Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P15 pdf

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 politic al 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
Constitutional Convention of 1787
T
B
he Constitutional Convention of 1787 is a high
point in the history of the United States. This
remarkable assemblage of men, meeting in Philadel-
phia between May 23 and September 17, 1787,
created the document that has given the United
States one of the most stable and admired constitu-
tional democracies in the history of the world.
Fifty-five 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 overthe 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.
Themeetingsoftheconventionwereclosedto
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 dele-
gates 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 ph ases. The first, from May 23 to July 26,
created the basic features of the national govern-
ment, including its division into legislative, execu-
tive, and judicial branches. During this phase,

delegates also arrived at one important compro-
mise 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, par-
ticularly 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 o f the 4 2 delegates present
signed the Consti tution. Gouverneur Morris, coau-
thor 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 govern-
ment 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.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
128 CONSTITUTION OF THE UNITED STATES
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 t he federal
government—made up of the executive, legisla-
tive, and judicial branches—power to m ake
decisions regarding such issues as war, national
defense, and trade with foreign c ountries. 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, t he federal
government t ook on responsibilities in the
oversight of local school districts after the
Supreme C ourt, in
BROWN V. BOARD OF EDUCATION,
347 U.S. 483, 74 S . Ct. 6 86, 98 L. Ed. 873 (1954),
ruled t hat 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.
Browne, Ray B., and Glenn J. Browne. 1986. Laws of Our
Fathers: Popular Culture and the U.S. Constitution.
Bowling Green, Ohio.: Popular.
Corwin, Edward S. 1978. The Constitution and What It
Means Today. Princeton, NJ: Princeton Univ. Press.
Hamilton, Alexander, James Madison, and John Jay. 1787–
88. The Federalist Papers. Clinton Rossiter, ed. 2003,
New York: Signet Classics.
Harrigan, John J. 1996. Politics and the American Future:
Dilemmas of Democracy. 4th ed. New York: McGraw-Hill.
Levy, Michael B. 1988. Political Thought in America: An
Anthology. 2d ed. Florence, Ky.: Brooks Cole.
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.
Rawle, William. 2009. A View of the Constitution of the
United States of America. 2d ed. Durham, N.C.:
Carolina Academic.
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 Constitu-
tion. Clark, N.J.: Lawbook Exchange.
“U.S. Constitution Online.” USConstitution.net Web site.
Available online at />(accessed August 30, 2009).
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 PARTY
The Constitu tion Party was founded in 1992 as
the U.S. Taxpayers Party. The man who was
most responsible for establishing the party was
Howard Phillips , a veteran conservative political
activist who had left the
REPUBLICAN PARTY in
1974 after feeling that the party was insuffi-
ciently conservative. Phillips has been the
dominant figure in the party since its founding,
running as its presidential candidate in 1992,
1996, and 2000.
Phillips had been involved in the Republican
Party since his early teens, when he decided to
chart a different course. He had served as
chairman of the Boston Republican Party, as a
staff member at the Republican National
Committee in Washington, D.C., and finally
as the director of the Office of Economic
Opportunity under President
RICHARD NIXON,
with an explicit mandate to dismantle the
program. When, because of political con-
straints, he was not allowed to do this, he quit
the administration and established the Conser-
vative Caucus, a lobbying group that became

somewhat influential during the presidency of
RONALD REAGAN.
Phillips decided that the next step was to
form a poli tical party, according to his web site,
with “the common goal of limiting the federal
government to its Constitutional boundaries
and restoring the foundations of civil govern-
ment back to the fundamental principles our
country was founded upon.” The party that he
formed in 1992 was named the U.S. Taxpayers
Party, and befitting its name it committed itself
to stopping all federal expenditures that were
not specifi cally authorized by the U.S. Consti-
tution, and to “restore to the states those
powers, programs, and sources of revenue that
the federal government has usurped.”
Though the original party that Phillips
formed had a primarily fiscal purpose, it also
took strong conservative stands on social issues,
advocating making abortion illegal in all
instances, supporting a moratorium on
IMMI-
GRATION
into the United States, and calling
for the abolition of all welfare programs.
Taking this platform nationwide, Phillips and
his running mate, Albion Knight, managed to
get on the presidential ballot in 21 states
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CONSTITUTION PARTY 129

