CHAPTER
5

Articles IV Through VII: Making the Federal System Work

In This Chapter

• Article IV
• Article V
• Article VI
• Article VII

Articles IV, V, VI, and VII together establish a framework for relationships among the states and their relationships with the federal government, including provisions for admitting new states to the union and amending the Constitution.

Article IV: Full Faith and Credit

In many ways, the original 13 colonies viewed themselves, and each other, as more like independent mini-nations than as part of a single entity, and one colony did not necessarily have to respect the laws of another colony. The Articles of Confederation allowed the fledgling states to maintain much of that independence from each other. Article IV of the Constitution, however, redefined the relationships among the states, requiring them to recognize and honor each other’s laws.

Section 1: Full Faith and Credit

“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.”

The Full Faith and Credit Clause is one of the most important in the Constitution. The clause requires the states to honor each other’s laws, records (including licenses), and court decisions. If you win a legal case in one state, that same case cannot be reopened in another state.

One of the key factors back when the Constitution was being debated was that this provision would allow a plantation owner from a slave-holding state to travel with his slave to a nonslave state and the slave would not become free merely by setting foot in a free state. Without this provision today, your driver’s license might not be recognized by the next state.

The Full Faith and Credit Clause has had a major significance on domestic law, including marriage and child custody issues. For example, it presents a major obstacle to a divorced parent who is unhappy with a court’s child custody orders in one state and takes the kid to another state to seek a new custody order.

Cases

“The primary purpose of this clause,” the Supreme Court said of the Full Faith and Credit Clause in a 1948 case, “was to help fuse into one Nation a collection of independent sovereign States.”

And without this section of the Constitution, your spur-of-the-moment marriage in Las Vegas might not be recognized back home. Hawaii sent ripples across the mainland’s legal landscape in 1993, when the state courts recognized gay marriage. Three years later, Congress enacted the Defense of Marriage Act, which defined marriage as between a man and a woman. The act also said that despite the Full Faith and Credit Clause, states could refuse to recognize same-sex marriages recognized as legal in other states.

That all changed, of course, with the subsequent Supreme Court rulings citing constitutional grounds beyond the Full Faith and Credit Act that struck down the Defense of Marriage Act and recognized same-sex marriage in all 50 states (see Chapter 13).

Section 2: Privileges and Immunities

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

“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.

“No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation there, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

The Privileges and Immunities Clause was a key part of the framers’ desire to create a seamless nationwide economic union, where residents of one state could work and travel and do business in other states, too. This clause ensures that when you visit another state, you have the same rights and privileges as the residents of that state have, and states you are visiting cannot discriminate against you just because you are a nonresident. For example, a state cannot say you have to be a resident of that state to get a job there.

However, the courts have outlined some exceptions. For example, you cannot vote in another state without meeting that state’s requirements, including residency.

What It Means to You

Despite the Privileges and Immunities Clause, the courts have ruled that states can charge nonresidents higher fees for services or privileges that residents support with their taxes. For example, nonresidents can be required to pay more for their fishing licenses, and out-of-state tuition can be higher at state-funded colleges and universities for nonresidents.

The second part of this section provides for extradition—the return of an accused criminal to the state where the alleged crime occurred. If you commit a crime in one state and run away to another state, the police in that state can arrest you and hold you. The state where the offense allegedly occurred can then request extradition. You can fight it in court, but accused prisoners are usually routinely extradited.

Cases

Mahon v. Justice (1888): When an armed posse from Kentucky captured a suspected criminal in West Virginia and took him back to Kentucky for trial, the accused man appealed. The Supreme Court nonetheless ruled he could be tried and convicted in Kentucky.

The final part of this section, the Fugitive Slave Clause, allowed slave owners to pursue runaways into nonslave states and bring them back. It was overturned by the Thirteenth Amendment.

Section 3: The Equal Footing Clause

“New states may be admitted by the Congress into this union; but no new states 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.

“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.”

The framers of the Constitution envisioned the United States growing. More states could be created as areas of the Western frontier—such as what is now Tennessee and Ohio—were settled. And perhaps the new nation would acquire more of the foreign-held land west of the Mississippi River. This section of the Constitution allows for Congress to admit new states to the union. But Congress has to give permission. The District of Columbia, for example, tried to become the fifty-first state but was turned down by Congress in 1993.

This section says no new state could include land that had been within another state, unless that state approved. In addition, a new state could not be formed by a merger of two states unless they both approved. No hostile takeovers, in other words. Out of the original 13 colonies, 5 additional states were created: Vermont was originally part of New York, Kentucky was part of Virginia, Tennessee was part of North Carolina, Maine was part of Massachusetts, and West Virginia was part of Virginia.

In the latter case, Virginia didn’t actually approve of creating West Virginia. But when West Virginia declared independence and asked Congress for approval to become a state soon after the Civil War ended, the Reconstruction Congress said Virginia had forfeited its right to keep West Virginia by fighting on the Confederate side in the war.

This section doesn’t specifically address the issue, but subsequent court cases have held that new states would have equal status to the other states. “Equality of constitutional right and power is the condition of all the States of the Union, old and new,” the Supreme Court ruled in an 1883 case. Similarly, new states cannot have more powers than the other states. Texas was an independent nation before it joined the Union and, like most independent nations, claimed authority over waters up to 3 miles from its shore. When Texas became a state, however, it ceded that authority to the federal government, just like the other states did. The federal government also has control of all public lands within the states as well as authority over American-owned territories, including American Samoa, Guam, Puerto Rico, and the Virgin Islands.

