The United States Constitution

A Thorough Reading

The U.S. ConstitutionThere are seven chapters in the Constitution, which are referred

to as Articles. Each Article deals with specific areas, roles, and functions of the American national government. Within each Article are Sections, which may contain one or more Clauses. Clauses are the specific laws contained under each Section and Article. For example, within Article 1, Section 8 are many important clauses or laws ranging from Congress’ power to tax and regulate commerce to Congress’ war powers.

The end of the Constitution is comprised of all the amendments that have been passed since 1789. Amendments refer to any changes to the text of the Constitution, either by adding/subtracting portions, or rephrasing portions in order to clarify intent. There have been 27 formal changes to the Constitution since it was ratified in 1789, the last one in 1992.

The U.S. Constitution

Articles In The Constitution Article I: Legislative Branch Article II: Executive Branch Article III: Judicial Branch Article IV: Relationship between States, Citizenship, New States Article V: Amendment Process Article VI: Debts, Supremacy, Oaths, Religious Tests Article VII: RatificationThroughout this course we will be learning about the various Articles,

Sections, and Clauses in the Constitution and the way this document shaped the entire history and evolution of the American government since its ratification in 1789, so it is not necessary to go through every facet now. A brief overview, however, will be of use moving forward.

The U.S. ConstitutionThe Preamble

This is a brief introductory statement of the Constitution's fundamental purposes and guiding principles. It speaks in generalities, and courts have referred to it as reliable evidence of the Founding Fathers' intentions regarding the Constitution's meaning and what they hoped the Constitution would achieve. In essence, the Preamble describes the basic functions and purposes of the American government. I have numbered these six basic functions below:

We the People of the United States, in Order to 1. form a more perfect Union, 2. establish Justice, 3. insure domestic Tranquility, 4. provide for the common defense, 5. promote the general Welfare, and 6. secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article 1 – Legislative BranchThe first three Articles create a separation of powers within the national government, consisting of theoretically co-equal branches with differing powers who also maintained certain powers over each other (checks and balances). The reality was that the Founders wanted Congress to be the most powerful of the branches, and that was mostly true until Theodore Roosevelt came along at the beginning of the 20th century and changed the power hierarchy forever.

The Constitution created a bicameral Congress, with the House of Representatives seats based upon state population and the Senate seats based upon equal representation. Each state is guaranteed a minimum of two senators and one representative. Today, Congress is comprised of 435 representatives and 100 senators. Each House district in every state is composed of approximately 650,000 citizens, the idea being that each man’s vote is equal to another man’s vote, often expressed as “one man, one vote” (Baker vs. Carr, 1962).

Article 1 – Legislative BranchThe House is considered to be more representative than the Senate

because of its size and the fact that elections happen every two years, forcing representatives to be more sensitive to the opinions of their constituents in order to ensure a decent chance of being re-elected. Senator terms are for six years, and rather than represent districts, senators are elected at-large by an entire state’s electorate. All representative seats go up for election every two years, so theoretically we could have 435 new members of Congress after the elections are done. The House is constantly changing and shifting, always in flux, always welcoming new members and new ideas.

In contrast, the Senate is referred to as a “continuous body”. Senate elections are held on a staggered basis, meaning that every two years 1/3, or 33 to 34 Senate seats are up for grabs. Therefore, the Senate tends to be comparatively unchanging, because on average, only two or three new senators come to Washington each election cycle.

Article 1 – Legislative BranchMost Congressional powers are found in Article 1, Section 8. The

exceptions are impeachment powers (Article 1, Section 3 and Article 2, Section 4) and revenue raising powers (Article 1 Section 7).

Article 1 – Legislative Branch

Other important Article 1 concepts to know:Section 4: The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.

