Constitutional Law for beginners

Read this and you’ll be better educated about how the U.S. government works than most of your friends (and the White House press secretary).

Let’s take a step back this week and study America’s foundational documents. Knowledge of the U.S. Constitution and its amendments will help you understand the debate surrounding Trump administration actions and why opponents are using the courts to defend democracy. While all three branches of government are touched by politics – yes, even the judiciary – most legal debates come down to interpretation of the laws contained in the Constitution.

After reading this post you won’t make the same mistake the White House press secretary made recently when she criticized federal court judges. "The real constitutional crisis is taking place within our judicial branch, where District Court judges and liberal districts across the country are abusing their power to unilaterally block President Trump's basic executive authority," White House press secretary Karoline Leavitt said during a briefing last week. Oops, guess she needs to read the Constitution again, which defines the role of the judiciary as doing exactly that.

Photo by Anthony Garand on Unsplash

The Supreme Court and lower federal courts still look back to the Constitution – and interpretations of that document and the founders’ intent – when making decisions on court cases, despite aspects of the document that don’t necessarily mesh with society as much as they did in 1788 when it was ratified.

The Constitution was arranged in a preamble and seven articles by the founding generation (what the National Constitution Center calls the people who drafted the Constitution instead of founding fathers). No women participated in the Constitutional Convention, but I can’t help but presume that some people had some ideas that they shared with their husbands, brothers or fathers who were among the 70 men called to the meeting. Here’s a fun site that lists the women who were left behind to run their farms or businesses when their men went to the convention).

You likely were ordered to memorize the 52-word preamble in school: “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.”

The 7 articles

The seven articles of the Constitution designed the structure of our government, with a focus on balance of power.

Article 1 on the legislative branch talks about the two chambers of Congress, elections, taxes, who isn’t counted as a citizen, age requirements for serving in the legislature, the process for making laws, and the various powers of the legislative branch such as making money, deciding who should be a citizen and declaring war.

Article 2 on the executive branch covers how the president is elected (but this section was superseded by the 12th Amendment), how the president can be removed from office and what to do when the president is incapacitated (updated by the 25th Amendment), who is eligible to be president (you have to be born here), the oath of office, the powers of the president, and the requirement to update Congress on how things are going. It’s a pretty short section.

Article 3 on the judicial branch is mostly about the Supreme Court and how it should interpret the Constitution. Whether and how to establish other federal courts is up to the Supreme Court to decide. This short section of the Constitution also includes an explanation of what constitutes treason against the United States: “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.”

Article 4 covers states and citizenship and establishes how new states can be formed. It includes a section that says states can’t help fleeing slaves be free, but that section has been overwritten at this point. Reading the Constitution can be an interesting peek into our history and how the founding generation felt about slavery.

Article 5 on the amendment process outlines the ways the Constitution can be amended and nothing else.

Article 6 is the etcetera section and covers debts, supremacy, oaths and religious tests, which sounds like a lot but is also very short. It basically says: debts and agreements made before the Constitution will be the responsibility of the United States after the document is ratified. And it establishes that all officials of the federal and state governments must swear an oath to affirm and support the Constitution, but no one should have to pass a religious test to be qualified for office.

Article 7 on ratification explains how the Constitution will be adopted and is just one sentence.

The seven articles are terse. The amendments add flavor to the Constitution and the legal conversations since its adoption. By the way, every American should read this whole document at some point in their lives. It’s pretty short and gives you a feeling for what was going on in this country at various parts of our history.

The amendments

The Constitution has been amended 27 times, starting with the Bill of Rights, the first 10 amendments added in 1791.

The Bill of Rights contains the rules you are most familiar with, because you’re heard so many organizations and individuals opine on their import. You should probably read them for yourself, however, and then I have to tell you that the only interpretation of these amendments that means anything is contained in court opinions. If you want to get an eyeful, start reading Supreme Court opinions. They are, mostly, very well written, well argued and historically significant. Even if you don’t agree with the court’s interpretation of the Constitution, you will learn something from reading Supreme Court opinions.

Here’s a quick summary of the amendments.

1. Freedom of religion, speech, the press, peaceable assembly, and to “petition the government for a redress of grievances.”

2. Right to bear arms for a well regulated militia.

3. Soldiers can’t stay in your home without the owner’s consent.

4. Against unreasonable search and seizure.

5. Rules for criminal prosecution.

6. Right to a speedy trial with a jury, a lawyer and witnesses.

7. Jury trials in civil lawsuits.

8. Excessive fines and cruel and unusual punishment.

9. Just because it isn’t in the Constitution doesn’t mean Americans don’t have certain other rights.

10. The states and the people have the rights not reserved for the federal government.

11. Prohibits the federal courts from hearing certain cases against states.

12. Changed the procedure for electing the president and vice president.

13. Abolished slavery.

14. Birthright citizenship, due process, insurrection ban, made Black men citizens.

15. Race, color or previous servitude could not prevent people from voting, so Black men earned their right to vote with this amendment.

16. Gave Congress the power to establish an income tax.

17. Direct election of U.S. senators by a vote of the people.

18. Liquor prohibition.

19. Women’s right to vote.

20. Presidential, vice presidential and Congressional terms begin in January instead of March.

21. Repeal of prohibition.

22. Two-term limit on the presidency.

23. The District of Columbia gets to participate in the Electoral College.

24. Abolition of poll taxes: no one can be charged for the right to vote.

25. Presidential disability and succession.

26. Right to vote at age 18

27. On Congressional pay: they can’t give themselves a raise, but they can give the next Congress one.

Article 5 of the Constitution explains the amendment process. Either Congress, with a two-thirds majority vote in both houses, can propose an amendment or two-thirds of state legislatures can call for a constitutional convention. But none of the 27 amendments were proposed by a constitutional convention.

Amendments are added to the Constitutions after three-fourths of the states (38 out of 50) vote to adopt the congressional proposal either by a vote in their state legislatures or by the vote of a state constitutional convention.

A final curiosity: In 1972, Congress passed the Equal Rights Amendment, which has now been ratified by 38 states, but not before a 1982 deadline. Whether the amendment banning discrimination on the basis of sex should be added to the Constitution is still being debated.

Another proposed amendment that has not been ratified by 38 states and has missed the deadline for doing so, was a proposal to give the District of Columbia representation in Congress. People continue to fight for this proposal as well. The other unratified amendments are much older and mostly irrelevant now because laws have been passed to supersede them or times have changed.

Go deeper: Keep learning

Become a true expert on the Constitution by ingesting all the educational materials at the National Constitution Center: https://constitutioncenter.org/the-constitution/constitution-101-course

Study the Supreme Court’s decisions at SCOTUSblog: https://www.scotusblog.com

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