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United States Constitution - Wikipedia, the free encyclopedia

February 3, 2013 5:28:04 ile://localhost/Volumes/1TB%20Passport/constitutional%20history/United%20States%20Co...

United States Constitution

Page one of the original copy of the

Constitution

Created September 17, 1787

Ratified June 21, 1788

Location National Archives,

Washington, D.C.

Author(s) Philadelphia Convention

Signatories 39 of the 55 delegates

Purpose To replace the Articles o

Confederation (1777)

United States of America

This articleis part of the series:

United States Constitutio

Original text of the

Constitution

Preamble

Articles of the Constitutio

United States ConstitutionFrom Wikipedia , the free encyclopedia

The Constitution of the United States is the supreme law of the United Statesof

America. The first three Articles of the Constitutionestablishthe rules and separate

owers of the three branches of the federal government: a legislature, the bicameral

Congress; an executive branch led by the President; and a federal judiciary headed by

he Supreme Court. The last four Articles framethe principleof federalism. The Tenth

Amendment confirmsits federal characteristics.

The Constitutionwas adopted on September17, 1787, by the Constitutional

Convention in Philadelphia, Pennsylvania, and ratified by conventions in eleven states.

t went into effect on March 4, 1789.[1] The first ten constitutionalamendmentsratified

y three-fourths of the statesin 1791 are known as the Bill of Rights. The Constitution

has been amended seventeen additional times (for a total of 27 amendments) and its

rinciplesare applied in courts of law by judicial review.

The Constitutionguides American society in law and politicalculture. It is the oldest

writtennational constitutionin continuous use, and it influencedlater international

igures establishingnationalconstitutions. Recent impulsesfor reform center ononcerns for extending democracyand balancing the federal budget.

Contents

1 History

1.1 First government

1.2 ConstitutionalConvention

1.2.1 Drafting the Constitution

2 Ratification

2.1 Historicalinfluences

2.1.1 Fundamental law

2.1.2 Native Americans

2.1.3 Other bills of rights

3 Original text

3.1 Authority and purpose

3.2 Nationalgovernment

3.2.1 Legislature

3.2.2 Executive

3.2.3 Judiciary

3.3 Federal relationships

3.3.1 The States3.3.2 Amendments

3.3.3 Federalgovernment

3.3.4 Ratification

4 The Amendments

4.1 Procedure

4.2 Successful

4.2.1 "Bill of Rights"

4.2.1.1 Individual rights

4.2.1.2 Trial and sentencing

4.2.1.3 Congress nor States


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I II III IV V V

VII

Amendments to the

Constitution

Bill of Rights

I

II

III

IV

V

VVII VIII IX X

Subsequent Amendment

XI XII XIII XIV

XV XVI XVII

XVIII XIX XX X

XXII XXIII XXI

XXV XXVI XXV

Unratified Amendments

I(1) XIII(1) XIII(2

XX(1) XXVII(1)

XXVII(2)

Full text of the Constitutio

Original Constitutio

Bill of Rights

Subsequent Amendme

Unsuccessful

Amendments

Other countries Law Por

4.2.1.4 Potentialmilitarycoercion

4.2.2 Subsequent

4.2.2.1 Citizen rights

4.2.2.2 Three branches

4.2.2.3 States and abuses

4.3 Unratified

4.3.1 One remaining

4.3.2 Abandoned

4.3.2.1 Quit by practice4.3.2.2 Quit by policy

4.3.2.3 Time ran out

5 Judicialreview

5.1 Scope and theory

5.2 Establishment

5.2.1 Self-restraint

5.2.2 Separation of powers

5.3 Subsequent Courts

6 Civic religion

7 Worldwide

8 Criticisms

9 See also

10 Notes

11 Citations

12 References

13 Further reading

14 External links

History

Main article: History of the United States Constitution

First government

Main article: Articlesof Confederation

The Articlesof Confederationand Perpetual Union were the firstconstitutionof the United Statesof America.[2] The proble

with the United Statesgovernment under the Articles of Confederation was, in the words of George Washington, "no

money."[3]

Congress could print money, but by 1786, the money was useless. Congress could borrow money, but could not pay it back

No state paid all of their U.S. taxes; Georgia paid nothing. Some few paid an amount equal to intereston the nationaldebt oo their citizens, but no more.[3]No interest was paid on debt owed foreign governments. By 1786, the United States would

default on the dates the principal came due.[3]

The United Statescould not defend itself as an independent nation in the world of 1787. Most of the U.S. troops in the 625-

U.S. Army were deployed facing Britishfortson American soil. The troops had not been paid; some were desertingand the

emainderthreatenedmutiny.[4] Spain closed New Orleans to American commerce. The United States protested, to no effec

The Barbary Piratesbegan seizing American commercialships. The Treasury had no funds to pay the pirates' extortion

demands. The Congress had no more credit if another militarycrisishad required action.[3]


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Scene at the Signing of the Constitution of t

United States by Howard Chandler Christy.

The states were proving inadequate to the requirementsof sovereignty in a confederation. Although the Treaty of Paris (178

had been made between Great Britain and the United States with each statenamed individually, individualstates violated it.

New York and South Carolina repeatedly prosecuted Loyalists for wartimeactivity and redistributedtheir lands over the

rotests of both Great Britain and the ArticlesCongress.[3]

n Massachusettsduring Shays' Rebellion, Congress had no money to support a constituentstate, nor could Massachusettsp

or its own internaldefense. General Benjamin Lincoln had to raise funds among Boston merchants to pay for a volunteerar5] During the upcoming Convention, James Madison angrilyquestioned whether the Articlesof Confederation was a comp

r even government. Connecticut paid nothing and "positively refused" to pay U.S. assessmentsfor two years.[6]

A rumor ht that a "seditious party" of New York legislatorshad opened communicationwith the Viceroy of Canada. To the south, th

British were said to be funding the Creek Indian raids; Savannah was fortified, the State of Georgia under martial law.[7]

Congress was paralyzed. It could do nothing significantwithout nine states, and some legislativebusiness required all thirte

When only one member of a state was on the floor, then that states vote did not count. If a delegation were evenly divided,

vote counted towards the nine-count requirement.[8] Individualstate legislaturesindependently laid embargoes, negotiated

directly with foreigners, raised armies and made war, all violating the letterand the spiritof the Articles of Confederation an

PerpetualUnion. The Articles Congress had "virtuallyceased trying to govern."[9] The vision of a "respectablenation" am

nationsseemed to be fading in the eyes of revolutionariessuch as George Washington, Benjamin Franklin and Rufus King.

dreamof a republic, a nation withouthereditaryrulers, with power derived from the people in frequent elections, was in dou

10]

Constitutional Convention

Main article: ConstitutionalConvention (United States)

On February 21, 1787, the Articles Congress called a convention of statedelegates at Philadelphia to propose a plan of

government. Unlike earlierattempts, the convention was not meant for new laws or piecemealalterations, but for the sole a

xpress purpose of revisingthe Articles of Confederation. The convention was not limitedto commerce; rather, it was inten

o render the federalconstitutionadequate to the exigenciesof governmentand the preservationof the Union." The propos

might take effect when approved by Congress and the states.[11]

On the appointed day, May 14, only the Virginia and Pennsylvania delegationswere present. A quorum of seven states met

May 25. Eventually twelve states were represented; 74 delegates were named, 55 attendedand 39 signed. The delegatesarr

with backgrounds in local and state government and Congress. They were judges and merchants, war veterans and

evolutionarypatriots, native-born and immigrant, establishmenteasternersand westward-looking adventurers. The participa

delegates are honored as the Constitutions Framers.[12]

Drafting the Constitution

The ConstitutionalConvention began deliberationson May 25, 1787. The

delegates were generally convinced that an effective central governmentwith a

wide range of enforceablepowers must replace the weaker Congress

stablishedby the Articles of Confederation. The high quality of the delegates

o the convention was remarkable. As Thomas Jefferson in Paris wrote to John

Adams in London, "It really is an assembly of demigods."

Delegates used two streamsof intellectualtradition, and any one delegate could

e found using both or a mixturedepending on the subject under discussion,

oreign affairs or the economy, nationalgovernmentor federal relationships

mong the states. The Virginia Plan recommendeda consolidated national

government, generally favoring the big population states. It used the philosophy

f John Locke to rely on consent of the governed, Montesquieu for divided


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government, and Edward Coke emphasizingcivil liberties. The New Jersey Plan generally favored the small population stat

using the philosophy of English Whigs such as Edmund Burke to rely on receivedprocedure, and WilliamBlackstone

mphasizingsovereignty of the legislature.

