessary and expedient» national measures. The president may convene and adjourn Congress under special circumstances.

Section 4 provides for the removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Article III

Article III describes the court system (the judicial branch), including the Supreme Court. The article describes the kinds of cases the court takes as original jurisdiction. Congress can create lower courts and an appeals process, and enacts law defining crimes and punishments. Article Three also protects the right to trial by jury in all criminal cases, and defines the crime of treason.

Section 1 vests the judicial power of the United States in federal courts, and with it, the authority to interpret and apply the law to a particular case. Also included is the power to punish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judiciary Act of 1789, Congress began to fill in details. Currently, Title 28 of the U.S. Code^[93] describes judicial powers and administration.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts.^[c] In 1891, Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court. The Supreme Court holds discretionary jurisdiction, meaning that it does not have to hear every case that is brought to it.^[93]

To enforce judicial decisions, the Constitution grants federal courts both criminal contempt and civil contempt powers. Other implied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith litigation, and failure to obey a writ of mandamus. Judicial power includes that granted by Acts of Congress for rules of law and punishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interrupt state court proceedings.^[93]

Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases that are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case.^[d]

Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases involving ambassadors, ministers, and consuls, for all cases respecting foreign nation-states,^[94] and also in those controversies which are subject to federal judicial power because at least one state is a party. Cases arising under the laws of the United States and its treaties come under the jurisdiction of federal courts. Cases under international maritime law and conflicting land grants of different states come under federal courts. Cases between U.S. citizens in different states, and cases between U.S. citizens and foreign states and their citizens, come under federal jurisdiction. The trials will be in the state where the crime was committed.^[93]

No part of the Constitution expressly authorizes judicial review, but the Framers did contemplate the idea, and precedent has since established that the courts could exercise judicial review over the actions of Congress or the executive branch. Two conflicting federal laws are under «pendent» jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state legislature enacts something as under federal jurisdiction.^[e] To establish a federal system of national law, considerable effort goes into developing a spirit of comity between federal government and states. By the doctrine of ‘Res judicata’, federal courts give «full faith and credit» to State Courts.^[f] The Supreme Court will decide Constitutional issues of state law only on a case-by-case basis, and only by strict Constitutional necessity, independent of state legislators’ motives, their policy outcomes or its national wisdom.^[g]

Section 3 bars Congress from changing or modifying Federal law on treason by simple majority statute. This section also defines treason, as an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other lesser subversive crimes such as conspiracy.^[h]

Article IV

Article IV outlines the relations among the states and between each state and the federal government. In addition, it provides for such matters as admitting new states and border changes between the states. For instance, it requires states to give «full faith and credit» to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts may be admitted. The «privileges and immunities» clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens. For instance, in criminal sentencing, a state may not increase a penalty on the grounds that the convicted person is a non-resident.

It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, but in the days of the Articles of Confederation, crossing state lines was often arduous and costly. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect them from invasion and violence.

Article V

Article V outlines the process for amending the Constitution. Eight state constitutions in effect in 1787 included an amendment mechanism. Amendment-making power rested with the legislature in three of the states and in the other five it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all 13 state legislatures. This proved to be a major flaw in the Articles, as it created an insurmountable obstacle to constitutional reform. The amendment process crafted during the Philadelphia Constitutional Convention was, according to The Federalist No. 43, designed to establish a balance between pliancy and rigidity:^[95]

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

There are two steps in the amendment process. Proposals to amend the Constitution must be properly adopted and ratified before they change the Constitution. First, there are two procedures for adopting the language of a proposed amendment, either by (a) Congress, by two-thirds majority in both the Senate and the House of Representatives, or (b) national convention (which shall take place whenever two-thirds of the state legislatures collectively call for one). Second, there are two procedures for ratifying the proposed amendment, which requires three-fourths of the states’ (presently 38 of 50) approval: (a) consent of the state legislatures, or (b) consent of state ratifying conventions. The ratification method is chosen by Congress for each amendment.^[96] State ratifying conventions were used only once, for the Twenty-first Amendment.^[97]

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code § 106b. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each Governor. Each Governor then formally submits the amendment to their state’s legislature. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state’s action. Ratification documents are examined by the Office of the Federal Register for facial legal sufficiency and an authenticating signature.^[98]

Article Five ends by shielding certain clauses in the new frame of government from being amended. Article One, Section 9, Clause 1 prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808, plus the fourth clause from that same section, which reiterates the Constitutional rule that direct taxes must be apportioned according to state populations. These clauses were explicitly shielded from Constitutional amendment prior to 1808. On January 1, 1808, the first day it was permitted to do so, Congress approved legislation prohibiting the importation of slaves into the country. On February 3, 1913, with ratification of the Sixteenth Amendment, Congress gained the authority to levy an income tax without apportioning it among the states or basing it on the United States Census. The third textually entrenched provision is Article One, Section 3, Clauses 1, which provides for equal representation of the states in the Senate. The shield protecting this clause from the amendment process («no state, without its consent, shall be deprived of its equal Suffrage in the Senate») is less absolute but it is permanent.

Article VI

Article VI establishes that the Constitution and all federal laws and treaties made in accordance with it have supremacy over state laws, and that «the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.» It validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states’ constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state. Article Six also states «no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.»

Article VII

Article VII describes the process for establishing the proposed new frame of government. Anticipating that the influence of many state politicians would be Antifederalist, delegates to the Philadelphia Convention provided for ratification of the Constitution by popularly elected ratifying conventions in each state. The convention method also made it possible that judges, ministers and others ineligible to serve in state legislatures, could be elected to a convention. Suspecting that Rhode Island, at least, might not ratify, delegates decided that the Constitution would go into effect as soon as nine states (two-thirds rounded up) ratified.^[99] Each of the remaining four states could then join the newly-formed union by ratifying.^[100]

Closing endorsement

The signing of the United States Constitution occurred on September 17, 1787, when 39 delegates to the Constitutional Convention endorsed the constitution created during the convention. In addition to signatures, this closing endorsement, the Constitution’s eschatocol, included a brief declaration that the delegates’ work has been successfully completed and that those whose signatures appear on it subscribe to the final document. Included are a statement pronouncing the document’s adoption by the states present, a formulaic dating of its adoption, and the signatures of those endorsing it. Additionally, the convention’s secretary, William Jackson, added a note to verify four amendments made by hand to the final document, and signed the note to authenticate its validity.^[101]

The language of the concluding endorsement, conceived by Gouverneur Morris and presented to the convention by Benjamin Franklin, was made intentionally ambiguous in hopes of winning over the votes of dissenting delegates. Advocates for the new frame of government, realizing the impending difficulty of obtaining the consent of the states needed to make it operational, were anxious to obtain the unanimous support of the delegations from each state. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, in order that the action of the convention would appear to be unanimous, the formula, Done in convention by the unanimous consent of the states present … was devised.^[102]

The document is dated: «the Seventeenth Day of September in the Year of our Lord» 1787, and «of the Independence of the United States of America the Twelfth.» This two-fold epoch dating serves to place the Constitution in the context of the religious traditions of Western civilization and, at the same time, links it to the regime principles proclaimed in the Declaration of Independence. This dual reference can also be found in the Articles of Confederation and the Northwest Ordinance.^[102]

The closing endorsement serves an authentication function only. It neither assigns powers to the federal government nor does it provide specific limitations on government action. It does, however, provide essential documentation of the Constitution’s validity, a statement of «This is what was agreed to.» It records who signed the Constitution, and when and where.

Amending the Constitution

The procedure for amending the Constitution is outlined in Article Five (see above). The process is overseen by the archivist of the United States. Between 1949 and 1985, it was overseen by the administrator of General Services, and before that by the secretary of state.^[98]

Under Article Five, a proposal for an amendment must be adopted either by two-thirds of both houses of Congress or by a national convention that had been requested by two-thirds of the state legislatures.^[98] Once the proposal has passed by either method, Congress must decide whether the proposed amendment is to be ratified by state legislatures or by state ratifying conventions. The proposed amendment along with the method of ratification is sent to the Office of the Federal Register, which copies it in slip law format and submits it to the states.^[98] To date, the convention method of proposal has never been tried and the convention method of ratification has only been used once, for the Twenty-first Amendment.^[96]

A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 states). There is no further step. The text requires no additional action by Congress or anyone else after ratification by the required number of states.^[103] Thus, when the Office of the Federal Register verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the nation’s frame of government. This certification is published in the Federal Register and United States Statutes at Large and serves as official notice to Congress and to the nation that the ratification process has been successfully completed.^[98]

Ratified amendments

The Constitution has twenty-seven amendments. Structurally, the Constitution’s original text and all prior amendments remain untouched. The precedent for this practice was set in 1789, when Congress considered and proposed the first several Constitutional amendments. Among these, Amendments 1–10 are collectively known as the Bill of Rights, and Amendments 13–15 are known as the Reconstruction Amendments. Excluding the Twenty-seventh Amendment, which was pending before the states for 202 years, 225 days, the longest pending amendment that was successfully ratified was the Twenty-second Amendment, which took 3 years, 343 days. The Twenty-sixth Amendment was ratified in the shortest time, 100 days. The average ratification time for the first twenty-six amendments was 1 year, 252 days; for all twenty-seven, 9 years, 48 days.

Safeguards of liberty (Amendments 1, 2, and 3)

The First Amendment (1791) prohibits Congress from obstructing the exercise of certain individual freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and right to petition. Its Free Exercise Clause guarantees a person’s right to hold whatever religious beliefs they want, and to freely exercise that belief, and its Establishment Clause prevents the federal government from creating an official national church or favoring one set of religious beliefs over another. The amendment guarantees an individual’s right to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas, even unpopular ones. It also guarantees an individual’s right to physically gather or associate with others in groups for economic, political or religious purposes. Additionally, it guarantees an individual’s right to petition the government for a redress of grievances.^[104]

The Second Amendment (1791) protects the right of individuals^[105][106] to keep and bear arms.^{[107][108][109][110]} Although the Supreme Court has ruled that this right applies to individuals, not merely to collective militias, it has also held that the government may regulate or place some limits on the manufacture, ownership and sale of firearms or other weapons.^[111][112] Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the widespread efforts of the British to confiscate the colonists’ firearms at the outbreak of the Revolutionary War. Patrick Henry had rhetorically asked, shall we be stronger, «when we are totally disarmed, and when a British Guard shall be stationed in every house?»^[113]

The Third Amendment (1791) prohibits the federal government from forcing individuals to provide lodging to soldiers in their homes during peacetime without their consent. Requested by several states during the Constitutional ratification debates, the amendment reflected the lingering resentment over the Quartering Acts passed by the British Parliament during the Revolutionary War, which had allowed British soldiers to take over private homes for their own use.^[114]

Safeguards of justice (Amendments 4, 5, 6, 7, and

The Fourth Amendment (1791) protects people against unreasonable searches and seizures of either self or property by government officials. A search can mean everything from a frisking by a police officer or to a demand for a blood test to a search of an individual’s home or car. A seizure occurs when the government takes control of an individual or something in the possession of the individual. Items that are seized often are used as evidence when the individual is charged with a crime. It also imposes certain limitations on police investigating a crime and prevents the use of illegally obtained evidence at trial.^[115]

The Fifth Amendment (1791) establishes the requirement that a trial for a major crime may commence only after an indictment has been handed down by a grand jury; protects individuals from double jeopardy, being tried and put in danger of being punished more than once for the same criminal act; prohibits punishment without due process of law, thus protecting individuals from being imprisoned without fair procedures; and provides that an accused person may not be compelled to reveal to the police, prosecutor, judge, or jury any information that might incriminate or be used against him or her in a court of law. Additionally, the Fifth Amendment also prohibits government from taking private property for public use without «just compensation», the basis of eminent domain in the United States.^[116]

The Sixth Amendment (1791) provides several protections and rights to an individual accused of a crime. The accused has the right to a fair and speedy trial by a local and impartial jury. Likewise, a person has the right to a public trial. This right protects defendants from secret proceedings that might encourage abuse of the justice system, and serves to keep the public informed. This amendment also guarantees a right to legal counsel if accused of a crime, guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused, and guarantees the accused a right to know the charges against them. In 1966, the Supreme Court ruled that, with the Fifth Amendment, this amendment requires what has become known as the Miranda warning.^[117]

The Seventh Amendment (1791) extends the right to a jury trial to federal civil cases, and inhibits courts from overturning a jury’s findings of fact. Although the Seventh Amendment itself says that it is limited to «suits at common law», meaning cases that triggered the right to a jury under English law, the amendment has been found to apply in lawsuits that are similar to the old common law cases. For example, the right to a jury trial applies to cases brought under federal statutes that prohibit race or gender discrimination in housing or employment. Importantly, this amendment guarantees the right to a jury trial only in federal court, not in state court.^[118]

The Eighth Amendment (1791) protects people from having bail or fines set at an amount so high that it would be impossible for all but the richest defendants to pay and also protects people from being subjected to cruel and unusual punishment. Although this phrase originally was intended to outlaw certain gruesome methods of punishment, it has been broadened over the years to protect against punishments that are grossly disproportionate to or too harsh for the particular crime. This provision has also been used to challenge prison conditions such as extremely unsanitary cells, overcrowding, insufficient medical care and deliberate failure by officials to protect inmates from one another.^[119]

Unenumerated rights and reserved powers (Amendments 9 and 10)

The Ninth Amendment (1791) declares that individuals have other fundamental rights, in addition to those stated in the Constitution. During the Constitutional ratification debates Anti-Federalists argued that a Bill of Rights should be added. The Federalists opposed it on grounds that a list would necessarily be incomplete but would be taken as explicit and exhaustive, thus enlarging the power of the federal government by implication. The Anti-Federalists persisted, and several state ratification conventions refused to ratify the Constitution without a more specific list of protections, so the First Congress added what became the Ninth Amendment as a compromise. Because the rights protected by the Ninth Amendment are not specified, they are referred to as «unenumerated». The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, the right to privacy, and the right to make important decisions about one’s health care or body.^[120]

The Tenth Amendment (1791) was included in the Bill of Rights to further define the balance of power between the federal government and the states. The amendment states that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles or in subsequent constitutional amendments. Any power not listed is, says the Tenth Amendment, left to the states or the people. While there is no specific list of what these «reserved powers» may be, the Supreme Court has ruled that laws affecting family relations, commerce within a state’s own borders, abortion, and local law enforcement activities, are among those specifically reserved to the states or the people.^[121][122]

The Eleventh Amendment (1795) specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country, thus extending to the states sovereign immunity protection from certain types of legal liability. Article Three, Section 2, Clause 1 has been affected by this amendment, which also overturned the Supreme Court’s decision in Chisholm v. Georgia (1793).^[123][124]

The Sixteenth Amendment (1913) removed existing Constitutional constraints that limited the power of Congress to lay and collect taxes on income. Specifically, the apportionment constraints delineated in Article 1, Section 9, Clause 4 have been removed by this amendment, which also overturned an 1895 Supreme Court decision, in Pollock v. Farmers’ Loan & Trust Co., that declared an unapportioned federal income tax on rents, dividends, and interest unconstitutional. This amendment has become the basis for all subsequent federal income tax legislation and has greatly expanded the scope of federal taxing and spending in the years since.^[125]

The Eighteenth Amendment (1919) prohibited the making, transporting, and selling of alcoholic beverages nationwide. It also authorized Congress to enact legislation enforcing this prohibition. Adopted at the urging of a national temperance movement, proponents believed that the use of alcohol was reckless and destructive and that prohibition would reduce crime and corruption, solve social problems, decrease the need for welfare and prisons, and improve the health of all Americans. During prohibition, it is estimated that alcohol consumption and alcohol related deaths declined dramatically. But prohibition had other, more negative consequences. The amendment drove the lucrative alcohol business underground, giving rise to a large and pervasive black market. In addition, prohibition encouraged disrespect for the law and strengthened organized crime. Prohibition came to an end in 1933, when this amendment was repealed.^[126]

The Twenty-first Amendment (1933) repealed the Eighteenth Amendment and returned the regulation of alcohol to the states. Each state sets its own rules for the sale and importation of alcohol, including the drinking age. Because a federal law provides federal funds to states that prohibit the sale of alcohol to minors under the age of twenty-one, all fifty states have set their drinking age there. Rules about how alcohol is sold vary greatly from state to state.^[127]

Safeguards of civil rights (Amendments 13, 14, 15, 19, 23, 24, and 26)

The Thirteenth Amendment (1865) abolished slavery and involuntary servitude, except as punishment for a crime, and authorized Congress to enforce abolition. Though millions of slaves had been declared free by the 1863 Emancipation Proclamation, their post Civil War status was unclear, as was the status of other millions.^[128] Congress intended the Thirteenth Amendment to be a proclamation of freedom for all slaves throughout the nation and to take the question of emancipation away from politics. This amendment rendered inoperative or moot several of the original parts of the constitution.^[129]

The Fourteenth Amendment (1868) granted United States citizenship to former slaves and to all persons «subject to U.S. jurisdiction». It also contained three new limits on state power: a state shall not violate a citizen’s privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws. These limitations dramatically expanded the protections of the Constitution. This amendment, according to the Supreme Court’s Doctrine of Incorporation, makes most provisions of the Bill of Rights applicable to state and local governments as well. It superseded the mode of apportionment of representatives delineated in Article 1, Section 2, Clause 3, and also overturned the Supreme Court’s decision in Dred Scott v. Sandford (1857).^[130]

The Fifteenth Amendment (1870) prohibits the use of race, color, or previous condition of servitude in determining which citizens may vote. The last of three post Civil War Reconstruction Amendments, it sought to abolish one of the key vestiges of slavery and to advance the civil rights and liberties of former slaves.^[131]

The Nineteenth Amendment (1920) prohibits the government from denying women the right to vote on the same terms as men. Prior to the amendment’s adoption, only a few states permitted women to vote and to hold office.^[132]

The Twenty-third Amendment (1961) extends the right to vote in presidential elections to citizens residing in the District of Columbia by granting the District electors in the Electoral College, as if it were a state. When first established as the nation’s capital in 1800, the District of Columbia’s five thousand residents had neither a local government, nor the right to vote in federal elections. By 1960 the population of the District had grown to over 760,000.^[133]

The Twenty-fourth Amendment (1964) prohibits a poll tax for voting. Although passage of the Thirteenth, Fourteenth, and Fifteenth Amendments helped remove many of the discriminatory laws left over from slavery, they did not eliminate all forms of discrimination. Along with literacy tests and durational residency requirements, poll taxes were used to keep low-income (primarily African American) citizens from participating in elections. The Supreme Court has since struck down these discriminatory measures, opening democratic participation to all.^[134]

The Twenty-sixth Amendment (1971) prohibits the government from denying the right of United States citizens, eighteen years of age or older, to vote on account of age. The drive to lower the voting age was driven in large part by the broader student activism movement protesting the Vietnam War. It gained strength following the Supreme Court’s decision in Oregon v. Mitchell (1970).^[135]

Government processes and procedures (Amendments 12, 17, 20, 22, 25, and 27)

The Twelfth Amendment (1804) modifies the way the Electoral College chooses the President and Vice President. It stipulates that each elector must cast a distinct vote for president and Vice President, instead of two votes for president. It also suggests that the President and Vice President should not be from the same state. Article II, Section 1, Clause 3 is superseded by this amendment, which also extends the eligibility requirements to become president to the Vice President.^[136]

The Seventeenth Amendment (1913) modifies the way senators are elected. It stipulates that senators are to be elected by direct popular vote. The amendment supersedes Article 1, Section 2, Clauses 1 and 2, under which the two senators from each state were elected by the state legislature. It also allows state legislatures to permit their governors to make temporary appointments until a special election can be held.^[137]

The Twentieth Amendment (1933) changes the date on which a new president, Vice President and Congress take office, thus shortening the time between Election Day and the beginning of Presidential, Vice Presidential and Congressional terms.^[138] Originally, the Constitution provided that the annual meeting was to be on the first Monday in December unless otherwise provided by law. This meant that, when a new Congress was elected in November, it did not come into office until the following March, with a «lame duck» Congress convening in the interim. By moving the beginning of the president’s new term from March 4 to January 20 (and in the case of Congress, to January 3), proponents hoped to put an end to lame duck sessions, while allowing for a speedier transition for the new administration and legislators.^[139]

The Twenty-second Amendment (1951) limits an elected president to two terms in office, a total of eight years. However, under some circumstances it is possible for an individual to serve more than eight years. Although nothing in the original frame of government limited how many presidential terms one could serve, the nation’s first president, George Washington, declined to run for a third term, suggesting that two terms of four years were enough for any president. This precedent remained an unwritten rule of the presidency until broken by Franklin D. Roosevelt, who was elected to a third term as president 1940 and in 1944 to a fourth.^[140]

The Twenty-fifth Amendment (1967) clarifies what happens upon the death, removal, or resignation of the President or Vice President and how the Presidency is temporarily filled if the President becomes disabled and cannot fulfill the responsibilities of the office. It supersedes the ambiguous succession rule established in Article II, Section 1, Clause 6. A concrete plan of succession has been needed on multiple occasions since 1789. However, for nearly 20% of U.S. history, there has been no vice president in office who can assume the presidency.^[141]

The Twenty-seventh Amendment (1992) prevents members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress. Its proponents believed that Federal legislators would be more likely to be cautious about increasing congressional pay if they have no personal stake in the vote. Article One, section 6, Clause 1 has been affected by this amendment, which remained pending for over two centuries as it contained no time limit for ratification.^[142]

Unratified amendments

Collectively, members of the House and Senate propose around 150 amendments during each two-year term of Congress.^[143] Most however, never get out of the Congressional committees in which they are proposed, and only a fraction of those approved in committee receive sufficient support to win Congressional approval and actually enter the constitutional ratification process.

