I began this series of articles with “Were You Using that Freedom? (Parts I and II)” discussing The Bill of Rights and the remaining 17 Amendments to the Constitution respectively. Obviously, the Constitution of the United States had to be written and ratified by the former colonies before it could be amended. So why not start at the beginning? My reasons are twofold:
- For the most part, the Constitution defines the basic structure and mechanisms of the government of the United States of America; most of the Amendments define the rights … and, ultimately, the power of the People.
- I believed that I could more clearly explain the protections built into our governmental structure if you knew what the Framers of the Constitution were protecting.
The picture at the top of this article shows the top of the first page of the Constitution. I’ve already discussed the Preamble in “Were You Using that Freedom? (Part I)“. I am not going to repeat that discussion here, but the text of the Preamble deserves repetition:
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.
Because most Articles of the Constitution are much longer than most of the individual Amendments, the format of this discussion will be different from the one I used in Parts I and II. As with the Amendments, I’ll display the Constitutional text in italics. Unlike my discussion of the Amendments, I’ll intersperse my comments in normal text.
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.
It’s important to note that the Legislative … not the Executive nor the Judicial … is the first branch of the Federal Government mentioned in the Constitution. The former colonies had just fought a war to separate themselves from an empire that treated them not as citizens but as serfs. They intended to create a government that answered not to a king or a court, but to the people. The law would be made by the direct representatives of the people.
1. 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.
Members of the House of Representatives are elected (or reelected) every two years. The Constitution does not specify how many times a member of the House may be re-elected. Originally, each state decided who had the right to vote in that state. If your state permitted you to vote for members of the state’s larger legislative body, you were eligible to vote for your state’s member(s) of the federal government’s House of Representatives.
Passage of the 14th Amendment set the requirements for voting in federal elections to 21 years of age and male. The 19th Amendment added women to the roles of voters. The 26th Amendment lowered the voting age to 18.
2. 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.
To be elected to the House of Representatives, you must be:
- At least 25 years old
- A citizen for at least 7 years
- A resident of the state you represent
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.
At the time the Constitution was written, the country’s founders disagreed on the locus of authority in the new nation. The Federalists believed the country should have a strong central government. The Anti-federalists wanted the states to retain the power and semi-autonomy they had as individual colonies.
The Federalists won, for the most part, but a variant of the debate recurred when defining Congress. Small states wanted each state to have equal representation. Large states wanted representation to be proportional to each state’s population. The compromise was to have membership in the House of Representatives be proportional to population and the states to have equal representation in the Senate.
In defining population for proportional representation in the House … and for proportional direct taxation …, the Constitution shows the stain of the country’s original sin … Slavery. The formula for a state’s population was:
Population = Free Persons + Indentured Servants
********************– Indians + 3/5 of all other Persons
The all other Persons were African Slaves. They were Property when it came to taxation, but 60% people when a state counted its population for the purpose of representation in the House. Indians didn’t count at all. The wording in this clause seems to imply that they were barely considered to be people.
By declaring that the populations of various states should be counted every 10 years, this clause created the U.S. Census. The first census occurred in 1790. Each state would have:
- At least 1 representative
- No more than 1 representative for every 30,000 persons
To avoid delaying congressional work until completion of the first census, each state was assigned an initial number of representatives.
As the nation and the population per state increased over the years, the 30,000 figure was increased. As the number of states and population density increased, this direct proportion approach became more and more cumbersome. Since the 1940 Census, the method of equal proportions has been used to determine the number or representatives per state. This approach reduces the effect of percentage differences of populations within congressional districts.
Each member of the House of Representatives is elected for a two-year term.
4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
State governors are responsible for initiating special elections to replace their state’s representatives who can no longer serve.
5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
The House selects its own officers. The Speaker presides over the House and its administrative head. Politics being what it is, the Speaker is almost always a member of the House’s majority party. The Speaker follows the Vice President in the line of presidential succession.
Only the House may impeach. Contrary to common belief and usage, Impeachment is not conviction. It’s analogous to indictment by a Grand Jury. The Senate is responsible for trial and (possible) conviction. Only two Presidents have been impeached … Andrew Johnson and William Jefferson Clinton. Neither was convicted.