The Convention devolved into a Committeeof the Whole to consider the fifteenpropositions of the Virginia Plan in their

numericalorder. These discussionscontinued until June 13, when the Virginia resolutionsin amended form were reported o

f committee.

All agreed to a republican form of government grounded in representingthe people in the states. For the legislature, two issu

were to be decided, (1) how the votes were to be allocated among the statesin the Congress, and (2) how the representative

hould be elected. The question was settledby the Connecticut Compromise or "Great Compromise". In the House, state po

was to be based on population and the people would vote. In the Senate, statepower was to be based on state legislature

lection, two Senatorsgenerally to be elected by differentstate legislaturesto better reflect the long term interestsof the peop

iving in each state.

The Great Compromise ended the stalematebetween patriots and nationalists, leading to numerous other compromisesi

pirit of accommodation. There were sectional interests to be balanced by the three-fifths compromise; reconciliationon

Presidentialterm, powers, and method of selection; jurisdictionthe federal judiciary. Debates on the Virginia resolutions

ontinued. The 15 original resolutionshad been expanded into 23.

On July 24, a committeeof five (John Rutledge (SC), Edmund Randolph (VA ), Nathaniel Gorham (MA), Oliver EllsworthCT), and James Wilson (PA) was electedto draft a detailed constitution. The Convention adjourned from July 26 to Augus

o await the report of this "Committeeof Detail". Overall, the report of the committeeconformed to the resolutionsadopted b

he Convention, adding some elements.

From August 6 to September10, the report of the committeeof detail was discussed, section-by-section, and clause-by-clau

Details were attended to, further compromiseswere effected. Toward the close of these discussions, on September8, a

Committeeof Style" of five were appointed. Their finalversion was taken up on Monday, September 17, at the Conventio

inal session. Severalof the delegates were disappointed in the result, a makeshiftseries of unfortunate compromises. Some

delegates left before the ceremony, three remainingrefused to sign. Of the thirty-nine signers, Benjamin Franklin summed u

ddressing the Convention, "There are severalparts of this Constitutionwhich I do not at present approve, but I am not sure

hall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it i

he best."

The advocates of the Constitutionwere anxious to obtain the unanimoussupport of all twelve statesrepresented in Convent

Their agreed to formula was, Done in Convention, by the unanimous consent of the States present. George Washington n

n his diary that night, the proposal was agreed to by eleven state delegationsand the lone Mr. Hamiltonfor New York.

Transmittedto the Articles Congress then sitting in New York City, the Constitution was forwarded to the states by Congre

ecommending the ratificationprocess outlined in the Constitution. Each state legislaturewas to call electionsfor a Federal

Convention to ratify the Constitution. They expanded the franchise beyond the Constitutionalrequirementto more nearly

mbrace the people. Eleven of the thirteenratifiedto begin, all thirteen unanimouslydid so a year later. The Articles Cong

ertifiedeleven statesbeginning the new government, and called the statesto hold electionsto begin operation. It then disso

tself on that date, the day the firstsession of the First Congress began March 4, 1789 and George Washington was inaugura

s President two months later.

Ratification

t was within the power of the old congress to expedite or block the ratificationof the

new Constitution. The document that the PhiladelphiaConvention presentedwas

echnicallyonly a revision of the Articlesof Confederation. But the last articleof the

new instrumentprovided that when ratifiedby conventions in nine states(or 2/3 at the

ime), it should go into effect among the States so acting.


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The 13 colonies in 1775

Enlightenmentand Rule of

John Locke

Two Treatises of

Government

life, liberty and property

Then followed an arduous processof ratificationof the Constitutionby specially

onstitutedconventions. The need for only nine states was a controversialdecision at

he time, since the Articlesof Confederationcould only be amended by unanimous vote

f all the states. However, the new Constitutionwas ratifiedby all thirteenstates, with

Rhode Islandsigning on last in May 1790.

Three membersof the Convention Madison, Gorham, and King were also Members

f Congress. They proceeded at once to New York, where Congress was in session, to

lacate the expected opposition. Aware of their vanishing authority, Congress, on

September28, after some debate, unanimously decided to submitthe Constitutionto the

States for action. It made no recommendationfor or against adoption.[13]

Two parties soon developed, one in opposition, the Antifederalists, and one in support,

he Federalists, of the Constitution, and the Constitution was debated, criticized, and

xpounded clause by clause. Hamilton, Madison, and Jay, under the name of "Publius,

wrote a seriesof commentaries, now known as the FederalistPapers, in support of the

new instrumentof government; however, the primary aim of the essays was for

atificationin the state of New York, at that time a hotbed of anti-federalism. These

ommentarieson the Constitution, written during the struggle for ratification, have been

requentlycited by the Supreme Court as an authoritativecontemporaryinterpretationof

he meaning of its provisions. The closenessand bitternessof the struggleover ratificationand the conferring of additionalowers on the central government can scarcelybe exaggerated. In some states, ratificationwas effected only after a bitter

truggle in the state convention itself. In every state, the Federalistsproved more united, and only they coordinatedaction

etween differentstates, as the Anti-federalistswere localized and did not attemptto reach out to other states.

The ContinentalCongress which stillfunctioned at irregularintervals passed a resolutionon September13, 1788, to put

new Constitution into operation.

Historical influences

Fundamental law

Several ideas in the Constitutionwere new. These were associated with the combinationof consolidatedgovernmentalong

ederal relationshipswith constituentstates.

The due process clause of the Constitutionwas partly based on common law and on Magna

Carta (1215) which had become a foundation of English libertyagainst arbitrarypower wielded

y a tyrant.

Both the influenceof Edward Coke and WilliamBlackstone were evident at the Convention. In

his Institutesof the Laws of England, Edward Coke interpretedMagna Carta protections and

ights to apply not just to nobles, but to all Britishsubjects. In writing the Virginia Charter of

606, he enabled the King in Parliament to give those to be born in the coloniesall rightsand

ibertiesas though they were born in England. WilliamBlackstone's Commentaries on theLaws of Englandwere the most influentialbooks on law in the new republic.

BritishpoliticalphilosopherJohn Locke following the Glorious Revolution was a major

nfluence expanding on the contract theory of governmentadvanced by Thomas Hobbes.

Locke advanced the principleof consent of the governed in his Two Treatises of Government.

Government's duty under a social contract among the sovereign people was to serve them by

rotecting their rights. These basic rights were life, liberty and property.


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"We the People", as it appears in a

original copy of the Constitution.

Montesquieu, emphasizedthe need for balanced forces pushing against each other to prevent tyranny (reflectingthe influenc

Polybius's 2nd century BC treatise on the checks and balances of the Roman Republic). In his The Spiritof the Laws,

Montesquieuargues that the separationof state powers should be by its service to the people's liberty: legislative, executivea

udicial.

Division of power in a republicwas informed by the Britishexperiencewith mixed government, as well as study of republic

ncient and modern. A substantialbody of thought had been developed from the literatureof republicanismin the United St

ncluding work by John Adams and applied to the creation of stateconstitutions.

Native Americans

The Iroquois nations' politicalconfederacy and democraticgovernmentunder the Great Law of Peace have been creditedas

nfluenceson the Articles of Confederation and the United States Constitution.[14] Relations had long been close, as from th

eginning the colonialEnglish needed alliesagainst New France. Prominent figures such as Thomas Jefferson in colonial

Virginia and Benjamin Franklin in colonialPennsylvania, two colonies whose territorialclaims extended into Iroquois territ

were involved with leaders of the New York-based Iroquois Confederacy.[15]

n the 1750s at the Albany Congress, Franklin called for "some kind of union" of English colonies to effectivelydeal with

Amerindian tribes.[16] John Rutledge (SC) quoted Iroquoian law to the ConstitutionalConvention, "We, the people, to form

union, to establish peace, equity, and order..." [17]

The Iroquoisexperiencewith confederacy was both a model and a cautionary tale. Their "Grand Council" had no coercive

ontrol over the constituentmembers, and decentralizationof authority and power had frequently plagued the Six Nations si

he coming of the Europeans. The governance adopted by the Iroquois suffered from "too much democracy" and the long te

ndependence of the Iroquois confederationsuffered from intrigueswithin each Iroquois nation.[18]

The 1787 United States had similarproblems, with individual statesmaking separateagreementswith European and

Amerindiannations apart from the Continental Congress. Without the Convention's proposed centralgovernment, the frame

eared that the fate of the confederatedArticles' United States would be the same as the IroquoisConfederacy.