Six amendments approved by Congress and proposed to the states for consideration have not been ratified by the required number of states to become part of the Constitution. Four of these are technically still pending, as Congress did not set a time limit (see also Coleman v. Miller) for their ratification. The other two are no longer pending, as both had a time limit attached and in both cases the time period set for their ratification expired.

Pending

• The Congressional Apportionment Amendment (proposed 1789) would, if ratified, establish a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states following each constitutionally mandated decennial census. At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. In 1791 and 1792, when Vermont and Kentucky joined the Union, the number climbed to twelve. Thus, the amendment remained one state shy of the number needed for it to become part of the Constitution. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-seven would be required. The Apportionment Act of 1792 apportioned the House of Representatives at 33,000 persons per representative in consequence of the 1790 census. Reapportionment has since been effected by statute.
• The Titles of Nobility Amendment (proposed 1810) would, if ratified, strip United States citizenship from any citizen who accepted a title of nobility from a foreign country. When submitted to the states, ratification by thirteen states was required for it to become part of the Constitution; eleven had done so by early 1812. However, with the addition of Louisiana into the Union that year (April 30, 1812), the ratification threshold rose to fourteen. Thus, when New Hampshire ratified it in December 1812, the amendment again came within two states of being ratified. No additional states have ratified this amendment since. To become part of the Constitution today, ratification by an additional twenty-six would be required.
• The Corwin Amendment (proposed 1861) would, if ratified, shield «domestic institutions» of the states (which in 1861 included slavery) from the constitutional amendment process and from abolition or interference by Congress. This proposal was one of several measures considered by Congress in an ultimately unsuccessful attempt to attract the seceding states back into the Union and to entice border slave states to stay.^[144] Five states ratified the amendment in the early 1860s, but none have since. To become part of the Constitution today, ratification by an additional 33 states would be required. The subject of this proposal was subsequently addressed by the 1865 Thirteenth Amendment, which abolished slavery.
• The Child Labor Amendment (proposed 1924) would, if ratified, specifically authorize Congress to limit, regulate and prohibit labor of persons less than eighteen years of age. The amendment was proposed in response to Supreme Court rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) that found federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 unconstitutional. When submitted to the states, ratification by 36 states was required for it to become part of the Constitution, as there were forty-eight states. Twenty-eight had ratified the amendment by early 1937, but none have done so since. To become part of the Constitution today, ratification by an additional ten would be required.^[145] A federal statute approved June 25, 1938, regulated the employment of those under 16 or 18 years of age in interstate commerce. The Supreme Court, by unanimous vote in United States v. Darby Lumber Co. (1941), found this law constitutional, effectively overturning Hammer v. Dagenhart. As a result of this development, the movement pushing for the amendment concluded.^[146]

Expired

• The Equal Rights Amendment (proposed 1972) would have prohibited deprivation of equality of rights (discrimination) by the federal or state governments on account of sex. A seven-year ratification time limit was initially placed on the amendment, but as the deadline approached, Congress granted a three-year extension. Thirty-five states ratified the proposed amendment prior to the original deadline, three short of the number required for it to be implemented (five of them later voted to rescind their ratification). No further states ratified the amendment within the extended deadline. In 2017, Nevada became the first state to ratify the ERA after the expiration of both deadlines,^[147] followed by Illinois in 2018,^[148] and Virginia in 2020,^[149][150] purportedly bringing the number of ratifications to 38. However, experts and advocates have acknowledged legal uncertainty about the consequences of these ratifications, due to the expired deadlines and the five states’ purported revocations.^[i]
• The District of Columbia Voting Rights Amendment (proposed 1978) would have granted the District of Columbia full representation in the United States Congress as if it were a state, repealed the Twenty-third Amendment, granted the District unconditional Electoral College voting rights, and allowed its participation in the process by which the Constitution is amended. A seven-year ratification time limit was placed on the amendment. Sixteen states ratified the amendment (twenty-two short of the number required for it to be implemented) prior to the deadline, thus it failed to be adopted.

Judicial review

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, federal executive, and all state branches of government, to decide their constitutionality, and to strike them down if found unconstitutional.

Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land.^[j] First, they have jurisdiction over actions by an officer of government and state law. Second, federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the twentieth century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature.^[153]

• Early Court roots in the founding

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law within the states. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it.^[154]

As to judicial review and the Congress, the first proposals by Madison (Virginia) and Wilson (Pennsylvania) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a «Council of Revision» by the governor and justices of the state supreme court. The council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist’s proposal in convention was defeated three times, and replaced by a presidential veto with congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause.^[155]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. «A limited constitution can be preserved in practice no other way» than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people’s authority over legislatures rests «particularly with judges».^[156][k]

The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (New York), a co-author of The Federalist Papers, served as chief justice for the first six years. The second and third chief justices, Oliver Ellsworth (Connecticut) and John Rutledge (South Carolina), were delegates to the Constitutional Convention. Washington’s recess appointment as chief justice who served in 1795. John Marshall (Virginia), the fourth chief justice, had served in the Virginia Ratification Convention in 1788. His 34 years of service on the Court would see some of the most important rulings to help establish the nation the Constitution had begun. Other early members of the Supreme Court who had been delegates to the Constitutional Convention included James Wilson (Pennsylvania) for ten years, John Blair Jr. (Virginia) for five, and John Rutledge (South Carolina) for one year as a justice, then chief justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as chief justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. «The fate of judicial review was in the hands of the Supreme Court itself.» Review of state legislation and appeals from state supreme courts was understood. But the Court’s life, jurisdiction over state legislation was limited. The Marshall Court’s landmark Barron v. Baltimore held that the Bill of Rights restricted only the federal government, and not the states.^[156]

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. Its findings were that Marbury and the others had a right to their commissions as judges in the District of Columbia. Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.^[l][158][m] In this case, both the Constitution and the statutory law applied to the particulars at the same time. «The very essence of judicial duty» according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising «under the Constitution». Further, justices take a Constitutional oath to uphold it as «Supreme law of the land».^[159] Therefore, since the United States government as created by the Constitution is a limited government, the federal courts were required to choose the Constitution over congressional law if there were deemed to be a conflict.

«This argument has been ratified by time and by practice …»^[n][o] The Supreme Court did not declare another act of Congress unconstitutional until the controversial Dred Scott decision in 1857, held after the voided Missouri Compromise statute had already been repealed. In the eighty years following the Civil War to World War II, the Court voided congressional statutes in 77 cases, on average almost one a year.^[161]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court handed down twelve decisions voiding acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive «court packing plan». Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a constitutional amendment to require that the justices retire at a specified age by law. To date, the Supreme Court’s power of judicial review has persisted.^[157]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been «wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns.» Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits its power of judicial review.^[162]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way, it can avoid opinions on embarrassing or difficult cases. The Supreme Court limits itself by defining for itself what is a «justiciable question». First, the Court is fairly consistent in refusing to make any «advisory opinions» in advance of actual cases.^[p] Second, «friendly suits» between those of the same legal interest are not considered. Third, the Court requires a «personal interest», not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Simply having the money to sue and being injured by government action are not enough.^[162]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their «standards of litigability». They say cases are left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. «The Supreme Court is not only a court of law but a court of justice.»^[163]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but its decrees must be enforceable. The Court seeks to minimize situations where it asserts itself superior to either president or Congress, but federal officers must be held accountable. The Supreme Court assumes power to declare acts of Congress as unconstitutional but it self-limits its passing on constitutional questions.^[164] But the Court’s guidance on basic problems of life and governance in a democracy is most effective when American political life reinforce its rulings.^[165]

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress:^[q] The Court will not anticipate a question of constitutional law nor decide open questions unless a case decision requires it. If it does, a rule of constitutional law is formulated only as the precise facts in the case require. The Court will choose statutes or general law for the basis of its decision if it can without constitutional grounds. If it does, the Court will choose a constitutional construction of an act of Congress, even if its constitutionality is seriously in doubt.^[164]

Likewise with the executive department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretensions, but it more often tries to rationalize them. Against Congress, an act is merely «disallowed». In the executive case, exercising judicial review produces «some change in the external world» beyond the ordinary judicial sphere.^[166] The «political question» doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court’s limitation when political process allowed future policy change, but a judicial ruling would «attribute finality». Political questions lack «satisfactory criteria for a judicial determination».^[167]

John Marshall recognized that the president holds «important political powers» which as executive privilege allows great discretion. This doctrine was applied in Court rulings on President Grant’s duty to enforce the law during Reconstruction. It extends to the sphere of foreign affairs. Justice Robert Jackson explained, foreign affairs are inherently political, «wholly confided by our Constitution to the political departments of the government … [and] not subject to judicial intrusion or inquiry.»^[168]

Critics of the Court object in two principal ways to self-restraint in judicial review, deferring as it does as a matter of doctrine to acts of Congress and presidential actions.

1. Its inaction is said to allow «a flood of legislative appropriations» which permanently create an imbalance between the states and federal government.
2. Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens.^[169]

Subsequent Courts

Supreme Courts under the leadership of subsequent chief justices have also used judicial review to interpret the Constitution among individuals, states and federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.

Salmon P. Chase was a Lincoln appointee, serving as chief justice from 1864 to 1873. His career encompassed service as a U.S. senator and Governor of Ohio. He coined the slogan, «Free soil, free Labor, free men.» One of Lincoln’s «team of rivals», he was appointed Secretary of Treasury during the Civil War, issuing «greenbacks». Partly to appease the Radical Republicans, Lincoln appointed him chief justice upon the death of Roger B. Taney.

In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The Chase Court is famous for Texas v. White, which asserted a permanent Union of indestructible states. Veazie Bank v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.

• Scope of judicial review expanded

• 

William Howard Taft was a Harding appointment to chief justice from 1921 to 1930. A Progressive Republican from Ohio, he was a one-term President.

As chief justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court. Taft successfully sought the expansion of Court jurisdiction over non-states such as District of Columbia and Territories of Alaska and Hawaii.

In 1925, the Taft Court issued a ruling overturning a Marshall Court ruling on the Bill of Rights. In Gitlow v. New York, the Court established the doctrine of «incorporation which applied the Bill of Rights to the states. Important cases included the Board of Trade of City of Chicago v. Olsen that upheld Congressional regulation of commerce. Olmstead v. United States allowed exclusion of evidence obtained without a warrant based on application of the 14th Amendment proscription against unreasonable searches. Wisconsin v. Illinois ruled the equitable power of the United States can impose positive action on a state to prevent its inaction from damaging another state.

Earl Warren was an Eisenhower nominee, chief justice from 1953 to 1969. Warren’s Republican career in the law reached from county prosecutor, California state attorney general, and three consecutive terms as governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing «separate but equal» services. Warren built a coalition of justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered «one-man-one-vote». Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright and Miranda v. Arizona. First Amendment rights were addressed in Griswold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech.

William Rehnquist was a Reagan appointment to chief justice, serving from 1986 to 2005. While he would concur with overthrowing a state supreme court’s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. In the hands of the Supreme Court, the Constitution and its amendments were to restrain Congress, as in City of Boerne v. Flores.

Nevertheless, the Rehnquist Court was noted in the contemporary «culture wars» for overturning state laws relating to privacy, prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.

Civic religion

There is a viewpoint that some Americans have come to see the documents of the Constitution, along with the Declaration of Independence and the Bill of Rights, as being a cornerstone of a type of civil religion. This is suggested by the prominent display of the Constitution, along with the Declaration of Independence and the Bill of Rights, in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a rotunda by day and in multi-ton bomb-proof vaults by night at the National Archives Building.^[170]

The idea of displaying the documents struck one academic critic looking from the point of view of the 1776 or 1789 America as «idolatrous, and also curiously at odds with the values of the Revolution».^[170] By 1816, Jefferson wrote that «[s]ome men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched». But he saw imperfections and imagined that there could potentially be others, believing as he did that «institutions must advance also».^[171]

Some commentators depict the multi-ethnic, multi-sectarian United States as held together by a political orthodoxy, in contrast with a nation state of people having more «natural» ties.^[172][173]

Worldwide influence

• 

• 

The United States Constitution has been a notable model for governance around the world. Its international influence is found in similarities of phrasing and borrowed passages in other constitutions, as well as in the principles of the rule of law, separation of powers and recognition of individual rights.

The American experience of fundamental law with amendments and judicial review has motivated constitutionalists at times when they were considering the possibilities for their nation’s future.^[174] It informed Abraham Lincoln during the American Civil War,^[v] his contemporary and ally Benito Juárez of Mexico,^[w] and the second generation of 19th-century constitutional nationalists, José Rizal of the Philippines^[x] and Sun Yat-sen of China.^[y] The framers of the Australian constitution integrated federal ideas from the U.S. and other constitutions.^[180]

Since the latter half of the 20th century, the influence of the United States Constitution may be waning as other countries have revised their constitutions with new influences.^[181][182]

Criticisms

The United States Constitution has faced various criticisms since its inception in 1787.

The Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible. In the early history of the U.S., most states allowed only white male adult property owners to vote with the notable exception of New Jersey where women were able to vote on the same basis as men.^{[183][184][185]} Until the Reconstruction Amendments were adopted between 1865 and 1870, the five years immediately following the American Civil War, the Constitution did not abolish slavery, nor give citizenship and voting rights to former slaves.^[186] These amendments did not include a specific prohibition on discrimination in voting on the basis of sex; it took another amendment—the Nineteenth, ratified in 1920—for the Constitution to prohibit any United States citizen from being denied the right to vote on the basis of sex.^[187]

According to a 2012 study by David Law of Washington University in St. Louis published in the New York University Law Review, the U.S. Constitution guarantees relatively few rights compared to the constitutions of other countries and contains fewer than half (26 of 60) of the provisions listed in the average bill of rights. It is also one of the few in the world today that still features the right to keep and bear arms; the only others are the constitutions of Guatemala and Mexico.^[181][182]

See also

Notes

References

Bibliography

Further reading

External links

U.S. government sources

• The Constitution of the United States Explained, U.S. Congress: legal analysis and interpretation based primarily on Supreme Court case law
• United States Constitution: Library of Congress: web guide with related primary documents and resources
• America’s Founding Documents, National Archives: original text and online resources on Declaration of Independence, U.S. Constitution, and Bill of Rights
• Constitution of the United States, U.S. Senate: original text with explanations of each section’s meaning over time
• The Constitution of the United States as Amended, GovInfo (govinfo.gov): pdf of full text with explanatory footnotes
• America’s Founding Documents, Founders Online, National Archives: searchable database of letters and papers of key founders

Non-governmental sources

• Constitution of the United States, Bill of Rights Institute, pdf of full text without explication
• The Constitution of the United States Audio reading, University of Chicago Law School, mp3 recordings of entire document and individual sections
• Constitution of the United States public domain audiobook at LibriVox
• The Constitution of the United States of America, mobile friendly plain text version
• National Constitution Center

United States Constitution
Page one of the original copy of the Constitution
Created	September 17, 1787
Ratified	June 21, 1788
Location	National Archives
Authors	Delegates of the Philadelphia Convention
Signers	39 of the 55 Philadelpha Convention delegates
Purpose	National constitution to replace the Articles of Confederation

The United States Constitution is the supreme law of the United States of America. It was adopted in its original form on September 17, 1787 by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by the people in conventions in each state in the name of «We the People.» The Constitution has a central place in American law and political culture.

The U.S. Constitution is the oldest written national constitution except possibly for San Marino’s Statutes of 1600, whose status as a true constitution is disputed by scholars. The significance of the U. S. Constitution to the creation of democracy is hard to overstate. It is one of the most emulated political documents in modern history, and its famous preamble lays out the marker for new era in which the people themselves figure in the decisions of government, creating a new level of accountability. The constitution represents a grand bargain, a social contract between the government and its citizenry that creates the basis to balance public and private interests.

A copy of the document is on display at the National Archives in Washington, D.C.

History

Drafting and ratification requirements

On September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Confederation Congress endorsed the plan to revise the Articles of Confederation on February 21, 1787. Twelve states, Rhode Island being the only exception, accepted this invitation and sent delegates to convene in May 1787. The resolution calling the Convention specified its purpose was to propose amendments to the Articles, but the Convention decided to propose a rewritten Constitution. The Philadelphia Convention voted to keep deliberations secret and decided to draft a new fundamental government design which eventually stipulated that only 9 of the 13 states would have to ratify for the new government to go into effect (for the participating states).

Work of the Philadelphia Convention

The Virginia Plan was the unofficial agenda for the Convention, it was drafted chiefly by James Madison. It was weighted toward the interests of the larger states and proposed among other points:

• A powerful bicameral legislature with House and Senate
• An executive (president) chosen by the legislature
• A judiciary, with life-terms of service and vague powers
• The national legislature would be able to veto state laws

An alternative proposal, the New Jersey Plan, gave states equal weights and was supported by the smaller states.

Roger Sherman of Connecticut brokered The Great Compromise whereby the House would represent population, the Senate would represent states, and a powerful president would be elected by elite electors. Slavery was not explicitly mentioned but 3/5 of the number of slaves would be counted toward the population used to apportion the House, and runaway slaves would have to be returned.

Ratification

Ratification of the Constitution
	Date	State	Votes
Yes	No
1	December 7, 1787	Delaware	30	0
2	December 12, 1787	Pennsylvania	46	23
3	December 18, 1787	New Jersey	38	0
4	January 2, 1788	Georgia	26	0
5	January 9, 1788	Connecticut	128	40
6	February 6, 1788	Massachusetts	187	168
7	April 28, 1788	Maryland	63	11
8	May 23, 1788	South Carolina	149	73
9	June 21, 1788	New Hampshire	57	47
10	June 25, 1788	Virginia	89	79
11	July 26, 1788	New York	30	27
12	November 21, 1789	North Carolina	194	77
13	May 29, 1790	Rhode Island	34	32

Contrary to the process for «alteration» spelled out in Article 13 of the Articles of Confederation, Congress submitted the proposal to the states and set the terms for representation.

On September 17, 1787, the Constitution was completed in Philadelphia at the Federal Convention, followed by a speech given by Benjamin Franklin who urged unanimity, although they decided they only needed nine states to ratify the constitution for it to go into effect. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation, but the resolution of the Congress submitting the Constitution to the states for ratification and agreeing with its provision for implementation upon ratification by nine states is contrary to Article 13, though eventually all thirteen states did ratify the Constitution, albeit after it took effect.

After fierce fights over ratification in many of the states, New Hampshire became that ninth state on June 21, 1788. Once the Congress of the Confederation received word of New Hampshire’s ratification, it set a timetable for the start of operations under the Constitution, and, on March 4, 1789, the government under the Constitution began operations.

Historical influences

Several of the ideas in the Constitution were new, and a large number of ideas were drawn from the literature of Republicanism in the United States, from the experiences of the 13 states, and from the British experience with mixed government. The most important influence from the European continent was from Montesquieu, who emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius’ second century B.C.E. treatise on the checks and balances of the constitution of the Roman Republic.) John Locke is known to have been a major influence, and the due process clause of the United States Constitution was partly based on common law stretching back to the Magna Carta of 1215.

Influences on the Bill of Rights

The United States Bill of Rights were the ten amendments added to the Constitution in 1791, as the supporters had promised opponents during the debates of 1788. The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. For example, both require jury trials, contain a right to bear arms, and prohibit excessive bail as well as «cruel and unusual punishments.» Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the United States Bill of Rights.

Articles of the Constitution

The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.

Preamble

The Preamble states:

“

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

”

The following interpretation makes arguments that deprecate the preamble. The statement «establish Justice, insure domestic Tranquility, provide for the common defense» are assertive statements.

The Preamble neither grants any powers nor inhibits any actions; it only explains the rationale behind the Constitution. The preamble is a basic statement of purpose that precedes the constitution. The Preamble, especially the first three words («We the people»), is one of the most quoted and referenced sections of the Constitution. Indeed, they are the three most important words in the Constitution as they denote the Constitution did not come from a king or an emperor, but from the people themselves.

The language «We, the People of the United States,» is of singular importance in that it provides that the power and authority of the federal government of the United States of America does not come from the several states, or even the people of the several states, but from an entity identified as the People of the United States of America, with the Constitution serving as a compact or contract between the People of the United State of America, the several States, and a newly created entity: the federal government of United States of America. The importance of this language lies in that it places the federal government of the United States of America as not derivative of its power solely from the several States. This would become a greater issue of contention during the Nullification Crisis (testing the ability of a sovereign state to nullify a federal law based upon the premise that the federal government drew its power from the several states and thus a sovereign state was free to ignore a federal law inconsistent with its own) and during the Civil War (testing the ability of a sovereign state, through its people, to secede from the Union or withdraw from the compact).

