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THE CONSTITUTION: TEXT AND ANALYSIS

The text of the Constitution is printed below, retaining the original spelling and capitalization. Comments by Harold W. Chase are preceded and are in italics.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These stated objectives make clear the framers' commitment to the proposition that government should serve to enhance the value and dignity of the individual, as opposed to the proposition to which authoritarian governments have traditionally adhered, that the individual's highest duty is to serve the state.

Article I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

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

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time: and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Sections 1 to 7 of Article I define the composition of the Congress, the qualifications of its members, and the manner in which it will conduct its business.

No absolute limit was placed on the number of members of the House, but in 1913 Congress limited the membership to 435. The clause requiring that senators be chosen by their respective state legislatures was superseded by the 17th Amendment (1913), which requires the popular election of senators.

The Senate is entrusted with the power of trying all impeachments; specific directions are given as to how the trial shall be conducted and as to the impact of its judgment. The House alone has the power to impeach, however.

Significantly, there have been few impeachments, giving some credence to Thomas Jefferson's view that "experience has already shown that the impeachment the Constitution has provided is not even a scarecrow. It is a cumbersome, archaic process. . . ." The later experience of President Nixon, however, showed the threat of impeachment to be more than a scarecrow.

Although each house is to be the judge of the elections and qualifications of its members, the Supreme Court has held, in a case involving the seating of Adam Clayton POWELL in 1969, that "the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed" in the Constitution.

The privileges and immunities of members of Congress detailed in Section 6 have come under close judicial scrutiny in recent years. The Supreme Court has supported a broad view of congressional immunity, particularly with respect to the speech or debate clause:

The speech, or debate, clause was designed to assure a coequal branch of the government wide freedom of speech, debate and deliberation without intimidation or threats from the executive branch. It thus protects members against prosecutions that directly impinge upon or threaten the legislative process.

The provision of Section 7, paragraph 3, that every resolution be presented to the president before it takes effect, has permitted the growth of a special use of the "concurrent resolution." It is now commonly accepted that the constitutional provision requires the president's approval only to give a resolution the force of law. Consequently, the concurrent resolution has been employed as a means of controlling or recovering power delegated by Congress to the president. For example, Congress has delegated power to the president to reorganize executive agencies on the condition that his orders may be vetoed within a prescribed time by a concurrent resolution.

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

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

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

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

To establish Post Offices and post Roads;

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

To constitute Tribunals inferior to the supreme Court;

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

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

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

To provide and maintain a Navy;

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

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

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

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

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

The framers of the Constitution undoubtedly believed that the legislative power of Congress was originally limited to the 17 specific areas listed in Article I, Section 8, plus whatever was necessary and proper for carrying them out. As John Marshall wrote for the Supreme Court in 1819,

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the power granted to it, would seem too apparent to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.

Marshall, however, added two important corollaries to constitutional doctrine, both of which have markedly influenced constitutional interpretation. The first corollary is that "the government of the Union, though limited to its powers, is supreme within its sphere of action." In other words, where Congress has the power to act, its actions take precedence over state actions. The second corollary is that the "necessary and proper" clause in paragraph 18 should be broadly construed to provide Congress "some choice of means of legislation, not strained and compressed within the narrow limits for which gentlemen contend." In practice, these corollaries have given Congress clear advantages in the continuing struggle for power between the national and state governments.

Experience has shown that the enumerated powers of Section 8 do not include all matters in which congressional action might be needed. Congress has been granted other specific powers in several amendments. For example, the 13th, 14th, and 15th amendments assure citizens of several basic rights, and all three provide that "Congress shall have power to enforce this article by appropriate legislation."

For the most part, however, the power of the national government has been expanded not by breaching the doctrine of enumerated powers as it pertains to Congress, but rather by broad interpretation of those specific powers, notably the power to regulate commerce, and by a liberal interpretation of the "necessary and proper" clause.

A common misconception about the U.S. political system is that Congress has the constitutional power to legislate virtually anything it deems to be for the general welfare. It is true that the Constitution gives Congress "the power to lay and collect Taxes, Duties, Imposts and excises, to pay the Debts and provide for the common Defence and general Welfare of the United States," but this is different from giving Congress the power to legislate freely for the general welfare. Indeed, if Congress did have such a power, there would be no need to grant other enumerated powers. Congress's power to provide for the general welfare is limited to taxing and spending. Whereas these powers are considerable, clearly a great difference exists between the power to compel and the power to entice by the offer of money. Congress may try to entice the states to do something in, for example, the field of education by means of subsidies or grants, but it cannot compel them to accept the enticements.