Other bills of rights

The United States Bill of Rights consists of the ten amendmentsadded to the Constitutionin 1791, as supportersof the

Constitutionhad promisedcriticsduring the debates of 1788.[19] The English Bill of Rights (1689) was an inspirationfor th

American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessivebail and forbid "cr

nd unusual punishments." Many libertiesprotected by state constitutionsand the Virginia Declarationof Rights were

ncorporatedinto the Bill of Rights.

Original text

The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its

nactmentby the constitutionalconvention.

Authority and purpose

Main article: Preamble to the United StatesConstitution

See also: wikisource:Constitution of the United States of America#Preamble

We the People of the United States, in Order to form a more perfect Union,

establishJustice, insuredomesticTranquility, provide for the common defence,

promote the general Welfare, and secure the Blessings of Liberty to ourselves and


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our Posterity, do ordain and establishthis Constitutionfor the United States of America.

The Preamble sets out the origin, scope and purpose of the Constitution. Its origin and authority is in We, the people of the

United States. This echoes the Declaration of Independence. One people dissolved their connection with another, and

ssumed among the powers of the earth, a sovereign nation-state. The scope of the Constitutionis twofold. First, to form a

more perfect Union than had previouslyexisted in the perpetualUnion of the Articlesof Confederation. Second, to secu

he blessings of liberty, which were to be enjoyed by not only the first generation, but for all who came after, our posterity20]

This is an itemizedsocial contract of democraticphilosophy. It details how the more perfect union was to be carried out

etween the national government and the people. The people are to be provided (a) justice, (b) civil peace, (c) common defe

d) those thingsof a generalwelfare that they could not provide themselves, and (e) freedom. A governmentof "libertyand

union, now and forever", unfolds when We begin and establishthis Constitution.[a][22]

National government

Legislature

Main article: Article One of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article I

Article One describes the Congress, the legislativebranch of the federal government. Section 1, reads, "All legislativepowe

herein granted shall be vested in a Congress of the United States, which shallconsist of a Senate and House of

Representatives."

The articleestablishes the manner of election and the qualificationsof membersof each body. Representativesmust be at lea

5 years old, be a citizen of the United Statesfor seven years, and live in the state they represent. Senators must be at least3

years old, be a citizenfor nine years, and live in the state they represent.

ArticleI, Section 8 enumeratesthe legislativepowers, which include:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and allother powers vested by this Constitutionin the governmentof the United States, or in any departmentor officer

thereof.

ArticleI, Section 9 listseight specific limitson congressionalpower.

The United States Supreme Court has interpretedthe CommerceClause and the Necessary and Proper Clause in ArticleOn

llow Congress to enact legislationthat is neither expressly listedin the enumerated power nor expresslydenied in the

imitationson Congress. In McCulloch v. Maryland(1819), the Supreme Court read the Necessary and Proper Clause to per

he federalgovernment to take action that would "enable [it] to perform the high duties assigned to it [by the Constitution] in

manner most beneficialto the people,"[23] even if that action is not itselfwithin the enumeratedpowers. Chief JusticeMarsh

larified: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, whic

re plainlyadapted to that end, which are not prohibited, but consistwith the letter and spirit of the Constitution, are

Constitutional."[23]

Executive

Main article: Article Two of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article II


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ArticleII, Section 1 createsthe presidency. The section vests the executivepower in a President. The Presidentand Vice

President serve identicalfour-year terms. This section originallyset the method of electingthe President and Vice President,

his methodhas been superseded by the Twelfth Amendment.

Qualifications

The President must be a naturalborn citizenof the United States or a citizenat the time of the adoption of the

Constitution, at least 35 years old and a resident of the United States for at least 14 years.[24] The first president to be

an American citizen was Martin Van Buren.[25]

Succession

Section 1 specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge

powers and duties of office, dies while in office, or resigns. The later 25th Amendment clarifiesthis.

Pay

The President receivesCompensation, and this compensation may not be increasedor decreased during the president'

termin office. The presidentmay not receive other compensation from either the United Statesor any of the individua

states.

Oath of office

The final clause creates the presidentialoath to preserve, protect, and defend the Constitution.

Section 2 grants substantivepowers to the president:

The president is the Commander in Chief of the United States Armed Forces, and of the state militiaswhen these are

called into federal service.

The presidentmay require opinionsof the principalofficersof the federalgovernment.

The presidentmay grant reprieves and pardons, except in cases of impeachment(i.e., the presidentcannot pardon him

or herself to escape impeachmentby Congress).

Section 2 grants and limitsthe president's appointmentpowers:

The presidentmay make treaties, with the advice and consent of the Senate, provided two-thirds of the senators who a

present agree.With the advice and consent of the Senate, the Presidentmay appoint ambassadors, other public ministersand consuls

judges of the Supreme Court, and all other officers of the United States whose appointmentsare not otherwisedescrib

in the Constitution.

Congress may give the power to appoint lower officers to the Presidentalone, to the courts, or to the heads of

departments.

The president may make any of these appointmentsduring a congressionalrecess. Such a "recess appointment" expir

the end of the next session of Congress.

Section 3 opens by describingthe president's relationswith Congress:

The presidentreportson the state of the union.The RecommendationClause[26]: The presidenthas the power and duty[27] to recommendto Congress's consideratio

such measureswhich the presidentdeems as "necessary and expedient".

The presidentmay convene either house, or both houses, of Congress.

When the two houses of Congress cannot agree on the timeof adjournment, the presidentmay adjourn them to some

futuredate.

Section 3 adds:

The president receives ambassadors.

The presidentsees that the laws are faithfullyexecuted.


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The presidentcommissionsall the officesof the federalgovernment.

Section 4 provides for removalof the president and other federal officers. The president is removed on impeachmentfor, an

onviction of, treason, bribery, or other high crimesand misdemeanors.

Judiciary

Main article: Article Three of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article III

ArticleThree describes the court system(the judicialbranch), including the Supreme Court. There shall be one court called

Supreme Court. The articledescribes the kinds of cases the court takes as original jurisdiction. Congress can create lower co

nd an appeals process. Congress enacts law definingcrimes and providing for punishment. Article Three also protects the r

o trialby jury in all criminalcases, and defines the crime of treason.

Judicial power. Article III, Section 1 is the authority to interpretand apply the law to a particularcase. It includes the powe

unish, sentence, and direct future action to resolve conflicts. The Constitution outlines the U.S. judicial system. In the Judic

Act of 1789 Congress began to fill in details. Currently, Title 28 of the U.S. Code[28] describes judicialpowers and

dministration.

As of the First Congress, the Supreme Court justices rode circuitto sit as panels to hear appeals from the districtcourts.[b] In891 Congress enacted a new system. Districtcourtswould have original jurisdiction. Intermediateappellatecourts (circuit

ourts) with exclusive jurisdictionwere made up of districts. These circuitcourtsheard regionalappeals before consideration

he Supreme Court. The Supreme Court holds discretionaryjurisdiction, meaning that it does not have to hear every case tha

rought to it.[28]

To enforce judicialdecisions, the Constitutiongrants federal courtsboth criminalcontemptand civil contemptpowers. The

ourts summary punishment for contempt immediatelyoverridesall other punishmentsapplicableto the subject party. Othe

mplied powers include injunctive relief and the habeas corpus remedy. The Court may imprison for contumacy, bad-faith

itigation, and failure to obey a writ of mandamus. Judicialpower includes that granted by Acts of Congress for rules of law

unishment. Judicial power also extends to areas not covered by statute. Generally, federal courts cannot interruptstate cour

roceedings.[28]

Arisings Clause. The Diversity (of Citizenship) Clause. Article III, Section 2, Clause 1. Citizens of differentstatesare citiz

f the United States. Cases arisingunder the laws of the United States and its treatiescome under the jurisdictionof federal

ourts. Cases under internationalmaritimelaw and conflicting land grants of different states come under federal courts. Case

etween U.S. citizens in differentstates, and cases between U.S. citizensand foreign states and their citizens, come under

ederal jurisdiction. The trialswill be in the state where the crimewas committed.[28]

