The US Constitution PDF

THE US CONSTITUTION Introduction In a democratic society the constitution tells us how the country is (supposed) to be governed: it carries the details of what we call the social contract between government and people, with a list of rights and responsibilities for both. From then on, it is a nego...

THE US CONSTITUTION Introduction In a democratic society the constitution tells us how the country is (supposed) to be governed: it carries the details of what we call the social contract between government and people, with a list of rights and responsibilities for both. From then on, it is a negotiated process: both sides try to create extra elbow room for themselves. Some of it is done in constitutional ways, some of it is not. There are fundamentally two different democratic constitutional traditions in western civilization. One is the American way: get one and live with it for centuries; the other is the French model from the French Revolution: get a new one with every change of regime (and get rid of the writers of the previous one – which is why they invented the guillotine). The US Constitution The modern definition of a constitution actually comes from the US constitution (the federal constitution) itself: 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. This is what we call the supremacy clause. The constitution is THE supreme law of the land: no law or court decision may contradict it. As you already know, this is one of the sacred texts for Americans. Therefore, many attempts have been made to establish the uniqueness of this constitution. It has been mistakenly identified as the only one ever (that would be the Highlander, a genocidal, sword-wielding character played by Christopher Lambert), it is supposedly the oldest one, the oldest written one, or the oldest written one in effect. All of this is true only in part. Let us see the details. It is not the only one, and for two reasons: there are 51 constitutions in effect in the US right now, and the first one was called The Articles of Confederation and Perpetual Union (1781- 89). The 51, of course, include the US constitution and the 50 state constitutions in effect. Each of the 50 states has its own constitution, but it must comply with the federal one. It is not the oldest constitution either; that would be Hammurabi’s laws from ancient Babylon. The oldest constitution in effect, but unwritten, is the British one. Now, is then the US constitution the oldest written constitution in the world which is still in effect? Still no: that would be the Swiss alliance of Cantons from 1291. Check your pack of “magyar kártya” for details and heroes. What, then, is unique about this particular constitution? It is the modern world’s first democratic constitution, and it has served as a model for many constitutions to come, all around the world. It is an 8,000-word document which is by no means perfect, but which has been the basis of the political consensus in the United States ever since its adoption on March 4, 1789. It includes many civil liberties which now we take for granted, but which had to be developed during the world’s greatest democratic experiment (a generally accepted way of describing US history). The philosophical sources of the US constitution include Aristotle’s natural rights theory, Rousseau’s concept of social contract, and Montesquieu’s ideas about the separation of powers. Added to this were the traditions of British common law, and the genius of the Founding Fathers. Without any of these, our world would be fundamentally different today. Natural rights philosophy argues that you, as a human being, are born with inalienable rights. As Jefferson put it in the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. The second and third THAT in Jefferson’s text above refers to the social contract: people of a given state (country) give up some of their rights and vest them in a government which in turn provides them with services they alone could not guarantee for themselves, e.g. national defense. And it is a contract indeed: if the government violates it, the people have the right to 2get rid of that government and create a new and better one. In The Spirit of the Laws, Montesquieu went a step further in developing the theory of democratic government by calling for the separation of the three branches of power (that is, government): the legislative, executive, and judicial ones. What the founders invented and provided was an elaborate system of checks and balances among the three branches, in an attempt to prevent any one (or two) of the three from introducing tyranny (the opposite of democracy). For a chart, see: http://www.cyberlearning-world.com/lessons/checks.and.balances.chart.answers.jpg British common law, a system most of the founders grew up with, provided the legal background for the new country. Two features you are surely familiar with: the rule of precedent in legal decisions, and the rule that you should never stand trial for the same crime twice. The former has been the cornerstone of the constitutional development of the US, and you might remember the latter from Witness for the Prosecution (1957, http://www.imdb.com/title/tt0051201/) featuring Marlene Dietrich at the peak of her career in 2 one of the best film adaptations of an Agatha Christie play ever. The Three Parts of the US Constitution The US Constitution has three parts: the Preamble, the seven Articles, and the (so far) 27 Amendments. Let us take a closer look at all three. The Preamble is a statement of purpose; it explains why the Founding Fathers thought they needed a new one to replace the Articles of Confederation. It begins with the two (plus the definite article) most important words of democracy: WE, the PEOPLE. The rest? To create a more perfect union (one that actually works), to provide for domestic peacekeeping and common defense, etc. N.B.: For more details see the website above on the document itself, and the explanations and supplementary materials provided there. These issues will be raised in your exam, and if you do not understand some of it, you are welcome to start a discussion in class. The seven Articles make up the (rest of the) body of the original document. Article 1 describes the Congress (the legislature): it explains how it is set up, who and under what circumstances can become a member of the two houses, and what the Congress may and may not do. It is what we would today call a detailed job description. Read together with Articles 2 (the executive) and 3 (the judiciary), it gives you a pretty good understanding of checks and balances. The key to all this is the process of impeachment: it is the constitutional means of legally removing any federal official for crimes or misdemeanors, or for violating the oath of office. Look at the introductory sentence of each of the first three Articles: this is the separation of powers. “All legislative powers herein granted shall be vested in a Congress of the United States;” and “The executive power shall be vested in a President of the United States;” and “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Pretty powerful stuff from the 1780s, is it not? Article 4 deals with interstate relations and with any of the states getting into trouble with a foreign country. Article 5 describes the means of amending the Constitution: these are NOT changes but additions TO it. Article 6 deals with general provisions: public debt, the supremacy clause, and oath of office without any religious test. Article 7 explains how the Constitution is to be ratified for it to come into effect. The Constitution was made on compromises. This is apparent in the way big and small states are represented in the two houses of Congress, in how African-American slaves were counted for the purposes of taxation and representation (the so-called “three-fifths compromise”) but how they were denied any civil liberties, etc. What is conspicuously missing from the original document is the first three words, “We, the people,” that is, the rights of the citizens. This is why we call this a federalist constitution: it 3 describes the rights and responsibilities of the federal government, and regulates some additional things, including amendment and ratification. In what came to be called the “ratification deal,” the founders agreed that civil liberties would be added in a block, as the first Amendments. There are 27 Amendments today, of which the first 10 are collectively called the Bill of Rights. It includes the civil liberties mentioned in the previous paragraph, and was added in 1791, two years after the ratification of the original document. If you check out your detailed notes, you will see that the next ten (11-20) took almost 150 years. We will discuss the Bill of Rights in a subsequent unit. The 12th one totally reshaped the election process: up to that point, the runner-up in the election automatically became the vice-president, mostly because we had two candidates, so one of them surely won half of the electoral votes plus one. In 1800, however, they simply could NOT elect a president, because there were several candidates. The deadlock was resolved (in a rather strange way including a pistol duel half a decade later), and the Constitution was rewritten, but, officially, only “amended” to allow for a separate ballot for president and vice president. The 13th, 14th and 15th Amendments are collectively called the Reconstruction Amendments. All three deal with the civil rights of people of color, and reflect the changes that came AFTER the Civil War of 1861-65. The 13th abolished slavery (after Lincoln had died, so he did not, whatever you were taught in school), the 14th broadened civil liberties, and the 15th banned discrimination on the basis of the color of the skin. Amendments 16-19 are collectively called the Progressive Amendments, because they were ratified in the Progressive Era (the first two decades of the 20 th century). These represented major steps towards modern democracy: the 16th introduced income taxes while the 17th ruled for the DIRECT election of US Senators. The 18th introduced a ban on the production and selling of alcoholic beverages except for medical purposes (this is Prohibition, and the ONLY Amendment repealed by a subsequent one, the 21st in 1933). The 19th gave women the vote, and thus more than doubled the electorate, the people who could legally take part in the democratic process of electing and being elected. The 20th moved inauguration (see the unit on elections) forward to January 20th while the 22nd introduced the two-term limit. The others regulate the election process and the office of president of the United States. The 27 th one ruled that any pay-raise takes effect only after the next election: that is, Congress cannot raise its own wages. The most famous non-Amendment is the twice failed Equal Rights Amendment (ERA) for women. If you have read the amendment process you understand that proposed amendments are first cleared in Congress and then sent to the States, usually with a time frame attached. The “elegant” way of killing off an amendment is NOT voting it down, but failing to vote on it in the state legislature within the time frame provided. This is how the ERA was killed off first in the 1920 and then in the 1970s. 4 The Rule of Precedent One key element of the American constitutional tradition is the rule of precedent, directly borrowed from the British legal tradition. The two things you must understand are the judicial review and the role of Supreme Court decisions. The judicial review is the right of the Supreme Court of the Unite States to review and declare any act of Congress or presidential decree unconstitutional. This, of course, is part of checks and balances, but the founders forgot to write it into the Constitution. The judicial review entered the American constitutional tradition only in 1803 (a full 20 years after independence) in the form of a Supreme Court decision. The story in brief is: Chief Justice John Marshall understood the mistake and talked an office seeker (Marbury) into suing the government on the basis of a federal law he (Marshall) did not like very much. In the so-called Marbury v. Madison (one of the Founding Fathers and the 4th president) case of 1803, the Supreme Court declared the law in question unconstitutional. It thus set a precedent for the Supreme Court as two courts in one: the highest court of appeals and the constitutional court. When something exists not as written law but as precedent, we usually call it customary law. And this is the case with the judicial review. There are no courts above the Supreme Court: its decisions become the law automatically. There are some Supreme Court decisions that every student of American democracy must be familiar with. I shall explain some of them here, and others in subsequent units. The first such case is the Dred Scott decision of 1857. In the turbulent times just preceding the Civil War, slavery was the key political issue of the day. The Court ruled that slavery is for life, and you may not become free by simply crossing the border into a free state. It also ruled that all restrictions on slavery were unconstitutional, thus causing a constitutional crisis, which I will explain in a subsequent unit. In the constitutional history of the US there is ONE single case in which a precedent set by the Court was overturned. The 1896 Plessy vs. Fergusson decision sanctified segregation by introduction of the “separate but equal” doctrine, while the 1954 Brown vs. the Board of Education of Topeka County, Kansas decision ruled that “if it is separate, it cannot be equal.” Of the hundreds of Supreme Court decisions the 1973 Roe vs. Wade decision stands out as arguably the most controversial one, although it should not be: it legalized abortion for the first time in US history, thus giving women the choice of what to do with their own body once becoming pregnant. It is one of the most important rights of women, and one of the greatest achievements of the post-19th Amendment women’s movements. Unit 2, American Culture and Institutions, Distance Learning Program, University of Debrecen, North American Department, GT 5