CHAPTER
4

Articles I Through III: Separation of Powers

In This Chapter

• Article I
• Article II
• Article III

The first three original Articles of the Constitution, also called the “Powers” section of the Constitution, defined the three branches of government: legislative, executive, and judicial. This part of the Constitution also set up the separation of powers, a sort of rock-paper-scissors arrangement aimed at keeping any one branch of government from amassing too much power.

The legislative branch can pass legislation for the president to sign into law, but the legislature has the authority to override a presidential veto. The president has broad powers to appoint government administrators and regulators, but many of the top appointees are subject to approval by the legislative branch. The president makes appointees to sit on the federal courts, but those also are subject to legislative approval. And federal and Supreme Court justices can overturn laws approved by the legislative branch and regulations enforced by the executive branch if they are ruled unconstitutional. It’s all about maintaining balance.

Article I: The Legislative Branch

Article I establishes the branch of government that includes the elected representatives of the people, where laws are proposed, debated, and voted up or down.

The framers of the Constitution had choices for how to set up the new nation’s Congress. At first they considered a unicameral system—a single legislative body, like the old Continental Congress. But how to pick the representatives? Should each state have the same number of representatives? Or should representation be based on population?

Balancing and compromising, as they so often did, the framers ended up with a bicameral legislature with two houses: the House of Representatives, with members chosen according to population, and the Senate, which allowed two members for each state no matter what their population.

Note that when quoting from the text of the Constitution, here and elsewhere, I’ve preserved the quaint original capitalization, punctuation, grammar, and spelling, such as chuse for choose. In addition, the phrases in italic represent language that was not in the original articles but added later by amendments.

Section 1: Congress

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

The “vesting” language in effect prohibits direct voting by citizens and prohibits the other branches of government, the executive and the judicial, from enacting laws. Most states have a mechanism for referendum voting, allowing citizens to vote directly on proposed state legislation, but this clause prohibits national referendum voting.

Section 2: The House of Representatives

“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.

“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.

“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. 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.

“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Section 2 establishes the House of Representatives, the “people’s house,” and specifies that elections will be held every 2 years for all members of the House. When a vacancy occurs between regular elections, the governor of that state can call a special election. This section allowed the states to set the requirements for citizens to be eligible to vote for House candidates, but later amendments said states could not keep people from voting because of their race or their sex, if they are at least 18 years old, or if they did not pay a poll tax.

Interestingly, there is no requirement that members of the House of Representatives actually live in the district they represent, although they are supposed to be at least 25 years old and have been a citizen of the United States for at least 7 years.

Each state must have at least one representative, but otherwise House districts (there have been 435 since 1911) are spread proportionately across the nation by population. A sparsely populated state such as Wyoming might have only one representative, while Illinois might have several—densely populated Chicago might have five members, plus several from the outlying suburbs. The Constitution called for a census every 10 years to reconfigure congressional districts in response to population shifts.

Note the language in the third paragraph of Section 2 that mentioned “three fifths of all other Persons,” in determining population for the purposes of deciding how many representatives each state would send to Congress. In effect, the framers of the Constitution were counting a slave as “three fifths” of a person as a compromise designed to limit the power in Congress of slave-holding states. The Fourteenth Amendment, after slavery was abolished, removed the three-fifths clause, and today all inhabitants of a state are counted, whether they are citizens or not.

When a House seat becomes vacant, a new election is held. When a Senate seat becomes vacant, the governor of the state can appoint a replacement.

That same clause, beginning “Representatives and direct taxes shall be apportioned …,” was aimed at ensuring each state’s share of any taxes collected by the federal government would be proportionate to the state’s population. The Sixteenth Amendment changed this so individual income taxes could be collected.

The Constitution borrows the British Parliament’s procedure for impeaching a president; only the House can vote to impeach, and it is up to the Senate (Section 3) to put an impeached president on trial.

Finally, this section allows the House to choose its own Speaker. Nothing says the Speaker actually has to be a member of the House, but so far every one in American history has been.

Section 3: The Senate

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

“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.

“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.

“The Vice president of the United States shall be president of the Senate but shall have no Vote, unless they be equally divided.

