The Constitution

David Gray Adler

There is no comprehensive grant of a foreign affairs authority in the U.S. Constitution. Rather, the constitutional text carefully enumerates and allocates to the three branches of government a series of specific foreign relations powers, responsibilities, and duties. The relatively lean text, and the fact that it omits mention of particular powers, has no doubt contributed to the constitutional tension, controversy, and occasional crises that have marked American foreign affairs. Nevertheless the Constitution vests in Congress the bulk of the nation's foreign policy powers, a design which assigns to Congress senior status in a partnership with the president for the formulation, management, and conduct of U.S. foreign policy. The constitutional blueprint for foreign relations reflects the Constitutional Convention's conspicuous penchant for collective decision making and its fear of unilateral executive power.

This arrangement, however, has been over-whelmed in the post–Cold War era by sweeping assertions of unilateral presidential power that have laid the basis for a presidential monopoly over foreign affairs and advanced a conception of executive authority so capacious that it has produced a wide gulf between constitutional principle and governmental practice. To understand the constitutional allocation of foreign relations powers, it is necessary to examine the Constitution—the text, its design, the intentions of its Framers, and its history.

CONSTITUTIONAL TEXT

The preference for collective, rather than individual, decision making runs throughout the constitutional provisions that govern foreign policy. In addition to its exclusive jurisdiction over legislation and appropriation, Congress derives broad authority from Article 1, Section 8, to "provide for the Common Defence," to "regulate Commerce with foreign Nations," "to define and punish Piracies and Felonies committed on the high seas … and offences against the Law of Nations," and make rules governing immigration and naturalization. Congress, alone, has the power to "declare War" and to "grant Letters of Marque and Reprisal" as well as to develop rules regarding "Captures on Land and Water." Congress also possesses the authority to raise, support, and maintain an army and navy, to "make Rules" for the regulation and government of the "land and naval Forces" and to call forth "the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." It is also assigned the power and responsibility to organize, arm, discipline, and govern the militia.

As Article 2, Section 2, of the Constitution indicates, the president shares with the Senate the power to make treaties and appoint ambassadors. Specifically, the president is granted the authority, "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Another provision, known as the "supremacy clause," in Article 6, makes treaties, along with the Constitution and acts of Congress, the "supreme Law of the land." The constitutional grant of authority to the president to "appoint Ambassadors, other public Ministers and Consuls" is subject to the advice and consent of the Senate.

The Constitution assigns to the president only two exclusive roles in foreign affairs. He is "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States," and he is enjoined by Article 2, Section 3, to perform two duties: "he shall receive Ambassadors, and other public Ministers," and "he shall take Care that the Laws be faithfully executed." This list exhausts the textual grant of authority to the president and Congress in foreign affairs. The president's constitutional powers are few and modest, and they pale in comparison with those vested in Congress.

The judiciary is assigned constitutional power that bears on the conduct of foreign policy. Article 3, Section 2, confers upon the Supreme Court original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls," while it generally lodges in the federal courts jurisdiction in "controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

The Constitution also imposes some significant and specific prohibitions, the effect of which is to ensure that control over foreign relations is vested in the national government. For purposes of foreign relations, federalism is virtually irrelevant. Bulked by the supremacy clause, federal acts are supreme and require the acquiescence of states. In United States v. Belmont (1937), the Supreme Court observed: "In respect of our foreign relations generally, state lines disappear. As to such purposes the State … does not exist." Thus, Article 1, Section 10, categorically forbids states from entering "into any Treaty, Alliance, or Confederation." Moreover, no state may, without the consent of Congress, "enter into any Agreement or Compact … with a foreign power, or engage in War, unless actually invaded," or in "imminent danger" of invasion. Other prohibitions touch upon the conduct of foreign affairs, although none of them in practice is very important. Thus, Article 1, Section 9, provides that no holder of any "Office of Profit or Trust" under the United States may "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state," without the consent of Congress.

Some foreign affairs powers are not mentioned in the Constitution. For example, the Constitution is silent on the repository of authority to negotiate treaties, terminate treaties, recognize foreign governments and states, and make or declare peace. It may be plausibly argued that these powers are subsumed under enumerated grants of power or fairly inferred from the Framers' intentions or other constitutional provisions. This approach is faithful to the principle, articulated by the Court in Reid v. Covert (1957), that the government is "a creature of the Constitution. Its powers and authority have no other source." It has been asserted, however, that foreign relations constitute an exception to the principle that the federal government has only those powers expressly enumerated in the Constitution. In the controversial decision of United States v. Curtiss-Wright Export Corp. (1936), the Court announced that the president's powers over foreign affairs are not derived from the Constitution but are a direct inheritance from the Crown of England. That case involved the constitutionality of an embargo that President Franklin D. Roosevelt had imposed upon the export of arms to Bolivia and Paraguay during the Chaco War. Roosevelt had issued the embargo on the basis of authority delegated to him in a joint resolution passed by Congress.

In a bizarre opinion, Justice George Sutherland argued that federal power in the field of foreign affairs differed radically from that with respect to internal matters. He observed that the internal federal power had been carved from "the general mass of legislative powers then possessed by the states," but that this was not at all true of the control of foreign policy, which had never been in the possession of the states. Instead, he maintained, before the Revolution general power over foreign affairs had been lodged in the British Crown. But with the Declaration of Independence, "the power of external sovereignty had passed … to the colonies in their collective and corporate capacity as the United States." The power over foreign affairs was "older than the Constitution" and had been inherited by the newly formed "Union" from the Confederation. It did not depend upon any direct grant of authority from the Constitution, for it is a necessary attribute of nationhood and sovereignty. Not only did the foreign affairs power inhere in the union, but it belonged to the president, who would exercise "plenary" power in his capacity as "sole organ" of American foreign policy, although the opinion did not explain how such authority came to belong to the executive.

Justice Sutherland's opinion has been roundly criticized. Scholars have criticized his reading of Anglo-American legal history by demonstrating that in 1776 states were sovereign entities. They point to Article 2 of the Articles of Confederation which stated: "Each State retains its sovereignty, freedom, and independence, and every power … which is not … expressly delegated to the United States, in Congress assembled." As sovereign entities, and jealous of their sovereignty, states only delegated powers to the Continental Congress. Through Article 9, for example, states delegated the war and treaty powers. That grant alone undermines Sutherland's premise that these powers were derived from a source other than the states. Moreover, even if it were assumed that the power of external sovereignty had been by some method transferred directly from the Crown to the union, it remains to be explained why that power would be vested in the president. Justice Felix Frankfurter noted in Youngstown Sheet and Tube Company v. Sawyer (1952) that "the fact that power exists in the Government does not vest it in the President." Indeed, the Supreme Court has ruled on several occasions that the sovereign power in foreign affairs is held by Congress. There is nothing in Sutherland's theory that would explain the location of this power in the presidency.

The contention, moreover, that the conduct of foreign policy is not restricted by the Constitution is at odds with Madison's statement in Federalist No. 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined … [they] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." Thus the foreign affairs powers are strictly constitutional. Since Curtiss-Wright the Court has taken the position that foreign affairs powers are tethered to the Constitution. In Youngstown, Justice Hugo Black, speaking for the Court, delivered a weighty rebuke to the claim of "extra-constitutional" power. In the same case, Justice Robert Jackson dismissed Sutherland's claim of an extra-constitutional presidential power as mere "dictum." The theory of extra-constitutional authority is irreconcilable with the central premise of American constitutionalism: All powers of the government—expressed and implied—have been delegated by the sovereign. As a consequence of this constitutional principle, all governmental acts—executive, legislative, and judicial—must be grounded within the four corners of the Constitution.

CONSTITUTIONAL CONVENTION

The Constitutional Convention was called for the purpose of correcting the deficiencies of the Articles of Confederation. Chief among the deficiencies were those that weakened the international position of the United States. Accordingly, few issues rivaled in importance the maintenance of national security and the conduct of foreign affairs, and thus the search for an efficient foreign policy design was a primary goal and an animating purpose of the convention.

There was broad agreement among American leaders that the foreign affairs flaws of the Articles of Confederation stemmed not from the absence of an independent executive but from the lack of authority granted to Congress. The Articles had created an ineffective national government that lacked coercive power over the states. Indeed, the outstanding characteristic of the Articles—state sovereignty—was reflected in theory by the fact that the governing document did not capitalize "united states," and in practice by the refusal of states to honor their federal obligations.

Contemporaries discussed three particular weaknesses. First, a depleted treasury undermined national defense and rendered the young Republic vulnerable to its enemies and adversaries. The Spanish in the South, British in the Northwest, and Indians throughout the land represented an ongoing threat. Second, without authority to regulate foreign commerce, Congress lacked bargaining power in its attempt to strike favorable trade agreements. Third, and most important, Congress had no power to prevent states from violating treaties negotiated in the name of the United States, which meant that individual states could undermine the reputation, integrity, and security of the nation. Indeed, the pervasive infidelity of the states to the international obligations and treaty agreements of the United States subverted the ability of the union to maintain its foreign credit and position as a sovereign nation. The frequent treaty violations, according to James Madison, justly known as the father of the Constitution for his role as its chief architect, constituted one of the principal "vices of the political system of the United States." They led Alexander Hamilton to lament in Federalist No. 22: "The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government?"

The inadequacies of the Articles—mainly the debilitating weakness of the national government—supplied a critical focal point for the Framers' deliberations. The convention's decision to create the supremacy clause was a pivotal move, for the declaration in Article 6 that, "This Constitution, and the Laws of the United States and all Treaties, … shall be the Supreme Law of the land, … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," signified the end of "state sovereignty" and enabled the federal government to wrest control of foreign policy from the recalcitrant states. While the supremacy clause certainly had profound implications for areas other than diplomacy, there is no exaggeration in the observation that it provided the sine qua non of a vital and vibrant national foreign policy.

The Articles of Confederation also supplied, in some key respects, a point of departure. The Articles had vested executive as well as legislative authority in Congress. Article 6 granted Congress control over the conduct of foreign policy, and Article 9 granted it "the sole and exclusive right and power of determining on peace and war." But the Philadelphia convention had embraced the principle of separation of powers, and now the delegates were forced to fashion a division of authority between the legislative and executive branches.

The Framers might have adopted the English model for reasons of familiarity, tradition, and simplicity; like other nations, Britain concentrated virtually unlimited authority over foreign policy in the hands of the executive. For the Framers were of course thoroughly familiar with the vast foreign affairs powers that inhered in the English Crown by virtue of the royal prerogative. Sir William Blackstone, the great eighteenth-century jurist, explained in his magisterial four-volume work Commentaries on the Laws of England (1765–1769) that the king exercised plenary authority over all matters relating to war and peace, diplomacy, treaties, and military command. Blackstone defined the king's prerogative as "those rights and capacities which the King enjoys alone." The monarch's prerogatives, "those which are 'rooted in and spring from the King's political person,'" include the authority to send and receive ambassadors and the power to make war or peace. The Crown, moreover, could negotiate "a treaty with a foreign state, which shall irrevocably bind the nation," and he could issue letters of marque and reprisal, which authorized private citizens to perform military actions on behalf of the nation. The king, according to Blackstone, was "the generalissimo, or the first in military command," and he possessed "the sole power of raising and regulating fleets and armies." In the exercise of this lawful prerogative, Blackstone explained, the king "is, and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him" (vol. 2, pp. 238–250).

The Framers' rejection of the English model could not have been more emphatic. Their discussion of foreign affairs in Philadelphia began on 29 May 1787 with the introduction of the Virginia Plan, which provided for the creation of an executive that, in addition to "a general authority to execute the national laws … ought to enjoy the Executive rights vested in Congress by the Confederation." The apparent clarity of the proposal was illusory, however, since the Articles of Confederation had created only a single branch of government—Congress—and had not attempted to categorize powers as legislative, executive, or judicial. As a consequence the vague proposal allowed for the possibility that "Executive rights" might be interpreted to include the full panoply of foreign affairs and warmaking powers exercised by the English king—the authority to determine war and peace, and the powers of sending and receiving ambassadors and entering treaties and alliances, among others—all of which the Articles of Confederation had granted to Congress.

The prospect that the Virginia Plan might involve a transfer to the president of these broad powers provoked alarm in the convention barely a week into the proceedings, triggering a release of the Framers' deep-seated aversion to unilateral executive power in foreign affairs. In a critical debate on 1 June, Charles Pinckney of South Carolina stated that he favored a vigorous executive but feared that the Virginia Plan's proposal to place in a newly created executive the "Executive rights vested in Congress" might include its authority over decisions of war and peace, which, if delegated to a new executive, would make that office a "monarchy of the worst kind," an "elective one."

Pinckney's preference for congressional control over matters of war and peace was supported by his fellow South Carolinian John Rutledge, who argued against vesting such authority in the executive. James Wilson of Pennsylvania, second only to Madison as an architect of the Constitution and a future member of the U.S. Supreme Court, sought to assuage Pinckney's concerns by pointing out that "the prerogatives of the British Monarch" did not properly define the executive powers. Those prerogatives, he explained, included some powers that were of a legislative nature, among them war and peace. In fact, the only powers that Wilson considered to be "strictly executive" were enforcing the laws made by the legislature and the choice of officers not to be appointed by the legislature. Wilson agreed with Roger Sherman of Connecticut, who believed the executive was merely an agent of the legislature, which ought to retain authority over matters of war and peace. In the debate that day every speaker who addressed the issue shared that opinion, including Madison, who reminded the convention that as a matter of definition, executive powers did not include war and peace. Moreover, the delegates, filled with misgivings and apprehension, voted to delete the ambiguous proposal to vest in the president the "Executive rights vested in Congress by the Confederation." Later the Framers would embrace Madison's proposal to fix the extent of the executive powers through careful enumeration.

Wilson's reference to the "prerogatives of the British Monarch" captured the Framers' greatest fears about unilateral executive authority in foreign affairs. There was a deep worry in the convention's discussions about executive power, epitomized by Edmund Randolph's characterization of it as the "foetus of monarchy." The Framers' trepidations about executive power were greatly influenced by the constitutional crises and political convulsions of the seventeenth-century English Civil Wars. The absolutist claims of the Stuart Kings and the abuse of authority by manipulative ministers had hardened their view toward the executive. Their deep concern about executive abuse of power was not merely a reflection of their perceptive readings of history but also an out-growth of their own experience, for the fear of power resonated from the colonial period. These pervasive fears, doubts, and concerns about executive power, which conduced to preclude, in the minds of the Framers, any unilateral presidential power over foreign affairs, were summed up by Hamilton in Federalist No. 75: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the disposal of a magistrate created and circumstanced as would be a president of the United States."

Behind the Framers' emphatic rejection of the British model, rooted in a deep aversion to an unrestrained, unilateral executive power, lay an equally emphatic commitment to the republican principle of collective decision-making, grounded in the belief that the conjoined wisdom of the many is superior to that of one. The Framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and the those of the New World. The convention's deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments and agencies of government, reflected the Framers' determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law, and the elements of constitutionalism to the realm of foreign relations as rigorously as they had been applied to the domestic domain.

This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive and warned that the separation of those powers would invite chaos, disorder, and even disaster. But the Framers brought a fresh outlook, a new vision, to foreign policy, one that recognized that the conduct of foreign policy includes some elements that are primarily legislative in nature, others that are essentially executive, and still others characteristically judicial. In Federalist No. 47, Madison observed that "treaties with foreign sovereigns" assume, once they are made, "the force of legislative acts." The Constitution, moreover, characterizes the power to declare war as legislative, and the power to conduct it as executive. The supremacy clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention discarded the British model as obsolete and inapplicable to the republican manners of the United States.

