Confederation; grant Letters of Marque and Reprisal; coin Money; emit
Bills of Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary
for executing it's inspection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the
Use of the Treasury of the United States; and all such Laws shall be
subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay.
Article. II.
Section. 1. The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of
four Years, and, together with the Vice President, chosen for the same
Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot
for two Persons, of whom one at least shall not be an Inhabitant of the
same State with themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for each; which List they
shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the Presence of the Senate
and House of Representatives, open all the Certificates, and the Votes
shall then be counted. The Person having the greatest Number of Votes
shall be the President, if such Number be a Majority of the whole Number
of Electors appointed; and if there be more than one who have such
Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for
President; and if no Person have a Majority, then from the five highest
on the List the said House shall in like Manner chuse the President. But
in chusing the President, the Votes shall be taken by States, the
Representation from each State having one Vote; a quorum for this
Purpose shall consist of a Member or Members from two thirds of the
States, and a Majority of all the States shall be necessary to a Choice.
In every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President.
But if there should remain two or more who have equal Votes, the Senate
shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day
on which they shall give their Votes; which Day shall be the same
throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any person be
eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the said
Office, the Same shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death, Resignation or
Inability, both of the President and Vice President, declaring what
Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be
elected.
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be encreased nor diminished during the
Period for which he shall have been elected, and he shall not receive
within that Period any other Emolument from the United States, or any of
them.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:--"I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States."
Section. 2. The President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several States,
when called into the actual Service of the United States; he may require
the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of their
respective Offices, and he shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall
expire at the End of their next Session.
Section. 3. He shall from time to time give to the Congress Information
of the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or either of them, and in
Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper;
he shall receive Ambassadors and other public Ministers; he shall take
Care that the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
Section. 4. The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article. III.
Section. 1. The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public Ministers and Consuls;--to
all Cases of admiralty and maritime Jurisdiction;--to Controversies to
which the United States shall be a Party;--to Controversies between two
or more States;--between a State and Citizens of another State;--between
Citizens of different States;--between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have
directed.
Section. 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them
Aid and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in
open Court.
The Congress shall have Power to declare the Punishment of Treason, but
no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.
Article. IV.
Section 1. Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who
shall flee from Justice, and be found in another State, shall on Demand
of the executive Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour may
be due.
Section. 3. New States may be admitted by the Congress into this Union;
but no new State shall be formed or erected within the Jurisdiction of
any other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to
the United States; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United States, or of any
particular State.
Section. 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of them
against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of it's equal Suffrage
in the Senate.
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption
of this Constitution, shall be as valid against the United States under
this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Officers,
both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution; but no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
[Sidenote: The Word, "the," being interlined between the seventh and
eighth Lines of the first Page, The Word "Thirty" being partly written
on an Erazure in the fifteenth Line of the first Page, The Words "is
tried" being interlined between the thirty second and thirty third Lines
of the first Page and the Word "the" being interlined between the forty
third and forty fourth Lines of the second Page.
Attest William Jackson Secretary]
done in Convention by the Unanimous Consent of the States present the
Seventeenth Day of September in the Year of our Lord one thousand seven
hundred and Eighty seven and of the Independence of the United States of
America the Twelfth In witness whereof We have hereunto subscribed our
Names,
Go Washington--Presidt
and deputy from Virginia
New Hampshire { John Langdon
{ Nicholas Gilman
Massachusetts { Nathaniel Gorham
{ Rufus King
Connecticut { Wm: Saml. Johnson
{ Roger Sherman
New York : : : Alexander Hamilton
{ Wil: Livingston
New Jersey { David Brearley.
{ Wm. Paterson.
{ Jona: Dayton
{ B Franklin
{ Thomas Mifflin
{ Robt Morris
Pennsylvania { Geo. Clymer
{ Thos. FitzSimons
{ Jared Ingersoll
{ James Wilson
{ Gouv Morris
{ Geo: Read
{ Gunning Bedford jun
Delaware { John Dickinson
{ Richard Bassett
{ Jaco: Broom
{ James McHenry
Maryland { Dan of St Thos. Jenifer
{ Danl Carroll
Virginia { John Blair--
{ James Madison Jr.
{ Wm. Blount
North Carolina { Richd. Dobbs Spaight.
{ Hu Williamson
{ J. Rutledge
South Carolina { Charles Cotesworth Pinckney
{ Charles Pinckney
{ Pierce Butler
Georgia { William Few
{ Abr Baldwin
* * * * *
In Convention Monday, September 17th 1787.
Present
The States of
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia.
Resolved,
That the preceeding Constitution be laid before the United States in
Congress assembled, and that it is the Opinion of this Convention, that
it should afterwards be submitted to a Convention of Delegates, chosen
in each State by the People thereof, under the Recommendation of its
Legislature, for their Assent and Ratification; and that each Convention
assenting to, and ratifying the Same, should give Notice thereof to the
United States in Congress assembled. Resolved, That it is the Opinion of
this Convention, that as soon as the Conventions of nine States shall
have ratified this Constitution, the United States in Congress assembled
should fix a Day on which Electors should be appointed by the States
which shall have ratified the same, and a Day on which the Electors
should assemble to vote for the President, and the Time and Place for
commencing Proceedings under this Constitution. That after such
Publication the Electors should be appointed, and the Senators and
Representatives elected: That the Electors should meet on the Day fixed
for the Election of the President, and should transmit their Votes
certified, signed, sealed and directed, as the Constitution requires, to
the Secretary of the United States in Congress assembled, that the
Senators and Representatives should convene at the Time and Place
assigned; that the Senators should appoint a President of the Senate,
for the sole Purpose of receiving, opening and counting the Votes for
President; and, that after he shall be chosen, the Congress, together
with the President, should, without Delay, proceed to execute this
Constitution.
By the Unanimous Order of the Convention
Go. Washington Presidt
W. Jackson Secretary.
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE
UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE
SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL
CONSTITUTION.[a]
Amendment [I.][b]
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Amendment [II.]
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.
Amendment [III.]
No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.
Amendment [IV.]
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Amendment [V.]
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.
Amendment [VI.]
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
Amendment [VII.]
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
Amendment [VIII.]
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
Amendment [IX.]
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
Amendment [X.]
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people.
Amendment [XI.][c]
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
Amendment [XII.][d]
The Electors shall meet in their respective states and vote by ballot
for President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct lists
of all persons voted for as President, and of all persons voted for as
Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the
government of the United States, directed to the President of the
Senate;--The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the
votes shall then be counted;--The person having the greatest number of
votes for President, shall be the President, if such number be a
majority of the whole number of Electors appointed; and if no person
have such majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the
representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth
day of March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President--The person having the greatest number of
votes as Vice-President, shall be the Vice-President, if such number be
a majority of the whole number of Electors appointed, and if no person
have a majority, then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum for the purpose shall
consist of two-thirds of the whole number of Senators, and a majority of
the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be eligible
to that of Vice-President of the United States.
Amendment XIII.[e]
Section 1. Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
Amendment XIV.[f]
Section 1. All persons born or naturalized in the United States
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members
of the Legislature thereof, is denied to any of the male inhabitants of
such State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State legislature,
or as an executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House, remove
such disability.
Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States nor
any State shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
Amendment XV.[g]
Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Amendment XVI.[h]
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
Amendment [XVII.][i]
The Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of the
State legislatures.
When vacancies happen in the representation of any State in the Senate,
the executive authority of such State shall issue writs of election to
fill such vacancies: _Provided_, That the legislature of any State may
empower the executive thereof to make temporary appointments until the
people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or
term of any Senator chosen before it becomes valid as part of the
Constitution.
Amendment [XVIII.][j]
Section 1. After one year from the ratification of this article
the manufacture, sale, or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for
beverage purposes is hereby prohibited.
Sec. 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Sec. 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
Amendment [XIX.][k]
The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate
legislation.
Amendment [XX.][l]
Section 1. The terms of the President and Vice President shall
end at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in which
such terms would have ended if this article had not been ratified; and
the terms of their successors shall then begin.
Sec. 2. The Congress shall assemble at least once in every
year, and such meeting shall begin at noon on the 3d day of January,
unless they shall by law appoint a different day.
Sec. 3. If, at the time fixed for the beginning of the term of
the President, the President elect shall have died, the Vice President
elect shall become President. If a President shall not have been chosen
before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify, then the Vice President elect shall
act as President until a President shall have qualified; and the
Congress may by law provide for the case wherein neither a President
elect nor a Vice President elect shall have qualified, declaring who
shall then act as President, or the manner in which one who is to act
shall be selected, and such person shall act accordingly until a
President or Vice President shall have qualified.
Sec. 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives may
choose a President whenever the right of choice shall have devolved upon
them, and for the case of the death of any of the persons from whom the
Senate may choose a Vice President whenever the right of choice shall
have devolved upon them.
Sec. 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
Sec. 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of
its submission.
Amendment [XXI.][m]
Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.
Sec. 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.
Sec. 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in the
several States, as provided in the Constitution, within seven years from
the date of the submission hereof to the States by the Congress.
Amendment [XXII.][n]
Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of
President, or acted as President, for more than two years of a term to
which some other person was elected President shall be elected to the
office of the President more than once. But this Article shall not apply
to any person holding the office of President when this Article was
proposed by the Congress, and shall not prevent any person who may be
holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
Section 2. This Article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years
from the date of its submission to the States by the Congress.
Notes
[a] In Dillon _v._ Gloss, 256 U.S. 368 [1921], the Supreme Court stated
that it would take Judicial notice of the date on which a State ratified
a proposed constitutional amendment. Accordingly the Court consulted the
State Journals to determine the dates on which each house of the
legislature of certain States ratified the 18th Amendment. It,
therefore, follows that the date on which the governor approved the
ratification, or the date on which the secretary of state of a given
State certified the ratification, or the date on which the Secretary of
State of the United States received a copy of said certificate, or the
date on which he proclaimed that the amendment had been ratified are not
controlling. Hence, the ratification date given in the following notes
is the date on which the legislature of a given State approved the
particular amendment (signature by the speaker or presiding officers of
both houses being considered a part of the ratification of the
"legislature"). When that date is not available, the date given is that
on which it was approved by the governor or certified by the secretary
of state of the particular State. In each case such fact has been noted.
