Constitution of the United States

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Constitution of the United States

Constitution of the United States, document embodying the fundamental principles upon which the American republic is conducted. Drawn up at the Constitutional Convention in Philadelphia in 1787, the Constitution was signed on Sept. 17, 1787, and ratified by the required number of states (nine) by June 21, 1788. It superseded the original charter of the United States in force since 1781 (see Confederation, Articles of) and established the system of federal government that began to function in 1789. The Constitution is concise, and its very brevity and its general statement of principles have, by accident more than by design, made possible the extension of meaning that has fostered growth. There are seven articles and a preamble; 27 amendments have been adopted (see the table entitled Text of the Constitution of the United States).

The wording of the Constitution is general, necessitating interpretation, and any short summary is only rough and approximate. From its very beginnings, the Constitution has been subject to stormy controversies, not only in interpretation of some of its phrases, but also between the “loose constructionists” and “strict constructionists.” The middle of the 19th cent. saw a tremendous struggle concerning the nature of the Union and the extent of states' rights. The Civil War decided the case in favor of the advocates of strong union, and since that time the general tendency has been toward the centralization and strengthening of federal power.

The Preamble

The Preamble does not confer power, but its first words, “We the People of the United States,” describe the source of the powers conferred by the rest of the Constitution and have been used by the advocates of a strong union arguing against the proponents of states' rights. The Preamble also states the purpose of the document. One of the statements of purpose, “to … promote the general welfare,” became of great importance in the 20th cent. in upholding social legislation, for which no warrant could be found in the enumerated powers of Congress.

The Articles

The first three articles set up the threefold separation of powers, said to have been modeled on Montesquieu's study, which on this point was incorrect, of the British government. In actuality this separation has been weakened by the granting of greater powers to the President and his administrative agencies, which now have legislative and judicial as well as executive functions.

1: Congress

Article 1 provides for the establishment of the bicameral Congress composed of the Senate and the House of Representatives. The various powers of the Congress and the respective houses, together with their methods of election, are enumerated in the article. The Seventeenth Amendment, passed in 1916, instituted the direct popular election of Senators and removed the power of their election from the state legislatures as had originally been provided in Article 1.

Section 4 of Article 1 gives the states power over the conduct of federal elections but permits the Congress to alter such regulations at any time. In 1842 the Congress imposed the district system on the United States. In 1962 the Supreme Court dealt with proper apportionment of election districts and in its decision in Baker v. Carr allowed voters to go into a federal court to force equitable representation in a state legislature. This decision was, however, based on the equal protection clause of the Fourteenth Amendment. Later, the court ruled (1964) that state legislative apportionment must reflect the one-person one-vote principle.

As a legislative body Congress has certain inherent powers. Among these are the power to investigate pursuant to legislative needs. Congressional investigations have led to a great many court decisions concerning the right of a witness before a Congressional committee to refuse to testify even when granted immunity from prosecution.

Section 8 of Article 1 lists the enumerated powers of the Congress. The clause of this section, the “commerce clause,” which grants the Congress the right to “regulate commerce with foreign nations, and among the several States,” was, in the 20th cent., used as a strong argument for the expansion of government power. Since the historic case of Gibbons v. Ogden (1824), the commerce clause has been the battleground over which much of the struggle for and against increased federal regulation of private enterprise has been fought. Until the late 1930s Congress exercised its powers under the clause solely with reference to transportation. But after a series of dramatic reversals by the Supreme Court, Congress began to enter areas that had previously been controlled only by the states. The commerce clause is now the source of important peacetime powers of the national government and an important basis for the judicial review of state actions.

Besides its enumerated and inherent powers, the Congress has implied powers under Article 1 “to make all laws which shall be necessary and proper for carrying into execution” the enumerated or expressed powers. Sections 9 and 10 of Article 1 contain guarantees of the writ of habeas corpus, prohibit bills of attainder and ex post facto laws, and also improve certain limitations on state power.

2: The Executive Branch

Article 2 creates the executive branch of government headed by the President, elected, along with the Vice President, for a term of four years (see president; electoral college). The Twenty-second Amendment (1951) provides that no person may be elected President more than twice. The Twenty-third Amendment (1961) permits District of Columbia residents to vote in presidential elections. Since the adoption of the Constitution there have been two conflicting views of Article 2. The first is that the powers of the President are limited to those enumerated in the article. The opposite view is that the President is given executive power not limited by the provisions of the rest of the article. Every President has had to make the choice of interpretations for himself.

3: The Judiciary

Article 3 provides for a judiciary and defines treason. Besides its enumerated powers, the judiciary has the inherent authority to interpret laws and the Constitution with an authority that must be deferred to. Article 3 also guarantees trial by jury in criminal cases and lays the basis for federal jurisdiction. The Eleventh Amendment (1798), which prohibits suits against any state by citizens of another state or foreigners (see sovereignty), was passed in reaction to the Supreme Court's accepting jurisdiction of a suit against a state by a citizen of another state.

4: The States

Article 4 deals with the relations of the states (see conflict of laws), providing that “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” Section 2 prohibits any state from discriminating against citizens of other states, or in favor of its own. It also provides for the extradition of criminals. The article guarantees a republican form of government to every state and provides for the admission of new states as well as the government of territories.

