Constitution of the United States

Constitution of the United States, document embodying the fundamental principles upon which the American republic is conducted. Drawn up at the Constitutional Convention in Philadelphia in 1787, the Constitution was signed on Sept. 17, 1787, and ratified by the required number of states (nine) by June 21, 1788. It superseded the original charter of the United States in force since 1781 (see Confederation, Articles of) and established the system of federal government that began to function in 1789. The Constitution is concise, and its very brevity and its general statement of principles have, by accident more than by design, made possible the extension of meaning that has fostered growth. There are seven articles and a preamble; 27 amendments have been adopted (see the table entitled Text of the Constitution of the United States).

The wording of the Constitution is general, necessitating interpretation, and any short summary is only rough and approximate. From its very beginnings, the Constitution has been subject to stormy controversies, not only in interpretation of some of its phrases, but also between the loose constructionists and strict constructionists. The middle of the 19th cent. saw a tremendous struggle concerning the nature of the Union and the extent of states' rights. The Civil War decided the case in favor of the advocates of strong union, and since that time the general tendency has been toward the centralization and strengthening of federal power.
The Preamble

The Preamble does not confer power, but its first words, We the People of the United States, describe the source of the powers conferred by the rest of the Constitution and have been used by the advocates of a strong union arguing against the proponents of states' rights. The Preamble also states the purpose of the document. One of the statements of purpose, to … promote the general welfare, has been of great importance in the 20th cent. in upholding social legislation, for which no warrant could be found in the enumerated powers of Congress.
The Articles

The first three articles set up the threefold separation of powers, said to have been modeled on Montesquieu's study, which on this point was incorrect, of the British government. In actuality this separation has been weakened by the granting of greater powers to the President and his administrative agencies, which now have legislative and judicial as well as executive functions.
1: Congress

Article 1 provides for the establishment of the bicameral Congress composed of the Senate and the House of Representatives. The various powers of the Congress and the respective houses, together with their methods of election, are enumerated in the article. The Seventeenth Amendment, passed in 1916, instituted the direct popular election of Senators and removed the power of their election from the state legislatures as had originally been provided in Article 1.

Section 4 of Article 1 gives the states power over the conduct of federal elections but permits the Congress to alter such regulations at any time. In 1842 the Congress imposed the district system on the United States. In 1962 the Supreme Court dealt with proper apportionment of election districts and in its decision in Baker v. Carr allowed voters to go into a federal court to force equitable representation in a state legislature. This decision was, however, based on the equal protection clause of the Fourteenth Amendment. Later, the court ruled (1964) that state legislative apportionment must reflect the one-person one-vote principle.

As a legislative body Congress has certain inherent powers. Among these are the power to investigate pursuant to legislative needs. Congressional investigations have led to a great many court decisions concerning the right of a witness before a Congressional committee to refuse to testify even when granted immunity from prosecution.

Section 8 of Article 1 lists the enumerated powers of the Congress. The clause of this section, the commerce clause, which grants the Congress the right to regulate commerce with foreign nations, and among the several States, has, in the 20th cent., been used as a strong argument for the expansion of government power. Since the historic case of Gibbons v. Ogden (1824), the commerce clause has been the battleground over which much of the struggle for and against increased federal regulation of private enterprise has been fought. Until the late 1930s Congress exercised its powers under the clause solely with reference to transportation. But after a series of dramatic reversals by the Supreme Court, Congress began to enter areas that had previously been controlled only by the states. The commerce clause is now the source of important peacetime powers of the national government and an important basis for the judicial review of state actions.

Besides its enumerated and inherent powers, the Congress has implied powers under Article 1 to make all laws which shall be necessary and proper for carrying into execution the enumerated or expressed powers. Sections 9 and 10 of Article 1 contain guarantees of the writ of habeas corpus, prohibit bills of attainder and ex post facto laws, and also improve certain limitations on state power.
2: The Executive Branch

Article 2 creates the executive branch of government headed by the President, elected, along with the Vice President, for a term of four years (see president; electoral college). The Twenty-second Amendment (1951) provides that no person may be elected President more than twice. The Twenty-third Amendment (1961) permits District of Columbia residents to vote in presidential elections. Since the adoption of the Constitution there have been two conflicting views of Article 2. The first is that the powers of the President are limited to those enumerated in the article. The opposite view is that the President is given executive power not limited by the provisions of the rest of the article. Every President has had to make the choice of interpretations for himself.
3: The Judiciary

