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2.1: Importance of a Written Constitution

  • Page ID
    1998
  • Figure 2.1.1: Delegates (who also became known as the “framers” of the Constitution) were a well-educated group that included merchants, farmers, bankers and lawyers.

    When the Framers of the Constitution set about creating a new constitutional form of government, they wanted a document that would divide, distribute, balance, and protect governmental powers, and ensure that the liberties and rights of the people were protected. To achieve this, they instituted a series of important principles into the new Constitution.

    Of course, they did not do this without a little help from those giants upon whose shoulders they knew they were standing–the Enlightenment philosophers such as Hobbes, Locke, Rousseau, and Montesquieu. While we have talked about the influence of these enlightened thinkers, it is probably a good time to remind ourselves of their importance.

    These brave men, the Founding Fathers, worked in unknown and untested territory – the creation of an entirely new form of Democracy (which would be described as a Federal Republic). In order to implement this grand experiment, the Founding Fathers instituted a number of important philosophical principles, which we will call “Constitutional Ideals.” These are described in the chart below:

    IMPORTANT CONSTITUTIONAL IDEALS

    POPULAR SOVEREIGNTY

    People establish governments and are the source of all governmental powers. People tell the government what to do instead of governments controlling the lives of the people.

    LIMITED GOVERNMENT

    Governments must have restricted and highly controlled power so that they do not exercise “tyranny” or unrestrained power over the people. Individual rights must be “firewalled” and protected from government abuse.

    SEPARATION OF POWERS

    Government power is divided among branches. In U.S. Government there are three branches: the Legislative (lawmaking), Executive (Implement and Execute laws), and Judicial (Interpret and enforce laws).

    CHECKS AND BALANCES

    In order to ensure that no one branch of government wields too much power over the others, each branch is given authority to check or restrain some of the powers of the other branches.

    JUDICIAL REVIEW

    The judiciary (Supreme Court and lower courts) has the power to strike down laws and other government actions as unconstitutional.

    FEDERALISM

    The powers and rights of the states are protected and balanced with powers and rights given to the national government through a process of division and power-sharing as outlined in the Constitution.

    The Constitution's Design

    The Constitution is a brief document when compared to other constitutions around the world.

    The Constitution serves as a blueprint for how our government operates.

    The Constitution is organized into three main parts, including:

    1. A Preamble stating that the people hold the power in this new government and listing the purposes for government
    2. A series of seven specific articles incorporating the principles of constitutional government with specific protections and a shared system of governmental power between the states and a newly created national government
    3. A newly created Bill of Rights (the First Ten Amendments to the Constitution), and an additional 17 amendments that we have picked up along the way during our nation's history

    Once these basic principles of governing were identified, they were included in the new Constitution. The Founding Fathers believed that if the new federal government could be instituted in such a way as to reflect these basic principles and could stay true to them over time, this new experiment just might work. Of course, now more than 227 years later, they did such a good job, the document has only had to be formally changed 27 times to date. Of those 27 formal changes, ten of them were made in the first two years of the new Constitution in order to create our nation’s Bill of Rights.

    The Constitution as a Blueprint of American Government

    In its original form, the U.S. Constitution runs just over 4,500 words. In comparison to other national constitutions, and to individual state constitutions, this is a brief document. In this brief document, the Founding Fathers offered us an outline for governance that has incorporated ideas that worked for other governments in the past, as well as new and uniquely "American" ideas that make our Constitution something that has been the envy (and the model) of modern democracies throughout history.

    The Constitution that we apply today was written in three main parts. First, there is the Preamble, followed by the articles (the meat of the Constitution), and lastly the Amendments (there are presently 27). The Preamble acts as an introduction to the Constitution and clearly states the goals and purposes of our government. The Seven Articles are presented in such a way as to first divide the government into its three branches: Legislative (Article I), Executive (Article II) and Judicial (Article III). Article IV specifically outlines the American system of federalism, which is the balance and division of power between the new national government and the individual states. Article V discusses the process by which the Constitution may be formally changed or amended. This has only happened 27 times in our history. The first ten of those changes created the Bill of Rights, so overall this document has remained relatively formally unchanged throughout its history. Let's compare that to the almost 500 times the Texas State Constitution has been changed since its creation in 1876. Article VI makes the Constitution the "Supreme Law of the Land" and establishes a "pecking order" by which federal and state laws will be judged. Lastly, Article VII was intended to be used only once. That is, it was designed to outline the process by which the Constitution itself would be adopted by the 13 states.

    So, there it is--an outline of our Constitution in one paragraph. Of course there is much more to learn, so a commentary and description of the Constitution have been included along with a series of interactive links to games, documents, and videos that will help you as you explore this important document.