Section. 9:The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.No Tax or Duty shall be laid on Articles exported from any State.No Title of Nobility shall be granted by the United States. Section. 10: No State shall enter into any Treaty, Alliance, or

Confederation with another state; nor enter into any Agreement or Compact with another State or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article 2 – Executive BranchArticle 2 provides the President with five major roles: Chief

Executive refers to being the true leader of the national government in charge of executing (enforcing) the laws of the land. Chief of State refers to the ceremonial position of being the number one person of interest in the nation – when a foreign leader visits America, they go see the President much as in England they meet with the Queen. Note that one can be Chief Executive and NOT be Chief of State. In America, the same person is both, and that’s the President. Every year In mid January, the president makes a State of the Union Address where he stands before Congress and lays out his/her plans for the legislative agenda for the coming year. He is basically telling Congress what he needs them to do legislatively to make America better. The signing and veto power also play into this role of being the Chief Legislator. Chief Diplomat refers to the powers the President has to affect foreign policy and the relationships between out nation and others. Commander in Chief refers to the military and war powers of the President as the highest ranking officer in the armed forces.

Article 2 – Executive BranchArticle 2, Section 1 is concerned with the nuts and bolts of the

Presidency. The following is a summary of the important concepts:

Term of office is 4 years for both the President and Vice-President. You must be at least 35 years old, be a natural born citizen, and have resided in the United States for at least 14 years. The 22nd amendment limits the President to a maximum of two terms or 10 years in office, whichever applies.

The President is not directly elected by the people; instead, the Electoral College elects the President (see the next few slides). Many people have complained that the Electoral College needs to be abandoned in favor of a direct popular vote, and this has gained momentum over the past 15 years after the debacle of the election of 2000.

I happen to agree with the notion that the Electoral College introduces complications and potential problems into our political system that are, frankly, unacceptable. The main issues are the following:A. Grossly unequal distribution of electoral powerB. The winner-take-all method of distributing electoral votesC. Unbound electorsD. If more than two parties exist and there are three or more candidates, the Electoral College can fail or even tie. In the event of a failure or tie, the House of Representatives chooses the president. This basically enforces a two-party system, which is inherently undemocratic.E. Presidency can be won without a majority of the popular vote

Article 2 – Executive Branch Article 2, Section 2 contains four key presidential powers:

A. Military/War powers: The President is the Commander in Chief of the armed forces, meaning he/she is the supreme leader of the military. Prior to the War Powers Resolution (1973), the President could pretty much do what he wanted with the military, with or without Congressional approval or oversight. In fact, of all the wars America has been involved in, only five have been declared wars. The others have been either Presidential actions or United Nations joint actions with other nations. The law was a Congressional reaction to two undeclared 20th century wars in Korea and Vietnam, with the final straw being President Nixon’s secret bombings of Cambodia during the Vietnam War without notifying Congress after telling Congress and the American people that America was no longer fighting offensively but was instead protecting South Vietnam’s borders. Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. The War Powers Resolution was passed by both the House of Representatives and Senate but was vetoed by President Richard Nixon. By a two-thirds vote in each house, Congress overrode the veto and enacted the joint resolution into law on November 7, 1973. Many people believe the law is unconstitutional, but it has never been legally challenged.

Article 2 – Executive Branch

The War Powers Resolution provides that the U.S. President can send U.S. Armed Forces into action abroad only by declaration of war by Congress, "statutory authorization," or in case of "a national emergency created by attack upon the United States, its territories and possessions, or its armed forces.“ The act requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

It effectively gives Congress the power to end any military action conducted without their approval no matter what the President wants, which means that the true Commander in Chief is no longer the President, but instead is Congress.

Article 2 – Executive BranchB. Pardons, Amnesty, Commutation, and Reprieves: Presidents have the power to grant these three gifts to those accused of or convicted of crimes. A pardon is a formal forgiveness for past illegal acts. All sentencing past or future is null and void, and the person is freed from all future legal punishments and will suffer no legal record for their actions. Amnesty refers to a pardon given to a group of people who broke the same law. In 1977, President Carter issued amnesty to all men who dodged the Vietnam War era draft by leaving the country and refusing to serve, thus allowing these people to return to America without any threat of legal action against them. Commutation allows someone who is serving time (or any other legal penalty) for an offense to be freed from any further obligation. If jailed, the person is freed, though they are not forgiven for the crimes they committed. A reprieve is delay in the enactment of sentencing in order to allow the defense to act on possible new evidence that might result in the convicted person being exonerated.