The purpose of this new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science, was to require and implement collective decision-making—joint participation, consultation, and concurrence—by the political branches in the formulation, conduct, and management of the nation's foreign policy. The Framers supposed that the infusion into the foreign policy process of checks and balances would maintain the constitutional allocation of powers and, therefore, prevent executive unilateralism, aggrandizement, and usurpation. They believed, moreover, that the structure of shared powers in the conduct of international affairs, bottomed on the premise and promise of legislative deliberation, would produce wise policies and, in the words of Wilson, "a security to the people," for it would afford in Congress an airing of the various political, economic, and military interests that were bound up in the nation's external relations.

But two centuries of history and practice have witnessed the virtual eclipse of the Framers' blueprint for foreign affairs. The premise of congressional primacy has given way to executive dominance, and the promise of joint participation has been subverted by presidential unilateralism. In the context of foreign affairs, the United States has been marching backward, for the president has largely secured the prerogatives of the English Crown that the Framers denied to him in the Constitutional Convention, and which the nation had roundly condemned since the writing of the Declaration of Independence. In truth, the rise of presidential hegemony, so ably captured by the title of Arthur Schlesinger Jr.'s influential book The Imperial Presidency, is the product of a regrettable mixture: one part usurpation and two parts acquiescence. Presidential aggrandizement of foreign affairs powers has been aided and abetted by a quiescent Congress, seemingly indifferent to the usurpation of its powers, and by a judiciary that has exhibited an attitude of deference to the executive, as reflected in its refusal to restrain presidential adventurism abroad.

The presidential monopoly of American foreign relations finds its justification not in constitutional norms but in the claims of necessity and national security, pleas that have flown high in the Cold War period and beyond, as the values of unity, speed, and dispatch have replaced the values of deliberation, concurrence, and consent. The growth of presidential power has been conspicuous in the aggrandizement of the war power and in the assumption of the authority to make international agreements, often in disregard of the principles and processes that govern the treaty power. It also has been reflected in the exercise of the president's duty to receive ambassadors, and in the executive's penchant for secrecy and the control of information.

THE WAR POWER

The Framers of the Constitution vested in Congress the sole and exclusive authority to initiate military hostilities, including full-blown, total war, as well as lesser acts of armed force, on behalf of the American people. The constitutional grant to Congress of the war power, which Justice William Paterson described in United States v. Smith (1806) as "the exclusive province of Congress to change a state of peace into a state of war," constituted a sharp break from the British model. The Framers were determined to deny to the president what Blackstone had assigned to the English King—"the sole prerogative of making war and peace." The president, in his role as commander in chief, was granted only the authority to repel invasions of the United States. But what the Framers sought to deny to the president has become a commonplace. Indeed, executive usurpation of the war power in the period since World War II has become a dominant characteristic of American foreign relations as presidents have routinely committed acts of war without congressional authorization.

The war clause of the Constitution provides: "The Congress shall have power … to declare War [and] grant Letters of Marque and Reprisal." On 29 May, in an early debate in the Constitutional Convention on the repository of the war power, a clear understanding developed among the delegates that the power of "war and peace"—the power to initiate war—did not belong to the executive but to the legislature. On 6 August the Committee of Detail circulated a draft constitution that granted Congress the power to "make" war. This bore sharp resemblance to the Articles of Confederation, which vested the "sole and exclusive right and power of determining on peace and war" to the Continental Congress. When the war clause was considered in debate on 17 August, the familiar voice from South Carolina, Charles Pinckney, was initially reluctant to place the power in the House of Representatives: "Its proceedings were too slow…. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions." Another South Carolinian, Pierce Butler, startled the convention when he announced that he "was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it." Butler's opinion shocked Elbridge Gerry of Massachusetts, who declared that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." Butler stood alone in the convention. There was no support for his opinion and no second to his motion.

The proposal of the Committee of Detail to vest Congress with the power to "make" war proved unsatisfactory to Madison and Gerry. In what must be regarded as one of the most famous joint resolutions in American history, Madison and Gerry moved to substitute "declare" for "make," and they explained that the purpose of the motion was to allow the president "to repel sudden attacks." The meaning of the motion was clear. The power to initiate war was granted to Congress, with the reservation that the president need not await authorization from Congress to repel a sudden attack on the United States. There was no quarrel whatever with respect to the sudden-attack provision, but there was some question as to whether the substitution of "declare" for "make" would effect the intention of Madison and Gerry. Roger Sherman of Connecticut thought the joint motion "stood very well." He believed that it permitted the executive "to repel and not commence war." Virginia's George Mason announced that he "was against giving the power of war to the Executive, because not safely to be trusted with it," then said he preferred "declare" to "make." The adoption of the Madison-Gerry proposal made it clear that Congress alone possessed the authority to initiate war. The warmaking power was specifically denied to the president; he was given only the authority to repel sudden attacks against the United States. No delegate to the Philadelphia convention and no member of any state ratifying convention contested this understanding. James Wilson, one of the most penetrating constitutional theorists of the founding generation, captured the precise intent of the convention: this system "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress."

At the time of the convention, the phrase "declare war" enjoyed a settled understanding and an established usage. As early as 1552 the verb "declare" had become synonymous with the verb "commence"; they both implied the initiation of hostilities. This was the established usage in international law as well as in England, where the terms to "declare" war and to "make" war were used interchangeably. This practice was thoroughly familiar to the Framers. Given the equivalence of commence and declare, it is clear that a congressional declaration of war would institute military hostilities. According to international law commentators at the time of the founding, a declaration of war was desirable because it announced the institution of a state of war, and the legal consequences it entailed, to the adversary, to neutral nations, and to citizens of the sovereign initiating the war. Indeed, this is the essence of a declaration of war: notice by the proper authority of intent to convert a state of peace into a state of war. But all that is required under American law is a joint resolution or an explicit congressional authorization of the use of military force against a named adversary. This can come in the form of a "declaration pure and simple," or in a "conditional declaration of war." There are also two kinds of war, those that U.S. courts have termed "perfect," or general, and those labeled "imperfect," or limited, wars. In 1782, in Miller v. The Ship Resolution, the federal court of appeals, established by the Continental Congress, stated: "The writers upon the law of nations, speaking of different kinds of war, distinguish them into perfect and imperfect: A perfect war is that which destroys the national peace and tranquillity, and lays the foundation of every possible act of hostility. The imperfect war is that which does not entirely destroy the public tranquillity, but interrupts it only in some particulars, as in the case of reprisals."

It was decided at the dawn of the Republic that the power of determining perfect and imperfect war lay with Congress. In Talbot v. Seeman (1801), Chief Justice John Marshall wrote for the Court that the war power of Congress comprises the power "to declare a general war" and also to "wage a limited war." The power of Congress to authorize limited war is, of course, a necessary concomitant of its power to declare general war. If the president might authorize relatively minor acts of war or perhaps covert military operations in circumstances not demanding full-blown war, that power could be wielded in a way that would easily eviscerate the Constitution's placement of the war power in Congress. But the Framers withheld from the president the power to work such mischief. The Constitution granted the executive only the authority to respond defensively to the initiation of war through sudden attack upon the United States. In United States v. Smith (1806), Justice William Paterson of the Supreme Court, who had been a delegate to the Constitutional Convention from New Jersey, explained that, in the event of an invasion of the United States, it would be lawful for the president to resist such invasion for the "plain reason that a state of complete and absolute war exists between the two nations. In the case of invasive hostilities, there cannot be war on the one side and peace on the other…. There is a manifest distinction between our going to war with a nation at peace, and a war being made against us by an actual invasion, or a formal declaration. In the former case, it is the exclusive province of Congress to change a state of peace into a state of war." But the president's power of self-defense does not extend to foreign lands. The Framers did not give the president the authority to intervene in foreign wars, or to choose between war and peace, or to identify and commence hostilities against an enemy of the American people. Nor did they empower him to initiate force abroad on the basis of his own assessments of U.S. security interests. These circumstances involve choices that belong to Congress, under its exclusive province to change a state of peace into a state of war.

All of the offensive powers of the nation, then, were located in Congress. Consistent with this constitutional theory, the convention gave to Congress the power to issue "letters of marque and reprisal." Dating back to the Middle Ages when sovereigns employed private forces in retaliation for an injury caused by the sovereign of another state or his subjects, the practice of issuing reprisals gradually evolved into the use of public armies. By the time of the convention the Framers considered the power to issue letters of marque and reprisal sufficient to authorize a broad spectrum of armed hostilities short of declared war. In other words, it was regarded as a species of imperfect war.

THE COMMANDER IN CHIEF CLAUSE

While the Framers granted Congress the authority to decide for war, they provided in Article 2, Section 2, that: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States." The Framers thus vested command of the military forces in the president, which meant that once Congress authorized military hostilities, the president as commander in chief would exercise authority to conduct and prosecute the war effort. As Hamilton explained in Federalist No. 74: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." But the designation of the president as commander in chief conferred no warmaking power whatever; it vested in the president, as Hamilton proposed to the convention, only the authority to repel sudden attacks on the United States and to direct war, "when authorized or begun." In this capacity, he would direct those forces placed at his command by an act of Congress.

The Framers adopted the title of commander in chief and its historical usage from England, where it was introduced in 1639 by King Charles I. The title was used as a generic term referring to the highest-ranking officer in a particular chain of command or theater of action. But the ranking commander in chief was always sub-ordinate to a political superior, whether a king, Parliament, or, with the development of the cabinet system in England, a secretary of war. The practice of giving the officer at the apex of the military the title of commander in chief and of making him subject to instructions from a political superior was embraced by the Continental Congress and by most of the states in their early constitutions. When, on 15 June 1775, the Continental Congress unanimously decided to appoint George Washington as "General and Commander in Chief, of the Army of the United Colonies," it issued instructions that kept Washington on a short leash. He was ordered "punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or future Congress of these United Colonies, or Committee of Congress." Congress did not hesitate to instruct the commander in chief on military and policy matters. This usage had been established for a century and a half and was thoroughly familiar to the Framers when they met in Philadelphia. It is probable that this settled understanding and the consequent absence of concerns about the nature of the post accounts for the fact that there was no debate on the commander in chief clause at the convention. It is telling, moreover, that there was no effort at the convention or at any state ratifying convention to redefine the office of commander in chief.

Hamilton's speech on 18 June captured the essence of the president's power as commander in chief when he stated that the executive was "to have the direction of War when authorized or begun." There was no fear of the legal authority granted by the commander in chief clause, and there is no evidence that anyone believed that his office as commander in chief endowed the president with an independent source of warmaking authority. The narrow, military role of the executive was explained by Hamilton in Federalist No. 69, in which he said the president's power as commander in chief "would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces … while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature." The president as commander in chief was to be "first General and Admiral" in "the direction of war when authorized or begun." But all political authority remained in Congress, as it had under the Articles of Confederation. As Madison explained it in a letter to Thomas Jefferson in 1798: "The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

THE WAR POWER IN PRACTICE

The early practice and understanding of the government on the issue of warmaking closely conformed to the constitutional framework. There was, throughout the nineteenth century, no instance of a presidential assertion of a unilateral warmaking power. But there were disputes in the margins.

In 1793 war broke out between Great Britain and France. President George Washington declared that the Treaty of Alliance of 1778 did not obligate the United States to defend French territory in America, and he issued a proclamation of neutrality. Whether this power belonged to the president or Congress set off a remarkable debate between Hamilton and Madison. In a series of articles signed "Pacificus," Hamilton defended the substance of the policy as well as the president's unilateral authority to promulgate it. Hamilton acknowledged that "the legislature have the right to make war on the one hand," but it remained "the duty of the Executive to preserve peace till war is declared." In the fulfillment of that duty, Hamilton argued, the president "must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government." By this time, France was involved in several wars, and Hamilton's concerns about the force and nature of the treaties was evident: Did they obligate the United States to assist the French in their foreign adventures? He properly denied the existence of any such ironclad obligation, but his view that the president possessed discretionary authority, as part of his "duty" to preserve peace "till war is declared," triggered a response from Madison, who wrote under the pseudonym of "Helvidius" and asserted that if Washington's proclamation were valid, it meant that the president had usurped congressional power to decide between a state of peace or a state of war. Despite this difference, both agreed that the power to initiate war is vested in Congress. Madison wrote that the "executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite or proper." It is to be emphasized that throughout their lives both Hamilton and Madison maintained the doctrine that it is for Congress alone to initiate hostilities. That agreement reflected the understanding of the war clause throughout the nineteenth century. In fact, presidents—Washington, Adams, and Jefferson among them—were particularly careful to avoid military actions that might encroach upon the congressional warpower.

In 1798 France repeatedly raided and seized American vessels. When asked whether a new law that increased the size of the navy authorized the president to initiate hostilities, Hamilton stated that he had not seen the law and that, if it did not grant the president any new authority but left him "at the foot of the Constitution," then the president had only the power to "employ the ships as convoys, with authority to repel force by force (but not to capture) and to repress hostilities within our waters, including a marine league from our coasts. Anything beyond this must fall under the idea of reprisals, and requires the sanctions of that department which is to declare or make war. "

Contrary to the claim that President John Adams engaged in an exercise of unilateral warmaking in the Quasi-War with France (1798–1800), the facts demonstrate that the war was clearly authorized by Congress, which debated the prospect of war and passed some twenty statutes permitting it to be waged. Moreover, Adams took absolutely no independent action. In Bas v. Tingy (1800), the Supreme Court held that the body of statutes enacted by Congress had authorized imperfect, or limited, war. In Talbot v. Seeman (1801), a case that arose from issues in the Quasi-War, Chief Justice John Marshall wrote for the Court, "The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry." In Little v. Barreme (1804), Marshall emphasized the control that Congress can wield over the president as commander in chief. One of the statutes passed by Congress during the Quasi-War with France authorized the president to seize vessels sailing to French ports. President Adams issued an order directing American ships to capture vessels sailing to or from French ports, but in the opinion for the Court, Marshall held that Adams's order had exceeded his authority since congressional policy set forth in the statute was superior to presidential orders inconsistent with the statute. Subsequent judicial holdings have reiterated the fact that the commander in chief may be controlled by statute.

As president, Thomas Jefferson acknowledged that his powers of war were limited to defensive actions. In his first annual message to Congress in 1801 he reported the arrogant demands made by the pasha of Tripoli. Unless the United States paid tribute, the pasha threatened to seize American ships and citizens. Jefferson responded by sending a small squadron to the Mediterranean to protect against the threatened attack. He then asked Congress for further guidance, stating he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense." It was left to Congress to authorize "measures of offense also." Jefferson's understanding of the war clause underwent no revision. In 1805 he informed Congress of the dispute with Spain over the boundaries of Louisiana and Florida. Jefferson warned that Spain evidenced an "intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force."

