Guest Essayist: Joerg Knipprath

Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

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Guest Essayist: Joerg Knipprath

On June 19, 1846, the Rochester, New York, Democrat newspaper reported that over 4,000 people assembled to witness the launch of a new steamship (then often called a “propeller” due to the novel screw propulsion mechanism), the Genesee Chief. She was described as “faultless in her model and appointments.” At 144 feet long, with 20 state rooms, and berths for 75 cabin and 100 steerage passengers, with room for more, she was to be the start of regular steamship service between Rochester and Chicago.

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Guest Essayist: Joerg Knipprath

Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

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The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.

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Criticism abounds regarding President Barack Obama and executive overreach. To name one example, the Affordable Care Act (ACA), commonly known as “Obamacare,” has raised the ire of many Americans. Expansive government and centralized approaches to political issues, admittedly, started before the Obama administration, but current executive overreach has accelerated the size of the national government and threatens individual liberty.  Various administrative divisions, whether classified as executive agencies or executive departments, such as the Environmental Protection Agency and the Department of Education, have been scrutinized, too. Through “the administrative state,” what some have labeled the “fourth branch of government,” the executive branch seemingly continues to have its fingerprints on more and more aspects of American lives. Read more

Articles I, II, and III of the Constitution describe the roles of the legislative, executive, and judiciary branches of the federal government. It’s clear that the Founders intended for Congress to make the laws, the administration to enforce the laws, and the courts to interpret the laws.  Although this doctrine of Separation of Powers sounds simple, it’s not. The administrative branch holds great power to promulgate regulations and make executive decisions (orders and actions) that wield the force of law, and today, many fear that this power is being abused. Read more

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; Read more

Guest Essayist: Brion McClanahan, Ph.D., Author of: The Founding Fathers Guide to the Constitution

If Jay Leno were to conduct a   “Man on the Street” segment and ask random Americans to name the first constitution for the United States, the answers would probably range from, “The Declaration of Independence,” to “the Preamble,” to “Who cares?”  The answer, of course, is The Articles of Confederation and Perpetual Union.  American ignorance of the Articles is problematic for several reasons, not the least of which being a lack of understanding about the fundamental structure of the American general government.  The Articles of Confederation is, in fact, the most maligned and misunderstood document in American political history.  It is the bedrock of the United States Constitution which replaced it, and the Founders’ conception of Union and the appropriate powers of government can be found in its Thirteen Articles. Read more

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit 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.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

April 17, 2012 

Essay #42 


Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment VII:

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.

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day,  Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012 

Essay #31 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment VI:

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.

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

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March 27, 2012

Essay #27

Guest Essayist: Robert Chapman-Smith, Instructional Design Associate at the Bill of Rights Institute

Amendment III

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.

In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.[1]

The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . .  which surround the roof tree of every householder . . . .”[2] But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.[3]

Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155.[4] But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.[5]

As time drew on, other efforts to quell quartering fell well short of success.[6] The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes.[7] By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”

But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering.[8] In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .”[9] James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.[10]

In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.”[11] The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.

The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”[12]

Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.[13]

After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.

Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:

“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”[14]

The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.

But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:

“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”[15]

Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state.[16] Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.

The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.[17]

As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”[18] Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.

Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting.[19] After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”[20]

The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states.[21] The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.

The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states.  Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom[22], yet the question still lacks a definitive answer.

Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.

[1] This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”

[2] Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.

[3] Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.

[4] English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)

[5] Fields & Hardy supra note 3 at 403

[6] The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.

[7] Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127

[8] Fields & Hardy supra note 3 at 403 – 405

[9] Great Britain. Statutes of Great Britain. London: , 1950. Print.

[10] Bell supra note 2 at 123

[11] Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980

[12] Fields & Hardy supra note 3 at 417

[13] Id at 417-18

[14] The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217

[15] Id

[16] Fields & Hardy supra note 2 at 424

[17] Kurland & Lerner supra note 14 at 217-18

[18] Id at 218

[19] Bell supra note 2 at 136

[20] Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from Internet; accessed 22 May 2011.

[21] Bell supra note 2 at 137

[22] Id at 141-142


Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

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

The Constitution of the United States established three separate branches of the federal government, namely the legislative branch, the executive branch and the judicial branch. Superficially, therefore, one might think that it was a matter of chance as to the order in which each branch would be outlined and defined in this founding document.  Such thinking, however, would be incorrect.  The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of Great Men, and without reference to the history of all prior republican forms of government.  James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the republics that had failed, and would not be written out (as would later be the case with the disastrous French constitution) as an act of constructivist rationalism.

John Locke’s seminal book, Two Treatises of Government – the book that provided the intellectual justification for England’s Glorious Revolution of 1689 – provides the rationale for placing the legislative branch of government at the very beginning of the Constitution: ‘The great end of Men’s entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish’d in that Society; the first and fundamental positive Law, which is to govern the Legislative it self, is the establishing of the Legislative Power;…This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed have the force and obligation of a Law, which has not its Sanction from that Legislative, which the publick has chosen and appointed.’ (Locke, II, para. 134)

The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central pivot of any social contract through which individuals would consent to place their lives, liberties and properties under the protection of a civil or political society.  It is no accident that Article I of the United States Constitution deals first with the legislature.  Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue.  Although the Founders designed the three branches to be inter-connected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing the legislative branch as the fulcrum of the social contract.

The decision to separate the three branches, as defined in Articles I-III, by no means was set in stone when the Convention first assembled in Philadelphia. James Madison, in particular, was deeply impressed by the 1765 Commentaries of William Blackstone, who favored a single unified branch system: ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature.  The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide.  The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ (Blackstone, Commentaries, 1, 149)

Following up on this argument, James Madison while awaiting the arrival of other delegates, etched out a Virginia Plan that envisaged one branch only – the legislative branch.  This branch would be responsible for appointing the executive and the judiciary, although these legislative agents jointly would be empowered to veto legislative decisions under certain circumstances.  However, even such vetoes would be subject to legislative override by some unspecified super-majority.

According to the Virginia Plan, there were to be two chambers of the legislature (a bicameral legislature). Each state would be represented in each chamber in proportion either to its financial contributions or to its number of free inhabitants.  The small states perceived such an arrangement to constitute an inordinate potential threat to their liberties by some effective coalition of the more populous states.  In the Connecticut Compromise of June 29, 1787, the delegates abandoned the Virginia Plan in favor of a bicameral legislature in which the lower chamber (The House) would be based on state populations and the upper chamber (the Senate) would have equal representation.  In reaction to this Compromise, James Madison etched out an ultimately successful case for separating the three branches of government as added checks and balances against the greatly-feared forces of faction.

The question whether the legislature should be composed of a single chamber (unicameral) or two chambers (bicameral) was far from fully resolved at the outset of the Convention.  When George Mason proclaimed to the gathered delegates that ‘the mind of the people of America’ was ‘well settled’ in its attachment to the principle of having a legislature with more than one branch, he was not truly asserting that the matter was beyond contention.  True, eleven of the thirteen states enjoyed bicameral legislatures. However, the Continental Congress consisted of but a single chamber and Pennsylvania, host to the Convention (and the home of the First American, Benjamin Franklin), operated with a unicameral legislature.

Ironically, the major forces in favor of bicameralism at the Convention were the example provided by Britain on the one side and the colonial experiences of the People on the other.  On the one side – and despite the War of Revolution – there lingered a long-standing admiration for the British constitution, at least in its mythic, uncorrupted, form.  From this perspective, the vision of a truly balanced legislature, government, and society gave special authority to the British model.  On the other side, most of the colonies had already developed an upper legislative chamber out of their governors’ councils, which typically represented the concentrated power of great landlords and wealthy merchants.