1. 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.
A state’s representation in the House is proportional to its population. In the Senate, each state has the same representation … 2 Senators elected for six-year terms. This difference in membership between the two branches of Congress represents the compromise between the large states and the small states. In the House, states with large populations (potentially) have more power. In the Senate, all states are equal.
Unlike the House, Senators were selected not by direct vote of the people, but indirectly by the States’ Legislatures. The 17th Amendment changed this. Senators are now elected directly by the people as well.
2. 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.
Because of the two-year term of the House of Representatives, Congressional elections occur every 2 years. In theory, membership in the House of Representatives can change completely every 2 years. The Framers of the Constitution did not want that for the Senate … nor did they want the Senate to remain the same for 6 years. They wanted the Senate to be a more deliberative body with a longer view of history, but they did not want it to become stagnate nor to devolve into an oligarchy.
In order to spread Senatorial elections across the next 3 Congressional elections, the first-elected Senators were randomly divided into 3 groups called classes. The first class of Senators served a two-year term; the second served a four-year term; and the third served a full six-year term. Thereafter, all Senators have been elected for full six-year terms. Roughly one-third of all Senatorial positions are open for election every two years. As new states join the United States, one Senate seat is assigned to one class; the other is assigned to a different class. The classes are kept as evenly balanced as possible.
Until passage of the 17th Amendment, any Senator who was unable to serve a full six-year term was replaced by the state’s legislature. If the Legislature was in recess at the time, the state’s Governor could appoint a temporary replacement. Now, the Legislature can allow the Governor to appoint a temporary replacement until the state can hold a special election.
3. 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.
To be elected to the Senate, you must be:
- At least 30 years old
- A citizen for at least 9 years
- A resident of the state you will represent
4. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Vice President of the United States is the President of the Senate. Because each state has 2 senators, the possibility of a tie vote is always present. If and only if a Senate vote is evenly split, the Vice President breaks the tie.
5. 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.
The Latin phrase “pro tempore” can be translated as “for the time being”. When the Vice President is unable to serve as President of the Senate, the President pro tempore of the Senate serves in his stead. The President pro tempore is third in the line of Presidential succession … behind the Vice President and Speaker of the House.
6. 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.
The House of Representatives impeaches Federal officials. The Senate conducts the trial of those officials. If the President is on trial, the Chief Justice of the Supreme Court presides over the trial. Conviction requires a 2/3 vote of the Senators present. The Senate cannot do business unless a quorum exists:
Quorum = ( Total Number of Members / 2 ) + 1||||||||(currently 51)
Therefore, until another state joins the United States, 51 Senators must be present for a quorum and 34 of them would have to vote in favor of a conviction for it to pass. If all 100 are present, 67 votes are needed for conviction.
7. 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.
The only punishment that Congress can impose upon a Federal official who has been impeached and convicted is to remove the official from office and disqualify the official for any future office. This does not absolve the official from liability for any violation of the law.
1. 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.
Originally, the individual state legislatures decided the “Times, Places and Manner of holding Elections”. Congress retained the right to pass laws overriding that state authority. As the country grew and communications improved, Congress merged all federal election dates into a single day. Special elections remain the responsibility of the states. Because primary elections are determined by each state’s political party, they vary from state to state and, sometimes, party to party.
2. 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.
The 20th Amendment changed the required date. It states that the required annual meeting begins at Noon on January 3rd. Of course, Congress now meets more than once a year.
1. 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.
Each house of Congress is responsible for making sure that its own elections are handled properly. Conducting this business requires a majority of that house’s membership. If there is no majority, members in attendance can be sent out to get absent members. The absent members may suffer a penalty for non-attendance.
2. 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 house of Congress sets its own rules for conducting its business. It may punish its own members for improper behavior. Members can be expelled by a vote of 2/3 of the members.
3. 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.
Each house of Congress must keep a record of its business and publish that record regularly. Information that might compromise security may be excluded from these publications. When you hear a member of the House or Senate asking that something be “entered into the record“, he or she is referring to the record required by this clause.
4. 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.