and garnered approximately 40,000 votes in the
1992 presidential campaign. In 1996, Phillips
and running mate, Herb Titus, managed to
get on the ballot in 39 states and won 182,000
votes.
In 1999 the U.S. Taxpayer Party renamed
itself the Constitution Party. With Phillips once
again its presidential candidate, this time running
with Dr. J. Curtis Frazier, the party was able to
gain access to the ballot in 42 states. However,
the totals for Phillips this time were lower than
he had received in 1996—approximately 98,000
votes. For the 2004 election, the Constitution
Party has as its goal to get its presidential ticket
on all 50 states.
The Constitution Party does not only run
presidential candidates. For the 2002 election, at
least 20 states had candidates affiliated with the
Constitution Party running for office, for
positions ranging from governor and U.S.
Senate down to city council and state house.
In Nevada alone, the party had affiliated
candidates for 30 offices for the 2002 election.
In Wisconsin, the party has two affiliated
elected officials: an alderman and a county
supervisor.
The Constitution Party takes strongly con-
servative stands on a variety of issues. The party’s
preamble to its 2000 National Platform views the
American political system with a strongly reli-

gious bent. “The U.S. Constitution established a
Republic under God, rather than a democracy,”
it states. “Our Republic is a nation governed
by a Constitution that is rooted in Biblical
law, administered by representatives who are
Constitutionally elected by the citizens.”
On abortion, the Constitution Party ’s 2000
platform stated that “Roe v. Wade is illegitimate,
contrary to the law of the nation’s Charter and
Constitution. It must be resisted by all civil
government officials, federal, state, and local,
and by all branches of the government—
legislative, executive, and judicial.” It argues
that abortion should be illegal nationwide.
Regarding the prevention of AIDS, the
Constitution Party states in its platform,
“Under no circumstances should the federal
government continue to subsidize activities
which have the effect of encouraging perverted
or promiscuous sexual conduct. Criminal
penalties should apply to those whose willful
acts of omission or commission place members
of the public at risk of contracting AIDS
or HIV.”
For members of Congress, the Constitution
Party suggests abolishing federal pay for mem-
bers of Congress, and abolishing Congressional
pensions. It also advocates abolishing the
direct election of Senators and returning that
function t o the state legislatures. It supports

repealing all laws that delegate legislative powers
to regulatory agencies, bureaucracies, private
organizations, the
FEDERAL RESERVE BOARD, inter-
national agencies, the president, and the
judiciary.
On national defense, the Constitution Party
platform advocates “maintenance of a strong,
state-of-the-art military on land, sea, in the air,
and in space.” It opposes allowing U.S. forces to
serve under any foreign flag or command.
However, it also opposes “the Presidential
assumption of authority to deploy American
troops into combat without the consent of
Congress.”
The Constitution Party would like to see the
DEPARTMENT OF EDUCATION abolished, and it also
supports the elimination of the FOOD AND DRUG
ADMINISTRATION
, the Federal Reserve Board, the
National Security Administration, and the
INTERNAL REVENUE SERVICE. It supports voluntary
SOCIAL SECURITY and would change the tax system
to offer an apportioned “state-rate tax” in
which the responsibility for covering the cost
Chuck Baldwin ran
as the Constitution
Party’s candidate in
the 2008 presidential
election and received

384,722 votes.
SCOTT J. FERRELL/
CONGRESSIONAL
QUARTERLY/GETTY
IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
130 CONSTITUTION PARTY
of federal obligations unmet by a tariff on
foreign products will be divided amon g the
several states in accordance with their propor-
tion of the total population of the United States,
excluding the District of Columbia. Under this
system, if a state contains 10 percent of the
nation’s citizens, it will be responsible for
assuming payment of 10 percent of the annual
deficit.
On foreign affairs, The Constitution Party
would like to see the United States withdr aw
from all international monetary and financial
institutions and agencies, including the
INTERNA-
TIONAL MONETARY FUND
(IMF), the WORLD BANK ,
the World Trade Organization (WTO),
the
NORTH AMERICAN FREE TRADE AGREEMENT
(NAFTA), and the GENERAL AGREEMENT ON TARIFFS
AND TRADE
(GATT). It wants to terminate all
programs of foreign aid, whether military or

non-military, to any foreign government or
to any international organization. It would
withdraw the United States from the North
Atlantic Treaty Organisation (NATO), and
would withdraw recognition of Communist
China, which its platform describes as a
murderous and tyrannical regime enslaving the
Chinese people.
The Constitution Party refuses to take any
federal funds for its presidential campaig ns. The
party made it clear after the 2000 campaign that
it planned to be around for a while. On its web
site, it stated, “In light of the widespread need
across the country, the party is fully dedicated to
building party strength and organization at the
State, County and local level.”
FURTHER READINGS
The Constitution Party Web site. Available online at http://
www.constitutionparty.com (accessed July 15, 2009).
Lieb, David A. “Constitution Party Claims Inroads, Despite
Loss.” Associated Press. Available online at http://
abcnews.go.com/Politics/comments?type =story&id=
6227351; website home page:
(accessed August 30, 2009).
Lucier, James P. 2000. “Phillips Leads the Way for
Constitutionalists.” News World Communications, Inc.
Insight on the News (Sept 25).
CROSS REFERENCES
Democratic Party; Elections; Republican Party; Roe v. Wade.
CONSTITUTIONAL