    Additional Resources

    Interactive Web Links:

    Constitution for Dummies Videos

    Playlist at https://www.youtube.com/playlist?list=PLi3U-nPPrbS5d-juhFwo3hTBso0gq2sUZ

    Preamble -

    Article I (Congress) -

    Elastic Clause -

    Article II -

    Article III -

    Article IV -

    Article V -

    Article VI -

    Article VII -

    http://www.archives.gov/exhibits/charters/constitution_q_and_a.html

    Hatton Sumners Activities “Walk Through the Constitution

    http://www.law.cornell.edu/constitution/overview

    Annenberg Guide to the U.S. Constitution

    http://www.annenbergclassroom.org/page/a-guide-to-the-united-states-constitution

    Link to Spanish Translation of the Constitution

    http://www.usconstitution.net/const_sp.html

    WEB LINK: INTERACTIVE CONSTITUTION

    For an interactive version of the Constitution, go to constitutioncenter.org/constitution/


    Figure 2.1.2

    Constitution Overview

    The Preamble

    “We the People” … these three words set the tone for the United States Constitution. They were intended to document the recognition of popular sovereignty, the idea that all government power comes from the people. The Preamble continues by outlining the specific purposes of government in the United States:

    1) To form a more perfect union – correct problems inherent in the Articles of Confederation

    2) Establish Justice – Create a system of fair and equitable justice (federal courts)

    3) Ensure domestic tranquility – Respond to internal disruptions and disputes between the states

    4) Provide for the common defense – Provide a system of national defense including army and navy

    5) Promote the general welfare – Economic and social prosperity and a stable society

    6) Secure the blessings of liberty – promote and protect individual rights and liberties particularly with regard to property and protections from government intrusions on the people.

    Article 1: The Legislative Branch

    Section 1 – Only Congress can make laws, and Congress will be bicameral (two-chamber body) consisting of the House of Representatives and Senate.

    Section 2 Clause 1: Members of the House of Representatives are chosen every two years through popular election. Individual states cannot bar someone who is legally eligible to vote from participating. This means that states cannot limit voting to only a “small elite.”

    Section 2 Clause 2: Details job requirements for serving in the House: members must be 25 years old, a citizen for at least seven years, and live in the state they are elected to represent.

    Section 2 Clause 3: Establishes that representation in the House is based on apportionment, meaning House Representation is based on population. States with more population would get more representatives. States with smaller populations would get fewer representatives. Apportionment would be based on a National Census (a count of the number of people living in the country) to be taken every ten years. No state, regardless of population, would have less than one representative. This section also includes a clause (a compromise) allowing slaves to be counted as three-fifths of a person for apportionment purposes (three-fifths compromise). In addition, an original clause dealing with direct taxes to the states was removed after the 16th Amendment allowed for a federal income tax.

    Section 2 Clause 4: Specifies rules for vacancies. When a congressional seat becomes vacant in the middle of a term, the governor of the state must call a special election to fill that opening.

    Section 2 Clause 5: Lists procedures for impeachment. The House of Representatives chooses officers from among themselves (including Speaker of the House), and has the sole power to impeach (initiate proceedings to remove executive and judicial officers from their jobs, including the president). Note that in this case, impeachment is only the accusation that someone has committed a high crime or a misdemeanor. The Senate actually conducts a trial with the Chief Justice of the Supreme Court presiding. If the person is convicted during that trial, the only power the Senate has is the ability to remove that person from office. Any additional punishment must come from the courts through a criminal or civil trial.

    Section 3 Clause 1: Every state has exactly two senators regardless of population. Each senator’s term lasts six years, and the terms are staggered (one-third of the Senate is up for election every two years). Since the Senate was designed to represent the states, the state legislators originally selected the senators themselves. In 1913, the 17thAmendment allowed for direct election of senators through popular election, so the states no longer appoint their senators.

    Section 3 Clause 2: This is the clause that sets-up the staggered terms of senators so that no more than one-third of the Senate is up for reelection at any given time (basically only one-third of the senators have to run for re-election in any two-year period). This means the Senate is considered a “continuous body” because only a small number of senators (1/3 of the Senate) will face reelection at the same time. Remember, the Senate was originally intended to represent the interests of the state, and senators were appointed by state legislatures. This process changed with the 17thAmendment by allowing the direct popular election of senators. The 17thAmendment also requires any Senate vacancy to be filled in a special election called by the state’s governor (just as with the House).

    Section 3 Clause 3: To be a senator you must be at least 30 years old, a citizen for at least nine years, and live in the state you will represent.

    Section 3 Clause 4: The vice president was originally intended to serve a very minor role in the government unless the president died. The role of the vice president was mostly a ceremonial role as “President of the Senate,” because he or she only has the power to participate in debate or cast a vote if there is a tie between the other senators. Most vice presidents have opted not to bother showing up in the Senate except for very special occasions.

    Section 3 Clause 5: Establishes the office of “President Pro Tem." This is usually a senior senator of the majority party who presides over the Senate in the absence of the vice president, (which is most of the time). The Senate also has the power to choose other officers from among its members.