One of the great controversies about the exercise of congressional power has been over the extent to which Congress may delegate its powers to the president and others. In the days of the NEW DEAL, in the 1930s, the Supreme Court put some checks on Congress's growing proclivity to delegate power. It held that Congress could only delegate power if it circumscribed the delegation "within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply." The question is no longer hotly discussed on the national level, partly because Congress is now careful to set standards when it delegates power, and partly because the Court has grown more permissive. On the state and municipal levels, however, delegation remains a lively issue, probably because judges feel uneasy about delegating power to government officials of less than national stature.

The question of Congress's power to investigate has also aroused considerable controversy. The Supreme Court has held that this power is inherent in Congress's power to legislate and to oversee the executive branch. From time to time the Court has limited the power, when it determined that the congressional investigation served no legitimate legislative purpose, or encroached on 1st Amendment rights of witnesses, or was tantamount to punishment without judicial trial.

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

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

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

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

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

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

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

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

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

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

Besides enumerating the powers granted to Congress, the framers wanted to make clear what Congress was expressly forbidden to do. The prohibitions they selected reflect the high value they placed on civil liberty and private property. It is no exaggeration to say that the writ of Habeas Corpus is the most important single safeguard of personal liberty known to Anglo-American law; here, the Constitution explicitly permits its suspension only in "Cases of Rebellion or Invasion {when} the public Safety may require it."

Although the ex post facto law prohibition was later interpreted to apply only to criminal law, it was once seen as a means of protecting property holders from arbitrary government seizure of their property. Similarly, the prohibition against bills of attainder and the requirement that capitation and direct taxes be apportioned were seen as protections of property rights.

Limiting Congress to enumerated powers entailed the corollary that "the powers not delegated to the United States . . . are reserved to the States respectively, or to the people," in the words of the 10th Amendment. Consequently, if in the interest of maintaining a viable federal system it was necessary to forbid the states to exercise certain powers, these had to be spelled out; Section 10 does so.

It is noteworthy that the prohibition against bills of attainder and ex post facto laws is extended to the states. The prohibition of laws "impairing the Obligation of Contracts" is even more significant. By extending the meaning of the word contract to include public grants of land, exemptions from taxation, and charters of corporations, the Supreme Court once provided property owners with a barrier against the power of states to protect public health, safety, and morals. Later, the Court decided that a state had no right to bargain away this power. Consequently, the contract clause may no longer be used to protect vested interests.

Article II

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

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

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

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

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

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

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

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

A perennial difficulty in the constitutional interpretation of presidential power is the meaning of the first sentence of Article II: "The executive Power shall be vested in a President of the United States of America." What is executive power? Presidents have held differing views of the powers inherent in their office. William Howard Taft took the view that the president had only the powers expressly given him in the other sections of Article II. In contrast, Theodore Roosevelt held that by virtue of the opening sentence of Article II the president, as steward of all the people, could do anything on behalf of the people that was not expressly denied him in the Constitution. On several momentous occasions Franklin D. Roosevelt asserted the power to do things expressly forbidden by the Constitution. For example, before the United States entered World War II, he traded some old destroyers to Britain in exchange for military bases, although Article IV, Section 3 of the Constitution gives Congress the exclusive power to dispose of property belonging to the United States. Abraham Lincoln also suggested that a president must occasionally suspend part of the Constitution to preserve the whole.

Section 1 of Article II describes the electoral college system for electing the president. Paragraph 3 was superseded by the 12th Amendment. Paragraph 6 suggests that a president who is unable to discharge his powers and duties may be removed from office. The inadequacies of this provision became a matter of concern in the 20th century; both Woodrow Wilson and Dwight Eisenhower were ill and clearly unable to function for a time. The 25th Amendment, passed in 1967, spells out a procedure for relieving a disabled president.