That which is consistent with or dependent upon
the fundamental law that defines and establishes
government in society and basic principles to
which society is to conform.
A law is constitutional when it does not
violate any provision of the U.S. Constitution or
any state constitution.
CONSTITUTIONAL AMENDMENT
The means by which an alteration to the U.S.
Constitution, whether a modification, deletion, or
addition, is accomplish ed.
Article V of the U.S. Constitution establishes
the means for amending that document
according to a two-step procedure: proposal of
amendments, followed by ratification. Amend-
ments may be proposed in two ways: by a two-
thirds vote of both houses of Congress or by a
special convention summoned by Congress on
the petition of two-thirds (34) of the state
legislatures.
In the long history of the U.S. Constitution,
more than 5,000 amendments have been intro-
duced in Congress. Only 33 of these have been
formally proposed by Congress, and none has
ever been proposed by a special convention.
No matter which method is used for the
proposal of a constitutional amendment, Con-
gress retains the power to decide what method
will be used for ratification: approval of three-
fourths (38) of the state legislatures, or approval

of three-fourths (38) of special state conven-
tions. Congress may also place other restrictions,
such as a limited time frame, on ratification.
Of the 33 amendments proposed by Con-
gress, 27 were ratified. Of the amendments
ratified, only one—the
TWENTY-FIRST AMENDMENT,
which repealed a prohibition on alcohol—was
ratified by the state convention method. The
rest have been ratified by three-fourths of the
state legislatures.
The process for amending the Constitution
is deliberately difficult. Even when an amend-
ment is proposed by Congress, it has taken, on
average, two-and-a-half years for it to be
ratified. That difficulty creates stability, with
its accompanying advantages and disadvantages.
The advantages lie in the fact that the
Constitution’s provisions are not subject to
change according to the whims of a particular
moment. The disa dvantages inhere in the reality
that the Constitution must also adapt and be
relevant to a changing society. Given the
difficulty of amendment, much of the burden
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CONSTITUTIONAL AMENDMENT 131
of adapting the Constitution to a changing
world has fallen on the shoulders of the
Supreme Court and its powers of
JUDICIAL

REVIEW
, which have been described as an
informal method of changing the Constitution.
However, constitutional amendments may in
turn modify or overturn judicial opinion, as was
the case with the Eleventh, Thirteenth, Four-
teenth, Sixteenth, Nineteenth, Twenty-fourth,
and Twenty-sixth Amendments.
Commentators have also pointed out that
the amendment process is not a very democratic
one. As the constitutional scholar
EDWARD
S
. CORWIN w rote: “A proposed amendment can
be added to the Constitution by thirty-eight
states containing considerably less than half of
the population of the country, or can be defeated
by thirteen states containing less than one-
twentieth of the population of the country.”
Brief History of Constitutional
Amendments
Before the creation of the U.S. Constitution in
1787, constitutional amendments had already
been instituted as part of several early state
constitutions. The pioneering framers of these
state constitutions recognized the need to
incorporate an element of flexibility into
CONSTITUTIONAL LAW, and they provided for
constitutional amendment through the legisla-
ture or through special conventions. However,

the first na tional
CONSTITUTION OF THE UNITED
STATES
,theARTICLES OF CONFEDERATION,didnot
have such flexibility. Amendment of that docu-
ment required a unanimous vote of Congress,
nearly impossible to achieve.
The Framers of the U.S. Constitution sought
to avoid the inflexibility of the Artic les of
Confederation.
JAMES MADISON, one of the
principle architects of the Constitution, argued
in The Federalist Papers that the new compact’s
amendment procedures, unlike those of the old
Articles, protected “equally against that extreme
facility, which would render the Constitution
too mutable, and that extreme difficulty, which
might perpetuate its discovered faults.”
Proving the truth of Madison’s contention,
the first ten amendments to the Constitution
were passed as a package by the first session of
Congress in 1791. This group of amendments is
called the
BILL OF RIGHTS. The Bill of Rights
fulfilled a promise that the backers of the
Constitution, known as the Federalists, had
made during the ratification procedure of the
Constitution. It guarantees specific liberties
relating to (1) rights of conscience, including
the freedoms of speech, press,

