Why do we even need a government?
This is a profound question everyone ought to ask about the people who rule over our societies and are responsible for the creation and implementation of our laws. After all, shouldn't we all be free to determine what actions are best for our own lives?
The concept sounds appealing in some fashion, because who really enjoys being told how they can or cannot act? The English philosopher John Locke explored this question in his Second Treatise on Civil Government. Locke referred to life without government as the 'state of nature', where a person was governed by no one and truly free. However, as Locke noted, man would readily give up this freedom for the protection of property (a general term encompassing safety, liberty, etc.) that could be provided by an organized government.
When people surrender some of their natural rights for the protections of government, Locke (along with many others) discussed the notion that a 'social contract' existed between the people and their government. The people would agree to abide by the laws created and enforcements of the government, and in return, the government would rule in a just and fair manner. If the government does not meet its obligation, Locke believed the people would be justified in removing that government.
Democracy
Locke's ideas were greatly respected among the American colonists and helped formulate the type of government that would be formed: a democracy. Simply stated, a democracy is a rule by the people. However, democracy can typically be divided into two subcategories.
The earliest form of democracy is that which ancient Greece modeled -- a direct democracy. In this type of democracy, all the citizens of a given community participated in most decisions. While this model had some success in the ancient Greek city-states, no one gives serious consideration to implementing a direct democracy in modern society.
Can you answer: Why would a direct democracy not be feasible in modern society?
The American system of government isn't a direct democracy, but instead, we have established a representative democracy, where citizens elect a small group of representatives to make decisions for the entire nation. This is more commonly known as a republic.
Constitutional Background
A common misperception of the United States is that the nation was united after the end of the American Revolution. In fact, one of the few things the original 13 states could agree upon was their disdain for British rule. Even then, many Americans had sided with the British during the Revolution.
Each state saw itself as an independent entity, with its own way of life. They had varying economic activities that were crucial to their given region, differing opinions on religion, and the attitudes of citizens differed on many issues, including slavery.
The 13 states created a loose national government under a document known as The Articles of Confederation. Under this document, each state retained its independence in decision making and it was clear that the national government was very limited in the scope of its power. The American states had just gained independence from a strong central government and had no intention of creating a new one. The document itself noted that the states were merely in a "league of friendship."
The national government under the Articles had serious deficiencies that ultimately led to its demise. The national government did not have the authority to tax, regulate interstate commerce, or even create a common currency. Each state received equal representation in the legislative body and there was no executive branch. Furthermore, the Articles could not be altered unless all 13 state legislatures consented to do so. If the national government did make any decisions, it lacked the ability to enforce them, often relying on the individual states to do so.
Under the system that the Articles had established, most states struggled economically. Larger states such as Virginia and New York were less affected, but the lack of uniform commercial regulations, a common currency, and other nationalized standards left smaller states to struggle for survival. The United States was not in a good place. During the Revolutionary War, individual states and the Continental Congress had sizable debts that threated to make the nation insolvent very shortly after independence.
Though largely ineffective, the national government under the Articles did manage to pass a few key pieces of legislation. One such law was the Land Ordinance of 1785, created the policy by which frontier lands in the West would be divided up for the purpose of settling. Plots of land were carved up into 'townships' of 36 square miles for future development.
Another such important piece of legislation was the Northwest Ordinance, in which many of the 13 original states voluntarily gave up land claims on the frontier. Several states were often attempting to lay claim to the same pieces of territory, and in giving up these claims, they allowed the land to be created into new states.
Because of the struggles under the Articles of Confederation, representatives from several states were set to gather in Annapolis, Maryland in the summer of 1786, with the purpose of altering the Articles, particularly the trade barriers between the states. The Annapolis Convention was largely a failure, with only five states sending representatives. However, the group did call for another convention to be held in the summer of 1787, in Philadelphia. The hope was that convention would be better attended.
The convention planned for the summer of 1787 might not have become such a significant event if a key development had not occurred in the interim. In Massachusetts, many farmers were suffering and could not afford to pay their mortages in a stagnant economy. As a result, their frustration grew and they organized an armed insurrection under the leadership of Daniel Shays, a former Revolutionary soldier. The insurrection, known as Shays' Rebellion, was quickly put down by state authorities, however, the incident drew national attention.
Can you answer: what effect did Shays' Rebellion have on the planned Philadelphia Convention of 1787?