Other early presidents, including Washington, Madison, James Monroe, and Andrew Jackson, also refused to exercise offensive military powers without authorization from Congress, which they understood to be the sole repository of the power to initiate war. There was no departure from this understanding of the war clause throughout the nineteenth century. In 1846 President James K. Polk ordered an army into a disputed border area between Texas and Mexico. One of its patrols was attacked by Mexican forces, which were defeated by the U.S. soldiers. In a message to Congress, Polk offered the rationale that Mexico had invaded the United States, which prompted Congress to declare war. If Polk's rationale was correct, then his action could not be challenged on constitutional grounds, for it was well established that the president had the authority to repel sudden attacks. If, however, he was disingenuous—if he had in fact initiated military hostilities—then he had clearly usurped the warmaking power of Congress. It is worth noticing that he made no claim to constitutional power to make war.

Although Congress declared war, the House of Representatives censured Polk for his actions because the war had been "unnecessarily and unconstitutionally begun by the President of the United States." It seemed evident that Polk had dispatched troops into the disputed area for the purpose of precipitating war by provoking a Mexican attack on American soldiers. His manipulative efforts were effective. Representative Abraham Lincoln voted with the majority against Polk. As president, Lincoln maintained that only Congress could authorize the initiation of hostilities. None of his actions in the Civil War, including the suspension of habeas corpus, the appropriation of funds from the U.S. treasury, or his decision to call forth regiments from state militias, each of which was eventually retroactively authorized by Congress, constituted a precedent for presidential initiation of war. Moreover, in the Prize Cases (1863), the Supreme Court upheld Lincoln's blockade against the rebellious Confederacy as a constitutional response to a sudden invasion that began with the attack on Fort Sumter. The Court stated that the president, as commander in chief, "has no power to initiate or declare war either against a foreign nation or a domestic state." Nevertheless, in the event of invasion by a foreign nation or a state, the president was not only authorized "but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." According to the Court, the president had to meet the crisis in the shape it presented itself "without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."

THE CONTINUING WAR POWERS CONTROVERSY

Until 1950 it had long been established and well settled that the Constitution vests in Congress the sole and exclusive authority to initiate total as well as limited war. But at the midcentury mark, President Harry Truman asserted a unilateral executive warmaking power, and claimed authorization from the United Nations, to justify his decision to introduce U.S. troops into the Korean War without congressional authorization. Truman's decision in June 1950 to intervene in South Korea in order to counter the communist North Korean invasion commenced what was to become one of the bloodiest wars in America history. The president claimed that he acted in response to a UN Security Council call for military action. In fact, Truman had committed U.S. forces before the Security Council issued its request. Several senators and representatives attacked Truman's unilateral act on the floor of Congress as a violation of the Constitution. They point out that the UN Charter carried no specific obligation to go to war in support of its decisions any more than a treaty obligation alone could commit the United States to war without a decision to that end by both houses of Congress. Thus, Robert Taft of Ohio, in an embittered speech on the Senate floor, charged that President Truman had "usurped power and violated the Constitution" by his Korean intervention. Despite constitutional doubts expressed by Taft and several other senators, Congress regularly appropriated ample funds to support the war. In reality, it had little choice in the matter, unless it wished to see an American army far from home overwhelmed in the field.

In 1951, while the Korean War was still in progress, Truman announced that he was sending four army divisions to Germany in support of the new U.S. obligation to defend the Continent, in accordance with the North Atlantic Treaty and the Lisbon and Ottawa agreements. It was obvious that a large-scale American army on the Elbe River opposite Soviet-occupied East Germany constituted a heavy American commitment to go to war in the event of a Soviet invasion of western Europe, regardless of any constitutional limitation upon the war power. Indeed, the American divisions were commonly described as a "trip wire" for the very purpose of committing the United States to war should such an invasion occur.

Truman denied that he need congressional authorization before deploying the troops in Europe, and his decision triggered the so-called "great debate" on the constitutionality of his action. Several senators, among them Paul Douglas and Thomas Connelly, argued that the president has the power under the Constitution to move troops overseas, both in pursuance of treaty obligations and by virtue of his constitutional powers as commander in chief of the armed forces. In contrast, Taft and John Bricker criticized the president's action as grossly unconstitutional.

The outcome of the debate was a substantial victory for the president. The Senate adopted a weak resolution expressing its "approval" of the president's action, but declaring it to be "the sense of the Senate" that in the future the president ought to obtain the approval of Congress prior to the assignment of troops abroad, "in the interests of sound constitutional processes and of national unity." The acquiescence of Congress in the fact of Truman's usurpation of power inaugurated a new theme in matters of war and peace.

Since then a steady pattern of presidential warmaking has developed: Lyndon Johnson and Richard Nixon in Vietnam, Gerald Ford in Cambodia, Ronald Reagan in Lebanon, Grenada, and Libya, George H. W. Bush in Panama, and William Jefferson Clinton in Somalia, Iraq, Afghanistan, Sudan, and Bosnia, all without congressional authorization.

Following Iraq's invasion of Kuwait on 2 August 1990 under the leadership of Saddam Hussein, President George H. W. Bush began deploying U.S. troops to Saudi Arabia and other sites in the Middle East. By November, Bush had doubled the size of the deployment and established the capacity to wage war. Bush did not seek authorization from Congress, but persuaded the United Nations Security Council to authorize the use of military force, which it did on 29 November. Bush never sought authority (only support) from Congress, but on 12 January 1991 Congress authorized military action against Iraq. The approval, however, bore the appearance of a rubber stamp in the face of a presidential fait accompli, backed by a bloc of 439,000 U.S. troops that Bush had amassed in the region. There is surely nothing in the constitutional grant of authority to the president that justifies the deployment of troops, but in the postwar era, presidents frequently have deployed troops into hostilities or into situations in which hostilities were imminent, in numbers large and small and for durations long and short, a practice that has served to preempt the congressional power to decide on matters of war and peace.

Congressional acquiescence in the presidential usurpation of its authority to deploy troops has become a central factor in the demise of legislative control of the war power which, Madison stated, includes the power "to commence, continue and conclude war." President Bush's claim of UN authority—like Truman's in Korea or Clinton's invocation of authority from NATO to order air strikes against Yugoslavia on 24 March 1999— lacks credibility. These mutual security treaties provided that they would be carried out by the United States in accordance with its "constitutional processes," which vests in Congress the sole power to decide for war. The fact that treaties are the supreme law of the land does not imply that a mutual security treaty can amend the Constitution. In Geofroy v. Riggs (1890), the Court stated that the treaty-making power does not "authorize what the Constitution forbids, or [effect] a change in the character of government." Thus, the president and the Senate may not, through the exercise of the treaty power, deprive the House of Representative of its constitutional role as a joint partner in the warmaking power with the Senate.

Presidents have asserted a variety of arguments in defense of their unilateral military actions. Invocation of the commander in chief clause has become a commonplace. As Justice Robert H. Jackson observed in the Steel Seizure Case (1952), the clause has been adduced for the "power to do anything, anywhere, that can be done with an army or navy." Yet neither the history of the clause nor the debates in the Constitutional Convention afford any evidence to support this presidential claim. Moreover, no court has ever cited it as a source of independent warmaking authority for the president.

Twentieth-century presidents including Truman, Nixon, and Clinton also have advanced the executive power clause as authorization for presidential warmaking. Article 2, Section 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States of America." As we have seen, the claim that the executive power clause includes authority to initiate hostilities was considered and rejected in the Constitutional Convention. For the Framers, the phrase "executive power" was limited, as James Wilson said, to "executing the laws, and appointing offices." No delegate to the convention sought to ascribe to the president a more capacious understanding of "executive power" than that articulated by Wilson.

Advocates of a unilateral executive warmaking power also have invoked the "Lockean prerogative," or the doctrine of necessity, as a source of inherent presidential power. Drawing on John Locke's defense of the right of an executive to act for the common good, even if it requires breaking the law, defenders have adduced a similar claim for the president. But there is no evidence whatever that the Framers intended to incorporate the Lockean prerogative in the Constitution. The lack of a textual statement to that effect renders such an intent indispensable to the presidential claim of a constitutional power. In fact, the evidence runs in the other direction. Fears of executive power led the Framers to enumerate the president's power and to "define and confine" the scope of his authority. An undefined reservoir of discretionary power in the form of Locke's prerogative would have unraveled the carefully crafted design of Article 2 and repudiated the Framers' stated aim of corralling executive power.

Presidents have also asserted a presidential warmaking authority on the basis of his role as the "sole organ" of American foreign policy. In Curtiss-Wright, Justice Sutherland stated that the authority in foreign affairs was essentially an executive power, which he explained "as the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise, an act of Congress." Sutherland appropriated the term "sole organ" from a speech delivered by then Representative John Marshall in 1800 on the floor of the House of Representatives. Marshall noted: "The President is the sole organ of the nation in its external relations…. Of consequence, the demand of a foreign nation can only be made on him." At no point in his speech did Marshall argue that the president's exclusive authority to communicate with a foreign nation included a power to formulate or develop policy. All Marshall had in mind was the president's role as the sole organ of communication with other governments, a rather unremarkable point, at that, since officials had acknowledged since the founding that the president was the "sole" channel of communication with foreign nations. Thus it was Sutherland who infused a purely communicative role with a substantive policymaking function and thereby manufactured a great power out of the Marshallian "sole organ" doctrine. Of course, the sole organ doctrine completely undermines the Framers' design for cooperation in foreign affairs. And, given the allocation of foreign relations power to both Congress and the president, the claim is by definition indefensible.

Extollers of presidential control of the war power also have fashioned the argument that executive warmaking, if repeated often enough, acquires legal validity. This is the contention that history has legitimated the practice of presidential warmaking. The argument rests on the premise that the president frequently has exercised the war power without congressional authorization. The actual number of these episodes varies among the several compilations, but defenders usually list between one and two hundred unilateral acts, each of which constitutes a legitimizing precedent for future executive wars. In detail and in conception the argument is flawed. In the first place, the lists are inaccurately complied. An error common to the lists—the claim that President John Adams initiated unilateral executive warmaking in 1798 in an "undeclared war" with France—is altogether false. The fact is that Adams took absolutely no independent action. Congress passed some two dozen statutes that amounted, so the Supreme Court said, to a declaration of "imperfect war," and Adams complied with those statutes. Moreover, many of the episodes involved initiation of hostilities by a military commander, not by authorization from the president. If practice establishes law, then the inescapable conclusion is that every commander of every military unit has the power to initiate war. What is perhaps most revealing about presidential understanding of the constitutional locus of the war power is that in the one or two dozen instances in which presidents personally have made the decision unconstitutionally to initiate acts of war, they have not purported to rely on their authority as commander in chief or chief executive. Rather, in those cases the presidents have made false claims of authorization, either by statute or by treaty or by international law. It cannot be maintained that constitutional power, in this case the war power, can be acquired through practice. Writing for a unanimous Court in Inland Waterway Corp. v. Young (1940), Justice Frankfurter echoed a centuries-old principle of Anglo-American jurisprudence when he wrote: "Illegality cannot attain legitimacy through practice." If the president could acquire power through usurpation he might aggrandize all governmental power. Neither Congress nor the judiciary could lawfully restrain the exercise of the president's accumulated constitutional powers. This practice would scuttle U.S. constitutional jurisprudence. Thus, the most recent act of usurpation stands no better than the first.

In the post–World War II period presidential usurpation of the war power has been indulged by congressional acquiescence, for policy as well as political reasons. But it is unwarranted to conclude that presidential aggrandizement, indulged by congressional passivity, attains a legal status. Congress cannot divest itself of those powers conferred upon it by the Constitution, a necessary predicate of the separation of powers doctrine. Neither congressional abdication nor acquiescence can accomplish a transfer of power to the executive. As the Court held in Federal Trade Commission v. Morton Salt Company (1950), harking back to an old axiom of English law, once powers are "granted, they are not lost by being allowed to lie dormant, any more than non-existent powers can be prescripted by an unchallenged exercise."

In a somewhat anemic effort to reassert its control of the war power, Congress passed, within the context of the debate surrounding the Vietnam War, the War Powers Resolution of 1973, over President Nixon's veto. The statute sought to curb presidential warmaking and to require "the collective judgment" of the president and Congress before U.S. troops could be committed to hostilities. In the absence of a declaration of war or authorization by statute, the statute required the president to consult Congress before introducing U.S. forces into hostilities "in every possible instance," to report to Congress when he has done so, and to terminate the involvement after sixty days unless Congress authorized an extension. The resolution was criticized as an ill-conceived and poorly drafted piece of legislation. Its chief defect from a constitutional standpoint lay in the fact that it represented an unconstitutional delegation of the war power. In its grant to the president of the authority to choose an "enemy" of the United States, and to initiate hostilities against the nation, it not only repudiated the statutory aim of ensuring "collective judgment" of both branches, but it also vested in the president power that is denied to him by the Constitution. Virtually every American president who took office after its passage found ways to circumvent the resolution. Unconstitutional, ill-conceived, and ineffective, the resolution amounted to what Arthur Schlesinger Jr. described as a "toy handcuff," and by the early twenty-first century there was wide agreement that it ought to be repealed.

THE TREATY POWER

Assumption of broad foreign relations powers by the executive, largely built atop the removal of specific checks by the Senate, has claimed the treaty power as one of its principal casualties. The diminution of the Senate's constitutional role as a treaty partner could not have been envisioned by the Constitutional Convention, which, with less than two weeks left in its proceedings, vested in the Senate alone the power to make treaties. As late as 6 September, the draft constitution of the Committee on Detail had given the Senate the exclusive authority to make treaties and appoint ambassadors. During the debate Madison pointed out that the "Senate represented the states alone," and, consequently, "the president should be an agent in Treaties." Madison, who hailed from Virginia, along with other delegates from large states, were concerned about Senate control of the treaty power. As a result of "the Great Compromise," which gave states equal representation in the Senate, large-state delegates were seeking means to control the Senate. They feared that the Senate would be convulsed by regional economic and state interests that would compromise the national interests in the pursuit of commercial treaties. A version of Madison's proposal eventually prevailed. Article 2 of the Constitution gives the president the "power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

The convention's belated addition of the president to the treaty-making power reflected the Framers' desire to "check" the Senate in the formulation of foreign policy, an application to foreign relations of the doctrine of checks and balances and collective decision-making. There was nothing in the language of the provision, or in the records of the convention debates, to indicate that the president would assume the dominant role in foreign affairs. There was no hint that the president would enjoy any significant independent role in treaty-making. The requirement of a two-thirds majority acted to limit any independent power of the president in foreign relations. In fact, as Hamilton explained in Federalist No. 75, "the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the making of them…. It must indeed be clear to a demonstration that the joint possession of the power in question, by the president and Senate, would afford a greater prospect of security, than the separate possession of it by either of them." Hamilton's emphasis on the cooperative nature of treaty-making, from negotiation through ratification, is reflected in the further requirement of senatorial "advice and consent." The Framers borrowed the phrase from English parliamentary practice, which was descriptive of continuous participation in lawmaking. No bill could be enacted into law by the king without the advice and consent of both houses of Parliament. The employment of that phrase in the treaty clause was meant to convey Senate participation in all stages of treaty-making. It is not suggestive in any way of a treaty-making process that is divided into two distinct stages: negotiation by the president and approval by the Senate. But that phrase is otherwise employed in the appointment clause to indicate a process that does depend on exclusive and sequential steps: the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors."

When President George Washington first communicated with the Senate regarding the appropriate procedure for treaties, he assumed the process of negotiating treaties was a matter of joint participation. He advised a Senate committee that oral communications "seem indispensably necessary; because in these a variety of matters are contained, all of which not only require consideration, but some of them may undergo much discussion; to do which by written communications would be tedious without being satisfactory." This approach indicates an active, continuous, consultative role for the Senate. Washington, moreover, repeatedly expressed his intention to send "propositions" to the Senate, a solicitation of Senate "advice" on of treaties.

