- Explain the key tenets of the U.S. Constitution, including the powers given to each branch of government by the Constitution
- Analyze the provisions and nature of the United States Constitution, including such concepts as federalism
- Understand what the different branches of government do, their separation of powers, and how they check and balance each other
Understanding the Constitution
The Constitution of the United States is the supreme law of the United States of America. It is comprised of seven articles, or sections, and, perhaps surprisingly, the original document is not very long. You can read the entire U.S. Constitution here. All four pages of the original U.S. Constitution were written on parchment. Here’s a simple breakdown of the seven sections of the Constitution:
|Article 1||Legislative Branch: the U.S. Congress makes the laws for the United States. Congress has two parts, called “Houses,” the House of Representatives and the Senate.|
|Article 2||Executive Branch: the President, Vice-President, Cabinet, and Departments under the Cabinet Secretaries carry out the laws made by Congress.|
|Article 3||Judicial Branch: the Supreme Court decides court cases according to US Constitution. The courts under the Supreme Court decide criminal and civil court cases according to the correct federal, state, and local laws.|
|Article 4||States’ powers: States have the power to make and carry out their own laws. State laws that are related to the people and problems of their area. States respect other states’ laws and work together with other states to fix regional problems.|
|Article 5||Amendments: The Constitution can be changed. New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress (67, 281) and three-fourth vote by the states (38).|
|Article 6||Federal powers: The Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution.|
|Article 7||Ratification: The Constitution was presented to George Washington and the men at the Constitutional Convention on September 17, 1787, Representatives from twelve out of the thirteen original states signed the Constitution. From September 1787 to July 1788, the states met, talked about, and finally voted to approve the Constitution.|
Table 1. Major Clauses in the Constitution
Interpreting documents written hundreds of years ago can sometimes be difficult. Your historical hack at the end of this unit will teach you how to break down documents to make them more understandable, but let’s try it now! Read the key clause and decide for yourself what it means. Then, reveal the interpretation we’ve given you. Were you close?
|The Key Clauses||Annotation of the Clauses|
|Article I, Section 2. 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.||What do you think this means?
This is known as the three-fifths clause, precipitated by the debate over how to count slaves in determining the number of representatives a state would be entitled to in the House of Representatives. It was one of three clauses in the original Constitution that provided legal protection for slavery. Note that the authors of the Constitution consciously avoided the term “slave,” while the clause is clearly referring to the slave population. This reflects the ambiguity felt by the Founding Fathers over the “peculiar institution,” particularly in the wake of the Revolution, with its cries of liberty and equality.
|Article I, 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.||What do you think this means?
This clause is reflective of the “Great Compromise” which provided equal representation for smaller states in the federal government. It also reflects the Founding Fathers’ fear of “democracy out of control,” by placing the election of Senators beyond the direct influence of the general electorate.
|Article I, Section 8: The “Necessary and Proper Clause.” 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.||What do you think this means?
This phrase comes at the end of Section 8, which enumerates the various duties and powers of Congress. It also represented one of the first great Constitutional controversies after its ratification, when Alexander Hamilton referred to it in his defense of the creation of the Bank of the United States. This clause became the basis for the doctrine of “implied powers,” which allowed Congress to act in a manner not explicitly stated in the Constitution, as long as it acted in a manner “necessary and proper” to execute the powers delegated to it.
|Article I, Section 9: The Slave Importation Clause. 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.||What do you think this means?
Here is another clause relating to slavery while avoiding the use of the term. Only two states chose to continue importing slaves during this period: South Carolina and Georgia. While the clause did not exactly mandate the end of the slave trade, Congress dutifully drafted and passed a law in 1807 that made the importation of slaves into the United States illegal. This law went into effect on January 1, 1808. It highlights an interesting paradox about slavery that existed until the Civil War, where individuals in the South could speak of the “evils” of the slave trade, and yet somehow separate that from the institution of slavery, which they held to be a positive good.
|Article II, Section 1. 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 choose 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 choose the President. But in choosing 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 choose from them by ballot the Vice President.||What do you think this means?
Here, again, is a clause that limits the influence of the general electorate on the federal government, by placing the buffer of “electors” between the electorate and the candidate. The original wording of this clause also caused problems in the election of 1800, when Thomas Jefferson and Aaron Burr received the same number of votes, although it was clearly intended for Burr to be the Vice President. The existence of the Electoral College has created two other incidents where the president ultimately was chosen by the House of Representatives, in the elections of 1824 and 1876.
|Article III. 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.||What do you think this means?
The Articles of Confederation did not make provision for a national court system and consequently the enforcement of the laws of the Confederation Congress was left up to state courts, which might, or might not, enforce them. Most delegates to the Constitutional convention believed that an independent judiciary was necessary to the well-being of a national government. Notice that only the Supreme Court was established; the lower courts, if there were to be some, would be created by Congress, and the judges appointed by the president with the approval of the Senate. The first lower courts were created in the Judiciary Act of 1789.
|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 the effect thereof.||What do you think this means?
The “full faith and credit” clause specifies that every state will recognize and respect the laws and judicial decisions of every other state. This is one statement that confirmed the future existence of independent state governments.
|Article IV, Section 2. No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.||What do you think this means?
This is the last of the three clauses in the Constitution that deal with slavery. Again, the word slave is avoided in the writing of the clause. This is perhaps the most powerful of the clauses in terms of providing a Constitutional protection for slavery, because it mandates federal support for the return of runaway slaves.
|Article VI. The 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.||What do you think this means?
