Introduction to the United States Legal
System
William K. Sheehy
1. Plain Language Description of the United States
Constitution and Amendments to the
Constitution
2. The United States Constitution
3. List of Amendments to the United States
Constitution
4. Amendments to the United States Constitution
5. Notes distinguishing substantive and procedural
Due Process
1
1. Plain Language Description of the
United States Constitution and
Amendments to the Constitution
From Wikipedia, the free
Encyclopedia
The United States Constitution is the highest law of the United States of America. It
was put in writing on September 17, 1787 by the Constitutional Convention in
Philadelphia, Pennsylvania and later put into effect, or ratified, by representatives of
the people of the first 13 states.[1] When nine of the states ratified the document,
they put forth a union of sovereign states, and a federal government for that union.
That government started on March 4, 1789, taking the place of the Articles of
Confederation.
The Constitution of the United States is the oldest federal constitution now in use.[2]
Since 1787, changes have been made to the United States Constitution 27 times by
amendments (changes). The first ten of these amendments are together called the
Bill of Rights.
Contents
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1 Articles of the Constitution
o 1.1 Preamble
o 1.2 Legislative power
o 1.3 Executive power
o 1.4 Judicial power
o 1.5 States' powers and limits
o 1.6 Process of amendment
o 1.7 Federal power
o 1.8 Ratification
2 Amendments
3 Related pages
o 3.1 Related documents
o 3.2 Related Authors
4 References
5 Other websites
o 5.1 National Archives
o 5.2 Official U.S. government sources
o 5.3 Non-government web sites
o 5.4 Activist/advocacy web sites
2
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6 References
Articles of the Constitution
When it was written in 1787, the Constitution had a preamble and seven main parts,
called articles.
Preamble
The Preamble states:
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense,
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.
The Preamble is not a law. It gives the reasons for writing the Constitution. The
Preamble is one of the best known parts of the Constitution. The first three words,
"We the people," are used very often. The six intentions that are listed are the goals
of the constitution.
Legislative power
Article One says that the U.S. Congress (the legislative branch) will make the laws
for the United States. Congress has two parts, called "Houses," the House of
Representatives and the Senate. The Article says who can be elected to each part of
Congress, and how they are elected.
The House of Representatives has members elected by the people in each state. The
number of members from each state depends on how many people live there. Each
member of the House of Representatives is elected for two years.
The Senate has two members, called Senators, from each state, no matter how many
people live there. Each Senator is elected for six years. The original Constitution
allowed the state legislatures to choose the Senators, but this was changed later by
the seventeenth amendment.
Article One also says how the Congress will do its business and what kinds of laws it
can make. It lists some kinds of laws the Congress and the states cannot make.
Article One also makes rules for Congress to impeach and remove from office the
President, Vice President, judges, and other government officers.
Executive power
3
Article Two says that the President (the executive branch) will carry out the laws
made by Congress. This article says how the President and Vice President are
elected, and who can be elected to these offices. The President and Vice President
are elected by a special Electoral College chosen by the states, for four years. The
Vice President takes over as President if the President dies, or resigns, or is unable
to serve. Article Two also says that the President is in charge of the army and navy.
He can make treaties with other countries, but these must be approved by twothirds of the Senate. He appoints judges, ambassadors, and other officers, but the
Senate also must approve these appointments. The President can also veto bills.
However, Congress can override the veto.
Judicial power
Article Three says there will be a court system (the judicial branch), including the
Supreme Court. The article says that Congress can decide which courts, besides the
Supreme Court, are needed. It says what kinds of "cases and controversies" these
courts can decide. Article Three also requires trial by jury in all criminal cases, and
defines the crime of treason.
States' powers and limits
Article Four is about the states. It says that all states must give "full faith and
credit" to the laws of the other states. It also says that state governments must treat
citizens of other states as fairly as they treat their own citizens, and must send
arrested people back to another state if they have been charged with a crime.
Article Four also says that Congress can make new states. There were only 13 states
in 1787. Now there are 50 United States. It says Congress can make rules for Federal
property and can govern territories that have not yet been made into states. Article
Four says the United States must make sure that each state has a republican form of
government, and protect the states from invasion and violence.
Process of amendment
Article Five gives two ways to amend, or change, the Constitution.
1. Congress can write a change, if two-thirds of the members in each House
agree.
2. The state governments can call a convention to write changes, although this
has not happened since 1787.
Any change that is written by Congress or by a convention must be sent to the state
legislatures or to state conventions for their approval. Congress decides whether to
send a change to the legislatures or to conventions. Three-fourths of the states must
approve a change for it to become part of the Constitution.
4
An amendment can change any part of the Constitution, except one—no amendment
can change the rule that each state has equal suffrage (right to vote) in the Senate.
Federal power
Article Six says that the Constitution, and the laws and treaties of the United States,
are higher than any other laws. It also says that all federal and state officers must
swear to "support" the Constitution.
Ratification
Article Seven says that the new government under the Constitution would not start
until conventions in at least nine states approved the Constitution.
Amendments
Since 1787, Congress has written 33 amendments to change the Constitution, but
the states have ratified only 27 of them.
The first ten amendments are called the Bill of Rights. They were made in 1791. All
of these changes limited the power of the federal government. They were:
Number Year
1st
2nd
3rd
4th
5th
6th
Description
Congress must protect the rights of freedom of speech, freedom of
the press, freedom of assembly, freedom of petition, and freedom of
1791
religion. Congress cannot promote any one religion more than
others.
"A well regulated Militia being necessary to the security of a free
1791 State, the right of the people to keep and bear arms, shall not be
infringed." - People have the right to have weapons, for example guns.
The government cannot send soldiers to live in private homes
1791
without the permission of the owners.
The government cannot get a warrant to arrest a person or search
1791 their property unless there is "probable cause" to believe a crime has
been committed.
The government cannot put a person on trial for a serious crime until
a grand jury has written an indictment. That a person cannot be put
on trial twice for the same crime. The government must follow due
1791
process of law before punishing a person or taking their property. A
person on trial for a crime does not have to testify against himself in
court.
Any person who is accused of a crime should get a speedy trial by a
1791 jury. That person can have a lawyer during the trial. They must be
told what they are charged with. The person can question the
5
7th
8th
9th
10th
witnesses against them, and can get their own witnesses to testify.
1791 A jury trial is needed for civil cases.
The government cannot require excessive bail or fines, or any cruel
1791
and unusual punishment.
The listing of individual rights in the Constitution and Bill of Rights
1791
does not include all of the rights of the people and the states.
Anything that the Constitution does not say that Congress can do
1791
should be left up to the states, or to the people.
After the Bill of Rights, there are 17 more changes to the Constitution that were
made at different times.
Number Year
11th
12th
13th
14th
15th
16th
17th
18th
19th
20th
21st
22nd
23rd
24th
25th
26th
27th
Description
Citizens cannot sue states in federal courts. There are some
1795
exceptions.
1804 Changed the way the President and Vice President are elected.
1865 Ended slavery in the United States.
Every person born in the United States is a citizen. States must follow
1868 due process of law before taking away any citizen's rights or
property.
A citizen's right to vote cannot be taken away because of race, the
1870
color of their skin, or because they were previously slaves.
1913 Congress can put a tax on income.
The people will elect Senators. Before this, Senators were elected by
1913
state legislatures.
1919 Made a law against drinking alcohol, called Prohibition.
1920 Gave women the right to vote.
Changed the days for meetings of Congress and for the start of the
1933
President's term of office.
Ended the Prohibition law of the Eighteenth Amendment. States can
1933
make laws about how alcohol is used in each state.
1951 A person may not be elected President more than two times.
Gave the people in the District of Columbia the right to vote for
1961
President.
1964 Made it illegal to make anyone pay a tax to have the right to vote.
Changes what happens if a President dies, resigns, or is not able to do
1967
the job. Says what happens if a Vice President dies or resigns.
Makes 18 years old the minimum age for people to be allowed to
1971
vote
1992 Limits how Congress can increase how much its members are paid.
6
Related pages
Related documents
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Mayflower Compact
Fundamental Orders of Connecticut
Massachusetts Body of Liberties
English Bill of Rights
United States Bill of Rights
Related Authors
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Alexander Hamilton
Gouverneur Morris
John Jay
James Madison
John Marshall
Thomas Paine
References
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Amar, Akhil Reed (2005). "In the Beginning". America's Constitution: A
Biography. New York: Random House. ISBN 1-4000-6262-4.
Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and
Antifederalist Speeches, Articles, and Letters During the Struggle for
Ratification. Part One: September 1787 to February 1788 (The Library of
America, 1993) ISBN 0-940450-42-9
Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and
Antifederalist Speeches, Articles, and Letters During the Struggle for
Ratification. Part Two: January to August 1788 (The Library of America,
1993) ISBN 0-940450-64-X
Edling, Max M. (2003). A Revolution in Favor of Government: Origins of the U.S.
Constitution and the Making of the American State. Oxford University Press.
ISBN 0-19-514870-3.
Ellis, Joseph (2002). Founding Brothers: The Revolutionary Generation.