Article 2 – Executive Branch

C. Treaty powers: “He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties with other nations provided two thirds of the Senators present concur.” In other words, treaties (agreements/contracts with foreign nations) are made by the President in their role as Chief Diplomat, but the Senate must approve all treaties by a 2/3 vote. D. Appointment powers: “…he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” So, the President makes appointments for almost all unelected national government positions, the most important being the federal court justices, including the Supreme Court. However, all appointees must be approved by a 2/3 vote of the Senate.

Article 2 – Executive Branch Article 2, Section 3 isn’t as big a deal as the previous Section, but there are a

few things you do need to know: He (the President) shall from time to time give to the Congress Information

of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient (present his/her legislative agenda once each year sometime in mid January with the annual State of the Union Address); he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper (this refers to the power to call special sessions of Congress after Congress adjourns for the this happens only during a national emergency that occurs between late November and late January because Congress is in session at all other times – an example is Dec. 7, 1941 with Pearl Harbor); he shall receive Ambassadors and other public Ministers (this is the role of Chief of State); he shall take Care that the Laws be faithfully executed (this is the role of Chief Executive),and shall Commission all the Officers of the United States.

Article 2, Section 4 is about impeachment, which we covered already.

Article 3 – Judicial Branch

Article 3, Section 1 reads: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish (mainly the District Courts and the Circuit Courts of Appeal though there are some other that are less relevant to our class, such as the US Tax Court and Military Courts). The judges, both of the supreme and inferior Courts, shall hold their offices during good behavior (Federal judges are appointed for life unless successfully impeached or voluntarily retire), and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The Major Federal Courts and How Cases Get to Them

Article 3 – Judicial Branch Article 3, Section 2 is far too long to annotate, so I’ll put it up here and

on the following slide go into the importance of each facet: The judicial Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article 3 – Judicial BranchThe Federal Courts are known as Constitutional Courts because their

jurisdiction applies mainly to Constitutional law and other national statutes effected under the auspices of the Constitution. However, the Federal Courts also have jurisdiction over cases involving foreign dignitaries and foreign nations, naval and maritime law, cases where the United States is either a complainant or defendant, and interstate cases.

In cases involving foreign nations and/or ambassadors/dignitaries or states, the Supreme Court has original jurisdiction, meaning they have the power to try the case for the first time; in all other cases, the Supreme Court has appellate jurisdiction, meaning they may only hear cases on appeal, unless the supreme Court determines the case to be so important that, via writ of certiorari, they call the case up to the Supreme Court to be heard originally.

Article 3, Section 3 refers to the laws regarding what constitutes treason and the punishments for such crimes.

Article 3 – Judicial Branch Judicial Review in the United States refers to the ability of courts to

decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been implied from the structure, provisions, and history of the Constitution, as well as by judicial decisions in the formative days of the republic. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution as well as the necessity of the judicial branch to have checks and balance power over the pother two branches. Since that decision, it has been an accepted rule of law that courts do have this power, even though it is not expressed textually in the Constitution.

Article 4 – Interstate Relations and StatehoodArticle 4 is concerned with how the national government will

handle states and the relationships between them. It answers many of the problems of the articles of Confederation by establishing rules and procedures regarding what states have to do in order to create a more perfect union.

Article 4, Section 1 contains the Full Faith and Credit Clause, which forces each state to respect and observe the civil laws of all other states. For example, let’s say I am 16 and live in Florida, and on my 16th birthday, I obtain a legal license drive. In California, driving isn’t legally allowed until the age of 18. So, say my parents decide to vacation in California and allow me to drive on the Pacific Coast Highway and I get pulled over by a State Trooper. My Florida license must be accepted by the state of California so the officer cannot get me for not having a license.

Article 4 – Interstate Relations and Statehood

Article 4, Section 2 has two important clauses. The first is called the Privileges and Immunities Clause and it basically makes clear that if you are in a state other than the state you reside in, the state you are visiting must treat you the same as if you lived in that state in terms of legal applications. The second clause is the Extradition Clause, which says that if you are an escaped convict from a different state or a person fleeing another state’s justice into another state, the state harboring the person, if it captures them, must return them to the original state to receive justice.