    Section 3 Clause 6: The Senate has the power to try a case of impeachment (which begins in the House). If the House of Representatives votes to impeach a civil officer, the Senate serves as judge and jury. If two-thirds of the senators vote for conviction, the impeached (accused) official is removed from office. Only twice has an impeachment trial been held. The first was the trial of Andrew Johnson in 1868. The second was the case of Bill Clinton in 1998. In both cases, the Senate did not convict. The impeached presidents served out their full terms in office. However, the Senate has removed lesser officials and judges from office through this procedure.

    Section 3 Clause 7: Places limits on penalties for impeachment to removal from office and disqualification from holding further government office. Also says the convicted party may be held accountable in a criminal or civil trial if further punishment is deemed.

    Section 4 Clause 1: The Constitution leaves the organization of congressional elections up to the states, but gives Congress the power to set rules and requirements for federal elections. For instance, Congress passed a law in 1842 requiring single-member district elections in every state and standardized the congressional election practices across the country. This same law set one common Election Day--the Tuesday after the first Monday in November.

    Section 4 Clause 2: Congress is required to have at least one session per year. The 20th Amendment in 1933 moved the opening day of Congress from the first Monday in December to January 3.

    Section 5 Clause 1: The House and Senate have the power to judge the qualifications of their own members. For example, if a Senate election is disputed, it would ultimately be up to the Senate itself to decide which candidate would actually be recognized as the new senator. The second part of this clause requires a majority of either chamber’s membership to be present in order for a quorum to be recognized. If less than that required number of members are present, Congress can continue to conduct business but any member can issue a "quorum call” which requires either a majority of members to show up or the House to temporarily adjourn.

    Section 5 Clause 2: The House and the Senate have the power to establish their own rules for conducting business (parliamentary procedure). Over the course of our nation’s history, the rules of Congress have grown increasingly complex. Both the House and the Senate have the power to censure (punish) their own members for bad behavior, but to expel (kick out) a member requires a two-thirds vote from their respective body.

    Section 5 Clause 3: Requires both chambers of Congress to keep and publish an official record of their sessions. The Congressional Record is a publication printed and distributed daily when either of the two houses is in session. The Record documents all official activity of both houses.

    Section 5 Clause 4: Neither of the chambers may go on an “extended vacation” while the other remains in business unless the other chamber approves. The purpose of this is to prevent one house from interfering or obstructing with the other’s legislation by not showing up for work.

    Section 6 Clause 1: State Senators and Representatives have to be paid for their services according to law, and they are to be paid from the Treasury of the United States. The 27th Amendment modified this a bit by forbidding Congress from giving itself a raise in the same term; (they have to stand for re-election before the raise can take effect). Interestingly, this amendment was first proposed in 1789 as a part of the Bill of Rights but was not ratified until 223 years later in 1992. This clause also provides for legislative immunity for congressmen and congresswomen, meaning they cannot be charged with a crime for anything they say in Congress, or they cannot be arrested nor detained by the police unless they have committed treason or another serious crime. The purpose of this was to ensure that the president or others in the Executive branch can’t abuse their powers by arresting or jailing legislators who disagree with them.

    Section 6 Clause 2: People who serve in the Executive or Judicial branches of the U.S. government cannot serve in Congress at the same time. Members of Congress can’t serve in the Executive or Judicial Branches either. Also, a member of Congress can’t quit his seat in order to take another governmental job if that job has undergone a salary increase during his or her term. The purpose of this provision is to prevent corruption by prohibiting a congressman or congresswoman from voting in favor of a pay raise for an executive office with intent to move into that office.

    Section 7 Clause 1: Requires all bills dealing with taxes or tariffs to originate in the House of Representatives, but gives the Senate its regular power to change any bill sent to it from the House. Basically, it addresses the “No Taxation Without Representation!” complaint by making sure only directly elected officials (the House) are able to initiate a law that would tax the people. This clause really isn’t as relevant since the passage of the 17th Amendment requiring the direct election of Senators.

    Section 7 Clause 2: Outlines how a bill becomes a law. Both houses of Congress must pass the same bill. Then it is sent to the president for signature. If the president signs it, then it becomes a law. If not, this is called a veto. Next, the bill returns to Congress where a two-thirds vote in both houses can override it. If the president doesn’t do anything, the bill becomes law without his or her signature after ten days (not counting Sundays). If Congress adjourns less than ten days after sending the bill to the president, he or she can “pocket veto” it by refusing to sign. If Congress adjourns before the ten days are up, the normal provision by which a bill becomes law does not take effect.

    Figure 2.1.3: How Our Laws are Made

    Section 7 Clause 3: A joint resolution of Congress is a special measure passed under special circumstances (unlike the procedure for passing regular bills of law). Joint resolutions are still supposed to be sent to the president for his signature, but a joint resolution signed by the president has “the force of law." A simple congressional resolution not sent to the president for signature does not have the force of law.