The two houses of Congress are designed to work together. If one house tries to work unilaterally or decides to not “come to work”, Congress cannot function.
1. 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.
Service in Congress is a job. Those who serve get paid. The 27th Amendment, ratified more than 202 years after it was passed by Congress, makes sure Congressional raises are delayed until after the next session of Congress.
When Congress is in session, its members cannot be arrested for minor crimes nor questioned by police. This prevents the other two branches of government from exercising undo influence over the Legislative branch.
2. 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.
No one in the Administrative or Judicial branches may serve in Congress at the same time. The 3 branches must remain separated. No member of Congress may vote for a raise for anyone in another branch of government then resign from Congress in order to fill that position.
1. 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.
The House of Representatives is solely responsible for bills to raise the funds needed to run the Federal government. After the bill passes the House, the Senate can propose amendments and/or confirm any amendments added by the House. The Senate often uses the process of Reconciliation to prevent filibuster and hasten the passage of these revenue bills.
2. 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.
After a bill passes both the House and the Senate, it has one last hurdle before becoming a law. As part of the checks and balances built into the Constitution, a bill does not become law until it’s been reviewed and approved by the President. If the President approves, he (or, someday, she) signs the bill and it becomes a law. If the President disapproves, he sends it back to whichever house initiated the bill, including his/her reason for the veto.
The President has 10 days … excluding Sundays … to sign or veto a bill. If the 10 days pass without Presidential action, the bill becomes law. If the President does not sign the bill but cannot return it because Congress has adjourned before the end of the 10 days, the bill does not become law. This is called a pocket veto. To prevent a pocket veto, Congress can designate an agent for receiving messages and vetoes before they adjourn.
Congress can override a presidential veto by a 2/3 vote in each house. (Currently, that’s 290 votes in the House of Representatives and 67 votes in the Senate.) These votes are not anonymous. Each Representative and Senator must, in turn, vote Yea or Nay (Yes or No). The individual votes are entered into the record.
3. 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.
This clause reiterates the most important point of clause 2. Other than an agreement to adjourn, anything that requires both the House and Senate to agree requires the President’s approval or a 2/3 vote in both the House and Senate overriding disapproval.
Some of the clauses in this section need neither explanation nor comment, so … I shall do neither.
1. 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;
Congress has the authority and responsibility to raise and dispense the funds needed to run and defend the country. This authority and responsibility must be exercised uniformly across the whole country.
2. To borrow Money on the credit of the United States;
3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Congress has the authority and responsibility to regulate the country’s international and interstate commerce. The Indian Citizenship Act (Snyder Act) of 1924 made Indigenous Americans full citizens. Their “reservations” became domestic dependent nations with limited internal sovereignty.
4. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Congress has the authority and responsibility to decide how someone becomes a naturalized citizen of the United States. Congress has the authority and responsibility to determine the laws relating to bankruptcy. A common thread between these disparate concerns is national uniformity.
5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Congress has the authority and responsibility to protect us from counterfeiting. This was the original purpose of the U.S. Secret Service.
7. To establish Post Offices and post Roads;
At a time when it was practically impossible for mail to go to every home, post roads were those roads over which mail carriers went from town to town.
8. 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;
This is the basis for our Copyright and Patent laws.
9. To constitute Tribunals inferior to the supreme Court;
Even in the early days of our republic, the Supreme Court couldn’t handle all Federal court cases. This clause provides for Congressional oversight of minor courts, court martial appeals courts, agency decisions, etc.
10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Declaring and overseeing war is the business of Congress; not the Executive Branch. This has often been a point of contention between the two branches.
12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
In one way or another, the United States has been at war during more than 90% of its existence. The 115th Congress met for the first time on January 3, 2017. Every one of them has had to appropriate money to wage or be prepared for war.
13. To provide and maintain a Navy;
14. To make Rules for the Government and Regulation of the land and naval Forces;
15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16. 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 meaning of the word “militia” has changed since the Constitution and the Second Amendment were ratified. Clauses 15 and 16 make it clear that Congress … not some paranoid private citizen … is responsible for calling the Militia. In 21st Century usage, the meaning of these clauses would not change if the word “military” were to be substituted for “militia”. Perhaps the same is … or should be … true for the Second Amendment.