5: Amending the Constitution

Article 5 provides for amending the Constitution. The supremacy of the federal Constitution and of federal law over those of the states is the heart of the federal system and is established by Article 6. Article 6 also provides for an oath of office for members of the three branches of the federal government and the states and specifically forbids any religious qualification for office. Article 7 declares that the Constitution should go into force when ratified by nine states.

The Amendments

The Constitution has undergone gradual alteration with the growth of the country. Some of the 26 amendments were brought on by Supreme Court decisions. However, the first 10 amendments, which constitute the Bill of Rights, were added within two years of the signing of the federal Constitution in order to ensure sufficient guarantees of individual liberties. The Bill of Rights applied only to the federal government. But since the passage of the Fourteenth Amendment (1868), many of the guarantees contained in the Bill of Rights have been extended to the states through the “due process” clause of the Fourteenth Amendment.

The Bill of Rights

The First Amendment guarantees the freedom of worship, of speech, of the press, of assembly, and of petition to the government for redress of grievances. This amendment has been the center of controversy in recent years in the areas of free speech and religion. The Supreme Court has held that freedom of speech does not include the right to refuse to testify before a Congressional investigating committee and that most organized prayer in the public schools violates the First Amendment.

The right to keep and bear arms—adopted with reference to state militias but interpreted (2008) by the Supreme Court as essentially an individual right—is guaranteed by the Second Amendment, while freedom from quartering soldiers in a house without the owner's consent is guaranteed by the Third Amendment. The Fourth Amendment protects people against unreasonable search and seizure, a safeguard only more recently extended to the states.

The Fifth Amendment provides that no person shall be held for “a capital or otherwise infamous crime” without indictment, be twice put in “jeopardy of life or limb” for the same offense, be compelled to testify against himself, or “be deprived of life, liberty, or property without due process of law.” The privilege against self-incrimination has been the center of a great deal of controversy as a result of the growth of Congressional investigations. The phrase “due process of law,” which appears in the Fifth Amendment, is also included in the Fourteenth Amendment. As a result there has been much debate as to whether both amendments guarantee the same rights. Those in favor of what is termed fixed due process claim that all the safeguards applied against the federal government should be also applied against the states through the Fourteenth Amendment. The supporters of the concept of flexible due process are only willing to impose those guarantees on the states that “are implicit in the concept of ordered liberty.”

The Sixth Amendment guarantees the right of speedy and public trial by an impartial jury in all criminal proceedings, while the Seventh Amendment guarantees the right of trial by jury in almost all common-law suits. Excessive bail, fines and “cruel and unusual” punishment are prohibited by the Eighth Amendment. The Ninth Amendment states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

By the Tenth Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Powers reserved to the states are often termed “residual powers.” This amendment, like the commerce clause, has been a battleground in the struggle over states' rights and federal supremacy.

The Other Amendments

Of the succeeding sixteen amendments, the Eleventh, Seventeenth, Twenty-second and Twenty-third Amendments have already been discussed under Articles 1, 2, and 3. The Twelfth (1804) revised the method of electing President and Vice President. The Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) are the Civil War and Reconstruction amendments; they abolish slavery, while guaranteeing civil rights and suffrage to U.S. citizens, including former slaves. The Sixteenth Amendment (1913) authorizes the income tax. Prohibition was established by the Eighteenth Amendment (1919) and repealed by the Twenty-first (1933). The Nineteenth (1920) grants woman suffrage. The Twentieth (1933) abolishes the so-called lame-duck Congress and alters the date of the presidential inauguration. The poll tax and any other tax made a requirement for voting in primaries and elections for federal office was outlawed by the Twenty-fourth Amendment (1964). The Twenty-fifth (1967) establishes the procedure for filling the office of Vice President between elections and for governing in the event of presidential disability. The Twenty-sixth Amendment (1971) lowers the voting age in all elections to 18. The Twenty-seventh Amendment (1992), first proposed in 1789, establishes procedures for Congressional pay increases.


See C. A. Beard, An Economic Interpretation of the Constitution (1913, repr. 1965); E. S. Corwin, The Constitution and What It Means Today (12th rev. ed. 1958); C. D. Bowen, Miracle at Philadelphia (1966); R. Tugwell, The Emerging Constitution (1974); F. M. Coleman, Politics, Policy, and the Constitution (1983); R. B. Morris, Witnesses at the Creation (1985); C. and J. L. Collier, Decision in Philadelphia (1986); M. Kammen, ed., The Origins of the American Constitution (1986); L. W. Levy, The Establishment Clause: Religion and the First Amendment (1988) and Origins of the Fifth Amendment (1968, repr. 1999); G. S. Wood, The Making of the Constitution (1987); F. McDonald, Novus Ordo Seclorum: Intellectual Origins of the Constitution (1990); L. H. Tribe and M. G. Dorf, On Reading the Constitution (1992); J. T. Noonan, The Lustre of Our Country (1998); K. L. Karst and L. W. Levy, ed., Encyclopedia of the American Constitution (2d ed. 2000); A. R. Amar, America's Constitution (2005); D. O. Stewart, The Summer of 1787: The Men Who Invented the Constitution (2007); S. Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (2008); J. N. Rakove, ed., The Annotated U.S. Constitution and Declaration of Independence (2009); S. Lipsky, The Citizen's Constitution: An Annotated Guide (2009); D. J. Bederman, The Classical Foundations of the American Constitution (2009); P. Maier, Ratification: The People Debate the Constitution, 1787–1788 (2010).

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