Article 3 provides for a judiciary and defines treason. Besides its enumerated powers, the judiciary has the inherent authority to interpret laws and the Constitution with an authority that must be deferred to. Article 3 also guarantees trial by jury in criminal cases and lays the basis for federal jurisdiction. The Eleventh Amendment (1798), which prohibits suits against any state by citizens of another state or foreigners (see sovereignty), was passed in reaction to the Supreme Court's accepting jurisdiction of a suit against a state by a citizen of another state.
4: The States

Article 4 deals with the relations of the states (see conflict of laws), providing that Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. Section 2 prohibits any state from discriminating against citizens of other states, or in favor of its own. It also provides for the extradition of criminals. The article guarantees a republican form of government to every state and provides for the admission of new states as well as the government of territories.
5: Amending the Constitution

Article 5 provides for amending the Constitution. The supremacy of the federal Constitution and of federal law over those of the states is the heart of the federal system and is established by Article 6. Article 6 also provides for an oath of office for members of the three branches of the federal government and the states and specifically forbids any religious qualification for office. Article 7 declares that the Constitution should go into force when ratified by nine states.
The Amendments

The Constitution has undergone gradual alteration with the growth of the country. Some of the 26 amendments were brought on by Supreme Court decisions. However, the first 10 amendments, which constitute the Bill of Rights, were added within two years of the signing of the federal Constitution in order to ensure sufficient guarantees of individual liberties. The Bill of Rights applied only to the federal government. But since the passage of the Fourteenth Amendment (1868), many of the guarantees contained in the Bill of Rights have been extended to the states through the due process clause of the Fourteenth Amendment.
The Bill of Rights

The First Amendment guarantees the freedom of worship, of speech, of the press, of assembly, and of petition to the government for redress of grievances. This amendment has been the center of controversy in recent years in the areas of free speech and religion. The Supreme Court has held that freedom of speech does not include the right to refuse to testify before a Congressional investigating committee and that most organized prayer in the public schools violates the First Amendment.

The right to keep and bear arms—adopted with reference to state militias but interpreted (2008) by the Supreme Court as essentially an individual right—is guaranteed by the Second Amendment, while freedom from quartering soldiers in a house without the owner's consent is guaranteed by the Third Amendment. The Fourth Amendment protects people against unreasonable search and seizure, a safeguard only more recently extended to the states.

The Fifth Amendment provides that no person shall be held for a capital or otherwise infamous crime without indictment, be twice put in jeopardy of life or limb for the same offense, be compelled to testify against himself, or be deprived of life, liberty, or property without due process of law. The privilege against self-incrimination has been the center of a great deal of controversy as a result of the growth of Congressional investigations. The phrase due process of law, which appears in the Fifth Amendment, is also included in the Fourteenth Amendment. As a result there has been much debate as to whether both amendments guarantee the same rights. Those in favor of what is termed fixed due process claim that all the safeguards applied against the federal government should be also applied against the states through the Fourteenth Amendment. The supporters of the concept of flexible due process are only willing to impose those guarantees on the states that are implicit in the concept of ordered liberty.

The Sixth Amendment guarantees the right of speedy and public trial by an impartial jury in all criminal proceedings, while the Seventh Amendment guarantees the right of trial by jury in almost all common-law suits. Excessive bail, fines and cruel and unusual punishment are prohibited by the Eighth Amendment. The Ninth Amendment states that The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

By the Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Powers reserved to the states are often termed residual powers. This amendment, like the commerce clause, has been a battleground in the struggle over states' rights and federal supremacy.
The Other Amendments

Of the succeeding sixteen amendments, the Eleventh, Seventeenth, Twenty-second and Twenty-third Amendments have already been discussed under Articles 1, 2, and 3. The Twelfth (1804) revised the method of electing President and Vice President. The Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) are the Civil War and Reconstruction amendments; they abolish slavery, while guaranteeing civil rights and suffrage to U.S. citizens, including former slaves. The Sixteenth Amendment (1913) authorizes the income tax. Prohibition was established by the Eighteenth Amendment (1919) and repealed by the Twenty-first (1933). The Nineteenth (1920) grants woman suffrage. The Twentieth (1933) abolishes the so-called lame-duck Congress and alters the date of the presidential inauguration. The poll tax and any other tax made a requirement for voting in primaries and elections for federal office was outlawed by the Twenty-fourth Amendment (1964). The Twenty-fifth (1967) establishes the procedure for filling the office of Vice President between elections and for governing in the event of presidential disability. The Twenty-sixth Amendment (1971) lowers the voting age in all elections to 18. The Twenty-seventh Amendment (1992), first proposed in 1789, establishes procedures for Congressional pay increases.