Except as otherwise indicated information as to ratification is based on
data supplied by the Department of State.
[b] Brackets enclosing an amendment number indicate that the number was
not specifically assigned in the resolution proposing the amendment. It
will be seen, accordingly, that only amendments XIII, XIV, XV and XVI
were thus technically ratified by number. The first 10 amendments along
with 2 others which failed of ratification were proposed by Congress on
September 25, 1789, when they passed the Senate [1 Ann. Cong. (1st
Cong., 1st sess.) 90], having previously passed the House on September
24 [_Id._, 948]. They appear officially in 1 Stat. 97. Ratification was
completed on December 15, 1791, when the eleventh State (Virginia)
approved these amendments, there being then 14 States in the Union.
The several State legislatures ratified the first 10 amendments to the
Constitution (i.e. nos. 3 to 12 of those proposed) on the following
dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North
Carolina, December 22, 1789; South Carolina, January 19, 1790; New
Hampshire, January 25, 1790; Delaware, January 28, 1790; New York,
February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7,
1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two
amendments which failed of ratification (i.e. nos. 1 and 2 of those
proposed) prescribed the ratio of representation to population in the
House, and specified that no law varying the compensation of members of
Congress should be effective until after an intervening election of
Representatives. The first was ratified by 10 States (1 short of the
requisite number) and the second by 6 States [2 Doc. Hist. Const.,
325-390].
[c] The 11th Amendment was proposed by Congress on March 4, 1794, when
it passed the House [4 Ann. Cong. (3d Cong., 1st sess.) 477, 478],
having previously passed the Senate on January 14 [_Id._, 30, 31]. It
appears officially in 1 Stat. 402. Ratification was completed on
February 7, 1795, when the twelfth State (North Carolina) approved the
amendment, there being then 15 States in the Union. Official
announcement of ratification was not made until January 8, 1798, when
President John Adams in a message to Congress stated that the 11th
Amendment had been adopted by three-fourths of the States and that it
"may now be deemed to be a part of the Constitution" [1 Mess. and Papers
of Pres. 250]. In the interim South Carolina had ratified, and Tennessee
had been admitted into the Union as the Sixteenth State.
The several State legislatures ratified the 11th Amendment on the
following dates: New York, March 27, 1794; Rhode Island, March 31, 1794;
Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts,
June 26, 1794; Vermont, between October 9 and November 9, 1794;
Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky,
December 7, 1794; Maryland, December 26, 1794; Delaware, January 23,
1795; North Carolina, February 7, 1795; South Carolina, December 4, 1797
[State Department, Press Releases, vol. XII, p. 247 (1935)].
[d] The 12th Amendment was proposed by Congress on December 9, 1803,
when it passed the House [13 Ann. Cong. (8th Cong., 1st sess.) 775,
776], having previously passed the Senate on December 2 [_Id._, 209]. It
was not signed by the presiding officers of the House and Senate until
December 12. It appears officially in 2 Stat. 306. Ratification was
probably completed on June 15, 1804, when the legislature of the
thirteenth State (New Hampshire) approved the amendment, there being
then 17 States in the Union. The Governor of New Hampshire, however,
vetoed this act of the legislature on June 20, and the act failed to
pass again by two-thirds vote then required by the State constitution.
Inasmuch as art. V of the Federal Constitution specifies that amendments
shall become effective "when ratified by the legislatures of
three-fourths of the several States or by conventions in three-fourths
thereof," it has been generally believed that an approval or veto by a
governor is without significance. If the ratification by New Hampshire
be deemed ineffective, then the amendment became operative by
Tennessee's ratification on July 27, 1804. On September 25, 1804, in a
circular letter to the Governors of the several States, Secretary of
State Madison declared the amendment ratified by three-fourths of the
States.
The several State legislatures ratified the 12th Amendment on the
following dates: North Carolina, December 22, 1803; Maryland, December
24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and
December 30, 1803; Virginia, between December 20, 1803 and February 3,
1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New
York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island,
between February 27 and March 12, 1804; South Carolina, May 15, 1804;
Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July
27, 1804. The amendment was rejected by Delaware on January 18, 1804,
and by Connecticut at its session begun May 10, 1804.
[e] The 13th Amendment was proposed by Congress on January 31, 1865,
when it passed the House [Cong. Globe (38th Cong., 2d sess.) 531],
having previously passed the Senate on April 8, 1864 [_Id._ (38th Cong.,
1st sess.) 1490]. It appears officially in 13 Stat. 567 under the date
of February 1, 1865. Ratification was completed on December 6, 1865,
when the legislature of the twenty-seventh State (Georgia) approved the
amendment, there being then 36 States in the Union. On December 18,
1865, Secretary of State Seward certified that the 13th Amendment had
become a part of the Constitution [13 Stat. 774].
The several State legislatures ratified the 13th Amendment on the
following dates: Illinois, February 1, 1865; Rhode Island, February, 2,
1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York,
February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6,
1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts,
February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9,
1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865;
Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota,
February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865
(date on which it was "approved" by Governor); Tennessee, April 7, 1865;
Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June
30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865
(date on which it was "approved" by Provisional Governor); North
Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December
11, 1865; California, December 15, 1865; Florida, December 28, 1865
(Florida again ratified this amendment on June 9, 1868, upon its
adoption of a new constitution); Iowa, January 17, 1866; New Jersey,
January 23, 1866 (after having rejected the amendment on March 16,
1865); Texas, February 18, 1870; Delaware, February 12, 1901 (after
having rejected the amendment on February 8, 1865). The amendment was
rejected by Kentucky on February 24, 1865, and by Mississippi on
December 2, 1865.
"A thirteenth amendment depriving of United States citizenship any
citizen who should accept any title, office, or emolument from a foreign
power, was proposed by Congress on May 1, 1810, when it passed the House
[21 Ann. Cong. (11th Cong., 2d sess.) 2050], having previously passed
the Senate on April 27 [20 Ann. Cong. (11th Cong., 2d sess.) 672]. It
appears officially in 2 Stat. 613. It failed of adoption, being ratified
by but 12 States up to December 10, 1812 [2 Miscell. Amer. State Papers,
477-479; 2 Doc. Hist. Const. 454-499], there then being 18 in all.
"Another thirteenth amendment, forbidding any future amendment that
should empower Congress to interfere with the domestic institutions of
any State, was proposed by Congress on March 2, 1861, when it passed the
Senate [Cong. Globe (36th Cong., 2d sess.) 1403], having previously
passed the House on February 28 [_Id._, 1285]. It appears officially in
12 Stat. 251. It failed of adoption, being ratified by but three States:
Ohio, May 13, 1861 [58 Laws Ohio, 190]; Maryland, January 10, 1862 [Laws
Maryland (1861-62) 21]; Illinois, February 14, 1862 [2 Doc. Hist.
Const., 518] irregular, because by convention instead of by legislation
as authorized by Congress." [Burdick, The Law of the American
Constitution, 637.]
[f] The 14th Amendment was proposed by Congress on June 13, 1866, when
it passed the House [Cong. Globe (39th Cong., 1st sess.) 3148, 3149],
having previously passed the Senate on June 8 [_Id._, 3042]. It appears
officially in 14 Stat. 358 under date of June 16, 1866. Ratification was
probably completed on July 9, 1868, when the legislature of the
twenty-eighth State (South Carolina or Louisiana) approved the
amendment, there being then 37 States in the Union. However, Ohio and
New Jersey had prior to that date "withdrawn" their earlier assent to
this amendment. Accordingly, Secretary of State Seward on July 20, 1868,
certified that the amendment had become a part of the Constitution if
the said withdrawals were ineffective [15 Stat. 706-707]. Congress at
once (July 21, 1868) passed a joint resolution declaring the amendment a
part of the Constitution and directing the Secretary to promulgate it as
such. On July 28, 1868, Secretary Seward certified without reservation
that the amendment was a part of the Constitution. In the interim, two
other States, Alabama on July 13 and Georgia on July 21, 1868, had added
their ratifications.
The several State legislatures ratified the 14th Amendment on the
following dates: Connecticut, June 30, 1866; New Hampshire, July 7,
1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (the New
Jersey Legislature on February 20, 1868 "withdrew" its consent to the
ratification; the Governor vetoed that bill on March 5, 1868; and it was
repassed over his veto on March 24, 1868); Oregon, September 19, 1866
(Oregon "withdrew" its consent on October 15, 1868); Vermont, October
30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (Ohio
"withdrew" its consent on January 15, 1868); Illinois, January 15, 1867;
West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas,
January 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867;
Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January
26, 1867 (date on which it was certified by the Missouri secretary of
state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867;
Wisconsin, February 13, 1867 (actually passed February 7, but not signed
by legislative officers until February 13); Massachusetts, March 20,
1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas, April 6,
1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having
rejected the amendment on December 13, 1866); Louisiana, July 9, 1868
(after having rejected the amendment on February 6, 1867); South
Carolina, July 8, 1868; (after having rejected the amendment on December
20, 1866); Alabama, July 13, 1868 (date on which it was "approved" by
the Governor); Georgia, July 21, 1868 (after having rejected the
amendment on November 9, 1866--Georgia ratified again on February 2,
1870); Virginia, October 8, 1869 (after having rejected the amendment on
January 9, 1867); Mississippi, January 17, 1870; Texas, February 18,
1870 (after having rejected the amendment on October 27, 1866);
Delaware, February 12, 1901 (after having rejected the amendment on
February 7, 1867). The amendment was rejected (and not subsequently
ratified) by Kentucky on January 8, 1807, and by Maryland on March 23,
1867.
[g] The 15th Amendment was proposed by Congress on February 26, 1869,
when it passed the Senate [Cong. Globe (40th Cong., 3rd sess.) 1641],
having previously passed the House on February 25 [_Id._ 1563, 1564]. It
appears officially in 15 Stat. 346 under date of February 27, 1869.