The Constitutional Convention of 1787
While difficult to pinpoint how much of an impact Shays' Rebellion had on the several states, the Philadelphia convention was far better attended. Fifty-five delegates from 12 states (Rhode Island was the lone holdout) participated in the discussions. The stated claim for the convention was the amend the Articles of Confederation, however, the attendees were aware they were participating in the creation of an entirely new constitution.
The 55 participants at the Convention were among some of the most accomplished and well known men of their time. Most significant of the delegates was George Washington, who officially presided over the Convention. No one else could have provided as much legitimacy or have commanded as much respect as Washington. He serves as a unifying force at the Convention and his role there cannot be overstated. Washington was very aware of the weight his words carried, and as such, spoke very little at the Convention.
Several other notable figures were present, including Alexander Hamilton, Benjamin Franklin, George Mason, and Robert Morris. Also, James Madison was the official notetaker of the Convention and drafted the copies of the Constitution. As a result, Madison is often regarded as the "Father of the Constitution."
Some key figures of the time period were absent from the Convention, including John Adams and Thomas Jefferson, both of whom were overseas serving posts in Great Britain and France, respectively. Some scholars have suggested the Convention was scheduled in such a way that Jefferson wouldn't be able to attend. Jefferson did not approve of a strong central government, which was precisely what would be created at the Convention. Whatever his personal thoughts about the Convention were, Jefferson described the men in Philadelphia as a collection of "demi-gods."
The Issues of the Convention
Though each state's delegation came to the Convention with their own agendas, some ideas were readily accepted, including the principle of separation of powers. This concept, introduced by the French thinker and philosopher Montesquieu, divided governmental power into three distinct branches: legislative, executive, and judicial.
One of the many influences at the Convention was that of John Locke, and his stressed importance of the legislative body was shared by the Founding Fathers. As such, the national law making body was the most pertinent issue in the summer of 1787.
The need for a strong national government with an empowered law making body was well known among the delegates, but the real argument was over how each state would be represented in the legislature. Larger states formulated the Virginia Plan, which created a more complex system of government where the states' representation in the legislature would be based upon population.
Smaller states held concerns of being consistently outvoted by larger states in a legislature, so they presented their own concept, called the New Jersey Plan. This plan called for a legislative body where all states received equal representation.
To reconcile the differences between the states, an agreement was formed called The Connecticut Compromise (often called The Great Compromise). In this, the new law making body, called Congress, would be bicameral, having one body whose representation was based on population (the House of Representatives) and the other (the Senate) would have equal representation.
In dealing with the issue of representation in the House, states questioned the issue as to what to do about the counting of slaves. Southern states wanted slaves to be counted for the purpose of representation in the House, as it would give them more voting members. Northerners objected that slaves were not counted as citizens, thus shouldn't be counted at all. To solve the issue, another compromise was reached. The 3/5th Compromise held that for the purposes of representation in the House, slaves would count as 3/5th of a person.
Other issues at the Convention were difficult to resolve and took a great deal of time to work through, such as how to select a president, or what to do about slavery as an instituion. The finished product after the summer of 1787 was a Constitution that did not please everyone, but satisfied enough of the participants that of the 55 men present, only a handful did not sign the document.
Adoption of the Constitution
Though the Constitution was completed in September of 1787, the document still needed to be adopted by the states. Two main camps formed over the issue. The Federalists were those who favored the implementation of the Constitution and a strong national government. Those opposed to the idea of the stronger national government were dubbed as the Anti-Federalists. To generate support for the ratification of the Constitution, Federalists created a series of articles submitted to newspapers in New York that promoted the benefits of the new Constitution. Collectively, these articles are referred to as The Federalist Papers. Written by James Madison, Alexander Hamilton, and John Jay, these documents helped sway people in favor of the stronger government.
Also, Federalists promised to add a Bill of Rights to the Constitution to ensure citizens would be protected from the national government. After these developments, all 13 states eventually ratified the Constitution.
The Constitution
The Constitution is a framework for the national government and is written in a very intentional manner. A reason tends to exist for the wording of every part of the document. The 'preamble' introduces the primary goals of the government and denotes the Constitution was created by "We the people ..."and not the states.