For persons of property, as all the delegates to the Convention assuredly were, an upper chamber that might check the predations both of a covetous popular assembly and of an aggrandizing executive was especially attractive.  For the populist-minded, the check provided by the upper chamber on executive powers was also not without its attractions.  Thus, the case for bicameralism could be argued both from a quasi-aristocratic and from a profoundly-republican point of view.  Thus it came to pass that discussion of a second upper chamber presumed that its’ membership would be smaller, that members would hold longer terms of office, and that members would be more select, than in the case of the lower chamber.

The lower chamber (the House of Representatives) thus came to be viewed as an embodiment of the popular will, an assembly of representatives who would come close to being reflexes of the people.  Such a body was widely viewed as a necessary foundation of popular government based upon consent.  Standing alone, however, the reflexes of such a body might become as passionate, tyrannical and arbitrary as those of the people that it represented.  An upper chamber (the Senate), capable of checking the foolish or irrational impulses of the population at large, could be viewed as an essential safeguard to the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.  The later descent of the French Revolution – with its over-simplified constitutional settlement – into tyranny, bloodshed, and ultimately into the dictatorship of Napoleon Bonaparte, would amply justify these reservations advanced so serendipitously in 1787 by delegates to the Philadelphia Convention.

Eventually, the grand design fell into place in Philadelphia and, following a great national debate, was ratified into a magnificent social contract.  Article I, Section 1 of the United States Constitution merely sets the stage.  The full play unfolds in the remainder of this most precious of all constitutional documents.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993) co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010).  For further details see

22 Responses to “February 22, 2011 – Article 1, Section 1 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”

  1. Ron Meier says:

February 22, 2011 at 12:39 am

There are some excellent points in this essay to keep in mind as we watch events develop in the Middle East. We can see the passion of the people at work, but are there checks in place that will “safeguard the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.” Also interesting to watch is how the checks in the state systems work to constrain the passions of the populace in Wisconsin and other states that will follow in Wisconsin’s footsteps as state budget problems are addressed. Very timely that we should be starting this study at this historical moment.

  1. Shannon_Atlanta says:

February 22, 2011 at 10:16 am

Thank you Dr. Rowley. It amazes me that these men created our government in a timely and relatively quick manner. Compare that to today where it takes months and months for our “leaders” to pass a budget; I am always amazed at what all they accomplished-filled with God’s will in my humble opinion!

  1. Susan says:

February 22, 2011 at 10:18 am

I found it interesting the evolution of the Senate. Out of the House of Lords via the wealthy to a voice of the States as a corporate entity as a counter balance to the tendency of democracies to devolve into mob tyranny.

  1. Shannon_Atlanta says:

February 22, 2011 at 11:22 am

Sue, good points. I think many of us feel that our Founders hated the British system. From what I have read, they actually admired many aspects of the government-thus they borrowed from it. They also were well read on the Anglo-Saxon political system, which England had slowly gotten away from; thus men like Jefferson wanted to get some of their ways back-free will, republican government, etc.

  1. Cutler says:

February 22, 2011 at 11:38 am

The relatively novel idea of having the legislative power invested in two distinct houses shows the genius (God’s?!) at work when the Founding Fathers created the House and the Senate.

  1. steve b says:

February 22, 2011 at 4:30 pm

I did not know Pennsylvania originaly had a unicameral legislature. Our Founding Fathers were indeed true statesman. I fear we will never again have the leadership and vision our Founding Forefathers had.

  1. Charles K Rowley says:

February 22, 2011 at 7:02 pm

It is indeed quite remarkable how well educated and knowledgable many of the Founding Fathers truly were. At a time when books were scarce, distances hard to travel, and in a country that had experienced a major internal war, James Madison, Benjamin Franklin and others somehow made the effort to read and understand why past republics had always failed. On that basis they were able to craft a Constitution that would survive at least for two centuries, though now, of course, it is tattered and torn. In 2011, when books are easily available and the internet immediately accessible, how many American politicians, from the President down, are well read in such literature. Until January 2011, how many elected politicians had actually read the Constitution? Sadly, knowledge appears to regress as the opportunities to access it expand. I am sure that Benjamin Franklin would have had an amusing way of making that point!

  1. Ralph T. Howarth, Jr. says:

February 22, 2011 at 7:52 pm

Part of the end run of the bicameral system came out of the right of sufferage. It became a grand principal that it is unjust to demand citizens to obey laws that they have no say in the writting and amending of such laws. So it was that the rights of land owning free-holders that were 90% in the majority at the time balanced against the future influx of non-land holding immigrants that was expected to come. The Founders thought it best that the bicameral system would be predominant land-holders in one house and populist commoners in the other house. This also did away with the “mixed government” feature of Parliament where the caste system of seats designated to caste members of society to represent the various interests of society. Congressmen now are elected upon full popular vote of the electorate in their district regardelss of class.

As for the presupposition that that the THREE branches of government are separate and EQUAL, the legislature is actually the most powerful branch of government. In Federalist #51 James Madison said: “But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”

The legislature indeed is the most powerful branch for it has more checks on the other branches of government than any other branch. First, it passes statuatory law. The executive cannot act nor the judiciary pass judgement without laws to act on. And if the judiciary makes an opinion that is in a quandary with the law, Congress simply can pass more statuatory law. Congress consents to appointments of officers in the other branches; and has the power to impeach and remove the same. Congress has the power to tax and appropriate funds and so can effectively defund any operation of government and is another form of congressional oversight on the other branches of government. At the last, Congress has the power regulate the appellate jurisdiction of the Supreme Court such that Congress may deny the SCOTUS of hearing particular cases among the states. And contrary to popular opinion: judges do not make or repeal laws. Judges simply decide whether or not one party in a case suffers harm from another party and then gives an opinion why they decide as such. Court decisions are not law therefor they are called OPINIONS.

  1. Debbie Bridges says:

February 22, 2011 at 9:01 pm

It is interesting to watch the three branches of Government in today’s political arena. Health Care for instance. This was originally passed in the Legislative but with the change of political power in the House and the will of the people the House has voted to defund it. Hopefully the Supreme court will hear the case and rule it unconstitutional. At the same time though, I worry because the President seems to circumvent the Legislative Branch through Executive Orders and appointing Czars not subject to the normal Advise and Consent process of the Senate.

  1. zac allen says:

February 23, 2011 at 12:11 am

This is an interesting discussion at this very moment in time in this country. We have educators, media pundints, and all sorts of people talking about democracy in action. Our Founders knew through the lens of history, that true democracy , mob rule, was no way to run a government. It eventually destroys the individual, as does collective bargaining.
Representative democracy with a republican form of Government is what they created…. and now we have Progressives trying to undermine that principle. Bi-Cameral houses with each a distinct role. Incredible… isn’t it….. sorry for the skipping around

  1. Charles K. Rowley says:

February 23, 2011 at 8:00 am

Ralph, Debbie and Zac all make great points on the issue of checks and balances and the role of the legislature. Before FDR, the constitution worked well. Then the legislature began to divest regulatory powers to the President and the Supreme Court buckled under the threat to increase its numbers with progressive appointees. In consequence, the balance shifted. Now the President is far more powerful than was ever envisaged, and the Supreme Court offers excessive deference to the legislature when reviewing laws for their constitutionality. Yet, save for a few bad amendments, the Constitution’s wording has not changed. That is the problem. How can America move back to the true Constitution under such circumstances?

  1. Janine Turner says:

February 23, 2011 at 11:45 am

Dr. Rowley, I thank you for your most informative essay!
It is worth noting how our founding father’s based their decisions, regarding the drafting of the Constitution, on two basic principles: knowledge and history.
They were well read and acquainted with what had worked and what had not, in regard to government, in the past. They also were well acquainted with superb political and philosophical works of great minds throughout history. Their prudence was based on practical precedents.
The checks and balances and bicameral legislature are of brilliant design and most relevant to today as we: 1) still practice it today 2) need to vigilantly maintain these principles.
Only with a keen knowledge of our Constitution’s contents can we preserve our liberties. I thank you for your generosity of time, as it helps me to understand more clearly my call to action!