Ratification was probably completed on February 3, 1870, when the
legislature of the twenty-eighth State (Iowa) approved the amendment,
there being then 37 States in the Union. However, New York had prior to
that date "withdrawn" its earlier assent to this amendment. Even if this
withdrawal were effective, Nebraska's ratification on February 17, 1870,
authorized Secretary of State Fish's certification of March 30, 1870,
that the 15th Amendment had become a part of the Constitution [16 Stat
1131].
The several State legislatures ratified the 15th Amendment on the
following dates: Nevada, March 1, 1869; West Virginia, March 3, 1869;
North Carolina, March 5, 1869; Louisiana, March 5, 1869 (date on which
it was "approved" by the Governor); Illinois March 5, 1869; Michigan,
March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869;
Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas,
March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869
(New York "withdrew" its consent to the ratification on January 5,
1870); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June
14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869;
Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January
7, 1870 (Missouri had ratified the first section of the 15th Amendment
on March 1, 1869; it failed to include in its ratification the second
section of the amendment); Minnesota, January 13, 1870; Mississippi,
January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19,
1870 (Kansas had by a defectively worded resolution previously ratified
this amendment on February 27, 1869); Ohio, January 27, 1870 (after
having rejected the amendment on May 4, 1869); Georgia, February 2,
1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas,
February 18, 1870; New Jersey, February 15, 1871 (after having rejected
the amendment on February 7, 1870); Delaware, February 12, 1901 (date on
which approved by Governor; Delaware had previously rejected the
amendment on March 18, 1869). The amendment was rejected (and not
subsequently ratified) by California, Kentucky, Maryland, Oregon, and
Tennessee.
[h] The 16th Amendment was proposed by Congress on July 12, 1909, when
it passed the House [44 Cong. Rec. (61st Cong., 1st sess.) 4390, 4440,
4441], having previously passed the Senate on July 5 [_Id._, 4121]. It
appears officially in 36 Stat 184. Ratification was completed on
February 3, 1913, when the legislature of the thirty-sixth State
(Delaware, Wyoming, or New Mexico) approved the amendment, there being
then 48 States in the Union. On February 25, 1913, Secretary of State
Knox certified that this amendment had become a part of the Constitution
[37 Stat. 1785].
The several State legislatures ratified the 16th Amendment on the
following dates: Alabama, August 10, 1909; Kentucky, February 8, 1910;
South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi,
March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910;
Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911;
Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January
26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911;
California, January 31, 1911; Nevada, January 31, 1911; South Dakota,
February 1, 1911; Nebraska, February 9, 1911; North Carolina, February
11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911;
Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2,
1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April
7, 1911; Arkansas, April 22, 1911 (after having rejected the amendment
at the session begun January 9, 1911); Wisconsin, May 16, 1911; New
York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912;
Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware,
February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3,
1913; New Jersey, February 4, 1913; Vermont, February 19, 1913;
Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having
rejected the amendment on March 2, 1911). The amendment was rejected
(and not subsequently ratified) by Connecticut, Rhode Island, and Utah.
[i] The 17th Amendment was proposed by Congress on May 13, 1912, when it
passed the House [48 Cong. Rec. (62d Cong., 2d sess.) 6367], having
previously passed the Senate on June 12, 1911 [47 Cong. Rec. (62d Cong.
1st sess.) 1925]. It appears officially in 37 Stat. 646. Ratification
was completed on April 8, 1913, when the thirty-sixth State
(Connecticut) approved the amendment, there being then 48 States in the
Union. On May 31, 1913, Secretary of State Bryan certified that it had
become a part of the Constitution [38 Stat. 2049].
The several State legislatures ratified the 17th Amendment on the
following dates: Massachusetts, May 22, 1912; Arizona, June 3, 1912;
Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January
17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913;
California, January 28, 1913; Michigan, January 28, 1913; Iowa, January
30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West
Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February
6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming,
February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13,
1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913;
Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont,
February 19, 1913; South Dakota, February 19, 1913; Maine, February 20,
1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri,
March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New
Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2,
1913; Connecticut, April 8, 1913; Louisiana, June 5, 1914. The amendment
was rejected by Utah on February 26, 1913.
[j] The 18th Amendment was proposed by Congress on December 18, 1917,
when it passed the Senate [Cong. Rec. (65th Cong., 2d sess.) 478],
having previously passed the House on December 17 [_Id._, 470]. It
appears officially in 40 Stat 1050. Ratification was completed on
January 16, 1919, when the thirty-sixth State approved the amendment,
there being then 48 States in the Union. On January 29, 1919, Acting
Secretary of State Polk certified that this amendment had been adopted
by the requisite number of States [40 Stat. 1941]. By its terms this
amendment did not became effective until 1 year after ratification.
The several State legislatures ratified the 18th Amendment on the
following dates: Mississippi, January 8, 1918; Virginia, January 11,
1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918 (date
on which approved by Governor); South Carolina, January 29, 1918;
Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4,
1918; Delaware, March 18, 1918; South Dakota, March 20, 1918;
Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26,
1918; Louisiana, August 9, 1918 (date on which approved by Governor);
Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7,
1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January
8, 1919; West Virginia, January 13, 1919; California, January 13, 1919;
Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas,
January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919;
Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January
15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919;
Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina,
January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919;
Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin,
January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21,
1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New
Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29,
1919.
[k] The 19th Amendment was proposed by Congress on June 4, 1919, when it
passed the Senate [Cong. Rec. (66th Cong., 1st sess.) 635], having
previously passed the House on May 21, [_Id._, 94]. It appears
officially in 41 Stat. 362. Ratification was completed on August 18,
1920, when the thirty-sixth State (Tennessee) approved the amendment,
there being then 48 States in the Union. On August 26, 1920, Secretary
of State Colby certified that it had become a part of the Constitution
[41 Stat. 1823].
The several State legislatures ratified the 19th Amendment on the
following dates: Illinois, June 10, 1919 (readopted June 17, 1919);
Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16,
1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June
24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July
2, 1919 (date on which approved by Governor); Missouri, July 3, 1919;
Arkansas, July 28, 1919; Montana, August 2, 1919 (date on which approved
by Governor); Nebraska, August 2, 1919; Minnesota, September 8, 1919;
New Hampshire, September 10, 1919 (date on which approved by Governor);
Utah, October 2, 1919; California, November 1, 1919; Maine, November 5,
1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919
(date on which certified); Colorado, December 15, 1919 (date on which
approved by Governor); Kentucky, January 6, 1920; Rhode Island, January
6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming,
January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9,
1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico,
February 21, 1920 (date on which approved by Governor); Oklahoma,
February 28, 1920; West Virginia, March 10, 1920; Washington, March 22,
1920; Tennessee, August 18, 1920; Connecticut, September 14, 1920
(confirmed September 21, 1920); Vermont, February 8, 1921. The amendment
was rejected by Georgia on July 24, 1919; by Alabama on September 22,
1919; by South Carolina on January 29, 1920; by Virginia on February 12,
1920; by Maryland on February 24, 1920; by Mississippi on March 29,
1920; by Louisiana on July 1, 1920.
[l] The 20th Amendment was proposed by Congress on March 2, 1932, when
it passed the Senate [Cong. Rec. (72d Cong., 1st sess.) 5086], having
previously passed the House on March 1 [_Id._, 5027]. It appears
officially in 47 Stat. 745. Ratification was completed on January 23,
1933, when the thirty-sixth State approved the amendment, there being
then 48 States in the Union. On February 6, 1933, Secretary of State
Stimson certified that it had become a part of the Constitution [47
Stat. 2569].
The several State legislatures ratified the 20th Amendment on the
following dates: Virginia, March 4, 1932; New York, March 11, 1932;
Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March
17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932;
Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14,
1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia,
July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932;
Texas, September 7, 1932; Alabama, September 13, 1932; California,
January 4, 1933; North Carolina, January 5, 1933; North Dakota, January
9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933;
Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January
13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware,
January 19, 1933; Washington, January 19, 1933; Wyoming, January 19,
1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee,
January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933;
Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23,
1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts,
January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933;
Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont,
February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933.
A proposed amendment which would authorize Congress to limit, regulate,
and prohibit the labor of persons under 18 years of age was passed by
Congress on June 2, 1924. This proposal at the time it was submitted to
the States was referred to as "the proposed 20th Amendment." It appears
officially in 43 Stat. 670.
The status of this proposed amendment is a matter of conflicting
opinion. The Kentucky Court of Appeals in Wise _v._ Chandler (270 Ky. 1
[1937]) has held that it is no longer open to ratification because: (1)
Rejected by more than one-fourth of the States; (2) a State may not
reject and then subsequently ratify, at least when more than one-fourth
of the States are on record as rejecting; and (3) more than a reasonable
time has elapsed since it was submitted to the States in 1924. The
Kansas Supreme Court in Coleman _v._ Miller (146 Kan. 390 [1937]) came
to the opposite conclusion.
On October 1, 1937, 27 States had ratified the proposed amendment. Of
these States 10 had previously rejected the amendment on one or more
occasions. At least 26 different States have at one time rejected the
amendment.
[m] The 21st Amendment was proposed by Congress on February 20, 1933,
when it passed the House [Cong. Rec. (72d Cong., 2d sess.) 4516], having
previously passed the Senate on February 16 [_Id._, 4231]. It appears
officially in 47 Stat. 1625. Ratification was completed on December 5,
1933, when the thirty-sixth State (Utah) approved the amendment, there
being then 48 States in the Union. On December 5, 1933, Acting Secretary
of State Phillips certified that it had been adopted by the requisite
number of States [48 Stat. 1749].
The several State conventions ratified the 21st Amendment on the
following dates: Michigan, April 10, 1933; Wisconsin, April 25, 1933;
Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1,
1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts,
June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa,
July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933;
California, July 24, 1933; West Virginia, July 25, 1933; Arkansas,
August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933;
Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona,
September 5, 1933; Nevada, September 5, 1933; Vermont, September 23,
1933; Colorado, September 26, 1933; Washington, October 3, 1933;
Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October
18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933;
Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November
27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah,
December 5, 1933; Maine, December 6, 1933; Montana, August 6, 1934. The
amendment was rejected by a convention in the State of South Carolina,
on December 4, 1933. The electorate of the State of North Carolina voted
against holding a convention at a general election held on November 7,
1933.