    Section 8 Clause 1: Congress has the power to create and collect taxes and to tax imported goods (tariffs), but can’t charge more for tariffs in one state than another. Congress also has the power to apply taxes to pay federal debts.

    Section 8 Clause 2: Congress is allowed to borrow money to pay for governmental services and programs. Deficit spending in a time of peace has only recently become common. For most of our nation’s history, this power was used in order to financially support national defense.

    Section 8 Clause 3: Congress has the power to create laws and rules that regulate commerce between states with regard to international business. This clause, called the interstate commerce clause has been very controversial with regard to its interpretation by the courts. For a long time, judges tended to apply this clause very narrowly, but beginning in the 1930s, judges have tended to apply this clause very broadly, therefore, allowing the government to regulate all types of economic activity. For example, Congress sets a national minimum wage. It has also been used to enforce laws on the states that would, on the surface, have no application to commerce--like drug laws and pornography statutes.

    Section 8 Clause 4: Congress has the power to set up a system for immigrants to become American citizens. Congress also has the power to establish rules for bankruptcy (allowing people with more debt than income to have their debts forgiven).

    Section 8 Clause 5: Congress has the power to mint money and to conduct operations that set its value. In practice, when the Federal Reserve Bank was created in 1913, the power of Congress to set the value of money was theoretically transferred to the “Fed.” Congress also has the power to set standards of weights and measures.

    Section 8 Clause 6: Congress can make and enforce laws that punish those who counterfeit United States currency.

    Section 8 Clause 7: Congress has the power to create and operate post offices and to build roads to connect to them.

    Section 8 Clause 8: Congress has the power to set up a copyright and patent system and to grant copyrights and patents that allow people the exclusive right to sell what they have created.

    Section 8 Clause 9: Congress was given the right to create a Federal Court System. This has occurred over time. There are currently twelve Circuit Courts of Appeals and 94 federal District Courts. In addition, there are a number of other special courts including bankruptcy courts and immigration/naturalization courts.

    Section 8 Clause 10: Congress has the power to punish piracy. While it might seem as though this is an irrelevant or antiquated clause, beginning in 2009 piracy has become a hot topic again. This particularly applies to protecting U.S. shipping off the coast of Somalia where pirates have targeted merchant ships off the Horn of Africa.

    Section 8 Clause 11: Congress has one of the most important powers in government--the power to declare war. Technically, only Congress can officially declare or make war. The president can’t. This clause also allows Congress a very unusual power--the power to hire pirates to attack the nation’s enemies (a letter of marquis) as long as that pirate is acting on behalf of national interests. Again, this section might seem antiquated, but in today’s environment of international terrorism and threats to our electronic networks, it may come in handy.

    Section 8 Clause 12: Congress has the power to raise and support armies, meaning it has the “power of the purse.” While the president may act as Commander in Chief and has the ability to engage the military for a period of time, Congress has the power to decide whether or not it will pay for such actions. It cannot fund a military action for more than two years in the future.

    Section 8 Clause 13: Congress has the power to create and maintain a navy.

    Section 8 Clause 14: Congress has the power to set rules for the behavior of its armed forces. Before 1951, these rules were part of the “Articles of War” but since 1951 they have been contained in the Uniform Code of Military Justice, which contains standing laws and rules for military service members. Soldiers or sailors who break these rules can face a court-martial and be punished.

    Section 8 Clause 15: Congress has the power to call out the militia. Today, this means the National Guard.

    Section 8 Clause 16: Control over the militia is divided between Congress and the state governments. If the National Guard or militia is called into national service, Congress must pay for it, but Congress can also govern its actions. The states retain control over who serves as its officers and how its men are trained.

    Section 8 Clause 17: Congress has the power to build a national capital outside the jurisdiction of any state. This is how Congress came to choose a piece of swampland (Washington D.C.) along the Potomac River that was originally part of Maryland and Virginia. Congress also has authority on all federal military installations, even if they are located within a particular state.

    Section 8 Clause 18: This is the necessary or proper clause, also called the “elastic clause” because it is the basis for all of the legislative branch’s implied powers (meaning those that extend beyond the ones specifically listed or enumerated in clauses 1-17). Throughout history, this clause has been used as justification for a gradual expansion of Congressional powers and for the creation of a host of federal government actions and programs. It is called the elastic clause because it can stretch or extend to any number of presumed or implied purposes. It’s a one-size-fits-all piece of law that is incredibly important to understand today.

    Section 9 Clause 1: This derived as a result of another compromise between northern and southern states which barred any attempt to outlaw the slave trade prior to 1808. As soon as that provision expired, Congress voted to block the international slave trade, but slaves continued to be sold and bred within the country for another 60 years (until the end of the Civil War).