  1. Ron Meier says:

February 23, 2011 at 11:54 am

re Dr. Rowley,
And, add to that the significant increase in the number of Czars in the current White House. This seems to be adding even more power within the office of the President. Should the Congress do something to disallow power to these czars?

  1. Jon says:

February 23, 2011 at 2:24 pm

May I offer a few items in response to “How can America move back to the true Constitution under such circumstances?”
Thomas Jefferson, 1825 in response to William B. Giles who expressed his concern over encroaching federal power.

“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our Government is advancing toward the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them…”
“And what is our resource for the preservation of the Constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to outnumber the sound parts…”

“We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents… meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding… This is the course which I think safest and best as yet.”

William B. Giles took Jefferson’s advice; he ran for and won the Governorship of Virginia in 1827.

Jefferson alluding to our success, the law of nature IE; Locke.
“A great revolution has taken place at Paris. The people of that country having never been in the habit of self-government, are not yet in the habit of acknowledging that fundamental law of nature by which alone self government can be exercised by a society. Of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.”. 1800 Thomas Jefferson

Adam’s regarding education, including the law of nature IE; Locke
“Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature…” John Adam 1765

  1. Ray Simoneaux says:

February 23, 2011 at 2:45 pm

Janine, I found out about Constituting America by watching Freedom Watch. Thank you and your organization taking on the project. I am truly amazed of just how many people I talk with daily, who have never read the Constitution ( I personally have three pocket size editions; home, office and vehicle). I look forward to learn more of the analysis of OUR Constitution!

Dr Rowley, your reply to Ralph, Debbie and Zac is exactly how I feel about the Constitution! I really get frustrated when talking with friends or co-workers who “believe everything the see or hear on the news.” I often get strange looks/comments when those people close to me, hear me make the statement, “Where in the Constitution does it give them (the politicians) the authority to do that?” I have come to the conclusion that they have never read/understood the Constitution, therefore they don’t know what our politicians can/can’t do. Thank you for your assistance to the Constituting America Organization in their project.

  1. Shelby Seymore says:

February 23, 2011 at 4:41 pm

Again, I agree with Cutler. They actually set up this government out of the Bible in Leviticus. This wasn’t a just a remarkable appearance of a government that worked. It’s not the big bang theory! There was Divine Providence and they knew it.

  1. Charles K Rowley says:

February 23, 2011 at 4:47 pm

The insights offered by Janine and Jon are very important at this time. The checks and balances written into the Constitution serve a great purpose in slowing down the popular impulse. But this works both ways. When the political situation becomes bleak, as it surely was prior to November 2010, the checks and balances slow down constitutional recovery. The good constitutionalist acknowledges this and bides his time. Any true reversal of fortune must await November 2012, a change in President and a change in Senate majority. This can only occur if key actors understand the Constitution and work cautiously to reinforce constitutionalism rather than to skirt around it. This will irritate the impatient, but the long-run objective must always be kept in mind. In the meantime, some Republican Governors are performing well in their attempts to re-assert states’ rights.

  1. Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:08 am

Chares K Rowley said: How can America move back to the true Constitution under such circumstances?

Tom Woods has an answer to the question: State Nullification

The premise of the State of Virginia ratifying the U.S. Constitution was on the very question of what if the general government department assumes powers not given in Art 1. Sec 8? The answer was that the State of Virginia is a sovereign state free to disregard such federal acts.

  1. Charles K. Rowley says:

February 24, 2011 at 10:54 am

Ralph’s point is exactly correct. But the principle was overriden by the War of Northern Aggression and the victory of the North over the South. Since then nullification has not proved to be an attractive option for States even when the rights of their citizens have been seriously eroded by the federal government.

  1. Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:20 pm

@Ray Simoneaux,
My new favorite phrase for townhall meetings is:
“3/4ths the states never ratified such a measure!” More astonished looks.

@Charles K. Rowley,
Another remedy is another Constitutional Convention. Three times we came rather near to having one. Just the imminence of a ConCon can make Congress react. There is a lot of anxiety about having one as there really is no agenda that can be enforced on a ConCon. On the other hand, much of the “horse and buggy” provisions in that 1787 instrument is exploited by political graft no matter whose administration is in office. I have a draft instrument coined “Congress 2.0″ of nearly two dozen amendments which includes a confederate vote measure where a 1/5 dissent on germaneness of a bill, or a bill riding measure, in both federal houses then remands the measure to the states for a confederate vote of 2/3rds majority. A compact soveriegnty of states measure. I also have a lame duck provisional legislation and adjournment/recess appointment and pocket veto bypass amendments, and measures to assure members of Congress spend more time with their constituents; and for Senators, the constituency is the state capitol, affording remote visual conferencing be allowed for members to vote. It sure could use more scrutiny and maturation with tweaks and polished.

  1. Seth Richardson says:

February 25, 2011 at 9:52 pm

This section, in conjunction with Article II, Section 1 and Article II, Section 3, delineating the powers and duties of the President are of particular interest at this moment, what with the President deciding all on his own that the Defense of Marriage Act (DOMA) is “unconstitutional” and his directing Attorney General Eric Holder not to further defend it in court.

The question of a President’s authority to refuse or fail to enforce duly-enacted laws of Congress is a serious one which I address in some detail at my blog, The Broadside.

The essence of the problem is that if the President has authority to decide for himself what laws are constitutional and what laws are not, he is usurping both the legislative authority of Congress and the judicial authority of the Supreme Court.

It is my view that this comprises an impeachable offense. This very matter was the subject of an impeachment of Andrew Johnson in 1868. Johnson only survived removal by the Senate by one vote.

As for Holder, he is employed by the United States, which is the People, to represent our interests in court, and to zealously defend ALL laws duly enacted by the Congress, not just the ones he wants to defend or that the President tells him to defend.

He should therefore be disbarred and fired.

  1. Charles K. Rowley says:

February 26, 2011 at 11:35 am

Ralph’s suggestion about a constitutional convention has been discussed recently with respect to the balanced budget amendment proposal. As yet, it falls short of the number of states (two-thirds) required to call the convention. Ralph is correct that even the threat of such a convention tends to bring Congress to heel. The risk is whether a convention – once called – can be constrained to the issue it is supposed to address. After all the 1787 convention ignored its mandate, which was to reform the Articles of Confederation.

Seth’s concern about Presidential overreach is really important. If the United States enjoyed an independent judiciary that is precisely where the federal courts should intervene. But they are filled with inadequates who will not challenge a President. Impeachment is now an entirely political issue and the Congress does not have the votes to impeach and convict a Democratic President. So, such an attempt would be a huge waste of time. Holder holds his position pretty much at Obama’s discretion. And there is not a snowflake’s chance in Hell that Obama will remove a carefully selected ‘brother’ at this time.


Posted in Analyzing the Constitution Essay Archives | 22 Comments »

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.”  They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

Southwestern Law School

Los Angeles, California

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 262010 – Articles IV – VII of the U.SConstitution – Guest BloggerJoerg KnipprathProfessor ofLaw at Southwestern Law School

  1. Daniel Smith says:

    Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.

  2. Shannon C. says:

    The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?

  3. Shannon C. says:

    Do states have the right to secede from the Union?

  4. Susan Craig says:

    The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

    I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.

  5. Reed W says:

    Thanks for clarifying and bringing it all into current events.

  6. Carolyn Attaway says:

    @Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

    I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

    However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
    Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

    It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

    Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.

  7. Susan says:

    This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.

  8. Robert Shanbaum says:

    Shannon C. wrote, “Do states have the right to secede from the Union?”

    Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.

