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Constitution of the United States

 
 

The Constitution of the United States is the supreme law of the United States of America and is the oldest codified written national constitution still in force. It was completed on September 17, 1787, with its adoption by the Constitutional Convention in Philadelphia, Pennsylvania, and was later ratified by special conventions called for that purpose in each of the then-existing thirteen American states. It created a more unified government in place of what was then a group of semi-independent states operating under the Articles of Confederation. It took effect in 1789 and has served as a model for the constitutions of numerous other nations.

The original copy of the Constitution is on permanent display at the National Archives in Washington, D.C.

History

After the Revolutionary War, the 13 colonies first formed a very weak central government under the Articles of Confederation. This government lacked, for example, any power to impose taxes as it had no method of enforcing payment. It could not even control commerce between the states, leading to a series of conflicting tax laws and tariffs between states. Not only this, but the Articles required unanimous consent from all the states before any changes could take effect. States took it so lightly that their representatives were often absent, and the national legislature was very frequently blocked from doing anything, even ineffectual things, pending appearance of a quorum.

In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Confederation Congress endorsed the plan to revise the Articles of Confederation on February 21, 1787. Twelve states ( Rhode Island being the only exception) accepted this invitation and sent delegates to convene in May 1787. The resolution calling the Convention specified its purpose was to propose amendments to the Articles, but the Convention ignored its limitations. It voted to keep deliberations secret and decided to draft a new fundamental government design which eventually stipulated that only 9 of the 13 states would have to ratify for the new government to go into effect. All this was criticized as far exceeding the convention's mandate, and being extralegal besides, but the paralysis of the Articles of Confederation government was evident and the Congress agreed to submit the proposal to the states despite the exceeded terms of reference. On September 17, 1787, the Constitution was completed in Philadelphia, and the new government it prescribed came into existence on March 4, 1789, after fierce fights over ratification in many of the states.

The Constitution

The U.S. Constitution styles itself the "supreme law of the land." Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) U.S. Congress, are found to conflict with the federal constitution, these laws are null and have no effect. Decisions by the Supreme Court over the course of two centuries have repeatedly confirmed and strengthened doctrine of Constitutional supremacy, or the supremacy clause.

Although the U.S. Constitution was motivated in no small part by elite mercantilists and financiers' desire to minimize the political impact of non-owning classes and smallholding classes on elites' property and prerogatives, the Constitution guarantees the legitimacy of the American state by invoking the American electorate. The people do not exercise authority, however. The business of government is conducted by state actors, both elected and appointed, and the private businesses contracted by state actors; some of these positions are provided for in the Constitution. State actors can change the fundamental law, if they wish, by amending the Constitution or, in the extreme, by drafting a new one.

Different kinds of public officials have varying levels of limitations on their power. Generally, middle and other working class officials have extremely limited powers in American government. Their powers are merely discretionary. However, elite actors in government and certain departments like the military have few checks on their power, aside from divergent interests. Ideally, however, their official actions ought to conform to the Constitution, and to the laws made in accordance with the Constitution; but there is little by way of mechanisms for enforcement. Elected officials can only continue in office if they are re-elected at periodic intervals, which they typically are because of the structural limitations on political organization and participation. Appointed officials serve, in general, at the pleasure of the person or authority who appointed them, and may be removed at any time. The exception to this practice is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges; the justification for this exception is that once appointed for life, these judges are presumed capable of acting free of political obligations or influence.

Principles of government

Although the Constitution has changed in many respects since it was first adopted, its basic principles remain the same now as in 1789.

There are three main branches of government- executive, legislative, and judicial-and they are separate and distinct from one another. The powers given to each are in theory balanced and checked by the powers of the other two. Each branch ideally serves as a check on potential excesses of the others.

The United States is federal in nature. Powers enumerated in the Constitution are given to the Federal Government, and all other, unenumerated, powers remain with the states or the people. (See the Tenth Amendment.)

The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations. Beginning with the case of Marbury v. Madison, the United States judiciary has engaged in judicial review. This means that the federal courts will examine duly enacted laws, and, if they are found to be unconstitutional, will overturn them. They also examine the acts of public officials-up to and including those of the president.

Since the enactment of the Fourteenth Amendment, all persons have been equally entitled to the law's protection. All states are equal and in principle none can officially receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final legitimacy resting with the people.

State actors acting in the name of the people have the right to change their form of national government by means defined in the Fifth Article of the Constitution itself.

Preamble

The Preamble to the United States Constitution consists of a single sentence that introduces the document and its purpose. The Preamble itself neither grants any powers nor inhibits any actions. It only explains the rationale behind the Constitution. The preamble, especially the first three words ("We the people"), is one of the most often-quoted and referenced sections of the Constitution.