Article VI is called the “Supremacy Article” and is an example of the nationalist sentiments of the Constitutional Convention. The intention of this Article is to make clear that in a conflict between the laws of the state and the laws of the nation, in other words laws passed the U.S. Congress, Congressional law would be supreme. The first Supreme Court case in which the Supremacy Article was cited was that of McCulloch v. Maryland in 1819, in which the high Court used both the necessary and proper clause to affirm the right of Congress to establish a bank and the Supremacy Article to maintain that state law could not tax a national institution. The majority opinion of the Supreme Court stated clearly “that we are unanimously of opinion that the law passed by the Legislature of Maryland, imposing a tax on the Bank of the United States is unconstitutional and void.” Moreover, “the people have, in express terms, decided it by saying, ‘this Constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land.’”
|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.||What do you think this means?
Here one can see how the Founding Fathers attempted to separate the process of adopting the new Constitution from the influence of the general electorate. The rarely-used conventional method required each state to choose delegates who would debate its merits and then vote for or against the Constitution. Interesting also was the choice of nine as the number of states necessary to ratify the Constitution. What if four states had rejected it? Fortunately, that was never an issue.
As an optional review activity, you can work through this interactive to learn more about the specifics of each section of the Constitution. You can use the first slide as a table of contents to jump to the seven different sections.
The Constitution in Practice
Separation of Powers and Checks and Balances
Although debates over slavery and representation in Congress occupied many at the convention, the chief concern was the challenge of increasing the authority of the national government while ensuring that it did not become too powerful. The framers resolved this problem through a separation of powers, dividing the national government into three separate branches and assigning different responsibilities to each one. They also created a system of checks and balances by giving each of three branches of government the power to restrict the actions of the others, thus requiring them to work together.
Congress was given the power to make laws, but the executive branch, consisting of the president and the vice president, and the federal judiciary, notably the Supreme Court, were created to, respectively, enforce laws and try cases arising under federal law. Neither of these branches had existed under the Articles of Confederation. Thus, Congress can pass laws, but its power to do so can be checked by the president, who can veto potential legislation so that it cannot become a law. Later, in the 1803 case of Marbury v. Madison, the U.S. Supreme Court established its own authority to rule on the constitutionality of laws, a process called judicial review.
Other examples of checks and balances include the ability of Congress to limit the president’s veto. Should the president veto a bill passed by both houses of Congress, the bill is returned to Congress to be voted on again. If the bill passes both the House of Representatives and the Senate with a two-thirds vote in its favor, it becomes law even though the president has refused to sign it.
Congress is also able to limit the president’s power as commander-in-chief of the armed forces by refusing to declare war or provide funds for the military. To date, Congress has never refused a president’s request for a declaration of war. The president must also seek the advice and consent of the Senate before appointing members of the Supreme Court and ambassadors, and the Senate must approve the ratification of all treaties signed by the president. Congress may even remove the president from office. To do this, both chambers of Congress must work together. The House of Representatives impeaches the president by bringing formal charges against him or her, and the Senate tries the case in a proceeding overseen by the Chief Justice of the Supreme Court. The president is removed from office if found guilty.
According to political scientist Richard Neustadt, the system of separation of powers and checks and balances does not so much allow one part of government to control another as it encourages the branches to cooperate. Instead of a true separation of powers, the Constitutional Convention “created a government of separated institutions sharing powers.” For example, knowing the president can veto a law he or she disapproves, Congress will attempt to draft a bill that addresses the president’s concerns before sending it to the White House for signing. Similarly, knowing that Congress can override a veto, the president will use this power sparingly.
Federal Power vs. State Power
The strongest guarantee that the power of the national government would be restricted and the states would retain a degree of sovereignty was the framers’ creation of a federal system of government. In a system of federalism, power is divided between the federal (or national) government and the state governments. Great or explicit powers, called enumerated powers, were granted to the federal government to declare war, impose taxes, coin and regulate currency, regulate foreign and interstate commerce, raise and maintain an army and a navy, maintain a post office, make treaties with foreign nations and with Native American tribes, and make laws regulating the naturalization of immigrants.
All powers not expressly given to the national government, however, were intended to be exercised by the states. These powers are known as reserved powers. Thus, states remained free to pass laws regarding such things as intrastate commerce (commerce within the borders of a state) and marriage. Some powers, such as the right to levy taxes, were given to both the state and federal governments. Both the states and the federal government have a chief executive to enforce the laws (a governor and the president, respectively) and a system of courts.
Although the states retained a considerable degree of sovereignty, the supremacy clause in Article VI of the Constitution proclaimed that the Constitution, laws passed by Congress, and treaties made by the federal government were “the supreme Law of the Land.” In the event of a conflict between the states and the national government, the national government would triumph. Furthermore, although the federal government was to be limited to those powers enumerated in the Constitution, Article I provided for the expansion of Congressional powers if needed. The “necessary and proper” clause of Article I provides that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The Constitution also gave the federal government control over all “Territory or other Property belonging to the United States.” This would prove problematic when, as the United States expanded westward and population growth led to an increase in the power of the northern states in Congress, the federal government sought to restrict the expansion of slavery into newly acquired territories.
In this video, Dr. Scot Schraufnagel explains how the principles of republicanism, federalism, separation of powers, and checks and balances are laid out in the Constitution.
bicameral: having two legislative houses, an upper and a lower house
checks and balances: the ability for each of three branches of government (executive, legislative, and judicial) to restrict, or “check” the actions of the others
Connecticut Compromise: also known as the Great Compromise, Roger Sherman’s proposal at the Constitutional Convention for a bicameral legislature, with the upper house having equal representation for all states and the lower house having proportional representation
electoral college: the mechanism by which electors, based on the number of representatives from each state, choose the president
proportional representation: representation that gives more populous states greater political power by allowing them more representatives
three-fifths compromise: the agreement at the Constitutional Convention that each enslaved person would count as three-fifths of a White person for purposes of representation