Constitution of the United States

The Constitution of the United States was written in 1787 in Philadelphia and ratified the following year. It is the second fundamental law of the United States of America, having replaced the Articles of Confederation.

Preamble

The Preamble to the US Constitution contains popular sovereignty. In the past, it was common for power to rest in the hands of many gods such as the Greek gods or one god through a king (divine right of kings).

The Preamble originally read," We the People of the States of . . .”, followed by a listing of the 13 states."^[1] Jeffrey Rosen of the Constitution Center has argued that the final draft of the Preamble took away power from State Governments and gave it to the People.^[2]

Article 1 (Legislature): 10 sections

Article I is the longest of the 7 Articles of the US Constitution. It has 10 Sections.

The legislative branch is called the Congress; it is made up of the (1) Senate and (2) House of Representatives.

Section 2: House

Direct taxes

§ 2, Clause 3, stipulates "direct Taxes shall be apportioned" among the states.^[3]

Section 3: Senate

Article I, § 3, Clause 6 of the U.S. Constitution confers upon the Senate the power to try all federal impeachments.^[4] A ⅔ (67%) super-majority is necessary for an impeachment conviction.

Section 4: Elections

States set the "Times, Places and Manner of holding Elections for Senators and Representatives"^[5] according to Clause 1 of § 4.

Section 6: Debate clause

Article I, § 6, Clause 1 states that House and Senate members are protected from civil & criminal liabilities in the course of their Congressional debates ("they shall not be questioned")^[6].

Section 7: Presentment Clause

The Presentment Clause states that every bill must pass the House & Senate; afterwards, it must be presented to the POTUS.

Section 7: Veto

Article I, § 7, Clause 3 states that the President may veto (disapprove) Congressional bills.^[7]

Section 8: Powers of Congress

The regulatory powers of Congress are contained in 18 clauses in this section.^[8]

Taxing and Spending Clause

United States v. Butler (1936) is a SCOTUS holding that Congress can spend for the "general welfare" of the public.

The tax & spend power is the 1st clause of Article 1, § 8.^[9]

Commerce

The 3rd Clause of § 8 is the Commerce Clause. This is an important power of Congress.^[10]

The 3rd Clause has 3 components

1. Foreign commerce
2. Inter-state commerce
3. Indian-tribes commerce.

Gibbons v. Ogden (1824) is the seminal case dealing with the inter-state Commerce Clause. The New York legislature had granted a steamboat monopoly to Ogden (former governor of New Jersey).

Darby (1941) and Filburn (1942) opened the door for an expansive interpretation of the interstate commerce clause by SCOTUS.

Post office

The 7th Clause of §8 empowers Congress to create a postal service and the roads needed to carry mail.^[11]

Copyright Clause

In order to "promote the Progress of Science and useful Arts," Congress may establish copyright, patent, and trademark regimes. This function of Congress is delegated to

• The United States Copyright Office, a division of the Library of Congress, and
• the United States Patent and Trademark Office (USPTO), an agency in the U.S. Department of Commerce.

Clause 12: Military appropriation

Clause 12 of § 8 limits military appropriations to 2 years.^[12]

Necessary and Proper Clause

The final & 18th Clause of § 8 is the Necessary and Proper Clause. This Clause has been central in the McCulloch v. Maryland case (1819).

Section 9: Fed limits

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion..."^[13] This is a power bestowed upon the federal Congress.

Section 10: Limits on states

Clause 1: Contract Clause

Article 1, § 10, Clause 1, prohibits States from^[14]

1. making treaties
2. coining money
3. enacting bills of attainder
4. enacting ex post facto laws
5. impairing contracts
6. granting titles of nobility

A legislative act that identifies an individual or group for punishment is in discord with the United States Constitution for being a bill of attainder.

The Contract Clause places limits on the conduct of state governments. Most importantly, states may not impair the ability of willing parties to form a contract: this has been dubbed the "freedom of contract" or "liberty of contract." At times, this liberty of contract has been read by SCOTUS as an economic substantive due process right protected by the Due Process Clause of the 14th Amendment.^[15]

Courts treat contracts differently:
(1) They are more suspicious of laws impairing government contracts

while

(2) they are less suspicious of laws impairing private contracts.

Clause 2: Import-Export Clause

States may not

1. tax imports
2. tax exports

Clause 3: Compact Clause

If a state is invaded, then it may engage in war.

