Constitution of the United States of America

the Constitution of the United States is, in its own terms, the supreme law of the country. It was accepted the September 17th 1787 by a joined together convention with Philadelphia, and after ratification, since March 4th 1789 applies. Modified by twenty-seven amendments, it is one of the oldest written constitutions still applied (oldest being probably that of the République of San Marino, which goes back to 1600). Influenced by the British tradition and of the Philosopher S liberals such as John Locke and Montesquieu, it establishes a Gouvernement with the limited prerogatives, held to respect the Basic rights of the citizens, and based on the Séparation of the capacities, which must control and balance one the other ( checks and balances ).

Ratified originally by thirteen federated States, become today fifty, it creates a Federal state. Although the constitution and the laws of the the United States are binding on the various federated States, of very broad prerogatives are reserved to them. The Gouvernement is, right from the start, of republican type and founded on the Souveraineté of the people. On the other hand, its Democratic character with the current direction of the term, with the Vote for all, appears only gradually, sometimes through amendments, more often by the change of the laws or the reversals of Jurisprudence.

Origins and context

Thirteen colonies and independence

See also: Thirteen colonies, Independence of the United States of America

In second half of the 18th century, the relations between the Thirteen colonies American and the Great Britain are degraded when, after the Guerre Seven Year old, the British Parlement, having to face the debts of the Guerre, decides to raise new taxes there. The incidents multiply. A continental Congrès composed of delegated colonies meets in Philadelphia; in 1775 the Guerre of American independence bursts. The July 4th 1776, the Déclaration of independence of the United States is proclaimed and the thirteen colonies declare Sovereign states while obtaining written constitutions. In 1783, the United States is officially recognized in the international relations. But the country leaves a war of independence which made: 25000 died and which must find new institutions.

Articles of confederation

Constitutional convention

See also: constitutional Convention of Philadelphia

Convention meets in Philadelphia in Pennsylvania, the May 25th 1787. Few deputy being then present, its work begin really the 28. The delegates will continue to arrive in the days which follow. Eleven States are represented: the State of Rhode Island wrote to mean its refusal of convention, and the New Hampshire did not send delegates either. The delegates of the Delaware have a limited mandate, which does not authorize them to reconsider the equality of vote between the States. Convention on the whole joins together fifty five deputy. The most brilliant politicians of the country are present, except notable for Thomas Paine, John Adams and Thomas Jefferson, Ambassadeur S respectively in London and Paris. George Washington is elected with the presidency of convention unanimously: it chairs the debates.

There is quickly a broad agreement on the need for re-examining the articles completely, and for strongly increasing the powers of the federal government. The discussion begins on the basis of an original proposal made by John Randolph, of the delegation of Virginia and said plane of Virginia . It contains already the essence of the architecture of the constitution: legislative powers, executive, and legal separate, bicameral Parliament , supremacy of the laws of the union on those of the States. The first and the most serious subject of conflict relate to the mode of nomination of the members of Parliament, and the representation of the States. The plan of Virginia, supported by the other great States, Pennsylvania and Massachusetts especially, proposes the direct election of the first room, where each State would have a number of elected officials proportional to his importance, and the election of the second room by the members of the first. The proposal is discussed, the votes follow one another, article by article, sentence by sentence. It appears that it is unacceptable for the small States, which want that the members of Parliament are elected by the legislatures of the States, and that all the States are with equality. A proposal is made in this direction by William Patterson, of the New Jersey, and is said plane of the New Jersey . The discussion is blocked during three weeks, the tone goes up between great and small States, until considering the failure of convention.