RELIGION, and
peaceable assembly (
FIRST AMENDMENT); (2) rights
of the accused, including freedom from “unrea-
sonable searches and seizures” (
FOURTH AMEND-
MENT
), freedom from compulsory SELF-INCRIMI-
NATION
(FIFTH AMENDMENT), the “right to a speedy
and public trial, by an impartial jury” and with
legal counsel (
SIXTH AMENDMENT), and freedom
from “excessive bail” and “cruel and unusual
punishments” (
EIGHTH AME NDMENT); and (3)
rights of property, including freedom from
seizure of property without “due process of
law” (Fifth Amendment).
Subsequent amendments have dealt with
many different issues, including the extent of
federal judicial jurisdiction (
ELEVENTH AMEND-
MENT
[1795]), the method of electing the
president (
TWELFTH AMENDMENT [1804]), the
abolition of SLAVERY (THIRTEENTH AMENDMENT
[1865]), legalization of the INCOME TAX (SIXTEENTH
AMENDMENT

[1913]), granting women the right to
vote (
NINETEENTH AMENDMENT [1920]), presidential
succession (TWENTY-FIFTH AMENDMENT [1967]),
and the voting age (
TWENTY-SIXTH AMENDMENT
[1971]).
The
FOURTEENTH AMENDMENT (1868), w hich
holds that no state shall “deprive any person of
life, liberty, or property, without
DUE PROCESS OF
LAW
; nor deny to any person … the EQUAL
PROTECTION
of the laws,” has arguably been the
most important and far-reaching of all the
amendments, particularly with regard to its Due
Process and Equal Protection Clauses. Through
the Fourteenth Amendment, most of the
provisions of the Bill of Rights were eventually
applied to the states.
In 1972 the
EQUAL RIGHTS AMENDMENT (ERA)
was formally proposed by Congress. The ERA,
which would have forbidden discrimination on
the basis of sex, failed to gain ratification within
the seven-year deadline proposed by Congress,
even after a 39-month extension through
June 30, 1982.

FURTHER READINGS
Amar, Akhil R. 2000. The Bill of Rights: Creation and
Reconstruction. New Haven, Conn.: Yale Univ. Press.
Antieau, Chester James. 1995. A U.S. Constitution for the
Year 2000. Chicago: Loyola.
Corwin, Edward S. 1978. “Article V.” In The Constitution
and What It Means Today. 14th rev. ed. Harold
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
132 CONSTITUTIONAL AMENDMENT
W. Chase and Craig R. Ducat, eds. Princeton, NJ:
Princeton Univ. Press.
Gilbert, Robert E., ed. 2000. Managing Crisis: Presidential
Disability and the Twenty-fifth Amendment. Bronx,
N.Y.: Fordham Univ. Press.
Gonzalez, Carlos E. 2002. “Popular Sovereign Versus
Government Institution Generated Constitution al
Norms: When Does a Constituti onal Amendment
Not Amend the Constitution?” Washington Univ. Law
Quarterly 80 (spring).
Harrigan, John J. 1984. Politics and the American Future.
Reading, MA: Addison-Wesley.
Hunt, Bernice Kohn. 1974. The Spirit and the Letter: The
Struggle for Rights in America. New York: Viking.
Palmer, Kris E., ed. 2000. Constitutional Amendments, 1789
to the Present. Detroit: Gale Group.
Strauss, David A. 2001. “The Irrelevance of Constitutional
Amendments.” Harvard Law Review 114 (March).
Vile, John R. 2003. Encyclopedia of Constitutional Amend-
ments, Proposed Amendments, and Amending Issues,
1789–2002. 2d ed. Denver, CO: ABC-CLIO.

CROSS REFERENCE
Constitution of the United Stat es.
CONSTITUTIONAL LAW
Constitutional law is the written text of the state
and federal constitutions. It includes the body of
judicial precedent that has gradually developed
through a process in which courts interpret, apply,
and explain the meaning of particular constitu-
tional provisions and principles during a legal
proceeding. Executive, legislative, and judicial
actions that conform to the norms prescribed by
a constitutional provision are also included.
The text of the U.S. Constitution is marked
by four characteristics: a delegation of power, in
which the duties and prerogatives of the execu-
tive, legislative, and judicial branches are delin-
eated by express constitutional provisions; a
SEPARATION OF POWERS, in which the responsibili-
ties of government are divided and shared among
the coordinate branches; a reservation of power,
in which the sovereignty of the federal govern-
ment is qualified by the sovereignty reserved to
the state governments; and a limitation of power,
in which the prerogatives of the three branches
of government are restricted by constitutionally
enumerated individual rights,
UNENUMERATED
RIGHTS
derived from sources outside the text of
the Constitution, and other constraints inherent