Vintage. ISBN 0-375-70524-4.
Fallon, Richard H. (2004). The Dynamic Constitution: An Introduction to
American Constitutional Law. Cambridge University Press. ISBN 0-52184094-5.
Farris, Michael P. (July/August 2005). "Through the Founders' Eyes: Was the
Constitution Illegally Adopted?". The Home School Court Report 21: 6-10.
excerpt from (to be published) Constitutional Law for Enlightened Citizens.
Finkelman, Paul "Affirmative Action for the Master Class: The Creation of the
Proslavery Constitution," University of Akron Law Review 32 (No. 3, 1999):
423-70.
7
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Finkelman, Paul Slavery and the Founders: Race and Slavery in the Age of
Jefferson (Armonk, N.Y.: M.E. Sharpe, 1996);
Finkelman, Paul "Slavery and the Constitution: Making a Covenant with
Death," in Richard R. Beeman, Stephen Botein, and Edward C., Carter, II, eds.,
Beyond Confederation: Origins of the Constitution and American National
Identity (Chapel Hill: University of North Carolina Press, 1987);
Hall, Kermit L. (1984). A Comprehensive Bibliography of American
Constitutional and Legal History, 1896-1979. Millwood, N. Y.: Kraus
International. ISBN 0-527-37408-3.
Kammen, Michael (1986). A Machine that Would Go of Itself: The Constitution
in American Culture. New York: Alfred A. Knopf. ISBN 0-394-52905-7.
Kelly, Alfred Hinsey; Harbison, Winfred Audif; Belz, Herman (1991). The
American Constitution: its origins and development (7th edition ed.). New
York: Norton & Co. ISBN 0-393-96119-2.
Levy, Leonard W., ed. (2000). Encyclopedia of the American Constitution (2nd
Edition ed.). New York: Macmillan. ISBN 0-02-864880-3.
Marshall, Thurgood, "The Constitution: A Living Document," Howard Law
Journal 1987: 623-28.
Mazzone, Jason (2005). "The Creation of a Constitutional Culture". Tulsa Law
Review 40: 671.
Smith, Jean Edward; Levine, Herbert M. (1988). Civil Liberties & Civil Rights
Debated. Englewood Cliffs, New Jersey: Prentice Hall.
Smith, Jean Edward (1996). John Marshall: Definer Of A Nation. New York:
Henry Holt & Company.
Smith, Jean Edward (1989). The Constitution And American Foreign Policy. St.
Paul, MN: West Publishing Company.
Wiecek, William M., "The Witch at the Christening: Slavery and the
Constitution's Origins," Leonard W. Levy and Dennis J. Mahoney, eds., The
Framing and Ratification of the Constitution (New York: Macmillan, 1987),
178-84.
Wiecek, William M., "'The Blessings of Liberty': Slavery in the American
Constitutional Order," in Robert A. Goldman and Art Kaufman, eds., Slavery
and Its Consequences: The Constitution, Equality, and Race (Washington, D.C.:
American Enterprise Institute, 1988), 23-34.
Other websites
Wikisource has original writing related to this article:
United States Constitution
The English Wikibook United States Government has more information on:
The Annotated Constitution of the United States
8
Wikiquote has a collection of quotations related to:
United States Constitution
Wikimedia Commons has media related to: United States Constitution
National Archives
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The National Archives Experience — Constitution of the United States
The National Archives Experience — High Resolution Downloads of the Charters of Freedom
Full text of U.S. Constitution
Full text of The Bill of Rights
Full text of the amendments
Official U.S. government sources
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Analysis and Interpretation of the Constitution of the United States: Annotated constitution, with
descriptions of important cases (official publication of U.S. Senate)
United States Constitution and related resources: Library of Congress
CIA World Fact Book
Non-government web sites
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US Constitution in basic English
US Law Dictionary
Audio version of US Constitution: free mp3 download
The Constitution Society: Research and public education on the principles of constitutional
republican government
o Text of the constitution
Law about...the Constitution: An overview of constitutional law from the Legal Information
Institute
The U.S. Constitution Online: Full text of Constitution, with some history and annotation
The U.S. Constitution Online: Record of ratifications by states
National Constitution Center in Philadelphia: Museum and education center
Education on the U.S. Constitution. ERIC Digest No. 39.: Study on the treatment of the
Constitution in public education
Free audiobook from librivox.org
Annotated Constitution by the Congressional Research Service of the U.S. Library of
Congress(hyperlinked version published by LII)
Audio narration (mp3) of The United States Constitution at Americana Phonic
Free typeset PDF ebook of the Constitution and the Bill of Rights, optimized for printing
Activist/advocacy web sites
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SmallGovTimes.com: Site advocating small government and strict constitutional construction
Thirty-Thousand.org: Site advocating an increase in the size of the House of Representatives.
9
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Krusch, Barry (2003). Would The Real First Amendment Please Stand Up? Online book arguing
that the Supreme Court's interpretation of the First Amendment has created a “virtual First
Amendment" that is radically different from the true amendment.
2. THE UNITED STATES
CONSTITUTION
1
(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.
Article I
Section 1
All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives.
Section 2
10
1: The House of Representatives shall be composed of Members chosen every
second Year by the People of the several States, and the Electors in each State shall
have the Qualifications requisite for Electors of the most numerous Branch of the
State Legislature.
2: No Person shall be a Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the United States, and who shall
not, when elected, be an Inhabitant of that State in which he shall be chosen.
3: 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.2 The actual Enumeration shall be made within three
Years after the first Meeting of the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as they shall by Law direct. The
Number of Representatives shall not exceed one for every thirty Thousand, but each
State shall have at Least one Representative; and until such enumeration shall be
made, the State of New Hampshire shall be entitled to chuse three, Massachusetts
eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six,
New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten,
North Carolina five, South Carolina five, and Georgia three.
4: When vacancies happen in the Representation from any State, the Executive
Authority thereof shall issue Writs of Election to fill such Vacancies.
5: The House of Representatives shall chuse their Speaker and other Officers; and
shall have the sole Power of Impeachment.
Section 3
1: The Senate of the United States shall be composed of two Senators from each
State, chosen by the Legislature thereof,3 for six Years; and each Senator shall have
one Vote.
2: Immediately after they shall be assembled in Consequence of the first Election,
they shall be divided as equally as may be into three Classes. The Seats of the
Senators of the first Class shall be vacated at the Expiration of the second Year, of
the second Class at the Expiration of the fourth Year, and of the third Class at the
Expiration of the sixth Year, so that one third may be chosen every second Year; and
if Vacancies happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary Appointments
until the next Meeting of the Legislature, which shall then fill such Vacancies.4
11
3: No Person shall be a Senator who shall not have attained to the Age of thirty
Years, and been nine Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State for which he shall be chosen.
4: The Vice President of the United States shall be President of the Senate, but shall
have no Vote, unless they be equally divided.
5: The Senate shall chuse their other Officers, and also a President pro tempore, in
the Absence of the Vice President, or when he shall exercise the Office of President
of the United States.
6: The Senate shall have the sole Power to try all Impeachments. When sitting for
that Purpose, they shall be on Oath or Affirmation. When the President of the United
States is tried, the Chief Justice shall preside: And no Person shall be convicted
without the Concurrence of two thirds of the Members present.
7: Judgment in Cases of impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section 4
1: The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except as to the
Places of chusing Senators.
2: The Congress shall assemble at least once in every Year, and such Meeting shall
be on the first Monday in December,5 unless they shall by Law appoint a different
Day.
Section 5
1: Each House shall be the Judge of the Elections, Returns and Qualifications of its
own Members, and a Majority of each shall constitute a Quorum to do Business; but
a smaller Number may adjourn from day to day, and may be authorized to compel
the Attendance of absent Members, in such Manner, and under such Penalties as
each House may provide.
2: Each House may determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
3: Each House shall keep a Journal of its Proceedings, and from time to time publish
the same, excepting such Parts as may in their Judgment require Secrecy; and the
12
Yeas and Nays of the Members of either House on any question shall, at the Desire of
one fifth of those Present, be entered on the Journal.
4: Neither House, during the Session of Congress, shall, without the Consent of the
other, adjourn for more than three days, nor to any other Place than that in which
the two Houses shall be sitting.
Section 6
1: The Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the United
States.6 They shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective
Houses, and in going to and returning from the same; and for any Speech or Debate
in either House, they shall not be questioned in any other Place.
2: No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which shall
have been created, or the Emoluments whereof shall have been encreased during
such time; and no Person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.
Section 7
1: All Bills for raising Revenue shall originate in the House of Representatives; but
the Senate may propose or concur with Amendments as on other Bills.
2: Every Bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United States; If
he approve he shall sign it, but if not he shall return it, with his Objections to that
House in which it shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such Reconsideration two thirds
of that House shall agree to pass the Bill, it shall be sent, together with the
Objections, to the other House, by which it shall likewise be reconsidered, and if
approved by two thirds of that House, it shall become a Law. But in all such Cases
the Votes of both Houses shall be determined by yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be entered on the Journal of each
House respectively. If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to him, the Same shall be
a Law, in like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.
