Constitution of the United States

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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[edit | edit source]

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[edit | edit source]

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.

Article 2 (Executive): 4 sections[edit | edit source]

Article II creates the executive branch of the US government.

Article 3 (Courts): 3 sections[edit | edit source]

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

Article 4 (States): 4 sections[edit | edit source]

Section 1 of Article IV of the US Constitution is known as the Full Faith and Credit Clause.[3] This means that, for example, a court judgment in state will be recognized (given credit) in another state.

Section 2: (Comity Clause)[edit | edit source]

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.

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.[4][5][6][7] 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[edit | edit source]

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[edit | edit source]

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.

Article 5 (Amending): 1 ¶[edit | edit source]

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.[8]
  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.[9]

Article 6 (Federal supremacy): 3 ¶ (clauses)[edit | edit source]

Clause 1 (national debt)[edit | edit source]

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)[edit | edit source]

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)[edit | edit source]

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.[10] 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 ¶[edit | edit source]

Article VII requires 9 out of 13 states (≈ 70%) in the 1780s to ratify the Consitution.[11] In contrast, the Articles of Confederation (AoC) in the 1770s had required all 13 states (100% unanimous consent) for any amendment.[12]

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![13]

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.[14] Rhode Island refused to send delegates and New Hampshire sent its delegates late.

Bill of Rights[edit | edit source]

The Bill of Rights, the first 10 amendments, were all ratified in 1791.

1st Amendment (Basic freedoms)[edit | edit source]

The First Amendment provides freedom of

  1. religion (Establishment Clause),
  2. speech,
  3. press,
  4. assembly, and
  5. petition.

According to Michael W. McConnell, "speech" and "press" are related because the press is speech directed at large audiences.[15]

2nd Amendment (Firearms)[edit | edit source]

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.[16]

In United States v. Miller, (1939), the defendant was a gangster caught with a sawed-off shotgun.[17] 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.[18]

The Bruen case in 2022[19] struck down the New York state restriction on gun owners.[20]

3rd Amendment (Housing soldiers)[edit | edit source]

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.[21]

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.[22]

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

4th Amendment (Search & seize)[edit | edit source]

People have a right against "unreasonable searches and seizures."[23]

A probable cause is necessary for a warrant to search or arrest (seize the person).[24]

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 +...)[edit | edit source]

The 5th Amendment has 4 elements outlined below[25] plus the Takings Clause (which is related to the Due Process of taking property).

Grand jury[edit | edit source]

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

As of 2022, a federal grand jury is made up of 23 people—even though this number isn't specified in the US Constitution.[26] 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[edit | edit source]

A person can't be subjected to double jeopardy.

Self-incriminate[edit | edit source]

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.[27]

Due process[edit | edit source]

A defendant is owed a federal due process prior to due being deprived of "life, liberty, or property."[28]

Takings Clause[edit | edit source]

nor shall private property be taken for public use, without just compensation.[29]

Eduardo Peñalver calls this the [private] "property protection clause." Richard Epstein explains that property also includes patents and copyrights.[30]

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[edit | edit source]

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.

Barron v. Baltimore, (1833) ruled that the takings clause doesn't apply to the states.[31]

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."

6th Amendment (Criminal prosecutions)[edit | edit source]

According to 6th Amendment, the accused has a

  1. right to a speedy trial[32]
  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"[33])
  6. right to an attorney ("Assistance of Counsel")

7th Amendment (Civil proceedings)[edit | edit source]

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[34]], the right of trial by jury shall be preserved...according to the rules of the common law."[35]

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).[36] 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)[edit | edit source]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[37]

The above paragraph was originally enshrined in the English Bill of Rights of 1689.[38][39][40]

9th Amendment (Unlisted rights)[edit | edit source]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[41]

James Madison[42] argued that writing down specific rights was dangerous because people can contend that unenumerated rights aren't protected.[43][44]

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.[45]

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."[46]

10th Amendment (States' rights)[edit | edit source]

The Tenth Amendment provides states' rights.[47] Nonetheless, the 14th Amendment will later expand the powers of the federal government.[48]

11th Amendment: 1795 (Suing states)[edit | edit source]

The 11th Amendment limits the judicial power of state courts.[49]

12th Amendment (Electoral College)[edit | edit source]

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[edit | edit source]

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.[50]

14th Amendment (Equal protection)[edit | edit source]

Section 1 (Citizenship Clause)[edit | edit source]

The 14th Amendment, Section 1, Clause 1, contains the Citizenship Clause.[51]

Section 1 (Privileges or Immunities Clause)[edit | edit source]

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

Section 4 (Civil War debts)[edit | edit source]

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)[edit | edit source]

Congress will enforce the aforementioned provisions of the 14th Amendment.[52]

15th Amendment (Men's vote)[edit | edit source]

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.

16th Amendment (Income tax)[edit | edit source]

The Sixteenth Amendment was a result of the Progressive Era.

17th Amendment (Senate)[edit | edit source]

The Seventeenth Amendment to Article I provides for the popular election of United States Senators.[53]

18th Amendment (Liquor prohibited)[edit | edit source]

The manufacture, sale, transportation, importation, or exportation of intoxicating liquors is prohibited.[54]

19th Amendment (Women's vote)[edit | edit source]

A citizen has a right to vote regardless of sex.[55]

21th Amendment (Liquor allowed)[edit | edit source]

The 18th Amendment prohibition on liquors is repealed.[56]

22nd Amendment: 1951 (POTUS term limit)[edit | edit source]

No citizen can serve as the President of the United States (POTUS) for more than 2 terms.[57]

26th Amendment: 1971 (18-year-olds vote)[edit | edit source]

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)[edit | edit source]

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

Unratified amendments[edit | edit source]

Over 200 amendments were proposed during the 1st United States Congress (1789 - 1791).[58]

Equal Rights Amendment[edit | edit source]

The Equal Rights Amendment (ERA) was first proposed in 1923.[59] The ERA hasn't been ratified because Congress added a deadline for its ratification.[60]

See also[edit | edit source]

References[edit | edit source]

  5. The words slave and slavery are not used in the Constitution prior to the 13th Amendment. The word slave is used in Amendment 14, Section 4 in 1868.
  6. Slave is a word that etymologically means Slavic people in Yugoslavia taken into servitude in the ancient Roman Republic.
  7. In the Roman Republic, slavery wasn't based on race. A slave or servant could be any skin color.
  19. New York State Rifle & Pistol Association, Inc. v. Bruen, The Federalist Society

External links[edit | edit source]