in a democratic system in which the ultimate
source of authority for government action is the
consent of the people.
In deciding their cases, courts look to these
constitutional provisions and principles for
guidance. Once a court has interpreted a
constitutional provision in a certain fashion, it
becomes a precedent. Under the doctrine of
STARE DECISIS, t he judicial branch is required to
adhere to existing precedent in all future cases
presenting analogous factual and legal circum-
stances, unless it has a compelling reason for
deviating from the precedent or overruling it.
A state or federal law is said to be
constitutional when it is consistent with the text
of a constitutional provision and all relevant
judicial interpretations. A law that is inconsis-
tent with either the written text or judicial
interpretation of a constitutional provision is
unconstitutional.
The Constitution
The U.S. Constitution is the highest law in the
land and the foundation on which all U.S. law
has been built. By establishing a structure for
the federal government and preserving certain
areas of sovereignty for the states, the Constitu-
tion has created a system of government that
has allowed every area of civil, criminal, and
administrative law to evolve with the needs of
society. The federal Constitution became bind-

ing on the U.S. people in 1788 when New
Hampshire, pursuant to Article VII, became the
ninth state to vote for ratification.
The federal Constitution comprises seven
articles and 26 amendments. Articles I, II, and
III set forth the basic structure of the U.S.
government. Article I defines congressional
lawmaking powers, Article II sets forth the
presidential executive powers, and Article III
establishes federal judicial powers. The first ten
amendments to the U.S. Constitution, known as
the
BILL OF RIGHTS, enumerate certain individual
liberties that must be protected against govern-
ment infringement. The rest of the Constitution
contains miscellaneous other provisions, many
of which are intended to maintain a federalist
system of government in which the federal
Constitution is the supreme
LAW OF THE LAND
and the federal government shares sovereignty
with the states.
Article I: The Lawmaking Power Article I of
the Constitution allocates the lawmaking power
to Congress. Section 1 provides that “[a]ll
legislative Powers herein granted shall
be vested in a
CONGRESS OF THE UNITED STATES,
which shall consist of a Senate and a House
of Representatives.” Article I also requires

that candidates running for the Hou se of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CONSTITUTIONAL LAW 133
Representatives be elected directly by the
residents of each state. Originally, Article I
endowed the state legislatures with the power to
choose members of the Senate. However, the
SEVENTEENTH AMENDMENT now requires all sena-
tors to be elected directly by the people of their
home state.
Section 8 enumerates specific lawmaking
powers that Congress may exercise. These
include the power to declare war; raise and
support armies; provide and maintain a navy;
regulate commerce; borrow and coin money;
establish and collect taxes; pay debts; establi sh
uniform laws for
IMMIGRATION, naturalization,
and
BANKRUPTCY; and provide for the common
defense and
GENERAL WELFARE of the United
States. Both the Senate and the House must
approve all bills before they are submitted to the
president. If the president vetoe s a bill, Section 7
authorizes Congress to override the veto by a
two-thirds vote in both houses. Because Con-
gress is a public bod y, this article requires the
House and Senate to record and publish its
proceedings, including the votes made by any of

its members.
Section 8 also grants Congress the power to
pass all laws that are “necessary and proper” to
the performance of its legislative function. In
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
4 L. Ed. 579 (1819), the Supreme Court broadly
interpreted the
NECESSARY AND PROPER CLAUSE to
grant Congress the implied powers to enact all
laws that are useful, convenient, or essential to
fulfilling its lawmaking and fiscal responsibili-
ties.
THOMAS JEFFERSON had earlier argued that the
necessary and proper clause authorized Con-
gress only to enact measures that are indispens-
able to the implementation of the enumerated
powers.
Congress frequently relies on its authority
to regulate commerce as a justificat ion for the
legislation it enacts. Section 8 gives Congress
the “power to regulate commerce among the
several states.” In Gibbons v. Ogden, 22 U.S.
(9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme
Court ruled that congressional power to regu-
late commerce is plenary (complete in itself)
and extends to all interstate commerce (com-
mercial activity that concerns more than one
state). The Court said that intrastate commerce
(commercial activity that is conducted exclu-
sively within one state) is beyond the reach of