Article I of the Constitution details the specific powers, functions, and limitations of the legislative branch, or Congress. This branch of government was placed first in the Constitution because of its significance. Article I is the most detailed and lengthy of the Constitution and this reflects the Framers' desire for Congress to be the most important of the three branches. The legislative branch was always meant to be more powerful than the other two.
Though it has other functions, the main job of Congress is to create laws. Congress is given numerous powers, listed specifically in Article I, Section 8 of the Constitution. These are referred to as enumerated powers. Some of the more important enumerated powers include: the power to tax, regulate interstate commerce, declare war, and coin money. Several of these powers were corrections made to the Articles of Confederation.
Congress also has what are called implied powers, which include any power that can be inferred or implied from the enumerated powers. Congress has implied powers because of the 'elastic' clause in Article I, Section 8. It reads that Congress shall have the power:
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.
Essentially, this allows Congress to make laws that are connected with the enumerated powers. For example, the enumerated powers give Congress the power to declare war, and raise and army. It can therefore be inferred that Congress has the power to implement a military draft, even though it's not specifically mentioned in the Constitution.
Protections from Congress
Though Congress was endowed with great power, there are some types of laws is specifically forbidden to enact. One such action is that the privilege of habeas corpus cannot be suspended. This protection ensures anyone being held by governmental authorities must shown evidence as to why they are being detained. The phrase habeas corpus is Latin, meaning "show or produce the body." In some instances, habeas corpus can be suspended, if "... when in cases of rebellion or invasion the public safety may require it." President Abraham Lincoln suspended habeas corpus during the American Civil War so the military could round up suspected Southern spies.
Also, Congress is forbidden from passing any bills of attainder. These constitute any law that would punish a person without the benefit of a trial. Congress is also prevented from passing any ex post facto laws, which are any laws that would punish someone for committing an act that wasn't a crime when they did it.
Can you answer: why did the Founding Fathers specifically place these protections in the Constitution?
Article II of the Constitution deals with the executive branch, whose primary role is to enforce the laws passed by Congress. We often have the misconception that the executive branch merely encompasses the office of the president. However, the president is merely the chief executive with dozens of federal government agencies and thousands of employees who work to implement and carry out the laws.
The role of chief executive is very significant in modern America, but was not considered to be as important as Congress. However, even in the 18th and 19th centuries, a strong president was needed, particularly in times of war or crisis. Like Congress, the president has several powers explicitly written in the Consitution, including the power to veto, or nullify, laws passed by Congress. The president is also the commander-in-chief, meaning he or she controls the armed forces of the United States. The president also appoints a number of officials to federal offices, receives ambassadors, grants pardons and repreives, and reports on the 'State of the Union.'
A president can be removed from office for "...Treason, Bribery, or other High crimes and Misdemeanors." The process includes impeachment by a majority of the House of Representatives and conviction by 2/3rd of the Senate.
Can you answer: Why did the Framers place the power to declare war in the hands of Congress, but make the president the command-in-chief of the armed forces?
Article III of the Constitution is the least extensive of the three branches and vaguely outlines the judicial branch of the government. It stipulates that a Supreme Court exists and Congress has the ability to create inferior courts at their discretion. Article III guarantees jury trials and specifically defines the only crime mentioned in the Consitution, which is treason.
Article IV governs relationships between the states and provides a level of equality. Among the key clauses within this article is the Full Faith and Credit Clause. This requires states to provide 'full faith and credit' "... be given in each state to the public acts, records, and judicial proceedings of every other state." For instance, a driver's license issued in the state of West Virginia permits a person to legally drive anywhere in the nation. Or, a citizen could not attempt to sue another person or group in the Ohio courts if the Kentucky court system has already made a ruling on the dispute. Ohio would have to honor the ruling made in the state of Kentucky.
However, the Full Faith and Credit Clause does not apply to every state action. Gun licenses and professional certifications are not required to be recognized by states universally. Currently, the most controversial issue regarding this clause pertains to the issue of marriage licensure. States have always honored heterosexual marriages, but same-sex marriages are not always recognized. Some states have refused to regard same-sex marriages as valid, prompting questions about the Full Faith and Credit Clause. The issue of marriage is also clouded by the Defense of Marriage Act (DOMA), passed in 1996. This law articulated that the federal government recognized marriage as between a man and woman, and allowed states not to recognize same-sex marriages. (Note: DOMA was overturned by the Supreme Court in the cases Windsor v. United States (2013) and Obergefell v. Hodges (2015).