This, of course, made more sense when the federal government of the United States was still one of limited enumerated powers as the Founders intended (sovereign in the enumerated areas and powerless in the others), and when both the People and the several States were represented in federal legislature (the People in the House of Representatives and the several States in the Senate before the 17th Amendment, when the state legislatures still elected a state’s Senators). This language thus represented the Founders’ desire for outside ‘checks and balances’ or divided sovereignty (the People of the United States vs. the Federal Government of the United State of America vs. the Several States) as well as inside ‘checks and balances’ or divided sovereignty (the legislature vs. the executive vs. the judiciary).

Article One: Legislative power

Article One establishes the legislative branch of government, U.S. Congress, which includes the House of Representatives and the Senate. The legislative branch makes the laws. The Article establishes the manner of election and qualifications of members of each House. In addition, it provides for free debate in congress and limits self-serving behavior of congressmen, outlines legislative procedure and indicates the powers of the legislative branch. There is a debate as to whether the powers listed in Article 1 Section 8 are a list of enumerated powers. These powers may also be interpreted as a list of powers formerly either executive or judicial in nature, that have been explicitly granted to the U.S. Congress. This interpretation may be further supported by a broad definition of both the commerce clause, and the necessary and proper clause of the Constitution. The argument for enumerated powers can be traced back to 1819 McCulloch v. Maryland United States Supreme Court ruling. Finally, it establishes limits on federal and state legislative power.

Article Two: Executive power

Article Two describes the presidency (the executive branch): procedures for the selection of the president, qualifications for office, the oath to be affirmed and the powers and duties of the office. It also provides for the office of Vice President of the United States, and specifies that the Vice President succeeds to the presidency if the President is incapacitated, dies, or resigns, although whether this succession was on an acting or permanent basis was left unclear. In practice, this has always been treated as succession, and the 25th Amendment provides explicitly for succession. Article Two also provides for the impeachment and removal from office of civil officers (the President, Vice President, judges, and others).

Article Three: Judicial power

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it.

Article Four: States’ powers and limits

Article Four describes the relationship between the states and the Federal government, and among the states. It requires states to give «full faith and credit» to the public acts, records and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records or proceedings may be admitted. The «privileges and immunities» clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel among the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous (and costly) process. Article Four also provides for the creation and admission of new states. The Territorial Clause gives Congress the power to make rules for disposing of Federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence.

Article Five: Process of Amendments

Article Five describes the process necessary to amend the Constitution. It establishes two methods of proposing amendments: by Congress or by a national convention requested by the states. Under the first method, Congress can propose an amendment by a two-thirds vote (of a quorum, not necessarily of the entire body) of the Senate and of the House of Representatives. Under the second method, two-thirds (2/3) of the state legislatures may convene and «apply» to Congress to hold a national convention, whereupon Congress must call such a convention for the purpose of considering amendments. As of 2007, only the first method (proposal by Congress) has been used.

Once proposed—whether submitted by Congress or by a national convention—amendments must then be ratified by three-fourths (3/4) of the states to take effect. Article Five gives Congress the option of requiring ratification by state legislatures or by special conventions assembled in the states. The convention method of ratification has been used only once (to approve the 21st Amendment). Article Five currently places only one limitation on the amending power—that no amendment can deprive a state of its equal representation in the Senate without that state’s consent.

Article Six: Federal power

Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land, and that «the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.» It also validates national debt created under the Articles of Confederation and requires that all legislators, federal officers, and judges take oaths or affirmations to «support» the Constitution. This means that the states’ constitutions and laws should not conflict with the laws of the federal constitution—and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.

Article Six also states that «no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.»

Article Seven: Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose. (See above Drafting and ratification requirements.)

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered.

Unlike most constitutions, amendments to the U.S. constitution are appended to the existing body of the text, rather than making revisions to or insertions in the main articles. There is no provision for expunging from the text obsolete or rescinded provisions.

Some people feel that demographic changes in the U.S.—specifically the great disparity in population between states—have made the Constitution too difficult to amend, with states representing as little as 4 percent of the population theoretically able to block an amendment desired by over 90 percent of Americans; others feel that it is unlikely that such an extreme result would occur. However, any proposals to change this would necessarily involve amending the Constitution itself, making this extremely unlikely.

Aside from the direct process of amending the Constitution, the practical effect of its provisions may be altered by judicial decision. The United States is a common law country, and courts follow the precedents established in prior cases. However, when a Supreme Court decision clarifies the application of a part of the Constitution to existing law, the effect is to establish the meaning of that part for all practical purposes. Not long after adoption of the Constitution, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, the power of the Court to examine legislation and other acts of Congress to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution without needing to amend its text. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has effected a change in the way many Constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Congressional legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. In case of objection, the test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the meanings given to the words of the Constitution.

Amendments

The Constitution has a total of 27 amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution.

It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the first amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

“

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

”

The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792 during that commonwealth’s first month of statehood.

• First Amendment: addresses the rights of freedom of religion (prohibiting the Congress establishment of religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, the freedom of assembly, and freedom of petition.

• Second Amendment: declares «a well regulated militia» as «necessary to the security of a free State,» and as explanation for prohibiting infringement of «the right of the people to keep and bear arms.»

• Third Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The only existing case law regarding this amendment is a lower court decision in the case of Engblom v. Carey.^[1]

• Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a «probable cause» to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.

• Fifth Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as «Taking the fifth» or «Pleading the fifth»). This is regarded as the «rights of the accused» amendment. It also prohibits government from taking private property without «just compensation,» the basis of eminent domain in the United States.

• Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.

• Seventh Amendment: assures trial by jury in civil cases involving anything valued at more than 20 United States dollars at the time, which is currently worth $300, accounting for inflation.

• Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.

• Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.

• Tenth Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are «reserved to the States respectively, or to the people.»

Subsequent amendments (11–27)

Amendments to the Constitution subsequent to the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual, civil, or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787. Although the United States Constitution has been amended a total of 17 times, only 16 of the amendments are currently used because the 21st amendment supersedes the 18th.

• Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law.
• Twelfth Amendment (1804): Changes the method of presidential elections so that members of the electoral college cast separate ballots for president and vice president.
• Thirteenth Amendment (1865): Abolishes slavery and grants Congress power to enforce abolition.
• Fourteenth Amendment (1868): Defines United States citizenship; prohibits states from abridging citizens’ privileges or immunities and rights to due process and the equal protection of the law; repeals the Three-fifths compromise; prohibits repudiation of the federal debt.
• Fifteenth Amendment (1870): Prohibits the federal government and the states from using a citizen’s race, color, or previous status as a slave as a qualification for voting.
• Sixteenth Amendment (1913): Authorizes unapportioned federal taxes on income.
• Seventeenth Amendment (1913): Establishes direct election of senators.
• Eighteenth Amendment (1919): Prohibited the manufacturing, importing, and exporting of alcoholic beverages. (see prohibition) Repealed by the Twenty-First Amendment.
• Nineteenth Amendment (1920): Gives women the ability to vote.
• Twentieth Amendment (1933): Changes details of Congressional and presidential terms and of presidential succession.
• Twenty-first Amendment (1933): Repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages.
• Twenty-second Amendment (1951): Limits president to two terms.
• Twenty-third Amendment (1961): Grants presidential electors to the District of Columbia.
• Twenty-fourth Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials.
• Twenty-fifth Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.
• Twenty-sixth Amendment (1971): Prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote simply because of their age.
• Twenty-seventh Amendment (1992): Limits congressional pay raises.

Unratified amendments

Over 10,000 Constitutional amendments have been introduced in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are offered. Most of these concepts never get out of Congressional committee, much less get proposed by the Congress for ratification. Backers of some amendments have attempted the alternative, and thus-far never-utilized, method mentioned in Article Five. In two instances—reapportionment in the 1960s and a balanced federal budget during the 1970s and 1980s—these attempts have come within just two state legislative «applications» of triggering that alternative method.

Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures, while four of those six are still technically pending before state lawmakers (see Coleman v. Miller). Starting with the 18th amendment, each proposed amendment (except for the 19th Amendment and for the still-pending Child Labor Amendment of 1924) has specified a deadline for passage. The following are the unratified amendments:

• The Congressional Apportionment Amendment proposed by the 1st Congress on September 25, 1789, defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last of which was Kentucky in June 1792 (Kentucky’s initial month of statehood), this amendment contains no expiration date for ratification. In principle it may yet be ratified, though as written it became moot when the population of the United States reached ten million.
• The so-called missing thirteenth amendment, or «Titles of Nobility Amendment» (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting «any Title of Nobility or Honour» from any foreign power. Some maintain that the amendment was actually ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked. ^[2] Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification. It could theoretically still be ratified.
• The Corwin amendment, proposed by the 36th Congress on March 2, 1861, would have forbidden any attempt to subsequently amend the Constitution to empower the Federal government to «abolish or interfere» with the «domestic institutions» of the states (a delicate way of referring to slavery). It was ratified by only Ohio and Maryland lawmakers before the outbreak of the Civil War. Illinois lawmakers—sitting as a state constitutional convention at the time—likewise approved it, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification. However, adoption of the 13th, 14th, and 15th Amendments after the Civil War likely makes the amendment moot.
• A child labor amendment proposed by the 68th Congress on June 2, 1924 stipulates: «The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.» This amendment is now moot, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress’ powers under the commerce clause. This amendment contains no expiration date for ratification.

In a separate category from the other four constitutional amendments that Congress proposed to the states, but which not enough states have approved, the following two offerings—because of deadlines—are no longer subject to ratification.

• The Equal Rights Amendment, or ERA, which reads in pertinent part «Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.» Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979, or on June 30, 1982, depending upon one’s point of view of a controversial three-year extension of the ratification deadline, which was passed by the 95th Congress in 1978. Of the 35 states ratifying it, four later rescinded their ratifications prior to the extended ratification period which commenced March 23, 1979 and a fifth—while not going so far as to actually rescind its earlier ratification—adopted a resolution stipulating that its approval would not extend beyond March 22, 1979. There continues to be diversity of opinion as to whether such reversals are valid; no court has ruled on the question, including the Supreme Court. A precedent against the validity of rescission was first established during the ratification process of the 14th Amendment when Ohio and New Jersey rescinded their earlier approvals, but yet were counted as ratifying states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.
• The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had it been ratified, it would have granted to Washington, D.C. two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states—less than half of the required 38—the proposed amendment expired on August 22, 1985.

There are only a few recent proposals for amendments that entered mainstream political debate. These include proposals for a Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment.

Original pages of the Constitution

• 

  Page 2

• 

  Page 3

• 

  Page 4

• 

  Signatures

• Mayflower Compact (1620)
• English Bill of Rights (1689)
• Articles of Confederation (1777)

Notes

References

ISBN links support NWE through referral fees

Primary sources

• Bailyn, Bernard (ed.). The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788. The Library of America, 1993. ISBN 0940450429
• Bailyn, Bernard (ed.). The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788. The Library of America, 1993. ISBN 094045064X
• Garvey, John H. (ed.). Modern Constitutional Theory: A Reader West Group Publishing. 5th ed 2004. ISBN 978-0314149053
• Mason, Alpheus Thomas, and Donald Grier Stephenson (eds.). American Constitutional Law: Introductory Essays and Selected Cases. (14th Edition) Prentice Hall, 2004. ISBN 978-0131174375
• Tribe, Laurence H. American Constitutional Law West Publishing Company, 1999. ISBN 978-1566627146

Reference Books

• Hall, Kermit (ed.). The Oxford Companion to the Supreme Court of the United States. Oxford University Press, 1992.
• Levy, Leonard W. et al., (eds.). Encyclopedia of the American Constitution. 5 vol; 1992.

Secondary sources

• Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2005. ISBN 1400062624
• Anastaplo, George. Reflections on Constitutional Law.University Press of Kentucky, 2006. ISBN 0813191564
• Beard, Charles. An Economic Interpretation of the Constitution of the United States. Dover Publications, 2004. ISBN 978-0486433653
• Beeman, Richard R., Stephen Botein, and Edward C., Carter, II (eds.). Beyond Confederation: Origins of the Constitution and American National Identity. University of North Carolina Press, 1987. ISBN 978-0807841723
• Casey, Gregory. «The Supreme Court and Myth: An Empirical Investigation,» Law & Society Review, 8(3) (Spring, 1974): 385–420.
• Countryman, Edward (ed.). What Did the Constitution Mean to Early Americans. Bedford/St. Martin’s, 1999. ISBN 0312182627
• Edling, Max M. A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State. Oxford University Press, 2003. ISBN 0195148703
• Ely, James W., Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. Oxford University Press, 1992.
• Fallon, Richard H. The Dynamic Constitution: An Introduction to American Constitutional Law. Cambridge University Press, 2004. ISBN 0521840945
• Finkelman, Paul. Slavery and the Founders: Race and Slavery in the Age of Jefferson. M.E. Sharpe, 2001. ISBN 978-0765604392
• Hoffer, Peter Charles. The Law’s Conscience: Equitable Constitutionalism in America. University of North Carolina Press, 1990. ISBN 978-0807842942
• Irons, Peter. A People’s History of the Supreme Court. Penguin, 2000. ISBN 978-0143037385
• Kammen, Michael. A Machine that Would Go of Itself: The Constitution in American Culture. New York: Alfred A. Knopf, 1986. ISBN 0394529057
• Kelly, Alfred Hinsey, Winfred Audif Harbison, and Herman Belz. The American Constitution: its origins and development. New York: Norton & Co., 1991. ISBN 0393961192
• Kersch, Ken I. Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. Cambridge University Press, 2004. ISBN 978-0521010559
• Klos, Stanley L. President Who? Forgotten Founders. Pittsburgh, PA: Evisum, Inc., 2004. ISBN 0975262750
• Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995. U. Press of Kansas, 1998. ISBN 978-0700609314
• Levin, Daniel Lessard. Representing Popular Sovereignty: The Constitution in American Political Culture. State University of New York Press, 1999. ISBN 978-0791441060
• Licht, Robert A. (ed.). The Framers and Fundamental Rights. American Enterprise Inst. Press, 1992. ISBN 978-0844737881
• Marshall, Thurgood, «The Constitution: A Living Document,» Howard Law Journal 1987: 623-28.
• Mazzone, Jason. «The Creation of a Constitutional Culture» Tulsa Law Review 40(4) (2005): 671.
• Powell, H. Jefferson. A Community Built on Words: The Constitution in History and Politics. University of Chicago Press, 2005. ISBN 978-0226677248
• Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Vintage, 1997. ISBN 978-0679781219
• Sandoz, Ellis. A Government of Laws: Political Theory, Religion, and the American Founding. University of Missouri Press, 2001. ISBN 978-0826213600
• Sheldon, Charles H. Essentials of Constitutional Law: The Supreme Court and the Fundamental Law 2001. ISBN 0813368553
• Smith, Jean Edward, and Herbert M. Levine. Civil Liberties & Civil Rights Debated. Englewood Cliffs, NJ: Prentice Hall, 1988. ISBN 978-0131349667
• Smith, Jean Edward. The Constitution and American Foreign Policy. St. Paul, MN: West Publishing Company, 1988. ISBN 978-0314423177
• VanBurkleo, Sandra F., Kermit L. Hall, and Robert J. Kaczorowski (eds.). Constitutionalism and American Culture: Writing the New Constitutional History. University Press of Kansas, 2002. ISBN 978-0700611546
• White, G. Edward. The Constitution and the New Deal. Harvard University Press, 2002. ISBN 978-0674008311
• Wiecek, William M. «The Witch at the Christening: Slavery and the Constitution’s Origins,» Leonard W. Levy and Dennis J. Mahoney (eds.), The Framing and Ratification of the Constitution. Macmillan, 1987, 178-184.

External links

All links retrieved December 27, 2020.

• Constitution of the United States The National Archives
• United States Constitution and related resources Library of Congress
• U.S. Constitution Annotated by the Congressional Research Service of the U.S.

United States Constitution
Formation	History • Articles of Confederation • Annapolis Convention • Philadelphia Convention • New Jersey Plan • Virginia Plan • Connecticut Compromise • Signatories • Massachusetts Compromise • Federalist Papers
Amendments	Bill of Rights • Ratified • Proposed • Unsuccessful • Conventions to propose • State ratifying conventions
Clauses	Appointments • Case or controversy • Citizenship • Commerce • Confrontation • Contract • Copyright • Due Process • Equal Protection • Establishment • Exceptions • Free Exercise • Full Faith and Credit • Impeachment • Natural–born citizen • Necessary and Proper • No Religious Test • Presentment • Privileges and Immunities (Art. IV) • Privileges or Immunities (14th Amend.) • Speech or Debate • Supremacy • Suspension • Takings Clause • Taxing and Spending • Territorial • War Powers
Interpretation	Theory • Congressional enforcement • Double jeopardy • Dormant commerce clause • Enumerated powers • Executive privilege • Incorporation of the Bill of Rights • Nondelegation • Preemption • Separation of church and state • Separation of powers

United States Constitution
Page one of the original copy of the Constitution
Created	September 17, 1787
Ratified	June 21, 1788
Location	National Archives, Washington, D.C.
Authors	twelve state delegations in Philadelphia Convention
Signatories	39 of the 55 Philadelphia Convention delegates
Purpose	National constitution to replace the Articles of Confederation

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.

The first three Articles of the Constitution establish the three branches of the national government: a legislature, the bicameral Congress; an executive branch led by the President; and a judicial branch headed by the Supreme Court. They also specify the powers and duties of each branch. All powers not enumerated are reserved to the respective states and the people, thereby establishing the federal system of government.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of «The People». It has been amended twenty-seven times; the first ten amendments are known as the Bill of Rights.^[1][2]

The United States Constitution is the oldest written constitution (when defined as a single document) still in use by any nation in the world.^[3] Parts of San Marino’s Constitution are older, dating to the 1600s.^[4][5] It holds a central place in United States law and political culture.^[6] The handwritten original document penned by Jacob Shallus is on display at the National Archives and Records Administration in Washington, D.C.

1. History : Convention

James Madison James Wilson

2. Original text : three branches

Old House Wing President’s House

3. Amendments : procedure

House-proposal Senate-forwarded

4. Judicial review : establishment

John Marshall Joseph Story

5. “Civic religion” : The Shrine

The Archives The Rotunda

6. Worldwide : national Constitutions

Jose Rizal Sun Yat-sen

History

First government

The Articles of Confederation and Perpetual Union were the first constitution of the United States of America.^[7] The problem with the United States government under the Articles of Confederation was, in the words of George Washington, «no money».^[8]

Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back.^[8] Under the Articles, Congress requisitioned money from the states. But no state paid all of their requisition; Georgia paid nothing. A few states paid the U.S. an amount equal to interest on the national debt owed to their citizens, but no more.^[8] Nothing was paid toward the interest on debt owed to foreign governments. By 1786 the United States was about to default on its contractual obligations when the principal came due.^[8]

The United States could not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-man U.S. Army were deployed facing British forts on American soil. The troops had not been paid; some were deserting and the remainder threatened mutiny.^[9] Spain closed New Orleans to American commerce. The United States protested, to no effect. The Barbary Pirates began seizing American commercial ships. The Treasury had no funds to pay the pirates’ extortion demands. The Congress had no more credit if another military crisis had required action.^[8]

The states were proving inadequate to the requirements of sovereignty in a confederation. Although the 1783 Treaty of Paris had been made between Great Britain and the United States with each state named individually, individual states violated their peace treaty with Britain. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands over the protests of both Great Britain and the Articles Congress.^[8]

In Massachusetts during Shays’ Rebellion, Congress had no money to support a constituent state, nor could Massachusetts pay for its own internal defense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteer army.^[11] During the upcoming Convention, James Madison angrily questioned whether the Articles of Confederation was a “solemn compact” or even government. Connecticut had not only sent none of its requisition, it had “positively refused» to pay Confederation assessments for two years.^[12]A rumor had it that a «seditious party» among the New York legislature had opened communication with the Viceroy of Canada. To the south, the British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.^[13]

Congress was paralyzed. It could do nothing significant without nine states, and some legislative business required all thirteen. By April 1786 there had been only three days out of five months with nine states present. When nine states did show up, and there was only one member of a state on the floor, then that state’s vote did not count. If a delegation were evenly divided, the division was duly noted in the Journal, but there was no vote from that state towards the procedural nine-count requirement.^[14] Individual state legislatures independently laid embargoes, negotiated unilaterally abroad, provided for armies and made war, all violating the letter and the spirit of the Articles of Confederation and Perpetual Union. The Articles Congress had “virtually ceased trying to govern.”^[15]

The vision of a «respectable nation» among nations seemed to be fading in the eyes of such men as Virginia’s George Washington and James Madison, New York’s Alexander Hamilton and John Jay, Pennsylvania’s Benjamin Franklin and George Clymer and Massachusetts’ Henry Knox and Rufus King. The dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.^[16]

Convention

Twelve state legislatures, Rhode Island being the only exception, sent delegates to convene at Philadelphia in May 1787.^[17] While the resolution calling the Convention specified that its purpose was to propose amendments to the Articles, through discussion and debate it became clear by mid-June that the Convention would propose a Constitution with a fundamentally new design.^[18]

Sessions

In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.^[17] The plan called on each state legislature to send delegates to a convention “’for the sole and express purpose of revising the Articles of Confederation’ in ways that, when approved by Congress and the states, would ‘render the federal constitution adequate to the exigencies of government and the preservation of the Union.’”^[19]

the nationalists organize

George Wythe, Va Chair, Rules Committee delegates consult, not states

To amend the Articles into a workable government, 74 delegates from the twelve states were named by their state legislatures; 55 showed up, and 39 eventually signed. ^[20] On May 3rd, eleven days early, James Madison arrived to Philadelphia and met with James Wilson of the Pennsylvania delegation to plan strategy. Madison outlined his plan in letters that (1) State legislatures each send delegates, not the Articles Congress. (2) Convention reaches agreement with signatures from every state. (3) The Articles Congress approves forwarding it to the state legislatures. (4) The state legislatures independently call one-time conventions to ratify, selecting delegates by each state’s various rules of suffrage. The Convention was to be «merely advisory» to the people voting in each state.^[21]

Convening

George Washington arrived on time, Sunday, the day before scheduled opening. His participation lent his prestige to the proceedings, attracting some of the best minds in America.^[22] For the entire duration of the Convention, Washington was a guest at the home of Robert Morris, Congress’ financier for the American Revolution and a Pennsylvania delegate. William Jackson, in two years to be the president of the Society of the Cincinnati, had been Morris’ agent in England for a time. He won election as a non-delegate to be the Convention Secretary over Benjamin Franklin’s grandson. Morris entertained among the delegates lavishly.

