Published in 2013 by Britannica Educational Publishing (a trademark of Encyclopædia Britannica, Inc.) in association with Rosen Educational Services, LLC 29 East 21st Street, New York, NY 10010. Copyright 2013 Encyclopædia Britannica, Inc. Britannica, Encyclopædia Britannica, and the Thistle logo are registered trademarks of Encyclopædia Britannica, Inc. All rights reserved. Rosen Educational Services materials copyright 2013 Rosen Educational Services, LLC. All rights reserved. Distributed exclusively by Rosen Educational Services. For a listing of additional Britannica Educational Publishing titles, call toll free (800) 237-9932. First Edition Britannica Educational Publishing J.E. Luebering: Senior Manager Adam Augustyn: Assistant Manager, Encyclopaedia Britannica Marilyn L. Barton: Senior Coordinator, Production Control Steven Bosco: Director, Editorial Technologies Lisa S. Braucher: Senior Producer and Data Editor Yvette Charboneau: Senior Copy Editor Kathy Nakamura: Manager, Media Acquisition Brian Duignan, Senior Editor, Religion and Philosophy Rosen Educational Services Hope Lourie Killcoyne: Executive Editor Heather Niver-Moore: Editor Nelson Sá: Art Director Cindy Reiman: Photography Manager Brian Garvey: Designer and Cover Design Introduction by Michael Levy Library of Congress Cataloging-in-Publication Data The U.S. Constitution and constitutional law/edited by Brian Duignan. p. cm. (Governance: Power, Politics, and Participation) In association with Britannica Publishing, Rosen Educational Services. Includes bibliographical references and index. ISBN 978-1-61530-755-5 (ebook) 1. Constitutional amendments United States. 2. Constitutional law United States. 3. Constituent power United States. 4. Federal government United States. 5. Civil rights United States. I. Duignan, Brian. II. Title: United States Constitution and constitutional law. KF4557.D85 2013 342.7302 dc23 2011046550 On the cover, pp. i, iii (top) The U.S. Constitution, which took effect in 1789, is now the oldest written constitution in the world. www.istockphoto.com/alan Crosthwaite On the cover (centre), pp. i (centre), iii (centre), 1, 13, 52, 109, 143, 145, 175, 179, 181 Columns that make up the portico of the United States Supreme Court. www.istockphoto. com/jeremy Edwards On the cover, pp. i, iii (bottom) Occupy Wall Street demonstrators, exercising their right to engage in civil disobedience, display signs in New York City s Zuccotti Park, Oct. 7, 2011. A privately-owned public space which became the main staging ground for OWS, the park was cleared of protestors by the New York Police Department Nov. 17, 2011. Hope Lourie Killcoyne
CONTENTS Introduction viii 14 21 23 Chapter 1: The Constitution of the United States 1 The Constitutional Convention 1 Provisions of the Constitution 3 Electoral College 10 Civil Liberties and the Bill of Rights 10 The Fourteenth Amendment: Due Process and Equal Protection Clauses 11 Chapter 2: The Bill of Rights 13 First Amendment 15 Government Actions Subject to the First Amendment 15 Freedoms of Speech, Press, Assembly, and Petition 16 Permissible Restrictions on Expression 17 Obscenity 19 Speech on Goverment Property and in Government-run Institutions 20 Related Rights 21 Free Exercise of Religion 24 The Establishment Clause 26 Second Amendment 29 Supreme Court Interpretations 30 Origins and Historical Antecedents 32 Third Amendment 33 Fourth Amendment 34 Fifth Amendment 36 Grand Juries 36
59 68 80 Double Jeopardy 37 Self-Incrimination 37 Due Process 38 Takings 39 Sixth Amendment 40 Seventh Amendment 43 Eighth Amendment 44 Ninth Amendment 47 Tenth Amendment 49 Chapter 3: The Eleventh through Twenty-seventh Amendments 52 Eleventh Amendment 52 Twelfth Amendment 54 Thirteenth Amendment 57 Fourteenth Amendment 60 Reconstruction 66 Fifteenth Amendment 68 Sixteenth Amendment 70 Seventeenth Amendment 72 Eighteenth Amendment 74 Nineteenth Amendment 77 Twentieth Amendment 81 Twenty-first Amendment 85 Twenty-second Amendment 88 Twenty-third Amendment 91 Twenty-fourth Amendment 94 Twenty-fifth Amendment 96 Twenty-sixth Amendment 102 Twenty-seventh Amendment 104 Chapter 4: Constitutional Law 109 The Nature of Constitutional Law 109 Characteristics of Constitutions 114 Unitary and Federal Systems 119 Devolution 123
113 116 Federal and Semifederal States 124 Unitary States 126 International Unions of States 127 Executives and Legislatures 128 Monarchial Systems 129 Presidential Systems 130 Parliamentary Systems 132 Other Systems 135 Unicameral and Bicameral Legislatures 137 Judicial Review 139 Conclusion 143 Appendix: Text of the U.S. Constitution 145 Constitution of the United States (1787) 145 Article I 145 Article II 153 ArticleIII 156 Article IV 158 ArticleV 159 Article VI 160 Article VII 160 Amendments 162 Notes 173 Glossary 175 Bibliography 179 Index 181 141
CHAPTER 1 The Constitution of the United States The Constitution of the United States is the fundamental law of the U.S. federal system of government and a landmark document of the Western world. The oldest written national constitution in use, the Constitution defines the principal organs of government and their jurisdictions and the basic rights of citizens. the ConstitutionAl Convention The Constitution was written during the summer of 1787 in Philadelphia by 55 delegates to a Constitutional Convention that was called ostensibly to amend the Articles of Confederation (1781 89), the country s first written constitution. The Constitution was the product of political compromise after long and often rancorous debates over issues such as states rights, representation, and slavery. Delegates from small and large states disagreed over whether the number of representatives in the new federal legislature should be the same for each state as was the case under the Articles of Confederation or different depending on a state s population. In addition, some delegates from Northern states sought to abolish slavery or, failing that, to make representation dependent on the size of a state s free population. At the same time, some Southern delegates threatened to abandon the convention if their demands to keep slavery and the slave trade legal and to count slaves for representation purposes were 1
