Article V - Amendment

Article V of the Constitution deals with amending the document.  The authors knew they had a very good product, but certainly not a perfect one, and they knew there needed to be a system for changing, or amending, the Constitution as times, conditions and the country itself changed.  Article V is very short and simple, but the process for amendment is not so much complex as it is difficult to accomplish.

In short, the Constitution may be amended in two ways: the usual way is for two-thirds of each legislative branch to vote in favor of the amendment and then have it ratified by three-fourths of the state legislatures; or, the states themselves may call for a Constitutional Convention.  Every amendment but one (so far) has been passed by the first method, and no convention has been called to propose an amendment since the ratification of the Constitution. The convention method has only been used once to ratify an amendment (the 21st Amendment, which repealed the 18th).  However, the convention system is still in place, no doubt as a safeguard against too much centralized power in the federal government.

For a discussion on the merits of amending the Constitution (or not), see my previous blog entry:
http://jamesmadisonandme.blogspot.com/2012/10/we-should-have-fill-in-blank-amendment.html

And for a discussion of just how amazing our Constitution is, since it has only been amended 27 times, see:
http://jamesmadisonandme.blogspot.com/2012/09/happy-birthday-america.html

So, not to re-hash what I've written before, but the fact that a document that is more than 220 years old has only been amended 27 times is quite remarkable.  Madison and his fellow Founders did an amazing job writing this durable, enduring work.

Not all amendments that are proposed are passed by Congress (more than 11,000 proposals to amend the Constitution have been introduced into Congress).  And not all that are passed by Congress are ratified by the states (six have been approved by Congress, but the requisite number of states have not approved).

Next: Article VI - Debts, Supremacy and Oaths

Article IV - The States

The Constitution is set up for the purpose of establishing a federal government, encompassing the entire nation.  However, the Founders knew that the states themselves were, corporately, the nation, and wrote a section of the Constitution to address the nature and status of the states, and the duties and obligations the states have to each other, and that the federal government has to the states.

In Section 1, the Constitution affirms that :

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

In other words, legal cases settled in one state must be recognized in others.  One state court may not re-open a case decided in another state, simply because the laws are different.  There are exceptions, of course, but they are few and limited, so the bottom line is that if I am convicted of a crime in my home state, I can't go to a neighboring state and be re-tried by its state courts because the law in that state doesn't find my actions illegal.

Section 2 begins:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

This has been the subject of a lot of interpretation and speculation.  Does it mean that all citizens must be treated equally, no matter where they are?  Or that the rights of a citizen in one state must be recognized while travelling to another state?  The Supreme Court opines that it means that a state may not discriminate against a person of another state in favor of a citizen of its own state.  Again, many exceptions and exemptions apply, but that's the gist of it.  

The next part deals with extradition of criminals, and basically states that fugitives who cross state lines may be extradited to the state in which the crime was committed.

The third part of Section 2 became known popularly as "The Fugitive Slave Clause":

"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 allowed slave owners to demand the return of escaped slaves, even if the slave escaped to a free state.  The Thirteenth Amendment rendered this clause moot.

Section 3 addresses the admission of new states.  Any new state may not be created within the boundaries of an existing state, nor by the junction of any two existing states without the consent of the states involved and the federal government.

The second part of Section 3 deals with territory:

"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."

The Congress ultimately has authority over all U.S. territory, but what exactly is "territory"?  In a series of decisions about the "Insular Territories", the Supreme Court ruled that territories belonged to but were not part of the United States.  This has led to the long-standing debate over the political status of Puerto Rico, for example.

Section 4 requires that every state establish a republican form of government.  It does not specify the precise form the government of each state must take, only that it be based on the principles of the consent of the governed.  In that vein, no state has a purely democratic government - all have a representative government of one style or another, and all are based on the federal model, with an executive, a legislature and a judiciary.  This section also required the federal government to protect the states from invasion and domestic violence.

