The United States Constitution is a basic framework of government, primarily at the national level but also with requirements or prohibitions at the state level.
The initial premise of the Constitution is that of defining and limiting Federal Government power, that is to say if an act does not fall within the limits of the Constitution, the Federal Government does not possess that power. This is reaffirmed by the Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment in clear and conscience terms layout the Constitution is a limiting document, the power not specifically granted to it are reserved to the two powers who created the Constitution, the States (who created it in the Convention of 1787) and the People (who ratified it causing it to go into effect on March 4, 1789).
The focus here will be on the Constitution as it was in 1788 chiefly. Amendments will be cited when it has changed aspects of the text or provisions of the Constitution and how it has changed those provisions, but the Amendments themselves are not a focus topic in this article.
What does the Constitution do?
Make up of the government
It provides for the structure of the Federal Government is to be and directs all State Governments shall have a similar structure. This structure is found throughout the Constitution:
Article I Section 1: The Congress shall consist of a House of Representatives and Senate
Article I Sections 2 and 3:Provides there shall be a House of Representatives, chosen by the people every 2 years, and the distribution of Representatives among the States shall be according to population. The Senate shall have two Senators for each state that cannot be reduced without that states consent. Each Senator shall have a term of 6 years, with roughly 1/3 of the Senate chosen every 2 years (Chosen by popular vote since 1913 and the 17th Amendment). The Constitution also provides the qualifications for each. a Representative must be 25 years old, been a US Citizen for 7 years and at the time of their election, be from the State they are chosen. For a Senator, be 30 years old a citizen for 9 years and be an inhabitant of the State they are chosen from.
Article II Section 1: The President and Vice President hold a 4 year term. The President must be a born US citizen, 35 years of age, and have been a US resident for at least 14 years. Following the 12th and 23rd Amendments, the Electors of each state plus the District of Columbia (who are chosen as directed by each state) shall vote for both President and Vice President. If no candidate shall receive a majority of the votes, the House of Representatives shall chose the President with each state casting one vote with a majority needed, and the Senate shall chose the Vice President with a majority needed. The 22nd Amendment limits the President to 2 four year terms, and if completing the term of a previous President no more than 2 years of the remaining term to be eligible for 2 additional 4 year terms (This results in the maximum allowable time a person can be president is 10 years. 2 years of a remaining term and two 4 year terms)
Article III Section 1: Provides for a Supreme Court and inferior courts as directed by Congress. The requirements and terms for Justices and Judges is one sentence, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”
Article II Section 2: The President shall with the Advice and Consent of the Senate appoint Judges and Justices to the courts.
The Constitution also states how Officers are appointed
Article II Section 3: The President shall appoint with the advice and consent of the Senate, Public Ministers, counsuls(sic), and other officers of the United States (in addition the before mentioned Justices and Judges of the United States). However the Senate may vest the President the ability to appoint any selection of these officers in the President alone, Heads of Departments or the Courts.
How Government operates
The Constitution lays out how a law is approved, enforced and reviewed.
Article I Section 7: Provides how a bill comes into being a law. ALL bills of raising revenue (taxes, excises tariffs etc.…) MUST originate in the House of Representatives, however the Senate may make any alteration it desires to the bill upon receiving it from the House of Representatives. Every bill that has passed the House of Representatives and Senate must be presented to the President. If the President approves it he shall sign it and it becomes law. The President may return (veto) the bill to Congress listing his objections. Congress may either alter and pass a new bill and the process repeats, or it may override the Presidents objection by a 2/3 majority in each house (Veto-override). However, if the President does not sign or return the bill to Congress, it shall become law after 10 days, unless Congress has adjourned in which case the bill shall die (aka, pocket veto).
Article II Section 3: The President of the United States is charged with “he shall take Care that the Laws be faithfully executed”. It is the responsibility of the President to ensure the laws of the United States are carried out.
Article III Section 2: The Supreme Court of the United States shall have judicial power “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made”. The Constitution also states it has the power to judge those cases, “which shall be made, under their (the Constitution) Authority”, also reflected again in Article VI, “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This gives the Supreme Court judicial power in any case arising under the Constitution, and if a law or measure is not made “under their (the Constitution’s) authority” and not “contrary” to the Constitution, gives the Supreme Court the power to deem the measure invalid (strike down) as affirmed in Marbury vs. Madison (1803).
In dealings with foreign nations, the Constitution address a few main aspects.
Article II Section 3: The President shall receive Ambassadors and other public Ministers.
Article II Section 2: The President also appoints (with the advice and consent of the Senate) Ambassadors of the United States. The same section also addresses treaties. “He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”. The President (which may be delegated) has the power to negotiate the terms of a treaty, but it requires 2/3 of the Senate to ratify it causing it to become law.