Article 4 – Interstate Relations and Statehood

Article 4, Section 3 deals with the issue of statehood. Any new state must be approved by Congress. No state may divide itself into more than one state or combine with another state to create a larger state unless approved by Congress.

Article 4, Section 4 deals with a promise to all states to guarantee a democracy; Imagine a would be dictator becomes governor of Florida and attempts to make his position permanent and not subject to democratic election. Congress would step in and remove him. This section also promises the states to protect them from both foreign invasion and domestic violence.

Article 5 – Constitutional Amendment Procedures Article Five describes how the Constitution may be amended. Altering

the Constitution consists of proposing an amendment and subsequently gaining the required number of states (currently 38-50 or ¾ of the states) to ratify the amendment.

Amendments may be proposed in one of two ways. The first method of proposal is by a 2/3 majority of both the Senate and the House of Representatives of the United States Congress. The second proposal method is by a national convention assembled at the request of the legislatures of at least two-thirds (at present 34) of the states. This second method has never been used; all 27 amendments have been proposed by a 2/3 vote of each House of Congress.

To become part of the Constitution, an amendment must be ratified by ¾ of the states. Ratification may be carried out in one of two ways. The

first method is by a yes vote by ¾ of the state legislatures. The other

method is by a yes vote of state ratifying conventions in ¾ of the states. The first method has been used 26 times; the second method only once, but it was a very important issue on the line, that being prohibition.

Article 6 – National and Constitutional Supremacy

Article 6 has a single section, with one clause of import for us which is found in the 2nd paragraph, and is commonly referred to as the Supremacy Clause. This reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in any state Constitution or Laws of any State to the Contrary notwithstanding.

This creates what I previously referred to as the “ladder of law”, which places the laws of the US Constitution and any other national laws pursuant to the dictates of the Constitution as superior to all other laws. The ladder looks like this: US Constitutional Laws supersede national laws, which supersede state laws, which supersede local laws.

Article 6 – National and Constitutional Supremacy

The Supremacy Clause is one of the most controversial clauses in the Constitution. Since 1789 there have been many instances of states attempting to subvert the supremacy of the Constitution and national government. When the Federalists passed the Alien and Sedition Acts (1798), Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions, which provide a classic statement in support of states' rights and called on state legislatures to nullify unconstitutional laws. According to their theory, the federal union is a voluntary association of states, and if the central government goes too far each state has the right to nullify that law (as per the Declaration of Independence).

Article 6 – National and Constitutional SupremacyThe Nullification Crisis of 1832 began in South Carolina over the issue

of trade and tariffs. The almost entirely agricultural and export-oriented South imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial economy that viewed foreign trade as competition. Trade barriers such as protective tariffs were viewed as harmful to the Southern economy, which depended on exports. So S.C. basically passed a law that declared that both the tariff of 1828 and the tariff of 1832 were null and void within the state borders of South Carolina, prompting President Andrew Jackson to send a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this by claiming in his 1832 Proclamation Regarding Nullification that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.“ Note that Jackson used the exact text of Article 6 to defend his action.

Article 6 – National and Constitutional Supremacy

The Civil War was another example of a state’s rights argument made to counter national supremacy which failed utterly. The southern argument, because it ran counter to the ideals of liberty and freedom espoused in the Constitution, held no legal water. The reality was that the slave-power represented an anti-democratic, counter-republican, oligarchic, despotic, authoritarian desire for ownership of human beings as the personal property of the slave owner.

There are many other cases where the issue of states’ rights vs. national supremacy has reared its usually ugly head, but the preceding examples are enough for now.

Article 7 – Ratification Procedures

Article 7 is simple; getting the states to ratify was much more complicated! Article 7 reads:The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

So, nine states had to ratify the new Constitution in order for it to be implemented. The document was written in 1787 and finally ratified in 1789. The first elections were held both statewide and nationally that same year.