17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
Congress has full authority over the District of Columbia, but chooses to delegate some of that authority to the District’s mayor and council. The District of Columbia was originally 100 square miles … ceded to the Federal government by Maryland and Virginia. In 1846, government returned the 31 square miles ceded by Virginia.
18. 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.
Congress has the authority to create any laws it believes to be “necessary and proper” for exercising its authority and overseeing the proper functioning of the government. Historically, the phrase “necessary and proper” has been broadly interpreted.
1. 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.
To our great national shame, this clause not only prohibits the Federal government from passing any law in opposition of the importation of slaves … until 1808; but also allows the Federal government to impose a tax on those slaves. The Act Prohibiting Importation of Slaves passed in 1807 and went into effect in 1808. It would require 78 years and Civil War to legally abolish slavery. How long it will take to end the divisiveness created by slavery is yet to be determined.
2. 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.
A Writ of Habeas Corpus is a legal action against a person being unlawfully detained. It requires that a court determine whether the person is being legally held.
3. No Bill of Attainder or ex post facto Law shall be passed.
A Bill of Attainder is a law that singles out an individual or group to be detained and/or punished without a trial. Such laws are prohibited.
Ex post facto is Latin for “from what is done afterward”. The legality, punishment, and conviction requirements are fixed when an act is committed. Congress cannot punish behavior using laws passed “after the fact” of that behavior.
4. 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 forbids taxes based on anything other than a state’s population. The 16th Amendment removed the words “or other direct, Tax” … allowing for a Federal Income Tax graduated by income.
5. No Tax or Duty shall be laid on Articles exported from any State.
At the time the Constitution was written, the country’s main exports were farm goods. This clause protected the farm states (mostly in the South) from bearing an undo burden of taxation.
6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
It’s the United States; not the “Untied” States. All regulations and revenue relating to ports must apply equally to all states. Interstate shipping must be free and open.
7. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
Federal expenditures may not be arbitrary. They must be accompanied by a law that authorizes them. A Federal balance sheet must be published on a more or less regular schedule.
8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
This is the now-famous (or infamous) Emoluments Clause that’s reappeared in the news every few weeks since November 9, 2016. No official of the Federal government may accept anything of value (gifts, money, office, title, etc.) from the official(s) of another country without the consent of Congress. (Does Congressional silence give consent?)
Section 10 lists things that the individual states may not do. Some of these things are the sole responsibility of Congress. Some of them are expressly forbidden in earlier sections because they violate sovereignty, unity, or national values as expressed in the Constitution as a whole.
1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
3. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
This clause grants executive authority to the President. The President and Vice President are elected for a 4 year term and at the same time.
2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Clauses 2, 3, and 4 define the Electoral College and its workings. When put into practice, problems with the Electoral College soon appeared. The 12th Amendment modified these clauses. I’ve discussed the problems and changes in my article “Were You Using that Freedom? (Part II)“.
Clause 2 describes the selection of Electors and how they are proportioned to the individual states. Each state’s legislature decides how its electors will be selected. Nobody who already works for the Federal government may be an elector. Each state gets as many electors as it has representation in both houses of Congress as defined in Article I (2 for the state’s Senators + 1 for each of the state’s Representatives).
3. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
This clause describes how the President and Vice President are actually selected. The basic points are:
- Each elector votes for 2 persons. At least 1 of the 2 must be from a state that is different from the state of the elector.
- Each state’s electors create a list of those persons for whom they voted and how many votes each person received. The completed lists are sent to the Senate.
- The President of the Senate counts the votes. Whoever gets the majority of the Electoral votes becomes the President.
- If no one has a majority of the votes or if there is a tie, the President is selected by the House of Representatives:
- This vote is limited to the 5 persons who received the most votes in the Electoral College.
- Each state gets one vote.
- In order to be valid, the process requires a quorum of at least one member from 2/3 of the states.
- Voting continues until a single candidate receives a majority of the states’ votes. That person becomes the President.