[n] The twenty-second Amendment was proposed by Congress on March 24,
1947, having passed the House on March 21, 1947 [Cong. Rec. (80th Cong.,
1st sess.) 2392] and having previously passed the Senate on March 12,
1947 [Id. 1978]. It appears officially in 61 Stat. 959. Ratification was
completed on February 27, 1951, when the thirty-sixth State (Minnesota)
approved the amendment; there being then 48 States in the Union. On
March 1, 1951, Jess Larson, Administrator of General Services, certified
that it had been adopted by the requisite number of States [16 F.R.
2019].
A total of 41 State legislatures ratified the Twenty-second Amendment on
the following dates: Maine, March 31, 1947; Michigan, March 31, 1947;
Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1,
1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3,
1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey,
April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947;
Wisconsin; April 16, 1947; Pennsylvania, April 29, 1947; Connecticut,
May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia,
January 28, 1948; Mississippi, February 12, 1948; New York, March 9,
1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949;
Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29,
1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming,
February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17,
1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah,
February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27,
1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951;
Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4,
1951.
THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS
PREAMBLE
The Preamble: Page
Purpose and effect 59
"The people of the United States" 59
THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS
The Preamble
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.
Purpose and Effect of the Preamble
Although the preamble is not a source of power for any department of the
Federal Government,[1] the Supreme Court has often referred to it as
evidence of the origin, scope, and purpose of the Constitution. "Its
true office" wrote Joseph Story in his Commentaries, "is to expound the
nature and extent and application of the powers actually conferred by
the Constitution, and not substantively to create them. For example, the
preamble declares one object to be, 'to provide for the common defense.'
No one can doubt that this does not enlarge the powers of Congress to
pass any measures which they deem useful for the common defence. But
suppose the terms of a given power admit of two constructions, the one
more restrictive, the other more liberal, and each of them is consistent
with the words, but is, and ought to be, governed by the intent of the
power; if one could promote and the other defeat the common defence,
ought not the former, upon the soundest principles of interpretation, to
be adopted?"[2] Moreover, the preamble bears witness to the fact that
the Constitution emanated from the people, and was not the act of
sovereign and independent States,[3] and that it was made for, and is
binding only in, the United States of America.[4] In the Dred Scott
case,[5] Chief Justice Taney declared that: "The words 'people of the
United States' and 'citizens' are synonymous terms, and mean the same
thing. They both describe the political body who, according to our
republican institutions, form the sovereignty, and who hold the power
and conduct the Government through their representatives. They are what
we familiarly call the 'sovereign people,' and every citizen is one of
this people, and a constituent member of this sovereignty."[6]
Notes
[1] Jacobson _v._ Massachusetts, 197 U.S. 11, 22 (1905).
[2] 1 Story, Commentaries on the Constitution, Sec. 462.
[3] McCulloch _v._ Maryland, 4 Wheat. 316, 403 (1819); Chisholm _v._
Georgia, 2 Dall. 419, 470 (1793); Martin _v._ Hunter, Wheat. 304, 324
(1816).
[4] Downes _v._ Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S.
453, 464 (1891).
[5] 19 How. 393 (1857).
[6] Ibid. 404.
ARTICLE I
LEGISLATIVE DEPARTMENT
Section 1. Nature of legislative power: Page
Doctrine of enumerated powers 71
Nondelegability of legislative power 73
Origin of doctrine 73
Functions which may be delegated 74
Power to supplement statutory provisions 74
Standards for administrative action 75
Rule-making power 76
Orders directed to particular persons 77
Delegation to private persons 78
Power to give effect to contingent legislation 79
Modification of tariff laws 79
Arms embargo 80
Internal affairs 80
Emergency statutes 81
Punishment of violations 82
Congressional investigations 82
Investigations in aid of legislation 82
Conduct of executive department 82
Private affairs 83
Purpose of inquiry 84
Judicial functions 85
Sanctions of the investigatory power 85
Contempt 85
Criminal prosecutions 85
Sections 2 and 3. House of Representatives and Senate:
Qualifications of Members of Congress 87
Right to vote for Representatives and Congressional
protection thereof 87
When the qualifications must be possessed 88
Enlargement of qualifications 88
Inability of States to enlarge 89
Census requirement 90
Section 4. Elections and meetings:
Federal legislation under this clause 92
Legislature defined 93
Inequality of election districts 93
Congressional protection of the electoral process 94
Section 5. Powers and duties of the houses:
Power to judge elections 95
Quorum to do business 96
Rules of procedure 96
Powers of the houses over members 97
Duty to keep a journal 98
Section 6. Compensation, immunities, and disabilities of Members:
When the pay starts 99
Privilege from arrest 99
Privilege of speech or debate 99
Incompatible offices 101
Section 7. Legislative process:
Revenue bills 102
Approval by the President 103
Veto power 103
Presentation of resolutions 104
Section 8. Powers of Congress:
Clause 1. Taxing-spending power 105
Kinds of taxes permitted 105
Decline of forbidden subject matter test 105
Rise and fall of Collector _v._ Day 106
Federal taxation of State interests 106
Immunity left to the States 108
Conflicting views on the court 108
Rule of uniformity 109
Purposes of taxation 110
Regulation by taxation 110
Extermination by taxation 110
Protective tariff 112
Spending for the general welfare 112
Hamilton _v._ Madison 113
Triumph of Hamiltonian theory 113
Security Act Cases, The 115
Earmarked funds 116
Conditional grants-in-aid 116
"Debts of the United States" 116
Clause 2. Borrowing power 117
Clause 3. Power to regulate interstate and foreign commerce 118
Purpose of the clause 118
Definition of terms: Gibbons _v._ Ogden 118
"Commerce" 118
"Commerce" today 119
"Necessary and proper" clause 121
"Among the several States" 121
"Regulate" 123
Interstate versus foreign commerce 123
Instruments of commerce 125
Congressional regulation of waterways 126
Navigation 126
Hydroelectric power 130
Congress' jurisdiction over navigable streams today 131
Purposes for which power may be generated 131
Congressional regulation of land transportation 132
Early Acts: Federal provision for highways 132
Beginnings of federal railway regulation 132
Regulation of rates: Interstate Commerce Commission 133
Interstate Commerce Commission today 135
Shreveport Case 135
Act of 1920 and State railway rate regulation 136
Regulation of other agents of carriage and communication 137
Acts of Congress protective of labor engaged in interstate
transportation 139
Adair Case 141
Railroad Retirement Act 142
Bills of Lading: Ferger Case 143
Congressional regulation of commerce as traffic 144
Sherman Act: Sugar Trust Case 144
Sherman Act revised 146
"Current of commerce" concept: Swift Case 147
Danbury Hatters Case 149
Stockyards and Grain Futures Acts 149
Securities and Exchange Commission 150
Congressional regulation of production and industrial
relations 152
Antidepression legislation 152
National Industrial Recovery Act 152
Schechter Case 152
Agricultural Adjustment Act 153
Bituminous Coal Conservation Act 153
National Labor Relations Act 154
Fair Labor Standards Act: Darby Case 155
Agricultural Marketing Agreement Act 159
Acts of Congress prohibiting commerce 160
Foreign commerce; Jefferson's embargo 160
Foreign commerce; protective tariffs 162
Foreign commerce; banned articles 162
Interstate commerce; conflict of doctrine and opinion 163
Acts of Congress prohibitive of commerce 168
Lottery Case 169
National prohibitions and State police power 169
Hammer _v._ Dagenhart 170
Interstate commerce in stolen goods banned 171
Darby Case 172
Congress and the federal system 173
Commerce clause as a restraint on State power 173
Doctrinal background 173
Doctrinal background: Webster's contribution 175
Cooley _v._ Board of Port Wardens 175
Judicial formulas 176
Taxing power of the State and foreign commerce 177
Browne _v._ Maryland: Original package doctrine 177
State taxation of the subject matter of interstate commerce 178
General considerations 178
State Freight Tax Case 179
Goods in transit 180
State taxation of manufacturing and mining 181
Production for an established market 182
Rejection of original package concept in interstate
commerce 182
Inspection charges 183
Local sales: Peddlers 184
Stoppage in transit 185
Drummer Cases; Robbins _v._ Shelby County Taxing
District 186
Limitation of the Robbins Case 187
Robbins Case today 189
Depression Cases: Use taxes 189
Depression Cases: Sales taxes 190
End of the Depression Cases 191
Taxation of carriage of persons 192
State taxation of the interstate commerce privilege:
Foreign Corporations 193
Doctrinal history 193
License taxes 194
Doctrine of Western Union Telegraph _v._ Kansas 196
Spread of the doctrine 196
Status of the doctrine today 197
State taxation of property engaged in, and of the proceeds
from, interstate commerce 198
General issue 198
Development of the apportionment rule 199
Unit rule 200
Apportioned property taxes 201
Apportioned gross receipts taxes 202
Franchise taxes 202
Gross receipts taxes, classes of 203
Multiple taxation test 204
Recent cases 206
Taxes on net income 208
Miscellaneous taxes affecting interstate commerce 209
Vessels 209
Airplanes 210
Motor vehicles 211
Public utilities: Regulatory charges 213
Dominance of Congress 214
McCarran Act: Regulation of insurance 214
Police power and foreign commerce 215
Origin of police power 215
State curbs on entry of foreigners 216
State quarantine laws 217
State game protection and foreign commerce 217
Police power and interstate commerce 217
General principles 217
State regulation of agencies of interstate commerce 220
Railway rate regulation 220
Adequate service regulations 221
Safety and other regulations 221
Invalid State regulations 222
State regulation of length of trains 223
Lesson of Southern Pacific Co. _v._ Arizona 225
State regulation of motor vehicles: Valid regulations 226
Invalid State acts affecting motor carriers 227
Transportation agencies 228
Navigation; general doctrine 228
Bridges, dams, ferries, wharves 230
Ferries 231
Telegraphs and telephones 231
Gas and electricity 233
Foreign corporations 234
Miscellaneous 234
Banks and banking 234
Brokers 235
Commission men 235
Attachment and garnishment 235
Statutory liens 235
Police power and the subject matter of commerce 235
Scope of the police power 235
Quarantine laws 236
State inspection laws 237