  9. Robert Shanbaum says:

    Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

    Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

    There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

    The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .

  10. Robert Shanbaum says:

    By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

    Jackson could run on; here’s the most apposite passage:

    But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.

  11. Susan Craig says:

    State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.

  12. Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
    1. Impose lifetime term limits of 12 years on Congress
    2. Impose a requirement for a Balanced Budget
    3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
    4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.

  13. Ron Meier says:

    Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.

  14. Susan Craig says:

    There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?

  15. Lillian Harvey says:

    I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
    A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.

  16. ERL says:

    Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

    This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

    This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

    First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

    Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

    Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

    Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.

  17. Shannon C. says:

    Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

    1. Balanced Budget
    2. Term Limits-one term each, as I am so anti Congress:)
    3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
    4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!

  18. Susan Craig says:

    I feel the relevant portion is as follows; 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; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.

  19. Thomas Soyars says:

    @Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

    @Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

    @Joerg Knipprath — the best blog yet (in my humble opinion).

  20. Joe Rech says:

    -Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
    -Balanced budget – except in times of national emergency (disaster or war)
    -Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
    -VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
    -limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
    -reiterate oath – support and defend the constitution – not interpret the constitution.

  21. Donna Hardeman says:

    Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

    Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.

  22. Shannon C. says:

    Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

    Great site!!!

  23. Donna Hardeman says:

    Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?

  24. Carolyn Attaway says:

    Hello Shannon C. from a fellow Georgian!

    Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

    I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

    Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

    The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.

  25. ERL says:

    Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

    In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.

  26. Debbie Beardsley says:

    “Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

    I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.

  27. Chuck Plano, Tx says:

    In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.

  28. Andy Sparks says:

    @Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.

  29. Donna Hardeman says:

    Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.

  30. Susan Craig says:

    States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.

  31. WeThePeople says:

    Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
    If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…

  32. Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
    Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.

  33. hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?

  34. Shannon C. says:

    Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

    Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

    My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

    Any thoughts?

  35. J.D. Wiggins says:

    Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?

  36. There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.

  37. Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
    Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
    As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.

  38. Robyn says:

    ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!

  39. Lillian Harvey says:

    Hi Georgians and others… Virginian here :-) ). These are my thoughts on the Constitutional Convention.
    First fix some problematic fixes: Repeal the 16th and 17th Amendments.
    -Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
    -Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
    -I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

    From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
    Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
    Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?

  40. Shannon C. says:

    Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.

  41. Gitel says:

    @WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

    The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

    Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.

  42. Robert Shanbaum says:

    @Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

    As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

    Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

    Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.

  43. Chuck Plano, Tx says:

    So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.

  44. Mary Lou Leddy says:

    I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
    Special thanks to Janine & Cathy

  45. In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.

  46. Andy Sparks says:


    Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.

  47. yguy says:

    “Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

    It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.


Howdy from Texas. I thank you for joining us on our day 3 of the “90 in 90 = 180 History Holds the Key to the Future.” Juliette read Article III to me in the car today and I found it to be just fascinating how it all fits together like pieces of a puzzle. I hope you are reading the Constitution with your children and/or family or friend and spreading the word about our contest for kids the “We the People 9.17 Contest.” Entries are due July 4th!

It is exciting that you are participating in our national conversational blog/reading. The blog entries are stimulating and though provoking and I thank you for your time and dedication. I also thank Lawrence Spiwak for his perceptive and provoking essay!

I am in awe in regard to how the checks and balances continue to unfold. The Republic of the United States continues to offer the people their voice through their elected representatives even with the Supreme Court Justices. The people in essence nominate and confirm through the President and Senate that we elect. Check. The people may impeach a Supreme Court Justice through the President and Senate whom we elect. Check.

Thus, the relevancy today is to be very careful whom we elect and to know our representative’s thoughts and opinions about the Constitution. The Supreme Court’s job is to uphold the Constitution yet we know in modern society there are differing views about the relevancy of the Constitution and it is continuously under attack, even if subtly.

The other aspect of today’s relevancy that fascinates me is in regard to the Constitution’s diligence in making sure that tyranny could not raise it’s ugly head. The checks and balances came full circle today in reading Article III and in reading Lawrence Spiwak’s essay. Once again it is the mastery of the checks and balances that motivate marvel.

The Legislative Branch legislates potential laws of the land, written indirectly through the people who elected the representatives. Check. The President executes the bill by signing it, fulfilled by the people who elected him. Check. And the Supreme Court, who is indirectly chosen by the people through their elected President and Senate, evaluates the law to make sure it does not violate the Constitution and/or the rights of the citizens or states. Check. The Legislative bill is empowered or disempowered by the President who may execute it or veto it. Check by President. Yet, Congress may override the President by voting the bill into fruition by 2/3 of the vote. Check by Congress. The Supreme Court may hold the new law to the light of Constitution and may either render it valid or invalid. Check by the Supreme Court.

And all the while, the people are ruling through their representative Republic. The people, by voting, have the ultimate check. Vetting and voting seem to be the pivotal words gleaned from Article I, II and III. We need to check out our candidates thoroughly. Mysteries do not serve the process well. But, men are not angels and thus, we have the Constitution to keep us honest.


See you tomorrow!!!! Articles 4-7.

Have a great night. Check!

Janine Turner

April 23, 2010

P.S. I hope this makes sense. I am exhausted and can barely hold my eyes open!

Posted in Article III of the United States Constitution, Constitutional Essays by Janine | Edit | 12 Comments »

12 Responses to “April 23, 2010 – Article III U.S. Constitution – Janine Turner”

  1. The theory behind checks and balances was established so that not one agency could rule like a dictator. When that came to pass the most logical angecy to stop unwantent power grabs was the Supreme Court. Today we need that august body more then ever to help us as they did when laws were being unconsttutional. This will promote not only a balance but will put the office of the President under strict checks. When he realizes his error he will have to back down once and for all.

  2. “What is human?” GOD’s answer…

    Keven J. Hasson, President of the Becket Fund, recently stated, “…the American and Soviet systems…offered differing visions of freedom and human nature.” The missing element in every human ‘solution’ is an accurate definition of the creature.

    In the Bible, God’s Word has accurately defined the human being as ‘the earth creature endowed with the ability to choose.’ His natural Rights, therefore, are merely an extension and application of natural human endowments, which all humans – everywhere in the world – possess. Even as goldfish, canaries, and puppy dogs require an environment based on their natural features, so humans require external freedom to fulfill their natural internal abilities of choice, selection, election, and consent. Uniquely, America was founded on this definitive paradigm in human nature. All nations should reject foundational human opinion that teaches otherwise.

    Further, God’s gift of criteria for choosing between alternatives supplies us with superior standards for successful visionary choice-making. Humans cannot invent (or replace) criteria greater than self, ACLU to the contrary.

    Defining ‘human’ accurately is the first step in establishing accurate and successful environments, institutions, and creative relationships for earth’s Choicemaker. Middle East governments, and all leaders, would do well to pay attention: nature and nature’s Creator speak with an authoritative voice. Psalms 25:12 119:30, 173 Joel 3:14 Selah

    No one is smarter than their criteria.

    Jim Baxter Sgt. USMC WWII & Korean War semper fidelis

  3. Susan Craig says:

    I have never seen such an accurate and succinct definition of human, Jim. Fair winds and following seas.

  4. Reed W says:

    Reading done through Article III. It’s great to have lesson plan and a course to follow. Keeps me going. Thanks to Cathy for being so kind as to write us! Carry on!