Judicial review. Article III, Section 2. U.S. courts have the power to rule legislativeenactmentsor executive acts invalidon

onstitutionalgrounds. The Constitution is the supreme law of the land. Any court, stateor federal, high or low, has the pow

o refuse to enforce any statuteor executiveorder it deems repugnant to the U.S. Constitution. Two conflictingfederal laws

under "pendent" jurisdictionif one presentsa strictconstitutionalissue. Federal court jurisdictionis rare when a state legislatnacts something as under federal jurisdiction.[c] To establisha federal system of national law, considerableeffort goes into

developing a spiritof comity between federalgovernmentand states. By the doctrineof Res Judicata, federal courtsgive "

aith and credit" to State Courts.[d] The Supreme Court will decide Constitutionalissues of state law only on a case by case

asis, and only by strictConstitutionalnecessity, independent of state legislatorsmotives, their policy outcomes or its nation

wisdom.[e]

Exceptions Clause. Article III, Section 2, Clause 2. The Supreme Court has original jurisdictionin cases about Ambassado

nd other public ministersand consuls, for all cases respectingforeign nation-states.[29]


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Standing. Article III, Section 2, Clause 2. This is the rule for federalcourts to take a case. Justiciabilityis the standing to sue

ase cannot be hypotheticalor concerning a settledissue. In the U.S. system, someone must have direct, real and substantial

ersonal injury. The issue must be concrete and "ripe", that is, of broad enough concern in the Courts jurisdictionthat a low

ourt, either federal or state, does not geographicallycover all the existingcases before law. Courts following these guidelin

xercise judicial restraint. Those making an exception are said to be judicial activist.[f]

Treason . Article III, Section 3. This part of the Constitutionstrips Congress of the Parliamentarypower of changing or

modifying the law of treason by simplemajoritystatute. It's not enough merely to think treasonously; theremust be an overt

f making war or materiallyhelping those at war with the United States. Accusations must be corroborated by at least twowitnesses. Congress is a politicalbody and politicaldisagreementsroutinely encountered should never be considered as trea

This allows for nonviolent resistanceto the governmentbecause opposition is not a life or death proposition. However,

Congress does provide for other less subversivecrimes and punishmentssuch as conspiracy.[g]

Federal relationships

The States

Main article: Article Four of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article IV

ArticleFour outlines the relationbetween the states and the relationbetween the federalgovernment. In addition, it provides

uch mattersas admittingnew states as well as border changes between the states. For instance, it requires states to give "ful

aith and credit" to the public acts, records, and court proceedingsof the other states. Congress is permittedto regulate the

manner in which proof of such acts, records, or proceedings may be admitted. The "privileges and immunities" clause prohi

tategovernmentsfrom discriminatingagainstcitizens of other states in favor of resident citizens (e.g., having tougher penal

or residentsof Ohio convictedof crimes within Michigan).

t also establishesextraditionbetween the states, as well as laying down a legal basis for freedom of movementand travel

mongst the states. Today, this provision is sometimestaken for granted, especially by citizenswho live near state borders; b

n the days of the Articlesof Confederation, crossingstate lines was often a much more arduous and costly process. ArticleF

lso provides for the creation and admissionof new states. The Territorial Clause gives Congress the power to make rules fo

disposing of federal property and governing non-state territoriesof the United States. Finally, the fourthsection of Article Foequires the United States to guarantee to each statea republicanform of government, and to protect the states from invasion

nd violence.

Amendments

Main article: Article Five of the United StatesConstitution

See also: wikisource:Constitution of the United States of America#Article V

Amending clause. Article V, Section 1. Article V provides for amending the supreme "law of the land". Amendment of the

tateConstitutionsat the time of the 1787 ConstitutionalConvention requiredonly a majorityvote in a sitting legislatureof a

tate, as duly electedrepresentativesof its sovereign people. The very next session, meeting by the same authority, couldikewise undo the work of any previous sittingassembly. This was not the "fundamental law" the founders such as James

Madison had in mind.[30]

Nor did they want to perpetuate the paralysisof the Articlesby requiring unanimous state approval. The Articles of

Confederation had proven unworkable within ten years of its employment.[31] Between the two existingoptions for changin

he supreme "law of the land", (a) too easy by the states, and (b) too hard by the Articles, the Constitution offered a federal

alance of the national legislatureand the states. Two-thirds of both houses of Congress could propose an Amendment, whi

an become valid "for all intents and purposes" as the Constitution, when three-fourths of the states approve.[h]No Amendm


11/28



an ever take away equal State votes in the U.S. Senate unless a state firstagrees to it. No amendment regarding slavery or

direct taxes could be permitteduntil 1808. Slavery was abolished by the ThirteenthAmendment in December 1865, direct ta

n incomewas effected by the Sixteenth Amendment in February 1913.[32]

ncorporated Amendments. The Fourteenth Amendment is used by federalcourts to incorporateAmendments into the sta

onstitutionsas provisions to protect United Statescitizens. By 1968, the Court would hold that provisions of the Bill of Rig

were "fundamental to the American scheme of justice". The Amendment in view by the Supreme Court was applicableto th

tatesin their relationshipto individual United Statescitizens in every state.[33]

Among the Bill of Rights, Doug Linder counts the First, Second, Fourth, and Sixth Amendment as fully incorporated into S

governance. Most of the Fifth Amendment is incorporated, and a single provision of the Eighth. The Third Amendment is

ncorporated only in the U.S. Second Circuit, the states of New York, Connecticut and New Hampshire. The Supreme Cou

has not determinedthe Constitutionalissue is yet "ripe" for national applicationin every state. The Seventh Amendment is n

ncorporated.[34] Twentieth Century Amendments use the prohibitive phrase, "neither the United States nor any State" to

omprehensivelyincorporatethe Amendment into the States at the timeof its ratificationinto the Constitution.

Federal government

Main article: Article Six of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article VI

Article Six establishesthe Constitution, and the laws and treatiesof the United States made according to it, to be the suprem

aw of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutionsof any state

notwithstanding." It validatesnational debt created under the Articlesof Confederation and requires that all federal and state

egislators, officers, and judges take oaths or affirmationsto support the Constitution. This means that the states' constitution

nd laws should not conflictwith the laws of the federalconstitutionand that in case of a conflict, state judges are legally bo

o honor the federal laws and constitutionover those of any state.

ArticleSix also states"no religiousTest shall ever be requiredas a Qualificationto any Office or public Trust under the Uni

States."

Ratification

Main article: Article Seven of the United States Constitution

See also: wikisource:Constitution of the United States of America#Article VII

Ratification clause. ArticleVII, Section 1. Article Seven detailshow to initiate the new government as proposed. The

Constitution was transmittedto the Articles Congress, then afterdebate, forwarded to the states. States were to ratify the

Constitutionin state conventionsspeciallyconvened for that purpose. The ratificationconventions would arise directly from

eople voting, and not by the forms of any existing State constitutions.[35]

The new national Constitutionwould not take effect until at least nine states ratified. It would replace the existinggovernme

under the Articles of Confederation only after three-fourths of the existing states agreed to move togetherby special statelectionsfor one-time conventions. It would apply only to those statesthat ratified it, and it would be valid for all states joini

fter.[28] The ArticlesCongress certifiedeleven ratificationconventions had adopted the proposed Constitutionfor their stat

n September 13, 1788, and in accordance with its resolution, the new Constitutionalgovernmentbegan March 4, 1789.[36]

See above Ratificationand beginning.)


12/28



Three steps to

Amendments

House-passed 12

proposals

2/3-majority , then to

Senate

(States later ratify 10 of12)

Senate-passed 12

proposals

2/3-majority , then 3/4

States =

Bill of Rights

The Amendments

Amendment of the state Constitutionsat the time of the 1787 ConstitutionalConvention required only a majorityvote in a

ittinglegislatureof a state, as duly elected representativesof its sovereign people. The next session of a regularly elected

ssembly could do the same. This was not the "fundamental law" the founders such as James Madison had in mind.

Nor did they want to perpetuate the paralysisof the Articlesby requiring unanimous state approval. The Articles of

Confederation had proven unworkable within ten years of its employment. Between the options for changing the "supreme

f the land", too easy by the states, and too hard by the Articles, the Constitutionoffered a federalbalance of the nationalegislatureand the states.

Procedure

Changing the "fundamental law" is a two-part process of three steps:

mendmentsare proposed then they must be ratifiedby the states. An

Amendment can be proposed one of two ways. Both ways have two steps.

t can be proposed by Congress, and ratifiedby the states. Or on demand of

wo-thirds of the state legislatures, Congress could call a constitutional

onvention to propose an amendment, then to be ratifiedby the states.