State prohibition laws: The original package doctrine 238
Oleomargarine and cigarettes 239
Demise of the original package doctrine 240
Curbs on the interstate movement of persons 241
State conservation and embargo measures 242
State conservation and embargo measures: The Milk Cases 244
State conservation and embargo measures: The Shrimp Cases 245
Concurrent federal and State legislation 246
General issue 246
Hepburn Act 246
Quarantine Cases 248
Recent cases sustaining State legislation 249
Recent cases nullifying State action 250
Federal versus State labor laws 251
Commerce with Indian Tribes 252
United States _v._ Kagama 252
Clause 4. Naturalization and bankruptcies 254
Naturalization and citizenship 254
Categories of naturalized persons 254
Who are eligible for naturalization 255
Procedure of naturalization 256
Rights of naturalized persons 257
Congress' power exclusive 258
Right of expatriation: Loss of citizenship 258
Exclusion of aliens 259
Bankruptcy 262
Persons who may be released from debt 262
Liberalization of relief granted 262
Constitutional limitations on the bankruptcy power 263
Power not exclusive 264
Constitutional status of State insolvency laws 264
Clauses 5 and 6. Fiscal and monetary powers of Congress 265
Coinage, weights, and measures 265
Punishment of counterfeiting 266
Borrowing power versus the fiscal power 266
Clause 7. Postal power 267
"Establish" 267
Powers to protect the mails 268
Antislavery and the mails 268
Power to prevent harmful use of the postal facilities 268
Exclusion power as an adjunct to other powers 269
State regulations affecting the mails 270
Clause 8. Copyrights and Patents 271
Scope of the power 271
Patentable discoveries 271
Procedure in issuing patents 274
Nature and scope of the right secured 274
Power of Congress over patent rights 275
State power affecting patents and copyrights 276
Trade-marks and advertisements 276
Clause 9. _See_ article III 277
Clause 10. Piracies and felonies 277
Origin of the clause 277
Definition of offenses 277
Extraterritorial reach of the power 278
Clauses 11, 12, 13, and 14. War: Military establishments 279
War power 279
Source and scope 279
An inherent power 280
A complexus of granted powers 281
Declaration of war: When required 281
Prize Cases, The, (1863) 282
Power to raise and maintain armed forces 283
Purpose of specific grants 283
Time limit on appropriations for the army 283
Establishment of the air force 284
Conscription 284
Care of the armed forces 285
Trial and punishment of offenses 285
War legislation 286
Revolutionary war legislation 286
Civil War legislation 287
World War I legislation 287
World War II legislation 288
Mobilization of industrial resources 288
Delegation of legislative power in wartime 289
Mergence of legislative and executive in wartime 290
Doctrine of Lichter _v._ United States 290
War powers in time of peace 291
Atomic Energy Act 292
Postwar legislation 292
Private rights in wartime 293
Enemy country 293
Theatre of military operations 294
Enemy property 294
Prizes of war 295
Police regulations: Rent control 296
Personal liberty in wartime 297
Alien enemies 297
Eminent domain 298
Clauses 15 and 16. Militia 299
Militia clauses 299
Calling out the militia 299
Regulation of the militia 299
Clause 17. Seat of government, etc. 300
Seat of government 300
Nature and extent of rights ceded to United States 301
Retrocession of Alexandria county 301
Continuance of State laws 302
Status of the district today 302
Legislative power over the district 303
Taxation in the district 303
Delegation of legislative power to municipal officers 304
Courts of the district 304
Authority over places purchased 305
"Places" 305
Duration of federal jurisdiction 305
Reservation of jurisdiction by States 306
Clause 18. "Necessary and proper" clause 307
Coefficient or elastic clause 307
Scope of incidental powers 307
Operation of coefficient clause 308
Definition and punishment of crimes 308
Chartering of banks 309
Currency regulations 309
Power to charter corporations 310
Courts and judicial proceedings 310
Special acts concerning claims 311
Maritime law 311
Section 9. Powers denied to Congress 312
General purpose of the section 312
Clause 1. Importation of slaves 312
Clause 2. Suspension of the privilege of the writ of habeas
corpus 312
Habeas corpus 312
Purpose of the writ 312
Errors which may be corrected on habeas corpus 313
Habeas corpus not a substitute for appeal 314
Issuance of the writ 314
Suspension of the privilege 315
Clause 3. Attainder and ex post facto laws 315
Bills of attainder 315
Ex post facto laws 316
Definition 316
What constitutes punishment 317
Changes in place or mode of trial 317
Clause 4. Capitation and direct taxes 317
Direct taxes 317
The Hylton case 317
From the Hylton to the Pollock case 318
Restriction of the Pollock decision 319
Miscellaneous 321
Clause 5. Export duties 321
Taxes on exports 321
Stamp taxes 322
Clause 6. "No preference" clause 322
Clause 7. Appropriations and accounting of public mon 323
Appropriations 323
Payment of claims 324
Clause 8. Titles of nobility and gifts from foreign
States 324
Section 10. Powers denied to the States 325
Clause 1. Not to make treaties, coin money, pass ex post
facto laws, impair contracts, etc. 325
Treaties, alliances, or confederations 325
Bills of credit 326
Legal tender 326
Bills of attainder 326
Ex post facto laws 327
Scope of provision 327
Denial of future privileges to past offenders 327
Changes in punishment 328
Changes in procedure 328
Obligation of contracts 329
Definition of terms 329
"Law" 329
Status of judicial decisions 329
"Obligation" 332
"Impair" 332
"Contracts," extended to cover public contracts 332
Fletcher _v._ Peck 335
New Jersey _v._ Wilson 336
Corporate charters; Different ways of regarding 336
Dartmouth College case 338
Classes of cases under the clause 339
Public grants 339
Municipal corporations 339
Public offices 340
Revocable privileges versus "contracts": Tax exemptions 341
Vested rights 343
Reservation of the right to alter and repeal 343
Right to reserve: When limited 343
Corporations as persons subject to the law 345
Corporations and the police power 345
Strict construction of public grants 346
Charles River Bridge case 346
Application of the strict construction rule 346
Strict construction of tax exemptions 347
Strict construction and the police power 348
Doctrine of inalienable State powers 349
Eminent domain power inalienable 349
Taxing power not inalienable 350
Police power: When inalienable 351
Private contracts 352
Scope of the term 352
Source of the obligation 352
Ogden _v._ Saunders 353
Remedy a part of the obligation 354
Establishment of the rule 354
Qualifications of the rule 355
Municipal Bond cases 356
Private contracts and the police power 357
Emergency legislation 358
Individual rights versus public welfare 359
Evaluation of the clause today 359
Statistical data pertinent to the clause 361
Clause 2. Not to levy duties on exports and imports 362
Duties on exports and imports 362
Scope 362
Privilege taxes 363
Property taxes 364
Inspection laws 364
Clause 3. Not to lay tonnage duties, keep troops, make
compacts, or engage in war 365
Tonnage duties 365
Keeping troops 366
Interstate compacts 366
Background of clause 366
Subject matter of interstate compacts 368
Consent of Congress 368
Grants of franchise to corporation by two States 369
Legal effect of interstate compacts 369
LEGISLATIVE DEPARTMENT
Article I
Section 1. All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives.
Doctrine of Enumerated Powers
Two important doctrines of Constitutional Law--that the Federal
Government is one of enumerated powers and that legislative power may
not be delegated--are derived in part from this section. The classical
statement of the former is that by Chief Justice Marshall in McCulloch
_v._ Maryland: "This government is acknowledged by all, to be one of
enumerated powers. The principle, that it can exercise only the powers
granted to it, would seem too apparent, to have required to be enforced
by all those arguments, which its enlightened friends, while it was
depending before the people, found it necessary to urge; that principle
is now universally admitted."[1] That, however, "the executive power" is
not confined to the items of it which are enumerated in article II was
asserted early in the history of the Constitution by Madison and
Hamilton alike and is today the doctrine of the Court;[2] and a similar
latitudinarian conception of "the judicial power of the United States"
was voiced in Justice Brewer's opinion for the Court in Kansas _v._
Colorado.[3] But even when confined to "the legislative powers herein
granted," the doctrine is severely strained by Marshall's conception of
some of these as set forth in his McCulloch _v._ Maryland opinion: This
asserts that "the sword and the purse, all the external relations, and
no inconsiderable portion of the industry of the nation, are intrusted
to its government";[4] he characterizes "the power of making war," of
"levying taxes," and of "regulating commerce" as "great, substantive and
independent powers";[5] and the power conferred by the "necessary and
proper" clause embraces, he declares, "all [legislative] means which are
appropriate" to carry out "the legitimate ends" of the Constitution,
unless forbidden by "the letter and spirit of the Constitution."[6] Nine
years later, Marshall introduced what Story in his Commentaries labels
the concept of "resulting powers," those which "rather be a result from
the whole mass of the powers of the National Government, and from the
nature of political society, than a consequence or incident of the
powers specially enumerated."[7] Story's reference is to Marshall's
opinion in American Insurance Company _v._ Canter,[8] where the latter
says, that "the Constitution confers absolutely on the government of the
Union, the powers of making war, and of making treaties; consequently,
that government possesses the power of acquiring territory, either by
conquest or by treaty."[9] And from the power to acquire territory, he
continues, arises as "the inevitable consequence" the right to govern
it.[10] Subsequently, powers have been repeatedly ascribed to the
National Government by the Court on grounds which ill accord with the
doctrine of enumerated powers: the power to legislate in effectuation of
the "rights expressly given, and duties expressly enjoined" by the
Constitution;[11] the power to impart to the paper currency of the
Government the quality of legal tender in the payment of debts;[12] the
power to acquire territory by discovery;[13] the power to legislate for
the Indian tribes wherever situated in the United States;[14] the power
to exclude and deport aliens;[15] and to require that those who are
admitted be registered and fingerprinted;[16] and finally the complete
powers of sovereignty, both those of war and peace, in the conduct of
foreign relations. In the words of Justice Sutherland in United States
_v._ Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad
statement that the federal government can exercise no powers except
those specifically enumerated in the Constitution, and such implied
powers as are necessary and proper to carry into effect the enumerated
powers, is categorically true only in respect of our internal affairs.
