United States Constitution
|We the People do ordain and establish this|
|Standards of review|
|Other legal theories|
|Defining moments in law|
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.
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.
The US Constitution has seven articles and twenty-seven amendments.
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
Articles of the US Constitution
This is the part that begins, "We the People…" At the time it was drafted, "people" were wealthy, WASP male landowners. Today it includes all wealthy people and Christians, irrespective of their race or gender (except transgender). Progress!
Oddly, the preamble includes the phrase "promote the general Welfare", which means that the founding fathers were filthy pinko commies.
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).
Creates the executive branch. Establishes the office of the President of the United States and the qualifications for holding that office. It also creates 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).
Creates 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.
Relationships between states. Establishes that states should give "full faith and credit" to each others' laws.
Establishes procedures for amending the constitution.
The US 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).
Describes how this constitution was to be ratified. (Spoiler alert: It got ratified.)
The Bill of Rights
The first ten amendments are called the Bill of Rights. Today most constitutions in the world have similar guarantees of rights; 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.
Overview: Freedom of the press, religion, rights of assembly, a petition (right to sue), and speech.
Added: Dec. 15, 1791
Overview: Right to bear arms and maintain a well-regulated militia.
Added: Dec. 15, 1791
Overview: Soldiers can't stay in someone's home without their permission.
Added: Dec. 15, 1791
Overview: The police need warrants to search your house or arrest you (more or less invalidated by the PATRIOT Act).
Added: Dec. 15, 1791
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
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
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
Overview: No excessive bail, no cruel or unusual punishment.
Added: Dec. 15, 1791
Overview: The rights provided by the Constitution are inclusive, not exclusive; people are allowed to have other rights besides these.
Added: Dec. 15, 1791
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
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
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."
Added: June 15, 1804
The Reconstruction Amendments
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.
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. 6th, 1865
Overview: Defines US 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: July 9, 1868
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
Eliminated Created the messes involved in by passing a Federal income tax. (Infamous for being the cause of the IRS.)
Added: Feb 3, 1913
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.
Added: Apr. 8, 1913
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 US is still trying to resolve some of the mess that this caused, as it could snarkily be called the "Organized Crime Empowerment amendment". - The only amendment ever to be repealed by another amendment. And all that in a span of 15 years.
Added: Jan. 16, 1919
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
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
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
Overview: Two-term limit for US 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.
Added: Feb. 27, 1951
Overview: Gave Washington, D.C. three electors. (Finally!)
Added: Mar. 29, 1961
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
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
Overview: After years of sending 18-year-olds to die overseas, adults finally see fit to give them the right to vote. 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: July 1, 1971.
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 US, but people forgot about that and it wasn't recorded. So Kentucky got to sign it twice due to a clerical error.
The process for ratifying a new Amendment, laid out in Article 5, is deliberately difficult. The proposed Amendment must be passed by a 2/3 majority in both houses of Congress, or have 2/3 of the states call for a convention to amend the constitution, then have the amendment ratified by at least 3/4 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 2/3 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' 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. 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.
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.
- Needed constitutional amendments according to various editors of this site
- Commerce Clause
- The National Constitution Center's Interactive Constitution: contains essays on the Constitutional Articles and Amendments by various scholars from the Federalist Society and American Constitution Society.
- ↑ 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.
- ↑ This phrase was conspicuously absent in the otherwise remarkably similar Confederate Constitution
- ↑ duh!
- ↑ even constitutions of dictatorships like the GDR may nominally have them
- ↑ 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
- ↑ This is mostly a residual from the time the British governed over the thirteen colonies, and did things like this all the time
- ↑ 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
- ↑ 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
- ↑ 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)
- ↑ 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
- ↑ Ok, now the Finally!s are just a joke.
- ↑ 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
- ↑ you read that right
- ↑ https://mgaleg.maryland.gov/mgawebsite/legislation/details/sj0001?ys=2014rs
- ↑ https://web.archive.org/web/20210312094517/https://www.dcvote.org/1978-dc-voting-representation-constitutional-amendment-0