The convention was scheduled to open May 14, but only Pennsylvania and Virginia delegations were present. The Convention was postponed until a quorum of seven states gathered on Friday the 25th.^[23]

George Washington was elected the Convention president, and Chancellor (judge) George Wythe (Va) was chosen Chair of the Rules Committee. The rules of the Convention were published the following Monday.^[24] Nathaniel Gorham (Ma) was elected Chair of the «Committee of the Whole», a parliamentary situation where individuals spoke freely, and votes could be retaken to allow for bargaining. Provisions in the draft articles were repeatedly made, reconnected and remade as the order of business proceeded. The Convention officials and procedures were in place before arrival of nationalist opponents such as John Lansing (NY) and Luther Martin (Md).^[25] By the end of May, the stage was set.

The Constitutional Convention voted to keep the debates secret so that the delegates could speak freely, negotiate, compromise and change. Both House of Commons and the colonial assemblies were secret. Debates of the Articles Congress were not reported. Yet since the proposal was for fundamental change from a confederation to a new, consolidated yet federal government, the surprise itself made Convention secrecy a major issue in the very public debates leading up to the crowd-filled ratification conventions.^[26] Nevertheless, delegates continued in positions of public trust. Of those participating in the Convention, ten members would also number in the 33 chosen by their state legislatures for the Articles Congress that September.^[27]

Members of Convention signers, refusers, absent
Order	Name	State represented
1	George Washington	Virginia
2	George Read [a]	Delaware
3	Gunning Bedford, Jr.	Delaware
4	John Adams Dickinson [b]	Delaware
5	Richard Bassett	Delaware
6	Jacob Broom	Delaware
7	James McHenry	Maryland
8	Daniel of St. Thomas Jenifer	Maryland
9	Daniel Carroll [b]	Maryland
10	John Blair	Virginia
11	James Madison, Jr.	Virginia
12	William Blount	North Carolina
13	Richard Dobbs Spaight	North Carolina
14	Hugh Williamson	North Carolina
15	John Rutledge	South Carolina
16	Charles Cotesworth Pinckney	South Carolina
17	Charles Pinckney	South Carolina
18	Pierce Butler	South Carolina
19	William Few	Georgia
20	Abraham Baldwin	Georgia
21	John Langdon	New Hampshire
22	Nicholas Gilman	New Hampshire
23	Nathaniel Gorham	Massachusetts
24	Rufus King	Massachusetts
25	William Samuel Johnson	Connecticut
26	Roger Sherman [a][b][c]	Connecticut
27	Alexander Hamilton	New York
28	William Livingston	New Jersey
29	David Brearley	New Jersey
30	William Paterson	New Jersey
31	Jonathan Dayton	New Jersey
32	Benjamin Franklin [a]	Pennsylvania
33	Thomas Mifflin	Pennsylvania
34	Robert Morris [a][b]	Pennsylvania
35	George Clymer [a]	Pennsylvania
36	Thomas FitzSimons	Pennsylvania
37	Jared Ingersoll	Pennsylvania
38	James Wilson [a]	Pennsylvania
39	Gouverneur Morris [b]	Pennsylvania
40n	Elbridge Gerry refused	Massachusetts
41n	George Mason refused	Virginia
42n	Edmund Randolph refused	Virginia
43n	William Davie absent	North Carolina
44n	Oliver Ellsworth absent	Massachusetts
45n	William Houston absent	New Jersey
46n	William Houstoun absent	Georgia
47n	John Lansing absent	New York
48n	Alexander Martin absent	North Carolina
49n	Luther Martin absent	Maryland
50n	James McClurg absent	Virginia
51n	John Mercer absent	Maryland
52n	William Pierce absent	Georgia
53n	Caleb Strong absent	Massachusetts
54n	George Wythe absent	Virginia
55n	Robert Yates absent	New York

Outside the Convention in Philadelphia, there was a national convening of the Society of the Cincinnati. Washington was said to be embarrassed. The 1776 “old republican” delegates like Elbridge Gerry (Ma) found anything military or hereditary anathema. The Presbyterian Synod of Philadelphia and New York convention was meeting to redefine its Confession, dropping the faith requirement for civil authority to prohibit false worship.^[28] Protestant Episcopalian Washington attended a Roman Catholic Mass and dinner.^[29] Revolution veteran Jonas Phillips, of the Mikveh Israel Synagogue, petitioned the Convention to avoid a national oath for both Old and New Testaments.^[30] Merchants of Providence, Rhode Island, petitioned for consideration, even though their Assembly had not sent a delegation. Congregational minister Manasseh Cutler, former Army chaplain from Massachusetts arrived into town from New York, flush with his lobbying victory during the Northwest Ordnance negotiations in the Articles Congress. He carried grants of five million acres to parcel out among The Ohio Company and “speculators”, some of whom would be found among the delegates.^[31] Noah Webster staying in Philadelphia, would write a pamphlet as “A Citizen of America” in October. Immediately after the signing, «Leading Principles of the Federal Convention» advocated adoption of the Constitution. It was published much earlier and more widely circulated than today’s better known Federalist Papers.^[32]

Agenda

Every few days, new delegates arrived, happily noted in Madison’s Journal. But as the Convention went on, individual delegate coming and going meant that a state’s vote could change with the change of delegation composition. The volatility added to the inherent difficulties, making for an “ever-present danger that the Convention might dissolve and the entire project be abandoned.”^[33]

nationalist floor leaders from biggest states most speeches, they seconded one another’s motions

James Madison, Va strategy, comparative study ‘Father of the Constitution’ James Wilson, Pa westerly practice, lands ”unsung hero of Convention”

Although twelve states sent delegations, there were never more than eleven represented in the floor debates, often fewer. State delegations absented themselves at votes different times of day. There was no minimum for a state delegation; one would do. Daily sessions would have thirty members present. Members came and went on public and personal business. The Articles Congress was meeting at the same times so members would absent themselves to New York City on Congressional business for days and weeks at a time.^[34]

But the work before them was continuous, even if attendance was not. The Convention resolved itself into a “Committee of the Whole”, and could remain so for days. It was informal, votes could be taken and retaken easily, positions could change without prejudice, and importantly, no formal quorum call was required. The nationalists were resolute. As Madison put it, the situation was too serious for despair. ^[35]

They used the same State House as the Declaration signers. The building setback from the street was still dignified, but the “shaky” steeple was gone. The summer was hot, but city hand-pump wells were nearby. Flies were thick and nearby building construction made the street noisy. Sessions followed the customary six-day work week. Breakfast was before sunup. The Hall was still cool at ten, but hot by noon. Delegates sweltered in the closed room for secrecy, sentries kept passers-by from under the windows. After three, Delegates usually adjourned for dinner, or escaped into the green countryside, or along miles of riverside quays for offshore breezes.^[36] When they adjourned each day, they lived in nearby lodgings, as guests, roomers or renters. They ate supper with one another in town and taverns, “often enough in preparation for tomorrow’s meeting.”^[37]

national plans v. federal plans re-constitution of a republican legislature

William Paterson, NJ unicameral: elected by states states and congress equal Benj: Franklin, American unicameral: people only elect populations equal Roger Sherman, Ct Senate: states; House: people: Great Compromise

Delegates reporting to the Convention presented their credentials to the Secretary, Major William Jackson of South Carolina. The state legislatures of the day used these occasions to say why they were sending representatives abroad. New York thus publically enjoined its members to pursue all possible “alterations and provisions” for good government and “preservation of the Union”. New Hampshire called for “timely measures to enlarge the powers of Congress”. Virginia stressed the “necessity of extending the revision of the federal system to all its defects”. ^[38]

On the other hand, Delaware categorically forbade any alteration of the Articles one-state, equal vote, one-vote-only provision in the Articles Congress.^[39] The Convention would have a great deal of work to do to reconcile the many expectations in the chamber. At the same time, delegates wanted to finish their work by fall harvest and its commerce.^[40]

Current knowledge of drafting the Constitution comes primarily from the Journal left by James Madison,^[41] It can be found chronologically incorporated in “The Records of the Federal Convention of 1787”, edited by Max Farrand, available online. ^[42] The source documents are organized by date including those from the Convention Journal, Rufus King (Ma), and James McHenry (Md), along with later Anti-federalists Robert Yates (NY), and William Paterson (NJ). Farrand corrects errors among revisions that Madison made to his Journal while in his seventies.^[43]

The Virginia Plan^[41] proposed by Governor Edmund Randolph (Va) was the unofficial agenda for the Convention. It was weighted toward the interests of the larger, more populous states. Provisions of this «Randolph Plan» including the following: (1) A bicameral legislature of a House proportioned to population and variable state representation in a Senate (2) An executive chosen by the national legislature, (3) A judiciary, with life-terms of service and vague powers, (4) The national legislature would be able to veto state laws.^[44]

An alternative proposal, William Paterson’s New Jersey Plan, contained proposals geared toward smaller states: (1) A unicameral national legislature with each state legislature sending an equal number to represent it, (2) An executive branch appointed by the legislature, and (3) A judicial branch appointed by the executive.^[45]

Slavery in debate

The contentious issue of slavery was too controversial to be resolved during the Convention. The issue of slavery, although always an undercurrent during deliberations and side-discussions, was at center stage in the Convention three times, June 7 regarding who would vote for Congress, June 11 in debate over how to proportion relative seating in the ‘house’, and August 22 relating to commerce and the future wealth of the nation.

slavery issue in Convention: regulation, not abolition

John Dickinson, De abolitionist, Gov in De & Pa national in 20 yrs, maybe

Eighteenth Century America had the widest franchise of any nation of the world. But it was a society of its time. Property gave a man “a stake in society, made him responsible, worthy of a voice, and with enough taxable property, eligible for office holding. Many could vote because most property was held as family farms. Though a substantial part of wealthy white America rested on slavery as property, the Convention met, not to reform society, but to create government for society as it existed. In determining who should vote, the property requirements among the states could not be reconciled. Pennsylvania, Delaware and New Hampshire were already for abolishing property requirements. To allow all states their own rules of suffrage, the Constitution was written with no property requirements. Slavery was taken out of that equation after the debate June 7. ^[46]

Once the Convention turned to how to proportion the House representation, tempers among several delegates exploded over slavery again. If the number of seats depended on wealth, Pierce Butler (SC) wanted to include slaves. Elbridge Gerry (Ma) answered that the South could not have it both ways, if slaves were property and to be counted for Congress, then the North could count horses and cows. The attacks turned pointedly personal. Benjamin Franklin (Pa) interrupted with a speech about dividing up Pennsylvania so state populations were more nearly equal. He took some time. No vote was taken, tempers cooled, and the three-fifths non-free population count proposed by J. Wilson (Pa) passed using the Articles Congress “federal ratio”.^[47]

On August 6, the Committee of Detail reported its revisions to the Randolph Plan. A preamble was drafted. Delegates turned their thoughts to political economy that might best secure the public welfare and general happiness in the long run, for posterity. Again the question of slavery came up, and again it was met with attacks of moral outrage, relative poverty of the whites, and they were answered by appeals to local wealth by local means, and southern delegates inability to carry ratification in their states if slavery were threatened. By August 22, the delegates wove a web of mutual compromises relating to commerce and trade, north and south, port-states and landlocked, slave-holding, and free, relating to navigation laws, import taxes, population counts, national regulation of western territories and trade on the Mississippi. The transfer of power to regulate slave trade from states to central government could happen in 20 years, but only if there were national majorities for it both among the states in the ‘senate’ and among the people in the ‘house’, when it came time, then.^[48] Later generations could try out their own answers. The delegates were trying to make a government that might last that long.^[49]

The Constitution’s Section 9 of Article I allowed the continued “migration” of the free or “importation” of indentures and slaves as the states chose, defining slaves as persons, not property. Article 1, section 2, provided for long-term power to flow to states with increasing population, away from those decreasing. That change would be counted in a census every ten years. Apportionment in the House of Representatives would not be by any wealth as initially allowed in the Randolph Plan. It would be representing people, the count to be made of the free citizens and other persons. ^[51] To the whole number of men and women, free and indentured, would be added “three-fifths” the number of “other persons”, meaning propertyless slaves and taxed Indian farming families.^[52]

Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. As the date neared in 1806, President Thomas Jefferson sent a message to the House and Senate congratulating the 9th Congress on their constitutional opportunity to remove U.S. citizens from the transatlantic slave trade which was perpetrating “violations of human rights … on the unoffending inhabitants of Africa”.^[53] Signed into law March 3, 1807, The «Act Prohibiting Importation of Slaves» took effect the fist instant the Constitution allowed, January 1, 1808. The United States would join the British Parliament, that year in the first “international humanitarian campaign”.^[54]

Just as the abolitionist George Mason refused to sign the Constitution, in the ratification conventions of Massachusetts and Virginia, the anti-slavery delegates began as anti-ratification votes. Still, the Constitution «as written» was an improvement over the Articles from an abolitionist point of view. In the Massachusetts Ratification Convention, Federalist anti-slavery delegate Isaac Backus confronted abolitionist Anti-Federalist Thomas Dawes. Trying to gain his support for adoption, he reasoned that the Constitution provided for abolition of the slave trade but the Articles did not. Sometimes those opposed to slavery were persuaded that the evils of a broken Union would bring worse consequences than allowing the fate of slavery to be determined gradually over time. ^[55] Sometimes contradictions among opponents were used to try to gain abolitionist converts. In Virginia’s Ratification Convention, Federalist George Nicholas dismissed fears on both sides. Objections to the Constitution were inconsistent, “At the same moment it is opposed for being promotive and destructive of slavery!” ^[56] But the contradiction was never resolved peaceably, and the failure to do so contributed to the Civil War.^[57]

«Great Compromise»

Roger Sherman (CT), although something of a political broker in Connecticut, was an unlikely leader in the august company of the Convention.^[58] Arriving right behind the nationalist leaders on May 30, Sherman was reported to prefer a “patch up” of the existing Confederacy.^[59] Another small state delegate, George Read (DE) agreed with the nationalists that state legislatures were a national problem. But rather than see larger states overshadow the small, he’d prefer to see all state boundaries erased. Big-state versus small-state antagonisms hardened early.^[60]

On June 11, Roger Sherman proposed his first version of the Convention’s “Great Compromise”. It was like the proposal he made in the 1776 Continental Congress. Representation in Congress should be both by states and by population. There, he was voted down by the small states in favor of all states equal, one vote only.^[61] Now in 1787 Convention, he wanted to balance all the big-state victories for population apportionment. He proposed that in the second ‘senate’ branch of the legislature, each state should be equal, one vote and no more.^[62] Sherman argued that the bicameral British Parliament had a House of Lords equal with the House of Commons to protect their propertied interests apart from the people. He was voted down, this time by the big states.^[63] The motion for equal state representation in a ‘senate’ failed: 6 against, 5 for.^[64]

«men of original principles» equality of the states

George Read, De if not state equality erase state boundaries Gunning Bedford, De if not state equality, get a foreign power of “good faith” Elbridge Gerry, Ma if not state equality, a foreign power will conquer us

Friday, June 15 Paterson introduced his New Jersey Plan. The “old patriots” of 1776 and the “men of original principles” had organized.^[65] Roger Sherman (Ct), a signer of the Declaration of Independence, was with them. John Lansing (NY) observed that the Paterson Plan “sustained the sovereignty of the states”, while that of Mr. Randolph destroyed state sovereignty in a national, consolidated government. William Paterson (NJ) attacked the nationalists. The Convention had no authority to propose anything not sent up from state legislatures, and the states were not likely to adopt anything new. James Wilson (PA) answered, The Convention could not conclude anything, but it could recommend anything.^[66]

Lansing (NY) had objected that if the New York legislature knew anything about proposals for consolidated government, it would not have sent anyone. Edmund Randolph (Va) countered, With the salvation of the American republic at stake, it would be treason to withhold any proposal believed necessary for good government and the Union.^[67] Three sessions after its introduction, Paterson’s plan was off the table. It failed : 7 against, 3 for, 1 divided.^[68] For nearly a month there was no progress; small states were seriously thinking of walking out of the Convention.^[69]

In a related resolution, the «original principles» men won a victory on June 25. The ‘senate’ would be chosen by the state legislatures, not the people, passed: 9 for, 2 against. ^[70] On June 27, the basis of representation for both the ‘house’ and the ‘senate’ re-surfaced. Roger Sherman (Ct) tried a second time to get his idea for a ‘house’ on the basis of population and a ‘senate’ on an equal states basis. The big state delegates beat him again. The ‘house’ would be chosen directly by the population voting. On the motion for equal state representation in the ‘senate’, the majority simply adjourned “before a determination was taken in the House.” ^[71] Luther Martin (Md) insisted that he would rather live under a regional government than submit to a United States under the Randolph Plan.^[72]

Sherman’s proposal came again two days later for the third time from Oliver Ellsworth (CT). In the ‘senate’, the states should have equal representation. If this cannot be agreed to, somehow, the union of states would end up separated. Wilson (Pa) countered, the purpose of population apportionment was not to make big states powerful, it was to “tear down a rotten house” of equal state representation.^[73] Gunning Bedford (DE) spoke hotly, “I do not, gentlemen, trust you.” If the equal-state principle was lost, the small states could confederate with a foreign power showing “more good faith”. Elbridge Gerry (MA) warned, If the states cannot unite themselves, being conquered by “some foreign sword will probably do the work for us”.^[74] On June 29, the majority running things, the Convention adjourned “before a determination was taken in the House.” on the question of equal state representation.^[75]

On July 2, the Convention for the fourth time considered a ‘senate’ with equal state votes. This time a vote was taken, but it stalled again, tied at 5 yes, 5 no, 1 divided. The Convention elected one delegate from each state onto a Committee to make a proposal; it reported July 5.^[76] Nothing changed over five days. July 10, Lansing and Yates (NY) quit the Convention in protest.^[77] No direct vote on the basis of ‘senate’ representation was pushed on the floor for another week.

But the first new ‘house’ seat apportionment was agreed, balancing big and small, north and south. The big states got a decennial census for ‘house’ apportionment to reflect their future growth. Northerners had insisted on counting only free citizens for the ‘house’; southern delegations wanted to add property. Benjamin Franklin’s compromise was that there would be no “property” provision to add representatives, but states with large slave populations would get a bonus added to their free persons by counting three-fifths other persons.^[78]

On July 16, Sherman’s “Great Compromise” prevailed on its fifth try. Every state was to have equal numbers in the United States Senate.^[79] Washington ruled it passed on the vote 5 yes, 4 no, 1 divided, using precedent established in the Convention earlier.^[80] Now some of the big-state delegates talked of walking out, but none did. Debate over the next ten days developed an agreed general outline for the Constitution.^[81] Small states readily yielded on many questions. Most remaining delegates, big-state and small, now felt safe enough to chance a new plan.^[82]

Two new branches

The Constitution innovated two branches of government that were not a part of the U.S. government during the Articles of Confederation. Previously, a thirteen member committee had been left behind when Congress adjourned to carry out the «executive» functions. Suits between states were referred to the Articles Congress, and treated as a private bill to be determined by majority vote of members attending that day.

President, the national «chief magistrate»

John Dickinson, De for one-person president

On June 7, the “national executive” was taken up in Convention. The “chief magistrate”, or ‘presidency’ was of serious concern for a formerly colonial people fearful of concentrated power in one person. But to secure a «vigorous executive», nationalist delegates such as James Wilson (Pa), Charles Pinckney (SC), and John Dickenson (De) favored a single officer. They had someone in mind whom everyone could trust to start off the new system, George Washington.

After introducing the item for discussion, there was a prolonged silence. Benjamin Franklin (Pa) and John Rutledge (SC) had urged everyone to speak their minds freely. When addressing the issue with George Washington in the room, delegates were careful to phrase their objections to potential offenses by officers chosen in the future who would be ‘president’ «subsequent» to the start-up. Roger Sherman (Ct), Edmund Randolph (Va) and Pierce Butler^[83] (SC) all objected, preferring two or three persons in the executive, as had the ancient Roman Republic.