Finally, a compromise is found, based on a proposal which had been made the day before plan of the New Jersey by Roger Sherman, of the Connecticut, and is qualified great compromise or compromised of Connecticut . The Lower House will be elected in the Direct suffrage, and the States represented in proportion of their importance. With the Senate, the States will be with equality. The discussion continues, other conflicts appear, in particular between the Slave states and the others, on the taking into account of the Esclaves in their weight with the first room. The nature and the rights of the executive, and other points, are still bitterly discussed, but without giving place to the same type of conflict and blocking between well defined camps. The constitution project is finally adopted, the September 17th 1787, and is signed by the very large majority of the delegates. It is transmitted to the congress. Although some are dissatisfied that convention however clearly exceeded its mandate, which was to be limited to propose improvements with the articles of confederation, the congress transmits the constitution project to the States for ratification.

The ratification

The text of the constitution provides that it will enter indeed since it will be ratified by nine States. The first to be ratified is Delaware, the December 7th. The ninth is the New Hampshire, the June 21st 1788. Meanwhile, the Rhode Island refused to ratify, by referendum, the March 24th. Virginia ratifies accuracy shortly after the New Hampshire, the June 25th, with difficulty. It still misses the North Carolina, and especially the State of New York. The ratification of New York is made accuracy, the July 27th. Alexander Hamilton, James Madison, and John Jay published in the press, under the pseudonym of Publius , a series of articles remained famous, under the name of articles of the federalistic ( The Federalist Papers ); the interpretation which they give of the Constitution made since authority. The Congress decides date of the presidential elections and that the first session of the Congress of the new constitution will take place the March 4th 1789, in the new capital, New York. The first parliamentary elections present difficulties of organization in several States, and the first congress reaches its quorum only the April 6th, to proclaim, without surprise, the election unanimously of George Washington with the presidency of the United States. North Carolina ends up ratifying and joining the Union the November 21st, and the State de Rhode Island only the May 29th 1790

Structure of the Constitution

The Constitution such as it was ratified in 1788 includes/understands, after a brief Préambule, seven articles. It to him was thereafter brought twenty-seven amendments. The first four articles and certain amendments are cut out in sections. Although this cutting does not appear in the constitution of origin, it appears today systematically in the text, allowing a fast reference it. Thus, Ier article, section 8, enumerate legislative competences of the congress. Lastly, of many portions of the text, short, often less than one sentence, and bearing on a precise point, when this point is particularly important, are indicated under the name of clauses, with a name, taken again text, which is traditionally attached to them, and allows, there too, a fast designation. Thus, section 1 of XIVe amendment, one of most important is:

Any person born or naturalized in the United States, and subjected to their jurisdiction, is citizen of the United States and the State in which it resides. No State will make or will not apply laws which would restrict the privileges or immunities of the citizens of the United States; a person will not deprive of her life, her Liberté or her goods without regular legal procedure; nor with whoever raises of its jurisdiction equalizes it protection of the laws will not refuse.

The first sentence is the clause of citizenship. The proposal will not deprive a person of her life, of its freedom or its goods without regular legal procedure is the clause of legal procedure ( due process ) and the following proposal nor will not refuse with whoever raises of its jurisdiction equalizes it protection of the laws is the clause of equal protection. These two last are so important in right which they are often indicated by the simple words due process and equal protection , the reference to the constitution being obvious.

The amendments are added to the text of the constitution, without modifying it. An amendment can thus invalidate parts of the text which appear before him, but those remain written in the constitution. The case more the Net is XXIe amendment, which repeals purely and simply XVIIIe (Prohibition). The XVIIIe amendment however continues to appear in the text of the constitution.

Preamble

Us, People of the United States, in order to form a more perfect Union, to establish justice, to make reign interior peace, to provide for common defense, to develop the general wellbeing and to ensure the benefits of freedom ourselves and our posterity, we issue and establish this Constitution for the United States of America.

The most important words are the first: Us, People of the United States ( We, the People off the United States ). They circumvent a practical difficulty: it was not sure that all the States ratify the constitution, and it was thus not possible to enumerate them, as did it the articles of confederation. But especially, the formula bases the constitution on the whole people and not on the States as tel. It is the constitution of a nation, and not a simple treaty of confederation. These words affirm the democratic character of the United States and give to the constitution the direction of a social Contract, within the meaning of the Traité civil government of John Locke.