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

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

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

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

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

Part of the controversy over presidential power turns on the question of what additional powers, if any, are inherent in the president's role as commander in chief. This issue becomes even more complicated when presidents take extraordinary actions in time of war or contend that they may legitimately claim extra power by combining the powers of the chief executive and the commander in chief. The Supreme Court scrutinized this question in Youngstown Sheet and Tube Co. v. Sawyer (1952) and decided that the Korean War emergency did not give President Harry S. Truman the right to seize steel companies that were on strike.

Greater controversy has arisen over whether the president may commit the nation's armed forces to war without a congressional declaration of war, although the Constitution states that "the congress shall have Power . . . To declare War." Many have argued that the United States should not have become involved in hostilities in Korea and Vietnam without a declaration of war. In 1973, Congress passed the War Powers Resolution over President Nixon's veto. With some qualifications, the resolution permits the president to commit the armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances" in specified emergencies for a period of 60 days without specific authorization from Congress. Congress reserves the power to terminate the action earlier if it sees fit to do so.

The Constitution gives the president the power to make treaties with the advice and consent of the Senate. It is important to note that the president frequently negotiates agreements with other governments that are not referred to the Senate for its advice and consent. Two kinds of executive agreements are made: those which the president is authorized by Congress to make, or which he lays before Congress for approval and implementation; and those which he enters into simply by virtue of his diplomatic powers and his powers as commander in chief. The line between executive agreements and treaties is difficult to define. Congress has often been uneasy about what many conceive to be a presidential method of avoiding advice and consent.

Although the president is endowed by the Constitution with considerable power to appoint officials, nothing is explicitly said about his power to remove them. Arguably, the power to remove may be considered part of the power to appoint, although Supreme Court decisions have narrowed the president's removal power to "purely executive officers," not including commissioners of independent regulatory commissions or the War Claims Commission.

Presidents have long asserted Executive Privilege, that is, the privilege of withholding testimony about confidential conversations between a president and his close advisers. In United States v. Richard M. Nixon (1974), the Supreme Court held that executive privilege does exist but that it is not absolute. In cases where "the legitimate needs of the judicial process outweigh presidential privilege," the privilege must give way. The Court did not speak to the question of whether or not the privilege would have to give way in a congressional hearing; it spoke only of the judicial process.

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.

Nowhere in the Constitution is the Supreme Court explicitly granted the power of judicial review, that is, the power to declare acts of Congress and state legislatures and the actions of national and state officials unconstitutional and to reverse the decisions of state courts on constitutional questions. The power accorded to the Supreme Court is tersely described in Article III as "the judicial Power"; the institution of judicial review has grown out of the interpretation of that power. The initiative was seized by Chief Justice Marshall in Marbury v. Madison (1803), who took upon himself the power to interpret the Constitution as necessary to reach a decision in the case.

Judicial review has become an integral part of the U.S. political system, and it would take nothing less than a constitutional amendment to do away with it. A lively dispute, however, has been going on throughout U.S. history about the extent to which the power should be exercised. Some believe in judicial self-restraint--that is, that the Court should assume that the acts and actions of coordinate departments of the national government and of state governments are constitutional unless it is convincingly demonstrated that they are not. Others, who are often called judicial activists, feel that the Court should be quick to exercise the power of review. They assert that they too believe in judicial self-restraint as a general proposition, but they maintain that when it comes to important rights, the Constitution itself requires that the acts and actions of others should not be assumed constitutional.

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

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

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

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

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

Section 2 of Article III concerns jurisdiction of the courts. Jurisdiction is the authority of a court to exercise judicial power in a particular case. As indicated earlier, Congress may not enlarge or diminish the power that the Constitution vests in the courts. But Congress is granted vast power in Section 2 with respect to the jurisdiction of the Supreme Court. Paragraph 2 of that section indicates the relatively few cases in which the Supreme Court shall have original jurisdiction (the power to be the first court to hear a case), but provides that "in all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Thus, there is no doubt that Congress has the constitutional authority to enlarge or diminish the Court's appellate jurisdiction (its power to review decisions of lower courts). Congress sometimes tries to curtail the appellate jurisdiction of the Court, especially when it is unhappy with recent Court decisions. Such efforts may be unwise, but they are not unconstitutional.

