United States Constitution

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The signing of the U.S. Constitution in 1787.
We the People do ordain and establish this
US Constitution
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Standards of review
Other legal theories
Amendments
I - II - III - IV - V - XIV
Defining moments in law

Interpretation
Issues

The United States Constitution is the second founding law of the United States of America, adopted after the Articles of Confederation didn't work out well.

The Constitution is a comprehensive document that establishes a form of government with three co-equal branches and which also preserves the liberty of the citizenry. An explicitly counter-majoritarian document in many parts – especially the Bill of Rights – the Constitution is designed to prevent majorities from prohibiting or oppressing minority religions or from prohibiting the expression of minority views. Mere majorities cannot repeal any part of the Constitution, including, e.g., the right to be free from unreasonable searches and seizures by the state, the right of an accused to a jury trial of his peers, or the right to equal protection of the law.[note 1]

Despite some beliefs to the contrary, the Constitution does not say that the U.S. is a Christian country, nor does it call on God in any way. The authors of the Constitution were also smart enough to realize that it might not work for all time, and so provided a means to amend it. And indeed, rather briefly after adopting the Constitution, the founding generation ratified ten amendments.

The Constitution is largely written in general provisions. Specific constitutional cases are brought before the courts and the meaning of particular sections of the document are determined by the judiciary, frequently appealed up to the Supreme Court, the highest court of the land.

The United States Constitution is freely available from many sources. If you wish to read the entirety of its text, go here.

Overview[edit]

The U.S. Constitution has seven articles and twenty-seven amendments.

Preamble

Articles: 1 - 2 - 3 - 4 - 5 - 6 - 7

Amendments: 1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - 10 - 11 - 12 - 13 - 14 - 15 - 16 - 17 - 18 - 19 - 20 - 21 - 22 - 23 - 24 - 25 - 26 - 27


Preamble[edit]

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

This is the part that begins, "We the People…" At the time it was drafted, "people" were wealthy, WASP male landowners.[note 2] Today it includes all wealthy people and Christians, irrespective of their race or gender. Progress!

Oddly, the preamble includes the phrase "promote the general Welfare",[note 3] which means that the founding fathers were filthy pinko commies.

The Preamble has no legal effect; it does not give any powers to the federal government or confer rights to any persons.

Articles of the U.S. Constitution[edit]

Article 1[edit]

Creates the legislative branch of the federal government, a bicameral Congress with a Senate and a House of Representatives. House seats are proportional to population, but Senate seats are not. Since each state gets two Senate seats, we have some ridiculous extremes: for example, a half-million people in Wyoming have the same Senate representation as 38 million people in California.

Notable powers: Pass laws, levy taxes, print money, declare war, prosecute and try impeachments.

Notable limitations: Bans ex post facto laws (laws applied retroactively), provides for the "privilege" of writ of habeas corpus, which may only be suspended during rebellion or invasion (you must be charged with a crime in order to be jailed).

Section 1[edit]

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The first three Articles of the Constitution deal with the three branches of government; the legislative, executive, and judicial branches, respectively. Here, the Constitution grants the legislative power to Congress of the United States which we have just discovered to be made up of two bodies: the Senate and the House of Representatives. Note here of the practise of separation of powers where each branch gets a different job and how each branch of government does checks and balances with each other to maintain responsible government. This was done on purpose to stop too much power being given to one person or entity.[note 4]

Section 2[edit]

This next section will be on the House of Representatives.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

The First Clause of Section 2 deals with the composition of the United States House of Representatives. The Supreme Court has generally agreed that each seat within the HoR should represent as equal a population of Electors (or voters as we now know them as) as possible.[note 5] This is not possible in practice because seats cannot cross state lines; however, the seats within a state's borders should be equal in population. Despite the national-wide average person to seat ratio being 760k, this can skew widely; Delaware's one seat has 990k people in it (making Delaware the most underrepresented state in the union), Montana's two seats have only 543k people in them each (making Montana the most overrepresented state in the union), and Rhode Island's two seats only have 549k each (making it the second-most overrepresented).[1] Note that this doesn't stop gerrymandering, since it doesn't violate any of the rules just mentioned.

The only requirement to be able to vote in the US HoR is that you can vote in your state legislature election.[note 6] Usually, the US HoR elections laws are determined by the federal government, unless stated otherwise.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

So to be eligible to be an Representative, you must have these three requirements:

  • Be at least 25 years old
  • Must have been a citizen of the USA for at lease seven years
  • You must live in the state where the district you want to represent is in.

These are the only requirements to be admitted to Congress, and neither the House nor the states can give extra requirements.[2] However, the Courts have allowed states to disqualify third-party candidates from the ballot if they do not meet certain requirements, like having enough voter support. That makes it so that only candidates with serious chances to win will be on the ballot.[3]

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

The House of Representatives seats are apportioned among the states along population size relative to the total national population: A state that makes up x% of the total United States population should get as close to x% of total House seats as possible, making sure that each state gets at least 1 seat (Today, several states have only one seat in the House of Representatives) in a process known as apportionment. Note that it was expected that each representative was only supposed to represent a maximum of 30,000 people and thus, the HoR grew in membership as populations grew and new states were added. However, the HoR size was capped at 435 back in 1929 and the HoR has not grown since in size. Today, if the 30,000 person per representative rule was continued, the HoR would have over 11,000 members!

Federal direct taxation also follows the population principle: A state that makes up x% of the total United States population should pay x% of the federal revenue in direct taxes. This however, made many different types of taxation impossible (for example, income taxes) because it would be impossible to apportion it among the several states. Eventually, this caused the passage of the Sixteenth Amendment (see below), and so federal taxes no longer follow this principle. See Article I, Section 9 to learn more.

But how can you figure out the population of each of the states? For the First Congress, the Constitution explicitly wrote what each state was entitled to. However, it was expected, that within three years after the first meeting of the 1st Congress, the United States would have to conduct a census. This was done in 1790 and a census is constitutionally mandated every ten years hence as the law directs.

When the Constitution was being created, the free states and the slave states had a disagreement on how slavery would be counted in the census and the subsequent apportionment of seats among the states. The free states argued that since the slaves had no vote, they shouldn't be counted in creating districts. The slave states disagreed and threatened to refuse to ratify the Constitution if the slaves were not counted in. Eventually, it was decided that when it came to apportioning the seats of the House among the states, the total population of the state should be:

  • Total amount of free Persons (including those that were banned from voting like women)
  • Plus the total amount of people who were in indentured servitude ("bound to Service for a Term of Years")
  • Minus the total amount of Native Americans who were not paying taxes
  • Plus Three Fifths of the total amount of "all other Persons", a euphemism for enslaved people. This rule did not affect free black people, however.

This became known as the Three-fifths Compromise.

Thankfully, the Three-fifths Compromise was undone by the Section 2 of the Fourteenth Amendment, which specifically writes "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

So what would happen if a representative suddenly leaves his seat outside of an election? This usually happens when either the representative dies or decides to retire. In response, the "Executive Authority" of the state[note 7] where the representative and the representative's district is from will issue a "Writ of Election".[note 8] The state usually has flexibility on when and how the election is run unless stated otherwise by federal law. Note that House Vacancies and Senate Vacancies are treated differently.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

The House gets the choose who the Speaker of the House and other House Officers. It has been argued that these people do not necessarily have to be House members themselves, though all previous House Speakers have been current representatives. This is the only mention of the House Speaker and other important House Officers in the Constitution. The role that the House Speaker plays in politics comes down to convention and has changed throughout American history.