Nathaniel Gorham was Chair of the Committee of the Whole. The vote for a one-man ‘presidency’ carried 7-for, 3-against, New York, Delaware and Maryland in the negative. George Washington, sitting in the Virginia delegation, voted yes. With that vote for a single ‘presidency’, George Mason (Va) gravely considered the Confederation’s “federal government as in some measure dissolved by the meeting of this Convention.” ^[84]

Judiciary, the national court(s)

Rufus King, Ma district court = variation regional court, fewer appeals

The Convention was following the Randolph Plan, taking each resolve in turn when it moved forward. They returned to items when overnight coalitions required adjustment to previous votes to secure a majority on the next item of business. June 19, the Ninth Resolve on the national court system, and the nationalist proposal for the inferior (lower) courts.

Pure 1776 republicanism had not given much credit to judges, who would set themselves up apart from and sometimes contradicting the state legislature, the voice of the sovereign people. Under the precedent of English Common Law according to William Blackstone, the legislature, following proper procedure, was for all constitutional purposes, “the people.” This dismissal of unelected officers sometimes took an unintended turn among the people. One of John Adams clients believed the First Continental Congress in 1775 had assumed the sovereignty of Parliament, and so abolished all previously established courts in Massachusetts.^[85]

In the Convention, looking at a national system, Judge Wilson (Pa) sought appointments by a single person to avoid legislative payoffs. Judge Rutledge (SC) was against anything but one national court, a Supreme Court to receive appeals from the highest state courts, like the South Carolina court he presided over as Chancellor. Rufus King (Ma) thought national district courts in each state would cost less than appeals that otherwise would go to the ‘supreme court’ in the national capital. National inferior courts passed but making appointments by ‘congress’ was crossed out and left blank so the delegates could take it up later after “maturer reflection.” ^[86]

Re-allocate power

The Constitutional Convention created a new, unprecedented form of government by reallocating powers of government. Every previous national authority had been either a centralized government, or a “confederation of sovereign constituent states.” The American power-sharing was unique at the time. The sources and changes of power were up to the states. The foundations of government and extent of power came from both national and state sources. But the new government would have a national operation. ^[87] To meet their goals of cementing the Union and securing citizen rights, Framers allocated power among executive, senate, house and judiciary of the central government. But each and every state government in their variety continued exercising powers in their own sphere.^[88]

Increase Congress

The Convention did not start with national powers from scratch, it began with the powers already vested in the Articles Congress with control of the military, international relations and commerce.^[89] The Constitution added ten more. Five were minor relative to power sharing, including business and manufacturing protections.^[90] One important new power authorized Congress to protect states from the “domestic violence” of riot and civil disorder, but it was conditioned by a state request. ^[91]

The Constitution increased Congressional power to organize, arm and discipline the state militias, to use them to enforce the laws of Congress, suppress rebellions within the states and repel invasions. But the Second Amendment would ensure that Congressional power could not be used to disarm state militias.^[92]

Taxation substantially increased the power of Congress relative to the states. It was limited by restrictions, forbidding taxes on exports, per capita taxes, requiring import duties to be uniform and that taxes be applied to paying U.S. debt. But the states were stripped of their ability to levy taxes on imports, which was at the time, “by far the most bountiful source of tax revenues”.

Congress had no further restrictions relating to political economy. It could institute protective tariffs, for instance. Congress overshadowed state power regulating interstate commerce; the United States would be the “largest area of free trade in the world.” ^[93] The most undefined grant of power was the power to “make laws which shall be necessary and proper for carrying into execution” the Constitution’s enumerated powers.^[94]

Limit governments

As of ratification, sovereignty was no longer to be theoretically indivisible. With a wide variety of specific powers among different branches of national governments and thirteen republican state governments, now «each of the portions of powers delegated to the one or to the other … is … sovereign with regard to its proper objects«.^[95] There were some powers that remained beyond the reach of both national powers and state powers,^[96] so the logical seat of American “sovereignty” belonged directly with the people-voters of each state.^[97]

Besides expanding Congressional power, the Constitution limited states and central government. Six limits on the national government addressed property rights such as slavery and taxes.^[98] Six protected liberty such as prohibiting ex post facto laws and no religious tests for national offices in any state, even if they had them for state offices.^[99] Five were principles of a republic, as in legislative appropriation.^[100] These restrictions lacked systematic organization, but all constitutional prohibitions were practices that the British Parliament had “legitimately taken in the absence of a specific denial of the authority.” ^[101]

The regulation of state power presented a “qualitatively different” undertaking. In the state constitutions, the people did not enumerate powers. They gave their representatives every right and authority not explicitly reserved to themselves. The Constitution extended the limits that the states had previously imposed upon themselves under the Articles of Confederation, forbidding taxes on imports and disallowing treaties among themselves, for example.^[102]

In light of the repeated abuses by ex post facto laws passed by the state legislatures, 1783-1787, the Constitution prohibited ex post facto laws and bills of attainder to protect United States citizen property rights and right to a fair trial. Congressional power of the purse was protected by forbidding taxes or restraint on interstate commerce and foreign trade. States could make no law “impairing the obligation of contracts.”^[103] To check future state abuses the framers searched for a way to review and veto state laws harming the national welfare or citizen rights. They rejected proposals for Congressional veto of state laws and gave the Supreme Court appellate case jurisdiction over state law because the Constitution is the supreme law of the land.^[104] The United States had such a geographical extent that it could only be safely governed using a combination of republics. Federal judicial districts would follow those state lines.^[105]

Population power

The British had relied upon a concept of “virtual representation” to give legitimacy to their House of Commons. It was not necessary to elect anyone from a large port city, or the American colonies, because the representatives of “rotten boroughs”, the mostly abandoned medieval fair towns with twenty voters, «virtually represented» thriving mercantile ports such as Birmingham’s tens of thousands. Philadelphia in the colonies was second in population only to London.^[106]

They were all Englishmen, supposed to be a single people, with one definable interest. Legitimacy came from membership in Parliament of the sovereign realm, not elections from people. As Blackstone explained, the Member is “not bound … to consult with, or take the advice, of his constituents.” As Constitutional historian Gordon Wood elaborated, “The Commons of England contained all of the people’s power and were considered to be the very persons of the people they represented.” ^[107]

While the English “virtual representation” was hardening into a theory of Parliamentary sovereignty, the American theory of representation was moving towards a theory of sovereignty of the people. In their new constitutions written since 1776, Americans required community residency of voters and representatives, expanded suffrage, and equalized populations in voting districts. There was a sense that representation “had to be proportioned to the population.” ^[108] The Convention would apply the new principle of «sovereignty of the people» both to the House of Representatives, and to the United States Senate.

House changes. Once the Great Compromise was reached, delegates in Convention then agreed to a decennial census to count the population. The Americans themselves did not allow for universal suffrage for all adults.^[109] Their sort of «virtual representation» said that those voting in a community could understand and themselves represent non-voters when they had like interests that were unlike other political communities. There were enough differences among people in different American communities for those differences to have a meaningful social and economic reality. Thus New England colonial legislatures would not tax communities which had not yet elected representatives. When the royal governor of Georgia refused to allow representation to be seated from four new counties, the legislature refused to tax them.^[110]

The 1776 Americans had begun to demand expansion of the franchise, and in each step, they found themselves pressing towards a philosophical “actuality of consent.” ^[111] The Convention determined that the power of the people, should be felt in the House of Representatives. Regardless of state heritage, militias or amassed wealth they would be counted, increasing and decreasing in their state communities. They would be counted by populations^[112] every ten years, the decennial census.

Senate changes. The Convention found that it was harder trying to give expression to the will of the people in new states. Virginia Resolves ‘ten’ was agreed to without dissent, “that provision ought to be made for the admission of States lawfully arising within the limits of the United States.” Then the debate began as to what state, if any, might be “lawfully arising” states outside the boundaries of the existing confederated thirteen states. ^[113]

The new government was like the old, to be made up of pre-existing states. Now there was to be admission of new states. Regular order would provide new states by state legislatures for Kentucky out of Virginia, Tennessee from North Carolina, Maine of Massachusetts. But the Articles Congress by its Northwest Ordnance presented the Convention another issue by its promise to settlers in the Northwest Territory. Land was sold to them by contract, they were to have all rights of U.S. citizenship, and they might one day constitute themselves into “no more than five” states. More difficult still, most delegates anticipated adding alien peoples of Canada, Louisiana and Florida to United States territory.^[114]

G. Morris (Pa) was reluctant to expand into any so “remote wilderness”, it would retard the commercial development of the east. Western peoples were the least desirable, least governable he knew. He would bar them from statehood forever, make them into perpetual provinces. He did not have the votes in Convention, but he made it possible in the future by giving Congress power to regulate and dispose of U.S. territory or other property.^[115] For Elbridge Gerry (Ma), any new unknown states could be a majority in the Senate when they outnumbered the original thirteen states, and that would be intolerable. They would feel their power and abuse it, they would “enslave” the original thirteen. They would come “under some foreign influence” like the Spanish funded the Creek Indians to attack the east, and the British funded the Iroquois. “Foreign gold” would corrupt their state legislatures.

On his return home, Luther Martin (Md) argued that westerners could not reasonably tolerate suffering under the dominance of eastern states. They would be justified in civil war to “shake off so ignominious a yoke.” G. Morris (Pa) had it that if they were allowed to be states, westerners would drag the country into an inevitable war with Spain for the Mississippi River, involving the whole continent. ^[116] These were poor people. How could they pay their fair share of taxes to the Union, or even pay for their own militia to defend against Amerindian nations? Were there to be so many western states that these poor and ignorant would outvote the eastern maritime states in the Senate? The east needed a way to protect its own interest, Nathaniel Gorham (Ma) suggested giving out representation to the west only as it suited the east. George Clymer (Pa), an “old patriot” of ’76, thought the whole western state idea was “suicide” for the original states. ^[117] Roger Sherman (Ct) countered that the people of the west would be “our children and our grandchildren.” Elbridge Gerry (Ma) retorted some of those grandchildren would be left behind, and they had interests too. There were so many foreigners moving out west, it could not be certain how things would turn out. ^[118]

East-west jealousies were very much alive in the Convention. Delegates knew of them and benefitted from them. In Pennsylvania, Virginia and the Carolinas, state legislatures enshrined inequality of east-west representation in their state constitutions. Massachusetts and New York had in their past. ^[119] Virginia’s Thomas Jefferson, absent the Convention, would complain that it took 15 voting men west of the Blue Ridge Mountains to equal one man east. Representative pportionment for states with a western “back-country” was a mix of population, voters and property. That status quo was captured in the original Randolph Plan for apportionment by “population or property” for both the ‘house’ and the ‘senate’. Instead, the Convention chose a formula for representing people as in a democracy.</ref> The demographic world of the states was changing underfoot. Populations were rapidly deploying west in such numbers, that delegates from Rhode Island and Massachusetts complained of the persistent interest in westward expansion. ^[120]

But in the light of the debate over new states from western territories, delegates had pause over the number agreed to for House representation, 40,000 might be too small, too easy for the westerners. “States” had been declared out west already. They called themselves republics, and set up their own courts directly from the people without colonial charters from the sovereign states. In Transylvania, Westsylvania, Franklin, Vandalia, “legislatures” met with emissaries from British and Spanish Empires in violation of the Articles of Confederation, just as the sovereign states had done. Luther Martin (Md) stopped that claim by ensuring that the United States owned all the backlands ceded by the states.^[121] He was successful in delivering a provision in the final draft of the Constitution, no majorities in Congress could break up the larger states without their consent.^[122]

James Wilson (Pa) had no fear of western states achieving a majority one day. The majority should rule. The British were jealous of our growth, and sought to curb it. That brought our hate, then our separation. If we follow the same rule, we will get the same results. Congress has never been able to discover a better rule than majority rule. Madison (Va) was of the “firm opinion” that there could be no discrimination against the west. And as they grow, all their trade goes by New Orleans. Imposts will more surely be collected there. Until then, they must get all their supplies from eastern businesses. Character is not determined by points of a compass. States admitted are equals, they will be made up of our brethren. George Mason (Va) reasoned that we must commit to right principles, even if the right way one day benefits other states. They will be free like ourselves, their pride will not allow anything but equality. ^[123] It was at this time in the Convention that Reverend Manasseh Cutler arrived to lobby for what he had won in the Articles Congress. He has secured guaranteed protection of contracts in western land sales. He brought acres of land grants to parcel out. Their sales would fund most of the U.S. government expenditures for its first few decades. There were allocations for the Ohio Company stockholders at the Convention, and for others delegates too. In December, 1787, good to his word, Cutler led a small band of pioneers into the Ohio Valley.^[124]

The provision for admitting new states became relevant at the purchase of Louisiana It was constitutionally justifiable under the «Treaty Making» power of the Federal government. The agrarian advocates sought to make the purchase of land that had never been administered, conquered, or formally ceded to any of the original thirteen states. Jefferson’s Democratic-Republicans would divide the Louisiana Purchase into states, speeding land sales to finance the Federal government with no new taxes. There would be no war for the possession of the Mississippi River. The new populations of new states would swamp the commercial states in the Senate. They would populate the House with egalitarian Democrat-Republicans to overthrow the Federalists.^[125] Jefferson dropped the proposal of Constitutional Amendment to permit the Purchase, and with it, his notion of a confederation of sovereign states.^[126]

Ratification and beginning

On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin. Franklin urged unanimity, although the Convention had decided only nine state ratification conventions were needed to inaugurate the new government. The Convention submitted the Constitution to the Congress of the Confederation.^[44]

ratification conventions in the states more nearly «the people»

Patrick Henry, Va «Anti» like those in MA, NY, SC, lost «Amend before» vote

Massachusetts’s Rufus King assessed the Convention as a creature of the states, independent of the Articles Congress, submitting its proposal to Congress only to satisfy forms. Though amendments were debated, they were all defeated. On September 28, 1787, the Articles Congress resolved “unanimously” to transmit the Constitution to state legislatures for submitting to a ratification convention according to the Constitutional procedure.^[127] Several states enlarged the numbers qualified just for electing ratification delegates. In doing so, they went beyond the Constitution’s provision for the most voters for the state legislature to make a new social contract among, more nearly than ever before, «We, the people».^[128]

Following Massachusetts’s lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments.^[129] A minority of the Constitution’s critics continued to oppose the Constitution. Maryland’s Luther Martin argued that the federal convention had exceeded its authority; he still called for amending the Articles.^[130] Article 13 of the Articles of Confederation stated that the union created under the Articles was «perpetual» and that any alteration must be «agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State».^[131]

However, the unanimous requirement under the Articles made all attempts at reform impossible. Martin’s allies such as New York’s John Lansing, Jr., dropped moves to obstruct the Convention’s process. They began to take exception to the Constitution “as it was”, seeking amendments. Several conventions saw supporters for «amendments before» shift to a position of «amendments after» for the sake of staying in the Union. New York Anti’s “circular letter” was sent to each state legislature proposing a second constitutional convention for «amendments before». It failed in the state legislatures. Ultimately only North Carolina and Rhode Island would wait for amendments from Congress before ratifying.^[129]

Ratification of the Constitution — dates, states and votes —
	Date	State	Votes
Yes	No
1	December 7, 1787	Delaware	30	0
2	December 11, 1787	Pennsylvania	46	23
3	December 18, 1787	New Jersey	38	0
4	January 2, 1788	Georgia	26	0
5	January 9, 1788	Connecticut	128	40
6	February 6, 1788	Massachusetts	187	168
7	April 26, 1788	Maryland	63	11
8	May 23, 1788	South Carolina	149	73
9	June 21, 1788	New Hampshire	57	47
10	June 25, 1788	Virginia	89	79
11	July 26, 1788	New York	30	27
12	November 21, 1789	North Carolina	194	77
13	May 29, 1790	Rhode Island	34	32

Article VII of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect for the participating states.^[1] After a year had passed in state-by-state ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March, ^[132] and on March 4, 1789, the government duly began operations.

George Washington had earlier been reluctant to go the Convention for fear the states “with their darling sovereignties” could not be overcome.^[133] But he was elected the Constitution’s President unanimously, including the vote of Virginia’s presidential elector, the Anti-federalist Patrick Henry.^[134] The new Congress was a triumph for the Federalists. The Senate of eleven states would be 20 Federalists to two Virginia (Henry) Anti-federalists. The House would seat 48 Federalists to 11 Antis from only four states: Massachusetts, New York, Virginia and South Carolina.^[135]

Antis’ fears of personal oppression by Congress were allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments became known as the Bill of Rights. ^[136] Objections to a potentially remote federal judiciary were reconciled with 13 federal courts (11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South.^[137] Suspicion of a powerful federal executive was answered by Washington’s cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph as Attorney General and Thomas Jefferson as Secretary of State.^[138][139]

What Constitutional historian Pauline Maier calls a national “dialogue between power and liberty” had begun anew. ^[140]

Historical influences

Fundamental law

Several ideas in the Constitution were new. These were associated with the combination of consolidated government along with federal relationships with constituent states.

The due process clause of the Constitution was partly based on common law stretching back to Magna Carta (1215).^[44] The document established the principle that the Crown’s powers could be limited.

The «law of the land» was the King in Parliament of Lords and Commons. The once sovereign King was to be bound by law. Magna Carta as «sacred text» would become a foundation of English liberty against arbitrary power wielded by a tyrant.

Both the influence of Edward Coke and William Blackstone were evident at the Convention.

In his Institutes of the Laws of England, Edward Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects of the Crown equally. Coke extended this principle overseas to colonists. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England.

William Blackstone saw the Parliament as legislature, the representative of the people, and so sovereign over judges in equity law. In his «Commentaries on the Laws of England» discussing cases, where ruling judges provided no rationale, he wrote one so as to connect and relate law and cases to one another in a way that had not been done so extensively before. «Commentaries» were the most influential books on law in the new republic among both lawyers generally and judges.

The most important influence from the European continent was from Enlightenment thinkers John Locke and the brilliant Montesquieu.

British political philosopher John Locke following the Glorious Revolution was a major influence expanding on the contract theory of government advanced by Thomas Hobbes. Locke advanced the principle of consent of the governed in his «Two Treatises of Government». Government’s duty in a social contract with the sovereign people was to serve them by protecting their rights. These basic rights of English and by extension all humanity, were life, liberty and property.

Montesquieu, emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius’s 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic.) In his «The Spirit of the Laws», Montesquieu argues that the separation of state powers should be by its service to the people’s liberty: legislative, executive and judicial. The actuating spring driving an aristocracy is excellence and honor, the despot requires compliance and fear. In a democracy the activating spring is public virtue,

Division of power in a republic was informed by the British experience with mixed government, as well as study of republics ancient and modern. A substantial body of thought had been developed from the literature of republicanism in the United States, including work by John Adams. The experiences among the thirteen states after 1776 was remarkably different among those which had been charter, proprietary newly created royal colonies.

Native Americans

The Iroquois nations’ political confederacy and democratic government have been credited as influences on the Articles of Confederation and the United States Constitution.^[141][142] Historians debate how much the colonists borrowed from existing Native American models of government. But several founding fathers had contact with Native American leaders and had learned about their styles of government.

The Iroquois Confederation could not be overlooked. They were “the most powerful Indian group on the continent.” Their government did not always work perfectly, unanimously, but they were once secure within their territory, and had been “nearly invincible” to outsiders over the lifetime of the Convention delegates.^[143]

Prominent figures such as Thomas Jefferson in colonial Virginia and Benjamin Franklin in colonial Pennsylvania were involved with leaders of the New York-based Iroquois Confederacy. The English needed allies to check expanding French networks. Both Virginia and Pennsylvania colonial claims extended north and west to Iroquois territory. The English could not expand without somehow bridging the cultural differences antagonizing their Amerindian neighbors.

This concern extended the length of the English settlement, and it motived study of Amerindian culture and governance. John Rutledge of South Carolina in particular is said to have read lengthy tracts of Iroquoian law to the other framers in Convention, beginning with the words, «We, the people, to form a union, to establish peace, equity, and order…»^[144]

Even in the 1750s and at the Albany Congress, Benjamin Franklin had seen that no single English colony could effectively deal with Amerindian tribes or expand against the ever-present French. Franklin argued that there should be some sort of diplomatic and self-defense concert among the British colonies. “If the Iroquois could form a powerful union … some kind of union ought not to be beyond the capacity of a dozen English colonies.”^[145]

The delegates meeting at Albany were unable to align the independent assemblies that they represented. But seeing the dangers before them, they made recommendations outside proper channels, going over the heads of the colonial legislatures. The Albany Congress went directly to the sovereign Parliament. In this they exceeded their authority, “like those who met at Philadelphia in 1787 would,” when the Constitutional Convention bypassed the independent state legislatures and appealed directly to the sovereign people.^[146]

The Iroquois experience with confederacy was both a model and a cautionary tale. Their «Grand Council» had no coercive control over the constituent members. This decentralization of authority and power had frequently plagued the Six Nations since the coming of the Europeans. The governance adopted by the Iroquois suffered from “too much democracy,” among their national parts. Their long term welfare suffered at the hands of French and English intrigues fostered among each separate Iroquois nation.^[147]

The new United States faced a diplomatic and military world inhabited by the same Europeans. During the Articles period, individual states had been making separate agreements with European and Amerindian foreign nations apart from Congress. Without the Convention’s central government, the framer’s feared that the fate of the confederated Articles United States would be the same as the Iroquois Confederacy.