There are no provisions in the Constitution for a state to withdraw or secede. So just as Northern California cannot secede from the rest of California and declare itself a state, it cannot secede and declare itself an independent nation. The courts have held that the Constitution stands for the “perpetuity and indissolubility of the Union”—and of course, the federal government launched the bloodiest war in American history when the Confederate states, using the same reasoning and even some of the same language as the Declaration of Independence, tried to declare themselves a new and separate nation.

Section 4: The Guarantee Clause

“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.”

The Guarantee Clause says that the federal government will ensure each and every state has a “republican” form of government, but the clause doesn’t define republican. One theory is that it simply means there can never be a king of Nebraska. A more practical view is that every state must have a government of representatives elected by the people.

Cases

Luther v. Borden (1849): In this case from Rhode Island, the Supreme Court said it is up to Congress, not the courts—not even the Supreme Court—to decide whether a state has a “republican” form of government. In effect, if Congress admits a state’s representatives and senators, it has a republican form of government.

Section 4 of Article IV also provides for the federal government to protect the states against invasion and domestic violence. The president’s authority to call in troops even without a state’s request was established in 1894. Railroad workers for the Pullman Palace Car Company went on strike in Chicago and severely disrupted the nation’s commercial transportation system. President Grover Cleveland sent in 2,000 Army troops to end the strike on the grounds that it was interfering with the delivery of the U.S. mail.

A president also has the authority to call on a state militia—the National Guard—but this power took an odd turn in 1957 in Arkansas. A federal court had ordered the public schools in Little Rock to desegregate, but Governor Orval Faubus vowed to block any attempt to allow black children to integrate white-only schools. President Dwight Eisenhower nationalized the Arkansas National Guard, not to enforce the integration, but to temporarily remove the Guard from Faubus’s control. Eisenhower then sent in regular Army troops to ensure the schools were integrated.

Ironically, this provision of the Constitution was originally approved in 1787 because of Southern states’ fears of slave uprisings.

Article V: Amending the Constitution

“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.”

The framers of the Constitution wanted to make it difficult to change the Supreme Law of the Land and established two methods of amending the Constitution. One has never been used: a new Constitutional Convention. Two thirds of the states (34 of 50) can petition Congress for a new convention, but there have long been misgivings that a convention might have the authority to go beyond the amendment on the table. The Constitution has always held such a sacrosanct place in American democracy that few people would want to open it up to a wholesale retinkering. If and when a full-blown Constitutional Convention would take place, three quarters of the states (38 of 50) would have to ratify an amendment for it to go into effect.

The more common and accepted manner of amending the Constitution calls for both houses of Congress to approve the proposed amendment by two-thirds majorities. The proposed amendment is then sent to the states for ratification. A proposed amendment is usually considered by the state legislature, and again, three quarters of the states must approve for ratification.

The Constitution sets no time limit on the ratification process, except to say it must be “reasonable.” In practical terms, this means it is up to Congress. Ordinarily in recent times, Congress has said that a proposed amendment must be ratified within 7 years to take effect or else it expires. However, the Twenty-Seventh Amendment, limiting congressional pay raises, was originally proposed in 1789 but not approved until 1992, more than 200 years later.

Article VI: The Supreme Law of the Land

“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.

“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.

“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 VI is an incongruous mix of a centuries-old bookkeeping footnote and a sweeping historical precedent called the “linchpin of the Constitution.” The first part of the Article is straightforward bean counting: the new U.S. government will assume the debts of the old government that operated under the Articles of Confederation.

The second part, however, is the Supremacy Clause, the glue that holds together the whole crazy idea of a democracy wrapped in a republic wrapped in a federal system wrapped in a system of checks and balances. In effect, the clause says the Constitution, federal laws, and treaties take precedence over state laws, and all judges must follow that rule. In other words, any law in conflict with the Constitution is invalid. Without the Supremacy Clause, states could be mini-nations unto themselves, passing any laws of their own, refusing to acknowledge the laws of other states, and ignoring the federal laws of the United States.

The final section of Article VI buttresses the Supreme Clause by requiring all government officials, both state and federal, to give precedence to the U.S. Constitution over any state constitution or other laws.

The “religious test” phrasing prohibits any sort of religious requirement or restriction on holding any federal office. This requirement was extended to state officeholders under the Equal Protection Clause of the Fourteenth Amendment.

Article VII: Ratification

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same.”

The article that specifies how the proposed new Constitution will be ratified offers another of those delicious little ironies and contradictions from 1787.

The Constitutional Convention was held under the Articles of Confederation, right? And the Articles of Confederation required the approval of all 13 states for any major changes, right? So why did the framers at the Constitutional Convention decide only 9 of 13 states needed to approve the new Constitution? And what gave them the authority to change the rules midstream?

The answers are pretty simple. The men who gathered in Philadelphia that hot summer were not confident all the states would vote for ratification. They didn’t even want to take a chance by requiring 10 states—enough for the three-quarters majority they specified for approving any future amendments—to vote to ratify. They thought 9 had a decent chance, so they said 9. And their only authority to change the rule was that they went ahead and changed the rule. And like the Constitution itself, everybody agreed to go along.