What would happen if a particular political official (President, federal judge, etc) brought dishonour to their office? There is a mechanism in place known as "impeachment" where that official will have a trial to see if that person deserved to be removed from office. The House has the power to impeach an official via simple majority. However, the House does not have the power to remove impeached officials; that's the job of the Senate.

Section 3[edit]

This section deals with the Senate.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

There was a huge problem when the Constitution was being created: The difference between the more populated states and the less populated states. The more populated states wanted a Congress whose sizes were proportional to population. However, this was considered unacceptable by the less populated states, as this would make them virtually powerless. Instead, they wanted a Congress that gave each state equal votes in Congress regardless of size, like in the old Articles of Confederation. This, however, was considered unfair by the larger states, as this effectively made voting not equal across state lines.[note 9] Eventually, a Great Compromise was decided: both plans would be adopted, with the lower house being proportional to population (the House of Representatives) and a upper house that ensures equality between the states (the Senate). Each chamber would have different responsibilities, but both chambers must agree before legislation can pass.

It was also decided that the Senators will be elected via their state legislatures rather than by popular vote as in the HoR. This made sure that state legislators have a big say on how the United States was run and thus, helped to calm the fears that the federal government might have too much power over the states. However, as the decades have progressed and partisan politics became more potent, it was decided that Senators shall be elected via popular election instead in 1913 through the Seventeenth Amendment.

Also note that the length of a Senator's term is six years while a House member term is only two years! Hopefully, this makes Senators more stable and able to make better judgements, since they only have to face elections every six years instead of the constant elections that House members face every second year.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Instead of making the entire Senate be elected once every six years, it was decided that only one third of the Senate be up for election every two years (usually at the same time as the House elections). This made sure that the Senate retains some of its stability while also allowing the Senate to somewhat change to new demands from the electorate. Note that the two senators from the same state will always be in two different classes.

Currently, Class 1 and Class 2 have 33 senators while Class 3 has 34 senators. Class 1 contains 75.2% of the population, Class 2 contains 51.8% of the population, and Class 3 contains 72.6% of the population. So during a Class 1 and 3 election, 3 out of 4 Americans will get to vote in a Senate election, while only 1 in 2 Americans will do so in a Class 2 year. Why such a huge difference? Completely down to luck. The composition of the different classes were drawn by lot since the very founding of the Senate.

So what will happen if there is a vacancy in the Senate? The state legislators will elect a new Senator to fill out the rest of the term. If the state legislatures are in recess, the Executive will make a temporary appointment until the legislature meets again. This bit has been succeeded by the Seventeenth Amendment, which makes a senate vacancy be filled up by popular vote (read below).

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

So to become a Senator of the United States, you must:

  • You must be thirty years of age.
  • You must have been a citizen of the United States for nine years.
  • You must be living in the state in which you were elected from.

These are the only qualifications to get into the Senate, and neither the Congress nor the States can add more qualifications.[4] You might notice that these qualifications are more stringent than the House. This was on purpose, because the writers of the United States Constitution wanted the Senate to be a more prestigious body than the House. Note, however, that you don't have to be elected to the Senate if you are not over thirty years or age or have not been a United States citizen for at least nine years. You just have to wait until you have achieved these milestones before you get sworn in.[note 10] However, these rules were not always followed![note 11]

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

So who will take the job of presiding over the Senate? In the HoR, this person is known as the Speaker and their selection is left up for the HoR to decide. However, here the Constitution has already decided who will be the President of the Senate, it will be no other than the Vice President! Why was the Vice President chosen to be the President of the Senate?

  • If one of the Senators were picked as the President of the Senate, this would mean that the state where that Senator is from would have only half their representation in the Senate, since remember that the President of the Senate shall have no vote unless the vote is equally divided. However, if it was decided that the President of the Senate does get a vote and the vote is equally divided, shall the President of the Senate get another vote? That wouldn't be fair, would it?
  • What else would the Vice President do? The office of Vice President was literally only created to take over the job of President if there is a vacancy. Other than that, they have no other job to do.

The President of the Senate does not vote during normal Senate sessions. However, if the vote is equally divided, the President of the Senate gets the final say.

The use of the Vice President as the President of the Senate has been controversial, since it could muddle the separation of powers, as the Vice President is from the executive branch and the Senate is from the legislative branch.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Like the House, the Senate shall get to choose their Officers. This includes the President pro tempore, who isn't even required to be a Senator, though every President pro tempore has been a Senator so far. The President pro tempore's job is to take on the job of President of the Senate when the Vice President is not currently available.[note 12] Since the 1950s, the President pro tempore has been the most senior member of the majority party. The president pro tempore cannot do tie-break votes.[5]

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

After the House has impeached somebody, it is up for the Senate to place that impeached official on trial. Impeachments trials are similar to normal trials in courtrooms all across America: Usually there are lawyers who help defend the impeached official and Senators are allowed to bring witnesses and any evidence that is related to the trial to the Senate floor.

However, a major difference is that impeachment trials are outside the scope of the judicial branch, as impeachment is used to keep the judicial branch in check. Impeachment trials specifics are defined by Senate practises and what has been done historically.

Senators act as the jury during impeachment trials, and every single Senator must do an Oath or Affirmation before the impeachment proceedings confirming that they will do their job properly and commit to impartial justice. The presiding officer of impeachment trials ("the judge") is not defined in the Constitution, so usually it's either the Senate President or the president pro tempore. The only exception is when the President of the United States is on trial, in which the Chief Justice of the Supreme Court must be the presiding officer, since having the Vice President as the usual presiding officer would be a conflict of interest.

For a person to be removed from office requires a two-thirds majority; however, to ban a person from ever returning to any high office again requires only a simply majority.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Impeachment trials are neither criminal nor civil trials. There is no legal punishment for being convicted in a impeachment trial except the immediate removal of office and sometimes also the disqualification to hold or enjoy any office of honor, trust, or profit in the United States. However, the removed official can still receive either criminal or civil liabilities stemming from the cause of impeachment, and sometimes officials have been convicted of crimes before they have been removed from office!

Section 4[edit]

This section deals with timing of elections and sessions of Congress.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

State legislatures can create their own laws surrounding the times, places, and manner of elections to both chambers of Congress. However, the Congress can also create their own election laws and thus override states' laws. Somewhat bizarrely, Congress cannot regulate where the elections of Senators take place. This was when only state legislatures elected Senator and thus it wasn't necessary for Congress to ever need to regulate the place where Senators were elected. Of course, Senators are now directly elected,[note 13] so this doesn't really matter anymore.

They were fears that by giving Congress the ability to control elections, they would have tyrannical control over elections and thus make sure that only Congress's favourites would win election. So they made sure that congressional elections were primarily under the control of the states. Ironically, this made it far easier for states to then undermine the election process and disenfranchise minorities like Black people.[6]

This clause has also been used to justify a whole load of pseudolegal bullshit. There is a famous crank theory known as the "Independent state legislature theory" which claims that only the state legislature can regulate federal election with no checks and balances. People feared that if the ISL theory is upheld in court, it would destroy democracy, because without oversight, how can America's election be kept safe? Considering that Republicans basically have given up pretending that they are pro-democracy anymore, this pretty much could have very bad consequences.