this congressional power.
Congressional commerce power reached its
zenith in Wickard v. Filburn, 317 U.S. 111, 63 S.
Ct. 82, 87 L. Ed. 122 (1942), where the Supreme
Court ruled that Congress has authority to
regulate a family farm that produces and
consumes its own wheat. The Court said that
“even if [a farm’s] activity be local, and though
it may not be regarded as commerce, it may
still … be reached by Cong ress, if it exerts a
substantial economic effect on interstate
commerce … irrespective of whether such
effect [is] direct or indirect.”
This seemingly unfettered power was later
limited, in United States v. Lopez, 514 U.S. 549,
115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where
the Supreme Court ruled that mere possession of
a gun at or near a school does not substantially
affect interstate commerce and may not
be regulated at the federal level. Although the
interstate commerce power has been given
an expansive reading in modern times, the
Court said in Lopez, the scope of congressional
authority i n this area
must be considered in light of our dual
system of [state and federal] government and
may not be extended so as to embrace effects
upon interstate commerce so indirect and
remote that to embrace them, in view of our
complex society, would effectually obliterate

the distinction between what is national
and what is local and create a completely
centralized government.
Article I of the Constitution not only delegates
specific powers to Congress, it also forbids
Congress to take certain action. Section 9, for
example, prohibits Congress from passing bills of
attainder and
EX POST FACTO LAWS.(Abill of
attainder is a legislative act that imposes punish-
ment on a party without the benefit of a judicial
proceeding. An ex post facto law makes criminal or
punishesconductthatwasnotillegalatthetimeit
occurred.) Section 9 further prohibits Congress
from suspending
HABEAS CORPUS (a citizen’srightto
protection against illegal imprisonment) except as
may be necessary to preserve national security in
time of rebellion or invasion. Although the
Constitution delegated this power to Congress,
President
ABRAHAM LINCOLN suspended habeas
corpus during the Civil War without congressio-
nal assent. Article I also restricts the power of state
legislatures, such as the power to make treaties,
alliances, and confederations.
ArticleII:TheExecutivePowerCongres-
sional power is not absolute. The Frame rs of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
134 CONSTITUTIONAL LAW

the Constitu tion were familiar with the abuses
of absolute power. In the century preceding the
American Revolution, the English Parliament
acquired unlimited sovereignty. This arrange-
ment replaced an earlier system of government
in which the English monarchy ruled with a
tyrannical scepter. In the United States, the
Framers sought to create a system of checks and
balances in which the executive and legislative
branches would share power with each other
and with the judiciary. In this light, many of the
powers delegated to the president must be
viewed in conjunction with the powers delegated
to the coordinate branches of government.
Article II provides that “[t]he executive Power
shallbevestedinaPresidentoftheUnited
States … [who] shall hold … Office during the
Term of four Years … together with the Vice
President.” The
ELECTORAL COLLEGE, which pro-
vides the method by which the president and vice
president are elected, derives its constitutional
authority from Article II as well as from the
Twelfth and Twenty-third Amendments.
The Twenty-second Amendment limits the
president to two terms in office, and the Twentieth
and Twenty-fifth Amendments set for th the order
of succession for presidents who are unable to
begin their term or continue in office.
Article II, Section 2, makes the president the

commander in chief of the armed forces. But
only Congress has the power to declare war.
Between these two powers lies a gray area
in which presidents have exercised the preroga-
tive to commit U.S. troops to foreign military
excursions without congressional approval. The
U.S. involvement in the
VIETNAM WAR resulted
from one such exercise of power. In response to
these executive maneuvers, Congress passed the
War Powers Resolution (Pub. L. No. 93-148
[codified at 50 U.S.C.A. §§ 1541 et seq.]), which
restricts the president’s authority to involve the
United States in foreign hostilities for more than
60 days without the approval of Congress.
The president also shares power with
Congress in other areas under Article II. Section
2 authorizes the president to make treaties with
foreign governments, but only with the
ADVICE
AND CONSENT
of the Senate. The president must
also seek senatorial approval when appointing
ambassadors; federal judges, including Supreme
Court justices; and other public ministers.
Section 4 states that the president may be
removed from office only through
IMPEACHMENT
for “Treason, BRIBERY, or other High Crimes and
Misdemeanors.” The House is responsible for

drafting
ARTICLES OF IMPEACHMENT (accusations of
misconduct), and the Senate is responsible for
holding an impeachment trial. A two-thirds
vote in the Senate is required for conviction.
The United States revisited the issue of what
constitutes a High Crime and Misdemeanor
during the impeachment proceedings against
President
WILLIAM JEFFERSON CLINTON. In 1998 the
U.S. House of Representatives approved
two articles of impeachment against President
Clinton, accusing the president of having
committed the crimes of perjury and
OBSTRUC-
TION OF JUSTICE
to conceal his relationship
with White House intern Monica Lewinsky.
The impeachment trial was then held before
the Senate from January 7, 1999, through
February 12, 1999.
Clinton supporters generally opposed im-
peachment on grounds that c oncealing a
private, extramarital affair should not constitute
an impeachable high crime or misdemeanor.
Clinton detractors generally supported impeach-
ment on grounds that perjury and obstruction
of justice are felony-level offenses that render a
chief executive who is guilty of such offenses
incompetent to discharge the duties of his

