"The framers of the U.S. constitution have simply been too shrewd for us. The have outwitted us. They designed separate institutions that cannot be unified by mechanical linkages, frail bridges, tinkering. If we are to 'turn the Founders upside down' -- we must directly confront the constitutional structure they erected." (James McGregor Burns)

    The Constitution consists of seven (7) articles and 27 amendments. The most important articles are the first three which explain the powers of the three branches of government. Article I deals with the Legislative branch; Article II the Executive branch; and Article III, the Judicial branch. Other articles are also important for various doctrines and clauses.  For the Amendments, it's customary to refer to the first ten as the Bill of Rights, however only the first eight (8) Amendments are truly substantive in terms of rights. This lecture addresses the most important doctrines, clauses, sections, and theories contained in the Constitution proper; that is, the first seven (7) articles. Subsequent lectures cover the Bill of Rights and other Amendments.

    What the reader will be viewing here are most commonly called annotations, as that word is used by lawyers to mean notes, summary, and commentary designed to explain or illustrate. I have taken the liberty of concentrating on what, in the widest sense, has possible implications for criminal justice, and in doing so, have probably erred on the side of taking some dicta (non-binding opinion) as precedent (binding opinion), especially where there are few facts to go on.  I have also tried to emphasize how the Constitution outlines a structure for governance by granting rule and regulation authority (police powers), and in this regard, I have come down in favor of precisely that kind of interpretation among all the debates about what the founding fathers intended.      


    Article I Section 1: the SEPARATION OF POWERS Doctrine and the Theory of CHECKS AND BALANCES - Establishes three branches of government with powers to legislate, execute, and adjudicate. No person shall serve in more than one branch simultaneously. One branch of government cannot turn its powers over to another.  Madison's Federalist Papers point out the doctrine is taken from Montesquieu's tripartite government thesis.  The theory of checks and balances refers to a curious mix of divided powers. For example, the President has veto power over the legislature, the Senate has confirmation power over Presidential appointees, the Judiciary has judicial review over the other two branches, and Congress can investigate and impeach anybody in the other two branches.  The legislature also has a House and Senate (bicameralism) to avoid legislative dominance. Executive agencies also make their own law (Administrative Law) which allow them to get their work done. In recent years, challenges have been issued toward the power of Congress to appoint independent special prosecutors.

    Article I Section 8: the COMMERCE CLAUSE - Authorizes Congress to collect taxes, pay debts, and provide for the common defense and general welfare.  The theory of taxation is that certain goods, wares, merchandise, and services should be taxed accordingly so as to promote desired economic objectives.  Congress must be fair and balanced with navigation and transportation, but liquor and tobacco, for example, might be taxed more heavily. However, the primary motive must be to secure revenue for the continued operation of the government and to pay off debt.  The writings of Thomas Jefferson indicate that Congress should not just tax as it pleases; it should tax for the general welfare.  The Federalist Papers contain a debate between Hamilton and Madison on exactly what the general welfare is, with Madison taking a fiscal conservative line as the costs of government self-support only.  Subsequent interpretations have included the notions of public improvements and war powers (the Monroe doctrine). Social security and unemployment relief have been controversial over the years, but are generally thought of as consistent with this clause. A variety of government spending, of course, goes on, as does government borrowing (also allowed under this clause), as is the government taking of land to preserve the environment.  Commerce narrowly means traffic, transporting goods across state lines, so a whole system of federal regulatory agencies has sprung up to control interstate commerce. But in a broader sense, commerce means intercourse, covering every species of movement of persons and things, whether for profit or not, across state lines. It doesn't matter if the commerce is legal or illegal, consistent or sporadic, electrons or information; Congress has the power to tax and regulate. Regulation includes conditions and rules for carrying out the commerce as well as the power to fix prices and terms of sale. Numerous government initiatives derive from this clause, including the Sherman antitrust act, Securities and Exchange, Copyrights and Patents, Postal police powers, Immigration and Bankruptcy, Energy, Food, Drug, and Agriculture regulation, Labor Relations, Racial Discrimination, Disabilities accommodation, the banning of foreign contraband, counterfeiting, lotteries, quarantines, product recalls, slavery, kidnapping and auto theft laws, to name a few. The Commerce Clause represents the police power of Congress. In fact, anything touching on commerce badly in any way is automatically a federal crime. States are allowed to have similar powers, especially in the areas of corporate regulation, highways and traffic safety under a balancing test which compares the burden on interstate commerce with the importance of state interest. State taxation, however, must follow the rule of apportionment, which essentially means avoidance of multiple taxation. State and federal regulation should not conflict or overlap; otherwise the preferred solution is deregulation of a field.  