Back in 2015, the Supreme Court heard the case where the Arizona Legislature claimed that it can overrule an independent commission (Arizona Independent Redistricting Commission) because the Election Clause states that they had the final say in creating congressional districts. The AIRC was set up by ballot initiative to combat congressional gerrymandering. However, the Supreme Court eventually ruled that the AIRC did in fact have the authority to overrule the Arizona Legislature. The Supreme Court ruled that the language "the Legislature therefore" meant "the power that makes laws", which included ballot initiatives! The Court founded that Legislatures is any sort of law making and that ballot initiatives (as long as it is consistent with the state Constitution) counts as a legislative activity. This was considered a huge drawback for the independent state legislature theory.[7]

Eventually, the independent state legislature theory got their day in the Supreme Court via the Moore v Harper ruling.[8] This case pretty much asked if the ISL theory was valid or not. The answer? No in a 6-3 ruling. They found that the state legislatures were not insulated from ordinary judicial power; however, this had limitations. The courts cannot directly regulate federal elections, as that is still left to the state legislatures. This pretty much ended independent state legislature theory.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Congress only needs to meet at least once a year and that meeting will take place in the first Monday in December unless law will appoint another day. That meant that it was possible for a FULL year to go pass before Congress would assemble. Back in 1789, the United States was a massive country in a civilisation where instant communication didn't exist yet. So there had to be time between elections and the seating of Congress. The very first Congress wasn't seated until March 4th in 1789! That tradition was maintained between 1789 to 1933. Elections as well did not take place on the same day either and changed from state to state. So between the elections in November and the seating in March, there was 4 months where there was a lame duck Congress.

As technology improved and communication between far parts of the country became easier, it was no longer necessary for such a huge wait, and eventually the Twentieth Amendment, Section 2 replaced this section.

Section 5[edit]

This section is on the proceedings of Congress.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Both Houses have the ability to make sure that their elections are in good and proper order. This includes investigations into fraud in a particular election race as well as making sure that elected officials have the qualifications (as set out in this Constitution) to be sworn in. What makes this clause significant is that Congress election investigations are outside the preview of the courts, so claims of election fraud are a particularly partisan issue![note 14] Election investigations are somewhat similar to impeachment proceedings and other judicial proceedings in that Congress (of either House) can compel witnesses to give evidence and punish those who commit perjury.

Both Houses of Congress must have a majority of its members present to do any sort of normal business. It can even compel lazy members to be in the chamber or receive punishment. How to determine a quorum is up to the each Houses of Congress to decide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each Houses of Congress can create its own rules and proceedings. This allows flexibility to change rules overtime without it being strictly bound by the Constitution. Example of Senate rules include the Senate filibuster[note 15] as well as Senate dress codes.[note 16] There isn't really a constraint to any rules both Houses of Congress could adopt unless these rules ‘ignore constitutional restraints or violate fundamental rights.'[9] Both chambers also have the option to censure or reprimand a member for bad behaviour with just a simple majority.

Each Houses of Congress also have the ability to both punish its members for bad behaviour as well as expel a member with a vote of two-thirds. Originally used in the English House of Commons, it was decided that a two-thirds majority was needed to expel a member so not to use the expulsion mechanism for simple political reasons but require broad political support.

Only five representatives and fifteen senators have ever been expelled from Congress. The very first was Senator William Blount of Tennessee for Treason and conspiracy to incite the Creek and Cherokee Indians to assist Great Britain in invading Spanish Florida. In 1861 and 1862, over 14 Senators were expelled for support for the Confederate rebellion. This was the last time in which Senators have been expelled. In 1860, three representatives were also expelled for supporting the rebellion as well. It wouldn't be until over 120 years later that the House would expel another Member. The last two members to be expelled were Michael J. Myers (Democrat from Pennsylvania)[note 17] in 1980 and James Traficant (Democrat from Ohio) in 2002, who were both convicted of bribery. Usually members would resign their office before being expelled.

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.

If you want to keep up to date with the latest news coming from Capitol Hill, you only need to go to one place: The United States House Journal and United States Senate Journal! Except for parts that must be kept secret, these two journals usually record the proceedings of Congress. If one fifth of those present of the chamber desires, it will also record the yeas and nays of any vote as well.

These two journals only record the bare minimum of legislation actions. If you want a full report on what's been happening (like speeches), you should check out the Congressional Record instead. If you want to see what other parts of the federal government has been up to (like public notices), you should check out the Federal Register.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

If one house of Congress want to adjourn for more than three days or do official proceedings in another place other than the Capitol building, it must do so with the consent of the other house. If both houses of Congress cannot agree the time to adjourn, then Article II, Section 3 gives the President the power to do so instead. Giving the two houses of Congress the power to adjourn itself rather than the President was specifically to stop the President from using adjournment as a bullying tactic.

The big problem with adjournment is that when Congress is in recess, it cannot do many of the powers it is given (like advice and consent to presidential appointments). This effectively gives the President special powers to give out recess appointments (which are temporary appointments made by the President until Congress reconvenes again) under Article II, Section 2. However, Congress are not a big fan of these special Presidential powers, so they effectively made sure that Congress will never be adjourned! How? The Constitution states that Congress can only be adjourned for three days without the other house's approval, so at least on the fourth day something must be done to fulfill the constitutional requirement. So the pro forma session was born and it only lasts less than a minute. It only requires a single member since if no-one asks for a headcount, it is assumed that a quorum is present.

Section 6[edit]

This section will expand on the rights and privileges that Congress and its members enjoy.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Every single member of Congress shall receive a salary for their service in running the country. This salary will be determined by law and will be paid out by the Treasury of the United States.[note 18] Since the mid 20th century, the salary of Congress is determined by a commission and is usually only increased to stay pace with inflation. The salary of Congress has flatlined since 2010. Thus the salary of Congress are as follows:

  • The salary of most Senators, Representatives, non-voting delegates, and the Resident Commissioner from Puerto Rico is $174,000.
  • The salary of the President pro tempore and the majority and minority leaders in the House and Senate is $193,400.
  • The speaker of the House of Representatives are paid a salary of $223,500. [10]

Members of Congress are also free from being arrested when they are in session inside the chambers or in the time they are going into or leaving the chamber. The only exceptions are "Treason, Felony and Breach of the Peace", which the Supreme Court have broadly defined as all criminal offenses.[11] However, this means that this privilege from being arrested in the way described above only applies to civil suits.[note 19] Since people are not really arrested due to civil suits these days, this part of the Constitution doesn't really matter anymore.

Possibly the most important privilege that members of Congress have is parliamentary privilege, and it can trace its roots back to England during the 1688 Glorious Revolution. Parliamentarians in the British Houses of Commons and members of the United State Congress are immune from civil or criminal liability during the course of their legislative work.

During the English civil war and afterwards, the King would use his power to intimidate Members of Parliament who had made statements that placed the Crown in a bad light during parliamentary debates. Eventually, this abuse was what eventually created the parliamentary privilege power that Britain and many other countries around the world enjoy today.

This concept of parliamentary privilege was eventually brought over into the United States Constitution via the Speech or Debate Clause. In the United States, there has been several court cases surrounding this clause since the Supreme Court has never interpreted this clause literally. The rule of thumb that the Court has used is that this clause will be used to prevent either the President or the judicial courts from abusing the legislative branch. However, once it is determined that the Clause applies to a specific action, whatever action that particular member or their aides did is completely immune from either civil or criminal liabilities.[12] As the Courts have said succinctly, "The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating".[13]

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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

What if a member of Congress wanted to occupy another federal office? The Constitution has placed restrictions on what type of job you can get!