What Government may do
The Constitution provides anchor points of power for the government. These anchor points form a boundary of power for the government, just like posts on a rope line barrier.
This is done in numerous ways, but one of the most notable is the enumerated powers of Article I Section 8. Article I Section 8: The section contains 18 individual clauses.
Article I Section 8 Clause 1:The First clause gives the Congress the authority to, “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare” but it also restricts this power that, “all Duties, Imposts and Excises shall be uniform throughout the United States”. This clause grants the ability of Congress to tax, but in addition to the already mentioned restriction, Article I Section 9 places further restrictions on taxing, addressed in the “What Government may not do section” below. For more reading on the use of the term “General Welfare” in this clause read, General Welfare (Complete).
Article I Section 8 Clauses 2-17: These clauses list specific powers the Congress may spend the tax dollars it receives as provided for in Article I Section 8 Clause 1.
- To borrow Money on the credit of the United States;
- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
- To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
- To establish Post Offices and post Roads;
- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
- To constitute Tribunals inferior to the supreme Court;
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
Article I Section 8 Clause 18: Is the empowering clause, “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, or in any Department or Officer thereof”. This clause provides Congress the power to ensure it can bring into effect laws and measures in Article I Section 8 Clauses 1-17 AND any other powers vested to the Government of the United States under the Constitution. This ensures not only can Congress make laws but also have the ability to ensure they can be carried out.
Outside Article I Section 8, several other powers are vested in Congress or the Government of the United States throughout the Constitution.
Article IV Section 3: Permits the admitting of new states into the Union, “New States may be admitted by the Congress into this Union”. But Congress may not make a state within the boundaries of an existing state or states without the consent of that state or states legislatures first “but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned”. A State has been formed with the existing borders of another state only once, West Virginia was formed from Virginia in 1863 during the Civil War, with the consent of a “Union” Legislature (recognized by the United States), the Confederate legislature (recognized by the State of Virginia) gave no such consent. This also allows the periodic adjusting of State borders that occasionally occur, where all concerned state legislatures and the Congress concur to do so.
Article IV Section 3: Also gives control of making rules and regulations for territories of the United states to the Congress. However, “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” This prevents the Congress from perverting another power to claim power over a state’s rightful territory or power, nor pervert another power to give an unfair advantage to the government of the United States over a territory.
Article V: The Constitution can be amended. “whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof,” Two proposing options and Two ratifying options are available. The Constitution shall be amended when 1 proposing and 1 ratifying option are fulfilled on an amendment.
The two proposing methods Amendments are;
- 2/3 of each house of Congress
- 2/3 of the States demand to Congress a Convention for proposing an Amendment
The two methods for ratifying Amendments are;
- 3/4 of the State Legislatures
- 3/4 of Conventions of the States
Only Option 1, 2/3 of each house of Congress has ever been used in proposing any amendment to the Constitution. Of the 27 Amendments, 26 have been ratified by Option 1, 3/4 of the State Legislatures. Only the 21st Amendment (repealing the 18th Amendment on prohibition) has used option 2, 3/4 of Conventions of the States1.
Required Acts of Government
The Constitution does require certain acts or measures to take place at both the Federal and State levels.
Article I Section 5: Each house of Congress shall keep and publish a journal of its proceedings, as well as keep and publish a record of votes in each house. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”
Article II Section 2: The President will be the Commander in Chief of the Armed forces of the United States, and the militias of the States when actually called into service.
Article III Section 2: With the exception of impeachment, all trials be by jury in the state were the crime was committed. If not committed in any state in such a place as Congress shall have directed.
Article III Section 3: Treason is defined as “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” and in order to convict for treason, “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Punishment for treason is as prescribed by Congress. “but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted”. that is to mean, the family of the convicted cannot be held in any means accountable for the action of the traitor as was common practice in Great Britain.
Article IV Section 1: This requires that all public acts, records and proceedings from one state must be honored in every other state and that Congress may make laws prescribing the manner in which those records shall be proved to each state.
Article IV Section 2: Contains two parts. The first, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” ensures that all the privileges to Government and immunities from government(protections) a person has in all the states, that a person is ensured those same things in each state. This is to mean a state or states is required to protect and give access to all person equally and uniformly across the states. Also this section requires each state on demand return (extradite) to the requesting state “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State,”.
Article IV Section 4: Requires that all states provide a Republican (Representative) form of Government. It also requires the government of the United States, “and shall protect each of them [states] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” These ensure the people have a direct interest in their State Government by requiring it to be a Republic, and ensures that each State is protected from invasion and upon request of the State to assist in quelling Domestic Violence.
