Keys to Understanding the Constitution

Important Points to Remember

Every American should read the United States Constitution at least once and probably more often. Students are often surprised at what they find there, and are often equally surprised by what they do not find. Following the articles creating the three branches of government, the Constitution does cover other important details, such as the fact that the laws of the various states should be recognized by other states, and that every state is required to have a republican, that is representative, form of government.

The Preamble

Most preambles to documents or public pronouncements are designed merely to set the tone and did not contain any significant content. “Dearly beloved, we are gathered together … ” And so on. The opening words of the Declaration of Independence that contain the phrase "all men are created equal," are a statement of philosophy. The specifics come later.

The preamble to the Constitution, however, not only has significant meaning; it has actually been used by the Supreme Court in deciding a case. The opening phrase, “We the people,” instantly caught the attention of anti-Federalists like Patrick Henry and Samuel Adams. It was an instant declaration that the document being transmitted was “of the people, by the people, and for the people.” Patrick Henry and Samuel Adams would have preferred an opening that recognized the primacy of the states.

The Articles of Confederation had concluded with the statement, “and the union shall be perpetual.” Clearly that meant that the United States were to be a permanent union. The preamble to the Constitution states, "in Order to form a more perfect Union." In 1869 the Supreme Court cited those words as evidence that secession was unconstitutional. In other cases, the phrase to “promote the general welfare” was used in opposition to actions that would not apply equally to all the states. The preamble, in other words, is an important part of the Constitution.

Individual Rights. The first ten amendments to the Constitution are known as the “Bill of Rights.” They were actually additions that the states felt should have been included in the original document. Several basic rights were, in fact, included in the original document. For example, Article I, Section 9, which deals with the powers of Congress, states:

  • 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.
  • No Bill of Attainder or ex post facto Law shall be passed.

The Privilege of the Writ of Habeas Corpus (literally, “you have the body”) is designed to ensure that a person being detained can demand to be brought before a judge to have his or her situation reviewed. It is designed to prevent unlawful detention or imprisonment. It is the same principle that requires that a person arrested must be arraigned before a judge to determine the person's disposition, such as being held on bail, released, and so on. It means that police cannot arrest someone and hold him or her indefinitely without the person's case being heard before a magistrate. It stems from situations in history prior to the revolutionary era when people could be imprisoned, perhaps by a king or queen, for political purposes, and so on.

A bill of attainder is a law which is passed that declares a person or persons guilty of a crime, even though they have not been given a trial. An ex post facto law is a law that deems an action a criminal offence, even when the act was committed prior to passage. It other words, it makes a person guilty of something retroactively. Such acts and laws had been used for political purposes.

Constitutional Amendments

The Constitution went into effect in 1879, and since that time it has been amended 27 times. However, it is important to note that ten of those amendments, the “Bill of Rights,” were additions that the states felt should have been included in the original document. Several basic rights were, in fact, included in the original document. For example, Article I, Section 9, which deals with the powers of Congress, states:

  • 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.
  • No Bill of Attainder or ex post facto Law shall be passed.

The Privilege of the Writ of Habeas Corpus (literally, “you have the body”) is designed to ensure that a person being detained can demand to be brought before a judge to have his or her situation reviewed. It is designed to prevent unlawful detention or imprisonment. It is the same principle that requires that a person arrested must be arraigned before a judge to determine the person's disposition, such as being held on bail, released, and so on. It means that police cannot arrest someone and hold him or her indefinitely without the person's case being heard before a magistrate. It stems from situations in history prior to the revolutionary era when people could be imprisoned, perhaps by a king or queen, for political purposes, and so on.

A bill of attainder is a law which is passed that declares a person or persons guilty of a crime, even tough they have not been given a trial. An ex post facto law is a law that deems an action a criminal offence, even when the act was committed prior to passage. It other words, it makes a person guilty of something retroactively. Such acts and laws had been used for political purposes.

The Amendment Process.