    Section 9 Clause 2: People can’t be held in jail without facing charges and being brought before a judge. This provision has been debated recently as the war on terrorism placed people in Guantanamo (off American shores) without being formally informed of charges or being brought before a judge. President George W. Bush argued that terrorism subjects in Guantanamo had no right to habeas corpus and could be held indefinitely without trial.

    Section 9 Clause 3: A bill of attainder is a law that basically pronounces certain people guilty of a crime and imposes a punishment on them without ever seeing a judge. These bills were used by the British Parliament during the Revolutionary period, and the American Founding Fathers hated them. Ex post facto laws are laws that criminalize an act after the act has already been committed. They punish someone for committing a crime when it wasn’t really a crime when they committed the act.

    Section 9 Clause 4: A capitation tax is basically a “head tax” which is charged to each individual in the population. It meant that Congress had to levy and apply taxes on the basis of a state’s population and not on the basis of individual income or other individual standards. The 16thAmendment took out the phrase “other direct Tax[es]” and made it possible to implement the modern income tax system.

    Section 9 Clause 5: Southern states did not want Congress to unfairly tax their export crops (cotton, tobacco, rice, and indigo), so they insisted that the Constitution forbid taxing the exportation of items. In another compromise (the commerce compromise), northern states agreed and only gave Congress the power to tax imports, not exports.

    Section 9 Clause 6: Congress can’t treat any state unfairly by charging taxes for shipping goods from one state to another. Also, one state’s ports may not be treated with more favor than another through preferential regulations or taxes.

    Section 9 Clause 7: Grants Congress sole “power of the purse” – the ability to control government spending. Theoretically, the president may not spend public money without getting approval from Congress first through an appropriations bill. This is probably the most important check and balance that Congress has against unlimited presidential power. It has become the center of an increasing debate over which branch of government should wield the most power in government.

    Section 9 Clause 8: The Framers wanted to ensure that the U.S. would not develop a formal aristocracy like its European cousins. The U.S. Government can’t grant any title of nobility (like King, Duke, Earl, Lord, etc.). Also, no one working for the government is allowed to accept a grant of nobility from a foreign government. This was intended to keep foreign powers from corrupting U.S. government officials.

    Section 10 Clause 1: Only the federal government (not the states) has the power to conduct foreign diplomacy or to print money. States are also barred from doing many of the same things the federal government can’t do – such as bills of attainder and ex post facto laws. Also, they can’t pass laws that break contracts, or they can’t grant state-level titles of nobility. This was included primarily to make sure that the states didn’t act like little, independent countries and undermine the national government (like they did under the Articles of Confederation).

    Section 10 Clause 2: States can’t act like little countries, so they are not allowed to charge taxes or tariffs on imports from other states. Can you imagine how expensive it would be to transport goods across a number of independent state lines if each state cold charge import tariffs? Remember, only the national government has the power to regulate interstate trade.

    Section 10 Clause 3: States aren’t allowed to run their own armies or start their own wars. They can keep their own militias, under the oversight and direction of the federal government. They can only call up those militias in a time of emergency or war. Usually, this is where the federal government would step in anyway.

    Article 2: The Executive Branch

    Section 1 Clause 1: Grants the president “executive power,” which is not well-defined and has been very broadly interpreted. Establishes the presidency as a strong office within the American governmental system. Gives the president a strong mandate to enforce the country’s laws and administer its public policies. Sets the term of the president and vice president as four years, but doesn’t specifically limit the number of terms a president can serve. That would be added later.

    Section 1 Clause 2: Establishes one of the most misunderstood parts of government – the Electoral College. Each state gets electoral votes equivalent to the number of representatives and senators it has. Makes a compromise between allocating the electoral votes on the basis of population (house members) and equally (senators) for each state. Over our history, this system has allowed four candidates to win the presidency even though they lost the popular vote. Most recently this happened in the case of George W. Bush in 2000 who handily lost the popular vote but, with a little help from the Supreme Court, won the electoral vote by taking Florida in a highly contested and narrow election where fewer than 300 votes separated the winner from the loser.

    Section 1 Clause 3: Set the procedure for the assembly and process of the Electoral College, but it was changed in 1804 by the 12th Amendment. The original system proved flawed when Thomas Jefferson accidentally finished in a tie with his vice-presidential running-mate, Aaron Burr. The 12th Amendment was an effort to avoid this problem by separating the ballot for president from that of vice president.

    Section 1 Clause 4: Congress sets the date for presidential elections. Since the mid-1800s, Congress has held presidential elections on the Tuesday following the first Monday in November.

    Section 1 Clause 5: Requirements for president: must be born an American citizen (not naturalized), must be at least 35 years old, and must reside in the United States for at least 14 years.

    Section 1 Clause 6: Establishes a procedure for presidential succession (what happens if the president or vice president dies while in office). Later would be modified by the 25th Amendment in 1967.

    Section 1 Clause 7: President must be paid. The president receives a predetermined salary that can’t be changed during his or her term in office. The presidential salary is currently $400,000 with a $50,000 annual expense account.

