Making the American Cengage LearningNot for Reprint Constitution · 2008-11-14 · constitution,...

Making the AmericanConstitutionA Supplement to Making America: A History of the United States

Carol BerkinBaruch College, City University of New York

Christopher L. MillerThe University of Texas—Pan American

Robert W. ChernySan Francisco State University

James L. GormlyWashington and Jefferson College

Houghton Mifflin Harcourt Publishing CompanyBoston New York

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CONTENTS

Introduction iv

The Constitutional Convention and Ratification �

The Early National and Antebellum Eras �The Federalist Era (1789–1800) 3The Marshall Court (1801–1836) 4The Taney Court (1836–1864) 5

The Civil War through the Great Depression �The Constitution from Civil War through Reconstruction (1865–1877) 6The Constitution from Reconstruction to the Progressive Era (1877–1900) 6The Constitution during the Progressive Era (1900–1920) 7The Constitution during the 1920s and Early 1930s 8

Modern America �The Constitution during the 1930s and 1940s 9The Warren Court (1953–1969) 9The Constitution from 1970 to the Present 11

Constitution of the United States of America ��

Members of the Supreme Court ��

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INTRODUCTION

The United States Constitution has endured for overtwo centuries and has served as a model for othernations. It is the heart of the American political sys-tem, establishing many of the laws under which welive and einsuring many of the rights and liberties thatwe enjoy as citizens. Its preamble sets out, in clear andaccessible language, the purposes and duties of repre-sentative government and the sovereignty or ultimateauthority of the American people. Its first ten amend-ments, known as the Bill of Rights, guarantee to eachof us what the revolutionary generation consideredour unalienable rights. Over the past two hundredyears, each generation has adapted and amended theConstitution to meet its needs and, over time, toextend political rights to all of the nation’s citizens.

The authors of Making America wrote this essay,“Making the American Constitution,” to introducestudents to the history of our Constitution. It tracesour government’s development from the constitu-tional convention in 1787 through the modern era. Theessay focuses on the principles behind theConstitution, the structure of the national government,the nature of federalism, including its advantages andproblems, and the amendments and court decisionsthat have helped our government adapt to changes in

our society. We have organized our discussion chrono-logically, with each of the authors of Making Americaresponsible for the periods covered by their expertise.Thus, Carol Berkin wrote the introductory sectiondealing with the constitutional convention, ratifica-tion, and the election of George Washington;Christopher Miller covered the period from the 1790sto the Civil War; Robert Cherny was responsible forthe Civil War through the election of PresidentFranklin Roosevelt; and James Gormly carried the nar-rative from the New Deal to the present. Each of thesesections begins with an overview that sets the consti-tutional issues in their historical context. This is fol-lowed by a discussion of the major court cases andjudicial decisions and the constitutional amendmentsof that era, including annotations that explain and givethe significance of these judicial and legislativechanges. A glossary is provided that defines terms astudent will need to understand to get the most out ofthe text.

It is our hope that students will see this as only thebeginning of their study of their nation’s governmentand that they will become lifelong students of theUnited States Constitution and American history.

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The Constitutional Conventionand RatificationWhen the Continental Congress issued theDeclaration of Independence in 1776, the UnitedStates were 13 separate governments, uniting towage war against King George III and the abusesthey suffered under him. The new states shared twocommon goals: to avoid creating new tyrannical gov-ernments and to ensure that only local, electedassemblies could tax the citizens. Thus, in their firstconstitution, the Articles of Confederation, the revo-lutionaries preserved state sovereignty and created anational government with few powers. In fact, theConfederation was less a union than a “league offriendship” that gave the national government nopower to tax and forced it to rely on requests formoney from the states. It had no executive branch, nocourt system, no right to regulate commerce, and itcould not coin money. The Confederation Congress,or legislature, had only one house. In it, every statehad one vote, making them equals regardless of sizeor population.

After independence, unexpected problems arose.First, the states, which had often been uncooperativerivals when they were colonies, now reverted to oldcompetitive habits. States with port cities, for example,overcharged citizens of other states for importedgoods. Second, a postwar economic depression hungover many areas of the country. America’s militaryand naval weakness contributed to this depression, forunprotected American ships were seized by BarbaryCoast pirates and Native Americans aggressivelyresisted the push westward by land-hungry settlers.Worst of all, the states often failed to send money tothe Confederation, leaving its treasury empty. TheConfederation Congress was embarrassed because itcould not pay back its huge debts to European coun-tries, notably France, who had helped finance the war.It could not repay American citizens who had helpedsupply the Continental Army. It could not even givesoldiers their back pay. By 1786, many American lead-ers believed the young republic was in crisis and theConfederation was too weak to save it.

In 1787, a group of influential leaders persuadedthe Confederation Congress to call a convention topropose amendments, or changes, to the Articles.That summer, delegates from 12 states gathered inPhiladelphia to discuss the fate of their nation.(Rhode Island refused to attend.) Ultimately, 55men—plantation owners, lawyers, judges, doctors,and merchants—played a role in what came to be

known as the constitutional convention. Most hadextensive political experience as state governors,members of state legislatures, and members of theContinental Congresses or the ConfederationCongress. More importantly, most of these men were“nationalists” whose experiences abroad or as offi-cers in the Continental Army had given them abroader perspective than the men who remainedexclusively within their own states. As AlexanderHamilton put it, these men “thought continentally.”

The convention delegates quickly made a radicaldecision: instead of proposing amendments to theArticles, they would write a new constitution.Virginia’s James Madison had a blueprint for thisnew government; his “Virginia Plan” became thebasis for the months of discussion that followed.Madison’s plan drew upon long standing Anglo-American political traditions. The new governmentwould have an executive branch, a judicial branch,and a two-house legislative branch. These werefamiliar features of most colonial governments andappeared in the written constitutions of the new stategovernments. Thus, the delegates accepted this struc-ture with little debate. And, because they were nation-alists, they gave the new government far more powersthan the Confederation enjoyed. It had the power totax, regulate commerce, coin money, create an armyand navy, make treaties, and settle disputes amongthe states. The power to tax was critical because itgave the national government an independent sourceof income and allowed the country to honor its debts.

Because the delegates believed in representativegovernment, they agreed that the most important andmost powerful branch of the national governmentshould be the legislature or Congress. But whom,exactly, should it represent? Here was the heart of thematter: would Congress represent a union of the statesor a union of all the citizens? And would a strongunion mean that the larger states would dominate thesmaller ones? Nationalists like Madison, AlexanderHamilton, and Pennsylvania’s Gouverneur Morriswanted the government to represent the citizensrather than their states. They called for proportionalrepresentation in both the Senate and the House ofRepresentatives. This meant that the number of repre-sentatives a state sent to Congress would be based on

Constitution of the United States of America 1

sovereignty Freedom from external control; supremeauthority.

Barbary Coast The Mediterranean coast of northernAfrica that was famous for its Moorish pirates.

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its population. But some delegates thought this wenttoo far. These localists wanted to preserve the equalpower of the states no matter their size, so tinyDelaware and heavily populated Virginia would havean equal say in any laws passed or rejected. Their planwould also ensure that the national government was aunion of the states rather than a union of all citizens.After intense debate, the convention reached a com-promise: the Senate, or upper house of the Congress,would represent the states. Each state would have twoSenators, and thus Delaware’s vote would be equal toVirginia’s in the Senate. In this way, the conventionacknowledged the legitimacy of state governments.Membership in the lower house, the House ofRepresentatives, however, would be based on the pop-ulation of each state. The result was not simply a com-promise that saved the convention from disbanding. Itwas also a true innovation in government, for itdivided the nation’s sovereignty, or power, betweentwo levels of government: state and national. Thecompromise came to be called The Great Compromise;the innovation came to be called federalism. Much ofAmerica’s legal and political history since the constitu-tion was adopted has been a series of conflicts andcompromises between states’ rights and the nationalgovernment’s rights, as the meaning of federalism hasbeen defined and redefined over time.

The delegates understood the need to work outother compromises that balanced the interests ofsouth and north, east and west, large states and smallstates, commercial areas and agricultural ones. Theyavoided inflammatory rhetoric and rigid ideologicalpositions as well as insults to one another. They sentsticky problems to committees and patiently recon-sidered decisions if strong objections continued to beraised. Some issues, like the existence of slavery in arepublic, seemed so divisive that the convention didnot try to resolve them. Two compromises carefullyavoided the main issue: first, Congress was prohib-ited from banning the importation of new slaves intothe country for a period of 20 years; secondly, three-fifths of the slave population would count towarddetermining the number of representatives a statesent to the House.

The convention grappled with a serious contradic-tion: they wanted to empower the new government,yet they were afraid of the abuse of that power.History had shown them that every republic eventu-ally ended in tyranny. The Roman republic, for exam-ple, had become an empire under Caesar. Thechallenge facing the convention, therefore, was howto create a strong, active government and guardagainst its fatal abuse of power. Their answer lay in

an elaborate system of checks and balances amongbranches of the government. Like the good lawyersthat many of them were, the delegates worked hardto make each branch of government answerable toanother in some fashion to another. Remedies forabuses, like impeachment, were built into eachbranch. Terms of office were limited in the executiveand legislative branches. Power was thus spreadamong branches of the government, and each wasgiven the one power it needed: to check abuses ofpower by the others.

The convention had to devise means to elect themembers of each branch of the government.Although some of the states had religious qualifica-tions for office holding, they agreed that there wouldbe no such tests in the new national government.They also agreed that the Senators, representing theirstates, should be appointed by the state legislatures.They resolved that the House, representing the citi-zens, should be chosen by eligible voters in eachstate. At that time, only white adult males whoowned property were eligible to vote. Creating aprocess to elect the President proved a difficult prob-lem, however. In an age of poor communication anddifficult travel, few voters knew the political leadersoutside their state. Only George Washington andBenjamin Franklin were what we today would call“household names.” If the President were popularlyelected, the delegates predicted there would be hun-dreds of candidates, none with a majority. Their solu-tion was a practical one for the times: electors, chosenfrom among men who had served on the nationalscene and thus knew leaders from every state, wouldbe appointed by their state legislatures. They wouldform the Electoral College, a body that chose thePresident and Vice President. Although everyoneknew George Washington would be the firstPresident, the Electoral College seemed to solve theproblem of finding his successor.

The men who wrote the constitution were 18th-century men, operating in a world very differentfrom our own. They could not see into the future orpredict the extension of suffrage to all adult citizens,male or female, of any racial or ethnic group or eco-nomic class including nonproperty holders. Theycould not predict the transportation and communica-tion revolutions that were made would make it pos-sible for Americans everywhere to become familiarwith presidential candidates. But they were wiseenough to realize that changes would come. Thus,the delegates included an amendment process toensure that every generation could adapt the govern-ment to suit their historical circumstances.

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The delegates submitted their handiwork to thevoters to approve or reject. Every state was asked tohold a special ratifying convention to debate the newconstitution. When, and if, nine states approved theconstitution, it would become the law of the land.Acceptance was anything but universal. Many revo-lutionary patriots like Samuel Adams voiced thewidespread fear that the proposed government wastoo powerful. The strongest objection to the constitu-tion was its failure to include provisions guarantee-ing what 18th-century thinkers called the people’snatural rights. Supporters of the constitution labeledtheir opponents obstructionists and called them“Anti-Federalists.” But the Federalists, as supporterscalled themselves, did agree to add a Bill of Rights assoon as the new government went into effect.

In 1787, Delaware, Pennsylvania, and New Jerseyratified the new government; in 1788, Georgia,Connecticut, Massachusetts, Maryland, SouthCarolina, Virginia, New York, and New Hampshirefollowed suit. North Carolina did not ratify until1789, and Rhode Island waited until 1790. OnFebruary 4, 1789, George Washington was unani-mously elected the first President of the UnitedStates. The Constitution he swore to uphold haslasted, with 27 amendments and hundreds of legisla-tive and judicial adjustments, until today.

The Early National andAntebellum Eras Ratification of the Constitution required approval bynine of the thirteen states, a goal achieved by the endof 1788. But the document that the states ratified was,at best, a blueprint for a national government. It fellto the First Congress to begin actual construction.

The Federalist Era (��–��)Two tasks stood out as high priorities for the newCongress. First, it had to build a judiciary systemfrom scratch. It quickly drafted the Judiciary Act of1789, which specified the shape and many of the pow-ers of the Supreme Court and established a system ofcircuit and district courts. Second, Congress faced thetask of creating a Bill of Rights. James Madison pre-sented twelve amendments to Congress, which paredthem down to ten. The first eight read like a con-densed version of the Declaration of Independence;virtually all of the abuses of power with whichGeorge III had been charged were specifically prohib-ited to the new government. The Ninth Amendment

specified that just because a particular right was notmentioned in the Constitution, government could notassume that it did not exist. The Tenth Amendmentcompleted the document by dictating that powers notassigned directly to the national government andindividual rights not specifically protected by theConstitution fell within the realm of state and individ-ual, not federal, sovereignty.