The Constitution has been amended 27 times, not very often considering that the document is over 220 years old. In fact, it has been amended fewer times than that. The first 10 amendments are the Bill of Rights, and they simply added protections to the rights of the people and did not in any way change the basic Constitution. Two amendments—prohibition and repeal—cancelled each other out. Several amendments modified voting procedures and other relatively unimportant issues. None of the amendments changed the basic functioning of the government . Six amendments – the 13th through 17th and the 19th – made significant changes. Those amendments ended slavery, redefined citizenship and suffrage rights, allowed the government to collect income taxes, provided for the direct election of Senators by the people and gave women the right to vote.

Additional amendments were proposed but were never passed or ratified. It is important to note that only the Congress and the states are involved in amending the Constitution. The president has no function in the amendment process, nor does the Supreme Court. The greatest hurdle to amending the Constitution is the requirement that any amendment must be ratified by three quarters of the states in order to become valid.

The most interesting amendment might be the 27th. It was proposed during the first Congress in 1789 but was not ratified by the necessary number of states. Over the next two hundred years two more states did ratify, but there was no follow up. Then, in 1982, a student at the University of Texas wrote a paper about it and pushed for completion of the process. The amendment was finally declared ratified 202 years after it was first proposed.

Voting.

The original unamended Constitution did not give any person or group the right to vote. The president was to be elected by the Electoral College, and originally the electors were chosen by the state legislators. It was not until the 1820s that the people started electing presidential electors. Senators were also elected by the state legislatures until the 17th Amendment was ratified in 1913. Members of the House of Representatives were elected by the people, but Article I states that people entitled to vote for Congressmen shall have "the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." That means that the states have the right to determine who gets to vote in Congressional elections. Later amendments and court decisions have changed all that. Article IV, Section 4, however, states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” A republican government is composed of the people's elected representatives, meaning that the nation shall be governed by their elected representatives. At the time the Constitution was written, that was a revolutionary doctrine. Full-fledged democracy was still decades off.

Separation of Powers.

At the time the Constitution was written, the nation was skeptical of giving too much power to the central government. The framers of the Constitution, however, led by Washington, Madison, Hamilton, Edmund Randolph, and a few others felt that a strong national authority was necessary to preserve American democracy. To provide safeguards against the AP views of national power however they went out of their way to divide the government into three separate components: the executive, legislative, and judicial branches.

Only Congress has the power to pass laws, but they may be vetoed by the president. The president's veto, however, may be over ridden by a super majority of Congress. The president is commander-in-chief of the armed forces, but only Congress can declare war. The president appoints his own department heads, but they must be approved by the Senate. The president has the power to make treaties, but they must be ratified by the Senate. The Supreme Court is the final arbiter on questions of the constitutionality of laws passed by Congress, although the court can only become involved when a case involving constitutional rights comes before it, generally on appeal. Than Congress has the power to impeach the president and other officers as well as members of the courts, who may be removed from office upon conviction. The Supreme Court may direct that certain actions be carried out by other branches of government, but it has no power to enforce those decisions. The president, however, is charged with seeing to it that the laws are faithfully executed.

Over the course of American history, the balance of power between the president and Congress has swung back and forth. For much of the 19th century, Congress was the dominant force in the national government, with this exceptions occurring during the presidencies of Andrew Jackson and Abraham Lincoln. Throughout the 20th century, the office of the president, beginning with the Theodore Roosevelt administration, gradually gained more power. Presidents Franklin Roosevelt, Lyndon B Johnson, and Ronald Reagan were all forceful presidents able to get Congress to accept many of their policies. Television and other public media have tended to enhance the persuasive powers of the president, but Congress has by no means deferred uncritically to the president's authority.

Although our Constitution remains essentially intact in terms of the functioning of government, relations among the different branches and between the national government and the states as well as between both those entities and the American people has continued to evolve and will no doubt continue to do so in the future.

Powers and Limitations. The Constitution is explicit in the powers granted to Congress as well as limitations on those powers by Congress and the states. On the other hand, the exact language is sometimes vague, as in the clause “necessary and proper.” Many hours of argument have been devoted to the question of exactly what “necessary” means. In some cases those arguments have gone all the way to the Supreme Court.

The complete list of powers is contained in Article I, Section 8. In addition to the obvious powers to lay and collect taxes, contract and pay debts and provide for the defense of the nation, Congress is empowered, among other things, to control the money supply; control interstate commerce; declare war; create and support the armed forces, including the state militia; to govern the District of Columbia; and to create “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” (See above.)