    Article I Section 8: the MARITIME CLAUSE - Gives Congress the power to define and punish all crimes committed on the high seas and any offenses against the law of nations. Crime on the high seas, or piracy, is the easy part to figure out, but the law of nations is more vague. In the early days of the nation's founding, the U.S. like other countries, paid tribute to various pirates of the Barbary States (Algiers, Morocco, Tripoli, and Tunis) and used letters of passage for its own rebel pirates. This situation was not rectified until 1816 and required the creation of Maritime Law, or American admiralty courts, which most people today can only relate to with our modern (privatized) system of insurance. The law of nations refers to that part of International Law which America participates in to be considered a civilized nation. It means that we should pass laws against wrongs being done in our own dominion that would be considered wrongs in other nations. The reasoning is that by not doing so, we fail to prevent wrongs being done against other nations, by encouraging piracy and so forth.  Granted, this clause is talking about extraterritorial powers, but the basic theory behind sovereignty is that, as a nation, we are participating in International Law via a law of nations.  It is therefore the duty of Congress to define and justify the various crimes in this regard.

    Article I Section 8: the WAR POWER CLAUSE - Gives Congress the right to declare war, to set the rules of war, and to raise and support armies. The initiation of armed hostilities should be called up by the concurrence of the President and both Houses of Congress. The reason is that most of the founding fathers did not want lives to be shed on the decision of a single individual. Hamilton, however,  wanted the President to have sole commander-in-chief powers who merely asked for the advice of the Senate.  Others thought this made the President a King.  The compromise solution was to allow the President to repel sudden attacks without Congressional action.  Presidents must inform Congress of military action in the absence of a declaration of war, and Congress can approve actions short of all-out war, but only Congress can stamp an action as an act of war. The order of the President can initiate hostile action and commit troops abroad in furtherance of national interests, but Congress can set cut-off dates for when those troops must be withdrawn.  Congress also controls the drafting of service personnel, the age at which soldiers must be, military compensations, and the system of military justice.  Military courts are not Article III courts but agencies established under Article I. Military law supercedes Constitutional Law in an active Theater of military operations. Upon a declaration of war, enemy property within the United States is subject to immediate confiscation without 4th, 5th, and 6th Amendment rights, and it is immaterial if that property belongs to an alien, a neutral, or even to a citizen. Citizens cannot be made subject to military (martial) law except when civil law is impossible to maintain, however, curfews can be established to prevent espionage and sabotage. The United States is not responsible for any injuries, damages, or destruction of property in military operations, except in those cases where the property of loyal citizens was taken for national defense.   

    Article I Section 8: the MILITIA CLAUSE - Authorizes Congress to call out the Militia to suppress insurrections, repel invasions, and handle civil wars, employing them in service of the United States, reserving the right to appoint officers to the States, and reserving the right to training to the federal government. The militia means all members of the National Guard and the National Guard reserve, at both state and federal levels. 

    Article I Section 8: the ELASTIC CLAUSE - Congress shall have all necessary and proper powers to make laws for executing any of the foregoing powers.  The key phrase is necessary and proper which means that Congress shall act reasonably and always pursue legitimate ends. This catchall clause is often relied upon in creation of various regulatory agencies by Congress.

    Article I Section 9: HABEAS CORPUS, BILLS OF ATTAINDER and EX POST FACTO LAWS - The privilege of habeas corpus shall not be suspended. Habeas corpus means "bring forth the body" and it requires that an order from a court to anyone holding a prisoner must bring that person before the court to determine if the imprisonment is lawful.  President Lincoln tried to suspend habeas corpus during the Civil War, and it was also suspended by some states trying to crackdown on Ku Klux Klan activity.  A Bill of Attainder is a special order for someone's execution without trial, such as in immediate firing squad for acts of treason or espionage. If the act is less than death, it's called a Bill of Pains and Penalties.  Both are outlawed.  An Ex Post Facto Law makes criminal an act that was innocent when done. Congress cannot put a crime on the books, like polygamy, if no such crime existed beforehand.

