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

by Richard Beeman

  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.

  The first provision of Article IV, Section 2, is a cornerstone of a common standard for equal protection under the law for all American citizens. It gives to citizens of every state all the legal protections enjoyed by citizens of other states if they should be residing in or traveling through one of those other states. This means, for example, that New Jersey cannot give citizens of that state one set of rights while at the same time denying a citizen of New York living or working in New Jersey any of those same rights. Therefore New Jersey cannot impose higher taxes on New Yorkers working in New Jersey than it imposes on its own residents.

  The other side of the “privileges and immunity” clause is that which requires states to respect the laws of other states aimed at punishing persons charged with “Treason, Felony, or other Crime” by extraditing (delivering up) such persons to the state having jurisdiction over the crime.

  The final part of Article IV, Section 2, may well be the most reprehensible provision in the original U.S. Constitution. It requires that the governments and citizens of every state in the union deliver up all persons “held to Service or Labour in one State, under the Laws thereof, escaping into another.” Although nowhere mentioned, those persons “held to Service or Labour” were slaves, and by requiring that citizens and states where slavery was not permitted cooperate with citizens and governments in slave-owning states in the return of their slaves, it made all Americans actively complicit in protecting the institution of slavery. This provision was rendered null and void by the passage of the Thirteenth Amendment, which abolished slavery.

  SECTION 3

  New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

  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.

  In 1787 the framers of the Constitution were mindful that, in addition to the thirteen original states, America consisted of a vast territory between the borders of those states and the Mississippi River. Article IV, Section 3, grants to Congress the authority to admit new states into the union on an equal basis with existing states. However, individual states are not permitted either to divide themselves into separate states (for example, California, by the terms of the Constitution, is not permitted to divide itself into two states; e.g., Northern California and Southern California), nor is it possible for two or more states (for example, Rhode Island and Connecticut) to combine their territories into a single state without the consent both of the legislatures of the states involved and of Congress.

  The second part of Article IV, Section 3, gives to Congress considerable leeway as to what it might do in territories that have not achieved the status of a state within the federal union. Under this provision, Congress was able to grant independence to the Philippines, which was once a territory of the United States, and to extend certain rights (for example, the right of U.S. citizenship, although not the right to vote in presidential elections) to territories like Puerto Rico. This congressional jurisdiction also extends to the District of Columbia, which, though its citizens enjoy most of the rights of citizens of the fifty American states, is not at present fully represented in Congress.

  SECTION 4

  The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

  If there is a single idea expressed in Section 4 of Article IV on which all the framers of the Constitution agreed, it was that America should have a republican form of government, both in the polities of the individual states and in the new federal structure that they were creating. However, there were probably as many variations in the meaning of the word “republican” as there were delegates, ranging from those who wanted a democratic government directly responsive to the people to those who wished for a more elitist government, responsible to—but somewhat removed from—the people at large. The two core elements of republicanism on which all delegates could agree were that the government should be, either directly or indirectly, “representative” in character and that its officeholders should not base their claims to public office on hereditary privilege.

  The second item in this section of Article IV was a direct response to one of the events that precipitated the calling of a Constitutional Convention: an armed uprising of farmers in western Massachusetts, known as Shays’ Rebellion. The Constitution promises states protection against both internal uprisings and invasions from abroad but at the same time assures the states that the government will not interfere in their defense unless asked to do so by officials in the states themselves.