3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question of Adjournment)
shall be presented to the President of the United States; and before the Same shall
13
take Effect, shall be approved by him, or being disapproved by him, shall be
repassed by two thirds of the Senate and House of Representatives, according to the
Rules and Limitations prescribed in the Case of a Bill.
Section 8
1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare
of the United States; but all Duties, Imposts and Excises shall be uniform throughout
the United States;
2: To borrow Money on the credit of the United States;
3: To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes;
4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject
of Bankruptcies throughout the United States;
5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the
Standard of Weights and Measures;
6: To provide for the Punishment of counterfeiting the Securities and current Coin
of the United States;
7: To establish Post Offices and post Roads;
8: To promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries;
9: To constitute Tribunals inferior to the supreme Court;
10: To define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be
for a longer Term than two Years;
13: To provide and maintain a Navy;
14: To make Rules for the Government and Regulation of the land and naval Forces;
14
15: To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;
16: To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the Officers, and the
Authority of training the Militia according to the discipline prescribed by Congress;
17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
18: 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.
Section 9
1: 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.
2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety may require it.
3: No Bill of Attainder or ex post facto Law shall be passed.
4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken.7
5: No Tax or Duty shall be laid on Articles exported from any State.
6: No Preference shall be given by any Regulation of Commerce or Revenue to the
Ports of one State over those of another: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in another.
7: No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the Receipts
and Expenditures of all public Money shall be published from time to time.
15
8: No Title of Nobility shall be granted by the United States: And no Person holding
any Office of Profit or Trust under them, shall, without the Consent of the Congress,
accept of any present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.
Section 10
1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and
silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing it's
inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on
Imports or Exports, shall be for the Use of the Treasury of the United States; and all
such Laws shall be subject to the Revision and Controul of the Congress.
3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep
Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with
another State, or with a foreign Power, or engage in War, unless actually invaded, or
in such imminent Danger as will not admit of delay.
Article II
Section 1
1: The executive Power shall be vested in a President of the United States of
America. He shall hold his Office during the Term of four Years, and, together with
the Vice President, chosen for the same Term, be elected, as follows
2: 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.
3: 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
16
be a Majority of the whole Number of Electors appointed; and if there be more than
one who have such Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for President; and if
no Person have a Majority, then from the five highest on the List the said House shall
in like Manner chuse the President. But in chusing the President, the Votes shall be
taken by States, the Representation from each State having one Vote; A quorum for
this Purpose shall consist of a Member or Members from two thirds of the States,
and a Majority of all the States shall be necessary to a Choice. In every Case, after
the Choice of the President, the Person having the greatest Number of Votes of the
Electors shall be the Vice President. But if there should remain two or more who
have equal Votes, the Senate shall chuse from them by Ballot the Vice President.8
4: The Congress may determine the Time of chusing the Electors, and the Day on
which they shall give their Votes; which Day shall be the same throughout the
United States.
5: No Person except a natural born Citizen, or a Citizen of the United States, at the
time of the Adoption of this Constitution, shall be eligible to the Office of President;
neither shall any Person be eligible to that Office who shall not have attained to the
Age of thirty five Years, and been fourteen Years a Resident within the United States.
6: In Case of the Removal of the President from Office, or of his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office,9 the Same shall
devolve on the VicePresident, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be elected.
7: The President shall, at stated Times, receive for his Services, a Compensation,
which shall neither be encreased nor diminished during the Period for which he
shall have been elected, and he shall not receive within that Period any other
Emolument from the United States, or any of them.
8: Before he enter on the Execution of his Office, he shall take the following Oath or
Affirmation:--“I do solemnly swear (or affirm) that I will faithfully execute the Office
of President of the United States, and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States.”
Section 2
1: The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual Service of
the United States; he may require the Opinion, in writing, of the principal Officer in
each of the executive Departments, upon any Subject relating to the Duties of their
17
respective Offices, and he shall have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of Impeachment.
2: He shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but the Congress may by Law
vest the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
3: The President shall have Power to fill up all Vacancies that may happen during
the Recess of the Senate, by granting Commissions which shall expire at the End of
their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of the Union,
and recommend to their Consideration such Measures as he shall judge necessary
and expedient; he may, on extraordinary Occasions, convene both Houses, or either
of them, and in Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper; he shall
receive Ambassadors and other public Ministers; he shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the United States.
Section 4
The President, Vice President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.
Article III
Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished during their Continuance in Office.
Section 2
18
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority;--to all Cases affecting Ambassadors, other public
Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to Controversies between
two or more States;--between a State and Citizens of another State;10 --between
Citizens of different States, --between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those
in which a State shall be Party, the supreme Court shall have original Jurisdiction. In
all the other Cases before mentioned, the supreme Court shall have
appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such
Trial shall be held in the State where the said Crimes shall have been committed; but
when not committed within any State, the Trial shall be at such Place or Places as
the Congress may by Law have directed.
Section 3
1: Treason against the United States, shall consist only in levying War against them,
or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.
2: The Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the
Life of the Person attainted.
Article IV
Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved,
and the Effect thereof.
Section 2
1: The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
19
2: A Person charged in any State with Treason, Felony, or other Crime, who shall
flee from Justice, and be found in another State, shall on Demand of the executive
Authority of the State from which he fled, be delivered up, to be removed to the
State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof,
escaping into another, shall, in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be delivered up on Claim of the
Party to whom such Service or Labour may be due.11
Section 3
1: New States may be admitted by the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction of any other State; nor any State
be formed by the Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United
States; and nothing in this Constitution shall be so construed as to Prejudice any
Claims of the United States, or of any particular State.
Section 4
The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of
the Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the Legislatures
of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no Amendment which
may be made prior to the Year One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
and that no State, without its Consent, shall be deprived of its equal Suffrage in the
Senate.
Article VI
20
1: All Debts contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the United States under this Constitution, as
under the Confederation.
2: This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
3: The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath or Affirmation, to support
this Constitution; but no religious Test shall ever be required as a Qualification to
any Office or public Trust under the United States.
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.
3. List of Amendments to the
United States Constitution
(Wikipedia)
Ratified amendments
#
1st
Proposal Enactment Full
date
date
text
Amendments
Protects freedom of speech, freedom of
religion, and freedom of the press, as well as
the right to assemble, right to protest, and
petition the government
2nd Protects the right to bear arms
21
September December
25, 1789
15, 1791
Full
text
September December
25, 1789
15, 1791
Full
text
Prohibits the forced quartering of soldiers
during peacetime
Prohibits unreasonable searches and seizures
and sets out requirements for search warrants
4th
based on probable cause as determined by a
neutral judge or magistrate
Sets out rules for indictment by grand jury and
eminent domain, protects the right to due
5th
process, and prohibits self-incrimination and
double jeopardy
Protects the right to a fair and speedy public
trial by jury, including the rights to be notified
6th
of the accusations, to confront the accuser, to
obtain witnesses and to retain counsel
Provides for the right to trial by jury in certain
7th
civil cases, according to common law
Prohibits excessive fines and excessive bail, as
8th
well as cruel and unusual punishment
Protects rights not enumerated in the
9th
constitution
Limits the powers of the federal government to
10th
those delegated to it by the Constitution
Makes states immune from suits from out-ofstate citizens and foreigners not living within
11th
the state borders; lays the foundation for
sovereign immunity
3rd
12th Revises presidential election procedures
13th
14th
15th
16th
17th
18th
Abolishes slavery and involuntary servitude,
except as punishment for a crime
Defines citizenship, contains the Privileges or
Immunities Clause, the Due Process Clause, the
Equal Protection Clause, and deals with postCivil War issues
Prohibits the denial of suffrage based on race,
color, or previous condition of servitude
Allows the federal government to collect
income tax
Establishes the direct election of United States
Senators by popular vote
Establishes prohibition of alcohol (repealed by
Twenty-first Amendment)
22
September December
25, 1789
15, 1791
Full
text
September December
25, 1789
15, 1791
Full
text
September December
25, 1789
15, 1791
Full
text
September December
25, 1789
15, 1791
Full
text
September
25, 1789
September
25, 1789
September
25, 1789
September
25, 1789
December
15, 1791
December
15, 1791
December
15, 1791
December
15, 1791
Full
text
Full
text
Full
text
Full
text
March 4,
1794
February 7, Full
1795
text
December
9, 1803
January 31,
1865
June 15,
Full
1804
text
December 6, Full
1865
text
June 13,
1866
July 9, 1868
Full
text
February
26, 1869
July 12,
1909
May 13,
1912
December
18, 1917
February 3,
1870
February 3,
1913
April 8,
1913
January 16,
1919
Full
text
Full
text
Full
text
Full
text
19th Establishes women's suffrage
Fixes the dates of term commencements for
Congress (January 3) and the President
20th
(January 20); known as the "lame duck
amendment"
Repeals the Eighteenth Amendment and
21st prohibits violations of state laws regarding
alcohol
Limits the number of times that a person can
be elected president: a person cannot be
elected president more than twice, and a
22nd
person who has served more than two years of
a term to which someone else was elected
cannot be elected more than once
Provides for representation of Washington,
23rd
D.C., in the Electoral College
Prohibits the revocation of voting rights due to
24th
the non-payment of poll taxes
Codifies the Tyler Precedent; defines the
25th
process of presidential succession
Establishes the right to vote for those age 18
26th
years or older
Prevents laws affecting Congressional salary
27th from taking effect until after the next election
of the representatives.