    Section 1 Clause 8: Spells out the exact language of the presidential oath of office. “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” In President Obama’s January 2009 inauguration, Chief Justice John Roberts accidentally misquoted this oath. Therefore, questions arose regarding the legitimacy of Obama’s presidency, so he took the oath again in a private ceremony the next day just to make sure his critics didn’t “pounce” on this. In reality, he became president at noon on that day anyway (at least that’s the interpretation of many constitutional scholars).

    Section 2 Clause 1: Spells out important presidential powers. First, he or she serves as commander in chief of the military. Secondly, he or she heads up all civilian departments of government. He or she is given the ability to establish what has become known as the Presidential Cabinet (consisting of the heads of all of the Executive Branch departments). Third, he or she is granted the power to pardon individuals convicted of crimes. Most famously, Gerald Ford pardoned Richard Nixon after Nixon’s resignation in 1974. For this, Gerald Ford was not elected in 1976--(people didn’t forget!)

    Section 2 Clause 2: The president has the power to negotiate treaties with foreign governments, but it takes a two-thirds vote of the Senate to ratify. He also has the power to nominate all appointed officials in government, including officers of the Executive Branch and judges in the Judicial Branch, but he needs “advice and consent” of the Senate to do so. Basically, this means a majority-vote approval for a nominee to be confirmed, and many confirmations have increasingly become contentious as Congress has refused to “rubber stamp” presidential nominees.

    Section 2 Clause 3: The president can make “recess appointments. This means he or she can appoint people to governmental positions without going through the confirmation process if the Senate is out of session. These appointments are only temporary and can’t last any longer than the next session of Congress.

    Section 3 Clause 1: The president is required to report on the “State of the Union.” This has become a very important part of the president’s “bully pulpit” power. The "State of the Union Address” is delivered every January to a joint meeting of both houses of Congress. The president can call Congress into special session when it is on a recess if he or she thinks there is urgent business that Congress needs to confront. The president must “faithfully execute” the laws of the United States and must grant commissions to all military officers of the United States.

    Section 4 Clause 1: If the president really messes up, and Congress finds him guilty of treason, bribery, or other “high crimes and misdemeanors” [which has never really been defined], he or she can be impeached and removed from office before the end of the normal four-year term. Remember, impeachment is just the charges that’s done in the House. Removal happens after the Senate conducts a trial and (if) he or she is convicted. This complete process has never happened. While two presidents have been impeached, no president has been convicted and removed from office.

    Article 3: The Judicial Branch

    Section 1: Creates the Supreme Court and grants “all judicial power of the United States” to that court, making it the highest court in the land and head of the Judicial Branch. Also, gives power to create “inferior courts” – basically what we know as the Federal Judicial System. There are nearly 100 Federal District Courts and a dozen circuit Court of Appeals around the country. There are several other types of special courts including bankruptcy courts and immigration/naturalization courts. With the exception of special courts, federal judges are appointed for life terms and are paid salaries that cannot be reduced while they remain on the bench.

    Section 2 Clause 1: Defines the jurisdiction of the Federal Courts. Federal Courts have the jurisdiction to decide cases involving federal law, disputes between states, and disputes between residents of different states. The 11th Amendment, passed in 1795, limited federal jurisdiction in several types of cases involving state governments.

    Section 2 Clause 2: Cases involving Ambassadors, foreign ministers and consuls, and cases involving the States as a party (very limited after the 11th Amendment) must originate in the Supreme Court. Otherwise, the Supreme Court acts as a court of last appeal and has the power to determine which cases it will hear. Every year, tens of thousands of cases are presented to the Supreme Court for consideration, but less than one hundred are selected for argument and consideration. Think of that the next time you threaten to take your traffic ticket “all the way to the Supreme Court”!

    Section 2 Clause 3: Anyone accused of a crime in Federal Court has the right to a trial by a jury of his or her peers rather than a bench trial. This means a trial held only by a judge. The framers of the Constitution believed that trial by jury was a critical part of liberty and wanted to prevent any potentially tyrannical judge from abusing his or her power.

    Section 3 Clause 1: Treason was a very serious crime in the time of the Founding Fathers. It was also one that could be abused. For this reason, the authors of the Constitution very specifically and narrowly defined this crime. The requirement is for two eyewitnesses to give testimony to the same overt act unless the accused person confessed in open court. This is why it is very rare to see someone convicted of treason today.

    Section 3 Clause 2: The government cannot punish the relatives or descendants of a person convicted of treason. While the maximum punishment for treason is death, the United States has never executed anyone for committing treason. Even in the famous case of Ethel and Julius Rosenberg, who were tried and executed for stealing the secrets to the Atomic Bomb and delivering them to Russia in the 1950s, the conviction was for espionage (spying) and not treason!