This completed the Constitution, but a SupremeCourt decision soon created a problem. During theratification struggle, many had voiced concern thatallowing citizens to sue states in federal court wouldstart an avalanche of suits against which states couldnot afford to defend themselves. They were assured,however, that the principle of sovereign immunitywould prevent this. But in Chisholm v. Georgia (1793),the Supreme Court held that states could assert thisprinciple. Immediately, Congress began drafting theEleventh Amendment, removing such suits from fed-eral jurisdiction. This was ratified in 1795.

As this case makes clear, the lines between federal,state, and individual rights were murky, leading toanother major constitutional controversy in 1798. TheUnited States found itself in an undeclared naval warwith France. Claiming that opponents to the warwere endangering national security, Congress passedwhat came to be called the Alien and Sedition Acts,which put severe limitations on the First Amendmentrights of all citizens and especially on the personalfreedoms of immigrants. Controlling all threebranches of government, Federalists effectivelyblocked any effort at testing the constitutionality ofthe laws. This forced opponents like Jefferson andMadison to go outside the federal arena to seekredress. Each submitted a legal opinion based on theTenth Amendment to the legislatures of Kentuckyand Virginia, respectively, suggesting that statescould nullify federal laws within their borders ifthey believed these laws to be unconstitutional. Bothstates agreed, passing the proposed legislation.

As this illustrates, political differences were sub-jecting the nation to severe stress. By the mid-1790s,the formation of two distinct political parties waswell advanced. In the presidential election of 1796,Thomas Jefferson and Aaron Burr, two leaders of the


ratification Approval; the act of making valid.sovereign immunity The doctrine that holds that the

state and federal governments are immune fromlawsuits without their own consent.

nullify To declare a law invalid and thus unenforceable.

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opposition called the Democratic-Republican Party,challenged the Federalist candidates John Adamsand Thomas Pinckney. Under Article II, Section 1,members of the Electoral College were to cast twovotes; no distinction was made separating the presi-dential and vice presidential ballots. In the end, theperson receiving the most votes was President andthe person with the next highest was Vice President.The result in this case proved uncomfortable: theadministration was split between the two opposingparties, with Adams as President and Jefferson asVice President.

In 1800, a similar problem occurred. Jefferson andBurr again faced Adams and Pinckney’s brother,Charles Cotesworth Pinckney. This time, Jeffersonand Burr won a clear victory over their Federalistopponents; however, each won the same number ofelectoral votes. By constitutional directive, the tievote would be settled by the lame duck FederalistHouse of Representatives. Although Jefferson waseventually declared the winner, while the contro-versy raged, at least two states threatened civil war.Recognizing that political parties had become a real-ity, Congress changed the process for electing thePresident and Vice President. After ratification of the Twelfth Amendment in 1805, members of theElectoral College each cast a ballot for President anda separate ballot for Vice President.

Jefferson’s election in 1800 frightened Federalists,who immediately set about manipulating the courtsystem to prevent his party from making significantchanges in the government. Before Jefferson and hissupporters took office, the Congress immediatelypassed the Judiciary Act of 1801, which added anextensive number of new federal district courts, cir-cuit courts, and federal marshals and clerks. Adamsthen rushed to fill these lifelong positions with loyalFederalists, a process that continued until midnighton his last day in office. The most critical of these“Midnight Appointments” was of John Marshall asChief Justice of the Supreme Court.

The Marshall Court (��–��)Assuming power in March 1801, Democratic-Republicans immediately sought to overturn theFederalist manipulation of the court system. WhenJefferson’s Secretary of State, James Madison, arrivedat his new office, he found a number of the signedMidnight Appointment letters waiting. There hadnot been time for the former Secretary of State, John

Marshall, to deliver them before his term expired.Madison decided that he was under no obligation todeliver these appointments. One of the disappointedappointees, William Marbury, sued Madison. Thiswas the first in a series of cases that established JohnMarshall as the chief architect of the long tradition ofSupreme Court political activism.

The justices acknowledged that Marbury deservedthe job, but asked whether they had the authority toforce Madison to give it to him. According to theJudiciary Act of 1789, the Court had the power toissue writs of mandamus, but Marshall and the oth-ers assumed that Madison would simply ignore suchan order. Engineering a brilliant political maneuverthat would strike directly at Jefferson’s and Madison’sidea of state nullification, Marshall convinced thecourt that the provision in that act authorizing thesewrits violated the principle of checks and balances,thereby making that particular provision unconstitu-tional. In his formal opinion, Marshall criticizedMadison for failing to follow the law, but denied thatthe Court had the power to interfere in the workingsof another sovereign department of government. Butin this process, he established an important precedentfor judicial interference with the government’s othersovereign bodies. In declaring part of the JudiciaryAct unconstitutional, Marshall asserted for the Courtthe significant power to determine the constitutional-ity of acts by Congress and to declare unconstitutionallaws null and void.

Over the next thirty years, Marshall led the courtto a number of decisions that further enhanced fed-eral authority. In the Fletcher v. Peck (1810), the courtset the precedent that the federal courts had theauthority to overturn state laws. In Martin v. Hunter’sLessee (1816), the Court extended that precedent toactions by state courts. Then, in McCulloch v.Maryland (1819), the Court took what many considerto be the critical step in establishing the dominance offederal authority when Marshall thundered from the

4 ESSAY

lame duck An officeholder who has failed to win, or isineligible for reelection, but whose term in office hasnot yet ended.

writs of mandamus Orders by the judiciary compellingthe other two branches of government to obey the law.

precedent A decision by a court that provides anexample for how similar cases should be judged.

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bench “the constitution and the laws made in pur-suance thereof are supreme . . . they control the con-stitution and laws of the respective states, and cannotbe controlled by them.” Two other cases hammeredthis position home: Dartmouth College v. Woodward(1819) again asserted the federal authority to reversestate laws, and Gibbons v. Ogden (1824) gave the fed-eral government exclusive power to charter and con-trol interstate commerce.

Two final cases cemented Marshall’s judiciallegacy. Cherokee Nation v. Georgia (1831) definedIndian nations as “domestic dependent nations,”that is, sovereign nations that are subjects of the fed-eral government. And in Worcester v. Georgia (1832),Marshall argued that states could not interfere withthe internal affairs of Indian nations. Again,Marshall thundered federal supremacy from thebench, ruling that all dealings with the Indians“shall be carried on exclusively by the governmentof the union.”

The Taney Court (��–��)Marshall’s death in 1836 ended his long and brilliantinfluence on the Constitution, but his successor, RogerB. Taney, carried on Marshall’s legacy: the Court con-tinued to set checks and balances. Four of Taney’sdecisions stand out as constitutionally significant.

Taney greatly expanded the reach of theConstitution and the authority of the Court in CharlesRiver Bridge v. Warren Bridge (1837), a suit brought bya toll bridge company against a competing freebridge, arguing interference with trade. Taney ruledin favor of the new, free bridge, declaring that whenthe rights of private property are weighed against theduty of the state to promote the public good, the pub-lic good must prevail. After this precedent, the fed-eral courts had the added power of defining andupholding the “public good.”

In Dred Scott v. Sanford (1857), Taney delivered oneof the most controversial Supreme Court decisions inhistory, one that drove a wedge that eventually splitthe nation in half. Heard during the height of theslavery controversy, this case established two impor-tant precedents. First, Taney ruled that Scott, a slave,could not be considered a citizen of the United Statesbecause no one of African American heritage was acitizen at the time that the Constitution was ratified.Therefore, he reasoned, it would require a specific actof Congress to grant them citizenship, and that hadnever been done. Second, Taney ordered that because

slaves were defined as property in the states whereslavery was permitted, Article IV and the FifthAmendment made any effort on the part of Congressor the states to restrict the movement of slaves to anyarea under federal jurisdiction unconstitutional.From this point on, slavery could not be banned inany part of the country, and the citizenship rights ofAfrican Americans in the few states where they hadthem were put in serious doubt.

Taney’s other two important cases had to do withthe exercise of executive wartime powers. During theearly days of the Civil War, in Ex parte Merryman(1861), Taney ruled that the President did not havethe power to suspend the right of habeas corpus evenduring wartime. In the case of Ex parte Vallandigham(1863), however, he held that federal courts did nothave the authority to overrule military tribunals eventhough habeas corpus rights had been denied. A latercourt reversed this in Ex parte Milligan (1866), by rul-ing that trials of civilians by military courts areunconstitutional.

The Civil War through the Great DepressionThe Civil War produced important changes in theConstitution, some by amendment and others byinterpretation. The victory of the Union armies clari-fied the nature of federalism by establishing that theUnited States is one nation that derives its powersdirectly from the people, and that states may notleave the Union. Before the Civil War, mostDemocrats argued that the federal government wasconstitutionally limited in many ways. During theCivil War and after, the victorious Republicansboldly used federal authority in new ways, creating amore powerful federal government.


tolls A fee charged to travelers to use certain roads andbridges.

ex parte A case in which an individual seeks legalintervention directly from the court without suinganother person.

habeas corpus A legal order that a prisoner be broughtbefore a judge; a legal order that a person cannot beheld in prison without a charge of a crime committedand a trial to determine guilt or innocence.

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The Constitution from Civil Warthrough Reconstruction (��–��)The war led to three Constitutional amendments dur-ing the postwar period known as Reconstruction.The first, the Thirteenth Amendment, prohibited slav-ery. Because the legal status of the former slaves wasuncertain, Republicans passed the Civil Rights Act(1866). This was the first effort to define in federal lawthe meaning of American citizenship. But theRepublicans worried that this act could be amendedor declared unconstitutional, so they produced theFourteenth Amendment, which defined American citi-zenship and put limitations on states’ abilities torestrict civil rights. The Fourteenth Amendment alsopunished those who had supported the Confederacyby barring them from federal office, invalidated anydebt incurred by or in support of the Confederacy,and prohibited any compensation to former slave-holders for the loss of their slaves. The Republicanswere also responsible for the Fifteenth Amendment,in 1869, which prohibited states from denying theright to vote because of race.

The Constitution from Reconstructionto the Progressive Era (��–��)By the end of Reconstruction in 1877, much of thenation was experiencing a rapid economic transfor-mation: railroad lines were built across the continent,new technologies helped to create new industries,and western lands were brought under cultivation.Immigrants, mostly from Europe, flooded into thenation, drawn by economic opportunities. Citiesgrew rapidly. The Constitution was not amendedbetween 1869 and 1913, but several Supreme Courtdecisions reflected the new concerns of industrialAmerica and significantly affected both the statesand the federal government.

After Reconstruction, many Americans turned theirbacks on African Americans, and the Supreme Courtput serious limits on federal enforcement of civilrights. The Slaughterhouse Cases (1873) produced a nar-row interpretation of the Fourteenth Amendment bydistinguishing between state and federal citizenship.The Court concluded that the Fourteenth Amendmentprotected only those rights derived from federal citi-zenship. In the Civil Rights Cases (1883), the Courtspecified that the Fourteenth Amendment appliedonly to government actions and not actions by indi-viduals; thus, private companies and individualscould practice racial discrimination. The Court ruled,

in Plessy v. Ferguson (1896), that states could require thelegal separation of the races (segregation). Whensouthern states systematically disfranchised AfricanAmerican voters after 1890 through such measures asthe poll tax and literacy test, the Court did not inter-vene to protect their voting rights.

During these years following the Civil War, theUnited States became an industrial society. New cor-porations—in railroads, steel, heavy equipment,petroleum products, food products, and more—developed and became more powerful than compa-nies had ever been before. Conflicts that arose withinthe new industrial economy often made their wayinto the courts. In general, the Supreme Courtresponded by placing limits on the power of thestates and the federal government to regulate corpo-rations. In the Granger Cases (1877), the SupremeCourt drew upon the Charles River Bridge precedentto hold that state laws regulating rates for storinggrain were constitutional. But in Santa Clara Co. v.Southern Pacific R.R. Co. (1886), the court agreed thatthe word “person” in the Fourteenth Amendmentapplied to corporations. This gave companies animportant constitutional protection against govern-mental regulation. They argued that regulation con-stituted an unreasonable taking of property without

6 ESSAY

Reconstruction The restoration of the Union followingthe Civil War, including restructuring racial relations torecognize the abolition of slavery; Reconstruction beganduring the war and ended in 1877 when the last federaltroops were withdrawn from the South.

civil rights Rights that people have by law, especiallythe rights protected by the Bill of Rights and theThirteenth and Fourteenth Amendments, including civilliberties, due process, equal protection of the law,ability to participate in the political process, andfreedom from discrimination based on race, ethnicity,gender, age, disability, or other physical characteristics.

barring Preventing or prohibiting a person from takingan action.

invalidated Put an end to, especially when done sowith legal authority; abolish; cancel.

incurred Acquired; became responsible for.disfranchised Took away the right to vote. poll tax A tax placed upon people rather than on

property, usually as a requirement for voting.literacy test A test used in southern states as a means of

disfranchising African Americans; would-be voterswere given a text to read and explain to the satisfactionof a (white) county official, and failure to satisfy theofficial meant failure to be able to vote.