Limitations on Congress include the aforementioned suspension of habeas corpus, bills of attainder and ex post facto laws, and any taxes not proportional to the state populations according to the census. Article I, Section 9 also states that all duties shall be applied equally across the states, and interstate duties are prohibited.

States are limited from conducting their own foreign-policy and from creating their own money. They are not allowed to tax each other's commerce nor are they allowed to pass any laws “impairing the obligation of Contracts.” The same prohibitions against ex post facto laws, etc., applied to the states as to the Congress. It should be noted that prior to the Civil War, the Bill of Rights was not deemed to apply to the states. It was only after passage of the 14th amendment that all those personal rights were deemed protected at the state as well as at the national level.

How Laws are Made. Article I, Section I, states: 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. The Constitution goes into considerable detail on that subject. The most important function of Congress is the passing of bills that become laws when signed by the president. The process involves both the Senate and the House of Representatives as well as the president, and it is important to note from the beginning that a single bill must be passed by the House and the Senate before it can become a law. There are no exceptions.

The bill becomes law when the president signs it, which he must do within 10 days of receiving it. That is the most common course.  If the president fails to sign a bill within 10 days of when it is presented, the bill becomes a law even without his signature. If Congress adjourns within that 10 days, however, and the president has not signed the bill, then it is considered to have been vetoed. This process is called the “pocket veto”; historically, it has occurred only rarely.

Regardless of what happens during this entire process, the bill, as finally passed by both houses, either becomes a law or it doesn't. If the president vetoes the bill, he sends it back to Congress with his objections. They can then override his veto by a vote of two thirds of both houses, having considered the president's objections. All they can do, however, is either override he veto or not. If they decide to amend the bill to meet the president's objections, then it becomes a new bill and the process starts over.

Bills start either as House resolutions or Senate resolutions, and they generally go through a complex process involving committee hearings, testimony from interested cabinet departments, and a period of passing back and forth. Once the two houses get close to agreement on a bill, it is generally sent to a joint committee from both houses whose job it is to reconcile the differences. The process is frequently lengthy, and it is common for bills to be in the process of finalization from one congressional session to the next. Sometimes bills can never be brought to agreement, and they are said to die in committee; sometimes they fail to pass on the floor of the House or Senate. If you review Article 1, Section 7, you will see that the process appears quite simple. In most cases, it is anything but that.

It is also worth noting that the Supreme Court does not become involved in the legislative process at all. The only way in which the Supreme Court can rule on the constitutionality of a law is if the law is challenged in a court, and that challenge is appealed to the Supreme Court. Then and only then can the court overturned a statute passed by Congress. The process, which began with Chief Justice John Marshall, is called judicial review. (It is considered improper for justices to comment on the constitutionality of a law until it arises as part of a case before the Court.)

Amendments. It is important to remember that in amending the Constitution, the president is not involved in any way. The simplest reason for that is that the process of amending the Constitution, which requires the ratification of three quarters of the states, would almost certainly take longer than any presidential term. Therefore it would make no sense to require the president to sign or approve a constitutional amendment. The Constitution was made by "we the people." It can only be amended by the people.

SUMMARY. Catherine Drinker Bowen was wise in choosing as the title of her classic work “Miracle at Philadelphia.” If not a miracle, the outcome of the convention certainly was improbable. Nobody was completely happy with the results. Benjamin Franklin expressed it best when he revealed his doubts about the work on the last day of the convention. (See appendix.) On the other hand, the document has endured for well over two centuries and has weathered severe storms.

The road to Philadelphia through Mount Vernon and Annapolis was long and arduous. The general discontent in the country, underscored by Daniel Shays’s rebellion in Massachusetts, made it imperative that a firm structure be created. In the end, states’ rights were acknowledged, even as a firm national power came into existence. Compromises were necessary to achieve the result, and they were arrived at with pains. Although Madison was surrounded by men of superior intellect and experience, his role as “Father of the Constitution” is a well-deserved epithet. People may regret that more was not done for women, or that slavery was not more firmly addressed, but the groundwork was laid so that those issues could be addressed, as indeed they were.

Constitution Home Federal Age Home Updated December 16, 2016