Article IV requires that fugitives captured in a state must be extradited back to the state where the crime was committed. Contained in this portion of the Constitution is also the Privileges and Immunities Clause, which prevents a state from discriminating against citizens of other states in favor of its own citizens. Essentially, what a state does for one of its citizens, it must do for all.
The Framers of the Constitution sought to permit new states to be admitted into the union, and Article IV discusses this issue, including a statement that allows new states to be carved out of already existing states.
Article V of the Constiution allows for a process to amend the Constitution. The Frames recognized the nation would inevitably change, and the Constitution would need to change also. For any amendment to become part of the Constitution, it must go through two distinct phases. Phase 1 is the amendment proposal. Two ways exist to propose a constitutional amendment. The first is for 2/3rd of both houses of Congress to agree to a proposal. The second (which has never been used) is for 2/3rds of the states to call for a special convention for proposing amendments. No one is entirely certain of what a special convention would entail or how they would choose any amendment proposals.
Phase 2 of the amendment process is ratification. Once an amendment has been officially proposed, there are two ways to approve of the potential change. The typical method of ratification is for 3/4th of state legislatures to approve of the amendment. The other possibility is for 3/4th of special state conventions to give their approval to an amendment (this method has only been used once).
Article VI contains a key measure referred to as The Supremacy Clause. The text of this reads:
The text gives the national government authority over state governments when a conflict arises between the two levels of government.
Article VI also mandates the national government will assume all debts incurred by the 13 states up to the point of ratification of the Constitution. This portion of the Constitution frustrated larger states, such as Virginia, who had already paid back their debts.
Article VII merely denotes that the Constitution will take effect once 9 of the 13 states ratify it.
For a discussion of the contents of the Constitutional Amendments and issues surrounding those rights, please click of the tab above that's labeled "Civil Rights & Liberties."
Unwritten Concepts of the Constitution
Though the Constitution is written in a very organized and distinct manner, there are underlying concepts and principles with great significance to the American system of government.
The first of these principles is that of separation of powers. The division of governmental power into the three distinct branches was deemed necessary to prevent too much power from being vested into the hands of so few.
Merely separating the powers of government was not enough. To prevent any branch from consolidating power, a system of checks and balances lies within the Constitution. Each branch of government has unique powers and abilities to defend themselves from the other two. For instance, though Congress can pass laws, the president has the ability to veto those proposed laws. Thus, Congress' power has limits.
James Madison wrote about these two concepts in Federalist 51, where he commented that it was necessary to give each branch of government a means of defending itself against encroachments of their power. Madison rightly believed that human nature would cause people to attempt an accumulation of power.
Another key concept within the Constitution is that of federalism, which is a governmental system where power is divided among a national government and subordinate state governments. In the Constitution, the national government is granted a great many specific powers, however, the 10th Amendment reserves any power not specifically mentioned in the Constitution to the state governments. An example of this concept pertains to the policy area of education. Since the Constitution mentions nothing about education, states are free to determine their own policies regarding public and private schools.
Unintended Features of the American System
Though the framework for the national government exists within the Constitution, our system has evolved with things that were never intended. One of the most significant outgrowths of the American political system is the birth of political parties. Though many early Americans predicted the development of political parties, this wasn't seen as necessarily a good thing. George Washington warned of the divisiveness of political parties and how they could become a detriment.
The existence of political parties in modern America often leads to what political scientists refer to as divided government. A divided government exists when one party controls the presidency, and the other party controls one or both houses of Congress.
Though we live in a republic, some forms of direct democracy still exist within the states. One of the more popular forms of direct democracy is the referendum. This allows the citizens of a given state or area the ability to vote directly on a particular issue. States have used referendums to make decisions about controversial issues such as gambling, same sex marriage, or excess tax levies.
Some states also permit recall elections, where citizens vote to remove a publicly elected official from their position even though they have committed no crime, which is different than an impeachment.
Government agencies represent another part of the American system that wasn't mentioned in the Constitution, but were born out of necessity. When the Constitution was written, the nation was significantly smaller and had less laws to govern. In the two centuries since the inception of the Consitution, the United States and the world around us have grown larger and more complicated. As such, the executive branch needed more employees to help implment and regulate federal policies.