office. Clinton supporters contended that past
presidents had concealed their extramarital
affairs without it rising to the level of an
impeachable offense, and Clinton detractors
countered by arguing that the president was
not being impeached for having an extra-
marital affair but for committing crimes to
conceal it.
Scholars debated the merits of the Clinton
impeachment proceedings as well. However,
constitutional historians on both sides of the
debate generally agreed that the phrase High
Crimes and Misdemeanors had no settled usage
at the time the Constitution was ratified by the
states, except that the Founding Fathers rejected
proposals that would have allowed for impeach-
ment in cases of maladministration, malpractice,
or neglect of duty. The Founding Fathers favored
a chief executive who was subject to constitu-
tional checks and balances, but not one who was
weak and easy to remove by political opponents.
In the end, the Senate voted to acquit President
Clinton. Neither article of impeachment was
supported by even a majority of votes, far short
of the 67 votes required to convict.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CONSTITUTIONAL LAW 135
Although the president participates in the
lawmaking process by preparing budgets for
congressional review, recommending legislation

on certain subjects, and signing and vetoing bills
passed by both houses, no formal lawmaking
powers are specifically delegated to the
EXECU-
TIVE BRANCH
. The president nonetheless “legis-
lates” by issuin g executive orders, decrees, and
proclamations. No express provision of the
Constitution delineates the parameters of this
executive lawmaking power. However, in
Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952),
the Supreme Court set forth some guidelines.
Known as the Steel Seizure case, Youngstown
examined the issue of whether the president of
the United States could order the government
seizure of steel mills that were crippled by a
labor strike during the
KOREAN WAR. In holding
the
EXECUTIVE ORDER unconstitutional, the Su-
preme Court ruled that “the President’s power
to see that the laws are faithfully executed
refutes the idea that [the president] is to be a
lawmaker.”
Justice
ROBERT H. JACKSON, in a concurring
opinion, set forth an analysis by which the
Supreme Court has subsequently evaluated the
constitutionality of presidential action. Jackson

opined that
PRESIDENTIAL POWERS are not fixed,
but fluctuate according to “their disjunction or
conjunction with those of Congress.” When the
president acts pursuant to congressional autho-
rization, the action carries maximum authority.
When the executive acts contrary to congressio-
nal will, presidential powers are at their lowest
ebb. Between these positions, when a president
faces an issue on which Congress is silent, the
executive acts in “a zone of twilight in which
[the president] and Congress may have concur-
rent authority, or in which the distribution is
uncertain.” In such instances, Jackson reasoned,
courts must balance the in terests of the parties
and of society to determine if a particular
executive action has violated the separation of
powers.
Another area that has stirred debate over the
appropriate separation of powers involves the
delegation of legislative, executive, and judicial
authority to federal administrative bodies. Since
the mid-1930s, the United States has seen an
enormous growth in the administrativ e state.
Administrative agencies have been created to
establish, evaluate, and apply rules and policies
over a diverse area of law, including taxes,
SECURITIES, transportation, antitrust, the envi-
ronment, and employment relations. Federal
administrative bodies are created by statute, and

Congress has the authority to prescribe the
qualifications for administrative officials who
are appointed by the president, courts of law,
and heads of government departments.
The
NATIONAL LABOR RELATIONS BOARD (NLRB)
demonstrates the overlapping powers that may
be exercised by an administrative body. The
NLRB is empowered by statute to issue regula-
tions that govern union activities. Such re-
gulations are virtually indistinguishable from
legislative enactments and are considered no
less authoritative. The NLRB also adjudicates
disputes between unions and employers, with
an administrative law judge presiding over such
cases. Finally, the NLRB is endowed with the
power to make prosecutorial decisions, a power
traditionally exercised by the executive branch.
Although successful challenges have been
lodged against the delegation of certain powers
to federal administrative bodies, by and large,
the Supreme Court has permitted administra-
tive officials and agencies to play all three
government roles.
Article III: The Judicial Power Article III
provides that “[t]he 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.”
Pursuant to this constitutional authorization,