  • No Member of Congress (either a Representative or Senator) shall be allowed to be appointed to a new office that was newly created during that Member's term.
  • No Member of Congress shall be allowed to be appointed to an another office if the salary of that office was increased during that particular Member's term.[note 20]
  • You cannot be a member of Congress and hold federal office at the same time.

Section 7[edit]

This section will deal with the passing of legislation.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

All bills can originate from either house except for bills surrounding the raising of revenue (like taxes), which must originate from the House. This is because bills surrounding taxpayers' money should come from people that directly vote for them, not the lofty Senators who are only elected via the state legislatures. Even with direct Senate elections, the House of Representatives represent the people far better than the Senate does due to the Senate's disproportionate nature. The Senate, however, can still amend revenue bills like any other bill.

Despite this, Senators have managed to get around this, through a shell bill.[14]

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

If the bill passes both the House and the Senate, it has only one final obstacle; the President. If the President approves of it and signs on the bill, it becomes law. So what happens if the President disagrees with the bill? The President will instead write his objections to the chamber of Congress where the bill originated from. The objection shall then be written in the journal, and they will reconsider the bill. If two-thirds of both chambers of Congress agree with the bill (with the yea and nays of each chamber written in the Journal), it will become law. Therefore, it is possible for the President to be overruled!

If the President has chosen not to act on the bill within ten days (except on Sundays) after he was presented with it, it shall then become law unless Congress is adjourned, in which case it will then not become law. This is known as a pocket veto.

The veto power was originally more expansive than it is now due to Supreme Court rulings. For example, there was once a bill that allowed Clinton to veto certain parts of appropriations bills. This was known as a "line item veto"; however, this law was considered unconstitutional by the Supreme Court in Clinton v. City of New York.[15]

There was also a time from around the 1930s towards the 1980s when the chambers of Congress was able to veto things the President did in a concept known as a "legislative veto". The legislative veto was considered unconstitutional by the Supreme Court in Immigration and Naturalization Service v. Chadha.[16]

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Every order, resolution, or vote that requires the consent of both chambers of Congress must be presented to the President and must be approved by him. If the President disapproves of the order, resolution, or vote, it must be repassed by both chambers of Congress by a two-third majority in each with the same rules and limitations as if it was a bill. This doesn't apply to questions of adjournment, which doesn't require presidential approval.

Of course, presenting every single little matter in both chambers of Congress to the President would slow down the legislative process, so only the order, resolution, or vote (ORV) which has the force of law needs to be presented to the President.[17]

Interesting enough, the Supreme Court has ruled that constitutional amendments do not need presidential approval to pass.[18]

Section 8[edit]

These are the powers that Congress has:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

This clause gives Congress the power to do what most people hate the most about the government: The power to collect taxes, duties, imposts, and excises. This revenue gathering is then used to pay the federal debt, provide for America's defense, and look after the people of the United States. All duties, imposts, and excises must be uniform (in a geographic sense[19]) throughout the USA.

The fact that federal taxes must be uniform has been the subject of multiple court cases, including United States v. Ptasynski[20] which stated that a crude oil tax which exempted Alaskan oil was not unconstitutional due to the ecology of the region.

This clause has allowed the federal government the authority to roll out important programs like Medicaid[21] and Social Security[22] due to the power of Congress to spend money for the "general Welfare of the United States".

To borrow Money on the credit of the United States;

The United States Congress can borrow money on credit on behalf of the United States. However, you cannot sue the government if it doesn't pay you back, as the government has sovereign immunity.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Possibly one of the most discussed about clauses in the entire United States Constitution, the Commerce Clause has been argued about in the Supreme Court over 1,400 times before 1900. Usually, these cases limited the power of the states rather than increasing federal power.

The Supreme Court has decided that the word "commerce" means not just the buying and selling of goods, but also the movement of goods and people across international or interstate lines.[23] Note, however, that while Congress has the power to regulate commerce between states, it does not have the power to regulate commerce within a state.

The Supreme Court has defined the word "regulate" is "to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin. In doing this, it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce."[24]

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Congress has the ability to establish laws and rules to how a foreigner could become a citizen of the United States. Congress also has the ability to create laws on how a citizen could give up their citizenship and to strip the citizenship of a person who obtained it through fraud.

Congress also has the ability to establish uniform laws about bankruptcies across the entire United States. Currently, the national bankruptcies law is the Bankruptcy Reform Act of 1978 also known as the Bankruptcy Code.

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Only the United States Congress has the ability to create coinage and regulate its value (paper money being seen as a substitute for actual gold and silver) and to regulate foreign coins as well. The idea that only the federal government could control coinage was seen as a big deal when it was first written, as it was seen as a huge blow to states' sovereignty.

Congress also has the ability to fix the standards of weights and measures. Considering that the United States is one of a few countries that has not adopted the metric system, (even though Congress, since 1975, has adopted metric has the “preferred system” for trade and commerce) this gives Congress more of a say on this issue. Currently, the Office of Weights and Measures within the Commerce Department’s National Institute of Standards and Technology publishes standards for imperial weights and measures in the USA.

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

If you create counterfeit coinage or securities, you will be punished under federal law. Interestingly, however, the usage of fraudulent money in a transaction is not covered under this clause.[25]

The federal agency originally tasked with fighting against counterfeiting currency was the Secret Service, which, until 2003, was under the Department of the Treasury!

To establish Post Offices and post Roads;

In a era with the internet and planes, it has to be remembered that America is a still the world's forth largest country! That means that before we had instant communication and planes, it took quite some time to go from point A to point B in the USA. One of the best ways to solve the distance problem (before modern technology) was through the post office through post roads (roads designed specifically for the postal service).

There has been some discussion on the specifics of this clause: Does to "establish" a post office means to build new facilities or only convert existing buildings? Does to "establish" post roads means to create new roads for the postal service or help maintain existing ones? The 1876 court case Kohl v. United States[26] ended the debate by allowing Congress to use a parcel of land to build a post office and courthouse.

Congress also has to power to protect the postal service from crime[27] and is in fact under the property of the federal government.[28] Congress has to right to regulate mail unless such regulation violates the First Amendment.[29]

A postal employee can be charged with murder while on official duty by a state,[30] but a state cannot punish a postal employee for operating a mail truck over its highways without a valid state driver’s license![31]

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;

Intellectual Property (IP) is regulated by Congress. IP allows both writers and inventors the exclusive right to their writings and discoveries for a limited time. For authors, it means that all writings you create are under copyright and for inventors it means that all inventions they create can be patented. This is done to promote the progress of science ("the creation and spread of knowledge and learning"[32]) and to promote the progress of useful arts ("innovation, advancement, or social benefit."[33]). However, how exactly these objectives are achieved is up for Congress to decide.[34]

For writings and discoveries to be under IP laws, they must be original and substantive utility for America. Exactly what that means are decided by court cases and Congress.

To constitute Tribunals inferior to the supreme Court;

When the Constitution was written, it was largely agreed that they needed to be a Supreme Court, but disagreed about everything below it. Eventually James Madison proposed that the Congress should be able to create lower tribunals.[35]

Despite Congress creating the lower tribunals, their power is derived from Article III Vesting Clause which gives them judicial power.

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Congress has the ability to punish those that commit felonies on the high Seas, including piracy and those who commit offences against the Laws of Nations. However, exactly what are the laws of Nations was vague, so the Constitution also allows Congress to define what are the "Laws of Nations".