The U.S. Constitution – Checks and Balances Separation of powers is an idea ascribed to French Enlightenment

political philosopher Baron de Montesquieu. In his seminal work The Spirit of the Laws (1748), Montesquieu described the value of a separation of political power among a legislature, an executive, and a judiciary. Montesquieu's approach was to present a form of government which was not excessively centralized in all its powers to a single monarch or similar authoritarian ruler. He based his model on the Constitution of the Roman Republic and the British constitutional system after King George III. Montesquieu took the view that powers must be separated so that no one person or group could usurp so much power as to become authoritarian in nature. Montesquieu also wrote of the necessity “…to prevent one branch from becoming supreme, protect the minority from the majority, and to induce the branches to cooperate, necessitating that these government systems must have a way to balance each of the branches. Typically this has been accomplished through a system of "checks and balances“ which allows one branch to limit, or hold in check, another. The branches hold each other reciprocally responsible to the assertion of powers as apportioned by law.

The U.S. Constitution – Checks and Balances

The U.S. Constitution - FederalismThe 10th amendment expresses the principle of federalism,

which undergirds the entire plan of the original Constitution, by stating that the federal government possesses only those powers given to it by the Constitution. Reserved powers are those powers which are not "enumerated" (written down and assigned) for the national government. All remaining powers are reserved for the states or the people. For example, nowhere in the Constitution does it say or imply that the national government has control over most criminal offenses. Because it is not stated or implied, the power to make and enforce criminal statutes belongs to the states. Full Faith and Credit, Privileges and Immunities, and the Supremacy Clause are all things we’ve already talked about that the Constitution designed to describe interstate relations.

The U.S. Constitution - Federalism Regarding federalism, the Constitution grants the national government several

different types of powers and prohibits it from taking certain actions. The Constitution outlines four major types of power: enumerated, implied, inherent, and prohibited.

Enumerated powers (AKA Expressed Powers) are those powers clearly written and explained in the text of the Constitution. Congress’ power to tax is clearly stated, as is the President’s war powers as Commander in Chief.

Implied Powers refer to powers the President and/or Congress has assumed even though they are not expressed in the text of the Constitution. With Congressional implied powers, Article 1, Section 8, Clause 18 creates implied powers through the elastic clause (AKA the necessary and proper clause). With executive powers, there is no clause giving the President implied powers, but over time, many executive actions deemed to be necessary and proper yet not in the Constitution have been added. For example, Jefferson had no Constitutional power to buy the Louisiana Purchase from Napoleon in 1803. He could not pass up the chance to double the size of America for a really cheap price, so he made the deal. It’s ironic because Jefferson was an Anti-Federalist and favored strict constructionism, which would have made this deal impossible for him to make had he stuck to his philosophical guns. But he swallowed his intellectual pride and did it anyway, because it was best for America that he did.

The U.S. Constitution - Federalism Inherent Powers are powers the national government possesses

simply because it is the national government of a sovereign nation. The word inherent refers to something that someone or something possesses naturally because of what or who they are. A very poor person is inherently impoverished and undernourished, because those are essential characteristics of being really poor. The most important inherent powers are the power of the government to defend the nation from foreign invasion. If Cuba attacked Florida, for example, we would not be expected to defend ourselves from Cuban aggression; instead, the national government would send the nation’s armed forces to deal with the situation.

Prohibited Powers are those powers the Constitution specifically forbids the government from possessing. For example, Congress cannot tax exports or tell states how to choose electors for the Electoral College.

The U.S. Constitution – The Unwritten Constitution The "Unwritten Constitution" refers to the ideas and processes that are

accepted as a needed part of American government, despite the fact that they are not actually in the Constitution. These came about through both custom and precedent and have become incorporated into our system despite their lack of notation in the text of the Constitution. For example, nowhere in the Constitution does it say that the Chief Executive should have a group of advisors known as the Cabinet. Yet it still exists. Political parties exist today, even though there is nothing in the Constitution to demand they exist; in fact, many of the nation’s founding fathers warned of the dangers of factions. Another prime example is judicial review, which allows federal courts to determine the Constitutionality of laws. Nowhere in the Constitution does it give the federal courts this power, but they have it nonetheless. Most of what the US government does is not expressly provided for in the Constitution. The vagaries of the document, along with the elastic clause, has allowed the government to adjust to changing times, which is the main reason why the Constitution has had such a long and successful history.