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due process of law, a notion that came to be called“substantive due process.” In Wabash, St. Louis &Pacific R.R. Co. v. Illinois (1886), the Court ruled thatstate regulatory powers did not extend to railroadsengaged in interstate commerce. The Court alsodecided, in U.S. v. E. C. Knight (1895), that federalanti-trust laws could not be used to break up a manu-facturing monopoly because the actual manufactur-ing took place within a single state and therefore didnot fall under the constitutional authority ofCongress to regulate interstate commerce. Thus, by1900, corporations usually saw the courts as theirfirst line of defense against regulation by either thestates or the federal government.

As the United States had spread across the conti-nent during the nineteenth century, the varioustreaties by which it had acquired territory had drawnupon the precedent of the Northwest Ordinance(1787) to specify that residents of newly annexed ter-ritories would become U.S. citizens and that the ter-ritories themselves would become states when theygained sufficient population. The treaty acquiringAlaska extended citizenship but not the promise ofstatehood, probably because no one foresaw thatAlaska would ever gain enough people to qualifyfor statehood. However, there were no guarantees ofcitizenship or eventual statehood in the JointResolution of Congress annexing Hawai‘i (1898) or inthe Treaty of Paris (1898), by which the United Statesacquired Puerto Rico, Guam, and the PhilippineIslands from Spain at the end of the Spanish-American War. Some Americans argued that “theConstitution follows the flag,” and urged that thenew possessions be treated like previous territories.In the Insular Cases (1901), however, the Court speci-fied that the Constitution did not automaticallyapply to the people of an annexed territory and thatit was up to Congress to determine what rights togrant to people in those territories.

When Theodore Roosevelt became president in 1901,he saw Supreme Court decisions, especially E.C.Knight, as barriers to federal authority over corpora-tions. He carefully selected a case that he hopedwould produce a Court decision extending federalpower. In Northern Securities Co. v. U.S. (1904), theSupreme Court acknowledged the authority of thefederal government over interstate railroad compa-nies. Following this decision, the Hepburn Act (1906)

empowered the Interstate Commerce Commission(the first independent regulatory commission) toregulate many activities by railroad corporations.Regulation became such a significant activity of bothstate and federal governments that some historiansand political scientists labeled independent regula-tory commissions a fourth branch of government.The E. C. Knight definition of manufacturing wassoon replaced by a “stream of commerce” approach

due process of law The principle that a person may notbe deprived of life, liberty, or property withoutappropriate legal proceedings through the court system;it includes the principle of equality before the law, thatis, that laws should be applied equally to all.

substantive due process A legal concept that lawsmust have a legitimate purpose and cannot be unfair,irrational, or arbitrary, and that judges may decidewhether a law is reasonable and legitimate; this conceptwas used to argue that laws regulating business wereunreasonable and therefore violated the FourteenthAmendment’s guarantee of due process.

anti-trust laws Laws, especially the Sherman Anti-TrustAct (1890) and the Clayton Anti-Trust Act (1914), thatintended to break up monopolies or “conspiracies inrestraint of trade.”

Northwest Ordinance Law passed by theConfederation Congress in 1787 providing for theorganization of territories and eventually states in thatpart of the nation west of Pennsylvania and north of theOhio River; a central principle of the law is that theterritory was eventually to become states on a basis ofequality with the other states, i.e., that there were to beno colonies with less political standing than states.

annexed Attached a territory to an existing political unit.Interstate Commerce Commission The first

independent regulatory commission, created byCongress in 1887 but not given significant regulatoryauthority until 1906; dissolved in 1995.

independent regulatory commission A governmentalagency with significant authority to act independentlyof the legislature, executive, or judiciary for the purposeof establishing rules (regulations) that have the force oflaw and that govern some specified economic activity.Independent regulatory commissions typically alsohave authority to enforce their regulations and to holdhearings to determine violations of their regulations;thus, they exercise authority that is quasi-legislative,quasi-executive, and quasi-judicial. Members aretypically appointed to long terms so as to be immunefrom political influence and are expected to showpolitical balance. Examples include the InterstateCommerce Commission, the Security and ExchangeCommission, and the Federal CommunicationsCommission.

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that was described by Justice Oliver Wendell Holmesin Swift & Co. v. U.S. (1905). This approach saw manu-facturing as only one step in a larger stream of com-merce that crossed state lines and was thereforesubject to federal regulation. In other cases, Holmescriticized judges’ use of the Fourteenth Amendmentto prevent states from regulating companies. In 1908,in Muller v. Oregon, the Court accepted Holmes’sargument when it approved a state law that regu-lated the hours of women’s work. The Muller deci-sion also created a new approach to legal analysis bydrawing less on judicial precedent than on sociologi-cal data and analysis.

The Progressive Era generated four constitutionalamendments and, indirectly, a fifth. Two amend-ments were ratified in 1913: the Sixteenth, permittingCongress to tax incomes; and the Seventeenth,changing the way of electing U.S. Senators. TheSixteenth Amendment was surprisingly uncontro-versial. There had been an income tax before, but ithad been declared unconstitutional. With this newamendment, Congress now had the authority to raisetaxes directly from the people. The SeventeenthAmendment provided for the election of U.S.Senators by the voters of each state, rather than bystate legislatures. This change was part of a largermovement, often called direct democracy, that soughtto move decision making closer to the peoplethrough such measures as the direct primary and theinitiative, referendum, and recall. For more than ahalf-century, increasing numbers of reformers hadtried to eliminate alcohol from American life, blam-ing it for a wide range of social and moral problems.They succeeded with the Eighteenth Amendment(1919), which prohibited the manufacture and sale ofalcoholic beverages. (The Eighteenth Amendmentwas repealed by the Twenty-first Amendment in1933.) The Nineteenth Amendment (1920) markedthe culmination of an even longer effort to extend fullvoting rights to women.

During World War I, the federal governmentassumed unprecedented powers over the economyand over Americans’ lives. In the name of efficiencyand productivity, the railroads and telephone andtelegraph came under federal control. The EspionageAct (1917) and Sedition Act (1918) outlawed criticismof the government, the armed forces, or the wareffort—causing some to compare them to the Alienand Sedition Acts of the 1790s. In Schenck v. U.S.(1919) and Abrams v. U.S. (1919), the Court approvedthese limitations on civil liberties, but the wartimesuppression of freedom of speech and press led some

Americans to organize to challenge any such limita-tions in the future.

The Constitution during the ��s and Early ��s During the 1920s, the Supreme Court moved in aconservative direction under the leadership of a newChief Justice, former President William Howard Taft.Under Taft’s leadership, and often by a close vote, theCourt invalidated laws regulating working condi-tions and prohibiting child labor. The Court alsoapproved restrictions on labor unions. At the sametime, the Court began to extend some protections ofcivil liberties and to emphasize the FourteenthAmendment’s guarantees of individual libertiesagainst state actions.

The Twentieth Amendment, adopted in 1933,adjusted the timetable for newly elected federal offi-cials to begin their terms, an acknowledgment in partof improved transportation and communication facili-ties. Previously, newly elected Presidents had beeninaugurated in March and newly elected members ofCongress usually waited more than a year before tak-ing office. Such schedules had been necessary in thedays of horse-drawn coaches and riverboats. Since1933, newly elected officials begin their terms in themonth of January following their election.

8 ESSAY

direct primary A method of selecting a party’scandidates for elective office in which the party’s voterschoose their candidates in an election; an alternative toselecting a party’s candidates through a convention orcaucus.

initiative, referendum, and recall Methods by whichindividual voters, through the petition process, maymake political decisions directly. The initiative permitsvoters to place a proposal on the ballot; if approved, themeasure becomes a law. The referendum permits votersto place an act by a legislature on the ballot as a way ofoverturning the law. The recall permits voters to ejectan elected official from office before the expiration ofhis or her term.

civil liberties Freedom of speech, press, assembly, andreligion, which are guaranteed by the First andFourteenth Amendments; more generally, fundamentalindividual rights, notably freedom of thought,expression, and action. Civil liberties are consideredessential to a democratic society.

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Modern America

The Constitution during the ��s and ��sIn 1929, the nation entered a long-term economicdepression. It led to the election of Franklin D.Roosevelt in 1932, and to the enactment of a series offar-reaching programs called the New Deal. TheSupreme Court struck down several key New Dealmeasures—including the Agriculture AdjustmentAct—in 1935 and 1936, often by a 6-3 or 5-4 vote.Reelected by a large margin in 1936, Roosevelt triedto remold the Supreme Court by asking Congress tolet him appoint six more justices. His proposal wasdefeated in Congress, but the Court got Roosevelt’smessage, and, in what appeared an about-face, itapproved key New Deal–style measures.

In changing its legal viewpoint, the “RooseveltCourt” used broader interpretations of the generalwelfare and commerce clauses of the Constitution toapprove far-reaching federal intervention in theeconomy. In West Coast Hotel v. Parrish (1937), theCourt accepted a Washington law establishing aminimum wage, reversing its 1936 decision that hadnullified a similar one in New York. The Court wenton to widen the definition of interstate commerce byincluding local businesses and their products as partof a larger stream of commerce in NLRB v. Friedman-Harry Marks Clothing Company (1937) and Wickard v.Filburn (1942). An even wider scope for the Courtwas suggested by Justice Harlan Stone in 1938, whenhe wrote in the Carolene decision that the courtshould apply “more searching judicial inquiry” inexamining noneconomic legislation. In other words,the usual assumption that a state or federal law isconstitutional unless there is strong evidence to thecontrary might be reversed in the case of state or fed-eral laws that limited individual rights (especiallythose of minorities) protected by the Bill of Rightsand Fourteenth Amendment. Cautiously, the Courtbegan to extend federal judicial protection of per-sonal and civil rights. In a series of cases, the Courtruled that the rights of peaceful assembly and thefree exercise of religion could not be limited by statelaws. In Missouri, Lloyd L. Gaines, an AfricanAmerican, was denied admission to the University ofMissouri‘s all white law school because of his race. Inthe subsequent court case, Missouri ex rel. Gaines v.Canada (1937), the Supreme Court held that Missouridid not provide equal access to higher education

within the state for its black citizens. This decisionseemed to imply that “separate but equal” facilities(which had been approved by the Plessy decision)had to be genuinely equal to pass the test of constitu-tionality. At the same time, in Smith v. Alwright (1944),the Court declared unconstitutional the all-white pri-mary election.

The United States’ entry into World War II createdan environment that sought to restrict personal free-doms, especially those related to freedom of speech.While the Court upheld the internment of JapaneseAmericans, it also noted that offending “patrioticemotions” should not lead to “criminal punishment”by protecting speeches and writings by Nazi andCommunist propagandists, as in Viereck v. the UnitedStates (1943) and Schneiderman v. United States (1943).While the Court curtailed state and federal efforts tolimit freedom of speech, it permitted the expansionof presidential and federal power, approving theunprecedented use of executive orders, especiallythose used for domestic reasons. The end of the war,however, did not lead to a relaxation of national secu-rity concerns or restrictions of executive power.

The Cold War and the fear of an internalCommunist threat (the Red Scare) led to continuedefforts to place restrictions on individual and FirstAmendment rights in the name of national security.The Court agreed that Communists represented asubversive threat to the United States, and in theDennis case (1951), it allowed the arrest of prominentAmerican Communist leaders because they were partof a conspiracy to “teach and advocate doctrines call-ing for the overthrow” of the American governmentby force. In this and other Cold War cases, the Courtunderscored that national security interests weremore important than rights found in the Bill of Rights.


executive orders Presidents claim that under theirinherent authority as Chief Executive, they have thepower to further the public interest through the use ofissuing executive orders that do not have to beapproved by Congress. Roosevelt’s Executive Order#9066, for example, authorized the removal of Japaneseand Japanese Americans from the West Coast and theirinternment—an order upheld by the Supreme Court inKorematsu v. the United States (1944).

Cold War Term referring to the geo-political andideological struggle between Communism and the Free World represented by the Soviet Union and theUnited States.