“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.

“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.

“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.”

Senators were originally chosen by state legislatures, but that was later changed so voters chose them directly for 6-year terms. Unlike House seats, which came up for reelection every 2 years, roughly one third of the Senate seats come open every 2 years. Senators need to be older than representatives—30 years old—and a citizen for 9 years. In addition, senators, like members of the House, must be residents of the states from which they are elected. The vice president was named president of the Senate but can vote only to break ties.

When the House votes to impeach a president, or any other federal official or judge, the Senate in effect acts as a jury, and a two-thirds majority is needed to convict. If a president has been impeached, the chief justice presides over the trial in the Senate. Someone who is convicted is tossed out of office, can be barred from holding any other office, and may still face criminal charges.

Section 4: Elections and Sessions

“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.

“The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”

The states oversee federal elections, but this section allowed Congress to set a standard date for congressional elections. That turned out to be the Tuesday following the first Monday in November of even-numbered years. Congress could simply have specified the first Tuesday in November but didn’t want to conflict with November 1, the religious holiday All Saints’ Day, when it falls on a Tuesday.

In the second paragraph, the requirement to meet on the first Monday meant that because the new Congress originally was not sworn in until the following March, the gathering in December was a lame duck Congress. The Twentieth Amendment changed the rules so newly elected or reelected members of the House and Senate took office in early January.

Section 5: Housekeeping

“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.

“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.

“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 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.

“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.”

This is a housekeeping section for Congress, allowing the Senate and House to make their own rules. For example, when a 29-year-old won election to the Senate, the Senate bent its rules to let the young senator-elect wait a few months until his thirtieth birthday to assume his seat. The quorum clause requires each chamber to have a majority present to do business, but this rule is widely ignored.

Each house can censure one of its own members by a simple majority vote, but it takes a two-thirds majority to expel a member.

Each chamber must keep a journal of what happens on the floor, but it can keep anything out of the journal or put things into the journal that didn’t actually happen. For example, members of Congress sometimes have speeches entered in the Congressional Record without ever actually giving the speech.

Neither house can adjourn without the consent of the other for more than 3 days, but this simply means that the House and Senate frequently meet the constitutional requirement simply by calling themselves to order every 3 days—often for less than a minute—without actually doing any business.

Section 6: Pay and Privileges

“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. 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.

“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.”

Under this section of the Constitution, members of Congress are allowed to set their own pay, but they’re prevented from starting to collect the raise until after the next election. To prevent harassment from the executive branch, special privileges granted to members of Congress include immunity from arrest for minor crimes—in effect, this barred “civil” arrests, which are rare these days—while they are in session or on their way to or from Congress. Members of Congress can be arrested on criminal charges, either misdemeanors or felonies; however, they can’t be sued for slander for remarks on the floor.

In another move toward financial propriety, and to shore up the separation of powers, members of Congress must wait until their terms expire to take higher-paying jobs in government. They can’t resign one day and start collecting the higher pay the next day.

Section 7: Legislation

“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.

“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 approves 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.

“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 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.”

Senators or representatives can introduce bills, but all legislation raising revenue—tax bills, in other words—must originate in the House. The House also claims it must initiate appropriations bills—spending bills. The Senate historically has disagreed, but in practice, all appropriations bills do originate in the House. If the Senate initiates a spending bill and sends it to the House, the House simply returns it without any action.

The Presentment Clause sets forth the way a bill becomes law: when both chambers have approved a bill in exactly identical forms, it is sent to the president, who has 10 days (not counting Sundays) to sign it so it becomes law or veto it (send it back to the originating chamber with an explanation of his objections). The bill can still become law if both chambers, by two-thirds majorities instead of the usual simple majorities, override the president’s veto. If the president does not return a Congress-approved bill within 10 days, it becomes law—unless Congress has adjourned in the meantime. If Congress has adjourned, this is called a pocket veto, and the bill dies because the president could not return it to the House or Senate.