June 4,
1919
August 18,
1920
Full
text
March 2,
1932
January 23, Full
1933
text
February
20, 1933
December 5, Full
1933
text
March 24,
1947
February
27, 1951
Full
text
June 16,
1960
September
14, 1962
March 29,
1961
January 23,
1964
February
July 6, 1965
10, 1967
March 23,
July 1, 1971
1971
Full
text
Full
text
Full
text
Full
text
September May 7,
25, 1789
1992[1]
Full
text
3. Amendments to the United
States Constitution
The following are the Amendments to the
Constitution. The first ten Amendments collectively
are commonly known as the Bill of Rights.
Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791.
Note
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
23
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. Note
A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.
Amendment 3 - Quartering of Soldiers. Ratified 12/15/1791. Note
No Soldier shall, in time of peace be quartered in any house, without the consent of
the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment 4 - Search and Seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified
12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified
12/15/1791.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence.
Amendment 7 - Trial by Jury in Civil Cases. Ratified 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a jury, shall be
otherwise re-examined in any Court of the United States, than according to the rules
of the common law.
Amendment 8 - Cruel and Unusual Punishment. Ratified 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
24
Amendment 9 - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.
Amendment 10 - Powers of the States and People. Ratified 12/15/1791.
The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people.
Amendment 11 - Judicial Limits. Ratified 2/7/1795.
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
Amendment 12 - Choosing the President, Vice-President. Ratified 6/15/1804.
The Electors shall meet in their respective states, and vote by ballot for President
and Vice-President, one of whom, at least, shall not be an inhabitant of the same
state with themselves; they shall name in their ballots the person voted for as
President, and in distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President, and of all persons
voted for as Vice-President and of the number of votes for each, which lists 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 for President, shall be the
President, if such number be a majority of the whole number of Electors appointed;
and if no person have such majority, then from the persons having the highest
numbers not exceeding three on the list of those voted for as President, the House of
Representatives shall choose immediately, by ballot, 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. And if the House of Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before the fourth day of March next
following, then the Vice-President shall act as President, as in the case of the death
or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the VicePresident, if such number be a majority of the whole number of Electors appointed,
and if no person have a majority, then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum for the purpose shall consist of
two-thirds of the whole number of Senators, and a majority of the whole number
shall be necessary to a choice. But no person constitutionally ineligible to the office
of President shall be eligible to that of Vice-President of the United States.
25
Amendment 13 - Slavery Abolished. Ratified 12/6/1865. 1. Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States, or any place subject to
their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of
electors for President and Vice-President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such
State.
3. No person shall be a Senator or Representative in Congress, or elector of
President and Vice-President, or hold any office, civil or military, under the United
States, or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But Congress may
by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including
debts incurred for payment of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned. But neither the United States nor
any State shall assume or pay any debt or obligation incurred in aid of insurrection
or rebellion against the United States, or any claim for the loss or emancipation of
any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
Amendment 15 - Race No Bar to Vote. Ratified 2/3/1870.
1. The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous condition of
servitude.
2. The Congress shall have power to enforce this article by appropriate legislation.
26
Amendment 16 - Status of Income Tax Clarified. Ratified 2/3/1913.
The Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without
regard to any census or enumeration.
Amendment 17 - Senators Elected by Popular Vote. Ratified 4/8/1913.
The Senate of the United States shall be composed of two Senators from each State,
elected by the people thereof, for six years; and each Senator shall have one vote.
The electors in each State shall have the qualifications requisite for electors of the
most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such vacancies:
Provided, That the legislature of any State may empower the executive thereof to
make temporary appointments until the people fill the vacancies by election as the
legislature may direct.
This amendment shall not be so construed as to affect the election or term of any
Senator chosen before it becomes valid as part of the Constitution.
Amendment 18 - Liquor Abolished. Ratified 1/16/1919. Repealed by
Amendment 21, 12/5/1933.
1. After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this
article by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of the several States, as provided
in the Constitution, within seven years from the date of the submission hereof to the
States by the Congress.
Amendment 19 - Women's Suffrage. Ratified 8/18/1920.
The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment 20 - Presidential, Congressional Terms. Ratified 1/23/1933.
1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of
January, of the years in which such terms would have ended if this article had not
been ratified; and the terms of their successors shall then begin.
2. The Congress shall assemble at least once in every year, and such meeting shall
begin at noon on the 3d day of January, unless they shall by law appoint a different
day.
27
3. If, at the time fixed for the beginning of the term of the President, the President
elect shall have died, the Vice President elect shall become President. If a President
shall not have been chosen before the time fixed for the beginning of his term, or if
the President elect shall have failed to qualify, then the Vice President elect shall act
as President until a President shall have qualified; and the Congress may by law
provide for the case wherein neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act as President, or the manner in
which one who is to act shall be selected, and such person shall act accordingly until
a President or Vice President shall have qualified.
4. The Congress may by law provide for the case of the death of any of the persons
from whom the House of Representatives may choose a President whenever the
right of choice shall have devolved upon them, and for the case of the death of any of
the persons from whom the Senate may choose a Vice President whenever the right
of choice shall have devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following the
ratification of this article.
6. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the several
States within seven years from the date of its submission.
Amendment 21 - Amendment 18 Repealed. Ratified 12/5/1933.
1. The eighteenth article of amendment to the Constitution of the United States is
hereby repealed.
2. The transportation or importation into any State, Territory, or possession of the
United States for delivery or use therein of intoxicating liquors, in violation of the
laws thereof, is hereby prohibited.
3. The article shall be inoperative unless it shall have been ratified as an amendment
to the Constitution by conventions in the several States, as provided in the
Constitution, within seven years from the date of the submission hereof to the States
by the Congress.
Amendment 22 - Presidential Term Limits. Ratified 2/27/1951
1. No person shall be elected to the office of the President more than twice, and no
person who has held the office of President, or acted as President, for more than two
years of a term to which some other person was elected President shall be elected to
the office of the President more than once. But this Article shall not apply to any
person holding the office of President, when this Article was proposed by the
Congress, and shall not prevent any person who may be holding the office of
President, or acting as President, during the term within which this Article becomes
operative from holding the office of President or acting as President during the
remainder of such term.
2. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the several
States within seven years from the date of its submission to the States by the
Congress.
28
Amendment 23 - Presidential Vote for District of Columbia. Ratified
3/29/1961.
1. The District constituting the seat of Government of the United States shall appoint
in such manner as the Congress may direct: A number of electors of President and
Vice President equal to the whole number of Senators and Representatives in
Congress to which the District would be entitled if it were a State, but in no event
more than the least populous State; they shall be in addition to those appointed by
the States, but they shall be considered, for the purposes of the election of President
and Vice President, to be electors appointed by a State; and they shall meet in the
District and perform such duties as provided by the twelfth article of amendment.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment 24 - Poll Tax Barred. Ratified 1/23/1964.
1. The right of citizens of the United States to vote in any primary or other election
for President or Vice President, for electors for President or Vice President, or for
Senator or Representative in Congress, shall not be denied or abridged by the United
States or any State by reason of failure to pay any poll tax or other tax.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment 25 - Presidential Disability and Succession. Ratified 2/10/1967.
1. In case of the removal of the President from office or of his death or resignation,
the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority
vote of both Houses of Congress.
3. Whenever the President transmits to the President pro tempore of the Senate and
the Speaker of the House of Representatives his written declaration that he is unable
to discharge the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be discharged by
the Vice President as Acting President.
4. Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide,
transmit to the President pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable to discharge
the powers and duties of his office, the Vice President shall immediately assume the
powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate
and the Speaker of the House of Representatives his written declaration that no
inability exists, he shall resume the powers and duties of his office unless the Vice
President and a majority of either the principal officers of the executive department
or of such other body as Congress may by law provide, transmit within four days to
the President pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable to discharge
the powers and duties of his office. Thereupon Congress shall decide the issue,
assembling within forty eight hours for that purpose if not in session. If the
Congress, within twenty one days after receipt of the latter written declaration, or, if
29
Congress is not in session, within twenty one days after Congress is required to
assemble, determines by two thirds vote of both Houses that the President is unable
to discharge the powers and duties of his office, the Vice President shall continue to
discharge the same as Acting President; otherwise, the President shall resume the
powers and duties of his office.
Amendment 26 - Voting Age Set to 18 Years. Ratified 7/1/1971.
1. The right of citizens of the United States, who are eighteen years of age or older,
to vote shall not be denied or abridged by the United States or by any State on
account of age.