States may not

1. keep troops
2. keep war ships
3. enter into agreements with other States
4. enter into agreements with foreign nations

Article 2 (Executive): 4 sections

Article II creates the executive branch of the US government.

Section 2: Pardon

The President's pardon power doesn't include federal impeachment cases.

Treaties

Article 2, § 2, Clause 2, requires the votes of ⅔ (67%) of the Senate for the approval of a treaty.^[16]

The President may enter into an executive agreement—which carries less force than a treaty.

Appointments

The President may appoint "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States" at the most senior executive level of federal agencies in accordance with Clause 2, § 2 of Article 2.^[17] These are 1,000s of positions.

In this clause, "inferior Officers" refers to very senior executive federal officials whose appointment doesn't require Senate confirmation. The "principal Officer" positions requiring Senate confirmation are at the apex of agencies.

Section 3: Duties

5. Take Care

Clause 5 of § 3 requires the POTUS to "take care that the laws be faithfully executed." The President may issue executive orders (EOs) to implement his enforcement responsibilities.

Section 4: Impeachment

Article 3 (Courts): 3 sections

Section 1: Inferior courts

Article III, section 1, tasks Congress with establishing courts inferior to the federal Supreme Court.

Section 2: Federal jurisdiction

The judicial Power shall extend to all Cases, in Law and Equity,

1. arising under this Constitution,
2. the Laws of the United States, and
3. Treaties made, or which shall be made, under their Authority;
4. —to all Cases affecting Ambassadors, other public Ministers and Consuls;
5. —to all Cases of admiralty and maritime Jurisdiction;
6. —to Controversies to which the United States shall be a Party;
7. —to Controversies between two or more States;
8. —between a State and Citizens of another State,
9. —between Citizens of different States (diversity cases),
10. —between Citizens of the same State claiming Lands under Grants of different States, and
11. between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article 4 (States): 4 sections

Section 1 of Article IV of the US Constitution is known as the Full Faith and Credit Clause.^[18] This means that, for example, a court judgment in state will be recognized (given credit) in another state.

Section 2, Clause 1: Privileges and Immunities

§ 2, Clause 1 specifies that States may not discriminate against citizens of other American states with regards to basic rights or important economic activities. Supreme Court of N.H. v. Piper (1985) is a SCOTUS case related to the practice of law in the United States.

Section 2: (Comity Clause)

Section 2 of Article IV, Clause 1, of the US Constitution is known as the Privileges and Immunities Clause (Comity Clause). During the 1930s Depression, there were efforts in some states to limit travel of poor migrants. This privileges and immunities clause includes the right to travel and right to settle in another state.

• Toomer v. Witsell, (1948), involved South Carolina charging higher tax rates for non-residents fishing on the coast of South Carolina.^[19] SCOTUS held that the state tax code violated the Privileges and Immunities Clause.

Saenz v. Roe (1999) is a Supreme Court case dealing with the Section 2 Privileges and Immunities Clause because of an issue dealing with the right to travel. A person wanted to move to California to receive generous welfare benefits in the 1990s.

Article IV, Section 2, Clause 3, is the Servitude Clause or the Fugitive Slave Clause.^{[20][21][22][23]} This means that, before the US Civil War in 1860, a slave who fled from Alabama to Vermont couldn't--in theory--claim to be free in Vermont.

Section 3

Section 3 of Article IV of the US Constitution is known as the Admissions Clause. The Congress has to approve admission to the United States union.

Section 4

Section 4 of Article IV of the US Constitution is known as the Guarantee Clause. This means that every state in the Union is guaranteed a Republican form of government as opposed to other forms such as military committee (junta), monarchy, theocracy, or direct democracy. This prevented the Theodemocracy in the Utah Territory in the 1850s from joining the Union until the Mormon theocratic government laws were disbanded.

In addition, even if all the people in a state voted to be governed with a military committee, then the people's selection would run afoul of the current version of this aforesaid Section 4 Guarantee Clause.

The Section 4 Guarantee Clause, furthermore, means that the federal government will protect each member state against foreign invasion.^[24]

Article 5 (Amending): 1 ¶

Article V describes the amendment procedure; it is only 1 paragraph (¶).

An amendment can started in Congress:

1. First, ⅔ (67%) of both the Senate and House would need to propose an amendment.^[25]
2. Second, ¾ (75%) of the state legislatures would need to ratify the amendment at a convention. (In lieu of state legislators, 75% of the members of a constitutional convention may ratify the amendment as well.)