Next up: Amendments

Article III - The Judiciary

Article III of the Constitution is remarkably short (and I shall attempt to keep this blog entry short, as I am not a long-winded lawyer!), considering the power it vests in the Supreme Court.  It runs only six short paragraphs, and the entirety of one paragraph was modified by the Eleventh Amendment (we will address that when we get to the Amendments).

Simply put, the Supreme Court (as it is now known - it was referred to in the generic, lower-case sense in the Constitution as simply "the supreme Court") was established to be the final arbiter in the interpretation of the laws passes by the legislature.  Justices were appointed to serve while on "good behavior", in other words, for life.  There was no specific number of justices to serve on the court required by the Constitution, and by law, it has been nine, though attempts have been made to change that number, most notably by President Franklin Roosevelt (read about it here).

The primary concern in establishing the judiciary, and having the justices appointed, not elected, was to do the best to ensure that the court would be independent of the whims of the voters and of the current president or Congress.  Their job was to be the final arbiter of the laws of the land, the ultimate court of appeal.  Since then, its powers have evolved to include the concept of judicial review, which is to say, the finding of certain laws Constitutional or not.  This has been a favorite tool of legislators of all parties to try to derail certain laws, most recently the Affordable Health Care Act (Obamacare).  This power of review, however, is not explicitly established by the Constitution, though the Framers did contemplate the idea, as expressed by Alexander Hamilton in Federalist 78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Thomas Jefferson, however, warned about a too-powerful judiciary, one that would "legislate from the bench", as the modern usage puts it:

"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

Indeed, the courts are often criticized by people of all political persuasions as being "activist", or overstepping their bounds, especially when ruling against such critics.  Certainly, one can make a case that many of today's  laws came almost directly from Supreme Court decisions, notably abortion laws ("Roe v Wade"), de-segregation ("Brown v Board Of Education"), and the right to stay silent and have legal counsel ("Miranda v Arizona"), to name a few.

This Article also establishes the right to trial by jury, again limiting the power of individual justices or judges, and devolving power to the people to the greatest extent possible.  Additionally, the Article establishes the conditions for treason, and the procedure for trying such cases.

Perhaps none of the three branches of government has caused so much controversy over our history.  Is it because we, as voters, have virtually no control over this branch, as opposed to the other two?  We cannot replace Supreme Court justices in the next election, like we can with the president or Congress.  Laws may be changed from one Congress to the next, executive orders may be rescinded by succeeding presidents, but  it is rare that Supreme Court decisions are overturned, thus making its rulings far more permanent than legislative or executive acts.  The court works on the principle of stare decisis, which holds that previous decisions should be maintained, even if the current court would rule differently.  The decisions of the court can only be overturned by the court itself, when it rules on a similar case at a later time (for example, "Brown v Board" overturning "Plessy v Ferguson"), or by Constitutional Amendment, and even more rare occurrence (the 13th and 14th Amendments overturning "Dred Scott v Sandford").

On the other hand, is it a good thing that the court is not subject to the transient whims of the electorate?  Ideally, at least, the justices sit above the petty squabbling of the other branches and rule only on the law, not on emotions or whims.  We can debate whether in practice that has in fact happened, but the principle seems sound.  

Next up - Article IV: The States

The Executive, Continued

I had planned on making this post a continuation of our read through the Constitution, but one reader asked me about part of the last post, specifically, about executive orders.  With that in mind, I'd like to explore that a bit, as it is a timely topic in the news today.

Yesterday, January 16, 2013, President Obama signed a series of executive orders regarding gun control.  What IS an executive order, anyway?  Is it Constitutional?  Does it have the force of law?  How far can a president go with such an order?  Obviously, this is a series of questions that can go on forever, but let's take at least a brief look:

What is an executive order?  Generally speaking, it's a directive from the president that clarifies or focuses the action of Congress on an executive agency.  The orders are not laws, as only Congress has the power to pass laws, but they can be far-reaching and effectively regulate a great deal without actually being laws.  Therein lies the debate over executive orders.

