The Amendments - Introduction

After a contentious battle to ratify the Constitution, hard questions remained in the minds of many, specifically the Anti-Federalists, led by Patrick Henry, Samuel Adams, Richard Henry Lee and Elbridge Gerry.  They were wary of a too-powerful federal government and wanted assurances that certain personal freedoms, liberties and rights would be protected.

Federalists, on the other hand, notably James Madison and Alexander Hamilton, did not initially see the need for a "bill of rights", being convinced that the states themselves would be sufficient to check the power of the federal government.

Several states, including Massachusetts, New York and Virginia, linked their ratification votes to the inclusion of such a bill, and eventually many of the Federalists came to support it.  In the first Congress, James Madison himself became the primary author of the set of amendments.  After another lengthy set of debates, where amendments were added, deleted and amended themselves, the final bill of rights was announced by Secretary of State Jefferson as being adopted as a set of ten on March 1, 1972.

We have talked before here about the necessity of amending the Constitution and here about the process for doing it.  Let's talk now about the actual intent and content of Amendments that have been ratified.

Generally, the main body of the Constitution is not terribly controversial (thought the every-four-years exercise of presidential elections always re-ignites the debate over the Electoral College, discussed here.  The amendments, however, and the first ten in particular, continue to plague us with controversy.  I would venture to say that Amendments 1, 2, 4, 5 and 10 have sparked more debate, follow-on legislation and lawsuits than the rest of the Constitution put together.  I have no empirical data to back up that claim, but it sure seems like it.

Before we dive into the specifics of each amendment (read the Bill of Rights here now - it'll only take a couple minutes), let's consider a couple big questions to keep in mind as we discuss them:

1.  Is there an absolute right to anything, without restriction?

2. Does the Constitution (and therefore, the federal governments) grant rights, or is its function to protect them?  There is a critical difference between the two ideas.

Discuss.

Next up - The First Amendment

Debt, Supremacy, Oaths and Ratification

Article VI of the Constitution, called "Debt, Supremacy and Oaths", is mostly an administrative, rather than structural, section.  Put simply, the first paragraph declares that all debts and contracts entered into by the Confederation shall also be valid with the newly-formed United States, ensuring those countries and other entities to which the former Confederation owed money and other obligations would have their conditions met.

The second paragraph declares that the Constitution, along with any amendments or treaties made under its auspices, shall be the supreme law of the land, not to be overruled by any state or local law, and that all judges and justices must defer to the Constitution at all times.

Finally, the third paragraph obliges all elected officials "...shall be bound by Oath or Affirmation, to support this Constitution..." and that no religious test of  any sort shall be administered or required for anyone to hold elected office or position of public trust.

Article VII sets forth the conditions for ratification - nine of the states must ratify it in order for the Constitution to take effect, and essentially, for the United States to in fact exist as a new nation.  On September 17, 1787, the Constitutional Convention concluded with the signing of the document by the delegates, and the ratification process was set in motion.  Almost immediately, The Federalist Papers began to appear, authored by Alexander Hamilton, John Jay, and this blog's namesake, James Madison.  By December of 1787, three states had ratified the Constitution already (DE, PA, NJ) and by early February, 1788, three more (GA, CT, MA - and Massachusetts by an extremely narrow margin! ).  In April and May, MD and SC added their approval and NH's vote in June made the required nine states to ratify.  VA and NY, both in excruciatingly tight votes, came on board in June and July.  NC voted to ratify over a year later, in November of 1789 and RI, by a margin of two votes, weighed in the next year, in May of 1790.  Finally, in January, 1781, VT made it unanimous.

We had a nation, all the states were on board (to one degree of enthusiasm or another), and George Washington had been installed as the first president.  So, the job was now finished and everyone was happy, right?  Not so fast - the Bill of Rights was far from a done deal.

Up next - the Amendments to the Constitution...

Happy Birthday To Me...and Us!

I'm here in Philadelphia on July 3rd - almost perfect timing!  But it's a good time to split the difference and wish America a Happy Birthday tomorrow (July 4th) and this blog a Happy Birthday yesterday (July 2nd).  The purist in me still maintains that our country's "real" birthday is September 17 (the date the Constitution was adopted and sent to the states for ratification).  Still, the Fourth of July is as good a date to celebrate as any.  I'd encourage all of you to read the Declaration of Independence today, just to remind yourself what it says and why it was written.  Here's a link for you if you don't have your own copy handy:

http://www.archives.gov/exhibits/charters/declaration_transcript.html

I know this is a blog primarily about the Constitution, but the Declaration was the first serious "shot across the bow" at the British and helped give the colonists the rallying point (not to mention some good talking points!) for the Revolution.  It really didn't establish anything in terms of a new government, but was simply what it says - a declaration "That these United Colonies are, and of Right ought to be Free and Independent States".  Think back to the immortal words Jefferson wrote:

We hold these truths to be self-evident, that all men are created equal..

...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...

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Excuse me, it just gives me shivers, reading such brilliant work...

So, this Independence Day (not merely "The Fourth of July"), think back to what the Founders were going through - their thoughts and feelings and the way they lived.  Then think ahead to the government they established a very tough eleven years later with the Constitution.  It's easy to get bogged down in the day-to-day nonsense we all too often see from our government at all levels.  Still, show me a better, longer lasting and more durable system.  Enjoy it and celebrate it today!

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.