A Pocket Guide to the US Constitution

What Every American Needs to Know, Second Edition

Andrew B. Arnold

• Publisher: Georgetown University Press
• Year: 2018
• ISBN:
  9781626165595
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: Constitutions
• Index: Politics & International Relations

The Constitution is not so simple that it explains itself—nor so complex that only experts can understand it.

In this accessible, nonpartisan quick reference, historian Andrew Arnold provides concise explanations of the Constitution's meaning and history, offering little-known facts and anecdotes about every article and all twenty-seven amendments. This handy guide won't tell you what the Constitution ought to say, nor what it ought to mean. It will tell you what the Constitution says and what it has meant.

A Pocket Guide to the US Constitution presents a straightforward way to understand the American Constitutional system. Without wading through lengthy legal prose, heavy historical analysis, or polemical diatribes, you can easily find out what the emoluments clause means, learn about gerrymandering and separation of powers, or read a brief background on why slaves in colonial America were considered 3/5 of a person.

Small enough to put in your pocket, backpack, or briefcase, A Pocket Guide to the US Constitution can be used to comprehend current events, dig deeper into court cases, or sort out your own opinions on constitutional issues.

CONSTITUTION
AND
AMENDMENTS

I.

Structure and Preamble
“We the People . . .”

The Constitution uses a straightforward structure. The preamble announces its larger goals. The rest of the Constitution focuses on establishing the structure of government and setting up a system for enacting itself above normal law.

The first Congress added a set of ten amendments known as the Bill of Rights. These amendments listed rights held by the people that the national government could not violate. We have added another 17 amendments since then. Starting in the mid-twentieth century, the 14th Amendment has begun to make the Bill of Rights into rights that all American governance must respect. All amendments are part of the Constitution.

The core structure of the Constitution is as follows:

I.	Preamble (Statement of Purpose)
II.	Three Branches of Government (Legislative, Executive, Judicial)
III.	Limitations on State Sovereignty
IV.	Ratification, Amending, and National Supremacy
V.	Bill of Rights and Other Amendments

The framers wrote the text with one eye on ratification. Where they could, they avoided precise language in areas such as slavery and the balance of power between state and national governments. This was to be a blended government, both a confederacy made up of established states and a new national structure.

The Constitution’s complexity comes from interaction of all its parts and its artful vagueness. Legislative, executive, judiciary, and people all vie to insist that their voices be respected.

Yet Constitutional stability has meant that once a branch won a battle, the practice has tended to stick, for a while anyway. The power of the Constitution comes from this stability, and from its roots in Anglo-American custom and legal precedent.

PREAMBLE

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

Function of Preamble

This introduction to the Constitution serves as a ringing opening and a rhetorical link to the Declaration of Independence. It reminds readers of the republican and liberal ideals of the Revolution and names the new government’s ultimate goals. It reminds us today that salesmanship was much on the minds of the authors. They feared for its ratification. The Committee on Style, assigned the task of creating a final document, added this finishing touch.

Defining “Liberal” and “Republican”

The terms “liberal” and “republican” have mutated since the Constitution was written. The term “liberal” at the time referred to a political philosophy that valued sacred individual liberties (life, liberty, and property). In social contract political theory, individuals retained such liberal rights under a just government. It was at the heart of Western European and American political theory. The idea of being a good republican refers back to a Revolutionary-era ideal. Americans, republicanism said, were uniquely able to put public good ahead of private interest.

We the People of the United States

An earlier draft originally named the 13 states instead of “United States.” But since the Constitution declared itself to be ratified once a mere nine of the 13 states approved it, this had to be changed. Any states that failed to ratify would be outside the new nation. By so ratifying, these united states continued the historical process of creating a nation called the “United States.”

People

As suggested by the original draft’s list of individual states, “people” refers to the people of individual states, united, as well as the people of the United States. It’s easy to overstate this. The Declaration of Independence had already described Americans as a “people.” Both John Adams and Patrick Henry referred to their state and the United States as their “country.” Over time Americans have come to see themselves as a single diverse people, simultaneously members of their town, state, and nation (also ethnicity, party, religion, and sports team fanbase; the Constitution does not explicitly endorse a team or a sport).

Form a more perfect Union

This phrase suggests a wish to differentiate the Constitution from the then-governing Articles of Confederation. Since the Articles established a “perpetual union,” this phrase became a way for pro-Union analysts during the Civil War to insist that the union of the Constitution also be perpetual.