This section of the Constitution also includes one of its most important provisions—the procedure for changing the Constitution itself. Two thirds of both houses of Congress can approve a proposed amendment and send it to the states for ratification. The president doesn’t get a crack at a veto—a clear example of the framers’ intentions to limit the power of the executive branch. The states then vote on ratification. This is usually done by each state’s legislature, but an amendment can instead call for each state to hold a ratification convention. Either way, a simple majority is needed for ratification. When three fourths of the states have ratified an amendment, it becomes part of the Constitution.

Section 8: Enumerated Powers

“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;

“To borrow Money on the credit of the United States;

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

“To establish Post Offices and post Roads;

“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;

“To constitute Tribunals inferior to the supreme Court;

“To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

“To provide and maintain a Navy;

“To make Rules for the Government and Regulation of the land and naval Forces;

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

“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;

“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

“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.”

The sweeping provisions of this part of the Constitution, known as the “enumerated powers,” give Congress a laundry list of its authority. For example, 1 of the 17 powers specifically listed allows Congress to establish a national post office. But Congress, obviously, has also established a Social Security system, a Department of Education, and many other government agencies and functions that are not enumerated. How?

The opening clause of Section 8 is known as the General Welfare Clause, allowing Congress to provide for the common defense and general welfare, without defining either. Under a broad interpretation of this clause, Congress has been able to decide what’s good for the country and then pass laws and spend money to make it happen. A narrow interpretation of the Constitution, particularly among those who are critical of the welfare state, maintains that a broad interpretation would in effect give Congress unlimited power—something the framers did not contemplate.

The third clause is the wide-ranging Commerce Clause, allowing Congress to regulate trade with foreign nations and among the states. It originally was intended to keep the 13 states from erecting trade barriers or tariffs that would prevent the free flow of goods and services within the new nation. It also gave federal laws and regulations precedence over conflicting states’ rules.

In the twentieth century, as the government began regulating more aspects of everyday life and work, the clause provided Congress much of its authority to impose rules on companies that do business across state borders. Libertarians protest that Congress has assumed more regulatory power than the Constitution intended, including to some noncommercial activities conducted entirely within states. In several cases, the Supreme Court has ruled that Congress has gone too far, particularly in limiting New Deal programs in the 1930s. In a more recent case, however, the Supreme Court ruled that the Commerce Clause applied to a person growing marijuana for personal medical use, even though no profits or interstate commerce was involved.

Other clauses in Article I, Section 8, of the Constitution give Congress the power to pass laws relating to a broad range of areas: bankruptcy, coining money, counterfeiting, the value of U.S. dollars on the foreign currency exchanges, the post office, standards for weights and measures, copyrights, and patents. It is up to the federal government, not the states, to determine who is and who is not a citizen.

The War Powers Clause says only Congress can declare war, although the specifics of how and when this can happen are left unsaid. Congress has declared war only five times in U.S. history, and always at the request of the president—most recently for World War II in 1941.

After presidents waged undeclared wars in Korea in the 1950s and Vietnam in the 1960s and 1970s, Congress passed the War Powers Resolution of 1973. In theory, this act was designed to have Congress and the president share the power to declare war, but in practice, it has given the president more authority—perhaps more than the Constitution intended, according to some critics—to wage war with or without the Congressional approval. The president has engaged in military conflicts several times since then with Congress’s approval but without a formal declaration of war, including in Iraq in 1991, Afghanistan in 2001, and Iraq again in 2003.

Congress has the authority to establish and finance an army, but the framers’ misgivings about standing armies led them to require that military funding not be for more than 2 years at a time—which is irrelevant today, because military budgets are routinely approved each year. Congress still has the superior authority over the executive branch in terms of rules and regulations for the land and naval military forces, although in practice, the executive branch, through the Pentagon, has much more to do with overseeing the military. The president has the authority to call out a state’s militia, as when National Guard troops were used to enforce desegregation in the 1950s and quell urban unrest in the 1960s.

This section also gives Congress authority to oversee the District of Columbia’s locally elected government, although many residents of the nation’s capital believe they would be better off if their city had more autonomy.