Government agencies such as the Environmental Protection Agency, or the Food and Drug Administration regulate certain areas of society where laws have been passed by Congress. The president and his cabinet of officers would not be able to enforce the laws on their own. Thus, agencies exist for that purpose.
One last important change in American government is the growth of power placed in the presidency. Though Congress was always intended to be the preeminent power in the national government, the presidency has become significantly more powerful since the beginning of the 20th century.
Can you answer: why has the presidency become more important since 1900?
This is a profound question everyone ought to ask about the people who rule over our societies and are responsible for the creation and implementation of our laws. After all, shouldn't we all be free to determine what actions are best for our own lives?
The concept sounds appealing in some fashion, because who really enjoys being told how they can or cannot act? The English philosopher John Locke explored this question in his Second Treatise on Civil Government. Locke referred to life without government as the 'state of nature', where a person was governed by no one and truly free. However, as Locke noted, man would readily give up this freedom for the protection of property (a general term encompassing safety, liberty, etc.) that could be provided by an organized government.
When people surrender some of their natural rights for the protections of government, Locke (along with many others) discussed the notion that a 'social contract' existed between the people and their government. The people would agree to abide by the laws created and enforcements of the government, and in return, the government would rule in a just and fair manner. If the government does not meet its obligation, Locke believed the people would be justified in removing that government.
Democracy
Locke's ideas were greatly respected among the American colonists and helped formulate the type of government that would be formed: a democracy. Simply stated, a democracy is a rule by the people. However, democracy can typically be divided into two subcategories.
The earliest form of democracy is that which ancient Greece modeled -- a direct democracy. In this type of democracy, all the citizens of a given community participated in most decisions. While this model had some success in the ancient Greek city-states, no one gives serious consideration to implementing a direct democracy in modern society.
Can you answer: Why would a direct democracy not be feasible in modern society?
The American system of government isn't a direct democracy, but instead, we have established a representative democracy, where citizens elect a small group of representatives to make decisions for the entire nation. This is more commonly known as a republic.
Constitutional Background
A common misperception of the United States is that the nation was united after the end of the American Revolution. In fact, one of the few things the original 13 states could agree upon was their disdain for British rule. Even then, many Americans had sided with the British during the Revolution.
Each state saw itself as an independent entity, with its own way of life. They had varying economic activities that were crucial to their given region, differing opinions on religion, and the attitudes of citizens differed on many issues, including slavery.
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| League of friendship? Not our best idea ... |
The 13 states created a loose national government under a document known as The Articles of Confederation. Under this document, each state retained its independence in decision making and it was clear that the national government was very limited in the scope of its power. The American states had just gained independence from a strong central government and had no intention of creating a new one. The document itself noted that the states were merely in a "league of friendship."
The national government under the Articles had serious deficiencies that ultimately led to its demise. The national government did not have the authority to tax, regulate interstate commerce, or even create a common currency. Each state received equal representation in the legislative body and there was no executive branch. Furthermore, the Articles could not be altered unless all 13 state legislatures consented to do so. If the national government did make any decisions, it lacked the ability to enforce them, often relying on the individual states to do so.
Under the system that the Articles had established, most states struggled economically. Larger states such as Virginia and New York were less affected, but the lack of uniform commercial regulations, a common currency, and other nationalized standards left smaller states to struggle for survival. The United States was not in a good place. During the Revolutionary War, individual states and the Continental Congress had sizable debts that threated to make the nation insolvent very shortly after independence.
Though largely ineffective, the national government under the Articles did manage to pass a few key pieces of legislation. One such law was the Land Ordinance of 1785, created the policy by which frontier lands in the West would be divided up for the purpose of settling. Plots of land were carved up into 'townships' of 36 square miles for future development.
Another such important piece of legislation was the Northwest Ordinance, in which many of the 13 original states voluntarily gave up land claims on the frontier. Several states were often attempting to lay claim to the same pieces of territory, and in giving up these claims, they allowed the land to be created into new states.
Because of the struggles under the Articles of Confederation, representatives from several states were set to gather in Annapolis, Maryland in the summer of 1786, with the purpose of altering the Articles, particularly the trade barriers between the states. The Annapolis Convention was largely a failure, with only five states sending representatives. However, the group did call for another convention to be held in the summer of 1787, in Philadelphia. The hope was that convention would be better attended.
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| Depiction of Shays (left) and one of his co-conspirators |
Can you answer: what effect did Shays' Rebellion have on the planned Philadelphia Convention of 1787?