Article VI: Contains three specific provisions.
The first, “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” requires the United States to honor all debts and contracts it had entered into before the adoption of the Constitution.
The second provision establishes the Constitution of the United States as the supreme law in the United States, “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;”. As mentioned previously under Article III and the courts above, this only applies to laws and measures which are made in accordance with the Constitution, “and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” If a bill or measure is not made in accordance with the Constitution and because Judges must follow the Constitution as stated in Articles III and VI, Judges are not bound by nor can they enforce those measures, rendering them invalid.
The third provision, requires, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution”. This compels all elected members and officers of the United States and the States must abide by the Constitution of the United States and support as part of their official duties. The provision also goes to ensure, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” No person may be disqualified from any public office in the United States or the States based on their faith.
Prohibited Acts of Government
In addition to stating what the Government must do and what it can do, the Constitution also lists what the governments of both the United States and the States are prohibited from doing, with most prohibitions being listed in Article I Section 9 and 10.
Article I Section 6: contains two prohibitions. The first prohibits members of Congress from becoming an officer (Secretary of a Department or other Office) of the United States that they may have increased the pay and allowances for as a member of Congress. “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time” This is to prevent a person from acquiring an office for profit to ensure profit before assuming the duties of the office. The second prohibition, prohibits a person from holding a public office in addition to being a member of Congress at the same time, “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office”.
Article I Section 9: Contains 8 clauses, these are prohibitions mainly to Congress. The prohibition of Congress regulating the importation of slaves in Clause 1 expired in 1808, with the whole clause being rendered invalid with the 13th Amendment in 1865.
Clauses 2-8 with a brief description of their functions:
- 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. This prevents government from detaining person without due cause and justification before a judge, except during times of rebellion, invasion or when Public Safety is at risk.
- No Bill of Attainder or ex post facto Law shall be passed. The prevents Congress from deeming anybody or thing guilty of anything (Bill of attainder) or passing a law that makes a past action illegal (ex post facto).
- No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. Congress is prohibited from directly taxing a person (16th Amendment allows for taxing income) unless it is proportion to the population of the States. This means it cannot tax the people of two equally populated states at different rates, it must be proportional to population.
- No Tax or Duty shall be laid on Articles exported from any State. Congress cannot lay taxes or duties on any items leaving a state.
- No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. Congress cannot create rules, regulation, laws, taxes or any such measure to ports which shall give an advantage or create a disadvantage to any state or states. Nor shall any state require duties or other clearance rules for vessels entering its waters or ports coming from another state.
- No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. Only Congress can authorize the spending of money from the US Treasury. Congress is also required to make regular statements on all monies received and spent.
- No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Congress may not grant any title of nobility (a higher standing in society). Nor can any person holding an office of trust or profit under the United States, accept any gift or title from a foreign nation without the express consent of Congress.
Article I Section 10: Contains three clauses of prohibited actions to the states, many are similar prohibition seen in Article I Section 9.
- No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State may enter into any treaty or other agreement with a foreign nation, this is the sole power on the President with the consent of the Senate (Article II Section 2). No State can grant letters of marque (privateers, private vessels to engage in war under the consent and flag of a government, can also include mercenaries). No State can emit bills of credit, this requires states to only spend as much as they raise, they may not run a debt “credit” as the Congress is authorized in Article I Section 8. States may not make currency to pay debt except for Gold and Silver. Just the same as Congress, the states are also forbidden from Bills of attainder and ex pos facto, or granting titles of nobility. States also cannot impair the honoring or preventing the obligations of contracts.
- No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. Outside of requiring compensation to cover the costs of inspections, States without the consent of Congress may not lay imposts or duties on any imports or exports, and any duties or imposts collected shall only be used by the Treasury of the United States, with the changing of these laws subject to the approval of Congress.
- No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, 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. States without Congress’ consent, cannot lay duties on tonnage. Nor can they keep troops or warships without the consent of Congress. The States are also forbidden from entering into any agreement or pact with another state or engage in war unless actually invaded or invasion is imminent.
Article III Section 3: As already listed above. Corruption of Blood (holding a family accountable or punishable) for Treason is prohibited.
Article IV Section 2: Contains a now invalid clause concerning the return of escaped slaves to their owners. States were forbidden from providing safe haven for runaway slaves and were required to return them on demand.
Article V: Also contains a provision that became automatically inactive in 1808. This forbid the Constitution from being amended to render Article I Section 9 Clause 1 inoperative (prohibiting Congress from regulating the importation of Slaves until 1808). An interesting discussion point is, could this clause have been amended inoperative to then allow Article I Section 9 Clause 1 to be amended inoperative?