To date, all amendments, whether ratifiedor not, have been proposed by a

wo-thirds vote in each house of Congress. Over 10,000 constitutional

mendmentshave been introduced in Congress since 1789; during the last

everal decades, between 100 and 200 have been offered in a typical

ongressionalyear. Most of these ideas never leave Congressional

ommittee, and of those reported to the floor for a vote, far fewer get

roposed by Congress to the statesfor ratification.[i]

n the firststep, the proposed Amendment must find a national super

majorityof 67% in Congress, both House (people) and Senate (states). The

econd step requires a super-super 75% majorityof the statesratifying,

epresentinga majorityof the people in the statesratifying. Congress

determineswhether the state legislaturesor special stateconventions ratify

he amendment.[37]

On attainingConstitutionalratificationof the proposal by three-fourths of

he states, at that instant, the "fundamentallaw" is expressed in that

Amendment. It is operativewithout any additionalagency. No signature is

equired from the President. Congress does not have to re-enact. The

Supreme Court does not have to deliberate. There is no delay to re-draftand

e-balance the entireConstitutionincorporatingthe new wording. The

Amendment, with the last required state ratifying, is the "supreme law of

he land."

Unlike amendments to most constitutions, amendmentsto the United StatesConstitution are appended to the body of the tex

without alteringor removing what already exists. Newer text is given precedence.[j] Subsequent printededitions of the

Constitutionmay line through the superseded passages with a note referencing the Amendment. Notes often cite applicable

Supreme Court rulings incorporatingthe new fundamentallaw.

Successful

Main article: List of amendments to the United States Constitution


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The Constitution has twenty-seven amendments. The first ten, collectivelyknown as the Bill of Rights, were ratified

imultaneouslyby 1791. The next seventeen were ratifiedseparatelyover the next two centuries.

"Bill of Rights"

Main article: United States Bill of Rights

The National Archives displays the Bill of Rights as one of the three "Charters of Freedom". The original intentof these firs

Amendmentswas to restrictCongress from abusing its power. For example, the FirstAmendment "Congress shall make n

aw" establishinga religion was ratifiedby the statesbefore all states had, of their own accord, disestablishedtheir officialhurches.

The FederalistPapers argued that amendments were not necessary to adopt the Constitution. But without the promise in thei

atificationconventions, Massachusetts, Virginia and New York could not have joined the Union as early as 1789. James

Madison, true to his word, managed the proposed amendmentsthrough the new House of Representativesin its firstsession

The amendmentsthat became the Bill of Rights were ten proposals of the twelve that Congress sent out to the states in 1789

Later in American history, applying the Bill of Rights directly to the statesdeveloped only with the Fourteenth Amendment.

No State shall make or enforce any law which shall abridge the privileges... of citizens ... nor ... deprive any person

of life, liberty, or property, without due process of law; nor deny ... the equal protection of the laws.

The legal mechanismthat courtsuse today to extend the Bill of Rights against the abuses of stategovernment is called

incorporation". The extent of its applicationis often at issue in modern jurisprudence.

Generally, the Bill of Rights can be seen as the Statesaddressing three majorconcerns: individual rights, federalcourtsand t

national governments relationshipswith the States.

ndividual rights

The firstAmendment defines American politicalcommunity, based on individual integrityand voluntaryassociation. Congr

annot interferewith an individuals religionor speech. It cannot restricta citizens communicationwith others to form

ommunity by worship, publishing, gatheringtogether or petitioning the government.

The First Amendment addresses the rightsof freedomof religion(prohibitingCongress from establishinga religion

protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and

freedom of petition.

Trial and sentencing

Given their historyof colonialgovernment, most Americanswanted guaranteesagainst the centralgovernmentusing the cou

gainst statecitizens. The Constitutionalready had individualprotectionssuch as strictlydefined treason, no ex post facto la

nd guaranteed habeas corpus except during riot or rebellion. Now added protectionscame in five Amendments.

Protecting the accused. The Fourth Amendment guards against searches, arrests,

and seizuresof property without a specificwarrant or a "probable cause" to believe a

crime has been committed. Some rights to privacy have been found in this

amendmentand others by the Supreme Court.

The Fifth Amendment forbids trial for a majorcrime except after indictmentby a

grand jury; prohibitsdouble jeopardy (repeated trials), except in certain very limited

circumstances; forbids punishmentwithout due process of law; and provides that an

accused person may not be compelled to testify against himself (this is also known as

"Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rightsof the

accused" amendment, otherwiseknown as the Miranda rightsafter the Supreme


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United States Bill of Right

Currently housed in the Nation

Archives.

Court case. It also prohibitsgovernment from taking privateproperty for public use

without "just compensation", the basis of eminent domain in the United States.

The Seventh Amendment assures trialby jury in civil cases.

Restraining the judges. The Sixth Amendment guaranteesa speedy public trialfor

criminaloffenses. It requirestrialby a jury, guarantees the right to legal counsel for

the accused, and guarantees that the accused may requirewitnesses to attend the trial

and testifyin the presence of the accused. It also guarantees the accused a right to

know the charges against him. The Sixth Amendmenthas several court cases

associatedwith it, includingPowell v. Alabama, United Statesv. Wong Kim Ark,

Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court

ruled that the fifthamendmentprohibitionon forced self-incriminationand the sixth

amendmentclause on right to counsel were to be made known to all persons placed

under arrest, and these clauses have become known as the Miranda rights.

The Eighth Amendment forbidsexcessivebail or fines, and cruel and unusual

punishment.

Congress nor States

n 1789, future federal-state relationswere uncertain. To begin, the states in their militiaswere not about to be disarmed. An

Congress wanted a standing army, Congress would have to pay for it, not "quarter" soldiers at state citizen expense. The peo

lways have all their inalienablerights, even if they are not all listedin governmentdocuments. If Congress wanted more

ower, it would have to ask for it from the people in the states.[citation needed] And if the Constitutiondid not say something

or Congress to do, then the States have the power to do it without asking.[citation needed]

Potential military coercion

The Second Amendment guarantees the right of adult men to keep theirown weapons apart from state-run arsenals.[l] Once

new Constitutionbegan government, states petitioned Congress to propose amendments including militiaprotections. New

Hampshires proposal for amendment was, "Congress shall never disarmany citizen unless such as are or have been in actu

ebellion." New York proposed, "... a well regulated militia, including the body of the people capable of bearing arms, is theroper, naturaland safe defense of a free State."[m] Over time, this amendmenthas been confirmed by the courts to protect

ndividual rightsand used to overturn state legislationregulating hand guns.

Applying the Second Amendmentonly to the federalgovernment, and not to the states, persisted for much of the nation's ea

history. It was sustainedin United States v. Cruikshank(1876) to support disarmingAfrican-Americansholding arms in self

defense from Klansmen in Louisiana. The Supreme Court held, citizensmust "look for their protectionagainst any violation

heir fellow-citizensfrom the state, rather than the national, government." Federal protectionof an individual interferingwith

tates right to disarm any of its citizenscame in Presser v. Illinois(1886). The Supreme Court ruled the citizenswere memb

f the federal militia, as were "all citizens capable of bearing arms." A state cannot "disable the people from performingthei

duty to the General Government". The Court was harking back to the language establishinga federalmilitiain 1792.[n]

n 1939, the Supreme Court returned to a consideration of militia. In U.S. v. Miller, the Court addressed the enforceabilityo

National FirearmsAct of 1934 prohibitinga short-barreled shotgun. Held in the days of Bonnie Parker and Clyde Barrow, t

uling referenced units of well equipped, drilledmilitia, the Founders "trainbands", the modern militaryReserves.[o] It did no

ddress the traditionof an unorganized militia. Twentieth century instanceshave been rare but Professor Stanford Levinson

bserved consistency requires giving the Second Amendment the same dignityof the First, Fourth, Ninth and Tenth.[p]

Once again viewing federal relationships, the Supreme Court in McDonald v. Chicago (2010) determined that the right of an

ndividual to "keep and bear arms" is protected by the Second Amendment. It is incorporated by the Due Process Clause of

Fourteenth Amendment, so it applies to the states.