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress can declare war, but can the federal government wage war? Yes, according to United States v. Curtiss-Wright Corp,[36] the federal government can wage war "as necessary concomitants of nationality". In 1973, Congress passed the "War Power Resolution" which confirmed Congress's ability to declare war. However, the President is usually the one who conducts the war.

If America was attacked by a foreign government or entity, would it be considered necessary for Congress to declare war before America could retaliate? According to Alexander Hamilton, no you do not because America was already in a state of war so no declaration of war is needed.[37]

A letter of Marque and Reprisal was a government license that granted a privateer the permission to attack and capture vessels that were at war with the issuer. Congress also has the ability to confiscate property that could be used against the United States even if the property owner is guilty of a crime or not.[38]

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Note that it is Congress and not the President's job to raise and support the Army of the United States. This was due to the belief that allowing the President to raise and support armies would be quite dangerous to liberty. They also decided that appropriations (money) used to fund the armies will only be in use for two years (so the length between elections).

To provide and maintain a Navy;

Back during the writing of the United States Constitution, the navy's main job was to protect America's shipping routes to the old world as well as protect America's interests in the Great Lakes and the Mississippi river. Therefore, instead of leaving it up to the individual states to provide and maintain a Navy, all their resources can be pooled together to provide for the entire country.

Both this clause and the previous clause has given Congress broad powers over both the Army and the Navy. In Torres v. Texas Department of Public Safety,[39] Congress can help returning veterans to go back to their previous jobs working for a state and can sue states who do not allow this. In United States v. Bethlehem Steel Corporation,[40] the government can reap excess profits from a ship builder, reasoning that Congress has both the ability to draft men to war as well as draft businesses to support those being drafted.

To make Rules for the Government and Regulation of the land and naval Forces;

Congress has broad authority to regulate the Armed Forces of the United States. However, the military cannot disregard the Constitution.[41] The military can, however, ban speech or activity of a political nature to both protect the political neutrality of the military and keep troop morale.[42]

Congress has the power to determine who can serve and where they will serve. The military can also court-martial members of the military, but only if it's "service connected".[43]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Congress has the ability to punish states' militia that do not obey a President's order. The United States government also has the ability to ask militias to put down insurrection.[44] A militia man who refused to obey a call was not "employed in the service of the United States so as to be subject to the article of war," but could be tried for disobedience.[45]

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;

The United States Congress power over the militia is unlimited. This means that even if the state governments can create their own militia, they are subordinate to the federal government, which has been the case since the National Defense Act of 1916. This clause also allows Congress to create the United States Armed Forces. It is possible to be enlisted in both a state militia and the federal militia and while on active duty be relieved of your duty in a state militia.[46]

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 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;–And

In June 21, 1783, the Continental Congress was forced to flee Philadelphia because neither state nor local militias were willing to protect them. To stop this from happening again, it was decided that a federal district, not under control of any state except by Congress itself, shall be the feet of government. It should not be more than ten miles square. That place became known as the District of Columbia and was originally a part of Maryland and Virginia (though the Virginia portion was returned years later).

District of Columbia (which is usually also called Washington) is under the complete control of the United States Congress, despite the fact that DC residents cannot vote in congressional elections due to it not being a state, but does send a non-voting delegate to the House of Representatives. In 1802, DC was divided into five districts and elected governing officials; in 1820, the District had its own mayor that was removed in 1874, and the nation's capital did not have home rule until 1967. DC couldn't even vote in Presidential elections until the passing of the 23rd Amendment. DC residents, however, do have constitutional protections in other areas like trial by jury.[47] Also, courts made in the District do not have to comply with Article III.[48]

Congress can with consent of that particular state legislature, can also exercise all authority over the things it purchases "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings". Basically any structure required by the National Government.[49] Anything under federal land is under the federal government's complete authority.

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.

Known as the "Necessary and Proper Clause", this last clause concludes the list of powers Congress said. This clause gives Congress the powers to enact those powers in a way that is both necessary and proper though the use of the word "necessary" is not limited here. [50] Basically, this clause is the outer limits of Congress legislative powers, necessarily giving the rest of any legislative powers to the states as made explicitly clear in the Tenth Amendment.

One of the very first arguments over this clause was during the presidency of George Washington. The question was if the Constitution allowed Congress to establish the first national bank with many like Jefferson and Madison opposing it as it was not strictly necessary. However, Hamilton supported the national bank and President Washington agreed. Later on, the Chief Justice agreed that establishing the national bank was necessary and proper for Congress to be able raise revenue and pay debts. [51]. Pretty much the expansion of federal power has been due to this clause including Congress's investigation and oversight powers and powers to regulate immigration.

Section 9[edit]

These are the powers that are explicitly denied to Congress.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Congress was denied the ability to ban the buying, selling or migration of slaves in or out of the United States in till the year 1808. However during that time a tax was able to be imposed on each slave on at most $10 per person. The importation of slave into the United States was banned on the 1st January 1808. [52]

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.

Habeas Corpus is the right to have an inquiry by the courts that your imprisonment is legal. Congress cannot suspend the Great Writ except if in cases of rebellion or invasion or when there is a threat to public safety. Note that this only affects the federal government and not the states. [53] You cannot do successive petitions since that would "abuse the writ". [54] Habeas Corpus extends to enemy combatants. [55]

During the Civil War, President Abraham Lincoln suspended Habeas Corpus which was deemed illegal by the Supreme Court because only Congress can suspend Habeas Corpus [56] though he did eventually got congressional approval for it.

No Bill of Attainder or ex post facto Law shall be passed.

A Bill of Attainder is a law that inflicts a punishment on a person or group of persons without judicial trial. These bills were passed in the British Parliament as way of punishment groups of people who were attempting to overthrow the government. The Founders thought that this was horrible and unfair and sought to remove it. Technically speaking, only laws whose punishment was death were technically called Bill of Attainder but the Supreme Court has ruled that any sort of punishment imposed by law without judicial trial is a "Bill of Attainder". [57] The Supreme Court has used this clause to struck down laws such as in Cummings v. Missouri[58] and Ex parte Garland [59] which both struck down laws banning those who violated an oath that they were never disloyal to the United States from working in certain professions. Another court case from 1946 struck down a law that cut off pay from federal employees accused of being subversives [60] and another one from 1965 which banned those from the Communist Party to serve as an officer of a labor union. [61]. The Court has used this clause to stop the legislature from overstepping its power into the judical.

Laws which punishes actions before the law was passed and thus was still legal are known as "ex post facto" laws and Congress are also banned from passing these. However the Supreme Court has ruled more narrowly here, for example in United States v. Trans-Missouri Freight Association[62] rejected the idea that an application of an 1890 antitrust law to an agreement begun in 1889 is unconstitutional. This was because the violation of the 1890 law continued even after it was made illegal. If the violation ended the moment the law was passed, it therefore couldn't be prosecuted.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

This clause might sound familiar to you because we have discussed this already in Article I, Section 2, we have already states that the percentage of direct taxes collected must be equal to that percentage size of the United States. So a state with 12% of America's population must contribute 12% of all direct taxes collected by the feds. This was agreed to because the Framers thought that any increase to a state's population would both increase it representation in the House of Representation but increased its tax liability. [63]

What is a capitation tax and direct tax? A capitation tax is a tax "paid by every person, ‘without regard to property, profession, or any other circumstance’" [64] while a direct tax is taxes on real and personal property. [65]

In 1895, the Pollock v. Farmers’ Loan & Trust Co ruling stated that taxes on real and personal property, and income derived from them, were direct taxes. However in 1913, the Sixteenth Amendment was passed allowing Congress "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states." and thus overruled the Pollock decision.