  ARTICLE V

  The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

  The Constitutional Convention of 1787 was called together to amend the Articles of Confederation, the existing frame of government that sought to create a union among the thirteen independent and sovereign states. By the terms of the Articles of Confederation, unanimous approval of all of the state legislatures was required to amend any major feature of that frame of government. That provision proved to be fatally flawed, for it soon became apparent that it was impossible to attain unanimity on any matter of consequence. The delegates to the Constitutional Convention, having already gone forward not merely with amendments to the Articles of Confederation but rather with a decision to scrap the Articles altogether and create a vastly strengthened central government, felt no compunctions about changing the formula for amendment, providing two different routes by which the new Constitution could be amended. Amendments can be proposed either by a two-thirds vote of both houses of Congress or when two-thirds of the legislatures of the states agree on calling a national convention for the purpose of proposing amendments. Amendments proposed by either method must, in order to become part of the Constitution, receive the approval of three-quarters of the state legislatures or be approved by specially called conventions in at least three-quarters of the states. Most of the amendments to the Constitution have been first proposed by Congress and then adopted by three-quarters of the state legislatures, although the Twenty-first Amendment, repealing prohibition, was adopted by conventions in three-quarters of the states.

  The amendment process is an arduous one, and for that reason, relatively few amendments have been passed during the more than two hundred years since the Constitution was adopted, making it one of the most concise written constitutions in the world. Ten of the amendments—those that we consider to be part of the Bill of Rights—were proposed by the First Congress of the United States and quick
ly adopted by the necessary number of states within a few years after the new government commenced operation. During the whole of the nineteenth century, only five amendments were adopted, three of them coming in the immediate aftermath of the Civil War and dealing with the rights of newly freed slaves. Twelve amendments were passed in the twentieth century. Among the most important were those authorizing a federal income tax, giving women a constitutional right to vote, providing for direct election of United States Senators, and guaranteeing all American citizens eighteen years or older the right to vote.

  Article V also mentions three specific instances in which the Constitution is not subject to amendment: the provision prohibiting legislation affecting the international slave trade until 1808, the prohibition against direct taxation unless apportioned according to population, and the provision guaranteeing each state equal representation in the United States Senate.

  ARTICLE VI

  All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

  At the time the Constitution was created, the Continental government, the individual governments of the states, and many private citizens had all accumulated substantial debt obligations. The first item in Article VI was designed to ensure the sanctity of those debt obligations.

  Article VI contains the so-called federal supremacy clause, the assertion that in cases of conflict between a state law and a federal law, the federal law takes precedence. Over the course of the nation’s history, there have been hundreds of cases where the overlapping jurisdictions of the states and the federal government (for example, in matters relating to the regulation of commerce, industry, or environmental policy) have led to lawsuits. In general, although not uniformly, the federal supremacy clause has worked to incline courts to side with the federal government.

  The final item in Article VI requires officials in both the state and federal governments to uphold the Constitution of the United States. This item is also the only place in the body of the Constitution where religion is explicitly mentioned. It is notable that this sole mention of religion reinforces the principle of separation of church and state, decreeing that there shall be no religious test for holding public office.

  ARTICLE VII

  The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

  Having exceeded their instructions from the Continental Congress by scrapping the Articles of Confederation and drafting a wholly new frame of government, the framers of the Constitution also ignored the provision in the Articles of Confederation requiring unanimous approval of the state legislatures in order to amend that frame of government. The decision to allow the Constitution to go into operation after the approval of only nine of the thirteen states made it much easier to secure ratification of the document. Moreover, the device of submitting the document for consideration by specially called state conventions rather than by state legislatures avoided some of the natural tendencies of state legislators to protect their powers and interests. Most important though, the use of conventions, elected directly by the people of the states and called together solely for the purpose of considering the new plan of union, signified that the proposed new government was intended to be a government founded on “We the People of the United States,” rather than merely on “we the states.”

  Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have here-unto subscribed our Names.

  Attest William Jackson, Secretary

  Go. Washington, President and deputy from Virginia

  There were forty-one delegates present in the Assembly Room of the Pennsylvania State House on September 17, 1787. Thirty-eight of the delegates in the room signed the completed Constitution, with George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts refusing to add their assent. A forty-second delegate, John Dickinson of Delaware, had been suffering from debilitating headaches and went home a few days earlier, but he asked his Delaware colleague George Read to sign the document for him, bringing the total number of signatories to thirty-nine.

  DELAWARE

  Geo. Read

  Gunning Bedford Jr.