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The Warren Court (��–��)The year 1951 was not a good year for Democrats.Mired in an unpopular war in Korea and, beset bycharges of corruption and being soft on Communism,they faced a resurgent Republican Party and watchedas an amendment to the Constitution appeared to tar-nish the memory of Franklin D. Roosevelt. TheTwenty-second Amendment, claiming to uphold apresidential tradition, limited a president to only twoterms. FDR had served into his fourth term. The fol-lowing year, Republicans finally broke thirty years ofDemocratic control of the White House with the elec-tion of Dwight David Eisenhower. Expectantly,Republicans looked forward to undoing parts of theNew Deal, reducing government regulations overbusiness activities, and appointing justices to theCourt that would be less likely to expand the powerof the federal government. When Eisenhower namedEarl Warren as Chief Justice of the Supreme Court,most court observers believed there would be aretreat from the activism of the Roosevelt Court.

Warren led the Court from 1953 to 1969 and, to theshock of conservatives, expanded federal authorityand individual rights rather than the reverse. In aseries of decisions beginning with Brown v. Board ofEducation of Topeka, Kansas, the Court ruled on civilrights cases that redefined race relations, overcame dejure segregation, and provided legal foundations forthe 1964 Civil Rights Act and the 1965 Voting RightsAct. In approaching the issue of civil rights and per-sonal liberties, the Warren Court used the concept of a“living Constitution,” which viewed the Constitutionas a flexible tool whose meaning varies in the light ofmoral, political, and cultural changes emerging froman evolving society. In 1954, the Court’s Brown deci-sion decreed that Topeka, Kansas, must integrate itsschool system. But Warren chose not to attack segre-gation directly, arguing that since Plessy v. Ferguson,public education had become much more importantand was vital in generating “cultural values,” prepar-ing people for jobs, and helping people adjust to their“environment.” Listening to sociological evidence, hefound that separating people based on race created apattern of “inferiority,” and that “separate educationfacilities are inherently unequal.”

But the Warren Court not only promoted racialequality, it went further to protect freedom of expres-sion and criminal and voting rights. Using theFourteenth Amendment’s right to “due process,” theCourt’s decisions provided legal rights to thoseaccused and found guilty of crimes. Defendantsneeded to be represented by a lawyer during felony

trials (Gideon v. Wainwright, 1963), and those sus-pected of a crime must be apprised of their rights toremain silent and have an attorney present whenquestioned, which came to be known as the Mirandawarning. The Court also protected freedom of speechand expression by reversing the Dennis decision inYates v. the United States (1957), finding that speechalone did not constitute a threat to the nation. Duringthe Vietnam War, the Court found in favor of “sym-bolic speech” (Tinker v. De Moines, 1968), when it pro-tected the right of high school students to wear blackarmbands to protest the war.

During the 1960s, a growing concern about votingrights not only led to the 1965 Voting Rights Act but totwo amendments to the Constitution and several deci-sions by the Supreme Court that extended votingrights. Ratified in 1961, the Twenty-third Amendmentgave residents of the District of Columbia an opportu-nity to vote in presidential elections, while the passageof the Twenty-fourth Amendment (1964) abolished thepoll tax that was used in southern states to denyminorities access to the voting booth. The amendmentaffected only federal elections until the Court in 1966(Harper v. Virginia Board Education) declared that “theequal protection clause” extended the amendment’sprohibition of the poll tax to state elections as well. TheWarren Court already had ruled it could interfere instate elections, in Baker v. Carr (1962), when it requiredTennessee to create state elective districts that providedfor equal, “one man, one vote” representation, a deci-sion that affected the composition of state legislaturesin nearly every state. In 1971, the nation continued toincrease voting rights with the passage of the Twenty-sixth Amendment that permitted those 18 years orolder to vote.

During the social and cultural turmoil of the 1960s,it was the Court’s rulings relating religion and abor-tion that perhaps were the most troublesome to thosearguing that the Court’s judicial activism promotedsocial and cultural values out of touch with mostAmericans. In several cases, the wall separatingchurch and state was heightened by denying prayer(Engle v. Vitale) and Bible reading (Abrington SchoolDistrict v. Schempp) in public schools. In 1965, fiveyears after access to the birth control pill had becomewidespread, the Court issued one of its most con-troversial decisions involving an unused Connecticut

10 ESSAY

de jure A Latin term meaning according to or broughtabout by law.

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law that prohibited the use of contraceptives. InGriswold v. Connecticut, the Court declared theConnecticut statute unconstitutional and argued thatindividuals were surrounded by a zone of privacyinto which the state could not intrude.

The Constitution from �� to the PresentIn 1969, the judicial views of the Court began tochange as Chief Justice Earl Warren was replaced byWarren Burger. A year earlier, Richard Nixon hadbased part of his presidential campaign on opposi-tion to the Warren Court’s decisions and promised toappoint judges who would apply conservative con-stitutionalism and not legislate from the bench. Themore conservative approach was evident by the early1970s as the Court began to limit criminal rights andallow police and district attorneys more flexibilitywhen applying Miranda rights and gathering evi-dence. Likewise, in its civil rights decisions, theBurger Court showed its transition away from thepaths set by the Warren Court. In Swan v. Charlotte-Mecklenburg Board of Education (1971), a dividedCourt ruled that de facto segregation, if caused byhistorical discrimination, needed to be remedied byusing forced busing if necessary. But, where theCourt found no pattern of intentional or historicaldiscrimination, as in Millikan v. Bradley (1974), it ruledthat forced integration was not necessary. In the areaof affirmative action, the Burger Court applied asimilar “color blind” criterion that focused on intentand individuals rather than groups. In the Bakke case(1977), a divided Court ruled that the University ofCalifornia could not use quotas for minority admit-tance if they violated civil rights of an individualbased on race.

While more cautious in expanding racial equali-ties, the Court forged new paths when consideringgender discrimination by striking down laws thathad excluded women from juries and denied womenequal benefits and opportunities. In its Roe v. Wade(1973) decision, the Court expanded the zone of indi-vidual privacy to prevent efforts to place limitationson a woman’s right to an abortion prior to the firstthree months of pregnancy.

By the mid-1980s, the Court’s composition hadchanged as several justices retired and as PresidentRonald Reagan named Justice William Rehnquist asChief Justice. These changes enabled the Court toimplement constitutional conservatism in a variety ofareas, including civil rights and federal authority.

More than the Burger Court, several justices of theRehnquist Court argued that decisions should bebased on the words of the Constitution and originalintent of those who drafted the Constitution and itsamendments. Believing that Congress and state legisla-tures should be the most important determinates ofpolicy, the Court revitalized the Tenth and EleventhAmendments, recognizing state over federal authoritywithin the state. In several decisions, includingSeminole Tribe v. Florida and Kimel v. Florida Board ofRegents, the Court ruled that individuals could not suea state if it did not comply with a federal statute. Aresult of this view of federal–state relationships wasthat the Rehnquist Court oversaw the rejection of morefederal statutes than had any other previous Court.

The shift in the Court’s perspective also affectedthe areas of civil rights, affirmative action, and per-sonal liberties. Using the color blind criteria inAdarand v. Pena (1995), the Court made it more diffi-cult for women and minorities to prove discrimina-tion. It also permitted states to place restrictions onwomen seeking abortions (Planned Parenthood v.Casey, 1991), and it lowered the wall between stateand religion by allowing religious groups andschools access to public facilities and funds, includ-ing upholding a controversial school voucher systemin Zelman v. Simmons-Harris (2003).

In 1992, the latest amendment to the Constitution,originally proposed in 1789 by James Madison, wasratified. The Twenty-seventh Amendment restrictsCongress’s ability to vote itself a pay raise by stipu-lating that any change in compensation could nottake place until a new House of Representative’selection was held.

The reelection of George Bush in 2004 demon-strated the continued strength of conservative


conservative constitutionalism A term used toincorporate conservative views of the nature of theConstitution and the behavior of the Supreme Court. Itsupports the belief of original intent, opposes the Courttrying to impose its own moral and cultural views, andstresses that for problems not directly addressed by theConstitution, the proper form of resolution lies with thedemocratic institutions of the state—Congress and statelegislatures.

de facto Existing by practice, though not officiallyestablished by law.

color blind A view that the Court should regard racialdiscrimination as an issue faced by individuals and notgroups and therefore should be applied to all racialgroups including whites.

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constitutionalism as the president announced hisdetermination to appoint justices that would follow astrict interpretation of the Constitution and notlegislate from the bench. With the 2006 appointmentsof John Roberts as the new Chief Justice and JusticeSamuel Alito, Jr., many Court observers concludedthat the Court would continue to make decisions thatwould limit or overturn the legal premises adoptedby the Court following 1937.

But despite the ideological views of current politi-cians and judges, the history of the Constitutionshows that new interpretations and amendments willcontinue to be proposed that will alter our under-

standing of this great document. History also demon-strates that the political and legal debates that swirlaround the Constitution and Supreme Court also willcontinue to define relationships between law, gov-ernment, and society, and they will contribute to themaking of America.

12 ESSAY

strict interpretation Also “originalism,” a term referringto the Courts deciding cases based on the actual wordsfound in the Constitution and the amendments asintended by those that wrote the words. It sees theConstitution as a static instrument of law.

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Constitution of the United States of America

PreambleWe the people of the United States, in order to form a more perfect union,establish justice, insure domestic tranquillity, provide for the commondefense, promote the general welfare, and secure the blessings of liberty toourselves and our posterity, do ordain and establish this Constitution for theUnited States of America.

Article ISection 1 All legislative powers herein granted shall be vested in a Congressof the United States, which shall consist of a Senate and a House ofRepresentatives.

Section 2 The House of Representatives shall be composed of members chosenevery second year by the people of the several States, and the electors in eachState shall have the qualifications requisite for electors of the most numerousbranch of the State Legislature.

No person shall be a Representative who shall not have attained to the age oftwenty-five years, and been seven years a citizen of the United States, and whoshall not, when elected, be an inhabitant of that State in which he shall be chosen.

Representatives and direct taxes shall be apportioned among the severalStates which may be included within this Union, according to their respectivenumbers, 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 threeyears after the first meeting of the Congress of the United States, and withinevery 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 enumerationshall be made, the State of New Hampshire shall be entitled to choose 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 Executiveauthority thereof shall issue writs of election to fill such vacancies.

The House of Representatives shall choose their Speaker and other officers;and shall have the sole power of impeachment.

Preamble The preamble, writtenlargely by Gouverneur Morris ofPennsylvania, makes clear the pur-pose and goals of the proposednew constitution. These include thecreation of a government thatrests on the sovereignty of thepeople themselves, a stronger unityamong the states, a governmentcapable of preserving law and order,national security, and the estab-lishment of the rule of law.

Article 1 The Legislature Thefirst branch of government to bediscussed is the legislature. Theframers considered this the heartof a representative government,and its powers were the mostimportant to be discussed.

Section 1 This section createsa bicameral, or two-house legisla-ture. The Articles of Confederationhad only one house.

Section 2 The clause estab-lishing that the number of represen-tatives allowed to each state wouldbe based on a combination of freeand unfree persons was replaced byAmendment XIV, Section 2, followingthe emancipation of the slaves.

tranquility A peaceful, untroubled, and cooperative condition.vested A right or duty assigned without reservation to a particular person or office.requisite Required, essential, necessary.apportioned Distributed or collected in predetermined and fixed amounts.

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Section 3 The Senate of the United States shall be composed of two Senatorsfrom each State, chosen by the legislature thereof, for six years; and each Senatorshall 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 theSenators of the first class shall be vacated at the expiration of the second year, ofthe second class at the expiration of the fourth year, and of the third class at theexpiration 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 leg-islature of any State, the Executive thereof may make temporary appointmentsuntil 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 thirtyyears, 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, butshall have no vote, unless they be equally divided.

The Senate shall choose their other officers, and also a President pro tempore,in the absence of the Vice-President, or when he shall exercise the office ofPresident of the United States.

The Senate shall have the sole power to try all impeachments. When sittingfor that purpose, they shall be on oath or affirmation. When the President of theUnited States is tried, the Chief Justice shall preside: and no person shall beconvicted without the concurrence of two-thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removalfrom the office, and disqualification to hold and enjoy any office of honor, trust orprofit under the United States: but the party convicted shall nevertheless be liableand subject to indictment, trial, judgment and punishment, according to law.

Section 4 The times, places and manner of holding elections for Senators andRepresentatives shall be prescribed in each State by the legislature thereof; butthe Congress may at any time by law make or alter such regulations, except asto the places of choosing Senators.

The Congress shall assemble at least once in every year, and such meetingshall be on the first Monday in December, unless they shall by law appoint adifferent day.

Section 5 Each house shall be the judge of the elections, returns and qualifica-tions of its own members, and a majority of each shall constitute a quorum todo business; but a smaller number may adjourn from day to day, and may beauthorized to compel the attendance of absent members, in such manner, andunder such penalties, as each house may provide.