Article 2[edit]

Creates the executive branch. Establishes the office of the President of the United States and the qualifications for holding that office. It also creates the land's favorite institution: the Electoral College.

Notable powers: Commander in Chief of the military, can veto laws passed by Congress, make treaties with other nations (under approval by the Senate), and appoint federal judges (who have to be approved by the Senate).

Article 3[edit]

Creates the Judicial Branch. Establishes the Supreme Court, defines when it has appellate or original jurisdiction, and leaves the creation of lower courts to Congress.

Notable powers: Interpret the Constitution (implied but not explicitly stated, but established in Marbury v. Madison). Justices serve for life.

Article 4[edit]

Relationships between states. Establishes that states should give "full faith and credit" to each others' laws.

Article 5[edit]

Establishes procedures for amending the constitution.

Article 6[edit]

The U.S. under the Constitution inherits the debts it had under the Articles of Confederation. Also, the Constitution and all Federal laws and treaties are the supreme law of the land, and no one in the government can be required to take a religious test to hold office (conveniently ignored by the "America is a Christian Country" crowd, and anyone who insists that the officeholder must include "so help me God" in their oath).

Article 7[edit]

Describes how this constitution was to be ratified. (Spoiler alert: It got ratified.[66])

Amendments[edit]

The Bill of Rights[edit]

The first ten amendments are called the Bill of Rights. Today, most constitutions in the world have similar guarantees of rights;[note 21] however, the Bill of rights is unusual in that it often combines similar and sometimes dissimilar rights into one article that get (several) separate articles in other constitutions.

1st Amendment[edit]

See the main article on this topic: First Amendment

Overview: Freedom of the press, religion, rights of assembly, a petition (right to sue), and speech.

Added: Dec. 15, 1791

2nd Amendment[edit]

See the main article on this topic: Second Amendment

Overview: Right to bear arms and maintain a well-regulated militia.[67]

Added: Dec. 15, 1791

3rd Amendment[edit]

See the main article on this topic: Third Amendment

Overview: Soldiers can't stay in someone's home without their permission.[note 22]

Added: Dec. 15, 1791

4th Amendment[edit]

See the main article on this topic: Fourth Amendment

Overview: The police need warrants to search your house or arrest you (more or less invalidated by the PATRIOT Act).[note 23]

Added: Dec. 15, 1791

5th Amendment[edit]

See the main article on this topic: Fifth Amendment

Overview: The government can't make people incriminate themselves. It can't take life, liberty, or property without due process of law. It can't try someone over and over again hoping for a different result. Private property can't be taken by the government without paying for it.

Added: Dec. 15, 1791

6th Amendment[edit]

Overview: Rights to a speedy trial, public trial, counsel (lawyer), and to know what exactly it is you're accused of.

Added: Dec. 15, 1791

7th Amendment[edit]

Overview: If you are sued by someone for more than $20 (which was a lot in 1791), then you have the right to a trial by jury. One of the arguments against the original text of the constitution being infallible; the Founding Fathers intended for this limit to be increased as the value of the dollar decreased. Meanwhile, just about everybody presently ignores this clause, since it would be a waste of time and resources to organize a trial by jury for every shmuck who sues someone for a Jackson note. The other clause states that, if any fact is deemed true by the entire jury in a civil court, then the Judge can't go back to reexamine it without any good reason.

Added: Dec. 15, 1791

8th Amendment[edit]

Overview: No excessive bail, no cruel or unusual punishment.

Added: Dec. 15, 1791

9th Amendment[edit]

Overview: The rights provided by the Constitution are inclusive, not exclusive; people are allowed to have other rights besides these.[note 24]

Added: Dec. 15, 1791

10th Amendment[edit]

Overview: If the power wasn't given to the federal government, then either the states have that power, or the people do.

Added: Dec. 15, 1791

In-betweenies[edit]

11th Amendment[edit]

Overview: You can't sue a state you don't live in via the federal courts. This was passed as a result of the SCOTUS case Chisholm v. Georgia. It's kinda interesting.

Added: Feb. 7, 1795

12th Amendment[edit]

Overview: Boring crap about the Electoral College that shows why adhering to a strict, unchanging interpretation of the Constitution is bound to fail — the founders themselves decided it needed changes almost right away. Also responsible for all the "CLINTON/Kaine" and "TRUMP/Pence" bumper stickers you see; before this amendment, the candidate with the 2nd highest number of votes for President became Vice President, and there were no "running mates."[note 25]

Added: Jun. 15, 1804

The Reconstruction Amendments[edit]

See the main article on this topic: Reconstruction

The 13th, 14th, and 15th amendments are called the Reconstruction Amendments because they dealt with the aftermath of the American Civil War. Generally speaking, they reaffirmed the rights of U.S. citizens (but stopped short of giving women the right to vote) and tackled some overarching questions that had been debated over the years since the Constitution's adoption. Unfortunately, Southern states often figured out ways of legally evading the amendments to continue denying blacks their rights.

13th Amendment[edit]

Overview: Abolishes slavery and all other forms of involuntary servitude. Unfortunately, it left a loophole that is still frequently abused: Involuntary servitude was still allowed "as punishment for a crime" — even if the said crime was "looking at the officer funny". (Against popular belief, the Emancipation Proclamation merely freed most of the slaves in the South, but not really because the Union didn't control most of the South, but it left slaves in Union states still in servitude.)

Added: Dec. 6, 1865

14th Amendment[edit]

See the main article on this topic: Fourteenth Amendment

Overview: Defines U.S. Citizenship and says states can't trample on your rights. (Of course, the states then went on to trample on people's rights with Jim Crow laws.) This amendment is heavily used to defend and define newly recognized rights. For that reason, it is one of the most frequently applied in SCOTUS cases and one of the focal points of the "originalist" versus "living constitution" argument. Gay marriage, for instance, was legalized based on interpretation of this Amendment.

Added: Jul. 9, 1868

15th Amendment[edit]

Overview: ANTI-anti-voting amendment and laws ostensibly gave blacks the right to vote. (But not women, who, except for Ann Coulter and Phyllis Schlafly, were livid over the exclusion.)

Added: Feb. 3, 1870

20th- and 21st-century amendments[edit]

16th Amendment[edit]

Overview: Eliminated Created the messes involved in by passing a Federal income tax. (Infamous for being the cause of the IRS.)

Added: Feb. 3, 1913

17th Amendment[edit]

Overview: Shifted the election of Senators from state legislatures to direct elections. Much hated by federalists and general anti-government people for "taking the states out of the federal government", even though the previous design of the Senate didn't allow much state influence anyway compared to bodies such as the German Bundesrat.Wikipedia

Added: Apr. 8, 1913

18th Amendment[edit]

Overview: Prohibited the sale of alcohol. The only amendment to try to take away rights – it almost tore the country apart. It was infamous for giving Al Capone something to do. The U.S. is still trying to resolve some of the mess that this caused, as it could snarkily be called the "Organized Crime Empowerment amendment". It ultimately ended up being the only amendment (so far)[note 26] to ever be repealed by another amendment. And all that in a span of 15 years.