    Article I Section 10: the CONTRACTS CLAUSE - The doctrine of contracts is that the law in force at the time a contract is made or entered into comprises a part of the contract itself, even if the law in force at the time is later rendered unconstitutional or superceded by new law. This recognizes the "living" nature of Constitutional law because at one time, at least, the surrounding law was constitutional. A contract is any agreement of the minds, and a person affronted or short changed in such a contract shall have access to constitutional remedies the same as anyone seeking relief under a new law.   


    Article II Section 1: the THEORY OF PRESIDENTIAL OFFICE - Vests executive power in a natural born citizen age 35 or older with at least 14 years of residency who along with a Vice President, holds office for four years. The limit on two terms is a tradition embodied in the 22nd Amendment. Most of the founding father's debates over the method of selection, term, mode of removal, and power boil down to the idea of establishing a chief executive free from legislative and state influence; in other words, a national office, not someone regional nor like the office of state governor. However, the founding fathers left certain ambiguities in the job description.  The theory is that the office should be as big as the person holding it can be, that powers depend upon the personal capacities and abilities that the person brings to office. The technically correct way to express this is to say that a complete enumeration of all Presidential powers is impossible, except within certain limitations. It's also sometimes referred to as the Hamiltonian doctrine (affirmed by Justice Taft in a plurality opinion) that the President enjoys all inherent and implied powers that are not particularized or limited elsewhere. This kind of constitutional interpretation is called latitudinarian. It's not just that the President enjoys powers not reserved elsewhere; it's that the President must face problems too manifold and delicate to even imply. The President is expected to be the kind of person that no citizen ever has to guess at where the country is at or is going. The President alone speaks and listens for the nation as a whole. The President runs both domestic and foreign affairs. The President is always supposed to be strong and not weak. The President should never give way to fear or apprehension, despite knowing what dangers might confront us. The President should always know what is right, even if they are unable to always do what is right.  There have been times, most notably in the Truman and Nixon administration, in which the Court has retreated from this latitudinarian doctrine.

    Article II Section 1: the THEORY OF THE ELECTORAL COLLEGE -  Each state's legislature appoints a number of electors equal to the number of Senators and Representatives from that state, and the electors meet and cast two (2) votes for Presidential candidates, one of whom must not be an inhabitant of the same state as themselves. The President of the Senate than counts the votes in front of a joint session of Congress, and the person with the most votes becomes President, all votes and all states counting equally. The Electoral College was a hastily put-together last-minute plan by the founding fathers to prevent regionalism in the popular vote because some states have more people than others. It's the electors, not the people, who actually elect the President. If you look closely at the popular ballots (although there's a lot of state variation; 20 states don't even mention it), you'll see that people are actually electing electors for the candidates whose names appear on the ballots. The popular vote exists to uphold the Constitutional guarantee of equal protection (access to the ballot box), and there is no Constitutional right to vote for the candidate of your choice, only for the electors of your choice. The theory is that electors should be free agents - nonpartisan men and women who exercise independent judgment - but in practice, the electors always vote along party lines out of loyalty or because a state law (in 13 states) requires it. Convention nominees elected during Primary elections are, on the other hand, always required to support the candidate they were elected for. The Supreme Court has been relatively silent on Electoral College issues, concerning itself more with equal protection of the election and balloting process. It remains to be seen if Congress will look into amending this part of the Constitution after the 2000 election fiasco.

    Article II Section 1: the SUCCESSION CLAUSE - If the President dies, resigns, becomes disabled, or is removed from office, this clause and the 25th Amendment delineate the line of succession. If the President dies, resigns, or is removed from office, the Vice President becomes President with all inherent powers of the Presidency. If the President becomes disabled, the Vice President becomes Acting President whose powers may or may not be circumscribed in a letter the President must write with Congress. A disabled President can only return to office if the disability no longer exists and Congress approves. If the office of Vice President becomes vacant, the President nominates a replacement who must be confirmed by Congress. The Vice President only presides over the Senate to cast tie-breaking votes. The Senate President pro tempore is always the most senior member of the majority party. When the VP isn't available to preside regularly, the Senate President pro tempore usually delegates the job to someone else, reserving the right to preside over special sessions. The line of succession to the U.S. Presidency runs from the VP to the House Speaker to the Senate President Pro Tem, to the Secretary of State, and then to the Cabinet officials in order of when their department was created (Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, HHS, HUD, Transportation, Energy, Education, VA). 