An amendment can also be started by a proposal of ⅔ (67%) of the state legislatures. As of 2022, zero amendments have been initiated this way. All of the 27 amendments have started in the federal Congress.^[26]

Article 6 (Federal supremacy): 3 ¶ (clauses)

Clause 1 (national debt)

Article VI, clause 1, contains the promise from the United States federal government that the nation will pay its debts incurred both under the Articles of Confederation (AoC) and this Constitution.

2 (Supremacy Clause)

The federal Constitution is supreme over federal laws, state constitutions, state laws, and local laws within the boundaries of the United States.

Clause 3 (Religious Tests)

Clause 3 prohibits religious discrimination for federal and state offices. For example, the Constitution of the Islamic Republic of Pakistan, Part III, Article 41, requires the President of Pakistan to be Muslim.^[27] In contrast, Article VI, Clause 3, of the US Constitution dictates that adherence to a religion can't be a condition of holding office in the United States.

In England, the Test Act of 1673 required those running for office to be Church of England Christians; the Act has been repealed since. However, even today, the monarch herself must be a member of the Church of England because the British monarch is the head of the Church of England and appoints the archbishops there.

Article 7 (Ratification): 1 ¶

Article VII requires 9 out of 13 states (≈ 70%) in the 1780s to ratify the Consitution.^[28] In contrast, the Articles of Confederation (AoC) in the 1770s had required all 13 states (100% unanimous consent) for any amendment.^[29]

Instead of holding a constitutional convention to ratify the Constitution using delegates in Rhode Island, the state of Rhode Island held a referendum wherein 90% of the people voted against the 1787 Constitution!^[30]

The Federalist Papers were written to promote the Constitution to the delegates of the state of New York. Afterwards, they were sent to the delegates of other states.

At the end, the people of the 13 states didn't vote on ratifying the Constitution. There were 55 delegates selected by the state legislatures at the Constitutional Convention who voted to ratify the Constitution.^[31] Rhode Island refused to send delegates and New Hampshire sent its delegates late.

Bill of Rights

The Bill of Rights, the first 10 amendments, were all ratified in 1791. These rights were modeled after the English Bill of Rights of 1689. James Madison also relied on the state Bill of Rights of states such as Virginia to author the federal Bill of Rights.

Virginia’s George Mason and Massachusetts’s Elbridge Gerry proposed the Bill of Rights at the conclusion of the Philadelphia Convention.

1st Amendment (Basic freedoms)

The First Amendment provides freedom of

1. religion (Establishment Clause), [promoting a religion]
2. religion, part 2, (Free Exercise Clause), [inhibiting a religion]
3. speech,
4. press,
5. assembly (association), and
6. petition.

According to Michael W. McConnell, "speech" and "press" are related because the press is speech directed at large audiences.^[32]

The Free Exercise Clause divides into the

1. freedom to believe, and
2. the freedom to act.

2nd Amendment (Firearms)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.^[33]

In United States v. Miller, (1939), the defendant was a gangster caught with a sawed-off shotgun.^[34] The prosecutor contended that the defendant was required to pay a special tax for his type of firearm. Subsequently, the defendant Jack Miller was murdered before the Supreme Court decided his case.

DC v. Heller, (2008), was argued before the Supreme Court. Alan Gura was the attorney for Heller. A District of Columbia law banned people from owning firearms in their homes. The Supreme Court decided that an individual—not just a "Militia"—has the right to use firearms in their home.

McDonald v. City of Chicago, (2010), states that the 2nd Amendment is to be incorporated against the state and local governments.

Legal experts in the United States generally agree that the 2nd Amendment doesn't apply to tanks and rocket launchers.^[35]

The Bruen case in 2022^[36] struck down the New York state restriction on gun owners.^[37]

3rd Amendment (Housing soldiers)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.^[38]

The Quartering Act of 1765 established a legal requirement for hotels, saloons, restaurants, and so on to house and feed British soldiers if there was a shortage of barracks to house the soldiers and sailors.^[39]

Some of the soldier guests were cruel, rambunctious, cantankerous, and unfriendly.

4th Amendment (Search & seize)

People have a right against "unreasonable searches and seizures."^[40]

A probable cause is necessary for a warrant to search or arrest (seize the person).^[41]

Entick v Carrington, (1765), was a case in Britain that motivated the adoption of the 4th Amendment. English police seized all the books and papers of Entick using a general warrant.

Writs of assistance were used in British America to crack down on smuggling. This was another motivation for the passage of the 4th Amendment.