Article VI Clause 3: Prohibits any religious test to hold any public office of the United States, “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
What Does the Constitution not do?
It does not delineate rights to the people.
The Constitution does in parts address the people in the Constitution, but it never address the rights of the people themselves. The reason for this is simple, and goes back again to the 10th Amendment, the Constitution was only about describing and establishing what power the Federal Government had with some prohibitions to the states. As the 10th Amendment says, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The premise is, if the Constitution did not grant the power to the Federal Government and it is not prohibited to the States, all power not delegated is reserved by the States and the people. This is why the rights of the people are never addressed, because the concept is if the power is NOT listed in the Constitution as belong to the Federal Government, and the people also did not give it to their state in their State’s Constitution, ALL POLITICAL POWER not delegated to government is the people’s. To the framers their was no need to describe the rights of the people, since in their eye’s all the rights were already theirs to begin with (see Bill of Rights or Bill of Limitations). This sentiment is reflected in Federalist 84 written by Alexander Hamilton (May 28, 1788)
For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
Furthermore, the 9th Amendment prohibits anything in the Constitution from being construed (twisted or framed) to infringe on the “other” rights of the people. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Under the premise the Constitution can only grant certain powers to government while also restricting other powers, and those powers not given to government are the people’s solely and government may not construe its delegated power to infringe on a right of the people, no need was seen during drafting to list the rights of the people, since they were the poses of the power in the first place. This was eloquently stated in the Declaration of Independence
deriving their just powers from the consent of the governed
The few instances of the people being directly addressed in the Constitution are;
Preamble: We the People. Signifying, the people are establishing the Constitution, going in line with the above mentioned notion of the people being the possessors of all Political Power.
Article I Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. This is in regards to election the House of Representatives. This also now applies to the Senate after the 17th Amendment of 1913. This mentioning of the people requires members of the House of Representatives be selected by the people every 2 years.
Article III Section 2: With the exception of impeachment, all trials shall be a jury and in the state of the crime. If the crime does not occur in a state, the trial shall take place as Congress has directed. The instance ensures a trial by jury and it occurs within the same state as the crime if applicable, this is to ensure proper trial protections.
Article III Section 3: Defines treason as levying war against the United States or giving aid and comfort to the enemy. It also requires either an open confession in court or 2 witnesses to convict, and prohibits corruption of blood.
Article IV: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. This is to ensure equal protection across the states. This was strengthened by the 14th Amendment in 1868 after slavery was abolished.
Article V: Convention of the States in ratifying an amendment. This directly concerns the people since it was and still is common practice that these convention are chosen by election from the people.
Article VII: The Constitution shall be deemed ratified and go into effect after the ratification of nine state conventions. As noted above for Article V, the conventions were chosen by elections of the people.
It does not require the Government to provide anything to the people:
As stated in the Declaration of Independence the purpose of any Government is;
to secure these (unalienable) rights, governments are instituted among men,
of what was listed as required actions, the government is not required to provide anything or service to the people. However this does not strictly prohibit that either nor does it directly prohibit states from likewise providing services for the people. The only requirements for the Federal Government is they are in accordance with the permitted actions, typically the enumerated powers of Article I Section 8, and for the states they are not prohibited by the Constitution of the United States and allowed by their specific state constitution.
It does not directly address every situation that may occur in government
Though the Constitution does not directly address every single instance that may involve government, it does provide for a framework to address any action that may come before government. The Constitution delegates many different powers to Congress and the Government of the United States in general as well as the power to carry them into enforcement. What these powers do for the Federal Level is delineate the cognizant authority and responsibility of the Federal Government. Powers that are not delegated to the Federal Government, nor implied for the Federal Government to have in the delegated powers do not reside in the Federal Government. In accordance with the 10th Amendment they then fall to the States and the people respectively. What ever powers the people of the states have delegated to their states in accordance with the US Constitution are then retained by the states. All powers not delegated to either therefore reside strictly with the people.
Though the Constitution does not directly address situations that may occur, it does provide for a means to address them. If the situation does not apply to a granted Federal Power, that situation is then a State issue and is addressed according to the rightful laws and Constitution of that State.
The Constitution does not need to directly specify every situation due to the fact that it grants a defined set of powers, and a structure is in place to determine where a power for any given situation resides, either with the Federal Government, the State-Local Government or the is retained by the people themselves.
The Constitution is a very rich and diverse document. It provides for a structure of Government, delegation of power and structure of power. It provides a means to be changed, and is designed as a tool to protect the people’s rights.