  5. Ken Brown says:

    The purpose of the Supreme Court is to rule on laws based on the Constitution. However, recently it has been viewed as “interpreting the Constitution”. The Constitution is not a living, breathing document as many us of were tought in school, rather it is writen in ink on parchment. Our founders were smart enough to know that some changes were in evitable and thus they left a way to change it thru the ammendment process. Unfortunately, the 17th ammendment altered the checks and balances system that the founders left for us because the ultimate check on the federal government was the States. The only way to restore the full compliment of checks and balances is to repeal the 17th ammendment. That way the States would have a voice before these unfunded mandates were ever passed into law.
    P.S. Well said Jim

  6. Gitel says:

    I want to call people’s attention to the following web site:

    Although the Constitution you have on linked to your site is good, I feel this other site is easier. With one click you can get a definition of an unfamiliar word, and there are also links to explanatory notes.

  7. Kay says:

    Not only reading through the Constitution and the essay are valuable in and of themselves, the comments following by readers shed additional light on the reading. I am so excited to be part of this project, and have spread the word. Next fall I am privileged to teach the Constitution to homeschooled high schoolers, the fourth time in about 10 years. Knowing a short history of what precipitated the writing and thought that caused the Constitution to be written the way it is sets the stage. Not particularly what led up to the Constitution, but way back, back to the events surrounding the Magna Carta, the printing press, the Reformation, the ancient philosophers’ impact on the education of the principal players/writers of the Constitution all produced our document. The time was ripe for a Madison, a Hamilton, a Jay, etc. to put it all together.

  8. Hello to all.I was wondering if there is anyone who would like to opine on the current actions by the AZ.Gov? My take is ,although it seems to be powers given to Congress, I am sympathic to the State acting in it’s own behalf as a result of Congress failing to act at all and for such a long time.What is a state to do (any State) when there is such a gigantic failure of the Legislature to act.Everyone is afraid to be politically incorrect or acting out side the law and possibily stepping on the toes of someones civil rights etc. The inaction of the Feds is at the root of the festering problem and I believe it has to do with seeking and securing a voting block,not enforcing a rule of law .When the motive for action or inaction is not inspired by the rule of law but rather the self interest of Politicians a lobsided foundation results and sets all citizens up for irrational outcomes.

  9. Susan Craig says:

    It is the right thing. It is about time. The State has the duty to do all that it can before it kicks the ball upstairs. But it will be an interesting squabble to watch.

  10. Pricila says:

    What Arizona did is legal. The states still have the right to govern their police as they see fit to protect their citizens living in the state. Thats why the President said that they are going to keep an eye on Arizona.

    Check out the last video, number six.

  11. Louis Palermo says:

    The Supremacy Clause of Article IV declares that the “Constitution…shall be the supreme Law of the Land.” This declaration demonstrates that there is a hierarchical organization of the federal government as it relates to the states. Also known as ‘Preemption’. Under preemption if there is a conflict between this hierarchical relationship, federal law wins. The Supreme Court has interpreted Article IV as limiting the ability of states to discriminate upon ‘out-of’staters’. This is also known as the Privileges and Immunities clause. Article VI reiterates the Supremacy clause.

    Article V of the Constitution prescribes ways to alter the Constitution as is evidenced in your blog. Article VII as we shall see was the Constitutional Convention’s mandate to change the ‘Articles of Confederation’ and thus ‘ the Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States”. So the relevant meaning of all Articles of the Constitution have remained virtually unchanged since its inception. We may quarrel over its interpretation but we must not question the divine wisdom of its underlying principles! The founding fathers’ thoughts created this ‘Document’ for the people then and now!

  12. AllisonW says:

    More and more evidence of the checks and balances system seem to emerge with each Article and Section!
    According to Section III of Article III, the Supreme Court shall determine if a person shall be convicted of treason, while Congress “shall have power to declare the punishment.”
    Isn’t it a marvel how the founding fathers allowed the three branches of government to function with balance and fairness?

What an exciting first week we have had!  Articles I, II, and III of the United States Constitution, with some outstanding guest bloggers: David Bobb, Andrew Langer and Lawrence Spiwak.

A big thank you today to Lawrence Spiwak for his thoughts on Article III.  Mr. Spiwak clearly explained the delicate system of checks and balances working  in concert with a strong and independent judiciary.  I loved Mr. Spiwak’s point that the best mechanism for change in the judicial branch is to let the electoral process play out.  That is the best mechanism for change in any branch of the government, but it first requires informed, educated, engaged, and enthusiastic citizens, citizens who know the United States Constituion and our country’s founding principles!

When reading Article III, I was struck by its brevity, as compared with Articles I and II, and how much latitude Congress was given in establishing the Court system – another example of checks and balances at work.

I was also very interested in the Alexander Hamilton quote Bill posted from Federalist 78, so I looked it up and thought it worth posting in its entirety:

“Whoever attentively considers the different departments of power must perceive, that in a government which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.  The executive not only dispenses the honors, but holds the sword of the community.  The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.  The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of  its judgments.”

“Neither Force nor Will, but merely judgement.”   I had never thought of the differing powers of the three branches in those terms before, but it is true – the executive and legislative branch have many more enforcement mechanisms and sheer power and will at their disposal, than the judicial branch.

Thank you for joining us this week as we explored the three branches of government in Articles I, II, and III of the Constitution.   The Assignment for the weekend is to read Articles IV, V, VI, and VII and be ready to blog on them, on Monday!  Tuesday we will blog on the Amendments, and Wednesday we will blog on the the first Federalist Paper.

Have a Blessed weekend!

See you on Monday!!

Cathy Gillespie

April 23, 2010

3 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Cathy Gillespie”

  1. Jim Baxter says:

    The Founding principles of our Constitution clearly state that
    the powers of government are permanently in the mind and
    hand of The People of the United States of America. Thus,
    every elected person is a temporary steward of their office
    and obligated to serve The American People while in office.

    Such elected officials need to be reminded that they do not
    own the office. WE, The American People, are the owners and
    may give orders to the elected & appointed stewards of the office.

    I have yet to hear this important point-of-failure on the part of
    those who seek to ‘change’ our way of life to an historically
    failure-oriented system of non-representation of stewardshp
    to The People. Why?

    Begging compromise won’t work with the ignorant! Freedom is
    the proper enlargement – not fewer choices for the choicemaker!

    semper fidelis
    Jim Baxter
    Sgt. USMC
    WWII & Korean War

    pointman/follower of The Lion of Judah

    + + +

  2. Clearly our Founding Fathers constructed our Republic on Biblical Principles and like anything else our morality MUST have a “Standard of Measure”, because God’s Word never changes and is always JUST. If we depend on what man’s values are we will always fall short of Justice and the Scales will no longer be balanced. Observing how politicians try to “fundamentally” change our society and inplement their idea of “values” is it any wonder why our country is so divided? Consider what would happen if we changed the “Standards of Measure” for other things, (Science, Mathematics, Music, etc.) The Bible says that the “devil is the author of confusion…..” All this does is separate and divide. However I see many coming back to their conservative principles and I’m thrilled.

  3. valerie says:

    In 1787, the year the constitution was written, Congress passed the Northwest Ordinance. It states that formal education is to include religion, a “fundamental system of beliefs concerning man’s origin and relationship to the cosmic universe as well as his relationship with his fellowmen.”

    In his farwell address Washington stated, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports . . . And let us with caution indulge the supposition that morality can be maintained w/o religion.”

    Jefferson wrote a bill for establishing elementary schools in Virginia. It includes the following statement, “No religious reading, instruction, or exercise shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.” He must have assumed religion would be taught.

    Franklin outlined five fundamentals in all “sound” religion: one God, the Creator of the universe; said God should be worshipped; the most fundamental good we can do for him is to be good to others; and the soul of man is immortal and will be treated with justice in the afterlife in regards to his conduct here.

    Samuel Adams called the above the Religion of America and equated it with the religion of all mankind.

    These tenets run thru the founder’s writings, and they thought they were so important in “providing good government and the happiness of mankind” that they wanted them taught in school.

    It is obvious from the founder’s own words that they viewed separation of church and state very differently than it is seen today.