The last clause of Section 8 is the Necessary-and-Proper Clause, which affords Congress broad authority to do whatever it needs to do to carry about the section’s enumerated powers—including reorganizing the executive or judicial branches. A landmark case was McCulloch v. Maryland in 1819, when the Supreme Court endorsed the concept of a national bank despite strong opposition from those who feared that a federal banking system would weaken the states. Justice John Marshall said all the powers in the clause need not be enumerated and that the General Welfare and the Commerce Clauses gave Congress authority to decide a national bank was necessary and proper.

One of the most important U.S. Supreme Court cases in recent years was the 2012 decision that upheld, by a 5–4 margin, the legality of the Affordable Care Act (ACA), also known as Obamacare. The ACA, which aimed to make health care more easily available and affordable for millions of uninsured or underinsured Americans, was one of the most controversial social-engineering moves in modern American history. Conservatives, including many Republican members of Congress, saw the ACA as unconstitutional, and it was the subject of many legislative and judicial attacks. Opponents were unable to mount enough support in Congress to overcome a veto from President Obama, but the court cases eventually made their way to the Supreme Court.

Several state and federal cases were rolled into one case before the Supreme Court: National Federation of Independent Business v. Sebelius. (NFIB is an association of small businesses, and Kathleen Sebelius was President Obama’s Secretary of Health and Human Services, the federal department that administered the ACA.) The case was seen as largely hinging on the Supreme Court’s interpretation of Article I, written all those many years ago in Philadelphia by James Madison and other framers. The key portions of the ACA under attack were the individual mandate, which imposed a financial penalty on uninsured people who were eligible for health insurance coverage but refused to sign up for it, and the Medicare penalty, the government’s threat to withhold all Medicare spending from any state that did not expand its Medicare program to facilitate wider use of the ACA.

The court ruled that the Commerce Clause did not authorize the individual mandate because Article I was aimed at commercial activity—not inactivity, the refusal to buy an ACA policy.

However, the majority decision—bitterly contested in dissents by the court’s conservative wing—found that the individual mandate was authorized under Article I’s Taxing and Spending Clause. The penalty on uninsured people who refused to buy ACA coverage was characterized by the court as a tax, not a fine.

Section 9: Restrictions on Congress

“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.

“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.

“No Bill of Attainder or ex post facto Law shall be passed.

“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken.

“No Tax or Duty shall be laid on Articles exported from any State.

“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.

“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.

“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.”

This section is noted, or notorious, for the compromise that allowed the importing of slaves to continue until 1808. Most of the members of the Constitutional Convention in 1787 abhorred slavery—even the slave owners such as Ben Franklin said it was immoral—but they needed to keep the slave-owning states on board. They also allowed a tax of up to $10 per year per slave. On January 1, 1808, the first day it was possible to outlaw bringing new slaves into the country, Congress did so.

There’s a bit of irony, perhaps, in one brief phrase in this section. The colonists cherished the right of habeas corpus under British rule, and in fact, it was one of the reasons for the American Revolution. This part of the Constitution prohibits suspending the writ of habeas corpus except in cases of rebellion or invasion. The Supreme Court later shored up this provision by holding that habeas corpus could not be suspended as long as the civil courts were operating. This section also bans bills of attainder and ex post facto laws.

The provision against “direct” taxes led the Supreme Court to declare income taxes unconstitutional until they were expressly legalized by the Sixteenth Amendment.

This section also prohibits Congress from taxing exports from any state, prohibits Congress from granting any titles of nobility, and prevents any American government official from accepting any office or title—or any meaningful gift—from a foreign country. That’s why a president can’t keep all the loot collected on those grand foreign tours. It all belongs to the people of the United States and is turned over to the government.

Section 10: Restrictions on the States

“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.

“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 its 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.

“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.”

This section aims to make it clear to states that some powers are solely the providence of Congress and the federal government. States are not allowed to enter into treaties or alliances, coin money, tax imports or exports, or have their own warships or standing armies. However, states were allowed to have local militia—today’s National Guard—with federal oversight. States also may not declare war or grant titles of nobility. (Presumably a Kentucky colonel is not noble enough to violate the Constitution.)

The first paragraph contains the sometimes-controversial Contracts Clause, which bars states from interfering with contract law. In an 1810 case, Fletcher v. Peck, the Supreme Court ruled that the state of Georgia could not annul contracts made by corrupt members of the state legislature to sell off state lands, even if the deals were blatant with bribery.