Carroll v. United States, (1925), established the warrantless search known as the automobile exception; there are several other exceptions.

The Terry stop rules are based on the 4th Amendment.

5th Amendment (Self incrimination +...)

The 5th Amendment has 4 elements outlined below^[42] plus the Takings Clause (which is related to the Due Process of taking property).

Grand jury

Only a Grand Jury can indict someone for a serious federal crime.

As of 2023, a federal grand jury is made up of 23 people—even though this number isn't specified in the US Constitution.^[43] A Grand Jury doesn't have to be unanimous for an indictment—a majority will suffice. In contrast, after the indictment, a unanimous decision is necessary for a federal criminal conviction by a petit jury in order to meet the "beyond a reasonable doubt" bar for proof.

Double jeopardy

A person can't be subjected to double jeopardy.

Self-incriminate

A person can't be compelled to be a witness against herself.

Before the time of John Lilburne in 1600s Britain, a person could be brought before a court without being told of any charges. Next, he could be forced to answer questions with an Ex officio Oath.^[44]

Due process

A defendant is owed a federal due process prior to due being deprived of "life, liberty, or property."^[45]

Takings Clause

nor shall private property be taken for public use, without just compensation.^[46]

Eduardo Peñalver calls this the [private] "property protection clause." Richard Epstein explains that property also includes patents and copyrights.^[47]

In traditional communist countries, governments routinely expropriate land and abolish inheritance. In the aforesaid places, land is owned by the community.

Eminent domain in US

In the United States, the government must give you a notice. Afterwards, the government must obtain an order of condemnation from a court. Typically, the government bargains with an owner the value of the property.

This possessory taking translates into confiscation, expropriation, or physical occupation of the property.

Barron v. Baltimore, (1833) ruled that the takings clause doesn't apply to the states.^[48]

Pennsylvania Coal Co. v. Mahon, (1922), ruled that excessive regulation of a property is tantamount to the acquisition of the aforesaid property. This is known as "regulatory takings"; regulatory taking means that the government leaves no economically viable use for the property owner.

6th Amendment (Criminal prosecutions)

According to 6th Amendment, the accused has a

1. right to a speedy trial^[49]
2. right to a public trial
3. right to a jury trial ("impartial jury of the State and district")
4. right to know the charges ("to be informed of the nature and cause of the accusation")
5. right to know the accusers ("to be confronted with the witnesses against him"^[50])
6. right to an attorney ("Assistance of Counsel")

7th Amendment (Civil proceedings)

In many legal systems around the world, the judge decides a case in what is known as a bench trial. On the other hand, the jury trial was imported into the United States from the British common law. Accordingly, the 7th Amendment states that in civil trials "where the value in controversy shall exceed twenty dollars [about $600 in 2022^[51]], the right of trial by jury shall be preserved...according to the rules of the common law."^[52]

In the 1700s, American colonists had become fond of local juries on the American continent who would rule in favor of ignoring customs duty (import & export taxes).^[53] They sought to circumvent the bench trials of British admiralty courts.

In the modern American legal landscape, discovery allows the opposing parties to gather evidence in preparation of the trial.

8th Amendment (Sentencing: punishment)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.^[54]

The above paragraph was originally enshrined in the English Bill of Rights of 1689.^[55][56][57]

9th Amendment (Unlisted rights)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.^[58]

James Madison^[59] argued that writing down specific rights was dangerous because people can contend that unenumerated rights aren't protected.^[60][61]

In the famous Griswold v. Connecticut case, (1965), Justice William O. Douglas stated that the right of marital privacy exists as a consequence of the 9th Amendment in spite of not being listed in the Constitution.^[62]

Corfield v. Coryell (1823) ruled in favor of a right to travel to other states in the United States. However, the right to travel to different states is not one of enumerated "privileges and immunities."^[63]

10th Amendment (States' rights)

The Tenth Amendment provides states' rights.^[64] Nonetheless, the 14th Amendment will later expand the powers of the federal government.^[65]

11th Amendment: 1795 (Suing states)

The 11th Amendment limits the judicial power of state courts.^[66] Federal and state courts normally don't have to hear suits against States.^[67] This Amendment was adopted in response to Chisholm v. Georgia (1793): Chisholm was a South Carolina citizen filing a suit in SCOTUS against the state of Georgia.

Amendment XI bestowed sovereign immunity upon states, thus over-riding Chisholm v. Georgia.

In summary, neither a (1) private resident of an American state nor (2) a foreign government may file a lawsuit against an American State in a federal district court.

