Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence

by Richard Beeman

  THE CONSTITUTION OF THE UNITED STATES

  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.

  The preamble to the Constitution is a statement of aspiration—a promise to Americans about the things that the new federal government intended to achieve for “We the People of the United States.” Some of the specific objects of government stated in the preamble—the establishment of justice, insuring the peaceful operation of society, and providing for the common defense—had long been understood to be the primary responsibilities of any government. The promises to promote the general welfare and to “secure the Blessings of Liberty” are more open-ended, suggesting that the government’s responsibilities extend not merely to providing essential services but also to benevolent oversight of the polity. Although the words of the preamble do not carry the force of law, they have had substantial rhetorical power over the life of the Constitution.

  ARTICLE I

  SECTION 1

  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.

  It is no accident that the first article of the Constitution deals with the structure and powers of the Congress, for virtually all of those who took part in the drafting of the Constitution considered the legislative branch to be the most important and, rightfully, the most powerful of the three branches of government.

  There was broad agreement among the framers of the Constitution that the Congress should consist of a bicameral legislature. The House of Representatives, the “lower house,” was conceived to be the “great repository” of the people of the nation at large, while the Senate, “the upper house,” was to be composed of only the most knowledgeable, well-educated, and virtuous, who could be relied upon to act as a moderating influence on the whims of the people at large.

  SECTION 2

  The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

  No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

  Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

  When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

  The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

  The framers of the Constitution stipulated that members of the House of Representatives, the people’s house, should serve relatively short terms of only two years, after which they would be required to seek reelection should they wish to continue to represent their state. The delegates could not agree on who should be allowed to vote for members of the House of Representatives, so they left the matter of voting requirements up to the state legislatures, which had up to that time set the qualifications for voters in each of the states. In 1787 all the states except New Jersey (which briefly permitted females to vote) limited the franchise to “free men” (a term usually interpreted to exclude free blacks) and most required that voters own at least some form of property. By the 1820s, most states had opened up the franchise to free white males regardless of whether they owned property. Subsequent amendments—the Fifteenth, prohibiting the denial of the franchise on account of “race, color, or previous condition of servitude”; the Nineteenth, enfranchising women; and the Twenty-sixth, establishing a uniform voting age of eighteen—served to create a common national standard for voting in federal elections.

  The requirement that members of the House of Representatives reside in the state in which they were chosen reflected the belief that representatives, if they are to serve the people who elect them, must have close and meaningful ties to the communities in which those people live.

  The “three fifths of all other Persons” referred to in this section is the result of the infamous “three-fifths compromise,” in which slaves, though not mentioned by name, were to be counted as three-fifths of a person in the apportionment of representation in the House of Representatives as well as in the apportioning of the amount of direct taxes to be paid by each state. The three-fifths ratio was a purely arbitrary one. It was a consequence of a fundamental contradiction that the Convention delegates were unable to resolve: slaves were human beings, but by the laws of most states they were also regarded as property. The passage of the Thirteenth Amendment abolishing slavery rendered this portion of Article I, Section 2 null and void.

  Although the original Constitution laid down a formula for representation based on population (and “three fifths of all other Persons”), none of the delegates to the 1787 Convention really knew what the actual population of each of the states was. The initial apportionment of representation was merely a guess, but the Constitution did provide for a census of the population to be taken every ten years, a practice that began in 1790 and has continued to the present day.

  The “sole Power of Impeachment” referred only to the first step—the equivalent of an indictment or bringing to trial—in the removal of a federal official. The grounds for impeachment set down in Article II, Section 4—“Treason, Bribery, or other High Crimes and Misdemeanors”—have been subject to widely varying interpretations.

  SECTION 3

  The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

  Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

  No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

  The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

  The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

  The Senate
shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

  Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

  The Senate, as the “upper house,” was conceived as a more deliberative body, whose members would be comprised of the most virtuous and knowledgeable citizens in the land. The framers of the Constitution believed that Senators should therefore serve longer terms in order that they might be better insulated from the immediate pressures of public opinion. One of the means by which Senators would be protected from popular whims was to provide for an indirect method for their election, with the legislatures of the individual states being given the power over such election. The provision for staggered terms of service was designed to prevent sudden, convulsive turnover in the membership of the Senate.

  Consistent with the view that the members of the Senate were expected to possess superior knowledge and experience, the minimum age of Senators was set at thirty, and the length of time after becoming a citizen nine years, as opposed to twenty-five years of age and seven years of citizenship for members of the House of Representatives.

  The framers of the Constitution were aware of the necessity of providing for a vice president, who would assume the president’s duties in the event of his death, disability, or removal, but they had a hard time thinking of any other functions the vice president might perform. The provision of Article I, Section 2, designating the vice president as the presiding officer of the Senate, is the only item in the Constitution that speaks to the limited official duties of the vice president.

  The Senate, as the more deliberative of the two legislative bodies, was given the responsibility of trying impeachment cases. Seeking to reinforce the principle of separation of powers, the Constitution designates the chief justice of the U.S. Supreme Court as the person who would preside over an impeachment trial of the president.

  SECTION 4

  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.

  The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

  As was the case in the instance of voting requirements, the framers of the Constitution were content to leave the matter of when congressional elections should be held to the state governments.

  The stipulation that Congress should assemble on the first Monday in December was altered by the passage of the Twentieth Amendment in 1933. The practical effect of the original terms of Article I, Section 4, was to delay the seating of new members of Congress until March, creating a period of months during which a lame-duck Congress would be in session. Improvements in transportation and communications made it possible, and desirable, to move the stipulated time of the meeting of Congress to January 3.

  SECTION 5

  Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

  Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

  Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

  Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

  The items in Article I, Section 5, giving each branch of the legislature control over its own proceedings, reflect a long-standing desire, dating back to the gradual evolution of the English parliament as a legislative body with powers independent of those of the king, to preserve the independence of the legislature from executive encroachment. This section of the Constitution also encourages openness in the publication and dissemination of the proceedings of Congress.

  SECTION 6

  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

  No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

  The provision for paying salaries to members of Congress provoked some disagreement among the delegates, as at least some members of the Constitutional Convention thought that public servants should be virtuous and wealthy “gentlemen” capable of serving in office without the need to seek compensation.

  The provision providing immunity from arrest except in cases of treason, felony, or breach of the peace was another attempt to ensure the independence of members of the legislature, and the provision prohibiting service in other public offices while serving in Congress marked a rejection of practices in the English parliament, where members of Parliament also served as ministers in the king’s cabinet; more generally it reflected a desire to reinforce the principle of separation of powers.

  SECTION 7

  All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

  Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

  Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case
of a Bill.

  The power over the “purse” was considered the most important of the powers that any government could wield; indeed it was the British parliament’s attempt to tax the colonies without their consent that precipitated the American Revolution. The decision to give the federal government the power to levy taxes—a power denied to the government under the Articles of Confederation—may well have been the most important one made by the delegates to the Convention. It is noteworthy, however, that they gave the “people’s body,” the House of Representatives, the power to originate revenue bills.

  The next, lengthy portion of Article I, Section 7, is one of the hallmarks of the system of separation of powers and checks and balances. It spells out the process by which a legislative proposal must pass both houses of Congress and then receive the assent of the president before it can become law. It provides for a limited executive veto over congressional legislation but gives to the Congress the power, if it can muster a two-thirds majority, to override a presidential veto.

  SECTION 8

  The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States:

  To Borrow Money on the credit of the United States;

  To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

  To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;