Article II: The Executive Branch

Article II sets out the executive branch of government, including the president and vice president, and defines their authority.

Section 1: President and Vice President

“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:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

“The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the president of the Senate. The president of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the president, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately 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 Representatives 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.

“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.

“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.

“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, the Same shall devolve on the Vice president, 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.

“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.

“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.’”

The chief executive is called president. Both president and vice president are elected to 4-year terms. The Constitution originally set no limit on the number of terms a president could serve, and George Washington may well have been able to serve as many 4-year terms as he wanted. Washington thought no more than two terms were proper, and every president followed that tradition until Franklin Delano Roosevelt, who was elected four times. After his death, the Twenty-Second Amendment officially limited the president to two terms.

The president and vice president are not elected directly by the people but instead by electors chosen by the state legislatures. Each state has the same number of electors as it has members in Congress—representatives and senators combined. However, no representatives or senators can serve as electors.

Today, there are 538 electors in what came to be known as the Electoral College, representing 100 senators, 435 representatives, and 3 representatives from the District of Columbia. A presidential ticket (president and vice president) that wins a state is presumed to win all the electoral votes from that state. On election night, returns are counted unofficially, state by state, and a presidential candidate is declared the winner by amassing 270 or more electoral votes, a majority.

The original language, calling for each elector to vote for two candidates, one of them from a different state, proved cumbersome as the House struggled before declaring Thomas Jefferson the new president after a tie vote with Aaron Burr in 1800. Under changes implemented by the Twelfth Amendment, after a national election in November, electors officially cast their ballots in December for both president and vice president, and Congress formally counts those votes in January. If no candidate has a majority of the electoral votes, the House of Representatives chooses the next president and vice president.

In practice, the actual popular vote does not count, and there have been instances of a presidential candidate getting the most votes nationally but losing the election. That’s what happened in 2000, when George W. Bush won more electoral votes even though more people across the nation voted for Al Gore.

Section 1 of Article II also requires that both the president and the vice president be “natural born” citizens who are at least 35 years and who have lived in the United States for at least 14 years. However, no courts have ruled on what “natural born” means, and whether it applies to citizens born in overseas territories or to parents who are citizens living in other countries. The eligibility requirements have ruled out presidential bids for a number of popular figures over the years. For example, it would take a Constitutional amendment to allow Austrian-born Arnold Schwarzenegger to become president. Two other prominent popular public figures who were considered presidential timber, at least in some circles, but were ineligible for being born abroad included statesman and lawyer Frederick Lehman, born in Prussia in 1853, and comedian Bob Hope, born in England in 1903.

The Twenty-Fifth Amendment superseded the section on succession, providing for the vice president to assume the presidency if the president is disabled or leaves office. This section also prohibits Congress from changing a president’s salary ($400,000 a year as of the 4-year term expiring in 2008) during that term and prohibits the president from accepting any other pay while in office.

The familiar oath of office administered by the chief justice at the inauguration, beginning, “I do solemnly swear that I will faithfully execute the office of the president …,” is also spelled out in this section.

Section 2: Presidential Powers

“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 respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

“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.

“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.”

The president is commander in chief of the military, has the authority to grant pardons or reprieves, and may require “the principal officer” of executive departments—Cabinet officers, in other words—to offer written advice. The president can make treaties with the approval of the Senate and can appoint judges and ambassadors, also with the approval of the Senate.

This section specifically authorizes the “recess” appointments that have become controversial under recent presidents. Rather than risking a tough confirmation battle and possible rejection, presidents can appoint judges and other officials while the Senate is in recess and cannot confirm the nominations. The political thinking holds that it is more difficult for the Senate to reject a nominee who is already serving.

The president—this article specifies “he” but presumably applies if and when a woman is elected president—can fire many appointed officials but not federal judges, who are appointed for life to insulate them from political pressures.

This section lists a number of presidential responsibilities, including making an annual State of the Union speech to Congress, calling the House or Senate or both into special session, commissioning military and Foreign Service officers, receiving foreign ambassadors, and generally executing or enforcing the laws of the United States.