The separation of the capacities

The first three articles are devoted each one to one of the three capacities, in the legislative order, executive, and legal. They mark with force the distinction and the separation of the capacities, by their first respective sentence, all the three on the same model.

All the legislative powers granted by this Constitution will be allotted to a Congress of the United States, which will be composed of a Senate and a Room of the representatives.
the executive power will be conferred on a president of the United States of America.
the judicial power of the United States will be conferred at a Supreme court and such courses lower whose Congress will be able of time to other to order the institution.

Article I: legislative power

Article I establishes a bicameral Congrès of the United States to vote the laws. The room of the representatives is renewed every two years, by the direct suffrage, the states are represented proportionally with their population. The senate is composed of two senators for each State, elected by the legislature of the State (modified by the XVIIe amendment, which envisages the direct suffrage). It is renewed per third every two years. The texts must be voted by the two rooms, which have both the initiative of the laws, except out of tax matter, where the initiative is reserved for the room of the representatives. The room of the representatives can put in charge ( Impeachment ) most important official, in particular the president of the United States, which will then be judged by the Senate. The president can put his veto at a law, in which case the two rooms of the congress must each one vote it with a majority of two thirds so that it is promulgated. The article enumerates the fields in which the congress has a legislative competence. Some competences are expressly withdrawn in the States.

Article II: executive power

Article II creates the functions of president and vice-president of the United States, and defines their mode of election, complex, and slightly modified by XIIe amendment. The executive power belongs to the president, who is also commander-in-chief of the army, the marine, and the militia of the States when they are mobilized by the United States. It names the senior officials and the federal judges, with the approval of the senate. The prerogatives of the vice-president are limited to succeed the president thus if it is prevented by death or for another reason to finish its mandate, (article I) that to chair the senate and to slice there in the event of equality of the votes.

Article III: judicial power

Article III creates the Supreme court of the United States. The federal judges, at the Supreme court as well as in the other courts, are appointed for lives. The article defines the spring of the federal courts, which includes/understands the constitution, and the federal laws for which the Congrès gives them competence, like on the litigations between parts not belonging to the same State. Except in some limited cases where she judges in first authority, the Supreme court is a Court of Appeal. The businesses with penal must be judged by a jury, in the State where the offense was made. A restrictive definition of treason is given.

Amendments

The amendments with the Constitution are envisaged by the article V. Twenty-seven were ratified. Of the two possible procedures, proposal of the Congresses or convention required by two thirds of the States, only first was used. But before the Congress does not decide to propose to him even the XVIIe amendment (election of the senators by the direct suffrage) in 1912, it missed only the vote of a State to convene a convention. It is allowed that the Congress cannot reconsider the proposed amendments, nor States on their ratification; but that a State which initially refused to ratify can reconsider this refusal thereafter. XXVIIe amendment, ratified in 1992, had been proposed by the first Congress in 1789, that is to say more than two hundred years before. All the other adopted amendments were ratified in less than five years, generally, the process of ratification takes approximately a year. The dates given below are those to which the Congress adopted the amendments, and those to which the last State necessary voted the ratification.

Of Ier with Xe amendment: the declaration of the rights

The first ten amendments form the declaration of the rights ( Bill off rights ). They affirm civil rights, in the form of an explicit limitation of the capacities of the State, in particular out of legal matter. It is not a question of substantive laws that the State must guarantee to the citizen, but actions of which it must abstain from in his connection. All these amendments were proposed by the first Congress the September 25th 1789 and were ratified the December 15th 1791

Ier amendment

The Congress will not make any law which touches the establishment or prohibits the free exercise of a religion, nor which restricts the freedom of speech or of the press, or the right which have the people to be assembled peacefully and to address petitions to the government for the rectification of its objections.

IIe amendment

A well organized militia being necessary to the safety of a free State, the right which have the people to hold and to carry weapons will not be transgressed.

IIIe amendment

The State cannot place troops at the inhabitant in times of peace. In time of war, that should be made only under the conditions envisaged by the law.