    Article II Section 2: the COMMANDER-IN-CHIEF CONCEPT - The President is the supreme commander of the Armed Services, the first among generals and admirals, a civilian chief executive who cannot be court-martialed nor made subject to any military discipline. The concept of civilian control of the military is unique in world history, and further implemented in the Defense secretary being a civilian as well as the service secretaries of the Army, Navy, and Air Force. Military leaders serve on the Joint Chiefs of Staff or the National Security Council which are advisory groups. Command means decision, commitment, direction, dispatch, secrecy, and control. These duties are delegated to one person only, the President, who is duty-bound to meet force with force without waiting for legislative authority. The President must determine what degree of force the crisis demands. In wartime or with the approach of war, the President has additional extraordinary powers to protect the war machine from peril (by rooting out spies and saboteurs), to act on any military necessity (by martial law), to compel service from citizens (selective service or conscription), and to order regulatory agencies to impose sanctions (such as rent control or ration coupons).  A string of national emergencies would trigger the same powers, as would any unusual or extraordinary threat, which has its source wholly or in part from outside the U.S., to the national security, foreign policy, or economy of the U.S., and Presidents have used this power to unilaterally intervene in places like the Dominican Republic, Lebanon, Vietnam, Grenada, Panama, and the Persian Gulf, to name a few.  Presidents are also expected to protect U.S. citizens in foreign countries, and are free to act accordingly in such matters without interference from Congress. Neither is Congressional approval needed for U.S. participation in any U.N. peacekeeping action.  The only time the Constitution says Congress must approve is any troop action against a sovereign state in such a way as to constitute war.  Needless to say, Congress resents this, and passed the War Powers Act which requires the President to report to Congress within 48 hours after troops are committed, and to withdraw such troops within 60 days unless Congress declares war or extends the period. However, all Presidents since its passage have regarded the War Powers Act as unconstitutional and largely ignored it.  After any military action, the President can acquire and possess the territory of another nation, and set up a temporary government there until Congress sets up a more permanent regime. Congress often never gets around to this, so the U.S. has ended up with numerous possessions and territories.

    Article II Section 2: the POWER TO PARDON, COMMUTE, AND REPRIEVE - A pardon is an act of grace which exempts a person from punishment for a crime, and is a private, though official, act of the President as the chief executive. A commutation is a lessening of punishment, as in commuting a sentence of death to life imprisonment, and the only thing limiting the President is this regard is that the Constitution is not offended. A reprieve is a temporary stay or postponement of punishment, as in a stay of execution. The President has these powers only for federal crimes, not for state laws.

    Article II Section 2: the TREATY-MAKING CLAUSE - The President alone negotiates treaties with the advice and consent of the Senate. Ratification of treaties requires a two-third Senate majority, although it is a common misconception that the senate "ratifies" treaties. The senate's function is to consent to a treaty (or decline to do so), and it is the president who really ratifies. The president cannot ratify without senate consent, but the senate's consent does not create an obligation on the president's part to ratify. Moreover, presidents can unilaterally pull out of treaties, even though a treaty is to be considered part of the law of the land, with as much power as a legislative act, and enforceable in the courts. They also override state constitutions. Presidents have been known to make and break treaties at will. Historically, they have played a significant role with Indian Affairs in American history. Modern extradition treaties also require the federal government to intervene whenever a state violates the rights of an illegal alien. Most new treaties today are designed to protect the environment. Border disputes and the like are normally handled by executive agreements rather than treaties. The President appoints ambassadors and consuls to enforce treaties and agreements, envoys, ministers, and plenipotentiaries to improve relations, and special, personal, or secret diplomatic agents to carry out the business of creating the need for treaties and agreements. Likewise, the President commissions all officers of the United States (political appointees), but this is a duty usually relegated to the Secretary of State, except when the appointment is at Cabinet rank. A commission is a piece of paper signed by the President; without it, the official serves by warrant or civil service. Commissioned officials along with the President enjoy the protection of executive privilege (such as being able to withhold documents from the judiciary or legislature). Diplomatic immunity has some minor exceptions, such as being liable for traffic tickets and subject to expulsion for espionage. The doctrine of executive privilege has also come under attack in recent years, and is now regarded as a limited privilege. 