The major governmental goals stated in the Preamble include:

  • Providing for better cooperation among the states
  • Ensuring justice and peace
  • Providing for defense against invasion
  • Promote the general well being of the population
  • Securing liberties now and in the future

Articles of the Constitution

The remainder of the constitution consists of seven articles; the separation is, generally, reflective of the idea of separation of powers.

Article One

Article One establishes the legislative branch of government, U.S. Congress, which includes the House of Representatives and the Senate. The Article establishes the manner of election and qualifications of members of each House. In addition, it outlines legislative procedure and indicates the powers of the legislative branch. Finally, it establishes limits on federal and state legislative power.

Article One is the longest of the seven Articles. Amendments to Article One, unlike amendments to other articles, are restricted by the Constitution. No amendment made prior to 1808 could affect the first and fourth clauses of Section Nine of this Article. The former clause prevented Congress from prohibiting the slave trade until 1808; the latter required direct taxes to be apportioned among the states according to their populations. Furthermore, the Constitution precludes Congress from depriving a state of equal representation in the Senate (see below) without its consent. Article One also includes the Commerce Clause, granting Congress the power to regulate both international and interstate trade.

Article Two

Article Two describes the presidency (the executive branch): procedures for the selection of the president, qualifications for office, the oath to be affirmed, the powers and duties of the office, and procedures for selection. It also provides for the office of Vice President of the United States, a figure whose official role is to step in if the President is incapacitated or resigns, and to serve as the presiding officer for debate in the Senate, with a vote in cases of tie. Article Two also contains the clause that allows for impeachment of Constitutional officers (President, Vice President, Judges).

Article Three

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it, while imposing limits on that punishment.

Article Four

Article Four describes the relationship between the states and the Federal government, and amongst the states. For instance, it requires states to give "full faith and credit" to the public acts, records and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records or proceedings may be admitted. The "privileges and immunities" clause prohibits from discriminating against those from other states in favor of their own citizens (e.g., having tougher penalties for out-of-staters convicted of crimes within a state). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous (and costly) process.

Article Five

Article Five describes the process necessary to amend the Constitution. It provides for two methods of proposing amendments: either two-thirds of the state legislatures can request a convention for the purpose of considering amendments, or Congress can propose an amendment by a two-thirds majority vote of each house. Proposed amendments, whether submitted by a convention or by Congress, must be ratified by three-fourths of the states to take effect; the Article gives Congress the option of requiring ratification by state legislatures or by conventions called in each state. Article Five currently places only one limitation on the amending power-that no amendment can deprive a state of its equal representation in the Senate without the state's consent.

Article Six

Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land. It also validates national debt created under the Articles of Confederation and requires that all legislators, federal officers, and judges take oaths to support the Constitution.

Article Seven

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution was originally proposed as an amendment of the Articles of Confederation, which required ratification by all 13 of the original states for amendments to take effect. Article Seven of the Constitution, however, only required ratification by 9 states for that document to take effect. Scholars have traditionally resolved this contradiction by arguing that when the ninth state ratified the Constitution and the document took effect, those 9 states implicitly seceded from the union governed by the Articles and created a new, separate federal union. Under this theory, those states that did not ratify the Constitution would have remained part of a separate country. However, eventually all the states did ratify the Constitution.

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be needed from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly-rigid requirement of unanimity would not block action desired by the vast majority of the people. Their solution was to devise a dual process by which the Constitution could be changed.

The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the states may ask Congress to call a national convention to discuss and draft amendments. To date, all amendments have been proposed by Congress; although state legislatures have on occasion requested the calling of a convention, no such request has yet received the required concurrence of two-thirds of the states.

In either case, amendments must have the approval of the legislatures or conventions of three-fourths of the existing states before they become part of the Constitution. All amendments save one have been submitted to the state legislatures for ratification; only the 21st Amendment was ratified by conventions.

Unlike most constitutions, amendments to the U.S. constitution are appended to the existing body of the text, rather than being revisions of or insertions into the main articles. There is no provision for expunging from the text obsolete or rescinded provisions, such as the "three fifths" provision for slaves.

Some people feel that demographic changes in the U.S.-specifically the great disparity in population between states-have made the Constitution too difficult to amend, with states representing as little as 4% of the population theoretically able to block an amendment desired by over 90% of Americans; others feel that it's unlikely that such an extreme result would happen. However, any proposals to change this would necessarily involve amending the Constitution itself, creating something of a Catch-22.