IVe amendment

The arrests and searchings cannot take place without mandate.

Ve amendment

The inculpations are done by a large jury. No one cannot be rejugé for facts for which he was discharged. No one cannot be forced to testify against itself. No one will not be held to answer of a crime capital or defamatory without an act of committal for trial, spontaneous or caused, of a large jury, except in the event of committed crimes while the defendant was useful in the forces terrestrial or naval, or in the militia, in time of war or of public menace; no one will not be able for the same offense being twice threatened in its life or its body; no one will not be able, in a criminal case, being obliged to testify against itself, nor to be private of its life, its freedom or its goods without regular legal procedure; null private property could not be expropriée in the public interest without a right allowance.

Life amendment

The lawsuits are done in front of jury. The defendant is entitled to confrontation with the witnesses for the prosecution, and can force the witnesses for the defense to come to deposit. He is entitled to a lawyer.

VIIe amendment

The lawsuits in front of jury are of right if the incurred sorrow is higher than a fine of 20 dollars.

VIIIe amendment

The excessive guarantees and fines, as well as the cruel or exceptional punishments, are prohibited.

IXe amendment

The enumeration of the rights in the preceding amendments should not be interpreted like denying the existence of other rights.

Xe amendment

The capacities which are not conferred on the United States by the Constitution belong to the respective States, or to the people.

Before the American Civil War

XIe amendment

The federal courts cannot judge continuations against one of the States on the initiative of the citizen of another State or a foreign national.

XIIe amendment

The procedure of the presidential election is modified, so that the president and the vice-president are elected on separate polls (rather than to choose as vice-president the second with the election).

Amendments of the rebuilding

After the American Civil War, in the south the rebuilding starts. The States of the South are militarily occupied, their suspended institutions. The Congress proposes three amendments, all three related to the question of the Esclavage and its continuations, all three restricting the capacities of the States. Each one of these amendments ends in “ the Congress will have the capacity to give effect to the provisions of this article by a suitable legislation ”. The Congress conditions the réadmission of the States of the South to their ratification.

XIIIe amendment

Slavery is formally interdict on the territory of the United States.

XIVe amendment

Any person born in the United States in is citizen. The States cannot carry reached to their life, freedom, or property without a regular legal procedure ( due process ), and must with all equalizes it protection of the law. The representation with the Congress and the presidential election of the States which would not grant the vote for all (male, beyond 21 years) is reduced in proportion of the number of prohibited people of vote. The people having lent assistance to the rebellion are prohibited official functions in the government of the United States. The debts contracted by the States confederated in rebellion against the United States are null, no compensation cannot be required for the emancipation of the slaves.

XVe amendment

The right to vote cannot be restricted or refused because of the race or a former condition of constraint.

Amendments of the 20th century

Twelve amendments were ratified at the XXe century. Much is technical corrections in article I or article II, two more important being the election of the senators by the direct suffrage, and the not-re-eligibility of the president beyond two mandates. Three relate to the right to vote, that of the women, that of the people of more than 18 years, and prohibition to condition the right to vote with the payment of a tax. It is necessary to as note the legalization of the direct tax on the income (article II imposed as the federal taxes are proportioned with the population of the States), and finally establishment, then suppression, of prohibition.

Starting from the XXe amendment, the Congress in general incorporates in its texts 7 years a limiting time for the ratification.

XVIe amendment

The Federal state can raise an income tax.

XVIIe amendment

The senators are elected by the direct suffrage.

XVIIIe amendment

Prohibition of alcoholic drinks. Manufacture, the sale, transport, the importation, and export are prohibited.

XIXe amendment

The right to vote cannot be restricted or refused because of the sex.

XXe amendment

The mandates of the president and the Congress begin in January, instead of March previously. The amendment clarifies also some points on the succession of the president by the vice-president.

XXIe amendment

Abolition of the XVIIIe amendment, end of prohibition.

XXIIe amendment

Limitation with two presidential mandates (only Franklin Roosevelt made some more, three and one fourth briefly started, stopped by its death).