    Article II Section 3: the LEADERSHIP ROLE OF THE PRESIDENT - The President plays a legislative leadership role when Congress is convened for a special session or for a State of the Union address; the President plays a diplomatic leadership role in recognizing and receiving foreign ambassadors and ministers; and the President plays a law enforcement leadership role in seeing that the laws are faithfully executed.  The Constitution does not say the President executes the laws, only sees that they are executed. Therefore, the President is not a chief law enforcement officer, but a civilian budgetary executive who apportions the allocations between various law enforcement agencies. Faithful execution of this duty requires a fair apportionment between the agencies. A President, for example, who only beefs up their Secret Service, is probably not faithfully exercising their duty. There is also a posse comitatus clause which allows the President, in times of insurrection or rebellion, to call up members of the militia and armed forces to law enforcement duty (primarily to assist U.S. Marshals).

    Article II Section 4: the IMPEACHMENT CLAUSE - The President, Vice President, and all civil officers of the U.S. can be removed from office for Impeachment and Conviction of treason, bribery, or other high crimes and misdemeanors.  An Impeachment is not a conviction, and cannot remove a President from office. It is simply a formal charge accusing the President of a crime.  A two-thirds vote in the Senate is needed to remove a President from office, and the Chief Justice must preside over the Senate trial. Justices and judges can also be impeached under this clause, and additionally for bad behavior. The phrase high crimes and misdemeanors has been defined as behavior subversive of some fundamental principle of government or highly prejudicial to the public interest. Therefore, the behavior does not have to be a crime in order for Impeachment to occur. Sometimes, the bar is lowered to include any questionable conduct.


    Article III Section 1: the THEORY OF JUDICIAL POWER AND JURISDICTION - Judicial power is the authority to exercise judicial functions. All judicial functions involve by definition an unbiased decision about the interpretation and application of law to a particular set of facts contested by litigants in a court of law. Judicial connotes the power to punish, sentence, and resolve conflicts.  Article III of the Constitution only provides the barest outline for the U.S. judicial system; the Judiciary Act of 1789 fills in some of the details; and the current operating authority is Title 28 of the U.S. Code. The Judiciary Act established 6 Supreme Court justices; the number was gradually increased until it reached a total of 10 in 1863; after the Civil War, vacancies reduced the number to 7; and Congress finally fixed the number at 9. The founding fathers also envisioned the Supreme Court justices as circuit-riders, participating in the federal circuit (but not district) courts. This proved burdensome on the Justices, so in 1891, a system of intermediate appellate courts were sandwiched between the district courts and the Supreme Court. The district courts would have original jurisdiction, the appellate courts exclusive jurisdiction, and the Supreme Court discretionary jurisdiction. Although the terms judicial power and jurisdiction are frequently used interchangeably, jurisdiction is defined as a fixed authority to hear and determine the subject matter in controversies whereas judicial power is the flexible sum total of powers a court exercises when it assumes jurisdiction. The Constitution grants federal courts both criminal and civil contempt powers to enforce its decisions. Criminal contempt is used mainly to vindicate the Court; civil contempt to enforce the rights of parties; and federal courts can charge a party with both types of contempt. The type of punishment the Court can issue out for contempt is called summary punishment, which immediately overrides all other punishments the party may be subject to or serving. Other implied powers exist such as injunctive relief, imprisonment for contumacy (stubborn refusal to comply), bad-faith litigation, failure to obey a writ of mandamus (an order telling a public official how to do their job), and of course, habeas corpus remedies declaring a whole state's policing or detention system unconstitutional and appointing masters. Judicial power includes the power to act within the limits of statutes and rules for punishments and also in areas not covered by statutory authority. About the only limitation is that federal courts cannot stay state court proceedings, but there are even exceptions to that. The theory is one of justice as equity, a concern for fairness and what is good and right; not just that officials follow the letter of the law, but that they do what is good and right in the sight of the Lord.   

    Article III Section 2: the CONCEPT OF STANDING - One of four concepts (along with Real and Substantial Interests, Adversity, and avoidance of Political Questions) that make up the formula for deciding if the Federal courts should take a case and try to resolve it. The fourth is known as the doctrine of Political Questions, and all four concepts together are known as the idea of justiciability. The founding fathers did not intend the Federal courts to be havens of refuge for all sorts of minor cases, only those involving true controversies. Standing is short for Standing to Sue and means that the party bringing the litigation to the court must be the appropriate party by having a personal stake in the outcome or having sustained some direct personal injury in the controversy. Merely being a taxpayer or concerned citizen is not enough. Interest groups who want to file cases on behalf of the common, ordinary people must find at least one common, ordinary person with a personal stake or injury. The interests at stake must be Real and Substantial, more than general interests common to all citizens and taxpayers. Adversity means that the controversy must not be hypothetical, academic, or moot, but one that is definite, concrete, and ripe touching the legal relations of the parties who have adverse legal interests. The doctrine of Political Questions means that the province of the Court is to decide on the rights of individuals, not to inquire into how executive officials are performing within their discretion. The doctrine is separate from other Constitutional statements regarding judicial interference with executive functions. A Court abiding by these concepts is said to be exercising judicial restraint; a Court not abiding by them is said to be engaging in judicial activism.           