Aside from the direct process of changing the Constitution, the practical effect of its provisions may be changed by judicial decision. The United States is a common law country, and courts are obliged to follow the precedents established in prior cases. However, when a Supreme Court decision clarifies the application of a part of the Constitution to existing law, the effect is to establish the meaning of that part for all practical purposes. Not long after adoption of the Constitution, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution outside of amendments. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of modifying what had been previously understood to be the meaning of many Constitutional clauses, with no change in the actual text of the Constitution itself.

Congressional legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. In case of objection, the test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the meaning of the Constitution.

Amendments

The Constitution has a total of 27 amendments. However, since the first ten of the amendments, collectively known as the Bill of Rights, were ratified simultaneously, it has in effect only been amended 18 times. This relatively small number is usually attributed to the simplicity and flexibility of the document: it is written in broad terms that are continually reinterpreted by the courts.

The Bill of Rights (1-10)

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were all adopted within a few years of the ratification of the Constitution, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was a not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would tyrannize citizens. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights was adopted.

Originally, the Bill of Rights was not intended to apply to the states; for instance, some states in the early years of the nation officially established a religion. This interpretation of these Amendments remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

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.

The Supreme Court has interpreted this clause to extend some, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court; for example, a recent case dealt with whether a state could be sued by an employee under the federal Americans with Disabilities Act of 1990 (see Federalist Society and Federalism).

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve-still technically pending before the state legislatures for ratification-pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792 during that commonwealth's first month of statehood.

The ten amendments collectively known as the Bill of Rights remain as they were adopted two centuries ago.

The first guarantees freedom of worship, speech, and press; the right of peaceful assembly; and the right to petition the government to correct wrongs. It also prohibits Congress from passing "any law respecting an establishment of religion"-making this amendment a battlefield in the late- 20th century culture wars.

The second states, in its entirety, "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." Current case law (including U.S. Supreme Court decisions) tends to assert that the "right of the people to keep and bear Arms" is an individual right but not an absolute right, and that the states and federal government may omit certain classes of people from the general-public sense of the militia for cause (criminal record, young or old age, mental incapacity, etc.), and may limit the types of weapons to which the right applies. The courts have interpreted and re-interpreted the second amendment since it was ratified; the Supreme Court first visiting it in United States v. Cruikshank, in 1875.

The third provides that troops may not be quartered, (i.e. allowed to reside) in private homes without the owner's consent. The fourth guards against unreasonable searches, arrests, and seizures of property.

The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury; prohibits repeated trials for the same offense after an acquittal (except in certain very limited circumstances); forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and provides that witnesses shall be compelled to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel or unusual punishment.

The last two of the first ten amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive; that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers the Constitution does not assign to the federal government or does not prohibit the states from having are reserved for the states or the people to exercise.

The Bill of Rights and subsequent amendments have placed some fundamental human rights at the center of the U.S. legal system, and have served as a model for others.

Subsequent amendments (11-27)

Amendments to the Constitution subsequent to the Bill of Rights cover a wide range of subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787.

There also have been many failed attempts to amend the Constitution. There are some that are still ongoing today.

  • Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law.
  • Twelfth Amendment (1804): Changes the method of presidential elections so that members of the electoral college cast separate ballots for president and vice-president.
  • Thirteenth Amendment (1865): Abolishes slavery and grants Congress power to enforce abolition.
  • Fourteenth Amendment (1868): Defines United States citizenship; prohibits states from abridging citizens' privileges and immunities and right to due process and the equal protection of the law; repeals the three-fifths compromise.
  • Fifteenth Amendment (1870): Prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting.
  • Sixteenth Amendment (1913): Allows federal taxes on income.
  • Seventeenth Amendment (1913): Establishes direct election of senators.
  • Eighteenth Amendment (1919): Prohibited beverage alcohol consumption and manufacture. Repealed by the Twenty-First Amendment.
  • Nineteenth Amendment (1920): Prohibits the federal government and the states from using a citizen's sex as a qualification for voting.
  • Twentieth Amendment (1933): Changes details of Congressional and presidential terms and of presidential succession.
  • Twenty-first Amendment (1933): Repeals Eighteenth Amendment but permits states to retain prohibition and ban the importation of alcohol.
  • Twenty-second Amendment (1951): Limits president to two terms.
  • Twenty-third Amendment (1961): Grants presidential electors to the District of Columbia.
  • Twenty-fourth Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials.
  • Twenty-fifth Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice-president.
  • Twenty-sixth Amendment (1971): Prohibits the federal government and the states from using an age greater than 18 as a qualification to vote.
  • Twenty-seventh Amendment (1992): Limits congressional pay raises.

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