- This vote is limited to the 5 persons who received the most votes in the Electoral College.
- Regardless of how the President is selected, the person with the second highest number of votes becomes the Vice President. In case of a tie, the Senate selects the Vice President.
The “bug” in this system appeared after political parties formed. It became not only possible. but likely that the President and Vice President would come from opposing parties. The 12th Amendment corrected the problem.
4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Congress determines election day. (We think of election day as the day we vote for the President and Vice President, but we’re actually voting for electors who will, in theory, vote for particular candidates.) Congress also decides on the day when the electors vote. Both days must be consistent across the whole country.
5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The Constitution lists 3 requirements for Presidential eligibility:
- The President must be a natural born citizen or have been a citizen at the time the Constitution was adopted.
The Constitution does not define the term “natural born citizen” nor has it been tested in the Supreme Court. Most Constitutional scholars agree that a natural born citizen is anyone who has birthright citizenship. If you were born in the United States … or its territories … or have at least one parent who is a United States citizen, you are a citizen at the moment of birth.
All 20th and 21st Century Presidents were born in the states of the United States. Two Presidential candidates (maybe more) were born in U.S. territories … Barry Goldwater (Arizona Territory, U.S.) and John McCain (Panama Canal Zone, U.S.). Ted Cruz, a 2016 candidate for the Republican nomination, was born in Canada but his mother was born in Delaware. All passed the “natural born citizen” test. Anyone who seriously questioned the eligibility of any of them is ignorant and/or stupid. (Note that neither education nor intelligence are Presidential requirements.)
If you were a citizen at the time the Constitution was adopted, you probably don’t want the job. You’re bound to have acquired a lot of wisdom in 200+ years.
- The President must be at least 35 years old.
In the 21st Century, it’s fairly easy to determine someone’s age.
- The President must have been a resident for at least 14 years.
Being born here or having a citizen parent is not enough. To be eligible to be President, you have to live here. Fourteen years is the minimum, but campaign rivals are likely to “encourage” voters to expect more.
6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
It’s not clear whether the Constitution’s Framers intended the Vice President to become the President or the Acting President. When William Henry Harrison died, John Tyler decided that they meant the former and took the oath of office. Since then, Vice Presidents have followed Tyler’s lead. The 25th Amendment clarified this clause. The Presidential Succession Act defined the line of succession beyond the Vice President.
7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The President gets a salary. He gets no raises and no bonuses.
8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
This clause defines the Presidential Oath of Office. The President-elect is not the President until he completes this oath. Traditionally, the President-elect’s name is inserted after the first “I” (e.g., I, President-elect’s name, do solemnly …) and the phrase “So help me God” is tacked on the end. The Chief Justice of the Supreme Court typically administers the oath. The Vice Presidential Oath is similar to the President’s.
1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
The President is Commander in Chief of our military. Contrary to popular opinion (especially among the Presidents from the mid-20th Century through the present), it is the Congress; not the President who has the authority to declare war. (See Article I, Section 8, Clause 11 above.) The President has the authority and responsibility to manage the war after Congress has declared it.
The President has the authority to require Cabinet Secretaries (and any other major executive department heads) to deliver written opinions on subjects relative to their departments. A Presidential Cabinet is not mentioned in the Constitution. It is a tradition established by George Washington.
The President has the authority to issue reprieves and pardons for offenses against the United States. The President may not excuse anyone who has been impeached.
2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President has the power to:
- Make treaties but, those treaties require a 2/3 vote of the Senate before they become effective.
- Appoint ambassadors, ministers, consuls, judges, etc. but, those appointments must be approved by the Senate. (Congress allows the President, executive department heads, and the Courts to appoint lower level officials without Senate approval, but has the authority to rescind that automatic consent.)
3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
If an Executive Branch vacancy occurs while the Senate is in recess, the President has the authority to fill that vacancy without Senate approval. Recess appointments are effective only until the end of the Senate’s next session.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Each year, the President is required to provide Congress with the current State of the Union and legislative recommendations for the coming year. Although this information can be (and has been) in written form, the presentation has been in the form of an address to a joint session of Congress through most of the 20th Century and all of the 21st. The State of the Union Address usually occurs in January or February.