    Article 4: Interstate Relationships and Federal Property Management

    Section 1: Each state must recognize the laws, records, and court rulings of other states. This is called the ‘Full Faith and Credit” clause and has been particularly placed at the center of the recent debate over such matters as same-sex marriage. In 2015, The Supreme Court settled this debate in the case of Obergefell v. Hodges. In a 5-4 decision the court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

    Section 2 Clause 1: States can’t discriminate against the residents of other states.

    Section 2 Clause 2: States are required to extradite (return) captured fugitives from justice in other states to the state where the crime took place in order to face trial.

    Section 2 Clause 3: Another holdover from slavery, this infamous fugitive slave clause required that slaves who had escaped from freedom in the North were required to be sent back to their owners in the South. When the 13th Amendment, which banned slavery, was adopted, this provision of the Constitution was null and void.

    Section 3 Clause 1: The framers of the Constitution planned for future expansion and growth for the country by setting up a system of territorial and state adoption. New states could apply for admission, but existing states could not be broken up to form a new state and states could not combine into bigger states without the consent of those states involved as well as Congress. The only time a state was formed from another state was West Virginia which did not join the rest of Virginia in seceding from the Union during the Civil War. Because Virginia was not recognized as a state during the Civil War, the Union admitted West Virginia.

    Section 3 Clause 2. Western territories that hadn’t yet become states would fall under the direct control of Congress (as territories). They would later be admitted as states using the procedures in Clause 1.

    Section 4: The national government guaranteed that each state would maintain a representative (Republican) form of government, and no state would be allowed to become a dictatorship. The federal government also committed to protecting all of the states from foreign military attack and to come to the assistance of states if they were to be threatened by uprisings or insurrections.

    Article 5: The Amendment Process

    Section 1: The Constitution can be changed through a formal process established in the Constitution. For an amendment to take effect, it must first be officially proposed by a two-thirds vote in both houses of Congress (or by two-thirds of all state legislatures). Then it must be ratified by three-fourths of the state legislatures. Over the course of American history, 27 amendments to the Constitution have been ratified. Article V includes two restrictions, both rooted in the difficult compromises that were made during the Constitutional Convention to solve controversies over slavery and representation. The first restriction, crossed out here because it is no longer operative, barred any amendments that would have outlawed the slave trade before 1808. The second restriction ensures that no amendment can end the system of equal representation of all states, large and small, in the U.S. Senate.

    Supremacy of Laws Illustration
    Figure 2.1.4: The Supremacy Clause (Article VI Clause 2) of the Constitution says that the Constitution is the Supreme Law in the Land

    Article 6: Governmental Supremacy (The Supremacy Clause)

    Section 1: The new government formed by the Constitution would promise to take on all debts that had been accumulated by the older, weaker national government under the Articles of Confederation. This signaled to other nations and to individual creditors that the new nation wasn’t trying to excuse itself from paying its debts.

    Section 2: Clearly states that the Constitution is the “supreme law of the land.” No other law, regardless of how it was passed (federal or state) would be more powerful that the Constitution. Basically, there is a “pecking order” of laws Constitution->Federal Treaties -> Federal Laws -> State Constitutions -> State Laws -> Local Ordinances.

    Section 3: All government officials (elected or appointed) must swear an oath to support the Constitution of the United States. That Oath does not need to be religious in nature and the government cannot require any official to pass any test of religious affiliation in order to take office. This ban on religious tests was included to make sure that the U.S. Government was secular (non-religious) in nature and that there was a clear wall of separation between church and state.

    Article 6: Ratification

    Section 1: Requires at least nine states to ratify the new Constitution before it can become law. The Founding Fathers were very worried that they would not be able to get unanimous approval from all 13 states for the new Constitution, so the Framers decided that ratification would require at least nine states to approve it before it could become law.

    The Constitution was drafted on September 16, 1787. Delaware was the first state to ratify it on December 7, 1787. During the ratification and adoption process, two parties developed: one opposing adoption (the Anti-Federalists) and one favoring adoption (the Federalists). These two parties continued to publish justifications for their position in newspapers across the country. The most famous of these was The Federalist Papers(promoting the side of the Federalists and arguing for the Constitution). After New York ratified the Constitution on July 26, 1788, the Continental Congress, which was still the official government of the United States (while only meeting at irregular intervals), passed a resolution on September 13, 1788, to place the new Constitution into operation with eleven states. The last state to ratify the new Constitution was Rhode Island who was so concerned about this new Constitutional form of national government that they didn’t even send delegates to the Philadelphia Convention. On May 29, 1790, Rhode Island finally became the 13th state to ratify the Constitution, resulting in its unanimous ratification by all 13 states.

    Figure 2.1.5

    Study/Discussion Questions

    For each of the following terms, write a sentence which uses or describes the term in your own words.

    popular sovereignty

    limited government

    separation of powers

    checks and balances

    judicial review

    federalism

    CONSTITUTION SUMMARY QUESTIONS

    Based on the resources provided in this chapter, answer the following questions as you read through the United States Constitution.