    Above facts come from The 5000 Year Leap

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Article III of the Constitution provides the parameters for the third and coequal branch of the federal government: the Federal Judiciary.  Today’s posting will focus on the importance of judicial independence as contemplated by the framers.

In Article III Section 1, the Constitution sets up the Supreme Court and “inferior” courts (i.e. Federal district courts and federal appeals courts), and provides that federal judges shall “hold their offices for good behavior” (i.e., life terms).  Article III Section 2 then defines what type of disputes fall within the Federal Judiciary’s jurisdiction.  (Article III Section 3 also sets forth the specific provisions for trying a case of treason, but discussion of this specialized topic is better left to a dedicated post.)

The Founding Fathers understood that a strong and independent judiciary was an integral part of the brilliant system of “checks and balances” they developed:  the Legislative Branch would pass a bill; the Executive Branch (i.e., the President) would sign the bill into law, and then the Judicial Branch would evaluate whether the law passed Constitutional muster.  If the courts found that a particular piece of legislation failed this test, then the Legislative Branch remains free to take another bite at the apple, and so the virtuous cycle of our Constitutional Democracy continues.

Perhaps one of the most often asked questions by non-lawyers about the Judicial Branch is why are members of the Federal Judiciary appointed for life (the aforementioned “good behavior” language mentioned above), while members of Legislative and Executive Branches have Constitutionally defined terms of office?  The answer is straightforward:  the Founding Fathers clearly understood that the judiciary must be impartial, dispassionate and, most importantly, free from political pressures that face the Executive and Legislative Branches.  By not having to constantly fear political reprisal, judges may administer the law fairly without regard to public reaction.

But what if a member of the Judiciary is guilty of malfeasance?  Certainly, for conduct unbecoming the office (malpractice, corruption, etc.), the Constitution provides for an impeachment process.

But what if you just don’t like a judge’s approach to a case?  Stated another way, you are convinced that the judge has engaged in some sort of “judicial activism” whereby the judge has “made” law rather than “interpreted” the law.  Is this ground for impeachment?  While technically the Constitution’s definition of impeachable offenses might be considered broad enough to cover “egregious“  judicial activism on the part of a judge, a more considered view is that the elected branches exercise restraint in their use of this tool perhaps for no other reason than that “judicial activism” often lies in the eyes of the beholder.  (See, for example, President Obama’s recent public chastisement of the Supreme Court for its Opinion in Citizen’s United before the full Congress at this year’s State of the Union Address.)

Instead, the appropriate mechanism for change in the Judicial Branch is to let the electoral process play out (which, by definition, reflects the will of the people) and allow these elected officials to appoint and confirm new judges as vacancies open.  As former Chief Justice William Rehnquist recognized before he died:

In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials.  It is not a perfect system—vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated.  But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.

In sum, although our legal system may not be perfect, our Founding Fathers set forth a legal framework that remarkably still holds up nearly 225 years later.  To this end, I leave you with a small prayer by Chief Justice Rehnquist:

Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.

Wise words indeed.

Friday, April 23rd, 2010

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑, a non‑profit research organization based in Washington, DC.  He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia.  The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

40 Responses to “April 23, 2010Article III of the U.S. ConstitutionGuest Blogger: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

  1. Don Barton says:

    Judicial activism is a scourge on our country. In no way did the Founding Fathers provide for or envision a scenario where the Judiciary would make law. That is clearly within the realm of the legislative branch, to be aided by and enforced by the executive branch, and interpreted by the judicial branch.

    Those of us who hold this view are seen as Constitutional “purists”, with the word “purist” being a pejorative term. The implication is that we are stuck in 1787 and can’t quite adapt our views to the realities of the Modern Era. But since when is someone who loves and values the Constitution a regressive, backward-looking idealist?

    Though we have not read or studied yet the Amendments, the Founders allowed for–through an extremely rigorous process–the Constitution to be changed so that it would NOT become a tired and irrelevant document in the coming centuries. The mechanism, therefore, is already there to keep the Constitution relevant and fresh. The mechanism is the drafting of an amendment, which must be passed by super-majorities in Congress and then by three-quarters of the states.

    The mechanism is NOT for judges to make law from the bench.

  2. Jeff Parker says:

    I see two degrees of judicial activism.

    One that tends to make new law from the bench. The resulting case law can be consistent with proper court function when it corrects vague statutes or reconciles law to the constitution. Or it can simply presume to take over the function of the legislative branch, not good.

    The most worrisome activism is when the court so severely overreaches that it effectively amends the constitution, circumventing the correct process for such change.

  3. Susan Craig says:

    I wish just once that something dealing with the legal system would be written in common English not legalese. Even the Constitution sends me to the dictionary to try and understand what in God’s name are they talking about.

  4. Carolyn Attaway says:

    As I read Article III, images of the Supreme Court being reprimanded by our President during the State of the Union Address kept being played over in my mind. I am still embarrassed for our country every time I think about it. As I understand it, the Judicial Branch is an equal part of the U.S. Government, and should not be beholden to the other 2 branches; the Legislative and the Executive. At the State of the Union, the Supreme Court judges were guests, and should not have been held up for ridicule.

    In his book, ‘The 5000 Year Leap’, Cleon Skousen gives a great illustration of the Balance of Power using a Three-Headed Eagle. In his explanation, Mr. Skousen labels the third head as judiciary which was assigned the task of acting as a guardian of the Constitution and the interpretation of its principles as it was originally designed.

    That is why I am troubled when I hear our President say he wants to find judges that will take in account certain rights of special interest groups and interpret the law that takes in account the struggle of the individual. For example, in his comments to find a replacement for Judge Stevens he said he will choose a nominee who pays heed to the rights of women and the privacy of their bodies. Yet he said he won’t enforce any abortion rights “litmus tests.”

    Obama said it is “very important to me” that his court choice take women’s rights into account in interpreting the Constitution, his most expansive comments yet about how a woman’s right to choose will factor into his decision.

    The President’s last judicial pick of Judge Sotomayor was filled with controversy when she was noted of stating at a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where “policy is made.”
    “I know that this is on tape,” she then immediately said. “I should never say that. Because we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.

    I guess with everything, if you have a complete majority in two of the branches of government, the safeguards for the Balance of Power get distorted.

  5. Shannon C. says:

    I agree with the idea that it is OK to amend the Constitution to better be able to get judges out who make law. How about giving them a 10 year term? Stagger it for a certain number of years where a President could only make one appointment per term assuming he or she served two terms?

    Just as they did with the original Senate where they did a lottery to stagger it where both Senators from a state would not be up for reelection at the same time, make it where down the road a new nominee comes up every 10 years.

  6. Donna Hardeman says:

    @Susan Craig – don’t feel like the long ranger. The problem is not legalese – rather it’s “olde” English. My husband and I are both attorneys and, in reading the last paragraph of Article III last night, we were slightly bewildered. Extrapolating from the “olde” language, we came to the conclusion that the words simply mean that the family of the treasonous person won’t be stoned or cast out into the wilderness, etc. Treason is linked only to the person committing the treason.

  7. Donna Hardeman says:

    @Thomas – since you insist on bringing PTA rules into the discussion, I have e-mailed our Florida Republican senator (Lemieux) and provided him with my insight as to why the recess appointment of Craig Becker was outside Constitutional parameters. Am I now free to challenge the rest of you to do the same in your respective states?

  8. Carolyn Attaway says:

    @Donna – I took my complaint about the recess appointment of Craig Becker, along with several other issues, to my representative at his townhall meeting. I have expressed my concern about these appointments to my Senators as well in person, and in phone calls. I guess when you are in the minority, it is easy to have your objections overridden.

  9. Susan Craig says:

    Shannon, I don’t think term limits for SCOTUS would work, however, a review/oversight (a confirmation light) every 15 years from confirmation answering to usurpation of legislative prerogative might constrain the inclinations to legislate from the bench. I think this could be done in committee with up or down acceptance on the legislative floor.