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The Third Amendment prohibits the government from using privatehomes as quarters for soldiersduring peacetimewithout

onsent of the owners. The stateshad suffered during the Revolutionfollowing the British Crown confiscatingtheir militia's

rms stored in arsenals in places such as Concord, Massachusetts, and Williamsburg, Virginia. Patrick Henry had rhetorical

sked, shall we be stronger, "when we are totally disarmed, and when a British Guard shall be stationedin every house?"[38

The only existingcase law directlyregarding this amendmentis a lower court decision in the case ofEngblom v. Carey.[39]

However, it is also cited in the landmark case, Griswold v. Connecticut, in support of the Supreme Court's holding that the

onstitutionprotectsthe right to personalprivacy.

Constitutional relationships

The Ninth Amendment declares that the listingof individualrights in the Constitutionand Bill of Rights is not meant to be

omprehensive; and that the other rightsnot specificallymentioned are retainedby the people. The Tenth Amendment reser

o the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the

tatesfrom exercising.

Subsequent

Amendments to the Constitutionafter the Bill of Rights cover many subjects. The majorityof the seventeen lateramendmen

tem from continued efforts to expand individual civilor political liberties, while a few are concerned with modifying the ba

governmental structuredrafted in Philadelphia in 1787. Although the United States Constitutionhas been amended 27 times

nly 26 of the amendmentsare currently in effectbecause the twenty-first amendmentsupersedes the eighteenth.

Citizen rights

Several of the amendmentshave more than one application, but five amendmentshave concerned citizen rights. American

itizens are free. There will be equal protectionunder the law for all. Men vote, women vote, DC residents vote,[q] and 18-y

lds vote.

The Thirteenth Amendment (1865) abolishes slavery and authorizesCongress to enforce abolition. The Fourteenth Amendm

1868) in part, defines a set of guaranteesfor United States citizenship. FifteenthAmendment (1870) prohibits the federal

governmentand the states from using a citizen's race, color, or previous statusas a slave as a qualificationfor voting. The

Nineteenth Amendment (1920) prohibits the federalgovernment and the statesfrom forbidding any citizen the right to vote o her sex. The Twenty-sixthAmendment (1971) prohibits the federal governmentand the states from forbidding any citizen

ge 18 or greater the right to vote on account of his or her age.

The Twenty-third Amendment (1961) grants presidentialelectors to the Districtof Columbia. DC has three votes in the

ElectoralCollege as though it were a statewith two senators and one representativein perpetuity. On the other hand, if Puer

Rico were given the same considerationas other stateapportionment, it would have seven ElectoralCollege votes.[r]

Three branches

Seven amendments relateto the three branches of the federalgovernment. Congress has three, the Presidencyhas four, the

udiciaryhas one.

The Sixteenth Amendment (1913) authorizesunapportioned federal taxes on income. Twentieth Amendment (1933), in part

hanges details of congressional terms. The Twenty-seventh Amendment (1992) limitscongressionalpay raises.

The Twelfth Amendment (1804) changes the method of presidentialelections so that membersof the ElectoralCollege cast

eparate ballots for president and vice president. The Twentieth Amendment (1933), in part, changes details of presidential

erms and of presidentialsuccession. The Twenty-second Amendment (1951) limitsthe president to two terms. The Twenty

ifthAmendment (1967) furtherchanges detailsof presidentialsuccession, provides for temporaryremoval of president, and

rovides for replacementof the vice president.


16/28



The Eleventh Amendment (1795), in part, clarifiesjudicialpower over foreign nationals.

tates and abuses

State citizens. The states have been protectedfrom their citizensby a ConstitutionalAmendment. Citizens are limitedwhen

uing their states in federalCourt. The Eleventh Amendment (1795) in part, limitsabilityof citizensto sue statesin federal

ourtsand under federal law.

Most states. All stateshave been required to conformto the others when those delegationsin Congress could accumulate sumajoritiesin the U.S. House and U.S. Senate, and three-fourths of the stateswith the same opinion required it of all. (a) The

tatesmust not allow alcohol sold for profit. (b) The states may or may not allow alcohol sold for profit. The Eighteenth

Amendment (1919) prohibitedthe manufacturing, importing, and exporting of alcoholicbeverages (see Prohibitionin the

United States). Repealed by the Twenty-First Amendment. Twenty-firstAmendment (1933) repeals Eighteenth Amendment

Permits states to prohibitthe importationof alcoholicbeverages.

State legislatures. Occasionally in American history, the people have had to strip state legislaturesof some few privilegesd

o widespread, persistingviolationsto individualrights. States must administerequal protectionunder the Constitutionand th

Bill of Rights. Statesmust guarantee rights to all citizens of the United States as theirown. State legislatureswill not be trust

o elect U.S. Senators. States must allow all men to vote. States must allow women to vote. States cannot tax a U.S. citizens

ight to vote.

Under the Constitution, the U.S. government was restrictedfrom infringingon citizenrights. The Fourteenth Amendm

(1868) in part, defines a set of guarantees for United States citizenship; prohibitsstates from abridging citizens' privile

or immunitiesand rights to due process and the equal protectionof the law.

Voting in the stateshas not always been so universalas it is today, not all men, not women not 18-year olds. In 1870,

regardlessof practice, most states had no legal racial bar to voting by African-Americans, Asians or Native-American

But the Fifteenth Amendment (1870) prohibitsthe federal governmentand the statesfrom using a citizen's race, color

previous status as a slave as a qualificationfor voting. Then all men could vote by law. In 1920, while most states

allowed at least some women's suffrage, the Nineteenth Amendment (1920) prohibits the federal governmentand the

states from forbidding any citizen to vote due to their gender. Then all women could vote by law. In 1971, statesallow

voting at ages 21, 20, 19 and 18. The Twenty-sixth Amendment (1971) prohibits the federalgovernmentand the statefrom forbidding any citizen of age 18 or greater to vote on account of their age.

By 1913, several state legislaturesallowed their selectionof U.S. Senator by direct popular vote. However, the

Seventeenth Amendment (1913) converts all stateelectionsfor U.S. senators to popular election.

Some state legislaturesrestrictedthe right to vote among theircitizensmore than others. Although most statesin 1964

not restrictvoting by the use of poll taxes, the Twenty-fourth Amendment (1964) prohibits the federalgovernmentan

the states from requiring the paymentof a tax as a qualificationfor voting for federalofficials. U.S. citizenscannot be

taxed to vote.

Unratified

See also: Amendments approved by Congress and awaiting ratification and Amendments approved by Congress that w

not ratified

Of the thirty-three amendments that have been proposed by Congress, twenty-seven have passed. Six have failed ratification

he required three-quarters of the state legislatures. Two have passed their deadlines. Four are technically in the eyes of a Co

tillpending before state lawmakers (see Coleman v. Miller). All but one are dead-ends.


17/28



One remaining

The "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the

itizenshipof any American accepting "any Title of Nobility or Honour" from any foreign power. Some maintain that the

mendmentwas ratifiedby the legislaturesof enough states, and that a conspiracy has suppressed it, but this has been

horoughly debunked.[40]

The proposed amendmentaddressed the same "republican" and nationalistconcern evident in the original Constitution, Arti

, Section 9. No officer of the United States, "without the Consent of the Congress, [shall] accept of any present, Emolumen

Office, or Title, of any kind whatever, from any King, Prince or foreign State." The Constitutionalprovision is unenforceab

ecause the offense is not subject to a penalty.

Known to have been ratifiedby lawmakers in twelve states, the last in 1812, this amendmentcontains no expirationdate for

atificationand could stillbe ratifiedwere the state legislaturesto take it up.

Abandoned

Quit by practice

The CongressionalApportionment Amendment, proposed by the 1st Congress on September 25, 1789, defined a form

for how many membersthere would be in the United States House of Representativesafter each decennial census.Ratified by eleven states, the last in June 1792, this amendmentcontains no expirationdate for ratification. In the abst

it may be procedurallyratified.

The Corwin Amendment, sent to the states on March 2, 1861, would have forbiddenany attemptto subsequentlyame

the Constitutionto empower the federal government to "abolish or interfere" with the practiceof slavery. The

Confederacy ignored it and it was quickly forgotten. Instead, in 1865 the ThirteenthAmendment abolished slavery.

Quit by policy

Starting with the proposalof the 18th Amendment in 1917, each proposed amendmenthas included a deadline for passage i

he text of the amendment. Five without a deadlinebecame Amendments.[s]

One proposed amendmentwithout a deadline hnot been ratified: The Child Labor Amendment of 1924.