Each house may determine the rules of its proceedings, punish its membersfor disorderly behavior, and with the concurrence of two-thirds, expel a member.

Each house shall keep a journal of its proceedings, and from time to timepublish the same, excepting such parts as may in their judgment requiresecrecy; and the yeas and nays of the members of either house on any questionshall, 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 ofthe other, adjourn for more than three days, nor to any other place than that inwhich the two houses shall be sitting.

Section 3 In the original con-stitution, Senators were to bechosen by the state legislatures.Section 1 of Amendment XVIIestablished the popular election ofSenators, and Section 2 elimi-nated the power of the Executiveto appoint a temporary replace-ment for a resigning senator.

The constitution provides asystem of rotation for the Senateby staggering the terms so thatone third of this branch is to beelected every two years.

Section 4 During the colonialperiod, the royal governor coulddismiss the colonial assembliesand refuse to call a new assemblyfor months, even years. This sec-tion gives the state legislaturesthe power to set the time, place,and manner of electing senatorsand representatives, and it ensuresthat Congress will meet at leastonce a year. Amendment XX,Section 2, removed the require-ment that Congress convene onthe first Monday in December.

14 MAKING THE AMERICAN CONSTITUTION

president pro tempore The Senator who presides over the U.S. Senate in the absenceof the Vice President.

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Section 6 The Senators and Representatives shall receive a compensation fortheir services, to be ascertained by law and paid out of the treasury of the UnitedStates. They shall in all cases except treason, felony and breach of the peace, beprivileged from arrest during their attendance at the session of their respectivehouses, and in going to and returning from the same; and for any speech ordebate 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, whichshall have been created, or the emoluments whereof shall have been increased,during such time; and no person holding any office under the United Statesshall be a member of either house during his continuance in office.

Section 7 All bills for raising revenue shall originate in the House ofRepresentatives; but the Senate may propose or concur with amendments as onother bills.

Every bill which shall have passed the House of Representatives and theSenate, shall, before it becomes a law, be presented to the President of the UnitedStates; if he approves he shall sign it, but if not he shall return it with objectionsto that house in which it originated, who shall enter the objections at large ontheir 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 theobjections, to the other house, by which it shall likewise be reconsidered, and, ifapproved by two-thirds of that house, it shall become a law. But in all such casesthe votes of both houses shall be determined by yeas and nays, and the namesof the persons voting for and against the bill shall be entered on the journal ofeach house respectively. If any bill shall not be returned by the President withinten days (Sundays excepted) after it shall have been presented to him, the sameshall be a law, in like manner as if he had signed it, unless the Congress by theiradjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate andHouse of Representatives may be necessary (except on a question of adjourn-ment) shall be presented to the President of the United States; and before thesame 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.

Section 8 The Congress shall have powerTo lay and collect taxes, duties, imposts, and excises, to pay the debts and

provide for the common defense and general welfare of the United States; butall 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 sub-

ject 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;

Section 7 One of the majorissues in the American Revolutionwas “no taxation without represen-tation,” and thus the Constitutionensures that all taxation billsmust begin in the House ofRepresentatives.

This clause lays out theprocess by which the President canveto a legislative bill and the legis-lature can, in turn, override thatveto. This shows the process ofchecks and balances in operation.

Section 8 The framers believedthe Articles of Confederation didnot give the national governmentenough authority. Many of the pow-ers given to Congress under theConstitution were designed to cor-rect the weaknesses they saw in theold government. While most of thesepowers are very specific, the finalsection, granting Congress theauthority to make all laws that were“necessary and proper” to carry outtheir powers, is much broader and isknown as the “elastic clause.”

Section 6 Amendment XXVIIaltered the method of compensa-tion, or pay, for members ofCongress.

emoluments Salaries, benefits, or rewards given for the performance of particular duties.imposts Taxes; generally associated with taxes on imported goods.excises Taxes on domestically produced items, usually associated with “luxury” items.naturalization The process by which the citizen of one country can apply for and

receive citizenship in a country to which that person has migrated.

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To provide for the punishment of counterfeiting the securities and currentcoin 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 writingsand discoveries;

To constitute tribunals inferior to the Supreme Court;To define and punish piracies and felonies committed on the high seas and

offenses against the law of nations;To declare war, grant letters of marque and reprisal, and make rules con-

cerning 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, sup-

press insurrections, and repel invasions;To provide for organizing, arming, and disciplining the militia, and for gov-

erning such part of them as may be employed in the service of the UnitedStates, reserving to the States respectively the appointment of the officers, andthe authority of training the militia according to the discipline prescribed byCongress;

To exercise exclusive legislation in all cases whatsoever, over such district(not exceeding ten miles square) as may, by cession of particular States, and theacceptance of Congress, become the seat of government of the United States,and to exercise like authority over all places purchased by the consent of thelegislature of the State, in which the same shall be, for erection of forts, maga-zines, arsenals, dockyards, and other needful buildings;—and

To make all laws which shall be necessary and proper for carrying into exe-cution the foregoing powers, and all other powers vested by this Constitutionin the government of the United States, or in any department or officer thereof.

Section 9 The migration or importation of such persons as any of the Statesnow existing shall think proper to admit shall not be prohibited by theCongress prior to the year 1808; but a tax or duty may be imposed on suchimportation, not exceeding $10 for each person.

The privilege of the writ of habeas corpus shall not be suspended, unlesswhen 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 or 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

Section 9 The framersbelieved it was important to limitthe power of each branch of govern-ment. One of the limitations theyset, however, allowed the slavetrade to continue until 1808 with-out interference by the nationalgovernment. Amendment XVIremoved the limitations set here on direct taxation.

letters of marque and reprisal A commission or license granted by a government toa private person to fit out an armed ship that can capture enemy ships and cargoes.

bill of attainder A law passed to punish a particular person or group of peoplewithout benefit of a trial.

ex post facto Done or made after the fact; retroactive.capitation A direct, equal tax imposed on each person.enumeration Counted off or named one by one; a census or accounting of people

or things.

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Section 10 The creation of anational government required thatthe states give up some powersthey might have claimed or exercisedbefore the Constitution. This sectionlists those powers.

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 appropri-ations made by law; and a regular statement and account of the receipts andexpenditures 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 hold-ing any office of profit or trust under them, shall, without the consent of theCongress, accept of any present, emolument, office, or title, of any kind what-ever, from any king, prince, or foreign state.

Section 10 No State shall enter into any treaty, alliance, or confederation; grantletters of marque and reprisal; coin money; emit bills of credit; make anythingbut 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 titleof nobility.

No State shall, without the consent of Congress, lay any imposts or dutieson imports or exports, except what may be absolutely necessary for executingits inspection laws: and the net produce of all duties and imposts, laid by anyState on imports or exports, shall be for the use of the treasury of the UnitedStates; and all such laws shall be subject to the revision and control of theCongress.

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 com-pact with another State, or with a foreign power, or engage in war, unless actu-ally invaded, or in such imminent danger as will not admit of delay.

Article IISection 1 The executive power shall be vested in a President of the United Statesof America. He shall hold his office during the term of four years, and, togetherwith the Vice-President, chosen for the same term, be elected as follows:

Each State shall appoint, in such manner as the legislature thereof maydirect, a number of electors, equal to the whole number of Senators andRepresentatives to which the State may be entitled in the Congress; but noSenator or Representative, or person holding an office of trust or profit underthe United States, shall be appointed an elector.

The electors shall meet in their respective States, and vote by ballot for twopersons, of whom one at least shall not be an inhabitant of the same State withthemselves. And they shall make a list of all the persons voted for, and of thenumber of votes for each; which list they shall sign and certify, and transmitsealed to the seat of government of the United States, directed to the Presidentof the Senate. The President of the Senate shall, in the presence of the Senateand House of Representatives, open all the certificates, and the votes shall thenbe counted. The person having the greatest number of votes shall be thePresident, if such number be a majority of the whole number of electorsappointed; and if there be more than one who have such majority, and have anequal number of votes, then the House of Representatives shall immediatelychoose by ballot one of them for President; and if no person have a majority,then from the five highest on the list said house shall in like manner choose thePresident. But in choosing the President the votes shall be taken by States, the

Article II The Executive Branch

Section 1 The constitutionmade no provision for separatevotes for a president and a vicepresident. After the election of1800, the process was amended byAmendment XII. The succession tothe office of president was alsomodified by Amendments XX and XXV.

tonnage A duty or charge per ton on cargo; weight measured in tons.

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representation from each State having one vote; a quorum for this purpose shallconsist of a member or members from two-thirds of the States, and a majorityof all the States shall be necessary to a choice. In every case, after the choice ofthe President, the person having the greatest number of votes of the electorsshall be the Vice-President. But if there should remain two or more who haveequal votes, the Senate shall choose from them by ballot the Vice-President.

The Congress may determine the time of choosing the electors and the dayon which they shall give their votes; which day shall be the same throughoutthe United States.

No person except a natural-born citizen, or a citizen of the United States at the timeof the adoption of this Constitution, shall be eligible to the office of President; neithershall any person be eligible to that office who shall not have attained to the age ofthirty-five years, and been fourteen years a resident within the United States.

In cases 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 shalldevolve on the Vice-President, and the Congress may by law provide for the caseof removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shallact 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 increased nor diminished during the period for which heshall have been elected, and he shall not receive within that period any otheremolument from the United States, or any of them.

Before he enter on the execution of his office, he shall take the following oathor affirmation:—”I do solemnly swear (or affirm) that I will faithfully executethe office of the President of the United States, and will to the best of my abil-ity preserve, protect and defend the Constitution of the United States.”

Section 2 The President shall be commander in chief of the army and navy of theUnited States, and of the militia of the several States, when called into the actualservice of the United States; he may require the opinion, in writing, of the princi-pal officer in each of the executive departments, upon any subject relating to theduties of their respective offices, and he shall have power to grant reprieves andpardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, tomake treaties, provided two-thirds of the Senators present concur; and he shallnominate, and by and with the advice and consent of the Senate, shall appointambassadors, other public ministers and consuls, judges of the Supreme Court,and all other officers of the United States, whose appointments are not hereinotherwise provided for, and which shall be established by law: but Congressmay 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 dur-ing the recess of the Senate, by granting commissions which shall expire at theend of their next session.

Section 3 He shall from time to time give to the Congress information of thestate of the Union, and recommend to their consideration such measures as heshall judge necessary and expedient; he may, on extraordinary occasions, con-vene both houses, or either of them, and in case of disagreement between them,with respect to the time of adjournment, he may adjourn them to such time ashe shall think proper; he shall receive ambassadors and other public ministers;he shall take care that the laws be faithfully executed, and shall commission allthe officers of the United States.

Section 3 In the modern era,radio and television have con-tributed to making the State ofthe Union address a more signifi-cant—and public—event than theframers envisioned. Between 1801and 1913, the State of the Unionmessage was delivered in writing. Itwas not until Franklin D. Roosevelt’spresidency, when the radio becamea common fixture in Americanhomes, that delivering the speech inperson became customary. Becausepolitical parties were formed soonafter the Constitution was ratified,the State of the Union address isoften the means by which theleader of the party in power pre-sents his or her agenda for thecoming year.

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Article III The Judicial Branch

Section 1 This section cre-ates the court system. UnlikeCongress and the President, judgeshave no limits on their terms andare allowed to sit on the bench”during good behavior,” that is,unless they act inappropriately.

Section 2 The jurisdiction ofthe federal court was modified byAmendment XI.

Section 4 The President, Vice-President and all civil officers of the UnitedStates shall be removed from office on impeachment for, and on conviction of,treason, bribery, or other high crimes and misdemeanors.

Article IIISection 1 The judicial power of the United States shall be vested in one SupremeCourt, and in such inferior courts as the Congress may from time to time ordainand establish. The judges, both of the Supreme and inferior courts, shall hold theiroffices during good behavior, and shall, at stated times, receive for their services acompensation which shall not be diminished during their continuance in office.

Section 2 The judicial power shall extend to all cases, in law and equity, aris-ing under this Constitution, the laws of the United States, and treaties made, orwhich shall be made, under their authority;—to all cases affecting ambassadors,other public ministers and consuls;—to all cases of admiralty and maritimejurisdiction;—to controversies to which the United States shall be a party;—tocontroversies between two or more States;—between a State and citizens of anotherState;—between citizens of different States;—between citizens of the same Stateclaiming lands under grants of different States, and between a State, or the citi-zens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, andthose in which a State shall be party, the Supreme Court shall have originaljurisdiction. In all the other cases before mentioned, the Supreme Court shallhave appellate jurisdiction, both as to law and fact, with such exceptions, andunder such regulations, as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; andsuch trial shall be held in the State where said crimes shall have been commit-ted; but when not committed within any State, the trial shall be at such place orplaces as the Congress may by law have directed.