The U.S. Constitution – The Unwritten Constitution The most important unwritten Constitutional principle is Article 1, Section

8, Clause 18. This clause is called either the Elastic Clause or the Necessary and Proper Clause, and it defines what are known as implied powers. It reads:

Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States. This gives Congress the power to make any law it deems to be necessary to carry out the dictates of the Constitution, which gives the government the flexibility to change with the times. In 1787, for example, there were no airplanes; however, by the late 1940’s, airlines profited from taking people from one place to another, so it became necessary to make sure they were flying people safely. The Federal Aviation Administration (FAA) is the national aviation authority of the United States, and was created by Congress in 1958. It oversees all aspects of American civil aviation. There is no mention of aviation in the Constitution; the elastic clause made it possible for Congress to regulate airlines in order to promote the “general welfare of the people”.

The U.S. Constitution – The Unwritten ConstitutionWhen President George Washington asked Secretary of the Treasury

Alexander Hamilton to defend the constitutionality of the First Bank of the United States (against the protests of his cabinet, Secretary of State Thomas Jefferson, Attorney General Edmund Randolph, and the main author of the Constitution James Madison), Hamilton produced what has now become the classic statement for implied powers.

Hamilton argued that the sovereign duties of a government implied the right to use whatever means necessary to achieve its ends. Hamilton argued that it was impossible to define all the means which it should use or ends it should pursue, because it was impossible for the founders to anticipate all future exigencies. Hamilton noted that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution. Later, directly borrowing from Hamilton, Chief Justice John Marshall invoked the implied powers of government in the court decision of McCulloch v. Maryland (1819).

The U.S. Constitution – The Unwritten Constitution McCulloch v. Maryland, (1819), was a landmark decision by the

Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the National Bank by imposing a tax on all notes of banks not chartered in Maryland. The law was recognized in the Chief Justice John Marshall’s opinion as having specifically targeted the Bank of the United States. Maryland argued that there was nothing in the Constitution giving Congress the power to create a bank, much less one free from law. Marshall invoked the Necessary and Proper Clause, which allows the government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution. This case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government, thus cementing the concept in Article 6 known as the Supremacy Clause.

The U.S. Constitution – The Amendments To amend the Constitution means changing it in some meaningful way.

There are two types of amendments, informal amendments and formal amendments. Informal amendments happen all the time; literally, there have been millions of informal amendments. In comparison, formal amendments have only occurred 27 times in nearly 220 years, and only 17 times since 1791. A formal amendment occurs when the text of the Constitution is altered; something new is put in or something already in there is taken out. The Constitution has often been called “a living document” because of the informal amendment process. The ability of the Courts and our national elected leaders to change the way the Constitution is interpreted and applied gives the document an evolving quality. For example, in 1791 there were no interstate highways because there were no cars. When President Eisenhower proposed and signed the Interstate Highway Act in 1956, he didn’t do what the Constitution said he should, he did what was necessary and proper for the welfare of the people of the country. The practice of law enforcement being required to tell people they have the right to remain silent is the result of informal changes made by the Supreme Court in a decision.

The U.S. Constitution – The Amendments Those amendments in bold print are the most important for you to know. 1. Establishes freedom of: Religion, Speech, Press, Assembly, and Petitioning the

government. 2. Establishes right of states to have militias and to "keep and bear arms." The right

of individual citizens to "keep and bear arms" is not mentioned in the Constitution, but has been implied by the courts over the years.

3. The government cannot quarter (house) any soldier in a person's house during peacetime without the owner's permission and in wartime except in a manner prescribed by law.

4. Freedom from unreasonable searches and seizures without a legal warrant obtained from a judge.

5. Protection from Double jeopardy, Self-incrimination, private property taken without just compensation (eminent domain), and the promise of due process of law.

6. Right to a speedy, public trial by an impartial jury of peers, right to know the nature of what you’ve been accused of, the right to a lawyer, right to call witnesses for you, and cross-examine witnesses against you.

7. Right to jury trial in civil suits. 8. Protection from excessive bail and cruel and unusual punishments. 9. Provision that the enumeration of certain rights in the Constitution does not imply that

there are not other rights. 10. Powers not given to the United States and not prohibited to the states, are reserved

to the states or to the people (reserved powers).