Are executive orders Constitutional?  This may sound like a politician's answer, but it seems to be "maybe"?  The Constitution itself is vague, almost silent, on the subject, other than a brief phrase in Article II, Section 3 that says "he shall take Care that the Laws be faithfully executed".  It's a pretty flimsy basis on which to invest even more power in the executive, but it has become accepted practice, with certain boundaries.  If the president were merely clarifying acts of Congress to the executive agencies, there might be little controversy.  So, what are some examples of orders that may overstep the bounds of the president's authority?

All presidents have used executive orders to one degree or another, but until the early 20th Century, most were unwritten and fairly benign, seen only be the agencies to which they were directed.  Until 1952, there were no actual guidelines for them, either, until President Truman's plan to nationalize steel mills during the Korean War was struck down by the Supreme Court as an attempt to make, rather than clarify, law.  Other sweeping executive orders that were controversial for their large scope (either for good or for ill) include Truman's order to integrate the armed forces, Eisenhower's order to integrate schools and FDR's order which led to the internment of Japanese-Americans during World War II.

So, what can be done about unpopular executive orders?  The Supreme Court can find them unconstitutional (though it has only done so twice).  Congress cannot veto them, though, as veto is an executive function. Congress can, however, vote to stop funding for any executive action, though the funding action itself can be vetoed by the president (and therefore require require a two-thirds vote in Congress to override the veto!).

So, what does this have to to do with today's issues?  President Obama issued executive orders yesterday that dealt primarily with better enforcement of existing laws, but not anything that could be construed as making new laws.  That can only be done by Congress.  The fact that 23 new executive orders were issued is remarkable, though.  I'm not sure what the one-day record is, but this must be a contender.

Certainly, every president must have had some issues which he wished he could push through without Congressional approval, but the fact that the Constitution limits the power of the president AND the Congress (at least, in theory), ensures that neither gets too powerful, yet neither is relegated to insignificance.

Next up (barring any other breaking news) - the branch that watches over the other two and hold the most cards in terms of determining the constitutionality of laws and orders: the Judiciary.

Article Two - The Executive

For such and important position, the article describing and authorizing the executive (the president) is fairly short.  Yet, in the beginning, the title for this office holder was fairly long.  "His High Mightiness, the President of the United States and Protector of their Liberties" (yes, really!) was initially the formal title for George Washington, though this, to many, sounded entirely to monarchical and at the urging of James Madison and the House, it was shortened to simply "Mr. President".  John Adams thought that this shorter title lacked prestige (and no doubt gave ammunition to his critics who thought him a monarchist), but was unsuccessful in changing it, even when he was president.  But I digress a little.

Section One of Article II simply states that all executive power lies with the president.  Sounds simple, but was a departure form other governments in which executive power was shared by a leader (such as a king or prime minister) and a body of advisers or legislators.  This ensured, in our case, the separation of powers and established the system of checks and balances with which we are all familiar.

Section One also established the method of electing the president.  Indeed, of you think the Electoral College process is confusing and cumbersome now, go read the original.  Suffice to say that the 12th Amendment simplified the process a bit.  And rather than go into the relative merits of the Electoral College System here, you can refer back to my previous blog about it here: 

http://jamesmadisonandme.blogspot.com/2012/08/hamilton-got-it-wrongsort-of.html

This section also spelled out the requirements for eligibility to be president: natural-born citizen, age at least 35, and having been a resident of the U.S. for at least 14 years.  It also provides a mechanism for removal of the president, and succession (modified later by the 20th and 25th Amendments), and for the president's compensation.  Finally, it contains the wording for the president's oath of office.

Section Two appoints the president as commander-in-chief of the armed forces, establishing civilian control over the military - a time-honored tradition and a system that has generally been proved effective.  It also gives the president the power to enter into treaties and appoint judges and other officers of the nation (both with advice and consent of the Senate).  In the case of recess of the Senate, the president can also make appointments, but such appointments expire sooner than confirmed ones.