Section 3 Treason against the United States shall consist only in levying waragainst them, or in adhering to their enemies, giving them aid and comfort. Noperson shall be convicted of treason unless on the testimony of two witnessesto the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but noattainder of treason shall work corruption of blood, or forfeiture except duringthe life of the person attainded.

Article IVSection 1 Full faith and credit shall be given in each State to the public acts,records, and judicial proceedings of every other State. And the Congress mayby general laws prescribe the manner in which such acts, records, and proceed-ings shall be proved, and the effect thereof.

Section 2 The citizens of each State shall be entitled to all privileges andimmunities of citizens in the several States.

Section 3 The framersdefined treason far more narrowlythan the English government hadhistorically defined it. In England,high treason included not onlyplots against the sovereign andgiving aid and comfort to the sov-ereign’s enemies but also counter-feiting and attempting toundermine the established line ofsuccession to the throne [a con-cern that was no longer applicablein a republic, with an elected execu-tive]. The framers were also carefulto limit punishment to the personaccused and convicted. The Englishnotion of “corruption of the blood,”which extended punishment to thetraitor’s family, was rejected.

Article IV The States

Section 1 Each state tohonor all others.

This is another example of theeffort by the framers to creategreater unity and uniformity amongthe separate states.

Section 2 Amendment XIII,which abolished slavery, supersededthe final clause in this section,which deals with fugitive slaves.

equity Something that is just, impartial, and fair.appellate jurisdiction The power granted to a court to hear appeals to decisions

made by a lower court.immunities Exemptions from normal duties or from legal prosecution.

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A person charged in any State with treason, felony, or other crime, who shallflee from justice, and be found in another State, shall on demand of the execu-tive authority of the State from which he fled, be delivered up, to be removedto 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 therein, bedischarged from such service or labor, but shall be delivered up on claim of theparty to whom such service or labor may be due.

Section 3 New States may be admitted by the Congress into this Union; but nonew State shall be formed or erected within the jurisdiction of any other State;nor any State be formed by the junction of two or more States, or parts of States,without the consent of the legislatures of the States concerned as well as of theCongress.

The Congress shall have power to dispose of and make all needful rules andregulations respecting the territory or other property belonging to the UnitedStates; and nothing in this Constitution shall be so construed as to prejudiceany claims of the United States, or of any particular State.

Section 4 The United States shall guarantee to every State in this Union arepublican form of government, and shall protect each of them against inva-sion; and on application of the legislature, or of the executive (when the legis-lature cannot be convened), against domestic violence.

Article VThe Congress, whenever two-thirds of both houses shall deem it necessary, shallpropose amendments to this Constitution, or, on the application of the legislaturesof two-thirds of the several States, shall call a convention for proposing amend-ments, which, in either case, shall be valid to all intents and purposes, as part ofthis Constitution, when ratified by the legislatures of three-fourths of the severalStates, or by conventions in three-fourths thereof, as the one or the other mode ofratification may be proposed by the Congress; provided that no amendments whichmay be made prior to the year one thousand eight hundred and eight shall in any manneraffect the first and fourth clauses in the ninth section of the first article; and that no State,without its consent, shall be deprived of its equal suffrage in the Senate.

Article VIAll debts contracted and engagements entered into, before the adoption of thisConstitution, 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 inpursuance thereof; and all treaties made, or which shall be made, under theauthority of the United States, shall be the supreme law of the land; and thejudges in every State shall be bound thereby, anything in the Constitution orlaws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of theseveral State legislatures, and all executive and judicial officers, both of theUnited States and of the several States, shall be bound by oath or affirmation tosupport this Constitution; but no religious test shall ever be required as a quali-fication to any office or public trust under the United States.


Article VI The framers, like most

Americans, opposed the creation ofan official national religion such asthe Church of England in GreatBritain. This article demonstratestheir desire to ensure a strictseparation of church and state byforbidding any religious test as aqualification for holding nationaloffice.

Section 3 This section limitsthe creation of new states toareas that are not claimed byexisting states, and it prohibitsthe merger of two or more statesinto one without approval of thelegislatures of these states. WestVirginia, for example, was originallypart of Virginia and was not recog-nized as a separate state until1863.

Section 4 A republican formof government meant the creationof a representative legislature thathad the exclusive right to levytaxes.

Article V Amendment ProcessThe framers, recognizing that

changing circumstances wouldalter the needs of the nation,included an amendment processthat allowed the Constitution tochange with the times. Certainchanges were explicitly forbidden,however, including any restrictionson the slave trade before 1808 orany change that altered the equalrepresentation of the states in theSenate. Since the Constitutionwas ratified, 27 amendments havebeen passed, including the first 10amendments, known as the Bill ofRights.

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Article VII RatificationThe framers may have met to

draft the constitution in secret,but they had no intention of impos-ing it by force on the people of theUnited States—and no means todo so even if they wanted to. Theysubmitted it for ratification, orformal approval, to state conven-tions, called for the sole purpose ofdebating the acceptance of thenew government. By creating thesespecial conventions, the framersavoided having to submit theConstitution to the state legisla-tures. Many of these state govern-ments might have opposed theConstitution, since it deprivedthem of several powers theyenjoyed under the Articles.

The First Amendment The FirstAmendment outlines what areas ofpersonal expression should be freefrom Congressional controls. Priorto the Fourteenth Amendment,none of these protectionsextended to state lawmakers; e.g.,a number of states continued tohave established churches into thenineteenth century.

The Second Amendment TheSecond Amendment protects theright to bear arms. Because of itsopening statement, some questionwhether this right extends to allindividuals or just to those involvedwith the militia.

The Third Amendment The ThirdAmendment prevents militaryauthorities from appropriating pri-vate housing but leaves openCongress’s right to pass laws thatmight permit such actions.

Article VIIThe ratification of the conventions of nine States shall be sufficient for the estab-lishment of this Constitution between the States so ratifying the same.

Done in Convention by the unanimous consent of the States present, the sev-enteenth day of September in the year of our Lord one thousand seven hundredand eighty-seven and of the Independence of the United States of America thetwelfth. In witness whereof we have hereunto subscribed our names.

Amendments to the Constitution*Amendment ICongress shall make no law respecting an establishment of religion, or pro-hibiting the free exercise thereof; or abridging the freedom of speech, or of thepress; or the right of the people peaceably to assemble, and to petition the gov-ernment for a redress of grievances.

Amendment IIA well-regulated militia being necessary to the security of a free State, the rightof the people to keep and bear arms shall not be infringed.

Amendment IIINo soldier shall, in time of peace, be quartered in any house without the con-sent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IVThe right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and nowarrants shall issue but upon probable cause, supported by oath or affirma-tion, and particularly describing the place to be searched, and the persons orthings to be seized.

Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a grand jury, except in cases arisingin the land or naval forces, or in the militia, when in actual service in time ofwar or public danger; nor shall any person be subject for the same offense to betwice put in jeopardy of life or limb; nor shall be compelled in any criminal caseto be a witness against himself, nor be deprived of life, liberty, or property,without due process of law; nor shall private property be taken for public usewithout just compensation.

The Fourth Amendment TheFourth Amendment requires thatall government-sanctionedsearches of private property beconducted only after evidence ofwrong-doing has been presentedand a warrant has been issuedthat states specifically what maybe searched and who or what maybe taken into custody.

The Fifth Amendment The FifthAmendment limits the power of thegovernment to take action againstindividuals by protecting five funda-mental rights: all serious criminalaccusations not involving the

redress Relief from the ill effects of some action.

*The first ten Amendments (the Bill of Rights) were adopted in 1791.

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Amendment VIIn all criminal prosecutions, the accused shall enjoy the right to a speedy andpublic trial, by an impartial jury of the State and district wherein the crime shallhave been committed, which district shall have been previously ascertained bylaw, and to be informed of the nature and cause of the accusation; to be con-fronted with the witnesses against him; to have compulsory process for obtain-ing witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VIIIn suits at common law, where the value in controversy shall exceed twentydollars, the right of trial by jury shall be preserved, and no fact tried by a juryshall be otherwise reexamined in any court of the United States, than accordingto the rules of the common law.

Amendment VIIIExcessive bail shall not be required, nor excessive fines imposed, nor cruel andunusual punishments inflicted.

Amendment IXThe enumeration in the Constitution, of certain rights, shall not be construed todeny or disparage others retained by the people.

Amendment XThe powers not delegated to the United States by the Constitution, nor prohib-ited by it to the States, are reserved to the States respectively, or to the people.

Amendment XI[Adopted 1798]The judicial power of the United States shall not be construed to extend to anysuit in law or equity, commenced or prosecuted against one of the United Statesby citizens of another State, or by citizens or subjects of any foreign state.

Amendment XII[Adopted 1804]The electors shall meet in their respective States, and vote by ballot for Presidentand Vice-President, one of whom, at least, shall not be an inhabitant of the sameState with themselves; they shall name in their ballots the person voted for asPresident, and in distinct ballots the person voted for as Vice-President, and they


The Ninth Amendment Oftencalled the “forgotten amendment,”the Ninth Amendment protectsunenumerated rights—rights thatare assumed to belong to the peoplebut are not specifically included inthe Constitution. It has never beenused as the sole justification fordeclaring any law unconstitutional.

The Tenth Amendment Thoughseemingly straightforward inreserving all unenumerated rightsfor the states or the people, theline where the protections underthe Tenth Amendment starts andthe “elastic clause” in Article I,Section 7, leaves off has been asource of much legal contention.

The Sixth Amendment The SixthAmendment seeks to protect therights of individuals against thesuperior power of the state byrequiring speedy and public trials inwhich defendants have the right toknow the nature of the crimes ofwhich they are accused and to con-front their accusers. It also helpsbalance the power between the indi-vidual and the state by ensuringthat all defendants have legal coun-sel and the power to compel wit-nesses to appear in their defense.

The Seventh Amendment TheSeventh Amendment extends theright of trial by jury to civil actions.It also specifies that once a juryhas determined fault in a case, ajudge may overturn it only on proce-dural grounds and not on the inter-pretation of facts in the case.

The Eighth Amendment Like theprevious three amendments, theEighth Amendment is designed toprotect individuals from unfairactions on the part of the govern-ment by prohibiting unreasonableassessments of bail or fines andpreventing the government frominflicting punishments that gobeyond what the community in gen-eral considers just and decent.

military must be screened by agrand jury; no one found innocentof a crime can be tried again forthe same crime; defendants can-not be forced to testify againstthemselves; no one’s life, liberty, orproperty can be taken without dueprocess of law; and any propertytaken for public use must be paidfor in full.

civil actions Refers to any lawsuit that relates to business contracts, estates, etc., andnot criminal prosecution.

common law Also called “case law,” it is an unwritten law developed primarily fromjudicial case decisions and based on custom and precedent; as opposed to statute or“black letter” law, which refers to laws written by legislatures or other official bodies.

bail A sum of money or other property that is turned over to a court to guarantee theappearance of a defendant for trial, allowing the individual to be free until the trialhas determined guilt or innocence.

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The Eleventh Amendment TheEleventh Amendment modified aprovision in Article III, Section 2,that automatically assigned law-suits between a state and the citi-zens of a different state or of aforeign nation to the federal courts.

The Twelfth Amendment InArticle II, Section 1, electors wereinstructed to vote for any twocertified candidates; the onereceiving the most votes becamepresident, and the one who came insecond became vice president. This led to problems in the presi-dential elections of 1796 and 1800.After the ratification of the TwelfthAmendment, each elector wasinstructed to cast a separate bal-lot for president and vice president.

The Thirteenth Amendment TheThirteenth Amendment prohibitsslavery.

The Fourteenth AmendmentSection 1 The Fourteenth

Amendment, Section 1, makes thedefinition of American citizenship apart of the Constitution and pro-tects the rights of citizensagainst any action by states.

shall make distinct lists of all persons voted for as President, and of all personsvoted for as Vice-President, and of the number of votes for each, which lists theyshall sign and certify, and transmit sealed to the seat of government of the UnitedStates, 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 certifi-cates and the votes shall then be counted;—the person having the greatest num-ber of votes for President shall be the President, if such number be a majority ofthe whole number of electors appointed; and if no person have such majority, thenfrom the persons having the highest numbers not exceeding three on the list ofthose voted for as President, the House of Representatives shall choose immedi-ately, by ballot, the President. But in choosing the President, the votes shall betaken by States, the representation from each State having one vote; a quorum forthis purpose shall consist of a member or members from two-thirds of the States,and a majority of all the States shall be necessary to a choice. And if the House ofRepresentatives shall not choose a President whenever the right of choice shalldevolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutionaldisability of the President.