But in its experiment of national self-governance, the Convention relied on past and present. The Constitution used Iroquois and Greek forms of government, Roman and English Common Law, philosophies of republics and the Enlightenment. To commemorate the contribution of Iroquois forms of government to American fundamental law, in October 1988, the U.S. Congress passed Concurrent Resolution 331 to recognize the influence of the Iroquois Constitution upon the U.S. Constitution and Bill of Rights.^[148]

Bills of rights before

The United States Bill of Rights consists of the ten amendments added to the Constitution in 1791, as supporters of the Constitution had promised critics during the debates of 1788.^[149] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid «cruel and unusual punishments.» Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights.

Original text

The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.

“	We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.	”
—United States Constitution, Preamble

National government

Legislature

19th Century Growth — government housing its branches

Old House Wing (left) U.S. Capitol Old House Chamber Old House Wing Old Senate Wing U.S. Capitol (north) Old Senate Chamber Old Senate Wing

Article One describes the Congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the House of Representatives and the Senate.

The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent.

Article I, Section 1, reads, «All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.» This provision gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.

Article I Section 8 enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch:

The Congress shall have power… To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Article I Section 9 provides a list of eight specific limits on congressional power and Article I Section 10 limits the rights of the states.

The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the United States Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had «[t]he foregoing powers and all other powers…»

Executive

Section analysis Section 1 creates the presidency. The section states that the executive power is vested in a President. The presidential term is four years and the Vice President serves the identical term. This section originally set the method of electing the President and Vice President, but this method has been superseded by the Twelfth Amendment.

• Qualifications. The President must be a natural born citizen of the United States, at least 35 years old and a resident of the United States for at least 14 years. An obsolete part of this clause provides that instead of being a natural born citizen, a person may be a citizen at the time of the adoption of the Constitution. The reason for this clause was to extend eligibility to Citizens of the United States at the time of the adoption of the Constitution, regardless of their place of birth, who were born under the allegiance of a foreign sovereign before the founding of the United States. Without this clause, no one would have been eligible to be president until thirty-five years after the founding of the United States.

• Succession. Section 1 specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns. The original text («the same shall devolve») left it unclear whether this succession was intended to be on an acting basis (merely taking on the powers of the office) or permanent (assuming the Presidency itself). After the death of William Henry Harrison, John Tyler set the precedent that the succession was permanent; this practice was followed when later presidents died in office. Today the 25th Amendment states that the Vice President becomes President upon the death or disability of the President.
• Pay. The President receives «Compensation» for being the president, and this compensation may not be increased or decreased during the president’s term in office. The president may not receive other compensation from either the United States or any of the individual states.
• Oath of office. The final clause creates the presidential oath to preserve, protect, and defend the Constitution.

Section 2 grants substantive powers to the president:

• The president is the Commander in Chief of the United States Armed Forces, and of the state militias when these are called into federal service.
• The president may require opinions of the principal officers of the federal government.
• The president may grant reprieves and pardons, except in cases of impeachment (i.e., the president cannot pardon himself or herself to escape impeachment by Congress).

Section 2 grants and limits the president’s appointment powers:

• The president may make treaties, with the advice and consent of the Senate, provided two-thirds of the senators who are present agree.
• With the advice and consent of the Senate, the President may appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise described in the Constitution.
• Congress may give the power to appoint lower officers to the President alone, to the courts, or to the heads of departments.
• The president may make any of these appointments during a congressional recess. Such a «recess appointment» expires at the end of the next session of Congress.

Section 3 opens by describing the president’s relations with Congress:

• The president reports on the state of the union.
• The president may convene either house, or both houses, of Congress.
• When the two houses of Congress cannot agree on the time of adjournment, the president may adjourn them to some future date.

Section 3 adds:

• The president receives ambassadors.
• The president sees that the laws are faithfully executed.
• The president commissions all the offices of the federal government.

Section 4 provides for removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Judiciary

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also creates the right to trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it. This Article also sets the kinds of cases that may be heard by the federal judiciary, which cases the Supreme Court may hear first (called original jurisdiction), and that all other cases heard by the Supreme Court are by appeal under such regulations as the Congress shall make.

Federal relationships

The States

Article Four outlines the relation between the states and the relation between the federal government. In addition, it provides for such matters as admitting new states as well as border changes between the states. For instance, it requires states to give «full faith and credit» to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records, or proceedings may be admitted. The «privileges and immunities» clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan).

United States of America
This article is part of the series: United States Constitution
Original text of the Constitution
Preamble Articles of the Constitution I · II · III · IV · V · VI · VII
Amendments to the Constitution
Bill of Rights I · II · III · IV · V VI · VII · VIII · IX · X Subsequent Amendments XI · XII · XIII · XIV · XV XVI · XVII · XVIII · XIX · XX XXI · XXII · XXIII · XXIV · XXV XXVI · XXVII Unratified Amendments I(1) · XIII(1) · XIII(2) · XX(1) · XXVII(1) · XXVII(2)
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It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous and costly process. Article Four also provides for the creation and admission of new states. The Territorial Clause gives Congress the power to make rules for disposing of federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence.

Amendments

An amendment may be ratified in three ways:

• The new amendment may be approved by two-thirds of both houses of Congress, then sent to the states for approval.
• Two-thirds of the state legislatures may apply to Congress for a constitutional convention to consider amendments, which are then sent to the states for approval.
• Congress may require ratification by special convention. The convention method has been used only once, to approve the 21st Amendment (repealing prohibition, 1933).

Regardless of the method of proposing an amendment, final ratification requires approval by three-fourths of the states.

Today Article Five places only one limit on the amending power: no amendment may deprive a state of equal representation in the Senate without that state’s consent. The original Article V included other limits on the amending power regarding slavery and taxation; however, these limits expired in 1808.

Central government

Article Six establishes the Constitution, and the laws and treaties of the United States made according to it, to be the supreme law of the land, and that «the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.» It also validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states’ constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.

Article Six also states «no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.»

Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose, and it would only apply to those states that ratified it.^[18] (See above Drafting and ratification requirements.)

Amendments

Amendment of the state Constitutions at the time of the 1787 Constitutional Convention required only a majority vote in a sitting legislature of a state, as duly elected representatives of its sovereign people. The next session of a regularly elected assembly could do the same. This was not the “fundamental law” the founders such as James Madison had in mind.

Nor did they want to perpetuate the paralysis of the Articles by requiring unanimous state approval. The Articles of Confederation had proven unworkable within ten years of its employment. Between the options for changing the “supreme law of the land”, too easy by the states, and too hard by the Articles, the Constitution offered a federal balance of the national legislature and the states.

Procedure

Three steps to Amendments

House-passed 12 proposals 2/3-majority, then to Senate (States later ratify 10 of 12) Senate-passed 12 proposals 2/3-majority, then 3/4 States = Bill of Rights

Changing the “fundamental law” is a two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call a constitutional convention to propose an amendment, then to be ratified by the states.

To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. Over 10,000 constitutional amendments have been introduced in Congress since 1789; during the last several decades, between 100 and 200 have been offered in a typical congressional year. Most of these ideas never leave Congressional committee, and of those reported to the floor for a vote, far fewer get proposed by Congress to the states for ratification.^[151]

In the first step, the proposed Amendment must find a national super majority of 67% in Congress, both House (people) and Senate (states). The second step requires a super-super 75% majority of the states ratifying, representing a majority of the people in the states ratifying. Congress determines whether the state legislatures or special state conventions ratify the amendment.^[152]

On attaining Constitutional ratification of the proposal by three-fourths of the states, at that instant, the “fundamental law” for the United States of America is expressed in that Amendment. It is operative without any additional agency. Although the Founders considered alternatives, no signature is required from the President. Congress does not have to re-enact. The Supreme Court does not have to deliberate. There is no delay from a panel of lawyers to re-draft and re-balance the entire Constitution incorporating the new wording. The Amendment, with the last required state ratifying, is the “supreme law of the land.

Unlike amendments to most constitutions, amendments to the United States Constitution are appended to the body of the text without altering or removing what already exists. Newer text is given precedence.^[153] Subsequent printed editions of the Constitution may line through the superseded passages with a note referencing the Amendment. Notes often cite applicable Supreme Court rulings incorporating the new fundamental law into American jurisprudence, when the first precedent was given, and in what way the earlier provisions were found void.

Over the last thirty years, there have been a few proposals for amendments in mainstream political debate. These include the Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. Another may be repeal of the 17th Amendment, restoring selection of U.S. Senators to state legislatures.

Successful

The Constitution has twenty-seven amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously by 1791. The next seventeen were ratified separately over the next two centuries.

«Bill of Rights»

The National Archives displays the Bill of Rights as one of the three “Charters of Freedom.” The original intent of these first ten Amendments was to restrict Congress from abusing its power. For example, the First Amendment — “Congress shall make no law” establishing a religion. — was ratified by the states before all states had, of their own accord, disestablished their official churches.

The Federalist Papers argued that amendments were not necessary to adopt the Constitution. But without the promise in their ratification conventions, Massachusetts, Virginia and New York could not have joined the Union as early as 1789. James Madison, true to his word, managed the proposed amendments through the new House of Representatives in its first session. The amendments that became the Bill of Rights were ten proposals of the twelve that Congress sent out to the states in 1789.^[154]

Later in American history, applying the Bill of Rights directly to the states developed only with the Fourteenth Amendment.

“

No State shall make or enforce any law which shall abridge the privileges … of citizens … nor … deprive any person of life, liberty, or property, without due process of law; nor deny … the equal protection of the laws.

”

The legal mechanism that courts use today to extend the Bill of Rights against the abuses of state government is called “incorporation”. The extent of its application is often at issue in modern jurisprudence.

Generally, the Bill of Rights can be seen as the States addressing three major concerns: individual rights, federal courts and the national government’s relationships with the States.

Individual rights

The first Amendment defines American political community, based on individual integrity and voluntary association. Congress cannot interfere with an individual’s religion or speech. It cannot restrict a citizen’s communication with others to form community by worship, publishing, gathering together or petitioning the government.

The First Amendment addresses the rights of freedom of religion (prohibiting Congress from establishing a religion and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.

Trial and sentencing

Given their history of colonial government, most Americans wanted guarantees against the central government using the courts against state citizens. The Constitution already had individual protections such as strictly defined treason, no ex post facto law and guaranteed habeas corpus except during riot or rebellion. Now added protections came in five Amendments.

Protecting the accused. The Fourth Amendment guards against searches, arrests, and seizures of property without a specific warrant or a «probable cause» to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.

The Fifth Amendment forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as «Taking the Fifth» or «Pleading the Fifth»). This is regarded as the «rights of the accused» amendment, otherwise known as the Miranda rights after the Supreme Court case. It also prohibits government from taking private property for public use without «just compensation», the basis of eminent domain in the United States.

The Seventh Amendment assures trial by jury in civil cases.

Restraining the judges. The Sixth Amendment guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.

The Eighth Amendment forbids excessive bail or fines, and cruel and unusual punishment.

Congress nor States

In 1789, future Federal-state relations were uncertain. To begin, the States in their militias were not about to be disarmed. And, if Congress wanted a standing army, Congress would have to pay for it, not “quarter” soldiers at state citizen expense. The people always have all their inalienable rights, even if they are not all listed in government documents. If Congress wanted more power, it would have to ask for it from the people in the states. And if the Constitution did not say something was for Congress to do, then the States have the power to do it without asking.

Potential military coercion

The Second Amendment guarantees the right of adult men in state militias to keep their own weapons apart from state-run arsenals.^[155] Once the new Constitution began government, states petitioned Congress to propose amendments including militia protections. New Hampshire’s proposal for amendment was, “Congress shall never disarm any citizen unless such as are or have been in actual rebellion.” New York proposed, “… a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free State.” ^[156] Over time, this amendment has been expanded by the courts to individual rights, including their overturning state legislation regulating hand guns.

Applying the Second Amendment only to the Federal government, and not to the states, persisted for much of the nation’s early history. It was sustained in United States v. Cruikshank (1876) to support disarming African-Americans holding arms in self-defense from Klansmen in Louisiana. The Supreme Court held, citizens must “look for their protection against any violation by their fellow-citizens from the state, rather than the national, government.” Federal protection of an individual interfering with the state’s right to disarm any of its citizens came in Presser v. Illinois (1886). The Supreme Court ruled the citizens were members of the federal militia, as were “all citizens capable of bearing arms.” A state cannot “disable the people from performing their duty to the General Government”. The Court was harking back to the language establishing a federal militia in 1792.^[157]

In 1939, the Supreme Court returned to a consideration of militia. In U.S. v. Miller, the Court addressed the enforceability of the National Firearms Act of 1934 prohibiting a short-barreled shotgun. Held in the days of Bonnie Parker and Clyde Barrow, this ruling referenced units of well equipped, drilled militia, the Founders “trainbands”, the modern military Reserves.^[158] It did not address the tradition of an unorganized militia. Twentieth century instances have been rare but Professor Stanford Levinson has observed consistency requires giving the Second Amendment the same dignity of the First, Fourth, Ninth and Tenth.^[159]

Once again viewing federal relationships, the Supreme Court in McDonald v. Chicago (2010) determined that the right of an individual to «keep and bear arms» is protected by the Second Amendment. It is incorporated by the Due Process Clause of the Fourteenth Amendment, so it applies to the states.

The Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The states had suffered during the Revolution following the British Crown confiscating their militia’s arms stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorically asked, shall we be stronger, «when we are totally disarmed, and when a British Guard shall be stationed in every house?” ^[160] The only existing case law directly regarding this amendment is a lower court decision in the case of Engblom v. Carey.^[161] However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court’s holding that the constitution protects the right to personal privacy.

Constitutional relationships

The Ninth Amendment declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained by the people. The Tenth Amendment reserves to the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the states from exercising.

Subsequent

Amendments to the Constitution after the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787. Although the United States Constitution has been amended 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth.

Citizen rights

Several of the amendments have more than one application, but five amendments have concerned citizen rights. American citizens are free. There will be equal protection under the law for all. Men vote, women vote, DC residents vote,^[162] and 18-year olds vote.

The Thirteenth Amendment(1865) abolishes slavery and authorizes Congress to enforce abolition. The Fourteenth Amendment(1868) in part, defines a set of guarantees for United States citizenship. Fifteenth Amendment(1870) prohibits the federal government and the states from using a citizen’s race, color, or previous status as a slave as a qualification for voting. The Nineteenth Amendment(1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. The Twenty-third Amendment(1961) grants presidential electors to the District of Columbia. The Twenty-sixth Amendment(1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greaterto vote on account of their age.

Three branches

Seven amendments relate to the three branches of the Federal government. Congress has three, the Presidency has four, the Judiciary has one.

Congress will begin in January, not March. It can tax income. It cannot raise its own pay before re-election.

The Sixteenth Amendment (1913) authorizes unapportioned federal taxes on income. Twentieth Amendment (1933) in part, changes details of congressional terms. The Twenty-seventh Amendment (1992) limits congressional pay raises.

The Presidency has had four amendments regulating the office. The President will be chosen by name, not selected from a pool. The President is succeeded by the Vice President without a special election. The President is limited to two terms. Presidential succession is through the Vice President, elected officers of the Congress, then executive Cabinet.

The Twelfth Amendment (1804) changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. The Twentieth Amendment (1933) in part, changes details of presidential terms and of presidential succession. The Twenty-second Amendment (1951) gives the president Limits of two terms. The Twenty-fifth Amendment (1967) changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.

The Judiciary has one amendment effecting its jurisdiction. The Eleventh Amendment (1795) in part, clarifies judicial power over foreign nationals.

States and abuses

State citizens. The states have been protected from their citizens by a Constitutional Amendment. Citizens are limited when suing their states in Federal Court. The Eleventh Amendment (1795) in part, limits ability of citizens to sue states in federal courts and under federal law.

Most states. All states have been required to conform to the others when those delegations in Congress could accumulate super-majorities in the U.S. House and U.S. Senate, and three-fourths of the states with the same opinion required it of all. (a) The states must not allow alcohol sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth Amendment (1919) prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Repealed by the Twenty-First Amendment. Twenty-first Amendment (1933) repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages.

State legislatures. Occasionally in American history, the people have had to strip state legislatures of some few privileges due to widespread, persisting violations to individual rights. States must administer equal protection under the Constitution and the Bill of Rights. States must guarantee rights to all citizens of the United States as their own. State legislatures will not be trusted to elect U.S. Senators. States must allow all men to vote. States must allow women to vote. States cannot tax a U.S. citizen’s right to vote.

Under the Constitution, the U.S. government was restricted from infringing on citizen rights. The Fourteenth Amendment (1868) in part, defines a set of guarantees for United States citizenship; prohibits states from abridging citizens’ privileges or immunities and rights to due process and the equal protection of the law.

Voting in the states has not always been so universal as it is today, not all men, not women not 18-year olds. In 1870, regardless of practice, most states had no legal racial bar to voting by African-Americans, Asians or Native-Americans. But the Fifteenth Amendment (1870) prohibits the federal government and the states from using a citizen’s race, color, or previous status as a slave as a qualification for voting. Then all men could vote by law. In 1920, while most states allowed at least some women’s suffrage, the Nineteenth Amendment (1920) prohibits the federal government and the states from forbidding any citizen to vote due to their gender. Then all women could vote by law. In 1971, states allowed voting at ages 21, 20, 19 and 18. The Twenty-sixth Amendment (1971) prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age.

By 1913, several state legislatures allowed their selection of U.S. Senator by direct popular vote. However, the Seventeenth Amendment (1913) converts all state elections for U.S. senators to popular election.

Some state legislatures restricted the right to vote among their citizens more than others. Although most states in 1964 did not restrict voting by the use of poll taxes, the Twenty-fourth Amendment (1964) prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials. U.S. citizens cannot be taxed to vote.

Unratified

Of the thirty-three amendments that have been proposed by Congress, twenty-seven have passed. Six have failed ratification by the required three-quarters of the state legislatures. Two have passed their deadlines. Four are technically in the eyes of a Court, still pending before state lawmakers (see Coleman v. Miller). All but one are dead-ends.

Cultural and economic diversity in federal union.[163] State Capitols — Part II

Colorado State Capitol «Empty Quarter» 1 of 7 states 1858-1876 Oregon State Capitol «Ecotopia» 1 of 7 states 1858-1876 New Mexico State Capitol «Mexamerica» 1 of 10 states 1889-1912 Hawaii State Capitol «Pacific Islands» 1 of 2 states 1959

One remaining

The «Titles of Nobility Amendment» (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting «any Title of Nobility or Honour» from any foreign power. Some maintain that the amendment was ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked.^[164]

The proposed amendment addressed the same “republican” and nationalist concern evident in the original Constitution, Article I, Section 9. No officer of the United States, “without the Consent of the Congress, [shall] accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” The Constitutional provision is unenforceable because the offense is not subject to a penalty.

Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification and could still be ratified were the state legislatures to take it up.

Abandoned

Quit by practice

• The Congressional Apportionment Amendment, proposed by the 1st Congress on September 25, 1789, defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last being Kentucky in June 1792 during Kentucky’s initial month of statehood, this amendment contains no expiration date for ratification. In the abstract it may be procedurally ratified.

As written, it became inapplicable when the population of the United States reached ten million. Allocation of seats for a state delegation is no longer increased or decreased by each change of 10,000 population. Since 1940, the number of Representatives in the U.S. House has been fixed at 435. Decennial population counts are apportioned among the states in a formula by law.

• The Corwin Amendment, proposed by the 36th Congress on March 2, 1861, would have forbidden any attempt to subsequently amend the Constitution to empower the federal government to «abolish or interfere» with the «domestic institutions» of the states, meaning slavery.

It was ratified by only Ohio, Maryland and controversially, Illinois, before the outbreak of the Civil War.^[165] Lincoln took it under consideration in his First Inaugural as a means of preserving the Union. Four additional states seceded and war came. Before his assassination, Lincoln pushed the Thirteenth Amendment through Congress and out to the state legislatures to abolish slavery forever.^[166]

Quit by policy

Starting with the proposal of the 18th Amendment in 1917, each proposed amendment has included a deadline for passage in the text of the amendment. Five without a deadline became Amendments.^[167] One proposed amendment without a deadline has not been ratified. The Child Labor Amendment of 1924.

• A child labor amendment proposed by the 68th Congress on June 2, 1924. It provides, «The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.» This amendment is highly unlikely to be ratified, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress’s powers under the Commerce Clause.

Time ran out

There are two amendments that were approved by Congress but were not ratified by enough states prior to the ratification deadline set by Congress:

• The Equal Rights Amendment (ERA), which reads in part «Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.» Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979 or on June 30, 1982, following a controversial three-year extension of the ratification deadline passed by the 95th Congress in 1978.