    Article III Section 2: the DOCTRINE OF JUDICIAL REVIEW - Judicial review is the power of U.S. courts to rule legislative enactments or executive acts invalid on constitutional grounds. Any court, state or federal, high or low, has the power to refuse to enforce any statute or executive order it deems repugnant to the Constitution or the law of the land. Therefore, even state courts have the power to declare acts of Congress and orders of the President unconstitutional, although they rarely do. Hamilton's Federalist Paper #78 best explains the doctrine of judicial review, but it also has roots in Natural Law expressions in the Declaration of Independence.  The 1803 case of Marbury v. Madison was the first time the Court ruled an act of Congress unconstitutional. Legislative acts that are repugnant to the Constitution are null and void as clear mistakes. Statutory law which conflicts with Constitutional law is decided on a case-by-case basis. The Court has repeatedly declared that it will decide constitutional issues of state law only if strict necessity compels it to do so. There must not be any extra-constitutional concerns as the Court can only consider the constitutionality of the law, not its motives, policy, or wisdom. A case involving two federal laws which conflict would be acquired by something called pendent or ancillary jurisdiction, where at least one of the laws presents a strict constitutional issue. Pendant jurisdiction sometimes allows federal courts to take claims out of state courts if there is a simultaneous claim in federal court. Something even rarer is protective jurisdiction when a state Legislature votes to have something treated as having federal jurisdiction. When the Supreme Court reverses and remands a case for a new state trial, it issues a mandate, and if that state court's opinion is to the detriment of the party prevailing in the Supreme Court, then and only then can the Supreme Court consider a variety of punishments for deviating from its mandate. However, according to the principle of Res Judicata, federal courts should give full faith and credit in the overall context of deference to state courts. This principle works alongside the doctrine of collateral estoppel (once a litigant's fate has been determined in their favor at trial, the same case cannot be relitigated in hopes of getting a more favorable outcome for the other side) to produce comity between federal and state courts. In recent years, there have been numerous habeas corpus reforms, all of which have tried to preserve a working relationship of comity while at the same time streamline the process of state and lower courts' cognizance of Supreme Court interpretations.

    Article III Section 3: the LAW OF TREASON - The Constitution says that treason consists of levying war against the United States, adhering to its enemies, or giving aid and comfort to its enemies. No person shall be convicted of treason unless on the testimony of two witnesses or a confession in open court. This part of the Constitution prohibits Congress from ever changing or modifying the law of treason, making it easier to establish.  The theory is that ordinary political disagreements should never be considered as treason, and the Constitutional requirements for proof are intended to guarantee nonviolent resistance. The clause does not, however, prohibit Congress from enacting other crimes and punishments for acts of a less subversive nature, as long as Congress is not trying to evade the Constitutional requirements for treason. Conspiracy, for example, is not treason, and therefore upheld as an appropriate lesser category. Every act, movement, deed, and word of a person accused of treason must be corroborated by at least two witnesses. Parents are responsible for the treasonous activities of their children. It's not enough to merely think treasonously; there must be an overt act such as renouncing citizenship, travel to a foreign country, changing passport registration, and the like. Dual nationality is not automatic grounds for suspicion. It's doubtful if it would ever be applied, but the Constitution allows atrocious treasonous crimes to be punished by corruption of blood, which means that all heirs and descendants of the traitor in the traitor's lifetime only would be subject to forfeiture of all income, wealth, and property.        