Added: Jan. 16, 1919

19th Amendment[edit]

Overview: Gave women the right to vote. Before this amendment's ratification, it was up to each state to decide whether or not to extend suffrage to women; most of them didn't. Interestingly enough, one female representative (Jeanette Rankin of Montana) had a chance to vote on it, becoming — as she said — "the only woman who ever voted to give women the right to vote."

Added: Aug. 18, 1920

20th Amendment[edit]

Overview: Moved the inauguration of the President and Vice President up to Jan. 20. (It used to be in March.) This means that a president-elect only has to wait two months instead of four before the Oval Office gets vacated.

Added: Jan. 23, 1933

21st Amendment[edit]

Overview: Repeals the 18th amendment, ending Prohibition. (Finally!) Kept the proles medicated during the Depression. Unfortunately, Al Capone went to jail for tax evasion due to the 16th amendment.

Added: Dec. 5, 1933

22nd Amendment[edit]

Overview: Two-term limit for U.S. Presidents. This had been an observed tradition established by George Washington way back at the outset, and so no-one thought about it until FDR decided to just keep on going was pushed to the podium in his wheelchair.[note 27]

Added: Feb. 27, 1951

23rd Amendment[edit]

Overview: Gave Washington, D.C. three electors. (Finally!)[note 28]

Added: Mar. 29, 1961

24th Amendment[edit]

Overview: Eliminates the poll tax. (The only tax so heinous that it had to be banned via a constitutional amendment, although by that time there were only a few states still levying it and the amount of money was far less than it had been in its heyday.)

Added: Jan. 23, 1964

25th Amendment[edit]

Overview: Boring stuff about the line of succession for the Prez. With all the assassinations going on in the '60s and the necessity of keeping the chain of command clear in the event of a sudden nuclear war opening with a "decapitation" strike, it became a topic of discussion. This ended a long time of Vice Presidents assuming the Presidency instead of becoming acting President on legally shaky grounds upon the death or resignation of the President. Now all constitutional doubts are eliminated and the newly ascended Vice President may in turn choose his own Vice nominate a VP, which gave us Rockefeller Republicans in the Ford White House.

Added: Feb. 10, 1967

26th Amendment[edit]

Overview: After years of sending 18-year-olds to die overseas, adults finally see fit to give them the right to vote.[note 29] Before this time, it was up to the individual states to determine voting ages, and all but 4 set it at 21; of the remaining 4, 2 had it at 20 and 2 had it at 19. 18-year-olds promptly squander the opportunity.

Added: Jul. 1, 1971.

27th Amendment[edit]

Overview: If Congress gives itself a pay raise, it won't go into effect until after the next election. That way, congress folk won't necessarily be sure they will get it when they vote for it. Helps prevent the obvious conflict of interest.

Added: May 7, 1992. This one easily has the most entertaining story of all the amendments. The amendment was originally submitted to the States with the Bill of Rights way back in 1789. But it never reached the required number of ratifications, so it then languished for over 200 years until approved by that laggard Michigan. Most amendments nowadays have a specific time limit for ratification, but this one — like some others at the time — didn't. After Michigan ratified it, they sent it to the Chief Archivist of the United States, who reviewed it and added it to the Constitution. Some politicians were outraged and said he didn't have the right to amend the Constitution on his own. Then they went and read the rules, and found out he did have that right. So they eventually shut up about it.

It was ratified by Kentucky when they joined the U.S., but people forgot about that and it wasn't recorded. So Kentucky got to sign it twice due to a clerical error.

Almost amendments[edit]

The process for ratifying a new Amendment, laid out in Article 5, is deliberately difficult. The proposed Amendment must be passed by a ⅔ majority in both houses of Congress, or have ⅔ of the states call for a convention to amend the Constitution, then have the amendment ratified by at least ¾ of the States.

Thousands of proposed Amendments have been submitted to Congress, from Amendments that would ban flag burning to Amendments that would outlaw gay marriage.

Of these, only 33 managed to obtain the required ⅔ majority in both houses.

Of these, 27 were ratified by the requisite number of States.

But what about the other 6? The ones that made it through Congress but didn't make it through the States?

That short but interesting list consists of:

  • The Congressional Apportionment Amendment: Only one of the original 12 proposed Amendments in the draft Bill of Rights submitted to the States has never been ratified. It would have changed the way the seats in the House of Representatives were apportioned until the total number of Representatives swelled to over 200 (like it has today), at which point it would have changed nothing.
  • The Titles of Nobility Amendment: The dreaded "missing 13th amendment" of the pseudolaw crowd. Submitted to the states in 1810, this would have revoked the citizenship of anyone who accepted a title of Nobility by a foreign power. Note that putting "Esquire" after your name does not count as a title of Nobility.
  • The Corwin Amendment: Submitted to the States in 1861, this would have made it impossible to Amend the constitution in such a way as to outlaw slavery. (Since this didn't get ratified, we got the 13th Amendment instead.) It was proposed as the Republicans'[note 30] last-ditch effort to avoid the Civil War, and had it been ratified, it would have become the thirteenth amendment instead. Due to having no expiration date, states could still vote on it and force it to pass, but probably not even Alabama is stupid enough for that, though that is debatable. Of the three states that did ratify it, Ohio rescinded its ratification in 1864, Illinois may have never actually and legally ratified it, and Maryland saw the need to rescind it in 2014.[68] Interestingly, none of those states ever seceded and Maryland was the only to hold slaves at the time.
  • The Child Labor Amendment: Submitted to the States in 1924, this would have allowed the Federal government to pass child labor laws. The 1941 Supreme Court case U.S. v. Darby Lumber Co. made this amendment unnecessary.
  • The Equal Rights Amendment: Submitted to the States in 1972, with a built-in 7- (later extended to 10) year ratification time limit in the proposing resolution's preamble. It read, in substantive part: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
  • The D.C. Voting Rights Amendment: Submitted to the States in 1978, with a built-in 7-year ratification time limit in its text. It would have repealed and replaced the 23rd Amendment, providing for a sort of partial statehood for Washington, D.C., treating it as a state for purposes of choosing the President and Vice President, representation in the House of Representatives and the Senate, and for purposes of amending the Constitution, while continuing to deny it the limited sovereignty and independence enjoyed by full states.[69]

As you can see, the first four of these six proposed amendments could still technically become law (along similar lines as the 27th), but as the issues they address have either been resolved or their passage would not change much of anything, such passage is highly unlikely. Having received several more ratifications recently, the fifth's status is currently disputed in court.