Of the 35 states ratifying it, four later rescinded their ratifications before the extended ratification period. A fifth stipulated that its first approval would not extend with Federal law. Such reversals are controversial; no court has ruled on the question. During ratification of the 14th Amendment Ohio and New Jersey rescinded their earlier approvals. But their ratifications were counted towards three-fourths of the states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.

• The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had this amendment been ratified, it would have granted to Washington, D.C. two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states (out of the required 38), the proposed amendment expired on August 22, 1985.

Judicial review

Also see Appellate Review in law distinguished from Judicial review.

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. Judicial review is the power of the Court to examine federal legislation, executive agency rules and state laws, to decide their constitutionality, and to strike them down if found unconstitutional.

Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases. Over the years, Court decisions on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases have changed the way many constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation passed to implement the Constitution, or to adapt those implementations to changing conditions, broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many federal executive agencies have a similar effect. If an action of Congress or the agencies is challenged, however, it is the court system that ultimately decides whether these actions are permissible under the Constitution.

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”.^[168]

Scope and theory

Courts established by the Constitution can regulate government under the Constitution, the supreme law of the land. First, they have jurisdiction over actions by an officer of government and state law. Second, Federal courts may rule on whether coordinate branches of national government conform to the Constitution. Until the Twentieth Century, the Supreme Court of the United States may have been the only high tribunal in the world to use a court for constitutional interpretation of fundamental law, others generally depending on their national legislature. ^[169]

The basic theory of American Judicial review is summarized by constitutional legal scholars and historians as follows: the written Constitution is fundamental law. It can change only by extraordinary legislative process of national proposal, then state ratification. The powers of all departments are limited to enumerated grants found in the Constitution. Courts are expected (a) to enforce provisions of the Constitution as the supreme law of the land, and (b) to refuse to enforce anything in conflict with it. ^[171]

In Convention. As to judicial review and the Congress, the first proposals by Madison (Va) and Wilson (Pa) called for a supreme court veto over national legislation. In this it resembled the system in New York, where the Constitution of 1777 called for a “Council of Revision” by the Governor and Justices of the state supreme court. The Council would review and in a way, veto any passed legislation violating the spirit of the Constitution before it went into effect. The nationalist’s proposal in Convention was defeated three times, and replaced by a presidential veto with Congressional over-ride. Judicial review relies on the jurisdictional authority in Article III, and the Supremacy Clause. ^[172]

As to judicial review and the state legislatures, the Convention had a draft clause unanimously agreed to, that Congress would have power to “negative all laws passed by the several States, contravening, in the opinion of the national legislature, the articles of union.” Cooler heads prevailed, and according to the political scientist Herman Pritchet, the clause was determined to be a clumsy, inconvenient device which would stir up resentment in the states. It was replaced with the Supremacy Clause which specifically required state judges to apply the Federal Constitution to state laws or constitutions. ^[173]

The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. “A limited constitution can be preserved in practice no other way” than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people’s authority over legislatures rests “particularly with judges.” ^[174]

John Jay (NY), a co-author of the Federalist Papers, served as Chief Justice for the first six years. The second Chief Justice for a term of four years, was Oliver Ellsworth (Ct), a delegate in the Constitutional Convention, as was John Rutledge (SC), Washington’s recess appointment as Chief Justice who served in 1795. John Marshall (Va), the fourth Chief Justice, had served in the Virginia Ratification Convention in 1788. His service on the Court would extend 34 years over some of the most important rulings to help establish the nation the Constitution had begun.

In the first years of the Supreme Court, members of the Constitutional Convention who would serve included James Wilson (Pa) for ten years, John Blair, Jr. (Va) for five, John Rutledge (SC) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justice of the Supreme Court in 1801, the federal judiciary had been established by the Judiciary Act, but there were few cases, and less prestige. “The fate of judicial review was in the hands of the Supreme Court itself.” ^[175] John Marshall, newly confirmed Chief Justice had been a Federalist in the Virginia Ratification Convention of 1788. On the Marshall Court, which handed down decisions unanimously for its first twenty years, were several Justices with distinguished pasts.

William Paterson (NJ) had been a delegate to the Constitutional Convention, an important U.S. Senator drafting the Judiciary Act of 1789, and was on the Court for 13 years until 1806. William Cushing (Ma) was Washington’s longest seated nominee to the Supreme Court, serving until 1810. He had presided over the 1783 case in Massachusetts which abolished slavery in that state by judicial interpretation of the State Constitution. Joseph Story (Ma) succeeded Cushing on the Court as Madison’s appointee. He was Marshall’s scholar of reference, influential in maritime, equity, and anti-slavery law. These three converged in Joseph Story’s opinion in the 1841 Amistad case.

Alfred Moore (NC), who served until 1804, was a Revolutionary War veteran as was John Marshall. Following Washington’s inauguration, Moore had helped secure North Carolina’s ratification as the 12th state after its first Ratification Convention had rejected Union. As North Carolina Attorney General, he argued unsuccessfully against federal judicial review in Bayard v. Singleton. William Johnson (SC) succeeded Moore as the first non-Federalist (Jefferson’s) Supreme Court appointee. He had been speaker of the South Carolina House, and would be influential on the Court during the Nullification Crisis. Samuel Chase (Md), a signer of the Declaration was on the Court 14 years until 1811 with a politically volatile career.^[177]

While review of state legislation and appeals from state supreme courts was understood, in the Marshall Court’s landmark Barron v. Baltimore, the ruling held that the Bill of Rights restricted only the federal government, and not the states. For a list of major rulings in the Marshall Court, see Marshall Court Cases.

In the landmark Marbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congress. It finds were that Marbury and the others had a right to their commissions as judges in the District of Columbia. The law afforded Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discovered conflict between Section 13 of the Judiciary Act of 1789 and Article III.^[178] The United States government, as created by the Constitution is a limited government, and a statute contrary to it is not law. In this case, both the Constitution and the statutory law applied to the particulars at the same time. “The very essence of judicial duty” according to Marshall was to determine which of the two conflicting rules should govern. The Constitution enumerates powers of the judiciary to extend to cases arising “under the Constitution.” Courts were required to choose the Constitution over Congressional law. Further, justices take a Constitutional oath to uphold it as “Supreme law of the land”. ^[179]

The Marshall Court — thirty-five years, fourteen Justices —
#	Judge	State	Born/Died	Active service	Term as Chief Justice	Retirement	Appointed by	Reason for termination
3	William Cushing	MA	—	1790-1810	—	—	Washington	—
8	William Paterson	NJ	—	1793–1806	—	—	Washington	—
9	Samuel Chase	MD	—	1796–1811	—	—	Washington	—
11	Bushrod Washington	VA	—	1798–1829	—	—	Adams, J.	—
12	Alfred Moore	NC	—	1800–1804	—	—	Adams, J.	—
13	John Marshall†	VA	—	1801–1835	1801–1835	—	Adams, J.	—
14	William Johnson	SC	—	1804–1834	—	—	Jefferson	—
15	Henry Brockholst Livingston	NY	—	1807–1823	—	—	Jefferson	—
16	Thomas Todd	KY	—	1807–1826	—	—	Jefferson	—
17	Gabriel Duvall	MD	—	1811–1835	—	—	Madison	—
18	Joseph Story	MA	—	1812–1845	—	—	Madison	—
19	Smith Thompson*	NY	—	1823–1843	—	—	Monroe	—
20	Robert Trimble	KY	—	1826–1828	—	—	Adams, J. Q.	—
21	John McLean	OH	—	1830–1861	—	—	Jackson	—
22	Henry Baldwin	PA	—	1830–1844	—	—	Jackson	—

“This argument has been ratified by time and by practice …” ^[180] «Marshall The Supreme Court did not declare another Act of Congress unconstitutional until the disastrous Dred Scott decision in 1857, held after the voided Missouri Compromise statute, had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressional statutes in 77 cases, on average almost one a year. ^[181]

Something of a crisis arose when, in 1935 and 1936, the Supreme Court under a reactionary majority, handed down twelve decisions voiding Acts of Congress relating to the New Deal. President Franklin D. Roosevelt then responded with his abortive “court packing plan”. Other proposals have suggested a Court super-majority to overturn Congressional legislation, or a Constitutional Amendment to require that the Justices retire at a specified age by law. To date, the Supreme Court’s power of judicial review has persisted.^[182]

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been “wielded with a reasonable measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns.” Indeed, the Supreme Court has developed a system of doctrine and practice that self-limits is power of judicial review. ^[183]

The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid expressing an opinion if it sees an issue is currently embarrassing or difficult. The Supreme Court limits itself by defining for itself what is a “justiciable question.” First, the Court is fairly consistent in refusing to make any “advisory opinions” in advance of actual cases.^[184] Second, “friendly suits” between those of the same legal interest are not considered. Third, the Court requires a «personal interest», not one generally held, and a legally protected right must be immediately threatened by government action. Cases are not taken up if the litigant has no standing to sue. Having the money to sue or being injured by government action alone are not enough. ^[185]

These three procedural ways of dismissing cases have led critics to charge that the Supreme Court delays decisions by unduly insisting on technicalities in their “standards of litigability”. Under the Court’s practice, there are cases left unconsidered which are in the public interest, with genuine controversy, and resulting from good faith action. “The Supreme Court is not only a court of law but a court of justice.” ^[186]

Separation of powers

The Supreme Court balances several pressures to maintain its roles in national government. It seeks to be a co-equal branch of government, but it wants to avoid handing down decrees it cannot enforce. The Court seeks to minimize situations where it asserts itself superior to either President or Congress, but it is expected to hold Federal officers accountable for their actions under law. The Supreme Court’s “most striking claim” is assuming power to declare acts of Congress as unconstitutional. To sustain this power, it self-limits its passing on constitutional questions.^[187]

Justice Brandeis summarized four general guidelines that the Supreme Court uses to avoid constitutional decisions relating to Congress.^[189] (1) The Court will not anticipate a question of constitutional law nor decide open questions unless absolutely necessary to arrive at a case decision. (2) A rule of constitutional law is not formulated more broadly than the precise facts in the case require. (3) Even if constitutional grounds are properly presented to break new ground, the Court will choose statutes or general law for the basis of its decision if it can. (4) Even if the constitutionality of an Act of Congress is seriously in doubt, if it can be interpreted in a way so as to make it constitutional, the Court will choose that constitutional construction. ^[190]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimes rebuff presidential pretentions, but it more often tries to rationalize them. It is tactically much more difficult to confront a President. Against Congress, an Act is merely “disallowed.” In the executive, exercising judicial review to void presidential policy produces “some change in the external world” beyond the ordinary judicial sphere. ^[191]

John Marshall was one of the first to recognize how the president holds “important political powers” which are untouchable by judicial review. The president’s executive and political privilege allows great discretion. There are areas where he is “accountable to his country only in his political character, and to his own conscience.” For the Supreme Court to enforce performance of presidential duties in law would be “an absurd and excessive extravagance.” Marshall was quoted in Court rulings on the President’s duty to enforce the law during Reconstruction. This doctrine extends to the sphere of foreign affairs. Chief Justice Robert Jackson explained the Courts self-limitation where “without relevant information” it would review or nullify action taken on information properly held secret. Foreign affairs are inherently political, “wholly confided by our Constitution to the political departments of the government … [and] not subject to judicial intrusion or inquiry.” ^[192]

The “political question” doctrine especially applies to questions which present a difficult enforcement issue. Chief Justice Charles Evans Hughes addressed the Court’s limitation when political process allowed future policy change, but a judicial ruling would “attribute finality”. Political questions lack “satisfactory criteria for a judicial determination.” ^[193]

Critics of the Court object in two principle ways to its self-restraint in judicial review, deferring as it does as a matter of doctrine to Acts of Congress and Presidential actions. Its inaction is said to allow “a flood of legislative appropriations” which permanently create an imbalance between the states and federal government “never dreamed of by the Founding Fathers.” On the other hand, Supreme Court deference to Congress and the executive compromises American protection of civil rights, political minority groups and aliens. ^[194]

The Supreme Court cannot be imprudent without risking its status as a co-equal branch of government. It is most effective when American political life reinforce its rulings. “But self-restraint is not the ultimate in judicial wisdom.” The Court has a duty to give guidance on basic problems of life and governance in a democracy. ^[195]

Subsequent Courts

Supreme Courts under the leadership of subsequent Chief Justices have also used judicial review to interpret the Constitution among individuals, states and Federal branches. Notable contributions were made by the Chase Court, the Taft Court, the Warren Court, and the Rehnquist Court.

Chase Court

Chase Court, 1865[196] reconstruction and Union

Salmon Case was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a U.S. Senator and Governor of Ohio. He has coined the slogan, “Free soil, free Labor, free men.” One of Lincoln’s “team of rivals”, he was appointed Secretary of Treasury during the Civil War, issuing “greenbacks”. To appease radical Republicans, Lincoln appointed him to replace Chief Justice Roger B. Taney of Dred Scott case fame.

In one of his first official acts, Chase admitted John Rock, the first African-American to practice before the Supreme Court. The “Chase Court” is famous for Texas v. White which asserted a permanent Union of indestructible states. Veazie Banks v. Fenno upheld the Civil War tax on state banknotes. Hepburn v. Griswold found parts of the Legal Tender Acts unconstitutional, though it was reversed under a late Supreme Court majority.

A complete list of Supreme Court cases under his leadership can be found at Chase Court cases. For more on his life and service, see the Salmon P. Chase article.

William H. Taft was a Harding appointment to Chief Justice from 1921 to 1930. A Progressive Republican from Ohio, his earlier Republican career included Ohio Supreme Court, U.S. Solicitor General, U.S. Governor-General of the Philippines, and Theodore Roosevelt’s Secretary of War. He was a one-term President. He sought non-coercive foreign policies in “Dollar Diplomacy” and in his private foundation, “League to Enforce Peace.” In his presidential term, Taft’s domestic agenda encompassed trust-busting and strengthening the Instate Commerce Commission.

As Chief Justice, he advocated the Judiciary Act of 1925 that brought the Federal District Courts under the administrative jurisdiction of the Supreme Court and the newly united branch of government initiated its own separate building in use today. Taft successfully sought the expansion of Court jurisdiction over non- states such as District of Columbia and Territories of Arizona, New Mexico, Alaska and Hawaii. Later extensions added the Spanish-American War acquisitions of the Commonwealth of the Philippines and Puerto Rico.

In 1925, the Taft Court issued a ruling overturning a Marshall Court ruling on the Bill of Rights. In Gitlow v. New York, the Court established the doctrine of “incorporation which applied the Bill of Rights to the states. Important cases included the Board of Trade v. Olsen that upheld Congressional regulation of commerce. Olmstead v. U.S. allowed exclusion of evidence obtained without a warrant based on application of the 14th Amendment proscription against unreasonable searches. Wisconsin v. Illinois ruled the equitable power of the United States can impose positive action on a state to prevent its inaction from damaging another state.

A complete list of Supreme Court cases under his leadership can be found at Taft Court cases. For more on his life and service, see the William Howard Taft article.

Earl Warren was an Eisenhower nominee, Chief Justice from 1943 to 1953. Warren’s Republican career in the law reached from County Prosecutor, California state attorney general, and three consecutive terms as Governor. His programs stressed progressive efficiency, expanding state education, re-integrating returning veterans, infrastructure and highway construction.

In 1954, the Warren Court overturned a landmark Fuller Court ruling on the Fourteenth Amendment interpreting racial segregation as permissible in government and commerce providing “separate but equal” services. Warren built a coalition of Justices after 1962 that developed the idea of natural rights as guaranteed in the Constitution. Brown v. Board of Education banned segregation in public schools. Baker v. Carr and Reynolds v. Sims established Court ordered “one-man-one-vote.” Bill of Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright” and Miranda v. Arizona. First Amendment rights were addressed in Grissold v. Connecticut concerning privacy, and Engel v. Vitale relative to free speech.

A complete list of Supreme Court cases under his leadership can be found at Warren Court cases. For more on his life and service, see the Earl Warren article.

William Rehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. Following study at Stanford and Harvard, he clerked under Justice Robert Jackson, served as a legal adviser and writer for Barry Goldwater in his presidential campaign, and practiced law in Arizona before his Nixon appointment as Justice in 1971.

Rehnquist Court

Rehnquist Court, 1998[199] federalism, privacy

As Chief Justice, Rehnquist was a team builder. In conference, no Justice spoke a second time until all had spoken. No Justice, including himself, was assigned to write a second holding for the Court until all had written one. When Rehnquist was in the minority, he deferred to the majority to choose the writer of the majority opinion. While he would concur with overthrowing a state supreme court’s decision, as in Bush v. Gore, he built a coalition of Justices after 1994 that developed the idea of federalism as provided for in the Tenth Amendment. Fundamental law was not only to restrain states. In the hands of the Supreme Court, the Constitution and its Amendments were to restrain Congress, as in City of Boerne v. Flores.

Nevertheless, the Rehnquist Court was noted in the contemporary “culture wars” for overturning state laws relating to privacy prohibiting late-term abortions in Stenberg v. Carhart, prohibiting sodomy in Lawrence v. Texas, or ruling so as to protect free speech in Texas v. Johnson or affirmative action in Grutter v. Bollinger.

A complete list of Supreme Court cases under his leadership can be found at Rehnquist Court cases. For more on his life and service, see the William Rehnquist article.

«Civic religion»

The National Archives preserves and displays the Declaration of Independence, the Constitution and the Bill of Rights. These texts are enshrined in massive, bronze-framed, bulletproof, moisture-controlled glass containers vacuum-sealed in a cathedral-like Rotunda by day, in multi-ton bomb-proof vaults by night.^[200] The ‘Charters of Freedom’ are flanked by Barry Faulkner’s two grand murals, one featuring Jefferson amidst the Continental Congress, the other centering on Madison at the Constitutional Convention. Alongside the Charters of Freedom is a dual display of the “Formation of the Union”, which is documents related to the evolution of the U.S. government from 1774 to 1791. These include Articles of Association (1774), Articles of Confederation (1778), Treaty of Paris (1783) and Washington’s Inaugural Address (1789). ^[201] The Constitution has a past, and it is also living in a way.

While political scientists, sociologists, and legal scholars study the Constitution and how it is used in American society, on the other hand, historians are concerned with putting themselves back into a time and place, in context. It would be anachronistic for them to look at the documents of the “Charters of Freedom” and see America’s modern “civic religion” because of “how much Americans have transformed very secular and temporal documents into sacred scriptures”.^[202] The whole business of erecting a shrine for the worship of the Declaration of Independence strikes some academic critics looking from point of view of the 1776 or 1789 America as “idolatrous, and also curiously at odds with the values of the Revolution.” It was suspicious of religious iconographic practices. At the beginning, in 1776, it was not meant to be that at all.^[203]

On the 1782 Great Seal of the United States, the date of the Declaration of Independence and the words under it signify the beginning of the “new American Era” on earth. Though the inscription, Novus ordo seclorum, does not translate from the Latin as “secular”, it also does not refer to a new order of heaven. It is a reference to generations of society in the western hemisphere, the millions of generations to come.^[204]

Even from the vantage point of a new nation only ten to twenty years after the drafting of the Constitution, the Framers themselves differed in their assessments of its significance. Washington in his Farewell Address pled that «the Constitution be sacredly maintained.»‘ He echoed Madison in «The Federalist No. 49», that citizen «veneration» of the Constitution might generate the intellectual stability needed to maintain even the «wisest and freest governments” amidst conflicting loyalties. But there is also a rich tradition of dissent from «Constitution worship». By 1816 Jefferson could write that «[s]ome men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched.» But he saw imperfections and imagined that potentially, there could be others, believing as he did that «institutions must advance also”.^[205]

Making a nation

American identity has an ideological connection to these “Charters of Freedom”. Samuel P. Huntington discusses common connections for most peoples in nation-states, a national identity as product of common ethnicity, ancestors and experience, common language, culture and religion. The United States has a fate different from “most peoples.” American identity is “willed affirmation” of what Huntington refers to as the ‘American creed.’ The creed is made up of (a) individual rights, (b) majority rule, and (c) a constitutional order of limited government power. American independence from Britain was not based on cultural difference, but on the adoption of principles found in the Declaration. Whittle Johnson in the Yale Review sees a sort of “covenanting community” of freedom under law, “transcending the ‘natural’ bonds of race, religion and class, itself takes on transcendent importance”. ^[206]

These political ideals, which emphasize political orthodoxy, make it possible for an ethnic diversity unequaled in Britain, France, Germany or Japan. And, lacking the ancestor who may have landed on Plymouth Rock or a distant cousin “purportedly” related to those of 1776, Anne Norton has explained that it is the only way immigrants can establish a commonality with those who had an ethnic history like those Founding Fathers. That singular commonality has become the criterion for belonging which is almost unique in its openness to strangers.^[208]

The touchstone of becoming a naturalized citizen in the United States is demonstration of an understanding of the Declaration, the Constitution and the Bill of Rights. One’s attachment to the Charters of Freedom is signified by a public oath supporting the Constitution. Hans Kohn described the United States Constitution as “unlike any other: it represents the lifeblood of the American nation, its supreme symbol and manifestation. It is so intimately welded with the national existence itself that the two have become inseparable.” Indeed, abolishing the Constitution in Huntington’s view would abolish the United States, it would “destroy the basis of community, eliminating the nation, [effecting] … a return to nature.”^[209]