Section Three requires the president to report to Congress regularly - what we now know as the State of the Union Address.  It also gives him the power to convene Congress during extraordinary circumstances, to execute the laws of the land, to receive foreign ministers and ambassadors and to commission officers (for example, my own commissioning order has President George H.W. Bush's signature on it).

Section Four states simply: "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."  The actual process of impeachment is rather cumbersome, and probably rightly so, as it prevents impeachments over purely partisan, trivial matters.  To date, only two presidents, Andrew Johnson and Bill Clinton have been impeached, though both men were later acquitted.   (Nixon resigned when he knew articles of impeachment were imminent.)

Next up - The Judiciary

Article One - The Lawmakers

Continuing the series on the Constitution, we left off last time with the Preamble.  An attentive reader (okay, my sister) asked what exactly it means "to secure the blessings of liberty".  A very good question, and one I think we have to take back to the Declaration of Independence.

You will recall that Jefferson wrote in the Declaration: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."  Remember that the Declaration was in large part a list of complaints against King George and the colonists were declaring that the actions and attitudes of the king were antithetical to liberty and self--governance.  This, to me, seems to be the "securing the blessings of liberty" idea - that true liberty cannot spring forth from royal decrees or indeed from any system in which the people - the citizens - themselves have no say in their governance. 

It is with that idea in mind, I believe, that the concept of government of, by, and for the people became a reality with the Constitution, specifically in Article I, which we will now explore.

Article I - The Legislative Branch.

The founders brilliantly conceived this system, the bicameral setup, in order to strike a balance between large and small states - one chamber representing the population in proportion, the other representing the states equally.  This ensured that there would be no "tyranny of the majority" in the House, nor would there be disproportionate power given to the smaller states by their equal representation in the Senate.

Section 1 simply states that all legislative powers belong to the legislative branch.  It seems obvious, but I believe they were making a statement against executive fiat (such as a royal proclamation).  In more modern times, we see presidents issuing Executive Orders more and more often, and I have to believe that such orders are contrary to what the Founders had in mind - that is, laws, or at least regulations, that have not been approved by a legislative action.  Likewise, we see judicial decisions carry the force of law, rather than merely interpreting the law.  I doubt the Founders would be pleased by either of these developments.

Section 2 sets the framework for the House.  Elections every two years, to ensure the best possible representation of the will of the people; minimum age of 25; the "Three-Fifths Compromise" (later modified by the 14th Amendment), counting slaves and Indians as three-fifths of a person for census and representational purposes (on the surface, this seems terribly racist, but it in fact likely helped speed the end of slavery - perhaps a topic for another blog some time); and the original numbers of representatives for each state.

Section 3 addresses the Senate. Senators were to be elected by the state legislatures (later changed to direct election by the 17th Amendment); minimum age of 30; the Vice President of the United States is President of the Senate, but only votes in case of a tie; and the Senate's power of impeachment.

Section 4 sets the prescribed time and manner of meetings of the two bodies (later changed by the 20th Amendment)

Section 5 allows each chamber to make its own rules and directs them to keep a journal of all proceedings, to be made available to the public (The Congressional Record).  It also allows for each house to set rules for quorums, discipline, recesses and adjournments.

Section 6 addresses compensation for Congressional members (modified by the 27th Amendment - the amendment that took over 200 years to ratify.  Draw your own conclusions about that!). This section also directs that any member may not hold any other federal office at the same time, preventing conflicts of interest.

Section 7 directs that all revenue bills originate in the House.  Presumably, this was to keep the spending of the peoples' money as close to the people as possible, and as accountable to the people as possible.  This section also addresses the presidential veto and override provisions.  Perhaps most importantly, this section directs that all votes be recorded, so that the people may know how their representatives and senators voted on any and all issues.