Congress has created a federal judicial system
comprising a lower tier of federal trial courts,
known as the U.S. district courts, and an
intermediate tier of federal appellate courts,
known as the
U.S. COURTS OF APPEALS. At least one
federal district court is located in each of the
50 states.
The federal appellate courts consist of 11
numbered circuit courts plus the Court of
Appeals for the District of Columbia and the
Court of Appeals for the Federal Circuit. Each
federal appellate co urt has jurisdiction over a
certain geographic area and may only hear
appeals from federal district courts within that
jurisdiction. Specialized courts of appeals have
been created to hear appeals concerning dis-
putes concerning international trade (the court
of International Trade) and military matters
(the Court of Military Appeals). Parties ag-
grieved by a decision made by any of these
federal appellate courts may appeal their case to
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
136 CONSTITUTIONAL LAW
the Supreme Court, which has the ultimate
judicial power. Cases that originate in state
court and present a
FEDERAL QUESTION may also
be appealed to the U.S. Supreme Court.
The Supreme Court is not required to hear

every case that is appealed to it; instead, the
Court has broad discretion to accept or decline
cases that are appealed by a lower court. Only
four justices need to vote in favor of hearing an
appeal before a
WRIT of CERTIORARI will be
granted. Certiorari is a device that allows the
Supreme Court to call up the records of a lower
court and review them in order to identify
important legal questions that need to be
resolved. Granting “cert” has no bearing on
the Court’s subsequent resolution of a case. The
Court is asked to review about 5,000 cases a year
and grants certiorari in fewer than 250 of them.
Federal courts do not have jurisdiction to
hear every kind of lawsuit. Article III lists
certain types of cases that may be heard by the
federal judiciary, including cases arising under
the Constitution; under treaties with foreign
nations; and under federal laws passed by
Congress, the executive, or an administrative
body. Federal courts also have jurisdiction to
hear lawsuits between two or more states,
between citizens of different states, and between
a citizen or government of one state and a
citizen or governmen t of a foreign country.
The Supreme Court has
ORIGINAL JURISDIC-
TION
over cases involving ambassadors and

other public ministers as well as cases in which
a state government is a party. Original jurisdic-
tion gives a court the power to hear a lawsuit
from the beginning, rather than on appeal. This
grant of original jurisdiction does not preclude
Congress from giving original jurisdiction to
other courts over the same matters. In fact,
Congress has granted concurrent original juris-
diction to the federal district courts for all
controversies except those between state gov-
ernments.
Nowhere in Articl e III, or elsewhere in the
Constitution, is the power of the federal
judiciary defined. Historically, the role of
English and U.S. courts was to interpret and
apply the laws passed by the other two branches
of government. At the close of the eighteenth
century, it was unclear whether that role
included the prerogative of
JUDICIAL REVIEW,
which is the authority of state and federal
courts to review and invalidate laws passed by
legislatures that violate a constitutional provi-
sion or principle.
In Marbury v. Madison, 5 U.S. (1 Cranch)
137, 2 L. Ed. 60 (1803), the U.S. Supreme Court
clarified this ambiguity by pronouncing that it
“is emphatically the duty of the judicial
department to say what the law is. Those who
apply the rule to particular cases must of

necessity expound and interpret the rule. If
two laws conflict with each other, the court
must decide on the operation of each.” Because
the federal Constitution is the supreme law of
the land, the Court reasoned, any laws that
violate the Constitution must be declared void.
It was the essence of judicial duty, the Court
intimated, for judges to evaluate the constitu-
tionality of a particular act, because judges are
not elect ed and are, therefore, independent
from the political considerations that may have
motivated the popular branches of government
to enact that law. The Court reasoned that the
executive and legislative branches could not be
impartial arbiters of their own laws.
The Bill of Rights
When the U.S. Constitution was ratified by the
states in 1789, it contained no bill of rights.
During the last days of the Constitutional
Convention, one of the delegates proposed that
a bill of rights be included, but this proposal was
voted down by every state. Many Framers of the
Constitution believed that there was no need for
a bill of rights because the powers of Congress
and of the president were explicitly enumerated
and limited, and no provision of the Constitu-
tion authorized any branch of government to
invade the personal liberties of U.S. citizens.
Other Framers were concerned that any list
of rights would be hopelessly incomplete and

that the government would deny any liberties
left unmentioned. This concern was ultimately
expressed by the
NINTH AMENDMENT to the U.S.
Constitution, which provides that “[t]he enu-
meration in the Constitution, of certain rights,
shall not be construed to deny or disparage
others retained by the people.” The Ninth
Amendment was later relied on by the Supreme
Court to recognize the unenumerated right of
married adults to use
BIRTH CONTROL (Griswold v.
Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14
L. Ed. 2d 510 [1965]).
By 1791, the need for a bill of rights was
viewed in a different light. The residents of the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CONSTITUTIONAL LAW 137