In that field, the primary purpose of the Constitution was to carve from
the general mass of legislative powers _then possessed by the states_
such portions as it was thought desirable to vest in the federal
government, leaving those not included in the enumeration still in the
states.... That this doctrine applies only to powers which the states
had, is self evident. And since the states severally never possessed
international powers, such powers could not have been carved from the
mass of state powers but obviously were transmitted to the United States
from some other source.... A political society cannot endure without a
supreme will somewhere. Sovereignty is never held in suspense. When,
therefore, the external sovereignty of Great Britain in respect of the
colonies ceased, it immediately passed to the Union.... It results that
the investment of the federal government with the powers of external
sovereignty did not depend upon the affirmative grants of the
Constitution. The powers to declare and wage war, to conclude peace, to
make treaties, to maintain diplomatic relations with other
sovereignties, if they had never been mentioned in the Constitution,
would have vested in the federal government as necessary concomitants of
nationality."[18] Yet for the most part, these holdings do not, as
Justice Sutherland suggests, directly affect "the internal affairs" of
the nation; they touch principally its peripheral relations, as it
were. The most serious inroads on the doctrine of enumerated powers are,
in fact, those which have taken place under cover of the doctrine--the
vast expansion in recent years of national legislative power in the
regulation of commerce among the States and in the expenditure of the
national revenues; and verbally at least Marshall laid the ground for
these developments in some of the phraseology above quoted from his
opinion in McCulloch _v._ Maryland.
Nondelegability of Legislative Power
ORIGIN OF DOCTRINE
At least three distinct ideas have contributed to the development of the
principle that legislative power cannot be delegated. One is the
doctrine of separation of powers: Why go to the trouble of separating
the three powers of government if they can straightway remerge on their
own motion? The second is the concept of due process of law, which
precludes the transfer of regulatory functions to private persons.
Lastly, there is the maxim of agency "_Delegata potestas non potest
delegari_," which John Locke borrowed and formulated as a dogma of
political science.[19] In Hampton Jr. & Co. _v._ United States,[20]
Chief Justice Taft offered the following explanation of the origin and
limitations of this idea as a postulate of constitutional law: "The
well-known maxim '_Delegata potestas non potest delegari_,' applicable
to the law of agency in the general and common law, is well understood
and has had wider application in the construction of our Federal and
State Constitutions than it has in private law. The Federal Constitution
and State Constitutions of this country divide the governmental power
into three branches. * * * in carrying out that constitutional division
* * * it is a breach of the National fundamental law if Congress gives
up its legislative power and transfers it to the President, or to the
Judicial branch, or if by law it attempts to invest itself or its
members with either executive power or judicial power. This is not to
say that the three branches are not co-ordinate parts of one government
and that each in the field of its duties may not invoke the action of
the two other branches in so far as the action invoked shall not be an
assumption of the constitutional field of action of another branch. In
determining what it may do in seeking assistance from another branch,
the extent and character of that assistance must be fixed according to
common sense and the inherent necessities of the governmental
co-ordination."[21]
FUNCTIONS WHICH MAY BE DELEGATED
Yielding to "common sense and the inherent necessities of governmental
co-ordination" the Court has sustained numerous statutes granting in the
total vast powers to administrative or executive agencies. Two different
theories, both enunciated during the Chief Justiceship of John Marshall,
have been utilized to justify these results. First in importance is the
theory that another department may be empowered to "fill up the details"
of a statute.[22] The second is that Congress may legislate
contingently, leaving to others the task of ascertaining the facts which
bring its declared policy into operation.[23]
POWER TO SUPPLEMENT STATUTORY PROVISIONS
The pioneer case which recognized the right of Congress to lodge in
another department the power to "fill up the details" of a statute arose
out of the authority given to federal courts to establish rules of
practice, provided such rules were not repugnant to the laws of the
United States. Chief Justice Marshall overruled the objection that this
constituted an invalid delegation of legislative power, saying: "It will
not be contended, that Congress can delegate to the courts, or to any
other tribunals, powers which are strictly and exclusively legislative.
But Congress may certainly delegate to others, powers which the
legislature may rightfully exercise itself. * * * The line has not been
exactly drawn which separates those important subjects, which must be
entirely regulated by the legislature itself, from those of less
interest, in which a general provision may be made, and power given to
those who are to act under such general provisions, to fill up the
details."[24]
STANDARDS FOR ADMINISTRATIVE ACTION
Before another agency can "fill up the details," Congress must enact
something to be thus supplemented. In the current idiom, the lawmakers
must first adopt a policy or set up an "intelligible standard" to which
administrative action must conform.[25] But the Court has taken a
generous view of what constitutes a policy or standard. Although it has
said that "procedural safeguards cannot validate an unconstitutional
delegation,"[26] the nature of the proceedings appears to be one of the
elements weighed in determining whether a specific delegation is
constitutional.[27] In cases where the delegated power is exercised by
orders directed to particular persons after notice and hearing, with
findings of fact and of law based upon the record made in the hearing,
the Court has ruled that such general terms as "public interest,"[28]
"public convenience, interest, or necessity,"[29] or "excessive
profits,"[30] were sufficient to satisfy constitutional requirements.
But in two cases arising under the National Industrial Recovery Act, a
policy declaration of comparable generality was held insufficient for
the promulgation of rules applicable to all persons engaged in a
designated activity, without the procedural safeguards which surround
the issuance of individual orders.[31] By subsequent decisions, somewhat
more elaborate, but still very broad, standards have been deemed
adequate for various price fixing measures.[32] In a recent case,[33]
the Court sustained a statute which, without any explicit standards
whatever, authorized the Federal Home Loan Bank Board to make rules and
regulations for the supervision of Federal Savings and Loan
Associations. That decision was influenced by the fact that the
corporation was chartered by federal law as well as by the peculiar
problems involved in the supervision of financial institutions. The
Court was at pains to make clear that this decision would not
necessarily govern the disposition of dissimilar cases.[34]
RULE-MAKING POWER
After Wayman _v._ Southard, nearly three quarters of a century elapsed
before the Court had occasion to approve the delegation to an executive
officer of power to issue regulations for the administration of a
statute. In 1897 it sustained the authority granted to the Commissioner
of Internal Revenue to designate the "marks, brands and stamps" to be
affixed to packages of oleomargarine.[35] Soon thereafter it upheld an
act which directed the Secretary of the Treasury to promulgate minimum
standards of quality and purity for tea imported into the United
States.[36] It has approved the delegation to executive or
administrative officials of authority to make rules governing the use of
forest reservations;[37] permitting reasonable variations and tolerances
in the marking of food packages to disclose their contents;[38]
designating tobacco markets at which grading of tobacco would be
compulsory;[39] establishing priorities for the transportation of
freight during a period of emergency;[40] prescribing price schedules
for the distribution of milk;[41] or for all commodities[42] and for
rental housing[43] in time of war; regulating wages and prices in the
production and distribution of coal;[44] imposing a curfew to protect
military resources in designated areas from espionage and sabotage;[45]
providing for the appointment of receivers or conservators for Federal
Savings and Loan Associations;[46] allotting marketing quotas for
tobacco;[47] and prescribing methods of accounting for carriers in
interstate commerce.[48]
ORDERS DIRECTED TO PARTICULAR PERSONS
The now familiar pattern of regulation of important segments of the
economy by boards or commissions which combine in varying proportions
the functions of all three departments of government was first
established by the States in the field of railroad rate regulation.