  10. Susan Craig says:

    Thank you Donna, for your explanation.

  11. Carolyn Attaway says:

    If you haven’t listened to Judge Napolitano’s 5 Part Series of the Constitution and Freedom, you can access the link here:

    On the fifth video on this link, Judge Napolitano explains the Supreme Court and the Federal Court System in America. It’s brief, but very informative. It compliments Mr. Spiwak’s Blog very nicely.

  12. Will says:

    A fine couple of examples of the USSC exhibiting the separation of powers is in the cases of Hamdan v. Rumsfeld and United States v. Nixon. In both cases the Court reined in the Executive branch.

  13. Richard says:

    I don’t remember what I was reading but one of the founding fathers made the statement SCOTUS are to serve a term and then go back home and live among their people.
    That way they remain government of the people of the people. Maybe it was Thomas Paine?

  14. Susan says:

    @DonnaHardemon- After reading that section and a bit of Googling, my husband and I came to the same conclusion. We believe it was due to the English Common Law in which a person convicted of treason forfeited their property to the crown.

  15. Karla Blum says:

    The Judicial Branch is equal to the other two branches of government. My concern is why does the Supreme Court give deference to Congress when ruling whether legislation is constitutional or unconstitutional? The court is to be objective upholding the Constitution, not giving deference to the Legislative or Executive Branches.

    Also, our court system may be a great system, however, through history they have been very “schizophrenic” in considering legislation such as slavery and segregation. They did rule correctly in regard to President Jackson forcing Native Americans to reservations, however, Jackson thumbed his nose at the Judiciary.

  16. Chuck Plano, Tx says:

    The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.

  17. Spider says:

    @Chuck Plano, Tx: Your statement is only one side of the argument. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it. I’ll leave my statement at that, and let the smarter and more informed than I work it out.

    This subject is more thoroughly explored by Alexander Hamilton in Federalist No. 78, the first of six essays by Hamilton on this issue. Stick around till then, and we can discuss it further.

  18. Donna Hardeman says:

    Thanks for the additional research Susan – makes perfect sense.

    Matt – how do you know it’s the end of the term of Congress? In re-reading the section, it makes sense since Session is the term used and the previous paragraph refers to Senate authorization. I tried to do some case law research and didn’t come up with anything. So, when is the end of the next Senate session – next time they go on a break – like July 4th or does the “Session” literally start once a year? What does that mean for Craig Becker? Is he supposed to be out? Will he be out? Will the Senate be given the chance to confirm somebody else? Even if the answer to all those questions is supposed to be “yes” what are the chances of it actually happening?

  19. Maggie says:

    I realize that all of these conversations are most likely being archived somewhere, but is someone making a hard copy of any of this? This could potentially be history in the making. We wouldn’t have many of the great resources that we do today to look back upon if someone didn’t write it all down and keep copies.

  20. While the founders may never have imagined the world we live in today since it has changes in so many ways, they clearly understood human nature, which has changed very little in the last several hundred years. The constitution is just fine the way it was written and amended. If you want to change it follow the rules and make an amendment.

  21. Teddy Howard says:

    The founding fathers said that the judges of the supreme court are apointed for life. Unless of course he/she resigns or commits treason. I like this because onces he/she is in, it’s for good. That means to me that if the judges in the supreme court do something that the president or someone in the government doesn’t like, it’s not like they can fire them.

  22. Lillian Harvey says:

    Wonderful discussion going on here! I am learning so much just reading your ideas and insights. This whole question of judicial activism has concerned me for some time. In considering Associate Justice Sotomayor’s comment during her confirmation hearings, “…we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.”, I can see where things get messy. A judge with a certain mind set is weighing politics, community issues, previous cases and the rights of the accused in a decision. One can only hope that common sense and right action are in integrity in these instances. Politics and resulting “activism” can insinuate into those decisions very easily. So, although I understand what she is saying, it is not a great comfort to me.
    Is this where the case law becomes the standard by which future cases are judged, at the appeals level? AJ Sotomayor also said often that she would have to review past case law in her rulings. I am only using her statements during the confirmation because they are fresh, not as a criticism of her per se. Still, is it the Supreme Court’s mandate to hold those case decisions against the original intent of the Constitution to assure that these “precedents” don’t get too far off the track? Thoughts?

  23. Jim Sykes says:

    It would be very beneficial if we could have someone discuss if, and when, circumstances would allow State Courts to refuse to enforce U.S. Supreme Court opinions. It is my understanding that the “Supremacy Clause” only results when the law passed by Congress is Constitutional. The reference to the Supreme Court’s decision regarding the Indians in Georgia being correct and that President Jackson elected to disregard that opinion indicates to me that the three divisions of the Federal government are EQUAL and should not be able to overrule each other when each are acting within the power granted by the Constitution. Since the Federal government derived it’s power from the States and the States derived it’s power from the governed (people), how is it possible for the Federal government to pass legislation that it doesn’t have the authority to pass. My understanding of our Republican form of government is that the Federal government was not to interfere with the States and the States were not to interfere with the local governments. All problems were to be resolved at the lowest level of government possible. Only when the lower level required the assistance of the higher level and requested help were they to become involved in solving the problems.

  24. Donna Hardeman says:

    Lillian. When my children were young, I was explaining to them why precedent alone (which is all I learned in law school) was insufficient. I gave them the example of a household where junk food is not allowed. Mommy gives in the first week and says – just sodas on the weekend. The kids push her into every day – since the precedent has been established. Then it’s pushed to allowing candy – but only after dinner. Well, lunch is a meal too so why not after lunch? Now that we have cokes and candy allowed, what’s wrong with McDonalds? It’s not nearly as bad as candy and we’ve already established that precedent. At some point Mommy needs to step back and say – “Remember the original rule, guys? We’re going back to that.” Yes, there will be screaming and yelling, but the original rule was a good one. I was gratified years later when my son was working on his legal badge in Boy Scouts and used this example to explain the judicial case law system to his fellow Scouts. It’s never too early to educate the kids. (The Progressives already know this so it’s time the strict Constructionists got the same message.) Good blogging girl.

  25. Bill says:

    Contrary to Mr. Spiwak’s post, Article III section 1 does not infer a lifetime appointment for federal judges. The duration of their appointment is limited to good behavior.
    Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
    James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.
    Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.
    John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
    The judiciary is not ment to be independent or co-equal branch of government.
    Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
    Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.

  26. Bill says:

    Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.
    The sword in the above text refers to the executive branch, and the purse refers to the legislative branch.
    Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
    As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.
    The Supreme Court can only give opinion(that is why in all of their decision say” it is the opinion of this court) and have no ability to enforce their decision other than what the executive branch supplies.

  27. Great discussion!!!I have taken to reading the comments before I start writing,because I find it all so informative and thought provoking, thanks all.
    The conition of man was clearly taken into account when our founders hammered out our Constitution.I only wish that our Representatives (all branches) would work as hard as they did.
    I have a nagging reaction everytime there is need to appoint a new Supreme Court Justice, the conversations always without fail talks about the balance, Liberal /Conservative. This bothers me a lot, it surely seems to imply that there are at least two interpertations of our Constitution !!The casual way this is collasped into the various particulars that are considered seems to in some way pave the path for the things that bother me about some of the deciions the Court makes. (Emenant Domain to name one).
    The party that is in the majority can stop the appointment because the cadidate is not enough this way or that way idelogically speaking…. is that the way we keep the promises of our Constitution? Perhaps I am a hick but I am most interested in their character, their academic, qualifications and their experience that has made them stand out as special and good.
    One more comment, I was oh so embarassed of our President when he rallied his cronies to clap over the heads Justices during the last State of the Union. He was devisive through out the whole address . Casting himself and the Dems as THE ones. There were three equal branches presedent but he cut the Justices, the Republicans out.Shame on him.