    Article IV Section 1: the FULL FAITH AND CREDIT CLAUSE - Each state shall be given autonomy in its law-making, record-keeping, and judicial proceedings, but Congress may prescribe the manner in which laws and pre-judgment decrees are enforced from state to state as well as attempt to ensure uniformity where it would be useful and valuable. Overall, this clause is concerned with preserving comity between the states and with civil law, particularly family law (marriage, divorce, adoption, alimony, and child support). It sets up a system of extradition that allows the states to enter into extradition agreements with one another, so that sentenced offenders (not pre-judged defendants) can be shipped to each state where there is a conviction. The duty to surrender fugitives is not absolute, and cannot be interfered with by habeas corpus. An alibi defense is usually sufficient to fight extradition. No state can enact laws to operate beyond its dominion, nor run its processes beyond its borders. Without extradition, no person can serve time in one state for a sentence rendered in another state. It also establishes the humanitarian principle of statute of limitations, set at 5 years in civil law, and varying from 3-5 years in criminal law. Although it never lapses on a murder charge, the statute of limitations is tolled, or suspended, in cases of interstate flight from justice. Nevertheless, other than with family law, probate, and motor vehicles, this part of the Constitution compels the federal government to tread carefully in setting standards by which the laws and procedures of one state are enforced in another state. Most readers are familiar with the famous Dred Scott case, where he become a free man in Illinois, but reverted to his condition of servitude in Missouri. The rule is that each state's policy respecting individual rights acquired extraterritorially is not to be interfered with by the federal government. The dissenting opinions in the Slaughter House cases offered hope to abolitionists that this clause would establish nationwide recognition of natural rights, but in terms of equal protection, it has been narrowly interpreted to merely mean that no state shall discriminate the citizens of another state in favor of their own, and further, that this only applies to constitutional privileges and immunities, allowing states to do anything else along the lines of a resident-nonresident distinction except engage in hostile discrimination. An Alaskan statute, for example, giving hiring preference to residents over nonresidents was struck down by the Court. Various state tax schemes which impose specific taxes on nonresidents are also unconstitutional. No state is allowed to become a monarchy and must maintain a Republican form of government. 

    Article IV Section 3, Clause 1: the DOCTRINE OF EQUAL FOOTING - New states shall be admitted into the Union on the same terms as the original states. When a state cedes part of its territory, as with West Virginia out of Virginia or Alabama out of Georgia, the new state being formed enters on an equal footing, regardless of the debt it owes to its state of origin for having paid its independence. When new territories are acquired, as with the Northwest Ordinance, any area with a population of 60,000 free inhabitants is eligible to apply as a new state. Congress may not exact tribute as a condition for admission, and can only regulate, care, and dispose of any Indian tribes, land, or rules within the state. Local laws or ordinances cannot be established in unincorporated areas, only incorporated areas. On the other hand, the Constitution is silent on the issue of whether a state can sell its real property to another country or private entity. The leading case in this regard is the TVA (Tennessee Valley Authority) where the government owns the electricity, but a private corporation was sold the dam. Many scholars regard the doctrine of equal footing as obsolete or unbinding in its practical aspects. 

    Article IV Section 3 Clause 2: the PROPERTY CLAUSE - Only Congress shall have the authority to dispose or regulate lands or property belonging to the United States. Besides the territories, the federal government owns quite a bit of land, practically two-thirds of Nevada and 30% of all real estate in the country.  It falls upon Congress, not the President, to decide whether to sell or dispose of it.  For example, the President cannot just give Alaska back to Russia, nor arbitrarily exempt people on federal lands from paying state taxes.  However, once a territory is organized as a state and admitted to the union on equal footing with other states, the state government assumes general sovereignty over federal lands, and the federal government has the rights only of an "individual proprietor." The federal government can only exercise rights of general sovereignty if there has been a formal cession of sovereignty by the state under the Enclave Clause (an Article I clause that treats the District of Columbia as special).  More topical is whether or not the Internet (created and plausibly "owned" by the U.S. government) can have its supervisory authority transferred to an international body.


    Article V Section 1: MODE OF AMENDMENT - An amendment shall be valid for all intents and purposes as part of the Constitution when ratified by three-fourths of the state legislatures. The state decision to ratify must be made in toto and cannot be rescinded, although several state legislatures who have undergone changes in composition due to elections have attempted to contest the previous legislature's vote. No amendment may be proposed or modified, or the time for ratification extended, so as to benefit one set of states over another. The lieutenant state governor casts the tie-breaking vote, if needed. Private citizens cannot sue over proposed amendments. Amending the Constitution is limited to the correction of errors in the framing of the Constitution. The amendment process cannot be used in place of passing legislation that would accomplish the same purpose. Within certain limits set by Congress, unratified amendments can keep coming up repeatedly, and in recent years, two such proposals have been repeating: a constitutional limit on income taxes and a balanced budget amendment.  Both proposals have fallen short of ratification by two states each time. 