In a well-known message to the Senate on 21 August 1789, Washington stated his intention to meet with senators in the Senate chamber "to advise with them on the terms of the treaty to be negotiated with the Southern Indians." Washington intended to seek the Senate's advice before, not after, the negotiation of a treaty. He met with senators the next day, put to them a series of questions, and sought their advice on the instructions that should be given to the commissioners selected to negotiate the treaty. Both sides were disappointed. Senators exhibited unease in relying solely on the information supplied by the secretary of war, who had accompanied Washington. The noise from carriages traveling past the chambers made it difficult to follow the discussion. When the senators announced that they would not commit themselves to any positions that day, Washington felt inconvenienced by the trip. He returned two days later and obtained the Senate's answers to his questions and its consent to the treaty, but he never again went to seek the Senate's advice on a treaty proposal.

It is a misreading of the incident to conclude that Washington had determined to exclude the Senate from any role in the negotiation process. Oral communications proved to be impracticable; but Washington continued to seek the Senate's advice through written communications rather than personal appearances. Senators were asked to approve the appointment of treaty negotiators and to advise on their negotiating instructions. Since the earliest day of the Republic, there have been many examples of executive-Senate discussions regarding treaty negotiations.

The twentieth century, however, witnessed the erosion of this joint effort and the assumption by presidents that negotiation was an exclusively executive concern. As an academic, Woodrow Wilson had argued, in Congressional Government (1885), that the president could treat the Senate with indifference. He encouraged the president to pursue negotiations independently, without consulting the Senate. He reasoned that after these unilateral actions, the Senate could be bullied into granting its "consent," if not its "advice," with the nation's honor at stake. This "mousetrap theory" had disastrous consequences for the nation in the aftermath of World War I. One of Wilson's gravest miscalculations was his decision to exclude prominent senators from the negotiation of the Versailles treaty. Efforts by the executive to present the Senate with a fait accompli can backfire; the Senate may retaliate by adding amendments, shelving treaties, or rejecting them outright.

While the Constitution requires joint action by the president and Senate in making treaties, it is silent on the repository of the authority to terminate treaties. The Framers certainly were aware of the fact that treaties, for a variety of reasons, might require termination, and international law provided rules and regulations to govern their repeal. Madison and Jay, among others, seemed to believe that treaties ought to be terminated by the president and the Senate, and, historically, some have. But the historical record also includes repeal by unilateral presidential action and by Congress as a whole. Since Article 6 vests treaties with the same domestic status as federal statutes, treaties may be terminated by subsequent acts of Congress through the regular legislative process. The fact that the House of Representatives, which is not a part of the treaty power, can play a role in terminating, if not making, treaties, may appear to be anomalous. The same may be said of the argument for a unilateral presidential termination power, which would negate the philosophy of the convention and the entire foreign policy apparatus, which is erected on the premise of collective decisionmaking. The issue of the authority to terminate treaties came to a head in 1979 with President Jimmy Carter's announcement that he intended to terminate the 1954 mutual defense treaty with Taiwan. The decision resulted in a lawsuit, Goldwater v. Carter (1979), in which the Supreme Court declined to reach the merits of the case and dismissed it as "nonjusticiable." The practical effect of the decision left President Carter's act of termination intact. While the question of treaty termination was pushed aside temporarily, it seemed likely to become prominent again.

The president and the Senate may clash over the continued meaning of a treaty. Once a treaty takes effect, the president is principally responsible for its interpretations and implementation. A treaty is a law, and under the Constitution the president is charged with its faithful execution. But a president may not "reinterpret," that is, ascribe to a treaty a meaning contrary to what the Senate understood it to mean at the time it granted its consent. Disagreements have arisen between the president and the Senate on interpretations of the 1972 Anti-Ballistic Missile (ABM) Treaty, on the question of the amenability of that treaty to the development of new weapons systems. As a result it is likely that the Senate will carefully examine future treaties and make publicly known in clear terms its understanding of particular treaty provisions.

EXECUTIVE AGREEMENTS

Reliance on the treaty power has declined since World War II, as presidents have increasingly turned to the use of executive agreements as a means of securing unilateral control of American foreign relations. When the president acts unilaterally, the agreement is referred to as a "sole executive agreement." When the president acts with the approval of a simple majority of both houses of Congress, the agreement is known as a "legislative-executive agreement." Presidents have "assumed" discretion to decide whether to pursue an international agreement as a treaty, a sole executive agreement, or in the form of a legislative-executive agreement. The president's decision typically hinges on political factors, including the likelihood of securing Senate approval. Presidents often have chosen to exclude the Senate in making some controversial and historic international pacts through the channel of executive agreements, among them, the destroyer-base deal with Great Britain in 1940, the Yalta and Potsdam agreements of 1945, the Vietnam peace agreement of 1973, and the Sinai agreements of 1975.

Controversy surrounds the legal authority of the president to make executive agreements. The practice of unilateral presidential accords with foreign nations conflicts with the constitutional emphasis on joint decision-making, and with the Framers' understanding of the reach and breadth of the treaty power, which Hamilton described in a letter under the pseudonym "Camillus" as "competent to all the stipulations which the exigencies of national affairs might require; competent to the making of treaties of alliance, treaties of commerce, treaties of peace, and every other species of convention usual among nations…. And it was emphatically for this reason that it was so carefully guarded; the cooperation of two-thirds of the Senate with the president, being required to make any treaty whatever." The text of the Constitution makes no mention of executive agreements. Moreover, there was no reference to them in the Constitutional Convention or in the state ratifying conventions. The Federalist Papers are silent on the subject as well. There is, then, no support in the architecture of the Constitution for the use of executive agreements. Yet their usage has flourished; presidents claim independent constitutional power to make them, and the judiciary has sustained such presidential claims of authority. The question of the constitutional authority that affords presidents a unilateral capacity to make executive agreements is to be distinguished from what would properly be characterized as legislative-executive agreements, which Congress has authorized the president to make and usually inspire little controversy, if only because they are more desirable than unilateral agreements from a constitutional perspective.

Presidents have advanced four sources of constitutional authority: (1) the president's duty as chief executive to represent the nation in foreign affairs; (2) the authority to receive ambassadors and other public ministers; (3) the authority as commander in chief; and (4) the duty to "take Care that the laws be faithfully executed." These claims are particularly open-ended, undoubtedly in conflict with congressional powers, and they strain the reach of credibility. It may well be the case that the president, in the context of military hostilities authorized by Congress, may, in his capacity as commander in chief, find it desirable to enter into a cease-fire agreement with an enemy, although this would be subject to congressional control. It may be necessary as well, in a military context, for the president to strike an agreement regarding protection of troops or deployment of troops. But it is difficult to justify unilateral executive agreements on the basis of these other claims.

Congressional efforts to rein in the practice of executive agreements and stem the tide of unilateralism have been largely unsuccessful. The first and most prominent effort occurred in 1951, when Senator John Bricker proposed a constitutional amendment to limit the use and effects of executive agreements and treaties within the United States. Supporters of the Bricker Amendment, including leaders of the American Bar Association, found virtue in the proposal for various reasons. Some "resented," as Alexander DeConde explained, "executive agreements such as those made at Yalta," and sought to curtail presidential unilateralism in foreign affairs. Others were fearful of the effect within the United States of such treaties as the UN Charter, the Genocide Convention, and the UN's draft covenant on human rights. Still others supported it as a useful "isolationist" response to the "internationalism of Franklin Roosevelt and Harry Truman.

The Bricker Amendment, approved by the Senate Judiciary Committee in June 1953, reaffirmed the Constitution's supremacy over treaties; required implementing legislation "which would be valid in the absence of treaty" before a treaty could be effected within the United States; and granted Congress the authority to regulate all executive agreements.

President Dwight D. Eisenhower opposed the amendment on grounds that it would hamstring the presidency in the conduct of foreign policy. In a letter to his brother Edgar, an attorney who supported the resolution, Eisenhower declared that it wold "cripple the executive power to the point that we become helpless in world affairs." The Eisenhower administration was keenly aware that most Republicans embraced the proposal and thus its opposition was carefully measured. After failing in his efforts to seek compromise with the Bricker forces, Eisenhower sought assistance from Senate Democrats. Senator Walter George of Georgia introduced his own amendment, which reiterated the Constitution's supremacy over treaties and executive agreements. In a key passage that reflected the widespread opposition to the expansive use of unilateral executive agreements, the George proposal would have required implementing legislation for executive agreements (but not for treaties) to take effect within the United States. The Eisenhower administration lobbied intensively for the defeat of both the Bricker and George proposals, principally because advisers believed it would strip the president of important prerogatives and transfer authority over foreign affairs from the executive to the legislative branch. The Bricker Amendment was defeated in the Senate on 25 February 1954 by a vote of 50 to 42. But the George Amendment fared better; it fell just one vote short of the two-thirds required for approval.

Congress has attempted to curtail the practice of making secret executive agreements. A subcommittee of the Senate Foreign Relations Committee learned in 1969 and 1970 that U.S. presidents had negotiated significant covert agreements with South Korea, Laos, Thailand, Ethiopia, and Spain, as well as other nations. In response, Congress passed the Case Act of 1972, requiring the secretary of state to send to Congress within sixty days the text of "any international agreement, other than a treaty," to which the United States is a party. If the president decided that publication would compromise national security, he could transmit it to the Senate Foreign Relations Committee and the House Committee on Foreign Affairs under an injunction of secrecy removable only by the president. But presidents from Nixon to Clinton ignored or circumvented the statute, and congressional enforcement efforts have been largely ineffective.

RECEPTION OF AMBASSADORS

Presidential reception of ambassadors and other public ministers, understood by the Framers as a clerklike duty, a mere administrative function, was transformed by presidents in the twentieth century as a wellspring of discretionary authority to determine which nations the United States would have relations with and what the tone and temper of those relations would be.

The reception of an ambassador entails consequences under international law, chiefly the recognition of foreign governments and states. The Framers, operating against the backdrop of international law principles that held that the sovereign nations have a duty to receive ambassadors from other sovereign nations, determined, as Hamilton explained in Federalist No. 69, to impose this duty on the president as a matter of "convenience." Hamilton said that the authority "to receive ambassadors and other public ministers … is more a matter of dignity than authority. It is a circumstance which will be without consequence in the administration of government; and it was far more convenient that is should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor." Given Hamilton's explanation, there was no reason to view the "reception clause" as a source of discretionary policymaking authority for the president. In fact, Article 2, Section 3 of the Constitution emphatically declares, "He shall, [not 'may'] receive Ambassadors and other public Ministers," an injunction that stands in sharp contrast with the discretionary constitutional powers that the president may choose to exercise, such as the decision to "convene both Houses" of Congress. Thus, the Framers, as James Madison wrote in 1793, gave the president no prerogative whatever to reject foreign ministers. Madison explained that "when a foreign minister presents himself, two questions immediately arise: Are his credentials from the existing and acting government of his country? Are they properly authenticated?" Those questions, Madison noted, "are merely questions of fact," and if answered affirmatively, the president was duty bound to receive the minister.

The Framers' emphasis on the mechanical nature of the reception function, reflected their acceptance of the doctrine of de facto recognition, which requires diplomatic relations with the government that actually exercises controlling power, as opposed to the principle of de jure recognition, which counsels a determination of the legitimacy or legality of a governing regime. In a letter written on 30 December 1792 to Charles Cotesworth Pinckney, the U.S. minister to London, for the purpose of clarifying U.S. policy toward the revolutionary French government, Secretary of State Thomas Jefferson explained the rationale behind the American doctrine of de facto recognition: "We certainly cannot deny to other nations that principle whereon our own government is founded, that every nation has a right to govern itself internally under what forms it pleases and to change those forms at its own will."

The transformation of a humble administrative duty into a broad discretionary power to conduct foreign policy began under Woodrow Wilson. From 1913 to 1921 President Wilson, adhering to a theory of democratic legitimacy with respect to Latin American countries, refused to grant recognition to governments in that region that had come to power through revolution or violence when lawful constitutional means of achieving change existed. Then in 1920, Wilson, through Secretary of State Bainbridge Colby, declared that the United States would not recognize the Soviet Union, on the ground that the USSR was dedicated to the revolutionary overthrow of other governments in the state system. During the next thirteen years successive presidents adhered to Wilson's unilateral decision to refuse recognition of the Soviet Union, a policy that went largely unchallenged by an isolationist Congress. Ironically, this process of turning the Framers' reception function into a broad-based presidential foreign policy tool reached its full development when, in 1933, President Franklin D. Roosevelt decided to reverse the policy and recognize the Soviet Union, under the same constitutional authority that Wilson had abused to refuse recognition. Roosevelt's act of recognition then broadened into a unilateral agreement called the "Litvinov Assignment"—an agreement on property claims between the two nations. In United States v. Belmont (1937), Justice Sutherland upheld the validity of the agreement and said the pact derived its force from both the president's status as the sole organ of American foreign policy and his power to recognize foreign governments. Justice Sutherland stated that Senate consultation was not required. The Court again considered the validity of the Litvinov Assignment five years later in United States v. Pink (1942). Once more, the Court upheld the agreement, and enthusiastically embraced the "sole organ" doctrine and a capacious view of executive power. These decisions represented an exercise in judicial activism, and inflated the reception function into a towering structure of executive power. Thus in later years President Harry S. Truman felt authorized in his decision not to recognize the People's Republic of China as well as several of the communist satellite states of Eastern Europe. Under changing circumstances in later years, President Richard M. Nixon felt similarly authorized to reverse that policy in 1972 to extend what amounted to diplomatic recognition to the People's Republic of China, an effort that was completed in 1978 when President Jimmy Carter fully "normalized" relations with China through a unilateral decision to recognize the regime of Beijing and derecognize the competing government in Taiwan.

For many observers the extraordinary power exercised by the executive in the conduct of foreign policy is a principal element in Schlesinger's "imperial" presidency, and it constitutes a major threat to the democratic foundations of the American constitutional system. Yet the practice of executive usurpation, revelations of the activities of the Central Intelligence Agency abroad, the constitutional corruption inherent in the Iran-Contra affair, and the dangers posed by a pattern of unilateral presidential warmaking from Korea to Vietnam to Bosnia, have not moved Congress and the public to implement meaningful constitutional and political checks to halt presidential aggrandizement of power. Occasionally, individual members or even large blocs of members of Congress will challenge a unilateral presidential action. On 28 April 1999 the House of Representatives, by a tie vote, rejected a motion to authorize President Bill Clinton to conduct air and missile strikes against the former Yugoslavia. Clinton ignored the House vote and waged war on his own claim of authority. But the relatively infrequent and isolated criticisms that emerge from Capitol Hill have not risen to the level of an institutional challenge, in which Congress summons the will to defend its constitutional powers in foreign affairs. While defenders of the constitutional design for foreign policy might hope for a resurgent Congress, and even dare to dream of an ascendant Congress, there seems to be little political incentive for members to act because international issues rarely assume a significant role in election campaigns. There remains the possibility that some international issues, among them trade matters and environmental concerns, may assume greater importance among voters, which would transform those issues into constituent demands and thus stir Congress to assert its broad powers. However, George W. Bush declared early in his first term that he would halt U.S. participation in the Kyoto Accords, a worldwide effort to control global warming; announced that he would use military force to defend Taiwan against mainland China; and stated his intention to terminate the Antiballistic Missile Treaty of 1972, all unilateral executive actions that constitute a rank usurpation of congressional powers. Yet those declarations brought forth few protests from Congress in defense of its constitutional frontiers and provinces. Indeed, at century's turn, congressional acquiescence in the face of executive aggrandizement seemed as fully entrenched in the practice of American foreign policy as it did when the imperial presidency first took flight.