The person having the greatest number of votes as Vice-President shall bethe Vice-President, if such number be a majority of the whole number of elec-tors appointed; and if no person have a majority, then from the two highestnumbers on the list the Senate shall choose the Vice-President; a quorum for thepurpose shall consist of two-thirds of the whole number of Senators, and amajority of the whole number shall be necessary to a choice. But no personconstitutionally ineligible to the office of President shall be eligible to that ofVice-President of the United States.

Amendment XIII[Adopted 1865]Section 1 Neither slavery nor involuntary servitude, except as a punishmentfor crime whereof the party shall have been duly convicted, shall exist withinthe United States, or any place subject to their jurisdiction.Section 2 Congress shall have power to enforce this article by appropriatelegislation.

Amendment XIV[Adopted 1868]Section 1 All persons born or naturalized in the United States, and subject tothe jurisdiction thereof, are citizens of the United States and of the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equal protection of the laws.

naturalized citizen A person not born in the U.S. who becomes a citizen by a processcalled naturalization.

due process of law The guarantees and safeguards of the law and the judicialprocess. Procedural due process refers to how the law is carried out. Substantive dueprocess is more complex, referring to whether or not a law is reasonable or legitimate,a matter for court decision.

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Section 2 Representatives shall be apportioned among the several Statesaccording to their respective numbers, counting the whole number of personsin each State, excluding Indians not taxed. But when the right to vote at anyelection for the choice of Electors for President and Vice-President of the UnitedStates, Representatives in Congress, the executive and judicial officers of aState, or the members of the legislature thereof, is denied to any of the maleinhabitants of such State, being twenty-one years of age and citizens of theUnited States, or in any way abridged, except for participation in rebellion, orother crime, the basis of representation therein shall be reduced in the propor-tion which the number of such male citizens shall bear to the whole number ofmale citizens twenty-one years of age in such State.

Section 3 No person shall be a Senator or Representative in Congress, or Electorof President and Vice-President, or hold any office, civil or military, under theUnited States, or under any State, who, having previously taken an oath, as amember of Congress, or as an officer of the United States, or as a member of anyState legislature, or as an executive or judicial officer of any State, to support theConstitution of the United States, shall have engaged in insurrection or rebellionagainst the same, or given aid or comfort to the enemies thereof. Congress may,by a vote of two-thirds of each house, remove such disability.

Section 4 The validity of the public debt of the United States, authorized bylaw, including debts incurred for payment of pensions and bounties for ser-vices in suppressing insurrection or rebellion, shall not be questioned. But nei-ther the United States nor any State shall assume or pay any debt or obligationincurred in aid of insurrection or rebellion against the United States, or anyclaim for the loss of emancipation of any slave; but all such debts, obligations,and claims shall be held illegal and void.

Section 5 The Congress shall have power to enforce, by appropriate legisla-tion, the provisions of this article.

Amendment XV[Adopted 1870]Section 1 The right of citizens of the United States to vote shall not be deniedor abridged by the United States or by any State on account of race, color, orprevious condition of servitude.

Section 2 The Congress shall have power to enforce this article by appropriatelegislation.

Amendment XVI[Adopted 1913]The Congress shall have power to lay and collect taxes on incomes, from what-ever source derived, without apportionment among the several States, andwithout regard to any census or enumeration.


Section 2 Section 2 invali-dates that part of Article I, Section2, that specified that three-fifth ofslaves would be counted for thepurpose of representation in theHouse; the remainder of this sec-tion has never been applied.

Section 3 Section 3 wasintended to punish those who sup-ported the Confederacy by barringthem from federal office withoutspecific action by Congress.

Section 4 Section 4 wasintended to invalidate the debtincurred by the Confederacy, anydebt incurred in support of theConfederacy, and any claim forcompensation due to Emancipation.

The Fifteenth Amendment TheFifteenth Amendment guaranteesthe right to vote regardless ofrace, color, or having once been aslave.

The Sixteenth Amendment TheSixteenth Amendment replacedthat part of Article 1, Section 9,that prohibited Congress fromlevying any “direct, tax . . . unless inproportion to the census orenumeration.”

abridge Limit.

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The Eighteenth Amendment TheEighteenth Amendment estab-lished Prohibition, which lasted untilthe ratification of the Twenty-firstAmendment in 1933.

The Nineteenth Amendment TheNineteenth Amendment estab-lishes woman suffrage.

The Twentieth AmendmentSection 1 This section speci-

fies the dates when the terms ofpresident, vice-president, senators,and representatives begin.

Section 2 This sectionchanges the provisions of Article 1,Section 4, regarding meetings ofCongress. Because of it, theFourteenth Amendment has beencalled the “lame duck” amendmentbecause it eliminated the “lame

Amendment XVII[Adopted 1913]Section 1 The Senate of the United States shall be composed of two Senatorsfrom each State, elected by the people thereof, for six years; and each Senatorshall have one vote. The electors in each State shall have the qualifications requi-site for electors of [voters for] the most numerous branch of the State legislatures.

Section 2 When vacancies happen in the representation of any State in theSenate, the executive authority of such State shall issue writs of election to fillsuch vacancies: Provided, that the Legislature of any State may empower theexecutive thereof to make temporary appointments until the people fill thevacancies by election as the Legislature may direct.

Section 3 This amendment shall not be so construed as to affect the election orterm of any Senator chosen before it becomes valid as part of the Constitution.

Amendment XVIII[Adopted 1919; Repealed 1933]Section 1 After one year from the ratification of this article the manufacture,sale, or transportation of intoxicating liquors within, the importation thereofinto, or the exportation thereof from the United States and all territory subjectto the jurisdiction thereof, for beverage purposes, is hereby prohibited.

Section 2 The Congress and the several States shall have concurrent power toenforce this article by appropriate legislation.

Section 3 This article shall be inoperative unless it shall have been ratified asan amendment to the Constitution by the legislatures of the several States, asprovided by the Constitution, within seven years from the date of the submis-sion thereof to the States by the Congress.

Amendment XIX[Adopted 1920]Section 1 The right of citizens of the United States to vote shall not be deniedor abridged by the United States or by any State on account of sex.


Amendment XX[Adopted 1933]Section 1 The terms of the President and Vice-President shall end at noon on the20th day of January, and the terms of Senators and Representatives at noon on the3rd day of January, of the years in which such terms would have ended if thisarticle had not been ratified; and the terms of their successors shall then begin.

Section 2 The Congress shall assemble at least once in every year, and suchmeeting shall begin at noon on the 3rd day of January, unless they shall by lawappoint a different day.

Section 3 If, at the time fixed for the beginning of the term of the President, thePresident-elect shall have died, the Vice-President–elect shall become

The Seventeenth AmendmentThe Seventeenth Amendmentreplaced the provisions in Article I,Section 3, that specified thatSenators were to be chosen bystate legislatures. The Amendmentalso provides for filling vacancies inthe U.S. Senate.

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President. If a President shall not have been chosen before the time fixed for thebeginning of his term, or if the President-elect shall have failed to qualify, thenthe Vice-President–elect shall act as President until a President shall have qual-ified; and the Congress may by law provide for the case wherein neither aPresident-elect nor a Vice-President–elect shall have qualified, declaring whoshall then act as President, or the manner in which one who is to act shall beselected, and such persons shall act accordingly until a President or Vice-President shall have qualified.

Section 4 The Congress may by law provide for the case of the death of any ofthe persons from whom the House of Representatives may choose a Presidentwhenever the right of choice shall have devolved upon them, and for the caseof the death of any of the persons from whom the Senate may choose a Vice-President whenever the right of choice shall have devolved upon them.

Section 5 Sections 1 and 2 shall take effect on the 15th day of October follow-ing the ratification of this article.

Section 6 This article shall be inoperative unless it shall have been ratified asan amendment to the Constitution by the Legislatures of three-fourths of theseveral States within seven years from the date of its submission.

Amendment XXI[Adopted 1933]Section 1 The eighteenth article of amendment to the Constitution of theUnited States is hereby repealed.

Section 2 The transportation or importation into any State, Territory, orPossession of the United States for delivery or use therein of intoxicatingliquors, in violation of the laws thereof, is hereby prohibited.

Section 3 This article shall be inoperative unless it shall have been ratified asan amendment to the Constitution by conventions in the several States, as pro-vided in the Constitution, within seven years from the date of submissionthereof to the States by the Congress.

Amendment XXII[Adopted 1951]Section 1 No person shall be elected to the office of President more than twice,and no person who has held the office of President, or acted as President, formore than two years of a term to which some other person was elected Presidentshall be elected to the office of President more than once. But this article shall notapply to any person holding the office of President when this article was pro-posed by the Congress, and shall not prevent any person who may be holdingthe office of President, or acting as President, during the term within which thisarticle becomes operative from holding the office of President or acting asPresident during the remainder of such term.

Section 2 This article shall be inoperative unless it shall have been ratified asan amendment to the Constitution by the legislatures of three-fourths of theseveral States within seven years from the date of its submission to the Statesby the Congress.


Section 6 This section marksthe first time that Congress speci-fied a time limit on ratification.

The Twenty-first Amendment TheTwenty-first Amendment repeals the Eighteenth Amendment, theonly instance in which anAmendment has been repealed.

The Twenty-second AmendmentThe Twenty-second Amendmentplaced limits on the president oftwo terms. Recently, term limits forrepresentatives to Congress andfederal judges has gained support-ers, but the Supreme Court in TermLimits, Inc. v. Thornton (1995) ruledthat states could not implementterm limits on federal officials.

Sections 3 and 4 Thesesections specify how to deal withthe death or failure to qualify of apresident-elect or vice-president–elect.

duck” session of Congress thathad previously taken place followingelections and that often includedrepresentatives and senators whohad been defeated for reelection.

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The Twenty-fourth AmendmentThe Twenty-fourth Amendmentabolished the poll tax. In 1966, theSupreme Court ruled in Harper v.Virginia Board of Education thatthe poll tax could not be used instate elections.

The Twenty-fifth AmendmentThe Twenty-fifth Amendment pro-vided clarity for presidential andvice-presidential succession incase of death or disability.

Section 1 This section con-firms that the vice-president shallassume the office of president if avacancy exists.

Section 2 This sectionprovides a means to select a vice-president should a vacancy occurin the office. Until the Twenty-fifthAmendment, there were 17 timeswhen the nation had no vice-president.

Sections 3 and 4 These sec-tions clarify who and how it isdetermined whether a president isunable to perform his duties.

Section 3 states that a presi-dent can declare himself both ableand unable to perform his duties.

Section 4 describes the meansby which others can determinethat a president is unable to carry

Amendment XXIII[Adopted 1961]Section 1 The District constituting the seat of Government of the United Statesshall appoint in such manner as the Congress may direct:

A number of electors of President and Vice-President equal to the wholenumber of Senators and Representatives in Congress to which the Districtwould be entitled if it were a State, but in no event more than the least popu-lous State; they shall be in addition to those appointed by the States, but theyshall be considered for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in the Districtand perform such duties as provided by the twelfth article of amendment.

Section 2 The Congress shall have the power to enforce this article by appro-priate legislation.

Amendment XXIV[Adopted 1964]Section 1 The right of citizens of the United States to vote in any primary orother election for President or Vice-President, for electors for President or Vice-President, or for Senator or Representative in Congress, shall not be denied orabridged by the United States or any State by reason of failure to pay any polltax or other tax.

Section 2 The Congress shall have the power to enforce this article by appro-priate legislation.

Amendment XXV[Adopted 1967]Section 1 In case of the removal of the President from office or of his death orresignation, the Vice-President shall become President.

Section 2 Whenever there is a vacancy in the office of the Vice-President, thePresident shall nominate a Vice-President who shall take office upon confirma-tion by a majority vote of both Houses of Congress.

Section 3 Whenever the President transmits to the President pro tempore of theSenate and the Speaker of the House of Representatives his written declarationthat he is unable to discharge the powers and duties of his office, and until hetransmits to them a written declaration to the contrary, such powers and dutiesshall be discharged by the Vice-President as Acting President.

Section 4 Whenever the Vice-President and a majority of either the principalofficers of the executive departments or of such other body as Congress may bylaw provide, transmit to the President pro tempore of the Senate and theSpeaker of the House of Representatives their written declaration that thePresident is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office asActing President.

Thereafter, when the President transmits to the President pro tempore of theSenate and the Speaker of the House of Representatives his written declarationthat no inability exists, he shall resume the powers and duties of his office

The Twenty-third AmendmentThe Twenty-third Amendment gavethe residents of the District ofColumbia the ability to vote forelectors who select the presidentand vice-president. Efforts to allowthe District representatives inCongress and complete self-rulehave failed.