  28. Carolyn Merritt says:

    Thank you Donna for explaining the last paragraph of Article III.

  29. Richard says:

    I would submit that our problem is the Senate does not “advise and consent” they merely vote for thier party ideology which is clearly not “advise and consent” What we need to do is have a block of Senators that have sworn to uphold thier oath in a contract with the Nation/people that they will not consent to approve any Federal Judge, at any level, that does not uphold the constitution as written. Any judge with documented activist views based on thier teachings, writings, speeches or involvement in legal cases will not be consented to. This group of senators can cut across party lines but are people with proven honesty and integrity with a track record of “non-flip-flopping”.
    Presently Senators bring up just such documentation of activism and the nominee softens thier prior tone or trys to explain away thier true intentions or words based by saying they also agrued the other side. They do this even though no Senator or citizen believes them and knows exactly what they will do. In my humble opinion there is no other side to the constitution. If the law needs to be changed the Legislature can amend using the constitutional process. Judicial activism has eliminated Christian values from our educational system and our public squares (clearly never the intent of the religious founders) which has hurt our culture in both government and the private sector. In additon, small human infants are legally murdered by thier own mothers (many who are scared, confused and under pressure from abortion activists) These are just two examples of activism in the last century. Now we may have forced government healthcare and a double taxation situation with a new Value added tax. Not to mention the existing double taxation on wages and then on investments made after taxes are already paid on the principal. No one has allowed these thing to occur but our elected officials. About 535 elected congressional members voluntarily choose to erode our constutional rights for what? Power? Money? A liberty and freedom restricting socialist form of goverment? It seems to me to be treason to do such a thing but sadly the founders never envisioned the moral breakdown of our society to this extent or they would have allowed for the people to impeach via a majority ballot vote instead of congress. I know we can turn this around if we have a firm strong backbone and dedicated sites like this one to educate our citizens and future citizens to take back our liberties.

  30. Lillian Harvey says:

    Hi all!
    Donna, the example you used to clarify the dangers of relying on precedents over first principles is wonderful. It has really made me uneasy to hear some of the decisions that have been made based on case precedent rather than constitutional understanding. Thank you!
    Bill, the words “good behavior” got my attention when I read them as well. If applied by today’s definition, President Obama could have fired the Justices who ruled “badly” right in the middle of the State of the Union address. Frankly, it made me a bit nervous to think this after reading your blog.
    Thanks for all of these great blogs. Really, really wonderful.

  31. Spider says:

    @Bill: Brilliant argument. Bravo.

  32. Susanne says:

    Lynne N,

    I agree with what you said about being bothered by the way Supreme Court Justices are selected. It’s sad that congressmen can’t agree if a judge has ruled in the past according to the constitution. Before the presidential election Obama said he would choose justices that used empathy to interpret the law. That sent up red flags at the time! Eminent domain rulings have been especially troubling in recent years, as you said.

  33. I see two things that keep legislation from the bench going. One is the somewhat twisted interpretation of certain passages in the Constitution, particularly the Commerce Clause. The second is the dependence on Legal Precedent (a concept from Common Law), rather than Original Intention of the Founders.

    Maybe what we need is an amendment, not to change what the Constitution says, but to make a little less ambiguous a few key passages. And I would like it also to put Original Intention above Legal Precedent.

  34. Susan Craig says:

    Part of this problem is exacerbated by the fact that sometime (I think in the 20th century) Law schools stopped teaching Constitutional Law and switched to Case Law. Now I think it is a rare law school that places an emphasis on Constitutional law.

  35. Robert Shanbaum says:

    @Richard, regarding your question about (what amounted to) term limits, I suspect from your description that you read The Virginia Declaration of Rights, an important predecessor to the federal Constitution, in which the following appears:

    Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

    You may notice that the judiciary is explicitly excluded from the requirement.

    I also note the use of the precatory “should” in the cited section. Was it poor drafting, or intentional? The author (George Mason) seemed to have a tendency to write in that manner.

    Inasmuch as some of the Constitution’s language was borrowed from The Virginia Declaration (some of it verbatim), it is required reading:

  36. Gene Corno says:

    Don Barton is right on target. Jefferson wanted us to be ‘bound by the chains of the constitution’… There is a mechanism to change the constitution as Don Barton said so succinctly. To treat the constitution as a “living document” as some would have you believe it is…is to have no constitution at all. What you wind up with are politicians making rules as they go…a rule of man instead of the rule of law. Do not allow anyone to tell you the constitution is a LIVING DOCUMENT…if followed and adhered to it works just fine. It just doesnt suit the politicians mad dash to get all their bills through. I personally think that congress writes too many bills anyway. Which means they spend way to much. They should rather be more concerned with the perfection of a their bills, quality not quantity.

  37. Susan Craig says:

    One of the things that sparked the Revolution was that the King of England determined that the Magna Carta and the other documents governing England could mean whatever he wanted them to at the time (aka a living document).

  38. Linda LaFonte says:

    Your contributors are so knowledgeable — thanks for having them. I have been so curious about the origins of the judiciary and its independence. I now far better understand.

  39. Frieda says:

    It’s interesting to me that most of the comments focus on the role of the judiciary branch of government. What about treason? Have we commited treason against ourselves by giving to governments or organizations that use those resources to harm us? Are we giving, or have we given too generously as to commit treason against ourselves?

  40. yguy says:

    Chuck Plano, Tx says:

    “The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.”

    Actually Marshall made a good case for judicial review as a general principle in Marbury, though in the same opinion it seems he misapplied it to the exceptions clause so as to avoid a confrontation with the sitting President.

Howdy from Texas! Thanks for joining todays reading of Article II of the U.S. Constitution! I read it with my daughter in the car today.. well, she read it to me because I was driving! Isn’t it all fascinating? I LOVE studying the brilliance of our forefathers. I bet they are rather pleased that we are taking an interest and instilling a passion in our children and/or loved ones regarding the Constitution. Please remember to read it to your kids or share it with a friend or loved one! Perhaps your child or a child you know will want to enter our “We the People 9.17 Contest.” Entries are due July 4th, 2010.

I want to thank Andrew Langer  for his wonderful blog today! I learned so much. It is awesome to have such Constitutional knowledge shared with us, isn’t it?

I was intrigued with Article II Section I, “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability preserve, protect and defend the Constitution of the United States.” What first struck me is that it states, “preserve, protect and defend the Constitution of the United States.”  It doesn’t state, “change, disregard, or go-around” the Constitution of the United States.

I was also most intrigued with the fact that it does not state, “I will preserve, protect and defend the PEOPLE of the United States.” As I pondered upon this I came to the realization that if we have no basis, no thesis, no principle, no foundation for our country, if we have no government of checks and balances, a government that is accountable to the people, then how can the government help the people. Without the Constitution, without a roadmap, we have cannot preserve, protect and defend the people of the United States. Thus, if we lose the Constitution, we lose our country, we lose the people.

I conclude with my final observation about Article II, which is that if the President is to, “preserve, protect and defend the Constitution of the United States” then I should, “preserve, protect and defend the Constitution of the United States.” I must hold it dear and near to my heart. I must read it, absorb it, understand it, treasure it, value it, live it. And most importantly, because we are a Republic, because we are a people who rule through our elected officials, then it is my duty to thoroughly “vet” the candidate for whom I am voting. I must make sure that the candidate, with all his/her heart and all his/her might, in all sincerity will, “preserve, protect and defend the Constitution of the United States.”

So, goodnight. I am looking forward to tomorrow! Article III.  Check out my behind the scenes video pod casts. They are on our Facebook. They are also going to be on our website soon.

God Bless,

Janine Turner

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Essays by Janine | Edit | 3 Comments »