2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment 27 - Limiting Changes to Congressional Pay. Ratified 5/7/1992.
No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives shall have
intervened.
5. Notes Distinguishing Substantive
and Procedural Due Process
A. Due Process Clause
From Wikipedia, the free encyclopedia
The Fifth and Fourteenth Amendments to the United States Constitution each
contain a Due Process Clause. Due process deals with the administration of justice
and thus the Due Process Clause acts as a safeguard from arbitrary denial of life,
liberty, or property by the Government outside the sanction of law.[1] The Supreme
Court of the United States interprets the Clauses however more broadly because
these clauses provide four protections: procedural due process (in civil and criminal
proceedings), substantive due process, a prohibition against vague laws, and as the
vehicle for the incorporation of the Bill of Rights.
Contents

1 Background
30



2 Drafting
3 Text
4 Interpretation
o 4.1 Scope
o 4.2 State actor
o
o
4.3 Procedural due process
 4.3.1 Civil due process
 4.3.2 Criminal due process
4.4 Substantive due process
4.5 Void for vagueness
o 4.6 Incorporation of the Bill of Rights
o 4.7 Reverse incorporation of equal protection
o 4.8 Levels of scrutiny
o 4.9 Remedies
5 Violation via the NDAA
6 Criticism
o 6.1 Substantive due process
7 Due process clauses in state constitutions
o 7.1 New York
8 References
o




1. Background
Main article: Due process
Clause 39 of Magna Carta provided:
No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any other
way, nor will we proceed with force against him, or send others to do so,
except by the lawful judgment of his equals or by the law of the land.[2]
2. Drafting
New York was the only state that asked Congress to add "due process" language to
the U.S. Constitution. New York ratified the U.S. Constitution and proposed the
31
following amendment in 1788: "[N]o Person ought to be taken imprisoned or
diseased of his freehold, or be exiled or deprived of his Privileges, Franchises, Life,
Liberty or Property but by due process of Law."[3]
In response to this proposal from New York, James Madison drafted a Due Process
Clause for Congress.[4] Madison cut out some language, and inserted the word
without, which had not been proposed by New York. Congress then adopted the
exact wording that Madison proposed, after Madison explained that the Due Process
Clause would not be sufficient to protect various other rights:
Although I know whenever the great rights, the trial by jury, freedom of the press, or
liberty of conscience, come in question in that body [Parliament], the invasion of
them is resisted by able advocates, yet their Magna Carta does not contain any one
provision for the security of those rights, respecting which the people of America
are most alarmed.[4]
3. Text
The Fifth Amendment to the United States Constitution provides:
[N]or shall any person . . . be deprived of life, liberty, or property, without due
process of law . . . .[5]
Section One of the Fourteenth Amendment to the United States Constitution
provides:
[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .[6]
4. Interpretation
4.1 Scope
The Supreme Court has interpreted those two clauses identically, as Justice Felix
Frankfurter once explained in a concurring opinion: “To suppose that ‘due process
of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too
frivolous to require elaborate rejection.”[7] In 1855, the Supreme Court explained
that, to ascertain whether a process is due process, the first step is to “examine the
constitution itself, to see whether this process be in conflict with any of its
provisions . . . .”[8] Due process also applies to the creation of taxing districts, as
taxation is a deprivation of property. Due process typically requires public hearings
prior to the creation of a taxing district.[9]
"State"
32
Due process applies to Puerto Rico.[10]
"Person"
The due process clauses apply to "legal persons" (that is, corporate personhood) as
well as to individuals. Fifth Amendment due process was first applied to
corporations in 1893 by the Supreme Court in Noble v. Union River Logging.[11] Noble
was followed by in Santa Clara County v. Southern Pacific Railroad in 1886.
"Liberty"
The U.S. Supreme Court has interpreted the term "liberty" in the due process clauses
broadly: "Although the Court has not assumed to define 'liberty' with any great
precision, that term is not confined to mere freedom from bodily restraint. Liberty
under law extends to the full range of conduct which the individual is free to pursue,
and it cannot be restricted except for a proper governmental objective."[12][13]
4.2 State actor
Main article: State actor
The prohibitions of the Due Process Clauses apply only to the actions of state actors,
and not against private citizens.
4.3 Procedural due process
This protection extends to all government proceedings that can result in an
individual's deprivation, whether civil or criminal in nature, from parole violation
hearings to administrative hearings regarding government benefits and
entitlements to full-blown criminal trials. The article "Some Kind of Hearing"
written by Judge Henry Friendly created a list of basic due process rights "that
remains highly influential, as to both content and relative priority."[14] These rights,
which apply equally to civil due process and criminal due process, are:[14]
1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be
taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
33
10. Requirement that the tribunal prepare written findings of fact and reasons
for its decision.
4.3.1 Civil due process
At a basic level, procedural due process is essentially based on the concept of
"fundamental fairness." For example, in 1934, the United States Supreme Court held
that due process is violated "if a practice or rule offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental."[15] As construed by the courts, it includes an individual's right to be
adequately notified of charges or proceedings, the opportunity to be heard at these
proceedings, and that the person or panel making the final decision over the
proceedings be impartial in regards to the matter before them.[16]
Or, to put it more simply, where an individual is facing a deprivation of life, liberty,
or property, procedural due process mandates that he or she is entitled to adequate
notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test to determine the rigor with
which the requirements of procedural due process should be applied to a particular
deprivation, for the obvious reason that mandating such requirements in the most
expansive way for even the most minor deprivations would bring the machinery of
government to a halt. The Court set out the test as follows: "[I]dentification of the
specific dictates of due process generally requires consideration of three distinct
factors: first, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards;
and, finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail."[17]
Procedural due process has also been an important factor in the development of the
law of personal jurisdiction, in the sense that it is inherently unfair for the judicial
machinery of a state to take away the property of a person who has no connection to
it whatsoever. A significant portion of U.S. constitutional law is therefore directed to
what kinds of connections to a state are enough for that state's assertion of
jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension into
the question of whether a judge should recuse himself or herself from a case.
Specifically, the Supreme Court has ruled that in certain circumstances, the Due
Process Clause of the Fourteenth Amendment requires a judge to recuse himself on
account of a potential or actual conflict of interest. For example, on June 8, 2009, in
Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme
34
Court of Appeals of West Virginia could not participate in a case involving a major
donor to his election to that court.[18]
4.3.2 Criminal due process
In criminal cases, many of these due process protections overlap with procedural
protections provided by the Eighth Amendment to the United States Constitution,
which guarantees reliable procedures that protect innocent people from being
executed, which would be an obvious example of cruel and unusual punishment.[19]
An example for criminal due process rights is the case Vitek v. Jones, 445 U.S. 480
(1980). The due process clause of the Fourteenth Amendment requires certain
procedural protections for state prisoners who may be transferred involuntarily to a
state mental hospital for treatment of a mental disease or defect, such protections
including written notice of the transfer, an adversary hearing before an independent
decisionmaker, written findings, and effective and timely notice of such rights.[20] As
established by the district court and upheld by the U.S. Supreme Court in Vitek v.
Jones, these due process rights include:[20]
1. Written notice to the prisoner that a transfer to a mental hospital is being
considered;
2. A hearing, sufficiently after the notice to permit the prisoner to prepare, at
which disclosure to the prisoner is made of the evidence being relied upon
for the transfer and at which an opportunity to be heard in person and to
present documentary evidence is given;
3. An opportunity at the hearing to present testimony of witnesses by the
defense and to confront and cross-examine witnesses called by the state,
except upon a finding, not arbitrarily made, of good cause for not permitting
such presentation, confrontation, or crossexamination;
4. An independent decisionmaker;
5. A written statement by the factfinder as to the evidence relied on and the
reasons for transferring the inmate;
6. Availability of legal counsel, furnished by the state, if the inmate is financially
unable to furnish his own (It must be noted however that a majority of
Justices rejected this right to state-furnished counsel.[21]); and
7. Effective and timely notice of all the foregoing rights.
4.4 Substantive due process
Main article: Substantive due process
By the middle of the 19th century, "due process of law" was interpreted by the U.S.
Supreme Court to mean that “it was not left to the legislative power to enact any
process which might be devised. The due process article is a restraint on the
legislative as well as on the executive and judicial powers of the government, and
35
cannot be so construed as to leave Congress free to make any process ‘due process
of law’ by its mere will.”[8]
The term "substantive due process" (SDP), is commonly used in two ways: first to
identify a particular line of case law, and second to signify a particular attitude
toward judicial review under the Due Process Clause.[22] The term "substantive due
process" began to take form in 1930s legal casebooks as a categorical distinction of
selected due process cases, and by 1950 had been mentioned twice in Supreme
Court opinions.[23] SDP involves liberty-based due process challenges which seek
certain outcomes instead of merely contesting procedures and their effects; in such
cases, the Supreme Court recognizes a constitutionally-based "liberty" which then
renders laws seeking to limit said "liberty" either unenforceable or limited in
scope.[22] Critics of SDP decisions typically assert that those liberties ought to be left
to the more politically accountable branches of government.[22]
Courts have viewed the Due Process Clause, and sometimes other clauses of the
Constitution, as embracing those fundamental rights that are “implicit in the concept
of ordered liberty.”[24] Just what those rights are is not always clear, nor is the
Supreme Court's authority to enforce such unenumerated rights clear.[25] Some of
those rights have long histories or “are deeply rooted” in American society.