Article IV

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

Despite the apparent simplicity and clarity of this provision, it has been the source of an enormous amount of litigation on highly technical grounds, so much so that Justice Robert H. Jackson, in writing about it, called it "the Lawyer's Clause of the Constitution."

This clause is invoked most often today in divorce cases in which one of the spouses goes to another state to obtain the divorce, and in workers compensation cases in which the employment contract is drawn up in one state and the employee is injured in another state. Not only is there a question of which state's court has jurisdiction and what credit the other state's court should give to the first one's judgment, a question also exists about which state's law should take precedence when laws conflict.

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

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

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section 3. New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Although theories have conflicted about the privileges and immunities clause of Section 2, paragraph 1 (plus another in the 14th Amendment), it has become settled doctrine that the clause only forbids a state from discriminating against citizens of other states in favor of its own. But there are certain privileges and immunities for which a state, as parens patriae, may require a previous residence, such as the right to fish in its streams, to hunt game in its fields and forests, to divert its waters, or even to engage in certain businesses of a quasi-public nature, such as insurance.

Paragraph 2 deals with extradition. By a 1793 act of Congress, this responsibility was delegated to the governors of the states. But the Supreme Court later ruled that while the duty is a legal one, its performance cannot be compelled by writ of mandamus. Consequently, governors of states have often refused compliance when, in their opinion, substantial justice required such refusal. Section 3, paragraph 2, clearly gives Congress the sole power to dispose of and make rules respecting territory or other properties, a provision that Franklin D. Roosevelt ignored when he exchanged U.S. destroyers for British military bases.

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.

Although a movement to call a constitutional convention to approve an amendment requiring a balanced federal budget gained temporary momentum in 1979, only the first method of proposing amendments has ever been applied successfully.

All proposals, except the one to repeal the 18th Amendment, have been referred to state legislatures. In that one instance, Congress prescribed that the proposal should be ratified by popularly elected conventions chosen especially for the purpose, but it left the details of their summoning to the several state legislatures. What resulted in most states was a popular referendum; the conventions were made up almost entirely of delegates previously pledged to vote for or against the proposed amendment.

During the controversy in the 1970s over ratification of the proposed Equal Rights Amendment, the perennial question has arisen as to whether a state legislature that has ratified an amendment may later reconsider its vote before the amendment is ratified by three-fourths of the state legislatures. This question has not been definitively settled. In passing a resolution in 1978 to extend the deadline for ratification of the amendment, however, the Senate specifically rejected an amendment to allow the states to rescind earlier ERA ratification.

The first of the two exceptions to the amending power became obsolete in 1808. The second, that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate," explains why the Senate is the only legislative body in the United States whose composition is exempt from the Supreme Court's one-man, one-vote ruling in Reynolds v. Sims (1964).

Article VI

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

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

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

The paragraph containing the supremacy clause has been called the linchpin of the Constitution because it combines the national government and the states into one governmental system, one federal state. It indicates that although the powers of the national government may be strictly enumerated, they are supreme over any conflicting state powers whatsoever.

Accordingly, when a conflict occurs between national and state law, the only question to be answered is, ordinarily, whether the former represents a fair exercise of Congress's power.

Article VII

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

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth

In witness whereof We have hereunto subscribed our Names,

George Washington--President and deputy from Virginia
New Hampshire: John Langdon, Nicholas Gilman
Massachusetts: Nathaniel Gorham, Rufus King
Connecticut: William Samuel Johnson, Roger Sherman
New York: Alexander Hamilton
New Jersey: William Livingston, David Brearly, William Paterson, Jonathan Dayton
Pennsylvania: Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Thomas FitzSimons, Jared Ingersoll, James Wilson, Gouverneur Morris
Delaware: George Read, Gunning Bedford, Jr., John Dickinson, Richard Bassett, Jacob Broom
Maryland: James McHenry, Daniel of Saint Thomas Jenifer, Daniel Carroll
Virginia: John Blair, James Madison, Jr.
North Carolina: William Blount, Richard Dobbs Spaight, Hugh Williamson
South Carolina: John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler
Georgia: William Few, Abraham Baldwin

The Articles of Confederation provided for their own amendment only by the unanimous consent of the 13-state legislature. The Constitution, however, was to take effect upon being ratified by conventions in only nine states. In the legal sense, this was an act of revolution.