See also[edit]

External Links[edit]

Notes[edit]

  1. Of course, this doesn't always work out in practice, and these rights go only go so far as how willing the government is to enforce these rights…
  2. Mostly, but not quite. In the first presidential election in several states such as New Jersey, women and black people could vote. This was soon stopped.
  3. This phrase was conspicuously absent in the otherwise remarkably similar Confederate Constitution.
  4. Which has proved on multiple occasions, not least the presidency of Mr. Crime Against Humanity Made Flesh, to be a wise move.
  5. Also see the Equal Protection Clause from the 14th Amendment.
  6. That is, unless specific laws barring you from voting have been declared unconstitutional, like in the many voting amendments stated below.
  7. Usually, the Executive Authority is called the Governor.
  8. This is a document ordering an election.
  9. This problem is much worse now. Back in the 1790 census, the ratio between most populated state and least populated state was 10. Now in the 2020 census, it was 67.
  10. This happened in the case of Senator-elect Rush Holt of West Virginia in 1935.
  11. Like in the cases of Henry Clay of Kentucky, Armistead Mason of Virginia, and John Eaton of Tennessee. Nobody objected to their seating in the Senate, so it was not considered precedent.
  12. This tends to happen quite often, as the Vice President tends to have better things to do than do Senate business!
  13. Thanks Seventeenth Amendment!
  14. Examples include the 1984 Indiana 8th House election and 1974 New Hampshire Senate election.
  15. The debate will continue until a vote of 60 to invoke closure. This tactic has been used time and time again to stall government.
  16. Senate dress codes are no more due to John Fetterman!
  17. Not to be confused with the slasher or the Canadian actor.
  18. The Twenty-Seventh Amendment to the Constitution states that any change to the salary will only take affect until after an election.
  19. Which were quite common back in early America!
  20. However, you can decrease the salary of that office to its original salary amount, a process known as a Saxbe fix.
  21. Even constitutions of dictatorships like the GDR may nominally have them.
  22. This is mostly a residual from the time the British governed over the thirteen colonies, and did things like this all the time.
  23. This amendment together with the fourteenth is often understood to implicitly guarantee a "right to privacy" that was the basis for Roe v. Wade and many other cases.
  24. This was mainly addressing a common fear at the time that stated that any enumeration of rights could be misunderstood to exclude all other rights. This of course proved utterly groundless.
  25. This amendment became necessary after one of the earlier presidential elections resulted in a contradictory and complicated outcome including President and Vice President from different parties who hated each other (just imagine Obama/Romney for a second).
  26. The wingnuts are working on undoing the Reconstruction Amendments. Let's hope they never succeed!
  27. However, both Teddy Roosevelt and Ulysses S. Grant ran for a third non-consecutive term after having been out of office; both failed to get the Republican nomination in no small part due to the tradition of Washington.
  28. Ok, now the "Finally!"s are just a joke.
  29. See also P. F. Sloan's 1965 hit single "Eve of Destruction", which contains the line: "You're old enough to kill, but not for votin'," and which later reappeared on an episode of The Greatest American Hero.
  30. Yes, you read that right.

References[edit]

  1. What If The House Of Representatives Had More Than 435 Seats? FiveThirtyEight. Published on Aug 12, 2021, https://projects.fivethirtyeight.com/435-representatives/
  2. Supreme Court cases: Powell v. McCormack (1969) and U.S. Term Limits, Inc. v. Thornton(1974)
  3. Storer v. Brown (1974)
  4. Powell v. McCormack, 395 U.S. 486 (1969) and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
  5. Senate.gov https://www.senate.gov/about/officers-staff/president-pro-tempore.htm
  6. Voter ID laws in North Carolina were specifically created to disenfranchise as much Black people as possible. This happened as recently as 2021!
  7. Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015)
  8. Moore v. Harper, 600 U.S. ___ (2023)
  9. NLRB v. Canning, 573 U.S. 513, 564–64 (2014) (quoting United States v. Ballin, 144 U.S. 1, 5 (1892)
  10. Congressional Salaries and Allowances: In Brief, Updated September 19, 2023, accessed at September 22, 2023, https://crsreports.congress.gov/product/pdf/RL/RL30064
  11. Williamson v. United States, 207 U.S. 425, 446 (1908)
  12. McMillan, 412 U.S. at 312.
  13. McMillan, 412 U.S. at 324
  14. The ‘Shell Bill’ Game: Avoidance and the Origination Clause, Washington University Law Review Archive, https://openscholarship.wustl.edu/law_lawreview/vol91/iss3/6/
  15. 4524 U.S. 417 (1998)
  16. 462 U.S. 919 (1983)
  17. S. Rep. No. 1335, 54th Cong. (1896); 4 Hinds’ Precedents of the House of Representatives § 3483 (1907)
  18. Hollingsworth v. Virginia 3 U.S. (3 Dall.) 378 (1798).
  19. Knowlton v. Moore 178 U.S. 41, 106 (1900)
  20. 462 U.S. 74, 82 (1983)
  21. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 332 (2015).
  22. Helvering v. Davis, 301 U.S. 619, 641 (1937)
  23. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).
  24. Brooks v. United States, 267 U.S. 432, 436–37 (1925).
  25. Fox v. Ohio, 46 U.S. (5 How.) 410, 433 (1847); United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850).
  26. 791 U.S. 367 (1875)
  27. Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845).
  28. Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845)
  29. Lamont v. Postmaster General, 381 U.S. 301, 306–07 (1965)?
  30. United States v. Kirby, 74 U.S. (7 Wall.) 482 (1869).
  31. Johnson v. Maryland, 254 U.S. 51, 57 (1920)
  32. Golan, 565 U.S. at 324.
  33. Graham, 383 U.S. at 6.
  34. Graham, 383 U.S. at 6 (Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose [of the IP Clause] by selecting the policy which in its judgment best effectuates the constitutional aim.)
  35. The Federalist No. 81 by Alexander Hamilton.
  36. 299 U.S. 304 (1936).
  37. 7 Works of Alexander Hamilton 746–747 (J. Hamilton ed., 1851).
  38. Miller, 78 U.S. at 306; Kirk v. Lynd, 106 U.S. (16 Otto) 315, 316, (1882)
  39. No. 20–603, slip op. at 8 (U.S. June 29, 2022).
  40. 315 U.S. 289, 305 (1942).
  41. Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
  42. Greer v. Spock, 424 U.S. 828 (1976)
  43. O’Callahan v. Parker 395 U.S. 258 (1969)
  44. Moore v. Houston, 3 S. & R. (Pa.) 169 (1817)
  45. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827).
  46. Perpich v. Dep’t of Defense, 496 U.S. 334, 345–47 (1990)
  47. Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 1 (1899).
  48. Palmore v. United States, 411 U.S. 389 (1973).
  49. James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937)
  50. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819).
  51. 6 U.S. (2 Cranch.) 358, 385 (1805)
  52. Act Prohibiting Importation of Slaves 2 Stat. 426, enacted March 2, 1807
  53. Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917)
  54. Felker v. Turpin, 518 U.S. 651 (1996)
  55. Boumediene v. Bush 128 S. Ct. 2229 (2008)
  56. Ex parte Merryman, 17 F. Cas. 144 (No. 9487) (C.C.D. Md. 1861)
  57. Nixon, 433 U.S. at 469; see also Fletcher v. Peck, 10 U.S. 87, 138 (1810) (A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.).
  58. 71 U.S. 277 (1866)
  59. 771 U.S. 333 (1866)
  60. United States v. Lovett 328 U.S. 303, 315 (1946)
  61. United States v. Brown 381 U.S. 437, 440 (1965)
  62. 10166 U.S. 290, 342 (1897)
  63. The Federalist No. 54 (James Madison).
  64. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 571 (2012) [hereinafter NFIB] (emphasis omitted) (citing Hylton v. United States, 3 U.S. 171, 175 (1796) (opinion of Chase, J.))
  65. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); Hylton v. United States, 3 U.S. 171 (1796)
  66. duh!
  67. Before 2007, this had been interpreted with emphasis on the well-regulated militia portion of the law. After 2007, it is interpreted by the Supreme Court to mean a right to personal firearm ownership. See District of Columbia v. Heller: https://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf
  68. https://mgaleg.maryland.gov/mgawebsite/legislation/details/sj0001?ys=2014rs
  69. https://web.archive.org/web/20210312094517/https://www.dcvote.org/1978-dc-voting-representation-constitutional-amendment-0