XXIIIe amendment

Participation of the District of Colombia (Washington D.C.) in the presidential election.

XXIVe amendment

The right to vote cannot be restricted or refused because of the non-payment of a tax.

XXVe amendment

Precision on the replacement or the succession in the event of temporary or final vacancy of the presidency.

XXVIe amendment

The right to vote of the people of more than 18 years cannot be restricted or refused because of the age.

XXVIIe amendment

The laws increasing the remuneration of the representatives or the senators can take effect only after the election with the room of the representatives which follows their vote.

The longevity of the constitution: flexibility and interpretations

The exceptional longevity of the constitution of the United States is generally allotted to its very great flexibility. During its two centuries of existence, it could be used at the same time with a confederation of four million inhabitants who lived of agriculture and maritime trade, and for the country of 300 million inhabitants which is richest and most powerful of the world. This flexibility is due to several points:

the constitution concentrates on questions of organization of the capacities, in a spirit which was at the end of the 18th completely modern century, and which remains in conformity with the practice of the democracies of today. Deprived of aristocracy as of their origin, the United States avoided the main part of the political crises of Europe of the 19th century.
Beyond the organization of the capacities, the constitution primarily sticks to enumerate the civil rights. These rights were added little by little to the constitution, there still in a way comparable with what arrived in other Western countries, often, but not always, before them. Their negative formulation (the State cannot make certain things, rather than the State must ensure certain things) in limit the range, but applicability ensures some.
the constitution leaves until in the organization of the capacities of the many points to decide by the law. Thus, at least in its version of origin, she does not say which is voter, leaving this capacity to the various States. In the beginning almost everywhere censitaire, the vote became universal, the amendments with the constitution in this direction (XIXe and XXVIe) doing nothing but confirm one practical already nearly general.
the constitution, just like the other laws, applies in the logic of the Anglo-Saxon Common law, i.e. it must be included/understood in the light of the decisions of the courts, and particularly of the Supreme court of the United States, bearing on particular businesses. Contrary to the British tradition, the supreme court is not bound by the Règle of the precedent, which allows the interpretation of the constitution, and thus to its practice to evolve/move considerably. After a half century spent very limitativement to interpret the capacities of economic regulation as well of the Congress as of the States, and four years to be opposed to the policy New Deal, the supreme court brutally gives up in 1937 a jurisprudence which it still stated the previous year, and gives on the contrary the broadest possible interpretation of the capacity of regulation of the trade contained in article I, section 8. In 1954, by the stop Brown v. Board off Education, it starts the dismantling of the racial segregation which it had considered to be constitutional in 1896 in Plessy v. Ferguson. The capacity of the courts to interpret the constitution in the light of the current circumstances is the major source of its flexibility.

It seldom happened that the terms of the constitution are so precise and requirements which they are opposed to an evolution considered to be necessary. It was the case when it appeared essential to modernize the taxation of the income tax. The concerns of writers of 1787 who had wanted a distribution between States in order to protect them from arbitrary from the federal government then seemed obsolete in a country which felt much more its unit that in the beginning, and when the supreme court chooses to stick to the letter of the constitution (stop Pollock v. Farmers' Loan and Trust Co. , 1895), it had to be modified, by XVIe amendment. The most obvious failure of the system was the incapacity to abolish slavery without passing some by a civil war. There still, the supreme court had handed down a judgment blocking the situation (Scott v. Sandford, 1857). It is not certain, however, that decisions plus progressists of the courts could have made it possible to avoid a conflict on the question which divided more the country since its foundation.

It is necessary to finally mention another important reason of the permanence of the constitution. Its adoption is one of the major moments of the birth of the Nation. All the official ones lend oath to the constitution. She enjoys a quasi-unanimous respect, of an almost crowned nature. At the time of the more serious attack which the country underwent, the American Civil War, the States Confédérés obtained their own constitution. It was the copy almost in conformity, often word for word, of the constitution of the United States.

See too

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