The Constitutional Convention of 1787
While difficult to pinpoint how much of an impact Shays' Rebellion had on the several states, the Philadelphia convention was far better attended. Fifty-five delegates from 12 states (Rhode Island was the lone holdout) participated in the discussions. The stated claim for the convention was the amend the Articles of Confederation, however, the attendees were aware they were participating in the creation of an entirely new constitution.
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| Iconic rendering of the Convention (it wasn't this patriotic looking) |
Several other notable figures were present, including Alexander Hamilton, Benjamin Franklin, George Mason, and Robert Morris. Also, James Madison was the official notetaker of the Convention and drafted the copies of the Constitution. As a result, Madison is often regarded as the "Father of the Constitution."
Some key figures of the time period were absent from the Convention, including John Adams and Thomas Jefferson, both of whom were overseas serving posts in Great Britain and France, respectively. Some scholars have suggested the Convention was scheduled in such a way that Jefferson wouldn't be able to attend. Jefferson did not approve of a strong central government, which was precisely what would be created at the Convention. Whatever his personal thoughts about the Convention were, Jefferson described the men in Philadelphia as a collection of "demi-gods."
The Issues of the Convention
Though each state's delegation came to the Convention with their own agendas, some ideas were readily accepted, including the principle of separation of powers. This concept, introduced by the French thinker and philosopher Montesquieu, divided governmental power into three distinct branches: legislative, executive, and judicial.
One of the many influences at the Convention was that of John Locke, and his stressed importance of the legislative body was shared by the Founding Fathers. As such, the national law making body was the most pertinent issue in the summer of 1787.
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| We have to credit a Frenchman for this concept ... |
Smaller states held concerns of being consistently outvoted by larger states in a legislature, so they presented their own concept, called the New Jersey Plan. This plan called for a legislative body where all states received equal representation.
To reconcile the differences between the states, an agreement was formed called The Connecticut Compromise (often called The Great Compromise). In this, the new law making body, called Congress, would be bicameral, having one body whose representation was based on population (the House of Representatives) and the other (the Senate) would have equal representation.
In dealing with the issue of representation in the House, states questioned the issue as to what to do about the counting of slaves. Southern states wanted slaves to be counted for the purpose of representation in the House, as it would give them more voting members. Northerners objected that slaves were not counted as citizens, thus shouldn't be counted at all. To solve the issue, another compromise was reached. The 3/5th Compromise held that for the purposes of representation in the House, slaves would count as 3/5th of a person.
Other issues at the Convention were difficult to resolve and took a great deal of time to work through, such as how to select a president, or what to do about slavery as an instituion. The finished product after the summer of 1787 was a Constitution that did not please everyone, but satisfied enough of the participants that of the 55 men present, only a handful did not sign the document.
Adoption of the Constitution
Though the Constitution was completed in September of 1787, the document still needed to be adopted by the states. Two main camps formed over the issue. The Federalists were those who favored the implementation of the Constitution and a strong national government. Those opposed to the idea of the stronger national government were dubbed as the Anti-Federalists. To generate support for the ratification of the Constitution, Federalists created a series of articles submitted to newspapers in New York that promoted the benefits of the new Constitution. Collectively, these articles are referred to as The Federalist Papers. Written by James Madison, Alexander Hamilton, and John Jay, these documents helped sway people in favor of the stronger government.
Also, Federalists promised to add a Bill of Rights to the Constitution to ensure citizens would be protected from the national government. After these developments, all 13 states eventually ratified the Constitution.
 |
| Quick comparison of the key differences between Federalists and Anti-Federalists |
The Constitution
The Constitution is a framework for the national government and is written in a very intentional manner. A reason tends to exist for the wording of every part of the document. The 'preamble' introduces the primary goals of the government and denotes the Constitution was created by "We the people ..."and not the states.
Article I of the Constitution details the specific powers, functions, and limitations of the legislative branch, or Congress. This branch of government was placed first in the Constitution because of its significance. Article I is the most detailed and lengthy of the Constitution and this reflects the Framers' desire for Congress to be the most important of the three branches. The legislative branch was always meant to be more powerful than the other two.
Though it has other functions, the main job of Congress is to create laws. Congress is given numerous powers, listed specifically in Article I, Section 8 of the Constitution. These are referred to as enumerated powers. Some of the more important enumerated powers include: the power to tax, regulate interstate commerce, declare war, and coin money. Several of these powers were corrections made to the Articles of Confederation.