Constitutional Convention, in U.S. history, the 1787 meeting in which the Constitution of the United States was drawn up.


The Road to the Convention

The government adopted by the Thirteen Colonies in America (see Confederation, Articles of, and Continental Congress) soon showed serious faults. Congress, powerless to enforce its legislation, was unable to obtain adequate financial support. Although its achievements were not so inconsiderable as has been commonly thought, Congress was, on the whole, impotent, and federal authority was too weak to be of consequence. The central government also was unable to require fulfillment of any obligations it entered into with foreign nations.

Severe economic troubles produced radical economic and political movements, such as Shays's Rebellion. The monetary schemes of the states brought floods of paper money, which some of the states, notably Rhode Island, attempted to force creditors to accept. The threat to economic stability alarmed the wealthy conservative class; the merchants, who found the state tariffs not to their liking, were also harassed by the impossibility of making stable agreements with the English merchants. They were anxious to have a stronger federal government to guarantee order and property rights. The men who had money invested in Western territories also favored a stronger federal government controlling the territories. Therefore, agitation for the adoption of a stronger union grew steadily in force.

Its advocates were zealous. James Madison and George Washington in Virginia, Alexander Hamilton in New York, and James Wilson (1742–98) and Benjamin Franklin in Pennsylvania all favored some new scheme. The pamphlet of Pelatiah Webster was important, although it has been, perhaps, overemphasized by enthusiasts; feeling for union was general.

It was chiefly through the efforts of Madison that Virginia and Maryland agreed to a conference concerning navigation on the Potomac. The conference met in 1785 at Alexandria and at Mt. Vernon, but it was discovered that no agreements could be reached without the concurrence of Pennsylvania and Delaware. The upshot was the calling of a general convention of the states to discuss commercial problems.

This met at Annapolis in Sept., 1786, but delegates from only five states—Virginia, Pennsylvania, New York, New Jersey and Delaware—arrived. The delegates therefore announced the calling of a general convention to revise the Articles of Confederation, to meet at Philadelphia in May, 1787. Notice was sent to Congress, but the new convention was launched as an extralegal body; cautious Congressional endorsement came only after five states had already selected their delegates.
The Constitution Emerges

The convention at Philadelphia drew up one of the most influential documents of Western world history, the Constitution of the United States. All the states except Rhode Island sent representatives. The delegates mainly came from the wealthier and more conservative ranks of society and included, besides Washington and the other proponents already mentioned, such leaders as Edmund Randolph, Gouverneur Morris, Robert Morris, William Paterson, Charles Pinckney, Charles Cotesworth Pinckney, Abraham Baldwin, Luther Martin, and Roger Sherman.

Washington was elected to preside, and the convention immediately set about drawing up a new scheme of government. However, it found itself faced with a rift: the smaller states wanted to retain their power, and the larger states wanted to have power determined by population. It was agreed that the new Congress should be made an effective body, but as to its composition there was great difference of opinion.

The fundamental question was the apportionment of power in the new government. Edmund Randolph offered a plan known variously as the Randolph, the Virginia, or the Large-State Plan; it provided for a bicameral legislature, with the lower house elected according to population and the upper house elected by the lower. William Paterson offered the New Jersey, or the Small-State, Plan; it provided for equal representation of states in Congress. Neither the large states nor the small states would yield, and for a time it seemed that the convention would founder. Oliver Ellsworth and Roger Sherman put forward a compromise measure that gradually won approval; this provided for a lower house to be elected according to population (the House of Representatives) and an upper house to be chosen by the states (the Senate). This initial compromise defused the threat of a walkout by the small states, and the convention settled down to complete its task.

It was agreed that Congress should have the power to levy direct but not indirect taxes. The matter of counting slaves in the population for figuring representation was settled by a compromise agreement that established that three fifths of the slaves should be counted in apportioning representation; slaves were to be treated as property in assessing taxes. Controversy over abolishing the importation of slaves ended with agreement that the importation should not be forbidden before 1808. There were, naturally, many other points of argument, and some of the delegates were so disgusted that they went home and later led the fight in their states against the ratification of the Constitution.

James Madison was responsible for much of the substance of the Constitution, but the style was the work of Gouverneur Morris. The convention was in session until Sept. 17, 1787, and the document was then sent to the states for ratification. Delaware ratified it first, on Dec. 7 of that year. There were serious struggles in most of the states (see Federalist, The; Federalist party), especially since the convention had obviously gone beyond its mandate merely to amend the Articles of Confederation.