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unless the Vice-President and a majority of either the principal officers of theexecutive department[s] or of such other body as Congress may by law pro-vide, transmit within four days to the President pro tempore of the Senate andthe Speaker of the House of Representatives their written declaration that thePresident is unable to discharge the powers and duties of his office. ThereuponCongress shall decide the issue, assembling within forty-eight hours for thatpurpose if not in session. If the Congress, within twenty-one days after receiptof the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds voteof both Houses that the President is unable to discharge the powers and dutiesof his office, the Vice-President shall continue to discharge the same as ActingPresident; otherwise, the President shall resume the powers and duties of hisoffice.

Amendment XXVI[Adopted 1971]Section 1 The right of citizens of the United States, who are eighteen years ofage or older, to vote shall not be denied or abridged by the United States or byany State on account of age.


Amendment XXVII[Adopted 1992]No law, varying the compensation for the services of the Senators andRepresentatives, shall take effect, until an election of Representatives shall haveintervened.

The Twenty-sixth AmendmentThe Twenty-sixth Amendment low-ered the voting age in federal,state, and local elections to theage of eighteen. The need for aconstitutional amendment wasmade clear when the SupremeCourt struck down that part ofthe 1970 Voting Rights Act thatgave 18-year-olds the right to votein all elections, in Oregon v. Mitchell.

The Twenty-seventh AmendmentThe Twenty-seventh Amendment lim-its the opportunities for Congressto vote itself pay increases until anew election to the House ofRepresentatives has taken place.This amendment originally wasproposed in 1789 as the TwelfthAmendment in the original Bill ofRights. It took 202 years to beratified.

out his duties and establishes howa president who has declared him-self fit for duty may be deniedreturning to office.

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Members of the Supreme Court of the United States Name State Appointed by Judicial Date Service

App‘t From President Oath Taken Terminated

Chief JusticesJay, John New York Washington (a) October 19, 1789 June 29, 1795Rutledge, John South Carolina Washington August 12, 1795 December 15, 1795Ellsworth, Oliver Connecticut Washington March 8, 1796 December 15, 1800Marshall, John Virginia Adams, John February 4, 1801 July 6, 1835Taney, Roger Brooke Maryland Jackson March 28, 1836 October 12, 1864Chase, Salmon Portland Ohio Lincoln December 15, 1864 May 7, 1873Waite, Morrison Remick Ohio Grant March 4, 1874 March 23, 1888Fuller, Melville Weston Illinois Cleveland October 8, 1888 July 4, 1910White, Edward Douglass Louisiana Taft December 19, 1910 May 19, 1921Taft, William Howard Connecticut Harding July 11, 1921 February 3, 1930Hughes, Charles Evans New York Hoover February 24, 1930 June 30, 1941Stone, Harlan Fiske New York Roosevelt, F. July 3, 1941 April 22, 1946Vinson, Fred Moore Kentucky Truman June 24, 1946 September 8, 1953Warren, Earl California Eisenhower October 5, 1953 June 23, 1969Burger, Warren Earl Virginia Nixon June 23, 1969 September 26, 1986Rehnquist, William H. Virginia Reagan September 26, 1986 September 3, 2005Roberts, John G., Jr. Maryland Bush, G. W. September 29, 2005

Associate JusticesRutledge, John South Carolina Washington (a) February 15, 1790 March 5, 1791Cushing, William Massachusetts Washington (c) February 2, 1790 September 13, 1810Wilson, James Pennsylvania Washington (b) October 5, 1789 August 21, 1798Blair, John Virginia Washington (c) February 2, 1790 October 25, 1795Iredell, James North Carolina Washington (b) May 12, 1790 October 20, 1799Johnson, Thomas Maryland Washington (a) August 6, 1792 January 16, 1793Paterson, William New Jersey Washington (a) March 11, 1793 September 9, 1806Chase, Samuel Maryland Washington February 4, 1796 June 19, 1811Washington, Bushrod Virginia Adams, John (c) February 4, 1799 November 26, 1829Moore, Alfred North Carolina Adams, John (a) April 21, 1800 January 26, 1804Johnson, William South Carolina Jefferson May 7, 1804 August 4, 1834Livingston, Henry Brockholst New York Jefferson January 20, 1807 March 18, 1823Todd, Thomas Kentucky Jefferson (a) May 4, 1807 February 7, 1826Duvall, Gabriel Maryland Madison (a) November 23, 1811 January 14, 1835Story, Joseph Massachusetts Madison (c) February 3, 1812 September 10, 1845Thompson, Smith New York Monroe (b) September 1, 1823 December 18, 1843Trimble, Robert Kentucky Adams, J. Q. (a) June 16, 1826 August 25, 1828McLean, John Ohio Jackson (c) January 11, 1830 April 4, 1861Baldwin, Henry Pennsylvania Jackson January 18, 1830 April 21, 1844Wayne, James Moore Georgia Jackson January 14, 1835 July 5, 1867Barbour, Philip Pendleton Virginia Jackson May 12, 1836 February 25, 1841Catron, John Tennessee Jackson May 1, 1837 May 30, 1865McKinley, John Alabama Van Buren (c) January 9, 1838 July 19, 1852Daniel, Peter Vivian Virginia Van Buren (c) January 10, 1842 May 31, 1860Nelson, Samuel New York Tyler February 27, 1845 November 28, 1872Woodbury, Levi New Hampshire Polk (b) September 23, 1845 September 4, 1851Grier, Robert Cooper Pennsylvania Polk August 10, 1846 January 31, 1870Curtis, Benjamin Robbins Massachusetts Fillmore (b) October 10, 1851 September 30, 1857Campbell, John Archibald Alabama Pierce (c) April 11, 1853 April 30, 1861Clifford, Nathan Maine Buchanan January 21, 1858 July 25, 1881Swayne, Noah Haynes Ohio Lincoln January 27, 1862 January 24, 1881Miller, Samuel Freeman Iowa Lincoln July 21, 1862 October 13, 1890

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Name State Appointed by Judicial Date Service App‘t From President Oath Taken Terminated

Associate Justices (continued)Davis, David Illinois Lincoln December 10, 1862 March 4, 1877Field, Stephen Johnson California Lincoln May 20, 1863 December 1, 1897Strong, William Pennsylvania Grant March 14, 1870 December 14, 1880Bradley, Joseph P. New Jersey Grant March 23, 1870 January 22, 1892Hunt, Ward New York Grant January 9, 1873 January 27, 1882Harlan, John Marshall Kentucky Hayes December 10 1877 October 14, 1911Woods, William Burnham Georgia Hayes January 5, 1881 May 14, 1887Matthews, Stanley Ohio Garfield May 17, 1881 March 22, 1889Gray, Horace Massachusetts Arthur January 9, 1882 September 15, 1902Blatchford, Samuel New York Arthur April 3, 1882 July 7, 1893Lamar, Lucius Quintus C. Mississippi Cleveland January 18, 1888 January 23, 1893Brewer, David Josiah Kansas Harrison January 6, 1890 March 28, 1910Brown, Henry Billings Michigan Harrison January 5, 1891 May 28, 1906Shiras, George, Jr. Pennsylvania Harrison October 10, 1892 February 23, 1903Jackson, Howell Edmunds Tennessee Harrison March 4, 1893 August 8, 1895White, Edward Douglass Louisiana Cleveland March 12, 1894 December 18, 1910*Peckham, Rufus Wheeler New York Cleveland January 6, 1896 October 24, 1909McKenna, Joseph California McKinley January 26, 1898 January 5, 1925Holmes, Oliver Wendell Massachusetts Roosevelt, T. December 8, 1902 January 12, 1932Day, William Rufus Ohio Roosevelt, T. March 2, 1903 November 13, 1922Moody, William Henry Massachusetts Roosevelt, T. December 17, 1906 November 20, 1910Lurton, Horace Harmon Tennessee Taft January 3, 1910 July 12, 1914Hughes, Charles Evans New York Taft October 10, 1910 June 10, 1916Van Devanter, Willis Wyoming Taft January 3, 1911 June 2, 1937Lamar, Joseph Rucker Georgia Taft January 3, 1911 January 2, 1916Pitney, Mahlon New Jersey Taft March 18, 1912 December 31, 1922McReynolds, James Clark Tennessee Wilson October 12, 1914 January 31, 1941Brandeis, Louis Dembitz Massachusetts Wilson June 5,1916 February 13, 1939Clarke, John Hessin Ohio Wilson October 9, 1916 September 18, 1922Sutherland, George Utah Harding October 2, 1922 January 17, 1938Butler, Pierce Minnesota Harding January 2, 1923 November 16, 1939Sanford, Edward Terry Tennessee Harding February 19, 1923 March 8, 1930Stone, Harlan Fiske New York Coolidge March 2, 1925 July 2, 1941*Roberts, Owen Josephus Pennsylvania Hoover June 2, 1930 July 31, 1945Cardozo, Benjamin Nathan New York Hoover March 14, 1932 July 9, 1938Black, Hugo Lafayette Alabama Roosevelt, F. August 19, 1937 September 17, 1971Reed, Stanley Forman Kentucky Roosevelt, F. January 31, 1938 February 25, 1957Frankfurter, Felix Massachusetts Roosevelt, F. January 30, 1939 August 28, 1962Douglas, William Orville Connecticut Roosevelt, F. April 17, 1939 November 12, 1975Murphy, Frank Michigan Roosevelt, F. February 5, 1940 July 19, 1949Byrnes, James Francis South Carolina Roosevelt, F. July 8, 1941 October 3, 1942Jackson, Robert Houghwout New York Roosevelt, F. July 11, 1941 October 9, 1954Rutledge, Wiley Blount Iowa Roosevelt, F. February 15, 1943 September 10, 1949Burton, Harold Hitz Ohio Truman October 1, 1945 October 13, 1958Clark, Tom Campbell Texas Truman August 24, 1949 June 12, 1967Minton, Sherman Indiana Truman October 12, 1949 October 15, 1956Harlan, John Marshall New York Eisenhower March 28, 1955 September 23, 1971Brennan, William J., Jr. New Jersey Eisenhower October 16, 1956 July 20, 1990Whittaker, Charles Evans Missouri Eisenhower March 25, 1957 March 31, 1962Stewart, Potter Ohio Eisenhower October 14, 1958 July 3, 1981White, Byron Raymond Colorado Kennedy April 16, 1962 June 28, 1993Goldberg, Arthur Joseph Illinois Kennedy October 1, 1962 July 25, 1965Fortas, Abe Tennessee Johnson, L. October 4, 1965 May 14, 1969Marshall, Thurgood New York Johnson, L. October 2, 1967 October 1, 1991

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Name State Appointed by Judicial Date Service App‘t From President Oath Taken Terminated

Associate Justices (continued)Blackmun, Harry A. Minnesota Nixon June 9, 1970 August 3, 1994Powell, Lewis F., Jr. Virginia Nixon January 7, 1972 June 26, 1987Rehnquist, William H. Arizona Nixon January 7, 1972 September 26, 1986*Stevens, John Paul Illinois Ford December 19, 1975O’Connor, Sandra Day Arizona Reagan September 25, 1981 January 31, 2006Scalia, Antonin Virginia Reagan September 26, 1986Kennedy, Anthony M. California Reagan February 18, 1988Souter, David H. New Hampshire Bush, G. H. W. October 9, 1990Thomas, Clarence Georgia Bush, G. H. W. October 23, 1991Ginsburg, Ruth Bader New York Clinton August 10, 1993Breyer, Stephen G. Massachusetts Clinton August 3, 1994Alito, Samuel A., Jr. New Jersey Bush, G. W. January 31, 2006

Notes: The acceptance of the appointment and commission by the appointee, as evidenced by the taking of the prescribedoaths, is here implied; otherwise the individual is not carried on this list of the Members of the Court. Examples: RobertHanson Harrison is not carried, as a letter from President Washington of February 9, 1790 states Harrison declined to serve.Neither is Edwin M. Stanton who died before he could take the necessary steps toward becoming a Member of the Court.Chief Justice Rutledge is included because he took his oaths, presided over the August Term of 1795, and his name appearson two opinions of the Court for that Term.

The date a Member of the Court took his/her Judicial oath (the Judiciary Act provided “That the Justices of the SupremeCourt, and the district judges, before they proceed to execute the duties of their respective offices, shall take the followingoath . . .”) is here used as the date of the beginning of his/her service, for until that oath is taken he/she is not vested withthe prerogatives of the office. The dates given in this column are for the oaths taken following the receipt of thecommissions. Dates without small-letter references are taken from the Minutes of the Court or from the original oath whichare in the Curator’s collection. The small letter (a) denotes the date is from the Minutes of some other Court; (b) from someother unquestionable authority; (c) from authority that is questionable, and better authority would be appreciated.

[This list was taken from a booklet prepared by the Supreme Court of the United States

that was published with funding from the Supreme Court Historical Society.]

*Elevated.

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