    You should use both the original text, found at http://www.archives.gov/exhibits/charters/constitution_transcript.html as well as the information provided in this section to answer the questions. Be sure to answer all questions in complete sentences and use textual evidence to support your answers.

    Preamble

    1. The Preamble is a statement of both the source of the political authority of the Constitution and of its purposes or goals. On whose authority does the Constitution rest? In your own words, explain the purposes of the Constitution as stated in the Preamble.

    2. What kind of governmental institutions and powers would be necessary to fulfill these purposes? Do you see any potential conflicts among these purposes?

    Article I Section 1

    3. What kind of power does the Constitution confer on Congress?

    4. Why does the Constitution divide Congress into two houses? What is gained by this division?

    Article I Section 2

    5. Explain why this section is essential. How do these specific requirements ensure that the House of Representatives represents the people?

    Article I Section 3

    6. What advantages do the states have under the arrangement outlined in this section?

    7. Explain why this section is essential. Point out some differences between requirements for the House of Representatives and the Senate and explain why the differences are significant.

    Article I Section 4

    8. Summarize the details of this section.

    9. Explain why the details of this section are essential.

    Article I Section 5

    10. Why is it important that each House is granted a measure of independence from the other?

    Article I Section 6

    11. How does this section protect the freedom of speech of representatives while at the same time preventing abuse of power?

    Article I Section 7

    12. Summarize the legislative process.

    13. Describe the benefits of this process.

    Article I Section 8

    14. This section enumerates the powers given to Congress. Many of the goals or purposes stated in the Preamble are to be achieved through Congress’s exercise of these powers. Can you align the goals of the Preamble with the powers enumerated of Section 8?

    15. Explain why this section is essential. Why do you think the framers chose to enumerate a list of powers instead of a general grant of power or of a list of restrictions?

    16. What is the significance of the ‘necessary and proper’ clause? What opportunities are there for abuse of power?

    Article I Section 9

    17. This section is a list of restrictions on the law-making powers of Congress. Summarize this section.

    18. How does Section 9 relate to or compare with Section 8?

    19. How does this list ensure “a more perfect Union”?

    Article I Section 10

    20. This section lists things which states cannot do. How could this list of restrictions be rewritten as a list of granted powers and what effect would that change have?

    21. Explain why this section is essential. Why are these prohibitions necessary?

    Article II Section 1

    22. Article II is devoted to the Executive. What does the word executive suggest about the role of the president under the Constitution? Does the placement of this Article second suggest anything about the place of the Executive in the national government?

    23. How do these specific requirements for the election of President of the United States ensure that he/she represents the people and at the same time make him/her independent of Congress? Where you surprised that there is no requirement? Explain your answer.

    Article II Section 2

    24. Explain the powers and restrictions placed on the president in this section.

    25. Why does the Constitution grant the president such powers with such restrictions?

    Article II Section 3

    26. What responsibilities does this section grant to the president?

    27. Why does the Constitution grant these specific responsibilities to the president?

    Article II Section 4

    28. What procedure is specifically addressed in this section?

    29. Why is this section important to the Constitutional process?

    Article III Section 1

    30. Article III establishes the federal judiciary. Why do you think the judicial article comes after the legislative and the executive? Why does Congress have a role in the function of the judicial branch?

    31. What is the significance of the different terms for judges compared to the president or Congress?

    Article III Section 2

    32. How far does judicial power extend? Why is this significant?

    33. What is the purpose of the Supreme Court in the American federal system?

    Article III Section 3

    34. Why is it significant that Treason is the only specific crime that the Constitution defines?

    Article IV Section 1

    35. This section is sometimes called the federal article. Why do you think this is?

    36. Why is it important for states to recognize the records and proceedings of other states?

    37. Give a contemporary example of how Article IV Section 1 might be used to ensure cooperation between two states. (Hint: A major example of this has been consistently in the news lately and has been the subject of several federal appeals and Supreme Court cases.)

    Article IV Section 2

    38. What responsibilities do the states have to each other? What does the third paragraph of this section allow for that is now unconstitutional?

    Article IV Section 3

    39. What does this section say about the relationship between the federal government and the states?

    Article V

    40. What is the purpose of this Article and how is it relevant to us today?

    Article VI

    41. Article VI is called the Supremacy Clause. What is made supreme by this clause?

    42. How is this clause used with regard to the relationship between federal and state laws? Give an example of how it might be used today.

    Article VII

    43. What is the purpose of this Article?

    44. Most would argue that this particular Article was designed for one-time use and has no present-day purpose. What argument would they use to justify this position? Would you agree or disagree with them? Explain your answer.


    Source:  Modified from edsitement.neh.gov/sites/edsitement.neh.gov/files/worksheets/understanding.pdf 
    with permission granted by the publisher for classroom use.  Fair Use – Government Publication.