The “missing clause” from this section covers executive privilege—a president’s authority to withhold information from the courts, Congress, and the public. The Supreme Court has agreed that the president does have limited executive privilege but cannot withhold information simply by claiming that releasing it would harm the presidency or threaten national security. Richard Nixon, for example, tried to withhold the secret tapes from his office on the grounds of executive privilege, but the Supreme Court rejected his claim and ordered the tapes released, which led to Nixon’s resignation in the face of possible impeachment.

Section 4: Impeachment

“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.”

This section allows Congress to remove the president, vice president, and other members of the executive branch, as well as federal judges. The House votes for impeachment, and the Senate then sits as the jury at a trial. If convicted, the official is removed from office and may be barred from holding any other federal government post.

The contentious part of this section is what constitutes “high crimes and misdemeanors.” In practical matters, the House decides what are or aren’t high crimes and misdemeanors.

Section 1: Federal Courts

“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.”

This section makes it clear that there will be one, and only one, Supreme Court and leaves it to Congress to create the lesser federal courts. The main courts today are the District Courts, but there are also regional Circuit Courts of Appeal, an intermediate level where losers in the District Courts can appeal. The Supreme Court generally hears only cases that have been appealed from the Circuit Courts.

Federal judges are appointed by the president with the approval of the Senate and can be removed only through impeachment, which is so rare that it has happened only a handful of times in American history.

This section makes it clear that the federal courts have jurisdiction for all cases arising from the Constitution or from federal law and for all conflicts that cross state lines, such as disputes between different states or lawsuits between citizens of different states. However, the Eleventh Amendment prevents a state from being sued in federal court. Federal courts also have jurisdiction over all cases involving foreign governments and admiralty and maritime cases. This section also guarantees the right to trial by jury in criminal cases and lists certain cases that can be taken up directly by the Supreme Court without appeal from lower courts.

One of the biggest issues surrounding the federal judiciary, from the earliest days of the United States through today, is the authority of the courts to review, and overturn, laws and regulations enacted by other branches of the government. On one hand, the Constitution never specifically mentions judicial review; on the other, the system of checks and balances would not work nearly as effectively if it was up to Congress and the president to decide whether their actions were constitutional or not.

A court can overturn existing law—literally throw it out and wipe it off the books—by finding that the law is itself illegal. This is what happens, for example, when a law is declared unconstitutional. Besides nullifying legislation, a court also can declare administrative regulations and procedures illegal. Sometimes the courts offer suggestions or guidelines about how to correct the procedures. This is what has happened in a series of court rulings that shaped the way the death penalty is administered by states. A new set of rules or guidelines set forth by a court stands as the law unless and until superseded by legislative action or a higher-court ruling.

A court can overturn existing laws, regulations, and procedures by finding that they violate existing law, including the Constitution. Our judicial system follows precedent, which means courts also can overturn all or part of existing laws because of conflicts with previous court rulings. Courts are typically reluctant to overturn their own precedents, and the Supreme Court has been known to go through gymnastics of creative reasoning to reach a desired result without flatly overruling an earlier court decision.

In truth, however, courts can find many reasons for overturning existing law, including “public policy.” Whatever the reason, critics often complain about judicial activism and criticize “activist judges” for overturning legislation approved by the public’s elected representatives.

The debate continues today, in law schools, on blogs, in courtrooms, and within the chambers of the Supreme Court itself: when and how the courts can and should exert the authority to review legislation.

Section 3: Treason

“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.

“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.”

Treason, the only federal crime specified in the Constitution, is defined as an act of war against the United States, or lending “aid and comfort” to its enemies. Cases of treason have been rare in American history, although there are some notable instances. Former Vice President Aaron Burr, fleeing murder charges after killing Alexander Hamilton in a duel in 1804, was tried and acquitted of treason in 1807 after being accused of trying to muster an army to establish a rival nation, perhaps in Mexico, with himself as president.

Many wanted the so-called American Taliban, John Walker Lindh, to be charged with treason after being captured fighting American troops in Afghanistan in 2001, but Walker ended up accepting a 20-year sentence and agreeing to plead guilty to lesser charges.