However, the 11th Amendment allows the federal Justice Department to sue a state. Eleventh Amendment allows actions against one state initiated by another state, too.

• Section 1983 Litigation/State Liability: The Eleventh Amendment

12th Amendment (Electoral College)

The Twelfth Amendment was ratified in 1804 as a result of a tie in the Electoral College for the US presidential election.

13th Amendment (Banning slavery): 2 Sections

The 13th, 14th, and 15th Amendments were passed after the U.S. Civil War.

According to §1, neither "slavery nor involuntary servitude" are allowed under United States jurisdiction.^[68]

"Badges and Incidents of Slavery" is a SCOTUS test used to prohibit certain private discrimination especially in relation to the housing market.

14th Amendment (Equal protection)

Section 1 (Citizenship Clause)

The 14th Amendment, Section 1, Clause 1, contains the Citizenship Clause.^[69]

Section 1 (Privileges or Immunities Clause)

Representative John Bingham (1815 - 1900) is credited with framing the "privileges or immunities" in the 14th Amendment, Section 1, Clause 2.

Section 1 (Due Process by States)

No State may deny a person the due process of law to deprive her of "life, liberty, or property."

Section 1 (Equal protection by States)

The 4th facet of § 1 of the 14th Amendment protects individuals against the States depriving people of the Equal Protection of the Laws of the United States and each State.^[70]

Section 3:Insurrection

According to Section 3 of the 14th Amendment, a person who tries to overthrow the federal government of the United States is disqualified from holding office in the same federal government of the United States.

Section 4 (Civil War debts)

Union debts are valid and will be paid.

Confederate debts are "illegal and void." Additionally, former slaveholders will not be compensated for their losses. Finally, the Confederate currency drops to zero in its value.

Section 5 (Enforcement)

Congress will enforce the aforementioned provisions of the 14th Amendment.^[71]

The Congruence and Proportionality Test is used in relation to § 5 of the 14th Amendment per City of Boerne v. Flores (1997).

15th Amendment (Men's vote)

The 15th Amendment prohibited denial of the right to vote based on a citizen's race, color, or servitude; however, denial of the vote based on gender was permissible (Minor v. Happersett).

16th Amendment (Income tax)

The Sixteenth Amendment (1913) was a result of the Progressive Era.

The 16th Amendment supersedes the SCOTUS decision in Pollock v. Farmers' Loan & Trust Co. (1895).

17th Amendment (Senate)

The Seventeenth Amendment to Article I provides for the popular election of United States Senators.^[72]

18th Amendment (Liquor prohibited 1919)

The manufacture, sale, transportation, importation, or exportation of intoxicating liquors is prohibited.^[73]

19th Amendment (Women's vote)

A citizen has a right to vote regardless of sex.^[74]

21th Amendment (Liquor allowed)

The 18th Amendment prohibition on liquors is repealed.^[75]

22nd Amendment: 1951 (POTUS term limit)

No citizen can serve as the President of the United States (POTUS) for more than 2 terms.^[76]

24th Amendment: 1964 (Poll tax)

Voter registration cannot be conditioned upon a poll tax.^[77] § 2 of the 24th Amendment contains its enforcement clause.

25th Amendment: 1967 (Succession)

§ 1 of the 25th Amendment lays out that the Vice President is supposed to succeed the POTUS.^[78]

26th Amendment: 1971 (18-year-olds vote)

The 26th Amendment giving the right to vote to 18-year-old people was proposed and ratified within 3 months in 1971 during the Presidency of Richard Nixon.

27th Amendment: 1992 (Congress salary)

The 27th Amendment was proposed in 1789 as part of the Bill of Rights and ratified in 1992—202 years afterwards.

Unratified amendments

Over 200 amendments were proposed during the 1st United States Congress (1789 - 1791).^[79]

Equal Rights Amendment

The Equal Rights Amendment (ERA) was first proposed in 1923.^[80] The ERA hasn't been ratified because Congress added a deadline for its ratification.^[81]

See also

• Constitutional Law
• Constitutional Law Chemerinsky/Outline I, (Erwin Chemerinsky is the Dean of UC Berkeley School of Law)
• Constitutional Law Chemerinsky/Outline II
• Constitutional Law Paulsen/3rd ed. Outline
• Constitutional Liberties
• Constitutional Law Stone/Outline II
• Constitutional Law Maggs/4th ed. Outline II

References

External links

• https://constitution.congress.gov/ Constitution Annotated from the U.S. Congress