11. The 11th Amendment was adopted following the Supreme Court's ruling in Chisholm v. Georgia, 2 U.S. 419 (1793). In Chisholm, the Court ruled that federal courts did have the authority to hear cases brought by private citizens against states and that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. The amendment clarified Article 3, Section 2 of the Constitution, which gave jurisdiction to the federal judiciary to hear cases "between a state and citizens of another state.“

The 12th Amendment replaced Article 2, Section 1, Clause 3, which provided the original procedure for electing the President and Vice President by which the Electoral College functioned. Problems with the original procedure arose in the elections of 1796 and 1800. Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3, each elector could vote for two persons. The person receiving the greatest number of votes was elected President. Selecting the Vice President was a simpler process. Whichever candidate received the 2nd greatest number of votes, became Vice President.

The U.S. Constitution – The Amendments

12 (continued): Problems developed almost immediately. In the 1796 election, John Adams, the Federalist Party presidential candidate, received a majority of the electoral votes. However, the Democratic-Republican Party presidential candidate, Thomas Jefferson, received the second highest number of electoral votes and thus was elected Vice President. Adams was a Federalist, while Jefferson was an Anti-Federalist; they had once been great friends but at this point in time despised one another. The 1800 election exposed a defect in the original formula in that if each member of the Electoral College followed party tickets, there would be a tie between the two candidates from the most popular ticket. It was apparent that the original plan in the Constitution might cause a situation in which the two would be ineffective working together. By having the President and Vice President elected on a party ticket, this possibility would be eliminated, or at least minimized. Now we follow a party ticket system, whereby a Presidential candidate has a running mate that electors vote for as a tandem, one as President and the other as Vice-President, thus separating the election of the two offices while marrying them together with party affiliation. This eliminates the problem, but it also causes us to become dependent on political parties, and even worse, only two parties, as any more than that would likely cause the electoral college fail to elect a president.

The U.S. Constitution – The Amendments 13. Abolishes slavery. 14. This amendment has several provisions; the most important ones

are: It makes all people who were born or naturalized in the US citizens. The main effect is to make former slaves citizens. It also says that any state may not deny to any person under its jurisdiction the equal protection of the law and applies the 5th amendment’s due process clause to the states. Before this amendment, the equal protection and due process clauses were applied only to the actions of the national government.

15. Gives citizens the right to vote regardless of "race, color, or previous condition of servitude." The goal of this amendment was to give former slaves the right to vote; it is more explicit than the 14th Amendment. It was not enforced in the South until 1965.

16. Gives the national government the right to establish an income tax. Before this amendment, a national income tax was illegal.

17. Changes the way senators are elected. Before this amendment, senators were elected by state legislatures. Since this amendment was enacted in 1913, senators have been elected directly by the people, the same as members of the House of Representatives.

18. Established prohibition-the sale and consumption of virtually all alcoholic beverages were outlawed.

19. Gives women the right to vote in national and state elections.20. Changes the day of the beginning of the president's term from

March 4 to January 20 and Congress's term from March 4 to January 3. The main effect is to end the Congressional session that had formerly met between January and March, which had included many representatives and senators who had not been re-elected the previous November

21. Abolished prohibition.

The U.S. Constitution – The Amendments 22. Prohibits any person from being elected president more than

twice (the two-term limit); 10 year maximum. 23. Gives three electoral votes to Washington, D.C. Before this

amendment, the citizens of Washington, D.C. could not vote for president, though they still do not have any senators or representatives.

24. Outlaws the poll tax. Before this amendment was enacted in 1964, many states charged a fee (a poll tax) to vote.

25. Provides for presidential succession. Before this amendment was enacted in 1967, when a president died, the vice-president took his office, but there was no longer a vice president. With the enactment of this amendment, the new president can appoint a vice president. There are also provisions for presidential disability and who takes office if both the President and Vice President are dead or incapacitated.

26. Gives the vote to all citizens 18 years old or older. 27. Provides that no congressional pay raise may take effect until one

congressional election shall have intervened.