The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when
substantive due process was used to strike down minimum wage and labor laws in
order to protect freedom of contract. Since then, the Supreme Court has decided that
numerous other freedoms that do not appear in the plain text of the Constitution are
nevertheless protected by the Constitution. If these rights were not protected by the
federal courts' doctrine of substantive due process, they could nevertheless be
protected in other ways; for example, it is possible that some of these rights could be
protected by other provisions of the state or federal constitutions,[26] and
alternatively they could be protected by legislatures.[27][28]
Today, the Court focuses on three types of rights under substantive due process in
the Fourteenth Amendment,[citation needed] which originated in United States v. Carolene
Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:



the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment);
restrictions on the political process (e.g. the rights of voting, association, and
free speech); and
the rights of “discrete and insular minorities.”
The Court usually looks first to see if there is a fundamental right, by examining if
the right can be found deeply rooted in American history and traditions. Where the
right is not a fundamental right, the court applies a rational basis test: if the
violation of the right can be rationally related to a legitimate government purpose,
then the law is held valid. If the court establishes that the right being violated is a
fundamental right, it applies strict scrutiny. This test inquires into whether there is a
36
compelling state interest being furthered by the violation of the right, and whether
the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in
Griswold v. Connecticut (1965), wherein the Court held that criminal prohibition of
contraceptive devices for married couples violated federal, judicially enforceable
privacy rights. The right to contraceptives was found in what the Court called the
"penumbras", or shadowy edges, of certain amendments that arguably refer to
certain privacy rights. The penumbra-based rationale of Griswold has since been
discarded; the Supreme Court now uses the Due Process Clause as a basis for
various unenumerated privacy rights. Although it has never been the majority view,
some have argued that the Ninth Amendment (addressing unenumerated rights)
could be used as a source of fundamental judicially enforceable rights, including a
general right to privacy, as discussed by Justice Goldberg concurring in Griswold.[29]
4.5 Void for vagueness
The courts have generally determined that laws which are too vague for the average
citizen to understand deprive citizens of their rights to due process. If an average
person cannot determine who is regulated, what conduct is prohibited, or what
punishment may be imposed by a law, courts may find that law to be void for
vagueness. See Coates v. Cincinnati where the word "annoying" was deemed to lack
due process insertion of fair warning.
4.6 Incorporation of the Bill of Rights
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part,
is applied to the states through the Fourteenth Amendment's Due Process Clause.
The basis for incorporation is substantive due process regarding substantive rights
enumerated elsewhere in the Constitution, and procedural due process regarding
procedural rights enumerated elsewhere in the Constitution.[30]
Incorporation started in 1897 with a takings case,[31] continued with Gitlow v. New
York (1925), which was a First Amendment case, and accelerated in the 1940s and
1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the
entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John
M. Harlan—felt that the federal courts should only apply those sections of the Bill of
Rights that were "fundamental to a scheme of ordered liberty." It was the latter
course that the Warren Court of the 1960s took, although, almost all of the Bill of
Rights has now been incorporated jot-for-jot against the states.
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights
to the states is just as notable as the use of due process to define new fundamental
rights that are not explicitly guaranteed by the Constitution's text. In both cases, the
question has been whether the right asserted is "fundamental", so that, just as not
37
all proposed "new" constitutional rights are afforded judicial recognition, not all
provisions of the Bill of Rights have been deemed sufficiently fundamental to
warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities
Clause of the Fourteenth Amendment would be a more appropriate textual source
for the incorporation doctrine. The Court has not taken that course, and some point
to the treatment given to the Privileges or Immunities Clause in the 1873 SlaughterHouse Cases as a reason why. Although the Slaughter-House Court did not expressly
preclude application of the Bill of Rights to the states, the Clause largely ceased to be
invoked in opinions of the Court following the Slaughter-House Cases, and when
incorporation did begin, it was under the rubric of due process. Scholars who share
Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth
Amendment, like Senator Jacob Howard and Congressman John Bingham, included a
Due Process Clause in the Fourteenth Amendment for the following reason: "By
incorporating the rights of the Fifth Amendment, the privileges or immunities clause
would...have prevented states from depriving 'citizens' of due process. Bingham,
Howard, and company wanted to go even further by extending the benefits of state
due process to aliens."[32]
The Supreme Court has consistently held that Fifth Amendment due process means
substantially the same as Fourteenth Amendment due process,[33] and therefore the
original meaning of the former is relevant to the incorporation doctrine of the latter.
When the Bill of Rights was originally proposed by Congress in 1789 to the states,
various substantive and procedural rights were "classed according to their affinity
to each other" instead of being submitted to the states "as a single act to be adopted
or rejected in the gross," as James Madison put it.[34] Roger Sherman explained in
1789 that each amendment "may be passed upon distinctly by the States, and any
one that is adopted by three fourths of the legislatures may become a part of the
Constitution."[35] Thus, the states were allowed to reject the Sixth Amendment, for
example, while ratifying all of the other amendments including the Due Process
Clause; in that case, the rights in the Sixth Amendment would not have been
incorporated against the federal government. The doctrine of incorporating the
content of other amendments into “due process” was thus an innovation, when it
began in 1925 with the Gitlow case, and this doctrine remains controversial today.
4.7 Reverse incorporation of equal protection
Further information: Equal Protection Clause
In Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court held that: "[T]he
concepts of equal protection and due process, both stemming from our American
ideal of fairness, are not mutually exclusive." The Court thus interpreted the Fifth
Amendment's due process clause to include an equal protection element.
38
4.8 Levels of scrutiny
When a law or other act of government is challenged as a violation of individual
liberty under the Due Process Clause, courts nowadays primarily use two forms of
scrutiny, or judicial review, which is used by the Judicial Branch. This inquiry
balances the importance of the governmental interest being served and the
appropriateness of the government's method of implementation against the
resulting infringement of individual rights. If the governmental action infringes
upon a fundamental right, the highest level of review—strict scrutiny—is used.[36]
To pass strict scrutiny review, the law or act must be narrowly tailored to further a
compelling government interest.
When the governmental restriction restricts liberty in a manner that does not
implicate a fundamental right, rational basis review is used. Here a legitimate
government interest is enough to pass this review. There is also a middle level of
scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection
cases rather than in Due Process cases: “The standards of intermediate scrutiny
have yet to make an appearance in a due process case.”[37]
4.9 Remedies
The Court held in 1967 that “we cannot leave to the States the formulation of the
authoritative . . . remedies designed to protect people from infractions by the States
of federally guaranteed rights.”[38]
5. Violation via the NDAA
Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year
2012 have been called a violation of the 5th Amendment's due process clause.[39][40]
6. Criticism
6.1 Substantive due process
Critics of substantive due process often claim that the doctrine began, at the federal
level, with the infamous 1857 slavery case of Dred Scott v. Sandford. However, other
critics contend that substantive due process was not used by the federal judiciary
until after the Fourteenth Amendment was adopted in 1869.[41] Advocates of
substantive due process who assert that the doctrine was employed in Dred Scott
claim that it was employed incorrectly. Additionally, the first appearance of
substantive due process as a concept arguably appeared earlier in the case of
Bloomer v. McQuewan, 55 U.S. 539 (1852), so that Chief Justice Taney would not
have been entirely breaking ground in his Dred Scott opinion when he pronounced
the Missouri Compromise unconstitutional because, among other reasons, an "act of
39
Congress that deprived a citizen of his liberty or property merely because he came
himself or brought his property into a particular territory of the United States, and
who had committed no offence against the laws, could hardly be dignified with the
name of due process of law." Dissenting Justice Curtis disagreed with Taney about
what "due process" meant in Dred Scott.
Criticisms of the doctrine continue as in the past. Critics argue that judges are
making determinations of policy and morality that properly belong with legislators
(i.e. "legislating from the bench"), or argue that judges are reading views into the
Constitution that are not really implied by the document, or argue that judges are
claiming power to expand the liberty of some people at the expense of other
people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing
substance instead of process.
Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its
boundaries, and the following is from one of his last dissents:[42]
I have not yet adequately expressed the more than anxiety that I feel at the ever
increasing scope given to the Fourteenth Amendment in cutting down what I believe
to be the constitutional rights of the States. As the decisions now stand, I see hardly
any limit but the sky to the invalidating of those rights if they happen to strike a
majority of this Court as for any reason undesirable. I cannot believe that the
Amendment was intended to give us carte blanche to embody our economic or
moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to
me to justify the present and the earlier decisions to which I have referred. Of
course the words due process of law, if taken in their literal meaning, have no
application to this case; and while it is too late to deny that they have been given a
much more extended and artificial signification, still we ought to remember the
great caution shown by the Constitution in limiting the power of the States, and
should be slow to construe the clause in the Fourteenth Amendment as committing
to the Court, with no guide but the Court's own discretion, the validity of whatever
laws the States may pass.