For others, however, the vast discretionary power exercised by the president is the price the nation pays to safeguard its national security interests abroad and its freedom at home. Executive domination of foreign policy, it has been asserted, is a reflection of the overweening realities of the international realm, which cannot be adequately addressed by a Constitution that is no longer relevant to international politics. Congressional primacy has become obsolete. There remains a debate, one initiated in the Constitutional Convention two centuries ago, on the question of whether unilateral executive control of foreign policy or legislatively inspired collective decision making is more suitable in a nation grounded on republican principles. It may well be the case that the values underlying the war clause and the other constitutional provisions that govern the conduct of American foreign policy are as compelling today as they were two hundred years ago.

BIBLIOGRAPHY

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, 1974. Penetrating study that includes valuable chapters on presidential power in foreign affairs and warmaking.

Bestor, Arthur. "Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined." Seton Hall Law Review 5 (1974). Powerful analysis of the legislative history behind the foreign affairs provisions of the Constitution.

Casper, Gerhard. "Constitutional Constraints on the Conduct of Foreign Policy: A Nonjudicial Model." University of Chicago Law Review 43(1976). Influential study of foreign affairs from a legal and constitutional perspective.

Corwin, Edward S. The President: Office and Powers, History and Analysis of Practice and Opinion, 1787–1984. 5th rev. ed. New York, 1984. Very valuable on presidential powers in foreign policy.

DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston, 2000. Important account of the reasons why presidents engage in unilateral acts of warmaking.

Draper, Theodore. A Very Thin Line: The Iran-Contra Affairs. New York, 1991. Detailed and critical analysis of the political, legal, and policy issues.

Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton, N.J., 1993. Insightful critique of the constitutional debate and controversies surrounding the Vietnam War.

Fisher, Louis. "How Tightly Can Congress Draw the Purse Strings?" American Journal of International Law 83 (1989). An examination of the use of the power of the purse in foreign affairs.

——. Presidential War Power. Lawrence, Kans., 1995. Concise, penetrating analysis of the war power.

——. Constitutional Conflicts Between Congress and the President. 4th rev. ed. Lawrence, Kans., 1997. Excellent examination of the separation of powers issues.

Glennon, Michael J. Constitutional Diplomacy. Princeton, N.J., 1990. Highly useful study of the constitutional arrangement for the conduct of foreign policy.

Hayden, Ralston. The Senate and Treaties: 1789–1817. New York, 1920. Fine historical and analytical study of the Senate's role in treaty making.

Henkin, Louis. Constitutionalism, Democracy, and Foreign Affairs. New York, 1990. Fine analysis of theoretical and constitutional issues relevant to foreign policy.

——. Foreign Affairs and the Constitution. 2d ed. Oxford, 1996. Excellent, comprehensive analysis of the constitutional law of foreign policy, with good footnotes.

Johnson, Loch K. The Making of International Agreements: Congress Confronts the Executive. New York, 1984. Examination of the nature, uses, and impact of executive agreements.

Keynes, Edward. Undeclared War: Twilight Zone of Constitutional Power. University Park, Pa., 1982. Powerful, illuminating study of the legal issues surrounding the war powers debate.

Koh, Harold Hongju. "The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations." University of Pennsylvania Law Review 107 (1959). Useful on relationships between treaties and acts of Congress.

——. The National Security Constitution: Sharing Power After the Iran-Contra Affair. New Haven, 1990. Detailed examination of foreign relations law and the responsibilities of the three branches of government.

Lobel, Jules. "Covert War and Congressional Authority: Hidden War and Forgotten Power." University of Pennsylvania Law Review 134 (1986). Valuable examination of the legal and constitutional issues involved in limited war.

Lofgren, Charles A. "War-Making Under the Constitution: The Original Understanding." Yale Law Journal 81 (1972). Outstanding examination of the Constitutional Convention and constitutional governance of the war power.

Robinson, James A. Congress and Foreign Policy Making: A Study in Legislative Influence and Initiative. Homewood, Ill., 1962. Concise study of foreign policy as Congress influences it.

Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston, 1973. Acclaimed study of the evolution of presidential powers in foreign policy and warmaking.

Scigliano, Robert. The Supreme Court and the Presidency. New York, 1971. Useful catalog and discussion of judicial rulings on presidential power.

Sofaer, Abraham D. War, Foreign Affairs, and Constitutional Power: The Origins. Cambridge, Mass., 1976. Comprehensive analysis of the constitutional origins and early practice of foreign affairs powers.

Sutherland, George S. Constitutional Power and World Affairs. New York, 1919. Early publication of the future Supreme Court Justice's view on the constitutional law of foreign affairs.

Wormuth, Francis D. "The Nixon Theory of the War Power: A Critique." University of California Law Review 60 (1972). Outstanding analysis of the constitutional issues involving presidential warmaking.

Wormuth, Francis D., and Edwin B. Firmage. To Chain the Dog of War: The War Power of Congress in History and Law. Dallas, 1986. Nearly encyclopedic examination of war powers issues.

Wright, Quincy. The Control of American Foreign Relations. New York, 1922. Classic modern analysis of the subject.

See also Congressional Power; Judiciary Power and Practice; Presidential Power .

THE RISE OF PRESIDENTIAL POWER

The rise of presidential hegemony over foreign affairs is perhaps the most outstanding, though lamentable, characteristic of a constitutional system that establishes congressional primacy. The emergence of what Arthur Schlesinger Jr. aptly described in the title of his splendid book The Imperial Presidency —the exaltation of presidential power in foreign affairs—is deeply in conflict with the constitutional blueprint for the formulation and conduct of American foreign policy. The Framers, who feared the exercise of unilateral presidential power in foreign affairs, rejected the conventional wisdom of their time—centralization of foreign affairs powers in the executive—and assigned to Congress senior status in a partnership with the president for the management of foreign relations.

That arrangement largely prevailed for most of the nation's first 150 years, but it succumbed to presidential domination in the post–World War II era. Thus constitutional governance of foreign affairs was a principal casualty of the Cold War, a chronic international crisis that afforded a pretext for the executive assumption of prerogative-like powers that the Framers had denied to the president.

In the context of the Cold War, Americans—members of Congress, judges, scholars, and reporters—exhibited fawning deference to the president in foreign affairs. Lacking confidence in its own information and judgment, the citizenry imbibed the rhetoric of presidential expertise, experience, and judgment; a literature of abnegation advised the nation of the virtues of unfettered executive control of foreign policy. The pervasive sentiment of the Cold War urged blind trust of the executive on the ground that he alone possessed the information, facts, and experience necessary to safeguard U.S. interests. And presidents acted the part. Executive usurpation of the war power became a commonplace; executive secrecy and control of information became the norm; and covert operations—military, political, and economic—avoided congressional radar and public perception. Congress was reduced to the role of spectator.

For many, presidential practice across two centuries confirms the wisdom of the original design, for the theory of executive unilateralism, as well as its traditional, underlying arguments, was exploded in the tragedy of the Vietnam War. Few doctrines have been so troubling, dangerous, and antidemocratic. It led not only to the Vietnam War and to the Iran-Contra affair but to the entrenchment of presidential supremacy in foreign relations, with its attendant military and policy failures from Cuba and Cambodia to Lebanon and Somalia.

Moreover, nothing in the broader historical record suggests that the conduct of foreign relations by executive elites has produced wholesome results. Indeed, the wreckage of empires on executive foreign policies provides ample evidence that, as the British jurist and diplomat Lord Bryce noted, the wisdom of "classes" is less than the "masses." The contention that the wisdom of one is superior to that of many is philosophically defective, historically untenable, and fundamentally undemocratic. Since Aristotle, we have known that information alone is not a guarantee of political success; what matters are the values of the system and ultimately those of its decision makers. There is "nothing more fallible," wrote James Iredell, a member of the first Supreme Court and a delegate to the North Carolina ratifying convention, than "human judgment," a fundamental philosophical insight reflected in the Framers' embrace of the doctrines of separation of powers and checks and balances, and their rejection of presidential unilateralism in foreign affairs.

Constitution of the United States

The U.S. Constitution was drafted in 1787 in Philadelphia by delegates to the constitutional convention. The delegates decided soon after their arrival that the articles of confederation could not be saved through amendment and that an entirely new constitution should be written to replace it. The document that emerged from the convention was the product of a series of compromises.

Once the Constitution had been offered to the states for ratification, critics opposed it on several grounds. Most importantly, they argued that the Constitution created an overly powerful central government that could abuse the rights of citizens and criticized the Framers for failing to include a bill of rights. To win over the opposition, the supporters of the Constitution agreed that the enactment of a bill of rights should be among the business of the first Congress. By June 21, 1788, the requisite nine states had ratified the Constitution. Virginia and New York ratified it a few days later, while North Carolina did so in 1789 and Rhode Island agreed to the Constitution in 1790.

Since the Constitution went into effect in 1789, only twenty-seven amendments have been added to correct deficiencies in the original document or to adapt it to changing needs and principles.

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.

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.

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.¹ 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 enumerations 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.

Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof,² 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.³

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.

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 Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,⁴ unless they shall by Law appoint a different Day.

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.

Source: The United States Government Manual.

¹ Provisions that have been changed by amendments or other legislation or have become obsolete have been printed in italic type. The Sixteenth Amendment overturned the provision on direct taxes. The provision on apportionment was overturned by the Thirteenth Amendment, which abolished slavery, and by the Fourteenth Amendment, which stipulated that all persons excluding Indians should be counted. Since 1940 Indians have also been counted.

² Changed by the Seventeenth Amendment.

³ Modified by the Seventeenth Amendment.

⁴ Changed by the Twentieth Amendment, Section 2, to January 3.

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.

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.

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.

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;⁵

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

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal,⁶ and make rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

⁵ Formal treaty arrangements with the Indians were abandoned after 1871.

⁶ The Declaration of Paris in 1856 and other treaties have outlawed letters of marque and reprisal.

To provide and maintain a Navy;

To make rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square), as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,⁷ and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

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.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.⁸

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ARTICLE II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same term, be elected, as follows

⁷ Modified by the District of Columbia Home Rule Act of 1973.

⁸ Changed by the Sixteenth Amendment which permits a Federal income tax, and the Twenty-fourth Amendment, which prohibits Federal pollution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.⁹

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.¹⁰

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

⁹ Modified by the Twelfth and Twenty-third Amendments.

¹⁰ Clarified by the Presidential Succession Act of 1947 and by the Twenty-fifth Amendment.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

ARTICLE III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State;¹¹—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ARTICLE IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

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 of Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.¹²

¹¹ Changed by the Eleventh Amendment.

¹² Made obsolete by the Thirteenth Amendment.

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.

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 Legislature cannot be convened) against domestic Violence.

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.

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.

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.

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 hereunto subscribed our Names,

G° Washington—Presid^t and deputy from Virginia

AMENDMENTS

(The first ten amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights.")

AMENDMENT 1

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.

AMENDMENT 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT 3

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

AMENDMENT 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

AMENDMENT 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENT 11

(Ratified February 7, 1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

AMENDMENT 12

(Ratified July 27, 1804)

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

AMENDMENT 13

(Ratified December 6, 1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT 14

(Ratified July 9, 1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

AMENDMENT 15

(Ratified February 3, 1870)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT 16

(Ratified February 3, 1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

AMENDMENT 17

(Ratified April 8, 1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT 18

(Ratified January 16, 1919. Repealed December 5, 1933, by Amendment 21.)

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT 19

(Ratified August 18, 1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT 20

(Ratified January 23, 1933)

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

AMENDMENT 21

(Ratified December 5, 1933)

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT 22

(Ratified February 27, 1951)

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

AMENDMENT 23

(Ratified March 29, 1961)

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT 24

(Ratified January 23, 1964)

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT 25

(Ratified February 10, 1967)

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

AMENDMENT 26

(Ratified July 1, 1971)

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

AMENDMENT 27

(Ratified May 7, 1992)

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

CONSTITUTION OF THE UNITED STATES (1787–1788)

Delegates sent to Philadelphia from the thirteen states to discuss changes to the existing Confederation government formed the Constitution during the summer of 1787. The delegates tended to be well-educated, wealthy conservatives who worried about the economic and diplomatic problems facing the young United States. Shortly after the beginning of the proceedings, the delegates adopted a rule of debate behind closed doors, so that views could be expressed without fear of repercussions at home. James Madison of Virginia used this opportunity to introduce his plan for revising the government of the United States. Madison's Virginia Plan meant to scrap the Articles of Confederation, replacing it with a highly centralized government based on federalism. The delegates, realizing that Madison's plan answered their desire for a government that would protect liberty while ensuring order, began in earnest to create a new government of the United States.

The heart of Madison's proposal balanced and separated the three most important functions of government: a bicameral legislature, a strong executive, and an independent judiciary. The Constitution models itself on past successful republics in creating a lower house, the members of which are elected according to the respective population of the states, with authority over how money is raised and spent; and an upper house, restricted to two representatives from each state, with functions resembling that of a general court. Executive power is modeled on the consuls of the ancient Roman Republic, who had two general powers: to serve as commander in chief and to execute the laws passed by the legislative power. Madison, who realized the importance of freeing judges from the influence of significant others, created a judicial system independent of the legislative and executive branches. The resulting Constitution balances power among the varying functions of the federal government while creating a method for local, state, and federal governments to share power.

RussellLawson,
Bacone College

See also Constitution of the United States .

Preamble

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.

Article One

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.

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.

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.

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 Places 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.

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 Behavior, 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.

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 increased 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.

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.

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 a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post-Offices and post-Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the Supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the erection of Forts, Magazines, arsenals, dock-Yards, and other needful Buildings; and

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

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.

No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or Foreign State.

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article Two

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an Office of Trust or Profit under the United States, shall be appointed an elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session.

Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article Three

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior, and shall, at stated times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article Four

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the Executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

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.

Section 3. New States may be admitted by the Congress into this Union; but no new States 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.

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.

Article Five

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.

Article Six

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.

Article Seven

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

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 hereunto subscribed our Names,

George Washington

President and deputy from Virginia

New Hampshire.

John Langdon

Nicholas Gilman

Georgia.

William Few

Abraham Baldwin

Massachusetts.

Nathaniel Gorham

Rufus King

Connecticut.

William Samuel Johnson

Roger Sherman

New Jersey.

William Livingston

David Brearley

William Paterson

Jonathan Dayton

New York.

Alexander Hamilton

Maryland.

James McHenry

Daniel Carrol

Daniel of St. Thomas Jenifer

Pennsylvania.

Benjamin Franklin

Robert Morris

Thomas FitzSimons

James Wilson

Thomas Mifflin

George Clymer

Jared Ingersoll

Gouverneur Morris

Virginia.

John Blair

James Madison Jr.

North Carolina.

William Blount

Hugh Williamson

Richard Dobbs Spaight

Delaware.

George Read

John Dickinson

Jacob Broom

Gunning Bedford Jr.

Richard Bassett

South Carolina.