As if to emphasize the lack of any alternative “faith” to the American nation, Thomas Grey in his article “The Constitution as scripture”, contrasted those traditional societies with divinely appointed rulers enjoying heavenly mandates for social cohesion with that of the United States. He pointed out that Article VI, third clause, requires all political figures, both federal and state, “be bound by oath or affirmation to support this Constitution, but no religious test shall ever be required…” This was a major break not only with past British practice commingling authority of state and religion, but also with that of most American states when the Constitution was written.^[210]

Escape clause.Whatever the oversights and evils the modern reader may see in the original Constitution, the Declaration that “all men are created equal” —in their rights— informed the Constitution in such a way that Frederick Douglass in 1860 could label the Constitution, if properly understood, as an antislavery document.^[211] He held that “the constitutionality of slavery can be made out only by disregarding the plain and common-sense reading to the Constitution itself. [T]he Constitution will afford slavery no protection when it shall cease to be administered by slaveholders,” a reference to the Supreme Court majority at the time.^[212] With a change of that majority, there was American precedent for judicial activism in Constitutional interpretation, including the Massachusetts Supreme Court, which had ended slavery there in 1783.^[213]

Accumulations of Amendments under Article V of the Constitution and judicial review of Congressional and State law have fundamentally altered the relationship between U.S. citizens and their governments. Some scholars refer to the coming of a “second Constitution» with the Thirteenth Amendment, we are all free, the Fourteenth, we are all citizens, the Fifteenth, men vote, and the Nineteenth, women vote. The Fourteenth Amendment has been interpreted so as to require States to respect citizen rights in the same way that the Constitution has required the Federal government to respect them. So much so, that in 1972, the U.S. Representative from Texas, Barbara Jordan, could affirm, «My faith in the Constitution is whole, it is complete, it is total …”^[214]

After discussion of the Article V provision for change in the Constitution as a political stimulus to serious national consensus building, Sanford Levinson performed a thought experiment which was suggested at the bicentennial celebration of the Constitution in Philadelphia. If one were to sign the Constitution today,^[215] whatever our reservations might be, knowing what we do now, and transported back in time to its original shortcomings, great and small, “signing the Constitution commits one not to closure but only to a process of becoming, and to taking responsibility for the political vision toward which I, joined I hope, with others, strive. ^[216]

The shrine

At first, whatever the veneration of the Constitution as a set of first principles might have been, little interest was shown in the parchment object itself. Madison had custody of it as Secretary of State (1801-9) but having left Washington DC, he had lost track of it in the years leading to his death. A publisher had access to it in 1846 for a book on the Constitution. Historian J. Franklin Jameson found the parchment in 1883 folded in a small tin box on the floor of a closet at the State, War and Navy Building. In 1894 State sealed the Declaration and Constitution between two glass plates and kept them in a safe.^[217]

The two parchment documents were turned over to the Library of Congress by executive order, and in 1924 President Coolidge dedicated the bronze-and-marble shrine for public display of the Constitution at the main building. The parchments were laid over moisture absorbing cellulose paper, vacuum-sealed between double panes of insulated plate glass, and protected from light by a gelatin film. Although building construction of the Archives Building was completed in 1935, in Dec 1941 they were moved from the Library of Congress until September 1944, stored at the U.S. Bullion Depository, Fort Knox, Kentucky. In 1951 following a study by the National Bureau of Standards to protect from atmosphere, insects, mold and light, the parchments were re-encased with special light filters, inert helium gas and proper humidity. They were transferred to the National Archives in 1952.^[218]

The design of the National Archives Building was authorized by Congress as a part of a massive New Deal public building program in the center of Washington DC to beautify the central market area immediately west of the Capitol. (Eastern Market east of the Capitol is still extant.) When John Russell Pope was added to the Board of Architectural Consultants, his vision brought its location to the foot of Capitol Hill and transformed it into a monumental building.

Since 1952, the ‘Charters of Freedom’ have been displayed in the Rotunda of the National Archives Building. Visual inspections have been enhanced by electronic imaging. Changes in the cases led to removal from their cases July 2001, preservation treatment by conservators, and installment in new encasements for public display September, 2003. ^[219][220]

The Archives were set up by Franklin Roosevelt in 1934. It keeps 1-3% of government documents to be kept forever. These are over 9 billion text records, 20 million photographs, 7 million maps, charts, and architectural drawings and over 365,000 reels of film. The monumental Archives Building was inadequate by the 1960s, so new facilities were built in College Park, MD. Work on electronic archives progresses.^[221]

Original Errata. During its first century, the parchment ‘Copy of the Constitution’ was not directly viewed for public purposes, and most of the penned copies sent to the states are lost.^[222]

But on inspection of one of the remaining copies held at the National Archives, there is an apparent spelling error in the original parchment Constitution, in the so-called Export Clause of Article 1, Section 10 on page 2, where the possessive pronoun its appears to be spelled with an apostrophe, turning it into it’s.^[223] However, the letters t and s are connected, and the mark interpreted as an apostrophe is somewhat inconspicuous; different U.S. government sources have transcribed this phrase with and without the apostrophe.^[224][225]

The spelling Pensylvania is used in the list of signatories at the bottom of page 4 of the original document. Elsewhere, in Article 1, Section 2, the spelling that is usual today, Pennsylvania, is used. However, in the late 18th century, the use of a single n to spell «Pennsylvania» was common usage — the Liberty Bell’s inscription, for example, uses a single n.^[223]

Worldwide

National constitutions

The world historian William Hardy McNeill taking a long view, sees the U.S. as “one of a family of peoples and nations” making a history apart from the European civilization of their colonization.^[226]

The United States Constitution is an expression of diverging from their colonial rule. Its effect is reflected in the ideals of a democratic republican constitution as limiting the rulers of a state apart and above sitting law-givers in a parliament. The concepts of governance influencing others internationally are not only found among similarities in phrasing and entire passages from the U.S. Constitution. They are in the principles of the rule of law and recognition of individual rights. The American experience of fundamental law with amendments and judicial review has motivated foreign constitutionalists to reconsider possibilities for their own future. ^[231]

Generally the influence of the Constitution is documented in trans-national history of ideas, foreign translations, and exchanges between Americans and their counterparts from the beginning with smuggled translations into Spanish America until today with conferences among national legislators. Innovations include constitutional conventions, written constitutions, ratification and amendment procedures. There are common provisions for presidential executives, federalism and judicial review.^[232]

George Athan Billias, studying the Constitution and related documents, describes six waves of influence: (1) From 1776-1811, after the American Revolution began, it influenced northwestern Europe and its colonial connections. (2) from 1811-1848, after the decline of Napoleon’s reputation, it was referenced by Latin American, Caribbean, and European nationalists. (3) From 1898-1918, after the Spanish American War, nationalist movements borrowed from the U.S. Constitution in Asia and Latin America. (4) From 1918-1945, after World War I, its influence spread with anti-colonial movements in Africa Mid-east and Asia. (5) From 1945-1974, after World War II, independence movements consulted it. Most recently, (6) From 1974-1989, after United Nations expansion, once nondemocratic regimes, including European ones, transitioned towards constitutional democracies incorporating elements of the U.S. Constitution.^[232]

This influence is beyond theory or ideology; rather, it addresses people living together under a common governance in a modern nation-state. The variety of state constitutions, the Articles of Confederation, Convention debates, Federalist Papers, ratification debates and the Bill of Rights, all show a way to a constitutional federalism which reconciles national power, social diversity and personal liberty across different places, populations and cultures.

Over its international history, American constitutionalism has waxed and waned in influence. Democratizing countries have often chosen the more centralized, consolidated British or French models. Internationally, it appears that those of Confucian and Islamic cultures do not readily adopt some of its premises. Nevertheless, “the influence of American constitutionalism abroad was profound in the past and remains a remarkable contribution to humankind’s search for freedom under a system of laws.” ^[232]

Translations

The Constitution has been translated into many languages, many of which can be found online. Sources include governmental agencies and universities, private foundations and associations.

The Federal Judicial Center has links to other materials about the United States government and judicial system. The site has materials in 16 languages besides English, such as Dari, Indonesian, Malay, Serb, and Turkish. ^[234] The Center’s statutory mission includes compiling histories and research resources and conferences. Its goal is to improve administration of justice in the U.S. and foreign countries. The Center works with judges and court officials of other nations, and other judicial education organizations.^[235]

The Columbia Law Review sponsors the International Constitutional Law Project. It has over 100 constitutions and provides English translations of and other textual material related to constitutional documents. The Project cross-references those documents for quick comparison of constitutional provisions internationally, internally within each document, and with background information. ^[236] The Historical Society of Philadelphia lists translations of the United States Constitution into various foreign languages. One example is Armenian.^[237]

University of Chicago Library features constitutional resources on the influence of the U.S. Constitution abroad. It holds texts of non-U.S. Constitutions, case reports, books, journals, articles and current commentary. ^[238] At the University of Richmond’s Constitution Finder, there are international constitutions, historical constitutions, and state constitutions. For China, there is the 1982, 1947, and Hong Kong Constitutions, and other documents. For the United States, there is the Constitution of 1787 with amendments and five unpassed amendments, the Articles of Confederation, the Confederate Constitution and 84 state constitutions past and present.^[239]

Professor James Chen has annotated the Spanish translation prepared by the U.S. State Department. His notes focus on the problems and nuances of this translation.^[240] Nguyen Canh Binh has translated the Constitution into Vietnamese.^[241] The Bill of Rights has been translated into Hawaiian.^[242] Elizabeth Claire has rewritten the Constitution into simplified English.^[243] Some of the many translations of The Constitution into other languages are listed below.

Arabic[244][245] Catalan[246] Chinese[247][248] Dutch[249]

Finnish French[250] Georgian German[251][252]

Hebrew[253] Hungarian[254] Italian[255] Japanese[256]

Korean[257] Portuguese[258] Russian[259] Slovak[260]

Spanish[261][234][262][263] Swedish Thai Ukrainian[264]

Commemoratives

National governments since the 19th Century have widely issued stamps in the administration of their internal and international communication. The government-run postal services use stamps to picture cherished national figures and symbolic scenes. They commemorate events that the issuing government represents as significant to their population. The U.S. Constitution has been commemorated both in the United States and internationally among those revering its contribution to their law and politics.

In 1937, the U.S. Post Office under the Presidency of Franklin Delano Roosevelt released a commemorative postage stamp celebrating the 150th anniversary of the signing of the U.S. Constitution. The engraving on this issue is after an 1856 painting by Junius Brutus Stearns of Washington and shows delegates signing the Constitution at the 1787 Convention. George Washington is on dais with an open document in hand, James Madison sitting at table with pages taking his famous notes on the convention.

Amendments to the United States Constitution are treated as integral to the document. One commemoration of the 19th Amendment permitting women the right to vote was celebrated in a U.S. commemorative in 1950 and again in 1970 (pictured). The woman is voting in a curtained mechanical voting booth. She choses levers to punch or mark her votes on a paper roll. The Model T has a man driver with a banner «Votes for women» on the car, women riders and marchers as though in a parade.

The Second Polish Republic issued a commemorative stamp of the U.S. and Polish Constitutions in 1938 under the government of Prime Minister, Major General Składkowski It features George Washington in military regalia, holding an 48-star American Flag and a drawn sword. Thomas Paine holds a book on a rod, and Kosciuszko poses with a cross and saber. The next scene is of a line of infantry flying a polish flag. The right panel shows the Statue of Liberty imposed in front of the New York 1930s skyline.

In 1937, the Second Spanish Republic commemorated the 150th anniversary of the signing of the U.S. Constitution under the government of Prime Minister Juan Negrín of the Spanish Socialist Workers’ Party (PSOE). The Statue of Liberty is the central focus, flanked by Spanish flags and United States Flags. The Spanish Republic Flag of red, yellow and purple, as battle flag or civil ensign, lacks the coat of arms.

Criticism

Several academics have criticized the Constitution. University of Virginia professor Larry Sabato wants an amendment to organize primaries to prevent a «frontloaded calendar» long before the election. Such an amendment would prevent a «race by states to the front of the primary pack», which subverts the national interest, in Sabato’s view.^[265] Sabato details more objections in his book A More Perfect Constitution.^[265] In an interview in Policy Today, Sabato is critical of the «incoherent organization of primaries and caucuses,»^[266] and faults the Constitution for enabling presidents to continue unpopular wars,^[266] for requiring presidents to be «natural born citizens»,^[266] for lifetime tenure for Supreme Court judges which «produces senior judges representing the views of past generations better than views of the current day.»^[266] He also writes that «If the 26 least populated states voted as a bloc, they would control the U.S. Senate with a total of just under 17% of the country’s population.»^[266] Richard Labunski appeals to the same Article V to apply popular pressure outside of established partisan and corporate channels. Like minded citizens could connecting by internet, organize congressional district meetings, gather in a state convention, and send delegates to a “pre-convention” in D.C. It would forward subject areas for Constitutional amendment to the States. The participating states would then trigger a Second Constitutional Convention. In his book «The Second Constitutional Convention», Labunski outlines ten subject areas that should be considered for constitutional amendments.^[267] Harvard law school professor Lawrence Lessig has called for state-based activism to summon a Second Constitutional Convention.^[268]

University of Texas law professor Sanford Levinson wonders whether it makes sense to give «Wyoming the same number of votes as California, which has roughly seventy times the population».^[269] Levinson thinks this imbalance causes a «steady redistribution of resources from large states to small states.»^[269] Levinson is critical of the Electoral College because the Electoral College allows the possibility of electing presidents who do not win the majority of votes.^[269] Three times in American history, presidents have been elected by the Electoral College despite failing to win the popular vote: 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison) and 2000 (George W. Bush).^{[270][271][272][273]} The current Constitution does not give the people a quick way to remove incompetent or ill presidents, in his view.^[273] Others have criticized the politically driven redistricting process popularly known as gerrymandering.^[274]

Yale professor Robert A. Dahl sees a problem with an American tendency towards worship of the Constitution itself. He sees aspects of American governance which are «unusual and potentially undemocratic: the federal system, the bicameral legislature, judicial review, presidentialism, and the electoral college system.»^[275] Levinson and Labunski and others have called for a Second Constitutional Convention,^[276] although professors like Dahl believe there is no real hope this would ever happen.^[275]

See also

General

• Bill of Rights Institute
• Commentaries on the Constitution of the United States by Joseph Story (three volumes)
• Congressional power of enforcement
• Constitution Day (United States)
• Federalist Papers
• History of democracy
• List of constitutions of the United States
• List of national constitutions (world countries)
• List of proposed amendments to the United States Constitution
• List of sources of law in the United States
• National Constitution Center
• Pocket Constitution

Related documents

• Magna Carta (1215)
• Mayflower Compact (1620)
• Fundamental Orders of Connecticut (1639)
• Massachusetts Body of Liberties (1641)
• English Bill of Rights (1689)
• United States Declaration of Independence (1776)
• Articles of Confederation (1777)
• Virginia Statute for Religious Freedom (1779)
• United States Bill of Rights (1791)

Notes

References

Primary sources

• Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993) ISBN 0-940450-42-9
• Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X
• Elliot, Jonathan, The Debates in the Several State Conventions of the Adoption of the Federal Constitution 5 vols Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison’s Notes, Misc. Letters
• Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, published during its Discussion by the People, 1787-1788, edited with notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y., 1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.
• Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.
• Kaminski, John P. ed Documentary History of the Ratification of the Constitution, 1976- (Published volumes 1-10, 13-23, forthcoming volumes 11-12, 24-29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5 ISBN 978-0-87020-439-5), Madison, The State Historical Society of Wisconsin, (http://www.wisconsinhistory.org/ratification) Edited by John P. Kaminski, Gaspare J. Saladino,Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.
• Kurland, Philip B. and Lerner, Ralph, eds. The Founders’ Constitution. The work consists of “extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced.” (Liberty Fund ISBN 0-86597-279-6) The Online Edition is a joint venture of the University of Chicago Press and the Liberty Fund.
• Maier, Pauline (2010). Ratification: The People Debate the Constitution, 1787-1788. Simon & Schuster. ISBN 978-0684868547.
• Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)
• Tribe, Laurence H. American Constitutional Law (1999)
• Yale Law School: «The Avalon Project: Notes on the Debates in the Federal Convention». The Avalon Project at Yale Law School. http://avalon.law.yale.edu/subject_menus/debcont.asp. Retrieved 2011-05-08.

Reference books

• Hall, Kermit, ed. The Oxford Companion to the Supreme Court of the United States. Oxford U. Press, 1992. 1032 pp.
• Levy, Leonard W. et al., ed. Encyclopedia of the American Constitution. 5 vol; 1992; 3000 pp.

Secondary sources

• Casey, Gregory. «The Supreme Court and Myth: An Empirical Investigation,» Law & Society Review, Vol. 8, No. 3 (Spring, 1974), pp. 385–420
• Fritz, Christian G. American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) [ISBN 978-0-521-88188-3
• Maier, Pauline. «Ratification: The People Debate the Constitution, 1787-1788» (2010) ISBN 978-0-684-86854-7, ISBN 978-1-4516-0636-2 ebook “MIT w/NYT,WP” “Harvard Mg”

Further reading

• Klos, Stanley L. (2004). President Who? Forgotten Founders. Pittsburgh, Pennsylvania: Evisum, Inc.. p. 261. ISBN 0-9752627-5-0.

External links

National Archives

• National Constitution Center
• The National Archives Experience—Constitution of the United States
• The National Archives Experience—High Resolution Downloads of the Charters of Freedom
• National Constitution Center’s «Interactive Constitution»

Official U.S. government sources

• Constitution and related resources: Library of Congress
• Analysis and Interpretation of the Constitution of the United States: Annotated constitution, with descriptions of important cases (official publication of U.S. Senate)

Non-governmental web sites

• U.S. Constitution Online
• Mobile friendly version of the Constitution
• Audio reading of the Constitution in MP3 format provided by the University of Chicago Law School
• Annotated Constitution by the Congressional Research Service of the U.S. Library of Congress (hyperlinked version published by Cornell University)

Declaration of Independence
Primary author Thomas Jefferson Signatories President of Congress John Hancock (Massachusetts) New Hampshire Josiah Bartlett • William Whipple • Matthew Thornton Massachusetts Samuel Adams • John Adams • Robert Treat Paine • Elbridge Gerry Rhode Island Stephen Hopkins • William Ellery Connecticut Roger Sherman • Samuel Huntington • William Williams • Oliver Wolcott New York William Floyd • Philip Livingston • Francis Lewis • Lewis Morris New Jersey Richard Stockton • John Witherspoon • Francis Hopkinson • John Hart • Abraham Clark Pennsylvania Robert Morris • Benjamin Rush • Benjamin Franklin • George Morton • John Clymer • James Smith • George Taylor • James Wilson • George Ross Delaware George Reed • Caesar Rodney • Thomas McKean Maryland Samuel Chase • William Paca • Thomas Stone • Charles Carroll of Carrollton Virginia George Wythe • Richard Henry Lee • Thomas Jefferson • Benjamin Harrison • Thomas Nelson, Jr. • Francis Lightfoot Lee • Carter Braxton North Carolina William Hooper • Joseph Hewes • John Penn South Carolina Edward Rutledge • Thomas Heyward, Jr. • Thomas Lynch, Jr. • Arthur Middleton Georgia Button Gwinett • Lyman Hall • George Walton See also Physical history • Second Continental Congress • Independence Hall • Life, liberty and the pursuit of happiness

Articles of Confederation
Signatories New Hampshire Josiah Bartlett • John Wentworth, Jr. Massachusetts John Hancock • Samuel Adams • Elbridge Gerry • Francis Dana • James Lovell • Samuel Holten Rhode Island William Ellery • Henry Marchant • John Collins Connecticut Roger Sherman • Samuel Huntington • Oliver Wolcott • Titus Hosmer • Andrew Adams New York James Duane • Francis Lewis • William Duer • Gouverneur Morris New Jersey John Witherspoon • Nathaniel Scudder Pennsylvania Robert Morris • Daniel Roberdeau • Jonathan Bayard Smith • William Clingan • Joseph Reed Delaware Thomas McKean • John Dickinson • Nicholas Van Dyke Maryland John Hanson • Daniel Carroll Virginia Richard Henry Lee • John Banister • Thomas Adams • John Harvie • Francis Lightfoot Lee North Carolina John Penn • Cornelius Harnett • John Williams South Carolina Henry Laurens • William Henry Drayton • John Mathews • Richard Hutson • Thomas Heyward, Jr. Georgia John Walton • Edward Telfair • Edward Langworthy See also Continental Congress

Continental Association
Signatories President of Congress Peyton Randolph New Hampshire John Sullivan • Nathaniel Folsom Massachusetts Bay Thomas Cushing • Samuel Adams • John Adams • Robert Treat Paine Rhode Island Stephen Hopkins • Samuel Ward Connecticut Eliphalet Dyer • Roger Sherman • Silas Deane New York Isaac Low • John Alsop • John Jay • James Duane • Philip Livingston • William Floyd • Henry Wisner • Simon Boerum New Jersey James Kinsey • William Livingston • Stephen Crane • Richard Smith • John De Hart Pennsylvania Joseph Galloway • John Dickinson • Charles Humphreys • Thomas Mifflin • Edward Biddle • John Morton • George Ross