Congress also has what are called implied powers, which include any power that can be inferred or implied from the enumerated powers. Congress has implied powers because of the 'elastic' clause in Article I, Section 8. It reads that Congress shall have the power:
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.
Essentially, this allows Congress to make laws that are connected with the enumerated powers. For example, the enumerated powers give Congress the power to declare war, and raise and army. It can therefore be inferred that Congress has the power to implement a military draft, even though it's not specifically mentioned in the Constitution.
Protections from Congress
Though Congress was endowed with great power, there are some types of laws is specifically forbidden to enact. One such action is that the privilege of habeas corpus cannot be suspended. This protection ensures anyone being held by governmental authorities must shown evidence as to why they are being detained. The phrase habeas corpus is Latin, meaning "show or produce the body." In some instances, habeas corpus can be suspended, if "... when in cases of rebellion or invasion the public safety may require it." President Abraham Lincoln suspended habeas corpus during the American Civil War so the military could round up suspected Southern spies.
Also, Congress is forbidden from passing any bills of attainder. These constitute any law that would punish a person without the benefit of a trial. Congress is also prevented from passing any ex post facto laws, which are any laws that would punish someone for committing an act that wasn't a crime when they did it.
Can you answer: why did the Founding Fathers specifically place these protections in the Constitution?
Article II of the Constitution deals with the executive branch, whose primary role is to enforce the laws passed by Congress. We often have the misconception that the executive branch merely encompasses the office of the president. However, the president is merely the chief executive with dozens of federal government agencies and thousands of employees who work to implement and carry out the laws.
The role of chief executive is very significant in modern America, but was not considered to be as important as Congress. However, even in the 18th and 19th centuries, a strong president was needed, particularly in times of war or crisis. Like Congress, the president has several powers explicitly written in the Consitution, including the power to veto, or nullify, laws passed by Congress. The president is also the commander-in-chief, meaning he or she controls the armed forces of the United States. The president also appoints a number of officials to federal offices, receives ambassadors, grants pardons and repreives, and reports on the 'State of the Union.'
A president can be removed from office for "...Treason, Bribery, or other High crimes and Misdemeanors." The process includes impeachment by a majority of the House of Representatives and conviction by 2/3rd of the Senate.
Can you answer: Why did the Framers place the power to declare war in the hands of Congress, but make the president the command-in-chief of the armed forces?
Article III of the Constitution is the least extensive of the three branches and vaguely outlines the judicial branch of the government. It stipulates that a Supreme Court exists and Congress has the ability to create inferior courts at their discretion. Article III guarantees jury trials and specifically defines the only crime mentioned in the Consitution, which is treason.
Article IV governs relationships between the states and provides a level of equality. Among the key clauses within this article is the Full Faith and Credit Clause. This requires states to provide 'full faith and credit' "... be given in each state to the public acts, records, and judicial proceedings of every other state." For instance, a driver's license issued in the state of West Virginia permits a person to legally drive anywhere in the nation. Or, a citizen could not attempt to sue another person or group in the Ohio courts if the Kentucky court system has already made a ruling on the dispute. Ohio would have to honor the ruling made in the state of Kentucky.
However, the Full Faith and Credit Clause does not apply to every state action. Gun licenses and professional certifications are not required to be recognized by states universally. Currently, the most controversial issue regarding this clause pertains to the issue of marriage licensure. States have always honored heterosexual marriages, but same-sex marriages are not always recognized. Some states have refused to regard same-sex marriages as valid, prompting questions about the Full Faith and Credit Clause. The issue of marriage is also clouded by the Defense of Marriage Act (DOMA), passed in 1996. This law articulated that the federal government recognized marriage as between a man and woman, and allowed states not to recognize same-sex marriages. (Note: DOMA was overturned by the Supreme Court in the cases Windsor v. United States (2013) and Obergefell v. Hodges (2015).
Article IV requires that fugitives captured in a state must be extradited back to the state where the crime was committed. Contained in this portion of the Constitution is also the Privileges and Immunities Clause, which prevents a state from discriminating against citizens of other states in favor of its own citizens. Essentially, what a state does for one of its citizens, it must do for all.