A child labor amendmentproposed by the 68th Congress on June 2, 1924. It provides, "The Congress shallhave pow

to limit, regulate, and prohibit the labor of persons under eighteen years of age." This amendment is highly unlikely to

ratified, since subsequent federal child labor laws have uniformlybeen upheld as a valid exercise of Congress's power

under the Commerce Clause.

Time ran out

There are two amendments that were approved by Congress but were not ratifiedby enough states prior to the ratification

deadline set by Congress:

The Equal Rights Amendment (ERA), which reads in part "Equality of rightsunder the law shallnot be denied or

abridged by the United Statesor by any state on account of sex." Proposed by the 92nd Congress on March 22, 1972

was ratifiedby the legislaturesof 35 states, and expired on either March 22, 1979 or on June 30, 1982, following a

controversialthree-year extension of the ratificationdeadline passed by the 95th Congress in 1978.

Of the 35 states ratifyingit, four later rescinded their ratificationsbefore the extended ratificationperiod. A fifthstipul

that its firstapproval would not extend with federal law. Such reversalsare controversial; no court has ruled on the

question. During ratificationof the 14th Amendment Ohio and New Jersey rescinded their earlierapprovals. But their


18/28



Early Court roots in the founding

John Jay, 1789 -1795

New York co-author

Federalist Papers

John Marshall,

1801 -1835

Fauquier County delega

Virginia Ratification

Convention

ratificationswere counted towards three-fourths of the stateswhen the 14th Amendment was ultimatelyproclaimedpa

of the Constitution in 1868.

The Districtof Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had th

amendmentbeen ratified, it would have granted to Washington, D.C. two Senators and at least one member of the Ho

of Representativesas though the Districtof Columbiawere a state. Ratified by the legislaturesof only 16 states (out o

required 38), the proposed amendmentexpired on August 22, 1985.

Judicial reviewSee also: Judicial review in the United States, Judicial review, and Appellatereview

The way the Constitutionis understood is influencedby court decisions, especially those of the Supreme Court. These decis

re referred to as precedents. Judicial review is the power of the Court to examine federal legislation, executive agency rules

tate laws, to decide their constitutionality, and to strike them down if found unconstitutional.

udicial review includes the power of the Court to explain the meaning of the Constitutionas it applies to particularcases. O

he years, Court decisions on issuesranging from governmental regulationof radio and televisionto the rights of the accused

riminalcases have changed the way many constitutionalclauses are interpreted, without amendmentto the actual text of th

Constitution.

Legislation passed to implementthe Constitution, or to adapt those implementationsto changing conditions, broadens and, in

ubtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulationsof the ma

ederal executiveagencies have a similareffect. If an action of Congress or the agencies is challenged, however, it is the cou

ystemthat ultimatelydecides whether these actions are permissibleunder the Constitution.

The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its

overage is irrevocable. To hold that the politicalbranches may switch the Constitutionon or off at will would lead to a regi

n which they, not this Court, say "what the law is.".[t]

Scope and theory

Courts establishedby the Constitutioncan regulategovernment under the Constitution, the supreme law of the land. First, th

have jurisdictionover actions by an officer of government and state law. Second, federalcourtsmay rule on whether coordi

ranches of national government conform to the Constitution. Until the twentiethcentury, the Supreme Court of the United

Statesmay have been the only high tribunal in the world to use a court for constitutionalinterpretationof fundamental law,

thersgenerally depending on their national legislature.[41]

The basic theory of American Judicial review is summarizedby

onstitutionallegal scholars and historiansas follows: the written

Constitution is fundamental law. It can change only by extraordinary

egislativeprocess of national proposal, then state ratification. The powers

f all departmentsare limitedto enumerated grants found in theConstitution. Courts are expected (a) to enforce provisionsof the

Constitutionas the supreme law of the land, and (b) to refuse to enforce

nything in conflictwith it.[42]

n Convention. As to judicialreview and the Congress, the firstproposals

y Madison (Va) and Wilson (Pa) called for a supremecourt veto over

national legislation. In this it resembledthe systemin New York, where the

Constitution of 1777 calledfor a "Council of Revision" by the Governor

nd Justices of the state supreme court. The Council would review and in a

way, veto any passed legislationviolatingthe spiritof the Constitution


19/28



efore it went into effect. The nationalists proposal in Convention was defeated three times, and replaced by a presidentialv

with Congressionalover-ride. Judicial review relieson the jurisdictionalauthority in Article III, and the Supremacy Clause.[

The justificationfor judicial review is to be explicitlyfound in the open ratificationsheld in the statesand reported in their

newspapers. John Marshall in Virginia, JamesWilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for

Supreme Court judicialreview of acts of state legislature. In FederalistNo. 78, Alexander Hamilton advocated the doctrineo

writtendocument held as a superiorenactmentof the people. "A limitedconstitutioncan be preserved in practiceno other w

han through courts which can declare void any legislationcontrary to the Constitution. The preservation of the peoples

uthority over legislaturesrests "particularlywith judges."[44][u]

The Supreme Court was initiallymade up of juristswho had been intimatelyconnected with the framingof the Constitution

he establishmentof its governmentas law. John Jay (NY), a co-author of the FederalistPapers, served as Chief Justice for t

irstsix years. The second Chief Justicefor a termof four years, was Oliver Ellsworth (Ct), a delegate in the Constitutional

Convention, as was John Rutledge (SC), Washingtons recessappointmentas Chief Justice who served in 1795. John Mars

Va), the fourth Chief Justice, had served in the Virginia RatificationConvention in 1788. His service on the Court would

xtend 34 years over some of the most importantrulingsto help establishthe nation the Constitutionhad begun. In the first

years of the Supreme Court, membersof the ConstitutionalConvention who would serve included JamesWilson (Pa) for te

years, John Blair, Jr. (Va ) for five, and John Rutledge (SC) for one year as Justice, then Chief Justice in 1795.

Establishment

When John Marshall followed Oliver Ellsworth as Chief Justiceof the Supreme Court in 1801, the federal judiciaryhad bee

stablishedby the JudiciaryAct, but there were few cases, and less prestige. "The fate of judicial review was in the hands o

Supreme Court itself." Review of state legislationand appeals from statesupreme courtswas understood. But the Courts lif

urisdictionover state legislationwas limited. The MarshallCourt's landmarkBarron v. Baltimore held that the Bill of Right

estrictedonly the federal government, and not the states.[44]

n the landmarkMarbury v. Madison case, the Supreme Court asserted its authority of judicial review over Acts of Congres

inds were that Marbury and the others had a right to theircommissionsas judges in the Districtof Columbia. The law affor

Marbury a remedy at court. Then Marshall, writing the opinion for the majority, announced his discoveredconflict between

Section 13 of the JudiciaryAct of 1789 and Article III.[v][46][w] The United States government, as created by the Constitutio

limitedgovernment, and a statutecontrary to it is not law. In this case, both the Constitutionand the statutorylaw applied t

he particularsat the same time. "The very essence of judicialduty" according to Marshallwas to determinewhich of the tw

onflictingrules should govern. The Constitutionenumeratespowers of the judiciary to extend to cases arising"under the

Constitution." Courts were required to choose the Constitutionover Congressional law. Further, justices take a Constitution

ath to uphold it as "Supreme law of the land".[47]

This argumenthas been ratifiedby time and by practice ..."[x][y] "MarshallThe Supreme Court did not declareanother Act

Congress unconstitutionaluntil the disastrousDred Scott decision in 1857, held after the voided MissouriCompromisestatu

had already been repealed. In the eighty years following the Civil War to World War II, the Court voided Congressionalsta

n 77 cases, on average almostone a year.[49]

Something of a crisisarose when, in 1935 and 1936, the Supreme Court handed down twelve decisionsvoiding Acts ofCongress relatingto the New Deal. PresidentFranklin D. Roosevelt then responded with his abortive"court packing plan".