Originalists, such as Supreme Court Justice Clarence Thomas, who rejects
substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who
has also questioned the legitimacy of the doctrine, call substantive due process a
"judicial usurpation"[43] or an "oxymoron."[44] Both Scalia and Thomas have
occasionally joined Court opinions that mention the doctrine, and have in their
dissents often argued over how substantive due process should be employed based
on Court precedent.
Many non-originalists, like Justice Byron White, have also been critical of
substantive due process. As propounded in his dissents in Moore v. East Cleveland[45]
and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued
that the doctrine of substantive due process gives the judiciary too much power
over the governance of the nation and takes away such power from the elected
40
branches of government. He argued that the fact that the Court has created new
substantive rights in the past should not lead it to "repeat the process at will." In his
book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive
due process" as a glaring non-sequitur. Ely argued the phrase was a contradictionin-terms, like the phrase green pastel redness.
Originalism is usually linked to opposition against substantive due process rights,
and the reasons for that can be found in the following explanation that was
endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always
bear in mind that the substantive content of the [Due Process] Clause is suggested
neither by its language nor by preconstitutional history; that content is nothing
more than the accumulated product of judicial interpretation of the Fifth and
Fourteenth Amendments."[46]
Originalists do not necessarily oppose protection of the rights heretofore protected
using substantive due process, and instead most originalists believe that such rights
should be identified and protected legislatively, or via further constitutional
amendments, or via other existing provisions of the Constitution.
The perceived scope of the Due Process Clause was originally different than it is
today. For instance, even though many of the Framers of the Bill of Rights believed
that slavery violated the fundamental natural rights of African-Americans, a "theory
that declared slavery to be a violation of the due process clause of the Fifth
Amendment.... requires nothing more than a suspension of reason concerning the
origin, intent, and past interpretation of the clause."[47]
7. Due process clauses in state constitutions
No state or federal constitution in the U.S. had ever before utilized any "due process"
wording, prior to 1791 when the federal Bill of Rights was ratified.
7.1 New York
In New York, a statutory bill of rights was enacted in 1787, and it contained four
different due process clauses.[27] Alexander Hamilton commented on the language of
that New York bill of rights: "The words 'due process' have a precise technical
import, and are only applicable to the process and proceedings of the courts of
justice; they can never be referred to an act of legislature."[48]
8. References
1. Jump up ^ Madison, P.A. (2 August 2010). "Historical Analysis of the
Meaning of the 14th Amendment's First Section". The Federalist Blog.
Retrieved 19 January 2013.
2. Jump up ^ The Text of Magna Carta (1215)
41
3.
4.
5.
6.
7.
Jump up ^ New York Ratification Resolution (1788)
^ Jump up to: a b Madison Speech (1789)
Jump up ^ U.S. CONST. amend. V.
Jump up ^ U.S. CONST. amend. XIV, § 1.
Jump up ^ Malinski v. New York, 324 U.S. 401, 415 (1945), (Frankfurter, J.,
concurring)
8. ^ Jump up to: a b Murray v. Hoboken Land, 59 U.S. 272 (1855)
9. Jump up ^ Browning v. Hooper, 269 U.S. 396, 46 S. Ct. 141, 70 L. Ed. 330
(1926)
10. Jump up ^ Posadas de Puerto Rico Associates v. Tourism Company of Puerto
Rico, 478 U.S. 328 (1986); see also Examining Board v. Flores de Otero, 426
U.S. 572 (1976) (applying equal protection to Puerto Rico).
11. Jump up ^ Noble v. Union River Logging, 147 U.S. 165 (1893)
12. Jump up ^ Bolling v. Sharpe, 347 U.S. 497 (1954)
13. Jump up ^ Huston, Luther A. (18 May 1954). "High Court Bans School
Segregation; 9-to-0 Decision Grants Time to Comply". The New York Times.
Retrieved 6 March 2013.
14. ^ Jump up to: a b Strauss, Peter. "DUE PROCESS". Legal Information Institute.
Retrieved 8 March 2013.
15. Jump up ^ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
16. Jump up ^ Goldberg v. Kelly, 397 U.S. 254, 267 (1970)
17. Jump up ^ Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
18. Jump up ^ Jess Bravin and Kris Maher (June 8, 2009). "Justices Set New
Standard for Recusals". The Wall Street Journal. Retrieved 2009-06-09.
19. Jump up ^ Herrera v. Collins, 506 U.S. 390 (1993): "We have, of course, held
that the Eighth Amendment requires increased reliability of the process by
which capital punishment may be imposed."
20. ^ Jump up to: a b "VITEK, CORRECTIONAL DIRECTOR, ET AL. v. JONES No. 781155 SUPREME COURT OF THE UNITED STATES". Forensic Mental Health
Services - Behavioral Health Network, Inc. Forensic Mental Health Services
Behavioral Health Network, Inc. Retrieved 28 December 2012.
21. Jump up ^ "Summary of VITEK, CORRECTIONAL DIRECTOR, ET AL. v. JONES
No. 78-1155 SUPREME COURT OF THE UNITED STATES". Forensic Mental
Health Services Behavioral Health Network, Inc. Forensic Mental Health
Services Behavioral Health Network, Inc. Retrieved 28 December 2012.
22. ^ Jump up to: a b c White, G. Edward (2000). The Constitution and the New
Deal. Cambridge, MA: Harvard University Press. pp. 244–46.
23. Jump up ^ White, G. Edward (2000). The Constitution and the New Deal.
Cambridge, MA: Harvard University Press. pp. [1].
24. Jump up ^ Palko v. Connecticut, 302 U.S. 319 (1937)
25. Jump up ^ Hawkins, Bryan (2006). "The Glucksberg Renaissance:
Substantive Due Process since Lawrence v. Texas". Michigan Law Review
105: 409, 412.
26. Jump up ^ Troxel v. Granville, 530 U.S. 57, 65 (2000), (Kennedy, J.,
dissenting): "Pierce and Meyer, had they been decided in recent times, may
42
well have been grounded upon First Amendment principles protecting
freedom of speech, belief, and religion."
27. ^ Jump up to: a b "New York Bill of Rights (26th of January, 1787)". The People
of the State of New York represented in Senate and Assembly.
http://www.nycourts.gov. Retrieved 7 March 2013.
28. Jump up ^ Williams, George. “The Federal Parliament and the Protection of
Human Rights”, Research Paper 20 1998-99, Parliament of Australia (1999):
“nations that had relied upon the common law tradition to protect
rights...have subsequently passed statutory Bills of Rights. For example, the
United Kingdom Parliament has enacted the Human Rights Act 1998 (UK),
while the New Zealand Legislature has passed the New Zealand Bill of Rights
Act 1990.... Parliament might move to protect a few core rights that are
obviously regarded as basic and fundamental to Australian democracy. This
should not include rights such as ‘due process of law’ in the Fifth and
Fourteenth Amendments to the United States Constitution, which has a
highly developed meaning in the United States context but no resonance in
Australia.”
29. Jump up ^ Griswold v. Connecticut, 381 U.S. 479 (1965): “I do not mean to
imply that the .... Ninth Amendment constitutes an independent source of
rights protected from infringement by either the States or the Federal
Government.”
30. Jump up ^ Congressional Research Service, Fourteenth Amendment: Rights
Guaranteed: Procedural Due Process: Criminal: “practically all the criminal
procedural guarantees of the Bill of Rights--the Fourth, Fifth, Sixth, and
Eighth Amendments--contain limitations which are fundamental to state
criminal justice systems and that the absence of one or the other particular
guarantees denies a suspect or a defendant due process of law.”
31. Jump up ^ Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226
(1897)
32. Jump up ^ Amar, Akhil (1992). "The Bill of Rights and the Constitution". Yale
Law Journal (New Haven: The Yale Law Journal Company) 101 (6): 1193.
doi:10.2307/796923. JSTOR 796923.
33. Jump up ^ Hurtado v. California, 110 U.S. 516 (1884): "when the same
phrase was employed ... it was used in the same sense and with no greater
extent."
34. Jump up ^ Letter from James Madison to Alexander White (Aug. 24, 1789)
35. Jump up ^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789).
36. Jump up ^ See, e.g., Adarand Constructors v. Peña, 515 U.S. 200 (1995);
Sugarman v. Dougall, 413 U.S. 634 (1973); Sherbert v. Verner, 374 U.S. 398
(1963).
37. Jump up ^ Shaman, Jeffrey. [2] Constitutional Interpretation: Illusion and
Reality] (Greenwood 2001).
38. Jump up ^ Chapman v. California, 386 U.S. 18, 22 (1967).
39. Jump up ^ "Commentary: trampling the bill of rights in defense's name." The
Kansas City Star, 14 December 2011: [3].