John Ruttledge

Charles Pinckney

Charles Cotesworth Pinckney

Pierce Butler

Attest:

William Jackson, Secretary

Amendments

ARTICLE ONE 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.

ARTICLE TWO A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

ARTICLE THREE No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE FOUR The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE FIVE No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

ARTICLE SIX In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

ARTICLE SEVEN In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

ARTICLE EIGHT Excessive bail shall not lie required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE NINE The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE TEN The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

ARTICLE ELEVEN January 8, 1798

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by citizens or subjects of any foreign State.

ARTICLE TWELVE September 25, 1804

The Electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

ARTICLE THIRTEEN December 18, 1865

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

ARTICLE FOURTEEN July 28, 1868

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof, but Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

ARTICLE FIFTEEN March 30, 1870

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

ARTICLE SIXTEEN February 25, 1913

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States and without regard to any census or enumeration.

ARTICLE SEVENTEEN May 31, 1913

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the Constitution.

ARTICLE EIGHTEEN January 29, 1919

Section 1. After one year from the ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by Congress.

ARTICLE NINETEEN August 26, 1920

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

The Congress shall have power by appropriate legislation to enforce the provisions of this article.

ARTICLE TWENTY February 6, 1933

Section 1. The terms of the President and Vice-President shall end at noon on the twentieth day of January, and the terms of Senators and Representatives at noon on the third day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the third day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice-President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice-President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice-President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice-President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of three-fourths of the several States within seven years from the date of its submission.

ARTICLE TWENTY-ONE December 5, 1933

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

ARTICLE TWENTY-TWO February 26, 1951

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who May be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

ARTICLE TWENTY-THREE June 16, 1960

Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

ARTICLE TWENTY-FOUR February 4, 1964

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice-President, for electors for President or Vice-President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

ARTICLE TWENTY-FIVE February 10, 1967

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice-President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice-President, the President shall nominate a Vice-President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Section 4. Whenever the Vice-President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice-President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four day to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice-President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

ARTICLE TWENTY-SIX July 1, 1971

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

ARTICLE TWENTY-SEVEN May 7, 1992

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

CONSTITUTION OF THE UNITED STATES

A written document executed by representatives of the people of the United States as the absolute rule of action and decision for all branches and officers of the government, and with which all subsequent laws and ordinances must be in accordance unless it has been changed by a constitutional amendment by the authority that created it.

For over 200 years, the Constitution of the United States has served as the foundation for U.S. government. Created in 1787, the U.S. Constitution establishes and defines the basic outlines of a national government that joins the states in an effective political union. The U.S. Constitution has been and remains one of the most enduring political agreements in the history of the world. Throughout its existence, it has served as an inspiring example of the potential of constitutional government, causing many other countries and peoples to emulate its provisions.

According to Article VI of the Constitution, the U.S. Constitution is "the supreme Law of the Land." All other laws and judicial decisions are subject to its mandates. The Constitution therefore has higher authority than all other laws in the nation, including statutes and laws passed by Congress and state legislatures. Unlike those other laws, the Constitution may be changed, or amended, only in special ways that reflect its character as a demonstration of the people's will.

The original document of the U.S. Constitution is held at the National Archives, in Washington, D.C.

Constitutional Convention of 1787

The Constitutional Convention of 1787 is a high point in the history of the United States. This remarkable assemblage of men, meeting in Philadelphia between May 23 and September 17, 1787, created the document that has given the United States one of the most stable and admired constitutional democracies in the history of the world.

55 delegates from 12 states attended various parts of the convention. Drawn from the educated and wealthy elite of the country, they included such luminaries as george washington, the commander of American forces in the war of independence, who presided over the convention, and benjamin franklin, at 81, the oldest delegate and the country's most famous statesman. A majority of the delegates were lawyers, and many, such as james madison, were wealthy landowners. Many notable leaders of the time, however, including thomas jefferson, who was in France, and patrick henry, did not attend.

The meetings of the convention were closed to the public and to the press. Thus, behind closed doors, the delegates hammered out the eventual form of U.S. government. The agreements reached during the convention exemplified the values of constitutional government. In an atmosphere that combined competitive, lively debate with tolerance and respect for differences of opinion, the delegates reached vital compromises on matters that threatened to divide the still loosely connected union of states. Many different factions opposed one another—small states versus large states, farmers versus businesspeople, North versus South, and slave states versus nonslave states.

The Constitutional Convention occurred in three separate phases. The first, from May 23 to July 26, created the basic features of the national government, including its division into legislative, executive, and judicial branches. During this phase, delegates also arrived at one important compromise between the interests of large and small states. That compromise created a bicameral, or two-chamber, legislature, composed of the House of Representatives and the Senate. During the second phase of the convention, from July 27 to August 6, the five-man Committee of Detail created a rough draft of the Constitution. In the third phase, which lasted from August 6 to September 6, the delegates debated remaining sticking points, particularly relating to the executive branch and the means of electing a president. Eventually, they settled on the electoral college suggested by Benjamin Franklin.

On September 17, 39 of the 42 delegates present signed the Constitution. Gouverneur Morris, coauthor of the New York State Constitution and a key delegate, summed up the significance of the Constitution that the convention had created when, after affixing his signature to it, he uttered these words: "The moment this plan goes forth, all other considerations will be laid aside and the great question will be: Shall there be a national government or not? And this must take place or a general anarchy will be the alternative."

further readings

Rossiter, Clinton. 1966. 1787: The Grand Convention. Reprint, New York: Norton, 1987.

Scott, James Brown. 2001. James Madison's Notes of Debates in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations. Union, N.J.: Lawbook Exchange.

History of the Constitution

When the United States declared itself a country separate from Great Britain in 1776, it did not have a written constitution. Instead, the 13 former colonies each had their own sovereignty and separate bodies of law. How the newly formed United States would act as one nation remained uncertain and undefined. The continental congress, the first national legislative body of the new nation, attempted to address this state of affairs by drafting the nation's first constitution, the articles of confederation, which were ratified in 1781, the same year that hostilities in the Revolutionary War against Britain came to an end at Yorktown, Virginia.

The Articles of Confederation proved an ineffective national constitution. That document did not provide for a strong federal, or central, government and allowed each state its own "sovereignty, freedom and independence" (art. II). It also did not provide the federal government power to tax or regulate commerce.

Federalists versus Anti-Federalists

After the Constitution was signed and approved by delegates of the Constitutional Convention of 1787, it had to be ratified by the states. As determined by Article VII of the Constitution, ratification required the approval of nine special state conventions. States that did not ratify the Constitution would not be considered a part of the Union and would be separate countries.

Passage of the Constitution by the states was by no means certain in 1787. Indeed, many people at that time opposed the creation of a federal, or national, government that would have power over the states. These people were called Anti-Federalists. They included primarily farmers and tradesmen and were less likely to be a part of the wealthy elite than were members of their opposition, who called themselves Federalists. The Anti-Federalists believed that each state should have a sovereign, independent government. Their leaders included some of the most influential figures in the nation, including patrick henry and george mason, leading national figures during the Revolutionary War period. Many Anti-Federalists were local politicians who feared losing power should the Constitution be ratified. As one member of their opposition, edmund randolph, said, these politicians "will not cherish the great oak which is to reduce them to paltry shrubs."

The Federalists favored the creation of a strong federal government that would more closely unite the states as one large, continental nation. They tended to come from the wealthier class of merchants and plantation owners. Federalists had been instrumental in the creation of the Constitution, arguing that it was a necessary improvement on the articles of confederation, the country's first attempt at unifying the states in a national political arrangement. Leaders among the Federalists included two men who helped develop the Constitution, james madison and alexander hamilton, and two national heroes whose support would greatly improve the Federalists' prospects for winning, george washington and benjamin franklin.

Between September 17, 1787, the day the Constitution was signed by the Constitutional Convention, and May 29, 1790, the day Rhode Island became the thirteenth and last state to ratify the Constitution, the Federalists and Anti-Federalists engaged in a fierce national debate on the merits of the Constitution. This debate occurred in meeting halls, on streets, and on the printed page. Both sides in the argument had a considerable following. Many of the questions raised remain with us today: What is the best form of government? What rights must the government protect? Which government powers should be granted to the states, and which to the federal government?

The Anti-Federalists The Anti-Federalists found many problems in the Constitution. They argued that the document would give the country an entirely new and untested form of government. They saw no sense in throwing out the existing government. Instead, they believed that the Federalists had over-stated the current problems of the country. They also maintained that the Framers of the Constitution had met as an elitist group under a veil of secrecy and had violated the provisions of the Articles of Confederation in the means selected for ratification of the Constitution.

In making their arguments, the Anti-Federalists often relied on the rhetoric of the Revolutionary War era, which stressed the virtues of local rule and associated centralized power with a tyrannical monarch. Thus, the Anti-Federalists frequently claimed that the Constitution represented a step away from the democratic goals of the American Revolution and toward the twin evils of monarchy and aristocracy. The Anti-Federalists feared that the Constitution gave the president too much power and that the proposed Congress would be too aristocratic in nature, with too few representatives for too many people. They also criticized the Constitution for its lack of a bill of rights of the kind that had been passed in England in 1689 to establish and guarantee certain rights of Parliament and of the English people against the king. Moreover, the Anti-Federalists argued that the Constitution would spell an end to all forms of self-rule in the states.

Many Anti-Federalists believed in a type of government that has been described as agrarian republicanism. Such a government is centered on a society of landowning farmers who participate in local politics. thomas jefferson agreed with this view. He felt that the virtues of democratic freedom were best nurtured in an agrarian, or agricultural, society, and that with increasing urbanization, commercialization, and centralization of power would come a decline in political society and eventual tyranny. Unlike the Anti-Federalists, however, Jefferson supported the Constitution, although rather reluctantly. He was not strongly identified with the Federalist position and would eventually oppose the Federalists as a member of the democratic-republican party.

The Anti-Federalists also shared the feeling that so large a country as the United States could not possibly be controlled by one national government. One Pennsylvania Anti-Federalist, who signed his articles "Centinel," declared,

It is the opinion of the greatest writers, that a very extensive country cannot be governed on democratical principles, on any other plan than a confederation of a number of small republics, possessing all the powers of internal government, but united in the management of their foreign and general concerns.

… [A]nything short of despotism could not bind so great a country under one government.

Although the Anti-Federalists were united in their opposition to the Constitution, they did not agree on what form of government made the best alternative to it. Some still believed that the Articles of Confederation could be amended in such a way that they would provide a workable confederation. Some wanted the Union to break up and re-form into three or four different confederacies. Others were even ready to accept the Constitution if it were amended in such a way that the rights of citizens and states would be more fully protected.

The Federalists The Federalists focused their arguments on the inadequacies of national government under the Articles of Confederation and on the benefits of national government as formed by the Constitution. They were also much more favorably disposed toward commerce than were the Anti-Federalists, and they argued that a strong central government would foster the commercial growth of the new country. Moreover, the Federalist vision of society was more pluralistic than the Anti-Federalist vision. That is, the Federalists did not see society as made up principally of farmers, as did the Anti-Federalists, but instead viewed it as comprising many different and competing interests and groups, none of which would be completely dominant in a federalist system of government. For this reason, many later scholars have argued that the Federalists were more aware of the economic and social changes then transforming American society.

The most famous example of Federalist doctrine is The Federalist Papers, a collection of 85 essays by Alexander Hamilton, James Madison, and john jay. Published in New York newspapers and in two bound volumes distributed during the ratification debate, these essays were signed with the pseudonym Publius, taken from Publius Valerius Poplicola, a man who reputedly saved the ancient Roman republic. The Federalist Papers is an important American contribution to political philosophy and remains a classic today. It is also a great and authoritative commentary on the Constitution.

The Federalist Papers communicates the central ideas of the Federalists: the benefits of a Union between the states; the problems with the confederation as it stood at the time; the importance of an energetic, effective federal government; and a defense of the republicanism of the proposed Constitution. The Federalist Papers makes a persuasive case for the necessity of federal government in preserving order and securing the liberty of a large republic. In doing so, it asserts that a weak union of the states will make the country more vulnerable to internal and external dissension, including civil war and invasion from foreign powers.

One of the most famous of its essays is The Federalist, number 10, by James Madison. In it, Madison addressed the issue of whether or not the republican government created by the Constitution can protect the liberties of its citizens. The problem that Madison saw as most destructive of popular government is what he called faction. A faction, according to Madison, is "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Factions, Madison added, become especially dangerous when they form a majority of the population.

Madison divided popular government into two types, democratic and republican, and preferred the latter. In a democracy, all citizens participate directly in the decisions of government. In a republic, representatives elected by the people make the decisions of government.

In his intricate argument in The Federalist, number 10, Madison contended that a republican government of the kind envisioned by the U.S. Constitution can best solve the problem of faction not by "removing its causes"—which only tyranny can do—but by "controlling its effects." Madison proposed that elected representatives, as opposed to the people as a whole, will be more disposed to consider the national interest ahead of a particular factional interest. He also argued that the nature of an "extensive," or large, republic such as the United States will naturally frustrate the ability of a single faction to advance its own interests ahead of the interests of other citizens. With the huge variety of parties and interests in an extended republic, it becomes "less probable that a majority of the whole will have a common motive to invade the rights of other citizens." Thus, Madison, in contrast to the Anti-Federalists, saw the large size of the United States as a help rather than a hindrance to the cause of liberty.

This is only one of the many points that The Federalist Papers makes in favor of the Constitution. However, as brilliant and carefully reasoned as The Federalist Papers may be, it probably did not greatly sway opinion toward ratification of the Constitution. The politics of ratification were instead influenced most by direct, face-to-face contact and negotiation. Nevertheless, The Federalist Papers aided the Constitution's cause by giving the Constitution's adherents ideas with which to counter their opposition.

The outcome Ultimately, the ratification provisions of Article VII of the Constitution, created by the Federalists themselves, were one of the best allies the Federalists had in their attempt to ratify the Constitution. After the Constitution had been created at the Constitutional Convention, Federalist leaders quickly returned to their states to elect Federalist delegates to the state conventions. The Anti-Federalists were not able to muster enough votes in response, though in several states, they nearly defeated the Federalists. By 1790, all thirteen states had ratified the document, giving the Federalists and their Constitution a great victory.

The Anti-Federalist outcry was not without its effects, however. By 1791, in response to Anti-Federalist sentiments, state legislatures voted to add the first ten amendments to the Constitution. Those ten amendments are also called the Bill of Rights, and they have become an important part of the Constitution and its heritage of liberty.

further readings

Frohnen, Bruce, ed. 1999. The Anti-Federalists: Selected Writings and Speeches. Washington, D.C.: Regnery Pub.

Wills, Garry. 2001. Explaining America: The Federalist. New York: Penguin Books.

cross-references

Federalist Papers.

The problems of a weak federal government with insufficient funds for operation became apparent as a number of problems developed in the 1780s: harmful economic warfare between states, inadequate commercial treaties with foreign countries, and the inability to raise an army to oppose British troops in the Northwest Territory. Particularly disturbing for many critics of the Confederation was the lack of a federal response to Shays's Rebellion in 1786–87, an armed uprising by debtor farmers in western Massachusetts directed against courts of law. george washington reacted to this lack of response with words that expressed his strong desire for a better union of the states:

I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned upon any country. You talk of employing influence to appease the present tumults in Massachusetts. Influence is no government. Let us have a government by which our lives, liberties and properties will be secured; or let us know the worst at once.