7 The U.S. Constitution and Constitutional Law 7 not met. Eventually the framers resolved their disputes by adopting a proposal put forward by the Connecticut delegation. The Great Compromise, as it came to be known, created a bicameral legislature with a Senate, in which all states would be equally represented, and a House of Representatives, in which representation would be apportioned on the basis of a state s free population plus three-fifths of its slave population. (The inclusion of the slave population was known separately as the three-fifths compromise.) A further compromise on slavery prohibited Congress from banning the importation of slaves until 1808 (Article I, Section 9). After all the disagreements were bridged, the new Constitution was submitted for ratification to the 13 states on Sept. 28, 1787. In 1787 88, in an effort to persuade New York to ratify the Constitution, Alexander Hamilton, John Jay, and James Madison published a series of essays on the Constitution and republican government in New York newspapers. Their work, written under the pseudonym Publius and collected and published in book form as The Federalist (1788), became a classic exposition and defense of the Constitution. In June 1788, after the Constitution had been ratified by nine states (as required by Article VII), Congress set March 4, 1789, as the date for the new government to commence proceedings (the first elections under the Constitution were held late in 1788). Because ratification in many states was contingent on the promised addition of a Bill of Rights, Congress proposed 12 amendments in September 1789; 10 were ratified by the states, and their adoption was certified on Dec. 15, 1791. (One of the original 12 proposed amendments, which prohibited midterm changes in compensation for members of Congress, was ratified in 1992 as the Twentyseventh Amendment. The last one, concerning the ratio of citizens per member of the House of Representatives, has never been adopted.) 2
7 The Constitution of the United States 7 The authors of the Constitution were heavily influenced by the country s experience under the Articles of Confederation, which had attempted to retain as much independence and sovereignty for the states as possible and to assign to the central government only those nationally important functions that the states could not handle individually. But the events of the years 1781 to 1787, including the national government s inability to act during Shays s Rebellion, an armed revolt of debtors in Massachusetts (1786 87), showed that the Articles were unworkable because they deprived the national government of many essential powers, including direct taxation and the ability to regulate interstate commerce. It was hoped that the new Constitution would remedy this problem. The framers of the Constitution were especially concerned with limiting the power of government and securing the liberty of citizens. The doctrine of legislative, executive, and judicial separation of powers, the checks and balances of each branch against the others, and the explicit guarantees of individual liberty were all designed to strike a balance between authority and liberty the central purpose of American constitutional law. Provisions of the Constitution The Constitution concisely organizes the country s basic political institutions. The main text comprises seven articles. Article I vests all legislative powers in the Congress the House of Representatives and the Senate. The Great Compromise stipulated that representation in the House would be based on population, and each state is entitled to two senators. Members of the House serve terms of two years, senators terms of six. Among the powers delegated to Congress are the right to levy taxes, borrow money, regulate interstate commerce, provide for military 3
7 The U.S. Constitution and Constitutional Law 7 The opening lines of Article II on the second page of the Constitution of the United States of America. NARA 4
7 The Constitution of the United States 7 forces, declare war, and determine member seating and rules of procedure. The House initiates impeachment proceedings, and the Senate adjudicates them. Article II vests executive power in the office of the presidency of the United States. The president, selected by an electoral college to serve a four-year term, is given responsibilities common to chief executives, including serving as commander-in-chief of the armed forces, negotiating treaties (two-thirds of the Senate must concur), and granting pardons. The president s vast appointment powers, which include members of the federal judiciary and the cabinet, are subject to the advice and consent (majority approval) of the Senate (Article II, Section 2). Originally presidents were eligible for continual reelection, but the Twenty-second Amendment (1951) later prohibited any person from being elected president more than twice. Although the formal powers of the president are constitutionally quite limited and vague in comparison with those of Congress, a variety of historical and technological factors such as the centralization of power in the executive branch during war and the advent of television have increased the informal responsibilities of the office extensively to embrace other aspects of political leadership, including proposing legislation to Congress. Article III places judicial power in the hands of the courts. The Constitution is interpreted by the courts, and the Supreme Court of the United States is the final court of appeal from the state and lower federal courts. The power of American courts to rule on the constitutionality of laws, known as judicial review, is held by few other courts in the world and is not explicitly granted in the Constitution. The principle of judicial review was first asserted by Supreme Court Chief Justice John Marshall in Marbury v. Madison (1803), when the court ruled that it had the authority to void national or state laws. 5