43
40. Jump up ^ Friedersdorf, Conor (20 December 2012). "Scandal Alert:
Congress Is Quietly Abandoning the 5th Amendment". The Atlantic. Retrieved
29 December 2012.
41. Jump up ^ Hyman, Andrew. "The Due Process Plank", Seton Hall Law Review
(forthcoming 2013), via SSRN.
42. Jump up ^ Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
43. Jump up ^ Chicago v. Morales, 527 U.S. 41 (1999), (Scalia, J., dissenting)
44. Jump up ^ U.S. v. Carlton 512 U.S. 26 (1994), (Scalia, J., concurring)
45. Jump up ^ Moore v. East Cleveland, 431 U.S. 494, 543 (1977), (White, J.,
dissenting).
46. Jump up ^ University of Michigan v. Ewing, 474 U.S. 214 (1985) quoting
Moore v. East Cleveland, 431 U.S. 494, 543 (1977) (White, J., dissenting).
47. Jump up ^ Robert Cover, Justice Accused 157 (Yale Univ. Press 1975)
48. Jump up ^ "The Founders' Constitution Volume 5, Amendment V, Document
13: Alexander Hamilton, Remarks on an Act for Regulating Elections, New
York Assembly (6 Feb. 1787) ; See also: The Papers of Alexander Hamilton.
Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia
University Press, 1961--79, Volume 4, Page 35.". Philipp B. Kurland and Ralph
Lerner. The Founders' Constitution by University of Chicago Press and the
Liberty Fund. Retrieved 7 March 2013.
B. Substantive due process
(From http://rationalwiki.org)
Substantive due process is the idea that the due process clause of the Fourteenth
Amendment regulates not only the procedures due a citizen before revoking a right
(procedural due process),[1] but also what rights may be revoked at all.
It has become a legal theory tied uniquely in the area of fundamental rights
jurisprudence - or, the protection of certain inalienable, yet undefined constitutional
rights. Originalists like Antonin Scalia sharply dissent from almost all cases
upholding substantive due process, believing that there are no fundamental rights if
they are not defined by the constitution, or "discoverable from American history."
Contents


1 Standard of review
2 Doctrinal history
o 2.1 Lochner Era, and before
o 2.2 Griswold v. Connecticut
o 2.3 The Roe controversy, and its progeny
44

Footnotes
1. Standard of review
Substantive due process protects all rights from deprivation without rational basis that is to say, the government may not burden exercise of a right without having a
reason for doing so. However, this reason may be pretextual or barely sufficient
under rational basis review, and thus the protections of substantive due process for
blanket rights are very weak indeed.[2]
Rights that are deemed "fundamental," though, may only be abridged if a compelling
state interest exists, and the abridgment is narrowly tailored to suit that interest. In
other words, to abridge a fundamental right, the state must pass "strict scrutiny."
The question of what rights are fundamental is essential to this doctrine, as the
nature of the right determines if its abridgment receives cursory or fairly in-depth
review. Defining rights as "fundamental" is a popular judicial sparring ground for
conservative and liberal jurists. Different formulations have been used, based on the
shifting tides of Supreme Court opinion, to define when a right is fundamental.
Conservative jurists, like Antonin Scalia or William Rehnquist, state that a right is
only fundamental if it is deeply rooted in the nation's history, or in the text of the
Constitution, or necessary to the foundations of "ordered liberty" in a civil society.[3]
In contrast, liberal jurists prefer a formulation that protects all rights against
"arbitrary restraint."[4] This formulation protects "liberty's more transcendent
dimensions" from encroachment by the majority, and is a more robust conception of
due process.[5] This formulation also has support in earlier cases.[6] Also, liberal
jurists suggest that a desire to enforce "the morality of some" upon the entirety of
society compromises "the liberty of all." This view is currently the dominant one,
although the tenure of Chief Justice Roberts may see a renewed ascendancy of the
alternative view.[7]
The standard of review defines the scope and utility of the doctrine. The "arbitrary
restraint" formulation makes substantive due process a robust counter-majoritarian
doctrine, designed to protect the rights and actions of the minority against
abridgment by a majority eager to enforce its view of morality upon the nation. The
alternative conception - the "tradition"-based inquiry noted above in Glucksberg rather makes the due process clause fairly weak in substantive protection,
conceiving of the judiciary as too limited to serve as a robust counter-majoritarian
branch.
2. Doctrinal history
2.1 Lochner Era, and before
45
The justly reviled decision Dred Scott v. Sandford was the first to suggest that the
Constitution protects certain rights (free use of "property," in this case) from
intrusion by the government, even if constitutional safeguards had led to a
procedurally "correct" taking. Although Dred Scott was thankfully overturned by the
Reconstruction Amendments, the seeds of substantive due process were sown in the
constitutional landscape.
The doctrine was later, famously, picked up by the Court in Lochner, a decision
which held that a New York State law regulating the hours and working conditions
of bakery employees intruded too far into the "fundamental right" for an employee
and an employer to freely contract. This fundamental right could not be abridged,
even by fair legislative processes. This line of jurisprudence - which came to be
known as "economic" substantive due process - came to an abrupt end in the wake
of the Great Depression, which forced a nationwide crisis of conscience in the
doctrines of full and free laissez-faire, the philosophical underpinnings of Lochner.[8]
It was fully overturned in West Coast Hotel.
Another famous case picked up substantive due process as a constitutional "hook"
before it became popularized in the 1970s - the famous case outlawing
miscegenation statutes, Loving v. Virginia. The Lovings, a mixed-race couple, sought
to have their marriage accepted in their home state of Virginia, which, like many
other Southern states, had outlawed mixed-race marriages. Although the Court
invalidated this ban (forcing Virginia to recognize the Lovings' marriage and striking
another blow against Jim Crow laws and racism) on equal protection grounds, the
case included a line near the end, almost as an afterthought, describing the right to
marriage as a substantive right, fundamental to human life, which the state could
not lightly intrude upon. Due process, though, would not be picked up again by a
discrimination case for another 40 years.[9]
2.2 Griswold v. Connecticut
The case Griswold v. Connecticut emerged as a test case of a rarely-enforced 1879
law. Specifically, Connecticut had forbidden by statute the sale of contraception
materials. Griswold, the petitioner-physician in the case, was indicted for selling
condoms. The case came to the Supreme Court, where the Court struck down the
Connecticut statute as abridging a fundamental right to privacy in the "marital
bedroom."
Specifically, the Court stated, building on the "enumerated/implied" distinction set
forth in early Supreme Court jurisprudence,[10] that the enumerated rights of the Bill
of Rights emanate "penumbras," filled with subsidiary rights that give meaning to
the enumerated rights, and without which the enumerated rights would have no
meaning. The Court wrote that the Fourth Amendment guarantee of freedom from
search & seizure, the First Amendment guarantee of freedom of expression, and
others, all accumulated to prove a right to freedom from intrusion into a couple's
46
intimate affairs. By banning condoms, the state had gone too far, and run afoul of
this fundamental right.
2.3 The Roe controversy, and its progeny
A special case of substantive due process jurisprudence are those rights which
involve a degree of "third-party harm"; that is, the chance that someone or
something else may suffer by exercise of the right. Depending on the nature of the
right involved, and its balance against the possibility of harm, rights involving a
third-party harm may be curtailed or completely engulfed by the potential for harm.
The right to assisted suicide, for instance, is wholly subsumed by the potential for
abuse.[11]
The right to choice in family planning, or, the right to an abortion, is another right
carrying a possibility of a third-party harm. The Court held in Casey that this right,
by nature of the balance of the harm against the right, would be managed by the
"undue burden" test.[12] That is that the exercise of the right will not be unduly
burdened. A burden that is "due," however, may be one that recognizes the state's
interest in preventing abortions where avoidable. This is the ultimate synthesis of
the Roe v. Wade debate, an attempt at a synthesis between the left-wing view
(abortion is a right that cannot be abridged) and the right-wing view (abortion is
always wrong) that allows for exercise of the right under limited circumstances.
This framework fits neatly within Justice Stevens' view of fundamental rights law as
an expression of the freedom from "arbitrary restraint": that is, the restraint upon
abortion rights, where not "undue," are not "arbitrary."
3. Footnotes
1.
2.
3.
4.
5.
6.
7.
8.
9.
↑ Procedural due process is dealt with in the Mathews v. Eldridge framework.
↑ Lawrence v. Texas may have changed this. See the article for a discussion.
↑ Washington v. Glucksberg, Rehnquist, C.J., for the Court.
↑ Glucksberg, Stevens, J., concurring.
↑ Lawrence v. Texas, Kennedy, J., for the Court.
↑ 'Poe v. Ulman, Harlan, J, dissenting.
↑ Planned Parenthood of SE Pennsylvania v. Casey, Opinion of the Court, Part I.
↑ See generally Casey v. Planned Parenthood
↑ Lawrence v. Texas, resting a decision to invalidate a Texas law criminalizing
sodomy on substantive due process grounds, with a hint of equal protection
rhetoric.
10. ↑ See e.g. McCulloch v. Maryland.
11. ↑ Washington v. Glucksberg.
12. ↑ Casey, supra.
47