Seeking to address the inadequacies of the Articles of Confederation, the Continental Congress called for the Constitutional Convention to create a better basis for union between the states. The convention began in Philadelphia on May 25, 1787, with the original intention of amending the Articles of Confederation. However, the delegates—including benjamin franklin, alexander hamilton, james madison, and George Washington—soon planned an entirely new constitution.

Fifty-five delegates representing 12 states (all but Rhode Island) discussed different plans for a federal government. They agreed to create a government consisting of three separate branches—executive, legislative, and judicial—with checks and balances to keep any one branch from becoming too powerful. However, they dis-agreed strongly over particulars.

For example, two plans for representation in a national legislature competed for the loyalty of delegates. The so-called Virginia Plan, presented by edmund randolph and designed by James Madison, called for a bicameral, or two-house, legislature. Representation in the lower house would be proportional to population, and representation in the upper house would be elected by the lower house. Delegates from small states felt that such a plan would give too much power to large states. They favored the New Jersey Plan, which called for a unicameral legislature with equal representation to each state. Delegates settled the issue by voting for a compromise plan—called the Great Compromise, or the Connecticut Compromise—which established a Senate that gave each state two representatives and a House of Representatives that granted each state a number of representatives proportional to its population.

On September 17, 1787, 39 delegates signed the completed Constitution. In subsequent months, the document went before each of the states for ratification. The ratification process was accompanied by a spirited debate on the merits of the Constitution. The Federalists, on one side of the debate, supported ratification. Federalist leaders Alexander Hamilton, john jay, and James Madison argued eloquently on behalf of the Constitution in a series of newspaper essays that were published as The Federalist papers. Those opposed to the Constitution were called Anti-Federalists.

The ratification process, as contained in Article VII of the Constitution, required that nine of the 13 states approve the Constitution in special conventions. Within ten months after the Constitution was completed, ten states had ratified it. Rhode Island was the last of the 13 states to ratify the Constitution, on May 29, 1790, officially making the Constitution the highest law of the land.

Contents of the Constitution

The Constitution is divided into seven articles, or divisions, each addressing a different topic. Each article is divided into sections. The Constitution begins with a preamble that states the purpose of the document and the source of its power:

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 is not strictly considered a part of the Constitution and is not legally binding on issues relating to either government power or private right (Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 [1905]).

Article I Article I of the Constitution deals with the legislative branch of government. It establishes the bicameral Congress, consisting of a Senate and a House of Representatives, and it delineates the means by which Congressional members shall be elected, the length of their terms, and the requirements for membership, including age. It also sets forth guidelines for legislative procedure, including a requirement that bills of revenue, or taxation, must originate in the House; requirements for the process by which bills pass from Congress to the president; and the procedures in case of presidential veto, or refusal to sign a bill into law.

Article I, Section 2, prescribes for the means of apportionment, or the method by which representatives are allocated to the states. Because political power would inevitably flow to the states with the most congressional representatives, this topic was controversial at the time of the framing of the Constitution. Whereas each state receives two votes in the Senate, the number of representatives each state receives in the House is determined by an enumeration, or census, to be conducted every ten years.

According to this same section, a state's population is to "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." Thus, an indentured servant was counted as a whole person, and an African American slave was counted as only three-fifths of a person. This last provision arose out of differences between slave and nonslave states. Counting slaves as equal persons would have given southern states a greater number of representatives and more power in Congress. Northern states vigorously opposed such a scheme, and the resulting compromise was called the Three-fifths Compromise.

Article I, Section 8, gives Congress some of its delegated powers, many of them crucial powers that had been denied to the Congress of the Confederation. These include the powers to "lay and collect Taxes," "borrow Money," "coin Money," "establish Post Offices," "declare War," "raise and support Armies," "provide and maintain a Navy," and "make all Laws which shall be necessary and proper for carrying into Execution" all the other powers. This last clause is called the necessary and proper clause and has been used to justify later expansion of congressional activity not specifically mentioned in the Constitution. The clause has also been called the elastic clause or implied powers clause.

Article I, Section 8, also gives Congress the power to "regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes." This is called the commerce clause. And Article I, Section 8, gives Congress power over a district to "become the Seat of the Government of the United States," later established as the District of Columbia, or Washington, D.C.

Article I, Section 9, limits congressional powers, forbidding the passage of laws prohibiting the "Migration or Importation" of persons before the year 1808. This provision was designed as a concession to slaveholding states, ensuring that the practice of slavery would not be challenged for at least 20 years. Section 9 also prohibits Congress from passing any ex post facto, or retroactive, laws, and from granting any "Title of Nobility."

Article I, Section 10, limits the powers of the states, prohibiting, for example, the states to enter into foreign treaties and coin money.

Article II Article II concerns the executive branch, or the presidency. Section 1 establishes the electoral college as the means of electing the president, identifies the requirements for holding presidential office, and outlines the procedure in case a president is removed from office or dies. It also contains the oath that the president must take before entering the office, which explicitly requires that the president support the Constitution: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Article II, Section 2, names the president as commander in chief of the armed forces. It also gives the president the power to grant pardons or reprieves; make treaties with foreign powers, subject to approval by the Senate; and appoint ambassadors and Supreme Court justices.

Article II, Section 4, allows for removal and impeachment of the president and "all civil Officers of the United States" in cases of conviction for "Treason, bribery, or other High Crimes and Misdemeanors."

Article III Article III establishes the supreme court of the united states as the highest judicial power. Section 2 defines the jurisdiction of the federal judiciary. Section 3 defines and limits prosecution for treason. The power of judicial review, whereby the Supreme Court may declare laws and regulations of government to be unconstitutional, is not explicitly declared in the Constitution and was not established by the Supreme Court until the case of marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).

Article IV Article IV defines the relations between the states. It requires each state to give "full Faith and Credit" to the laws of the other states; establishes that citizens are entitled to the same "Privileges and Immunities," or liberties and rights, as citizens in every other state; provides for extradition between states of persons charged with crimes; provides for and limits the admission of new states; gives Congress full power over U.S. territories that are not yet states; and guarantees each state "a Republican Form of Government" and protection against invasion or "domestic Violence."

Article V Article V sets forth a two-step procedure for amending the Constitution: proposal of amendments, followed by ratification. Amendments may be proposed in two ways: by a two-thirds vote of both houses of Congress or by a special convention called by two-thirds of the state legislatures. Amendments are ratified by one of two methods, determined by Congress: approval of three-fourths of the state legislatures or approval of three-fourths of special state conventions.

Article VI Article VI declares the Constitution and the laws and treaties made by the U.S. government under its authority to be "the supreme Law of the Land." This provision is called the supremacy clause. Article VI also requires that all judges in every state be subject to the provisions of the Constitution, that all state and federal officeholders swear an oath supporting the Constitution, and that "no religious Test shall ever be required as a Qualification to any Office" of the United States.

Amendments The Constitution has been amended 26 times. The first ten amendments were ratified in 1791 and are called the bill of rights.

Principles of the Constitution

The Constitution defined a number of the fundamental and enduring principles of U.S. government, particularly the concepts of separation of powers, checks and balances, and federalism.

Separation of powers refers to the division of power between the legislative, executive, and judicial branches of government. Checks and balances refers to a system whereby each branch of government retains some of the powers of the other branches, which it may use to control other branches. Thus, the president may veto bills passed by Congress, the Senate may vote down presidential appointments, and the Supreme Court may strike down laws approved by Congress or regulations put forth by the executive. Such actions keep the separate branches of government in balance and prevent any one of them from becoming too powerful.

The inclusion of the concepts of separation of powers and checks and balances in the Constitution owes much to James Madison, who has been called the Father of the Constitution. The U.S. system of government has often been referred to as the Madisonian Model. According to Madison, a system in which the different elements of government competed against one another, each preventing the other from becoming too powerful, was the best system to prevent the rise of a tyrannical government that would abuse the rights of the people. As he wrote in The Federalist, No. 51:

In framing a government, … the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught the necessity of auxiliary precautions. The Constitution, with its separation of powers and checks and balances, provided just such "auxiliary precautions" to be used in controlling government.

The Constitution is also guided by the concept of federalism in the way that it constructs the U.S. government. Federalism is a system in which smaller political entities—such as states, counties, cities, and localities—are united in a larger political organization. Federalism intends to protect the liberties of people in these smaller political units by providing them with a great degree of freedom in governing themselves. The federal, or larger, government is then a limited government that cedes many decision-making responsibilities—including, for example, the creation of most criminal and civil laws, municipal codes, regulations for administering school districts, and the like—to states and localities, while leaving itself other responsibilities. In short, federalism is a partnership in which a central government shares authority and power with regional or local governments.

The U.S. Constitution gives the federal government—made up of the executive, legislative, and judicial branches—power to make decisions regarding such issues as war, national defense, and trade with foreign countries. The federal government also retains the right to overrule laws or decisions of lower units of government when they are in violation of the Constitution. Thus, for example, the federal government took on responsibilities in the over-sight of local school districts after the Supreme Court, in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), ruled that segregating children in different public schools by race violated the equal protection clause of the fourteenth amendment to the Constitution, which says, "No State shall … deny to any person … the equal protection of the laws."

further readings

Black, Eric. 1988. Our Constitution: The Myth That Binds Us. Boulder, Colo.: Westview Press.

Browne, Ray B., and Glenn J. Browne. 1986. Laws of Our Fathers: Popular Culture and the U.S. Constitution. Bowling Green, OH: Bowling Green Univ. Press.

Corwin, Edward S. 1978. The Constitution and What It Means Today. 14th ed. Rev. Harold W. Chase and Craig R. Ducat. Princeton, N.J.: Princeton Univ. Press.

Hamilton, Alexander, James Madison, and John Jay. 1787– 88. The Federalist Papers. Ed. Clinton Rossiter. Reprint, New York: New American Library of World Literature, 1961.

Harrigan, John J. 1984. Politics and the American Future. Reading, Mass.: Addison-Wesley.

Levy, Michael B. 1982. Political Thought in America: An Anthology. Homewood, Ill.: Dorsey Press.

Marshall, Burke, ed. 1987. A Workable Government?: The Constitution after 200 Years. New York: Norton.

Maxwell, James A., ed. 1982. You and Your Rights. Pleasantville, N.Y.: Reader's Digest.

McGuire, Robert A. 2003. To Form a More Perfect Union: A New Economic Interpretation of the United States Constitution. Oxford, New York: Oxford Univ. Press.

Rawle, William. 2003. A View of the Constitution of the United States of America. 2d ed. Clark, N.J.: Lawbook Exchange.

Story, Joseph. 2001. Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution Union, N.J.: Lawbook Exchange.

cross-references

Congress of the United States; "Constitution of the United States" (Appendix, Primary Document); Constitutional Amendment; Constitutional Law; Federalist Papers; Full Faith and Credit Clause; Presidential Powers.

CONSTITUTION OF THE UNITED STATES

CONSTITUTION OF THE UNITED STATES. The Constitution, which has served since 1789 as the basic frame of government of the republic of the United States, was the work of a constitutional convention that sat at Philadelphia from late May 1787 until mid-September of that year. The convention had been called into being as the culminating event of a lengthy campaign for constitutional reform staged by a number of nationalistic political leaders, above all James Madison and Alexander Hamilton, both of whom had long been convinced that the Articles of Confederation were hopelessly deficient as a frame of government. By 1786, the growing somnolence of the Confederation Congress, the manifest incompetence of the Confederation government in foreign affairs, and the obvious state of national bankruptcy, together with the sense of panic and dismay occasioned by Shays's Rebellion in Massachusetts, had at long last spurred the states into concerted action.

The Virginia legislature issued an invitation to its sister states to meet in convention in Philadelphia in May 1787. As one after another of the other states responded, the Confederation Congress reluctantly joined in the call.

Twelve states in all sent delegates to the convention at Philadelphia. Rhode Island alone, then in the grip of a paper-money faction fearful of federal monetary reform, boycotted the meeting. In all, the twelve participating states appointed seventy-four delegates, of whom fifty-five actually put in an appearance. Of these, some fifteen or twenty men were responsible for virtually all of the convention's work; the contribution of the others was inconsequential.

Dominating the convention's proceedings from the beginning was a group of delegates intent upon the creation of a genuinely national government possessed of powers adequate to promote the security, financial stability, commercial prosperity, and general well-being of all of the states. Prominent among them were George Washington, whom the delegates chose as their presiding officer; James Madison, whose leadership in the convention would one day earn him the well-deserved title of "Father of the Constitution"; James Wilson, congressman and legal scholar from Pennsylvania; Gouverneur Morris, a brilliant and conservative aristocrat of New York background, also present as a Pennsylvania delegate; Rufus King, a highly respected veteran congressman from Massachusetts; and Charles Cotesworth Pinckney and John Rutledge of South Carolina, representatives of that state's rice-planter aristocracy. In the nationalist camp also were the aged, garrulous, but vastly prestigious Benjamin Franklin of Pennsylvania; the pretentious but somewhat lightweight Edmund Randolph of Virginia; and Alexander Hamilton, whose extremist beliefs in centralized aristocratic government together with his inability to control the states' rights majority in the New York delegation cast a shadow on his convention role.

The nationalists also could command on most occasions the support of a group of moderate delegates who accepted the necessity for strong central government but were willing to compromise substantially with the convention's states' rights bloc when that proved necessary. Prominent among these men were Elbridge Gerry of Massachusetts, Oliver Ellsworth and Roger Sherman of Connecticut, and Abraham Baldwin of Georgia.

A small, but significant, bloc of states' rights delegates was firmly opposed to the creation of a sovereign national government. Its leaders included William Paterson of New Jersey, the author of the New Jersey Plan; John Dickinson from Delaware; Gunning Bedford of Maryland; and John Lansing and Robert Yates of New York. These men recognized the necessity for constitutional reform but believed strongly that a confederation type of government ought to be retained and that by granting the Congress certain additional powers—above all the power to tax and to regulate commerce—the Articles of Confederation could be converted into an adequate frame of government.

Voting in the convention was by state, each state having one vote. On most occasions, the nationalist bloc controlled the votes of Massachusetts, Pennsylvania, Virginia, and the two Carolinas; on several critical decisions they proved able to muster the votes of Connecticut and Georgia as well. The states' rights party, by contrast, could count upon the votes of New York, New Jersey, Maryland, and Delaware, and occasionally Connecticut and Georgia. (New Hampshire was not yet represented in the convention.) Thus, the nationalist bloc in general controlled the convention. However, the states' rights delegates held one trump card—their implicit threat to break up the convention if they did not obtain certain concessions deemed by them to be fundamental to their cause.

The nationalist faction demonstrated its power at the very outset of the proceedings. Following organization for business, Edmund Randolph rose and in the name of his state presented what has since become known as the Virginia Plan—a proposal for a thoroughly nationalistic frame of government. Without debate the convention accepted the fifteen resolutions of the Virginia Plan as the basis for its further deliberations. The outstanding characteristic of this plan was its provision for a government that would exercise its authority directly upon individuals, in contrast to the Confederation government's dependence upon the states as agents to effect its will. The plan thus called for a genuinely national government rather than one based upon state sovereignty. The Virginia Plan's nationalism was also apparent in the broad sweep of legislative power it granted to Congress: to legislate in all cases in which the states were severally "incompetent." An ill-conceived provision would have empowered Congress to use force against any state derelict in its obligations to the Union, a procedure the nationalists soon recognized as unwise and unnecessary in a genuinely national government that would no longer use the states as agents to effect its will.