Discovering that direct action was impracticable, the State legislatures
created commissions to deal with the problem. One of the pioneers in
this development was Minnesota, whose Supreme Court justified the
practice in an opinion which, with the implied[49] and later the
explicit,[50] endorsement of the Supreme Court, practically settled the
law on this point: "If such a power is to be exercised at all, it can
only be satisfactorily done by a board or commission, constantly in
session, whose time is exclusively given to the subject, and who, after
investigation of the facts, can fix rates with reference to the peculiar
circumstances of each road, and each particular kind of business, and
who can change or modify these rates to suit the ever-varying conditions
of traffic."[51] Contemporaneously Congress created the Interstate
Commerce Commission to regulate the rates and practices of railroads
with respect to interstate commerce. Although the Supreme Court has
never had occasion to render a direct decision on the delegation of
rate-making power to the Commission, it has repeatedly affirmed rate
orders issued by that agency.[52] Likewise it has sustained the power of
the Secretary of War to order the removal or alteration of bridges which
unreasonably obstructed navigation over navigable waters;[53] the power
of the Federal Reserve Board to authorize national banks to act as
fiduciaries;[54] the authority of the Secretary of Labor to deport
aliens of certain enumerated classes, if after hearing he found such
aliens to be "undesirable residents";[55] the responsibility of the
Interstate Commerce Commission to approve railroad consolidations found
to be in the "public interest";[56] and the powers of the Federal Radio
Commission[57] and the Federal Communications Commission[58] to license
broadcasting stations as "public convenience, interest and necessity"
may require. The terms, however, in which a statute delegates authority
to an administrative agent are subject to judicial review; and in a
recent case the Court disallowed an order of the Secretary of
Agriculture proporting resting on Sec. 8 of the Agricultural Marketing
Agreement Act of 1937[59] as _ultra vires_.[60]
DELEGATION TO PRIVATE PERSONS
Although in a few early cases the Supreme Court enforced statutes which
gave legal effect to local customs of miners with respect to mining
claims on public lands,[61] and to standards adopted by railroads for
equipment on railroad cars,[62] it held, in Schechter Poultry Corp. _v._
United States,[63] and Carter _v._ Carter Coal Company[64] that private
trade groups could not be empowered to issue binding rules concerning
methods of competition or wages and hours of labor. On the other hand,
statutes providing that restrictions upon the production or marketing of
agricultural commodities shall become operative only upon a favorable
vote by a prescribed majority of the persons affected have been
upheld.[65] The position of the Court is that such a requirement does
not involve any delegation of legislative authority, since Congress has
merely placed a restriction upon its own regulation by withholding its
operation in a given case unless it is approved upon a referendum.[66]
POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION
An entirely different problem arises when, instead of directing another
department of government to apply a general statute to individual cases,
or to supplement it by detailed regulation, Congress commands that a
previously enacted statute be revived, suspended or modified, or that a
new rule be put into operation, upon the finding of certain facts by an
executive or administrative officer. Since the delegated function in
such cases is not that of "filling up the details" of a statute,
authority for it must be sought elsewhere than in Wayman _v._ Southard
and its progeny. It is to be found in an even earlier case--The Brig
Aurora[67]--where the revival of a law upon the issuance of a
Presidential proclamation was upheld in 1813. After previous restraints
on British shipping had lapsed, Congress passed a new law stating that
those restrictions should be renewed in the event the President found
and proclaimed that France had abandoned certain practices which
violated the neutral commerce of the United States. To the objection
that this was an invalid delegation of legislative power, the Court
answered briefly that "we can see no sufficient reason, why the
legislature should not exercise its discretion in reviving the act of
March 1st, 1809, either expressly or conditionally, as their judgment
should direct."[68]
MODIFICATION OF TARIFF LAWS
This point was raised again in Field _v._ Clark,[69] where the Tariff
Act of 1890 was assailed as unconstitutional because it directed the
President to suspend the free importation of enumerated commodities "for
such time as he shall deem just" if he found that other countries
imposed upon agricultural or other products of the United States duties
or other exactions which "he may deem to be reciprocally unequal and
unjust." In sustaining this statute the Court relied heavily upon two
factors: (1) legislative precedents which demonstrated that "in the
judgment of the legislative branch of the government, it is often
desirable, if not essential, * * *, to invest the President with large
discretion in matters arising out of the execution of statutes relating
to trade and commerce with other nations";[70] (2) that the act "did
not, in any real sense, invest the President with the power of
legislation. * * * Congress itself prescribed, in advance, the duties to
be levied, * * *, while the suspension lasted. Nothing involving the
expediency or the just operation of such legislation was left to the
determination of the President. * * * He had no discretion in the
premises except in respect to the duration of the suspension so
ordered."[71] By similar reasoning, the Court sustained the flexible
provisions of the Tariff Act of 1922 whereby duties were increased or
decreased to reflect differences in cost of production at home and
abroad, as such differences were ascertained and proclaimed by the
President.[72]
ARMS EMBARGO
That the delegation of discretion in dealing with foreign relations
stands upon a different footing than the transfer of authority to
regulate domestic concerns was clearly indicated in United States _v._
Curtiss-Wright Export Corp.[73] There the Court upheld the Joint
Resolution of Congress which made it unlawful to sell arms to certain
warring countries "if the President finds that the prohibition of the
sale of arms and munitions of war in the United States to those
countries now engaged in armed conflict in the Chaco may contribute to
the reestablishment of peace * * *, and if * * *, he makes proclamation
to that effect, * * *" Said Justice Sutherland for the Court: "It is
important to bear in mind that we are here dealing not alone with an
authority vested in the President by an exertion of legislative power,
but with such an authority plus the very delicate, plenary and exclusive
power of the President as the sole organ of the Federal Government in
the field of international relations--* * *, Congressional legislation
which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved."[74]
INTERNAL AFFAIRS
Panama Refining Co. _v._ Ryan[75] was the first case in which the
President had been authorized to put into effect by proclamation, a new
and independent rule pertaining to internal affairs. One section of the
National Industrial Recovery Act authorized the President to forbid the
shipment in interstate commerce of oil produced or withdrawn from
storage in violation of State law. Apart from the purposes broadly
stated in the first section--economic recovery and conservation of
natural resources--the measure contained no standard or statement of
policy by which the President should be guided in determining whether or
when to issue the order. Nor did it require him to make any findings of
fact to disclose the basis of his action. By a vote of eight-to-one the
Court held the delegation invalid. The only case in which the power of
an administrative official to modify a rule enacted by Congress relating
to domestic affairs has been sustained is Opp Cotton Mills _v._
Administrator.[76] That case involved the provisions of the Fair Labor
Standards Act which authorized the appointment of Industry Advisory
Committees to investigate conditions in particular industries, with
notice and opportunity to be heard afforded to interested parties. Upon
consideration of factors enumerated in the law and upon finding that the
conditions specified in the law were fulfilled, such Committees were
empowered to recommend and the Administrator to adopt, higher minimum
wage rates for particular industries. Emphasizing the procedure which
the agency was directed to follow and the fact that it would be
impossible for Congress to prescribe specific minimum wages for
particular industries,[77] a unanimous court sustained the law on the
ground that the sole function of the Administrator was to put into
effect the definite policy adopted by the legislators.
EMERGENCY STATUTES
Occupying a midway station between legislation which deals with foreign
affairs and purely domestic legislation is what may be termed "emergency
statutes." These are largely the outgrowth of the two World Wars. Thus
on December 16, 1950, President Truman issued a proclamation declaring
"the existence of a national emergency," and by so doing "activated"
more than sixty statutes or parts thereof which by their terms apply to
or during "a condition of emergency" or "in time of war or national
emergency," etc. Most of these specifically leave it to the President to
determine the question of emergency, and the White House assumption
seems to be that they all do so. Many of the provisions thus activated
delegate powers of greater or less importance to the President himself
or remove statutory restrictions thereon.[78]
PUNISHMENT OF VIOLATIONS
If Congress so provides, violations of valid administrative regulations
may be punished as crimes.[79] But the penalties must be provided in the
statute itself; additional punishment cannot be imposed by
administrative action.[80] In an early case, the Court held that a
section prescribing penalties for any violation of a statute did not
warrant a prosecution for wilful disobedience of regulations authorized
by, and lawfully issued pursuant to, the act.[81] Without disavowing
this general proposition, the Court, in 1944, upheld a suspension order
issued by the OPA whereby a dealer in fuel oil who had violated
rationing regulations was forbidden to receive or deal on that
commodity.[82] Although such an order was not explicitly authorized by
statute, it was sustained as being a reasonable measure for effecting a
fair allocation of fuel oil, rather than as a means of punishment for an
offender. In another OPA case, the Court ruled that in a criminal
prosecution, a price regulation was subject to the same rule of strict
construction as a statute, and that omissions from, or indefiniteness
in, such a regulation, could not be cured by the Administrator's
interpretation thereof.[83]
Congressional Investigations
INVESTIGATIONS IN AID OF LEGISLATION
No provision of the Constitution expressly authorized either house of
Congress to make investigations and exact testimony to the end that it
may exercise its legislative function effectively and advisedly. But
such a power had been frequently exercised by the British Parliament and
by the Assemblies of the American Colonies prior to the adoption of the
Constitution.[84] It was asserted by the House of Representatives as
early as 1792 when it appointed a committee to investigate the disaster
to General St. Clair and his army in the Northwest and empowered it to
"call for such persons, papers, and records, as may be necessary to
assist their inquiries."[85]
CONDUCT OF EXECUTIVE DEPARTMENT
For many years the investigating function of Congress was limited to
inquiries into the administration of the Executive Department or of
instrumentalities of the Government. Until the administration of Andrew
Jackson this power was not seriously challenged.[86] During the
controversy over renewal of the charter of the Bank of the United
States, John Quincy Adams contended that an unlimited inquiry into the
operations of the bank would be beyond the power of the House.[87] Four
years later the legislative power of investigation was challenged by the
President. A committee appointed by the House of Representatives "with
power to send for persons and papers, and with instructions to inquire
into the condition of the various executive departments, the ability and
integrity with which they have been conducted, * * *"[88] called upon
the President and the heads of departments for lists of persons
appointed without the consent of the Senate and the amounts paid to
them. Resentful of this attempt "to invade the just rights of the
Executive Departments" the President refused to comply and the majority
of the committee acquiesced.[89] Nevertheless Congressional
investigations of Executive Departments have continued to the present
day. Shortly before the Civil War, contempt proceedings against a
witness who refused to testify in an investigation of John Brown's raid
upon the arsenal at Harper's Ferry occasioned a thorough consideration
by the Senate of the basis of this power. After a protracted debate,
which cut sharply across sectional and party lines, the Senate voted
overwhelmingly to imprison the contumacious witness.[90] Notwithstanding
this firmly established legislative practice the Supreme Court took a
narrow view of the power in the case of Kilbourn _v._ Thompson.[91] It
held that the House of Representatives had overstepped its jurisdiction
when it instituted an investigation of losses suffered by the United
States as a creditor of Jay Cooke and Company, whose estate was being
administered in bankruptcy by a federal court. But nearly half a century
later, in McGrain _v._ Daugherty,[92] it ratified in sweeping terms, the
power of Congress to inquire into the administration of an executive
department and to sift charges of malfeasance in such administration.
PRIVATE AFFAIRS
Beginning with the resolution adopted by the House of Representatives in
1827 which vested its Committee on Manufactures "with the power to send
for persons and papers with a view to ascertain and report to this House
such facts as may be useful to guide the judgment of this House in
relation to a revision of the tariff duties on imported goods,"[93] the
two Houses have asserted the right to inquire into private affairs when
necessary to enlighten their judgment on proposed legislation. In
Kilbourn _v._ Thompson,[94] the Court denied the right of Congress to
pry into private affairs. Again, in Interstate Commerce Commission _v._
Brimson,[95] in sustaining a statute authorizing the Courts to use their
process to compel witnesses to give testimony sought by the Commission
for the enforcement of the act, the Court warned that, "neither branch
of the legislative department, still less any merely administrative
body, established by Congress, possesses, or can be invested with, a
general power of making inquiry into the private affairs of the
citizen."[96] Finally, however, in McGrain _v._ Daugherty,[97] the power
of either House "to compel a private individual to appear before it or
one of its committees and give testimony needed to enable it efficiently
to exercise a legislative function belonging to it under the
Constitution, * * *"[98] was judicially recognized and approved.