In times of emergency, the President has the authority to call one or both houses of Congress to meet in a special session. Similarly, if the houses of Congress cannot agree on a time for adjournment, the President may adjourn both.
The President has the responsibility and privilege to meet with foreign dignitaries. The President has the authority and responsibility of delegating executive authority and responsibility to the various officials under the umbrella of the Executive Branch.
Most importantly, the President has the authority and responsibility to be sure that all laws of the United States are honored and followed. The Presidential Oath embodies this duty in the words “… and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Section 4 defines how the President and Vice President can be removed from office … Impeachment by the House of Representatives followed by Conviction in the Senate. At the time that the Constitution was ratified, this was the only way to remove a President or Vice President before the end of their term of office (at which time the voters could remove them). Since then, the 25th Amendment has provided another way to remove them and the 22nd Amendment has limited their terms to two (i.e., 8 years total).
Article III of the Constitution (see below) defines Treason as it relates to the United States. Bribery is well-defined in common law and reasonably understood in the vernacular.
The meaning of the words “High Crimes and Misdemeanors” is not clearly defined. Basically, it means whatever Congress wants it to mean. President Andrew Johnson was impeached for violating the rather questionable and short-lived (1867-1887) Tenure of Office Act by replacing Secretary of War Edwin M. Stanton with Ulysses S. Grant. President William Clinton was impeached for perjury. Neither President was convicted. Lesser officials have been impeached (and convicted) for everything from chronic drunkenness to tax evasion.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The third branch of the Federal Government is the Judicial. The Framers of the Constitution created a system of checks and balances to make sure that no single branch of the Federal government would overpower the others. The Legislative Branch makes the laws. The Executive Branch implements the laws. The Judicial Branch decides whether the laws are valid under the Constitution and have been legally implemented. The 1803 case of Marbury v, Madison established the Supreme Court’s authority to review and make a ruling on the constitutionality of any law.
The Supreme Court is at the top of the Judicial Branch. Members of the Supreme Court are appointed by the President … but must be approved by the Senate. The appointments are “for life”. Supreme Court Justices leave office only through Resignation, Impeachment, or Death.
1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Judicial Branch has the authority to rule on all cases brought before the courts. This authority extends only to real cases that are brought before the courts. Ruling on hypothetical cases would be creating law. Only the Legislative Branch has that authority. This clause mentions “the Laws of the United States” but not “the laws of the individual states”. Because of this omission, state supreme courts retain authority over state laws. The 11th Amendment rescinds the authority of a citizen of one state to sue another state.
2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Original Jurisdiction is the power of a court to hear a case for the first time. Appellate Jurisdiction is the power to review and possibly change a decision of a case first heard in a lower court.
3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Other than Impeachment, crimes must be by Jury and held within the state in which they were committed. If the crime was committed outside of a state, Congress would decide where to hold the trial.
1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
This clause defines treason against the United States and the requirement for conviction.
2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Descendants of those convicted of Treason cannot be held responsible for their traitorous ancestor. The government may confiscate the traitor’s property, but must relinquish it to the traitor’s heirs when the traitor dies.
Article 4 describes the relationship of the States to each other and to the Federal government,
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Court decisions in one state must be recognized in all states. No state may reopen a case that has been definitively closed in another state.
1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
There are three interpretations of this clause:
- Congress must treat all citizens equally. (If the government is to rule for rather than over the people, this would seem to be intuitively true … whether or not it’s supported by this clause.)
- Whatever rights a citizen has in his home state are retained when that citizen travels to another state.
- The Supreme Court’s interpretation is that a state may not discriminate against citizens of another in favor of it’s own citizens.
2. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
A person charged with a crime in one state may be extradited from another state upon demand of the Executive of the state that made the charge.
3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
This is the Fugitive Slave clause. A fugitive slave was to be returned when his or her master demanded. The Fugitive Slave Act (1793) enhanced this clause. The 13th Amendment made the clause and the Fugitive Slave Act irrelevant by abolishing slavery in the United States.