  John Dickinson

  Richard Bassett

  Jaco. Broom

  MARYLAND

  James McHenry

  Dan of St. Thos. Jenifer

  Danl. Carroll

  VIRGINIA

  John Blair

  James Madison Jr.

  NORTH CAROLINA

  Wm. Blount

  Richd. Dobbs Spaight

  Hu Williamson

  SOUTH CAROLINA

  J. Rutledge

  Charles Cotesworth Pinckney

  Charles Pinckney

  Pierce Butler

  GEORGIA

  William Few

  Abr. Baldwin

  NEW HAMPSHIRE

  John Langdon

  Nicholas Gilman

  MASSACHUSETTS

  Nathaniel Gorham

  Rufus King

  CONNECTICUT

  Wm. Saml. Johnson

  Roger Sherman

  NEW YORK

  Alexander Hamilton

  NEW JERSEY

  Wil. Livingston

  David Brearley

  Wm. Paterson

  Jona. Dayton

  PENNSYLVANIA

  B. Franklin

  Thomas Mifflin

  Robt. Morris

  Geo. Clymer

  Thos. FitzSimons

  Jared Ingersoll

  James Wilson

  Gouv. Morris

  AMENDMENTS TO THE CONSTITUTION

  The framers of the original Constitution assumed that it was not necessary to include a “bill of rights” in their proposed plan for the union. The ostensible reason for the omission was that most of the state constitutions already possessed bills of rights, and therefore the inclusion of a bill of rights in the federal Constitution would be redundant. Another, more compelling reason may have been that when the idea of a bill of rights was raised in early September by Virginia delegate George Mason, the members of the Convention, tired and desperate to return home, feared that a debate on the subject might extend their stay in Philadelphia by many weeks, if not months.

  The omission of a bill of rights proved to be both a tactical and strategic error. When the Constitution was submitted to the states for ratification, many of the critics of the Constitution pointed to the absence of a bill of rights as a fatal flaw in the document. As a consequence, the supporters of the Constitution, who called themselves Federalists, came forward with a promise to make the drafting of a bill of rights the first item of business when the new Congress convened after the ratification of the Constitution. On September 25, 1789, Congress presented to the states twelve amendments, ten of which received the necessary approval of three-quarters of the states on December 15, 1791. It is those ten amendments that are commonly referred to as the Bill of Rights. One of the two amendments not approved, dealing with congr
essional representation, has not proved of any significance in the operation of the Constitution. The other, dealing with congressional salaries, was eventually incorporated into the Twenty-seventh Amendment.

  AMENDMENT I (1791)

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  The First Amendment is remarkably brief considering the breadth of protection that it has provided. The section of the amendment prohibiting Congress from making any law “respecting an establishment of religion” is a cornerstone of the American notion of separation of church and state, and the guarantee of “free exercise” of religion has proven a powerful means by which people have been allowed to express their religious beliefs without fear of government reprisal. Similarly, the guarantees of freedom of speech, of the press, and of the “right of the people peaceably to assemble,” as well as the right to petition their government (and by implication to protest the actions of that government) are at the heart of the American constitutional definition of liberty.

  Those freedoms have, however, been subject to some restrictions. Until the early twentieth century, the First Amendment applied only to the actions of the federal government; state governments were free to pass their own laws contravening some of the provisions of the First Amendment. For example, the state of Massachusetts continued to accord the Congregational Church special privileges and did not move to explicitly separate church and state until 1833. Moreover, throughout the nineteenth century, and sometimes into the twentieth, state governments have enacted laws placing restrictions on speech, freedom of the press, and on certain forms of public assembly. It was only in the twentieth century, through application of the “incorporation doctrine,” that the Fourteenth Amendment’s guarantee that states must not “abridge the privileges or immunities of citizens of the United States,” nor deny citizens “equal protection of the laws,” began to obligate state governments to guarantee their residents the same freedoms as those articulated in the First Amendment.