For the rest, the Virginia Plan provided for a two-house legislature, the lower house to be elected by the people of the several states and the upper to be elected by the lower out of nominations submitted by the state legislatures. A separately constituted executive officer was to be elected by Congress for an unspecified term and to be ineligible for reelection. There was also provision for a national judiciary, a portion of which, sitting with the executive, was to constitute a "council of revision," with an absolute veto over all legislation.

All this added up to a proposal to junk the Articles of Confederation outright, and to erect a powerful new national government, federal only in that it would still leave to the states a separate if unspecified area of sovereignty. Although several states' rights–oriented delegates objected that this would commit the convention to the establishment of an all-powerful central government, the Randolph-Morris resolution carried almost unanimously, Connecticut alone voting opposition.

The most serious conflict between the nationalist and states' rights factions came over the composition of the legislature. Here the nationalists, after intermittent debate lasting some seven weeks, were eventually forced to compromise, although without vital damage to the principle of nationalism. Madison, Wilson, Morris, and their fellow nationalists began the debate with the demand that both houses of Congress be apportioned according to representation and that the lower house, at least, be elected directly by the people of the several states. Only on the mode of election of the upper house did they show a disposition to compromise: here the convention early accepted unanimously a recommendation by Dickinson that senators be elected by state legislatures. But the states' rights faction, with some support from the moderates, early made it clear that they would accept nothing less than state equality in at least one house. In mid-June, to emphasize their point, they introduced the so-called New Jersey Plan, which called for a one-chamber legislature based upon state equality—that is, a continuation of the Confederation Congress. The New Jersey Plan met prompt defeat, but the impasse remained.

The ultimate solution was found in the so-called Great Compromise, reported early in July by a special Committee of Eleven, one delegate from each state. This provided that the lower house of Congress be apportioned according to population, that each state have one vote in the upper house, but that all bills for raising revenue originate in the lower house. A further resolution, offered by Elbridge Gerry, provided that senators were to vote as individuals and not as state delegations. After two weeks of further debate, the nationalists yielded and accepted the compromise.

The debate on the executive proved to be protracted and difficult, but it too yielded what amounted ultimately to a victory for a strong national government. The nationalists were determined to have a powerful, independently constituted executive, and to this end they soon decided that the provision in the Virginia Plan for election of the president by Congress was altogether unsatisfactory. But for a long time no adequate alternative appeared. Direct popular election, early proposed by Wilson, was rejected as too democratic; choice of the president by state legislatures conceded too much to states' rights.

At length, after protracted debate marked by vacillation and uncertainty rather than bitter dispute, the delegates accepted another idea originally advanced by Wilson: choice of the president by electors chosen by the several states. In early September, a second Committee of Eleven brought in a plan to allot to each state a number of electors equal to its whole number of senators and representatives. Each state was to be allowed to choose its representatives as it wished—thus reserving a role for the states but opening the door for eventual choice of electors by popular vote. The electors, assembled in their separate states, were to vote by ballot for two candidates for president. The candidate receiving the highest total vote among all the states, if this were a majority of the electors, was to be declared elected president, while that candidate receiving the second highest number of votes, if that were also a majority of the electors, was to be declared elected vice president. If no candidate received a majority, the Senate was to elect the president from the five leading candidates. The convention altered the committee proposal only to provide for election of the president by the House of Representatives, voting by states, instead of by the Senate, should no candidate receive an electoral majority. The Senate, in the amended plan, was to elect the vice president.

In practice, the convention's solution to the problem of electing the president was to prove a victory for the proponents of a strong president, for nationalism, and—in the long run—for democracy. The rise of political parties resulted in a situation in which the electoral college, rather than the Congress, commonly chose the president—only one election, that of 1824, being settled in the House of Representatives for want of an electoral college majority for any candidate. The requirement for an electoral college majority also was to prove a powerful factor in encouraging intersectional political parties and the reconciliation of sectional differences, again an important element in the development of American nationalism. Finally, the fact that the finished Constitution allowed the states to choose their electors in any manner they wished opened the way, after 1789, for the selection of electors by direct popular election—a mode of election every state in the Union except South Carolina was to adopt by 1832. Adaptability of the Constitution to the growth of political democracy was to be a major factor in the new charter's remarkable durability.

Equally nationalistic in its long-range implications was the convention's resort to the judiciary to solve the difficult problem of guaranteeing federal sovereignty and national supremacy against incursion by the states. The convention early rejected coercion of derelict states as inconsistent with the prospective government's sovereign character. State coercion, the nationalists had come to realize, implied state sovereignty. A little later the delegates abandoned congressional disallowance of state legislation as also involving a wrong principle; exercise of a veto over unconstitutional legislation, they had concluded, was properly a judicial, rather than a legislative, function.

Quite surprisingly, the states' rights–oriented New Jersey Plan supplied the final solution. This plan carried a clause declaring the Constitution, treaties, and laws of the national government to be the "supreme law of the respective states" and binding the state courts to enforce them as such, anything in their own constitutions and laws to the contrary not withstanding. Following rejection of the congressional veto, the convention adopted the supremacy clause from the New Jersey Plan, at the same time altering its language to make the federal Constitution, treaties, and acts of Congress "the supreme law of the land."

Incorporation of the supremacy clause in the new Constitution was a tremendous victory in disguise for the nationalist cause. On the surface the clause made an agency of the states—the state courts—the final judge of the limits of both federal and state sovereignty, which explains why the states' rights faction acceded so readily to its adoption. But the convention, meanwhile, had also provided for the establishment of a national judiciary, with a Supreme Court and such lower courts as Congress should determine upon, and had vested in the federal courts jurisdiction over all cases arising under the Constitution, treaties, and laws of the United States. By implication, as the nationalists were shortly to realize, this gave the federal judiciary appellate power to review state court decisions involving federal constitutional questions. This in turn meant that the Supreme Court of the United States would possess the ultimate power to settle questions involving the respective spheres of state and federal sovereignty. The Judiciary Act of 1789, virtually an extension of the Constitution itself, was to write into federal law this system of appeals from state to federal courts on constitutional questions. And the Supreme Court in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821) was to confirm the constitutionality of the Supreme Court's role as the final arbiter of the constitutional system.

Meanwhile, in a concession to the states' rights party, the convention had quietly dropped the sweeping delegation to Congress of power to legislate in all cases in which the states were severally "incompetent" and had resorted instead to a specific enumeration of the powers of Congress, as the Articles of Confederation provided. The new Constitution's enumeration, however, was far more impressive than that in the articles. In addition to the familiar authority to legislate upon matters of war, foreign affairs, the post office, currency, Indian affairs, and the like, Congress was also to possess the all-important powers of taxation and regulation of foreign and interstate commerce, as well as authority to enact naturalization, bankruptcy, and patent and copyright laws. Further, the convention in its final draft incorporated an important clause giving Congress the power to enact "necessary and proper" legislation in fulfillment of its delegated powers, and it accepted a vaguely drafted "general welfare clause" that, with the "necessary and proper" provisions, was to serve in the twentieth century as the basis for a tremendous expansion of federal power.

In mid-September 1787 the convention put its various resolutions and decisions into a finished draft and submitted the Constitution to the states for approval. The convention had provided for ratification of the Constitution by conventions in the several states, stipulating that ratification by any nine states would be sufficient to put the Constitution into effect. This mode of ratification gravely violated the provision in the Articles of Confederation for ratification of constitutional amendments by unanimous action of the several state legislatures; but it also gave the Constitution a reasonable chance for adoption, which it otherwise would not have had.

In fact, the Federalists, as the proponents of ratification of the Constitution soon became known, in the next ten months carried every state but two, failing only in Rhode Island and North Carolina. There were several reasons behind their impressive victory. Most important, the Federalists had a positive and imaginative remedy to offer for the country's grave constitutional ills. Their opponents, the Antifederalists, although they opposed the Constitution as a dangerous instrument of potential tyranny, could offer no constructive proposal of their own.

Very influential was the fact that most of the young republic's illustrious public figures—Washington, Franklin, Hamilton, Madison, Jay, Rutledge, King, Pinckney, and Wilson among them—favored ratification. It was a galaxy that quite outshone Antifederalists Patrick Henry, Richard Henry Lee, George Mason, and the vacillating Sam Adams. Such was his immense prestige that Washington's voice alone may well have been decisive in the ratification debate.

The distribution of delegates in the state ratifying conventions also helped the Federalist cause. Delegates to these bodies were in every instance elected from the existing districts of the various state legislatures, most of which had for many years been gerrymandered in favor of the tidewater regions. But it was precisely in these districts that the people generally were most keenly aware of the deficiencies of the Confederation government and that support for ratification was strongest.

The Federalists also won impressive early victories in several less populous states, where public sentiment was heavily influenced by the Constitution's provision for state equality in the Senate. Delaware and New Jersey, which ratified in December; Georgia and Connecticut, which ratified in January; and Maryland, which ratified in April, fell into this category. This initial ratification surge proved to be very favorable psychologically to the Federalist cause.

The Federalists' political strategy also was far superior to that of their opponents. In Pennsylvania, where public sentiment strongly favored ratification, the Federalists first defeated an attempt in the legislature to block the quorum necessary for a convention call. Under Wilson's masterful leadership, the Federalists in December then drove the Constitution through to ratification in the state convention. In South Carolina, the Federalists effectively thwarted an Antifederalist attempt to defeat a convention call. They controlled the subsequent convention without difficulty.

Federalist strategy was most impressive in Massachusetts, Virginia, and New York. In each instance, initial prospects for ratification had been dubious. In Massachusetts, where Antifederalist feeling was exacerbated by bitter memories of Shays's Rebellion, the Federalists first won over John Hancock and Sam Adams with hints of high national office. They then converted a number of marginal Antifederalists by freely accepting a variety of proposals for a federal bill of rights. Ratification followed in February by the narrow vote of 187 to 168. The Virginia convention, which assembled in June, witnessed a spectacular debate between Patrick Henry and Madison, in which the quiet and scholarly Madison used carefully reasoned analysis of the Constitution to refute Henry's impassioned assault. Again, ready Federalist acceptance of proposals for a bill of rights helped carry the day. The Federalists triumphed on the ratification vote (89 to 79). In New York, over two-thirds of the delegates to the June convention were declared Antifederalists, and the state's powerful landed aristocracy also opposed ratification, mainly because of the Constitution's potential impact on New York's revenue system. But the Constitution's supporters earlier had softened public opinion somewhat with a series of newspaper articles by Hamilton, Madison, and Jay, published eventually under the title of The Federalist, which still stands as one of the most brilliant analyses of the Constitution ever written. News that both New Hampshire and Virginia, the ninth and tenth states to ratify, had lately acted favorably and that the Constitution would in any event go into operation badly damaged Antifederalist morale. Again, conciliatory Federalist acceptance of proposed amendments, together with their support for a meaningless resolution calling for a second federal convention, proved decisive. On the final vote the Constitution was ratified (30 to 27).

The Rhode Island legislature, still controlled by hostile paper-money advocates, had refused even to call a convention. In the essentially frontier state of North Carolina, where public sentiment heavily opposed ratification, the state convention, meeting in July, was dominated by Anti-federalists. This body finally adjourned without any formal vote on ratification. At length, in November 1789, a second North Carolina convention, convening several months after the new government had gone into operation, ratified the Constitution without incident. In Rhode Island, a Federalist faction captured control of the state legislature in the spring of 1790. The new assembly promptly called a convention, which ratified the Constitution in May (34 to 32).

Both the drafting and ratification of the Constitution were triumphs for the framers' Enlightenment philosophy: faith in the essentially rational character of man and society, and belief in man's ability to define and solve social and political problems adequately. Indeed the Constitution itself is perhaps best understood as an Enlightenment document, embodying as it does in its preamble the objectives of justice, order, liberty, and the general welfare, and with its explicit and implicit commitments to the ideals of limited government, civil liberties, separation of church and state, the confinement of military power, and an open society.

The Constitution has sometimes been interpreted either as an antidemocratic document—as contrasted with the Declaration of Independence with its profession of faith in universal human equality—or as no more than an instrument of selfish class interests. Both views are superficial and essentially erroneous. The Constitution was adopted by a process far more democratic than was the Declaration of Independence, which was promulgated without any popular validation or consent whatever. At the time of its adoption, the Constitution also was by far the most popular and democratically oriented frame of national government in the world. It provided for a republican government when all others, with a few minor exceptions, were monarchical. Furthermore, in its provisions for a popularly based legislative house and for a president and Senate indirectly subject to democratic processes, in its sharp limitation upon the power of government to punish for treason, and in its general concern for limited government and civil liberties, it went a great deal further in the direction of modern democracy than any other national government then in existence. Moreover, the Constitution's open-ended character, which later made it possible to adapt its provisions to the steady growth of political democracy, was no accident. It expressed instead the self-conscious belief of the framers in the idea of flexibility and growth in government, rather than stifling rigidity.

Nor was the Constitution, viewed in the large, a product of selfish and exclusive class interests. In 1913 the historian Charles A. Beard published An Economic Interpretation of the Constitution of the United States, in which he asserted that the Constitution was the work of an economic elite whose wealth was concentrated in paper: land speculators, bondholders, moneyed merchants and lawyers, and the like. The Constitution, Beard asserted, reflected the interests of this class. In support of his argument, he pointed to the Constitution's provisions banning states from issuing paper money or impairing the obligations of contracts, guaranteeing the national government control over money and credit, and guaranteeing the national debt. But careful research in the 1950s and 1960s has shown that the framers as a group were not especially involved in bondholding and speculative operations and that they were drawn as much from planter, agrarian, and nonspeculative mercantile and legal interests as from any moneyed elite. The Constitution did indeed reflect the special concern of men of property, learning, position, and community standing for stable, well-ordered government. This was hardly narrow selfishness; rather it constituted enlightened patriotism.

BIBLIOGRAPHY

Beard, Charles A. An Economic Interpretation of the Constitution of the United States. New York: Macmillan, 1961.

Bowen, Catherine Drinker. Miracle at Philadelphia: The Story of the Constitutional Convention. Boston: Little, Brown, 1966.

Kenyon, Cecelia. The Anti-Federalists. Boston: Northeastern University Press, 1985.

Main, Jackson Turner. The Anti-Federalists: Critics of the Constitution, 1781–1788. Chapel Hill: University of North Carolina Press, 1961.

McDonald, Forrest. We the People: The Economic Origins of the Constitution. Chicago: University of Chicago Press, 1958.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Knopf, 1996.

Rossiter, Clinton L. 1787: The Grand Convention. New York: Norton, 1987.

Wood, Gordon S. The Creation of the American Republic, 1776– 1787. Chapel Hill: University of North Carolina Press, 1969.

Alfred H.Kelly/a. g.

See alsoAnnapolis Convention ; Bill of Rights in U.S. Constitution ; Civil Rights and Liberties ; Colonial Assemblies ; Commerce Clause ; Connecticut Compromise ; Enumerated Powers ; "Federalist Papers" ; First Amendment ; General Welfare Clause ; Inherent Powers ; Petition, Right of ; Rights of Englishmen ; Search and Seizure, Unreasonable ; Separation of Powers ; War and the Constitution ; andvol. 9:Congress Debates the Fourteenth Amendment ; Constitution of the United States ; The Call for Amendments .