PURPOSE OF INQUIRY
In the absence of any showing that legislation was contemplated as a
result of the inquiry undertaken in Kilbourn _v._ Thompson, the Supreme
Court concluded that the purpose was an improper one--to pry into
matters with which the judiciary alone was empowered to deal.[99]
Subsequent cases have given the legislature the benefit of a presumption
that its object is legitimate. In re Chapman[100] established the
proposition that to make an investigation lawful "it was certainly not
necessary that the resolutions should declare in advance what the Senate
meditated doing when the investigation was concluded."[101] Similarly,
in McGrain _v._ Daugherty, the investigation was presumed to have been
undertaken in good faith to aid the Senate in legislating.[102] Going
one step further in Sinclair _v._ United States,[103] which on its facts
presented a close parallel to the Kilbourn Case, the Court affirmed the
right of the Senate to carry on its investigation of fraudulent leases
of government property after suit for the recovery thereof had been
instituted. The president of the lessee corporation had refused to
testify on the ground that the questions related to his private affairs
and to matters cognizable only in the courts wherein they were pending
and that the committee avowedly had departed from any inquiry in aid of
legislation. The Senate prudently had directed the investigating
committee to ascertain what, if any, other or additional legislation may
be advisable. Conceding "that Congress is without authority to compel
disclosures for the purpose of aiding the prosecution of pending suits,"
the Court declared that the authority "to require pertinent disclosures
in aid of its own constitutional power is not abridged because the
information sought to be elicited may also be of use in such
suits."[104]
JUDICIAL FUNCTIONS
When either House exercises a judicial function, as in judging of
elections or determining whether a member should be expelled, it is
clearly entitled to compel the attendance of witnesses to disclose the
facts upon which its action must be based. Thus the Court held that
since a House had a right to expel a member for any offense which it
deemed incompatible with his trust and duty as a member, it was entitled
to investigate such conduct and to summon private individuals to give
testimony concerning it.[105] The decision in Barry _v._ United States
ex rel. Cunningham[106] sanctioned the exercise of a similar power in
investigating a Senatorial election.
SANCTIONS OF THE INVESTIGATORY POWER
Contempt
Explicit judicial recognition of the right of either House of Congress
to commit for contempt a witness who ignores its summons or refuses to
answer its inquiries dates from McGrain _v._ Daugherty. But the
principle there applied had its roots in an early case, Anderson _v._
Dunn,[107] which affirmed in broad terms the right of either branch of
the legislature to attach and punish a person other than a member for
contempt of its authority--in that case an attempt to bribe one of its
members. The right to punish a contumacious witness was conceded in
Marshall _v._ Gordon,[108] although the Court there held that the
implied power to deal with contempt did not extend to the arrest of a
person who published matter defamatory of the House. Both Anderson _v._
Dunn and Marshall _v._ Gordon emphasized that the power to punish for
contempt rests upon the right of self-preservation; that is, in the
words of Chief Justice White, "the right to prevent acts which in and of
themselves inherently obstruct or prevent the discharge of legislative
duty or the refusal to do that which there is inherent legislative power
to compel in order that legislative functions may be performed."[109]
Whence it was argued, in Jurney _v._ MacCracken[110] that the Senate had
no power to punish a witness who, having been commanded to produce
papers, destroyed them after service of the subpoena, because the "power
to punish for contempt may never be exerted, in the case of a private
citizen, solely _qua_ punishment. * * * the power to punish ceases as
soon as the obstruction has been removed, or its removal has become
impossible; * * *" The Court confirmed the power to punish for a past
contempt as an appropriate means for vindicating "the established and
essential privilege of requiring the production of evidence."[111]
Criminal Prosecutions
Under the rule laid down by Anderson _v._ Dunn, imprisonment for
contempt of one of the Houses of Congress could not extend beyond the
adjournment of the body which ordered it.[112] This limitation seriously
impaired the efficacy of such sanction. Accordingly, in 1857 Congress
found it necessary to provide criminal penalties for recalcitrant
witnesses, in order to make its power to compel testimony more
effective. The Supreme Court held that the purpose of this statute was
merely to supplement the power of contempt by providing additional
punishment, and overruled all constitutional objections to it saying:
"We grant that Congress could not divest itself, or either of its
Houses, of the essential and inherent power to punish for contempt, in
cases to which the power of either House properly extended; but, because
Congress, by the act of 1857, sought to aid each of the Houses in the
discharge of its constitutional functions, it does not follow that any
delegation of the power in each to punish for contempt was involved;
* * *."[113] In a prosecution for wilful failure of a person to produce
records within her custody and control pursuant to a lawful subpoena
issued by a committee of the House of Representatives, the Supreme Court
ruled that the presence of a quorum of the committee at the time of the
return of the subpoena was not an essential element of the offense.[114]
Previously the Court had held that a prosecution could not be maintained
under a general perjury statute for false testimony given before a
Congressional committee unless a quorum of the committee was present
when the evidence was given.[115]
Section 2. Clause 1. The House of Representatives shall be
composed of Members chosen every second Year by the People of the
several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch of the
State Legislature.
Clause 2. No Person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an Inhabitant
of the State in which he shall be chosen.
Qualifications of Members of Congress
CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES
Although the qualifications of electors of Members of Congress are
defined by State law,[116] the right to vote for such Representatives is
derived from the Federal Constitution.[117] Unlike the rights guaranteed
by the Fourteenth and Fifteenth Amendments, this privilege is secured
against the actions of individuals as well as of the States.[118] It
embraces the right to cast a ballot and to have it counted
honestly.[119] Where a primary election is made by law an integral part
of the procedure of choice or where the choice of a representative is in
fact controlled by the primary, the Constitution safeguards the rights
of qualified electors to participate therein.[120] Congress may protect
this right by appropriate legislation.[121] In prosecutions instituted
under section 19 of the Criminal Code,[122] the Court had held that
failure to count ballots lawfully cast,[123] or dilution of their value
by stuffing the ballot box with fraudulent ballots[124] constitutes a
denial of the constitutional right to elect Representatives in Congress.
But the bribery of voters, although within reach of Congressional power
under other clauses of the Constitution, is not deemed to be an
interference with the rights guaranteed by this section to other
qualified voters.[125]
WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED
The principal disputes which have arisen under these sections have
related to the time as of which members-elect must fulfill the
conditions of eligibility, and whether additional requirements may be
imposed by federal or State law. Although on two occasions when it
refused to seat persons who were ineligible when they sought to take the
oath of office, the Senate indicated that eligibility must exist at the
time of election, it is now established in both Houses that it is
sufficient if the requirements are met when the oath is administered.
Thus persons elected to either House before attaining the required age
or term of citizenship have been admitted as soon as they became
qualified.[126]
ENLARGEMENT OF QUALIFICATIONS
Writing in The Federalist[127] with reference to the election of Members
of Congress, Hamilton expressed the opinion that "the qualifications of
persons who may * * * be chosen * * * are defined and fixed in the
Constitution and are unalterable by the legislature." The question
remained academic until the Civil War, when Congress passed a law
requiring its members to take an oath that they had never been disloyal
to the Federal Government. In subsequent contests over the seating of
men charged with disloyalty, the right of Congress to establish by law
other qualifications for its members than those contained in the
Constitution was sharply challenged. Nevertheless, both the House and
Senate, relying on this act, did refuse to seat several persons.[128] At
this time the principal argument against the statute was that all
persons were eligible for the office of Representative unless the
Constitution made them ineligible. In Burton _v._ United States,[129]
the argument was given a new twist. A law providing that a Senator or
Representative convicted of unlawfully receiving money for services
rendered before a government department should be "rendered forever
thereafter incapable of holding any office of honor, trust or profit
under the Government of the United States," was assailed as an
unconstitutional interference with the authority of each House to judge
the qualifications of, or to expel, one of its own members. The Court
construed the statute not to affect the offender's tenure as a Senator,
and left undecided the power of Congress to impose additional
qualifications (or disqualifications).[130] In exercising the power
granted by section 5 to judge the qualifications of its own members,
each House has asserted the power to inquire into the conduct of a
member-elect prior to his election. In 1900 the House of Representatives
refused to seat a person who practiced polygamy,[131] and in 1928 the
Senate voted to exclude a Senator-elect on the ground that his
acceptance of large campaign contributions from persons who were subject
to regulation by a State Administrative Commission of which he had been
Chairman were "contrary to sound public policy" and tainted his
credentials with fraud and corruption.[132]
INABILITY OF THE STATES TO ENLARGE
A State may not add to the qualifications prescribed by the Constitution
for members of the Senate and House of Representatives. Asserting this
principle, the House in 1807 seated a member whose election was
contested on the ground that he had not been twelve months a resident of
the district from which elected as required by State law. No attempt was
made to ascertain whether these requirements were met because the State
law was deemed to be unconstitutional.[133] Both the House and Senate
have seated members elected during their term of office as State judges,
despite the provision of State constitutions purporting to bar the
election of judges to any other office under the State or the United
States during such term.[134]
Clause 3. [Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to
their respective Numbers, which shall be determined by adding to the
whole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all
other Persons].[135] The actual Enumeration shall be made within three
Years after the first Meeting of the Congress of the United States, and
within every subsequent Term of ten Years, in such Manner as they shall
by Law direct. The Number of Representatives shall not exceed one for
every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of
New Hampshire shall be entitled to chuse three, Massachusetts eight,
Rhode-Island and Providence Plantations one, Connecticut five, New-York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.
THE CENSUS REQUIREMENT