North Carolina and Rhode Island rejected the Constitution, but the majority clause brought the Constitution into force without them by the end of June, 1788, and they were later forced to accept it. The thesis, associated with the name of Charles Austin Beard, that the Constitution was framed solely to further the economic interest of special groups, notably creditors, land speculators, and holders of public securities, has not been generally accepted by historians.

States' rights, in U.S. history, doctrine based on the Tenth Amendment to the Constitution, which states, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The term embraces both the doctrine of absolute state sovereignty that was espoused by John C. Calhoun and that of the so-called strict constructionist interpretation of the U.S. Constitution, which reserves to the state governments all powers not specifically granted by that document to the federal government. A states' rights controversy is probably inherent in the federal structure of the United States government.In the Early Days of the Union

Immediately after the adoption of the Constitution, controversy arose as to how to interpret the enumerated powers granted the federal government. Alexander Hamilton and the Federalist party favored a broad interpretation, which meant a strong central government deriving its authority from implied as well as express powers contained in the Constitution. Thomas Jefferson and his followers, strict constructionists, insisted that all powers not specifically granted the federal government be reserved to the states. The Kentucky and Virginia Resolutions, written by Jefferson and James Madison, represent the first formulation of the doctrine of states' rights. The second important manifestation of states' rights occurred in New England among the Federalists in opposition, curiously enough, to Jefferson. His party, while in power, brought about (1803) the Louisiana Purchase, passed the Embargo Act of 1807 and other nonintercourse measures, and later declared war against Great Britain. All of these actions met with resistance in New England, and the War of 1812 finally led to the calling of the Hartford Convention of 1814–15, in which New Englanders officially expressed their hostility to the federal government.

The fight over the constitutionality of the Bank of the United States made the central states—Pennsylvania, Maryland, and Ohio in particular—the next defenders of states' rights. The points at issue here were settled in McCulloch v. Maryland by decision of the U.S. Supreme Court, dominated by John Marshall, whose broad interpretation of the Constitution laid the foundations of strong central government. The doctrine was revived in the conflict between the federal government and Georgia as to which had jurisdiction over Native American tribes within Georgia's boundaries, and Georgia for a time defied the federal administration. Even more acute was the situation that developed in South Carolina in opposition to the tariff acts of 1828 and 1832, when, under the leadership of John C. Calhoun, South Carolina passed its ordinance of nullification. Calhoun's doctrine of absolute state sovereignty was the most extreme of states' rights theories.
A Justification for Secession

Although proslavery forces are usually identified with a strong states' rights position, the legislature of Wisconsin adopted (1859) resolutions defending state sovereignty after the Supreme Court overruled the Wisconsin courts and upheld the conviction of an abolitionist editor for violating the fugitive slave law. Ultimately the proslavery states used states' rights doctrines to justify their secession. Eleven Southern states seceded in 1860–61 and formed the Confederacy, in which, fittingly, the doctrine of states' rights was upheld by such governors as Joseph E. Brown and Zebulon B. Vance. This undoubtedly contributed to the Confederate defeat in the Civil War, just as the disposition of some of the Thirteen Colonies to act in complete independence of the Continental Congress had hampered the American Revolution.
In the Twentieth Century

Although the Union victory in the Civil War definitively ended the possibility of nullification and secession, the states' rights doctrine did not die. In the second half of the 20th cent. it was vigorously revived by Southern opponents of the federal civil-rights program. In the presidential election of 1948, a Southern states' rights party (the Dixiecrats) was organized with J. Strom Thurmond of South Carolina as its candidate, and it carried four Southern states. The desegregation controversy of the 1950s, 60s, and 70s engendered many states' rights statements by Southern political leaders such as Gov. George C. Wallace of Alabama. In 1962, federal troops were used at the Univ. of Mississippi to enforce a federal court ruling that ordered the admission of a black student to the university. Although the doctrine of states' rights is usually associated with the Southern wing of the Democratic party, it is not exclusive to any particular section or political party. The vast increase in the powers of the federal government at the expense of the states, resulting from the incapacity of the states to deal with the complex problems of modern industrial civilization, has led to renewed interest in states' rights. In the 1980s and 90s, states' rights proponents, under the banner of federalism or the New Federalism, attacked the great increase in federal government powers that had occurred since the New Deal. On taking power of both houses of Congress in the 1994 elections, conservative Republicans proclaimed the beginning of a process of devolution, with much power reverting to the states; several years later, however, it was clear that reality had not met this prediction. State sovereignty has been affirmed and expanded, however, by recent, often narrowly decided, decisions of the Supreme Court.