The Framers of the Constitution sought to permit new states to be admitted into the union, and Article IV discusses this issue, including a statement that allows new states to be carved out of already existing states.
Article V of the Constiution allows for a process to amend the Constitution. The Frames recognized the nation would inevitably change, and the Constitution would need to change also. For any amendment to become part of the Constitution, it must go through two distinct phases. Phase 1 is the amendment proposal. Two ways exist to propose a constitutional amendment. The first is for 2/3rd of both houses of Congress to agree to a proposal. The second (which has never been used) is for 2/3rds of the states to call for a special convention for proposing amendments. No one is entirely certain of what a special convention would entail or how they would choose any amendment proposals.
Phase 2 of the amendment process is ratification. Once an amendment has been officially proposed, there are two ways to approve of the potential change. The typical method of ratification is for 3/4th of state legislatures to approve of the amendment. The other possibility is for 3/4th of special state conventions to give their approval to an amendment (this method has only been used once).
Article VI contains a key measure referred to as The Supremacy Clause. The text of this reads:
"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..."
The text gives the national government authority over state governments when a conflict arises between the two levels of government.
Article VI also mandates the national government will assume all debts incurred by the 13 states up to the point of ratification of the Constitution. This portion of the Constitution frustrated larger states, such as Virginia, who had already paid back their debts.
Article VII merely denotes that the Constitution will take effect once 9 of the 13 states ratify it.
For a discussion of the contents of the Constitutional Amendments and issues surrounding those rights, please click of the tab above that's labeled "Civil Rights & Liberties."
Unwritten Concepts of the Constitution
Though the Constitution is written in a very organized and distinct manner, there are underlying concepts and principles with great significance to the American system of government.
The first of these principles is that of separation of powers. The division of governmental power into the three distinct branches was deemed necessary to prevent too much power from being vested into the hands of so few.
Merely separating the powers of government was not enough. To prevent any branch from consolidating power, a system of checks and balances lies within the Constitution. Each branch of government has unique powers and abilities to defend themselves from the other two. For instance, though Congress can pass laws, the president has the ability to veto those proposed laws. Thus, Congress' power has limits.
James Madison wrote about these two concepts in Federalist 51, where he commented that it was necessary to give each branch of government a means of defending itself against encroachments of their power. Madison rightly believed that human nature would cause people to attempt an accumulation of power.
Another key concept within the Constitution is that of federalism, which is a governmental system where power is divided among a national government and subordinate state governments. In the Constitution, the national government is granted a great many specific powers, however, the 10th Amendment reserves any power not specifically mentioned in the Constitution to the state governments. An example of this concept pertains to the policy area of education. Since the Constitution mentions nothing about education, states are free to determine their own policies regarding public and private schools.
Unintended Features of the American System
Though the framework for the national government exists within the Constitution, our system has evolved with things that were never intended. One of the most significant outgrowths of the American political system is the birth of political parties. Though many early Americans predicted the development of political parties, this wasn't seen as necessarily a good thing. George Washington warned of the divisiveness of political parties and how they could become a detriment.
The existence of political parties in modern America often leads to what political scientists refer to as divided government. A divided government exists when one party controls the presidency, and the other party controls one or both houses of Congress.
Though we live in a republic, some forms of direct democracy still exist within the states. One of the more popular forms of direct democracy is the referendum. This allows the citizens of a given state or area the ability to vote directly on a particular issue. States have used referendums to make decisions about controversial issues such as gambling, same sex marriage, or excess tax levies.
Some states also permit recall elections, where citizens vote to remove a publicly elected official from their position even though they have committed no crime, which is different than an impeachment.
Government agencies represent another part of the American system that wasn't mentioned in the Constitution, but were born out of necessity. When the Constitution was written, the nation was significantly smaller and had less laws to govern. In the two centuries since the inception of the Consitution, the United States and the world around us have grown larger and more complicated. As such, the executive branch needed more employees to help implment and regulate federal policies.
Government agencies such as the Environmental Protection Agency, or the Food and Drug Administration regulate certain areas of society where laws have been passed by Congress. The president and his cabinet of officers would not be able to enforce the laws on their own. Thus, agencies exist for that purpose.
One last important change in American government is the growth of power placed in the presidency. Though Congress was always intended to be the preeminent power in the national government, the presidency has become significantly more powerful since the beginning of the 20th century.
Can you answer: why has the presidency become more important since 1900?
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