Section 8 lays out specific powers of Congress, including: taxation, minting and borrowing of money, regulating interstate and international commerce, naturalization rules, post offices, patents and copyrights, raising a military, declarations of war, and exercising legislative authority over the seat of the U.S. government (the then-yet-to-be-decided-upon District of Columbia).

Section 9 then goes on to impose certain limits on Congress, such as prohibitions on ex-post-facto laws or bills of attainder; no right to writs of habeas corpus shall be suspended; no direct (income) tax to be laid (changed by the 16th Amendment); no titles of nobility are to be awarded by the country and no agent of the government shall accept any such title, except as allowed by Congress.

Section 10 prohibits the states from certain powers, including: no entering treaties; no coining of state-specific money; no import or export duties; no independent declarations of war.

Well, this was a rather lengthy blog, but let's be honest - the Legislative Branch is large and complicated (and we might argue that it is far larger and more complicated than ever intended, or than it needs to be).  The fact remains, though, that the concept was brilliant.  The people and the states getting equal representation, and neither chamber holding power over the other.  Despite the problems we may see in our system, especially these days, the format still works.  It has served us more or less well for 225 years, and I've yet to see a better system, either in theory or in practice.

Next up: The Executive Branch.

In The Beginning...

I'm sure that all of you regular readers have done your homework by now and have read through your own personal copies of the Constitution.  For those of you more casual readers, in case you haven't done so, don't worry - I'm not going to reprint it all here!  I have, however, come to the realization that for a blog about the Constitution, I've actually written comparatively little about the document itself - its structure and content and meaning.  So, beginning with this post, and continuing until we've covered it all, I want to go through the Constitution, section by section, just to give us all a reminder of what is in it, and just as importantly, what is not.

Today, we'll just focus on the Preamble.  I'm sure many of you, like me, had to memorize this in junior high history class and recite it to the teacher in order to earn a good grade for this part of the curriculum (thank you, Mr. Marson!).  Even if we had little understanding of words like "posterity", it was a nice way to introduce at least the basic idea behind the Constitution.  For refresher purposes:

"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."

So, what does this little paragraph mean?  Let's look at it, a little bit at a time:

"We the People of the United States" - this is who is making it happen.  Not a king or emperor, not an already-established government or parliament.  Not some upper-class, out-of touch group of aristocrats.  We, the people, as represented by those chosen to participate in the Constitutional Convention.

"In order to form a more perfect Union" - notice, it's not "to form a perfect union", merely "a more perfect union", on other words, better than what we have now.  The original mission of the convention was to update and modify the Articles of Confederation.  They knew that the Articles (like the Articles of Association before it) were inadequate for the maintenance of the fledgling nation.  Ultimately, of course, they scrapped that idea and wrote an entirely new plan.

"Establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty" - they are laying out what they believe are the fundamental responsibilities of a national, or federal, government.  They see its role as limited and general, with very few specific things it can or should do.  Certainly, each of these items can be interpreted to mean much larger things.  For example, FDR's New Deal or LBJ's Great Society can be seen, perhaps, as falling under the "promote the general welfare" clause, though I suspect the Founders did not envision that phrase to necessarily mean an enormous "welfare state".  Likewise, "ensure domestic tranquility" can be seen by some as authorizing an overbearing police state, if condition warrant, though thankfully, such people are rare.  And "justice" means many things to many people - is it "economic justice" (a popular notion these days, as it was during the Depression), and how does one define economic justice?  Or is it a more general notion of fair play and equal protection under the law?  Finally, what does "secure the blessings of liberty" actually mean?  Is it a combination of all the previous phrases, or is it something more esoteric?

"For ourselves and our posterity" - the Founders were looking forward.  Their hope, though they could not be sure of it at the time, was that the new nation would survive and prosper long after they were gone.  Thankfully, they were right!

"Do ordain and establish this Constitution for The United States of America" - again, emphasizing the name of this new nation and declaring it in fact established as the Constitution is ratified.

Coming up - the Articles of the Constitution.  Stay tuned.