Other proposals have suggested a Court super-majorityto overturn Congressional legislation, or a ConstitutionalAmendmen

equire that the Justicesretireat a specifiedage by law. To date, the Supreme Courts power of judicial review has persisted

Self-restraint

The power of judicial review could not have been preserved long in a democracy unless it had been "wielded with a reason

measure of judicial restraint, and with some attention, as Mr. Dooley said, to the election returns." Indeed, the Supreme Cou

has developed a systemof doctrine and practice that self-limitsis power of judicialreview.[50]


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The Court controls almost all of its business by choosing what cases to consider, writs of certiorari. In this way it can avoid

xpressingan opinion if it sees an issue is currently embarrassingor difficult. The Supreme Court limitsitselfby defining for

tselfwhat is a "justiciablequestion." First, the Court is fairly consistentin refusingto make any "advisory opinions" in adva

f actual cases.[z] Second, "friendly suits" between those of the same legal interestare not considered. Third, the Court requ

"personal interest", not one generally held, and a legallyprotected right must be immediatelythreatenedby government ac

Cases are not taken up if the litiganthas no standing to sue. Having the money to sue or being injuredby government action

lone are not enough.[50]

These three proceduralways of dismissingcases have led criticsto charge that the Supreme Court delays decisionsby undunsisting on technicalitiesin their"standards of litigability". Under the Courts practice, there are cases left unconsidered whi

re in the public interest, with genuine controversy, and resultingfrom good faith action. "The Supreme Court is not only a

ourt of law but a court of justice."[51]

Separation of powers

The Supreme Court balances several pressures to maintainits roles in nationalgovernment. It seeks to be a co-equal branch

government, but its decrees must be enforceable. The Court seeks to minimizesituationswhere it asserts itselfsuperior to eit

Presidentor Congress, but federalofficersmust be held accountable. The Supreme Court assumes power to declare acts of

Congress as unconstitutionalbut it self-limitsits passing on constitutionalquestions.[52] But the Courts guidance on basic

roblems of life and governance in a democracy is most effectivewhen American political life reinforce its rulings.

[53]

ustice Brandeis summarizedfour general guidelines that the Supreme Court uses to avoid constitutionaldecisions relating to

Congress:[aa] The Court will not anticipatea question of constitutionallaw nor decide open questionsunlessa case decision

equires it. If it does, a rule of constitutionallaw is formulatedonly as the precise facts in the case require. The Court will ch

tatutesor general law for the basis of itsdecision if it can without constitutionalgrounds. If it does, the Court will choose a

onstitutionalconstruction of an Act of Congress, even if its constitutionalityis seriouslyin doubt. [52]

Likewise with the Executive Department, Edwin Corwin observed that the Court does sometimesrebuff presidential

retentions, but it more often tries to rationalizethem. Against Congress, an Act is merely "disallowed." In the executive cas

xercisingjudicial review produces "some change in the externalworld" beyond the ordinary judicial sphere.[54] The "polit

question" doctrine especiallyapplies to questionswhich present a difficultenforcement issue. Chief JusticeCharles EvansHughes addressed the Courts limitationwhen politicalprocess allowed futurepolicy change, but a judicialruling would

attribute finality". Politicalquestions lack "satisfactorycriteriafor a judicialdetermination."[55]

ohn Marshall recognizedhow the presidentholds "importantpoliticalpowers" which as Executive privilegeallows great

discretion. This doctrinewas applied in Court rulingson President (Grant)s duty to enforce the law during Reconstruction.

xtends to the sphere of foreign affairs. Justice Robert Jackson explained, Foreign affairsare inherentlypolitical, "wholly

onfided by our Constitutionto the politicaldepartmentsof the government ... [and] not subject to judicial intrusion or

nquiry."[56]

Criticsof the Court object in two principleways to self-restraintin judicialreview, deferringas it does as a matterof doctrin

Acts of Congress and Presidentialactions.

1. Its inaction is said to allow "a flood of legislativeappropriations" which permanentlycreate an imbalancebetween the

states and federal government.

2. Supreme Court deference to Congress and the executive compromisesAmerican protectionof civil rights, political

minoritygroups and aliens.[57]

Further information: Separation of powers under the United StatesConstitution


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Scope of judicialreview expanded

Salmon P. Chase[ab]

Union, ReconstructionWilliam H. Taft

[ac]

commerce ,

incorporation

Earl Warren [ad]due process, civil

rights

William Rehnquist [ae]federalism, privacy

Subsequent Courts

Main article: History of the Supreme Court of the United States

Supreme Courts under the leadershipof subsequent Chief Justiceshave also used judicialreview to interpretthe Constitutio

mong individuals, states and federal branches. Notable contributionswere made by the Chase Court, the Taft Court, the

Warren Court, and the Rehnquist Court.

Further information: List of United StatesSupreme Court cases by the Chase Court

Salmon P. Chase was a Lincoln appointee, serving as Chief Justice from 1864 to 1873. His career encompassed service as a

U.S. Senator and Governor of Ohio. He has coined the slogan, "Free soil, free Labor, free men." One of Lincolns "team of

ivals", he was appointed Secretary of Treasury during the Civil War, issuing "greenbacks". To appease radicalRepublican

Lincoln appointed him to replace Chief JusticeRoger B. Taney of Dred Scott case fame.

n one of his firstofficialacts, Chase admitted John Rock, the first African-American to practicebefore the Supreme Court.

Chase Court" is famous forTexas v. White which asserted a permanent Union of indestructiblestates. Veazie Banks v. Fen

upheld the Civil War tax on state banknotes. Hepburn v. Griswoldfound parts of the Legal Tender Acts unconstitutional,

hough it was reversed under a late Supreme Court majority.

Further information: List of United StatesSupreme Court cases by the Taft Court

WilliamHoward Taft was a Harding appointment

o Chief Justicefrom 1921 to 1930. A Progressive

Republican from Ohio, he was a one-term

President.

As Chief Justice, he advocated the JudiciaryAct of

925 that brought the FederalDistrictCourts under

he administrativejurisdictionof the Supreme Court

nd the newly united branch of government

nitiatedits own separate buildingin use today. Taft

uccessfullysought the expansion of Courturisdictionover non- states such as Districtof

Columbia and Territories of Arizona, New Mexico,

Alaska and Hawaii. Later extensions added the

Spanish-American War acquisitionsof the

Commonwealth of the Philippinesand Puerto Rico.

n 1925, the Taft Court issued a ruling overturning

MarshallCourt ruling on the Bill of Rights. In

Gitlow v. New York, the Court established the

doctrine of "incorporationwhich applied the Bill of

Rights to the states. Important cases included theBoard of Trade v. Olsen that upheld Congressional

egulation of commerce. Olmstead v. U.S. allowed

xclusion of evidence obtained without a warrant

ased on applicationof the 14th Amendment proscriptionagainst unreasonable searches. Wisconsin v. Illinoisruled the

quitablepower of the United States can imposepositive action on a state to prevent its inaction from damaging another stat

Further information: List of United StatesSupreme Court cases by the Warren Court


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Earl Warren was an Eisenhower nominee, Chief Justice from 1943 to 1953. Warrens Republican career in the law reached

rom County Prosecutor, Californiastate attorney general, and three consecutivetermsas Governor. His programsstressed

rogressive efficiency, expanding stateeducation, re-integratingreturning veterans, infrastructureand highway construction

n 1954, the Warren Court overturned a landmark FullerCourt ruling on the FourteenthAmendment interpretingracial

egregationas permissiblein government and commerceproviding "separate but equal" services. Warren built a coalitionof

usticesafter1962 that developed the idea of natural rightsas guaranteed in the Constitution. Brown v. Board of Education

anned segregationin public schools. Baker v. Carrand Reynolds v. Sims establishedCourt ordered "one-man-one-vote." B

f Rights Amendments were incorporated into the states. Due process was expanded in Gideon v. Wainwright" andMirand

Arizona. FirstAmendment rights were addressed in Griswold v. Connecticut concerning privacy, andEngel v. Vitale relat

o free speech.

Further information: List of United StatesSupreme Court cases by the Rehnquist Court

WilliamRehnquist was a Reagan appointment to Chief Justice, serving from 1986 to 2005. While he would concur with

verthrowing a state supreme courts decision, as in Bush v. Gore, he built a coalitionof Justicesafter1994 that developed t

dea of federalismas provided for in the Tenth Amendment. In the hands of the Supreme Court, the Constitutionand its

Amendmentswere to restrainCongress, as in City of Boerne v. Flores.

Nevertheless, the Rehnquist Court was noted in the contemporary"culture wars" for overturningstate laws relatingto priva

rohibiting late-term abortions in Stenberg v. Carhart, prohibitingsodomy in Lawrence v. Texas , or ruling so as to protect frpeech in Texas v. Johnson or affirmativeaction in Grutter v. Bollinger.

Civic religion

Main article: American civilreligion

There is a viewpoint that som

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