1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Congress has the authority to admit new states into the Union, but no state may be formed within another state nor from pieces of one or more states without the consent of the Legislature(s) of the original state(s). There have been many proposals to create new states by means of partitioning of or succession from existing states. Only three have been successful:
- Kentucky was part of Virginia until 1792.
(No wonder Virginia wanted it’s piece of the District of Columbia back. 31 square miles seems like small compensation for all of Kentucky.)
- Maine was part of Massachusetts until 1820.
- West Virginia was part of Virginia until 1863.
(There went another big hunk of Virginia. Residents of the western part of the state wanted nothing to do with slavery and secession from the United States.)
2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
This clause reiterates Congress’ sole authority to pass the laws governing the country.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
The United States will be and shall remain a Republic … ruled by the people and their elected representatives rather than a monarch, dictator, oligarchy, etc. The Federal government is duty-bound to protect the states from invasion. If a state’s Legislature or Executive requests help with domestic violence, the Federal government will provide it.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Article Five’s primary purpose is to define the procedure for altering the Constitution by means of Amendments. Basically, an Amendment must be first proposed and second ratified.
There are two ways that an Amendment can be proposed. Only the first, a 2/3 vote by both the House and the Senate, has ever been used. The second, adoption by a Constitutional Convention requested by the Legislatures of 2/3 of the States, has never even reached the “call a convention” status.
Ratification requires a vote of either 3/4 of the Legislatures of the States or 3/4 of State Ratifying Conventions. In either case, each state gets one and only one vote. Congress determines which approach will be used. They chose to use ratifying conventions for the 21st Amendment. The other 26 amendments were ratified by state legislatures.
Article V’s secondary and tertiary purposes are to restrict two types of Amendments. Both restrictions are related to the compromise between equal versus population-based representation … and, indirectly, to slavery. (Remember that, at the time of the framing of the Constitution, the slave states were the most populous because each slave was counted as 3/5 of a person.)
- Prior to 1808, no amendment could be passed that in any way changed the 1st and 4th clauses of section 9 of Article I. The 1st protected the slave trade; the 4th forbade any taxation based on the slave trade.
- No amendment may deprive any state of equal representation in the Senate unless the state consents. This protected the small states from being deprived of their part of the compromise between representation by population and representation by state.
Article 6 defines the relationship of the United States government under the Constitution to that of the Continental Congress and to the governments of the individual states. It also specifies that there may be no religious requirement to hold public office at either the Federal or State levels.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
After its ratification on March 1, 1781, the Articles of Confederation gave the Congress of the Confederation authority to conduct the business of the United States … including the Revolutionary War. This clause guaranteed that the country would honor debts and agreements made under the Articles.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This clause states that the Constitution and any laws passed under its authority is the supreme law of the country. The states are bound to uphold Federal Law. State laws and constitutions are subordinate to the laws of the United States of America.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
All Legislative, Executive, and Judicial officers of the Federal and State governments must swear or affirm support of the Constitution. There can be no religious requirement for holding public office.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Article 7 defines the requirements for ratification of the Constitution. State Ratification Conventions would be formed. When 9 states ratified the Constitution, it would become law. The words “between the States so ratifying the Same” meant that the remaining 4 “states” would not be members of the country until they ratified the Constitution.
On June 21, 1788, New Hampshire became the 9th state to ratify the Constitution. Congress chose March 4, 1789 as the Constitution’s effective date. By that date, only North Carolina and Rhode Island remained outside the Constitutional government. They did not ratify the Constitution until after the newly formed Congress submitted the Bill of Rights to the states. North Carolina ratified the Constitution on November 21, 1789. When Rhode Island ratified it on May 29, 1790, the Constitution became the Law of the Land for all 13 of the original states.
This is Who We Are …
Seven Articles written on four sheets of 28-3/4 inches by 23-5/8 inches parchment with 39 signatures … a total of 4,543 words … formed the original definition of the government of the United States of America. The Constitution, the first 10 Amendments … the Bill of Rights …, and Amendments 11 through 27 is who we are. The freedoms we enjoy are ours. They belong to us regardless of who serves in the Legislative, Executive, and Judicial branches of our government.
Were you … are you … using that Freedom?
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