    Article VI Section 2: the SUPREMACY CLAUSE - The federal government is to prevail over states in all conflicts of constitutional law and jurisdiction. The related notion of states' rights in large part only involves situations when there are two state laws in conflict, not state-federal conflict, and the question becomes whether the states can effectively interpret the U.S. Constitution, or whether federal interpretation or policy is needed. The vigorous majority opinion in McCulloch v. Maryland holds that states shall have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of constitutional laws enacted by Congress. When Congress legislates, the policy is federal policy binding on the states, unless Congress specifically provides for exclusive federal jurisdiction or concurrent federal-state jurisdiction, the primary examples being Social Security and various entitlement programs. The federal government and states cannot tax one another, and the federal government has a prior claim in bankruptcy proceedings against the states. The states reserve, with this clause and the Tenth Amendment, what are known as police powers, licensing powers really, over matters not impinging the commerce clause nor expressly forbidden by federal law. The standard for when federal interference occurs, according to an opinion rendered by Justice Rehnquist, is when functions essential to separate and independent existence are affected. Congress cannot commandeer in any way the legislative and administrative processes of state government to compel adherence to federal programs. Ultimately, state governments are accountable to their own people, if they are not performing well. The federal lower courts should establish a corpus of opinion which the states can use as a common law, but many scholars believe such a corpus has not evolved to the point where it can serve as a useful guide. 

    Article VI Section 3: the OATH OF OFFICE CLAUSE - Federal as well as state officers, as well as members of state legislatures, shall be required to take a federal oath of office or affirmation to support the Constitution. This oath will be incorporated into the operations of the national government as far as constitutional authority extends. No religious test shall ever be required as part of this oath, and Congress shall add no other oath of fidelity, but may, in its wisdom, superadd to this oath, as long as such addition is not in effect an ex post facto law. A spoken oath is generally sufficient; however, a written and signed oath can be required by law. In order for the oath to be legally effective, it must be administered by a public official.  Congress has the right under this clause and Article I to hold officials accountable and prescribe penalties for not fulfilling their federal oath of office. Such penalties found their most use, historically, during the Civil War.


    Article VII Section 1: the RATIFICATION CLAUSE - In September or October of 1788, the ratification of only nine states is needed to make this Constitution valid for all states hereafter. All old forms of continental government are given until March of 1789 to dissolve their operations. 





Currency Corporate Treaties, Confederations Powers not expressly federal and not forbidden to states
Postal Anything
"Necessary and Proper"
Coin money  
Immigration   Import/Export  
Maritime   Troops, Ships  
Army, war duties   Ex post facto laws
Bills of attainder
District of Columbia      

Bernstein, R. (1995). Amending America: If we love the constitution so much, why do we keep trying to change it? Lawrence: Univ. Press of Kansas.
Conant, M. (2001). Constitutional structure and purposes: Critical commentary. Westport, CT: Greenwood.
Dubber, M. (2005). The police power: Patriarchy and the foundations of American government. NY: Columbia Univ. Press.
Ducat, C. (2000). Constitutional interpretation (7e). Belmont, CA: Wadsworth.
Fisher, L. (2001). American constitutional law. Durham, NC: Carolina Academic Press.
Fisher, L. (2004). Presidential war power (2e). Lawrence: Univ. Press of Kansas.
Ivers, G. (2001). American constitutional law. NY: Houghton Mifflin.
Mason, A. & Stephenson, D. (2002). American constitutional law. Englewood Cliffs, NJ: Prentice Hall.
Rossum, G., A. Tarr, & R. Rossum. (1998). American constitutional law: The structure of government. Boston: Bedford Books
Schwarzenbach, S. & Smith, P. (Eds.) (2004). Women and the U.S. constitution. NY: Columbia Univ. Press.
Tribe, L. (1969). Constitutional structure of American government. NY: Foundation Press.
Tribe, L. (1999). American constitutional law. NY: Foundation Press.
Tribe, L. (2008). The invisible constitution. NY: Oxford Univ. Press.
Wasby, S. (2001). Essentials of the American constitution. Boulder, CO: Perseus Books.

West Publishing. (1983). The guide to American law. St. Paul: West Publishing.
Yoo, J. (2005). The powers of war and peace: The constitution and foreign affairs after 9/11. Chicago: Univ. of Chicago Press.

Last updated: Mar 25, 2014
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O'Connor, T.  (2014). "Constitutional Structure," MegaLinks in Criminal Justice. Retrieved from