Establish Justice . . . and our Posterity

These phrases name the Constitution’s goals. The terms “common defence” and “general welfare” appear in section 8 of the Articles. The Congress named these goals in the resolution authorizing the Constitutional Convention. On May 30, 1787, the Convention decided that to achieve its assigned goals, it had to entirely replace the Articles. It was this crucial logical leap that led them to go beyond their original instructions from Congress. They could not merely make suggestions aimed at amending the Articles, they argued, and still achieve their assigned goals.

Do ordain and establish

This claim, combined with the ratification process, placed the Constitution above national and state legislatures. The new national government would rule by virtue of the sovereignty of “the people” and the states.

II.

Three Branches of Government

1. Legislative (Congress)

2. Executive (President)

3. Judicial (Courts)

The first three articles lay out conflicting powers and responsibilities for the three branches. This underlines a main point of the Constitution: It creates a government that, in its very structure, checks and balances the ability of any one part to become tyrannical. These branches battle with each other for power and function. They also battle for power with the other powerful elements of society: with the people, press, states, bureaucratic establishment, political parties, lobbyists, and private economic power.

The roles of the branches are defined in practice and custom as much as in the text of the Constitution. The Supreme Court spent its first decade establishing its role as the arbiter of the Constitution’s meaning. The House of Representatives became more of a collection of local voices. The Senate has become more of a national voice. Executive powers expanded most greatly starting during the Civil War and the Gilded Age, again with the New Deal and World War II under Franklin D. Roosevelt, and then in the Civil Rights era.

Laws must be passed separately in the Senate and House of Representatives. The House and Senate then confer to negotiate any differences between their respective versions. The president can choose to sign or veto laws that clear both the House and Senate. Bureaucrats can enforce with gusto or indifference. The Court can invalidate. People and states resist or not.

All parties work within this set of constitutional and practical limitations. In the normal course of events, gaining the approval of all parties has become part of negotiations from the beginning. Bills are developed in full awareness of the legal context created by the Court’s previous decisions. Public representatives in the House, Senate, executive branch, and states weigh in, as do private lobbyists and individuals.

ARTICLE 1 LEGISLATIVE

The framers were most familiar with the legislative branch and saw it as the first, most powerful branch of government. It was the section most firmly connected to the states and to the people. The Continental Congresses had managed the Revolutionary War and the new nation under the Articles of Confederation. Colonial legislatures had been the main form of government, successfully battling to control Royal governors.

Framer James Madison envisioned a national legislature that would be elected by the people of the individual states. It was to have veto power over state laws. Madison was forced to compromise on both goals. The House of Representatives was elected as he envisioned, by the people of each state. But representation and power in the Senate took place state by state. Nor was he able to achieve a veto on state laws.

Legislative powers were defined through the Enumerated Powers, and starting in the New Deal Era of the 1930s, they became centered on the power of Congress to regulate commerce between the states.

Section 1.1 The Legislature

Clause 1.1.1 Legislative Power Defined

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

The First Branch of Government

The Founders saw the legislature as the leading branch of government. Congress had run the nation during the Revolutionary War and under the Articles of Confederation. Congress was most directly responsible to the people and to the states.

All legislative Powers . . . vested (“Delegation Doctrine”)

The Constitution gives “all” legislative power to Congress. It was in part for this reason that the Court rejected the 1933 New Deal National Industrial Recovery Act (It ceded power to define “fair” codes without enough congressional oversight or definition of terms. Schechter Poultry Corp. v. US [1935]). Congress must oversee any bureaucratic agencies that it creates. Nevertheless, bureaucracies create their own centers of power.

Senate and House of Representatives

The split, bicameral legislature was a standard feature in most colonial state constitutions. People in each state elected their representatives, while state governments originally selected senators.

Great Compromise

Under the Articles, each state had the same vote in Congress. Delegates from larger states argued strongly that power in the new national legislature ought to be distributed according to population. In the so-called Great Compromise or Connecticut Compromise, the Convention agreed to distribute seats in the lower house according to the population of each state. Distribution of seats in the upper house, or Senate, was distributed equally among the states.

To James Madison and his supporters in the Constitutional Convention, this compromise made little sense. Why distribute power evenly among states of such wildly divergent size, population, and importance? Moreover, they argued, a nation had to be based on a single source of sovereignty: The new nation could base its legitimacy on the people. Or it could base its sovereignty on the states. They had a point. But the smaller states simply refused to accept anything less. Even in this, the smaller states were making a concession. Under the Articles of Confederation, the national government was based on...