The Penguin Guide to the United States Constitution Part 3

The framers of the Const.i.tution were aware of the necessity of providing for a vice president, who would a.s.sume the president's duties in the event of his death, disability, or removal, but they had a hard time thinking of any other functions the vice president might perform. The provision of Article I, Section 2, designating the vice president as the presiding officer of the Senate, is the only item in the Const.i.tution that speaks to the limited official duties of the vice president.

The Senate, as the more deliberative of the two legislative bodies, was given the responsibility of trying impeachment cases. Seeking to reinforce the principle of separation of powers, the Const.i.tution designates the chief justice of the U.S. Supreme Court as the person who would preside over an impeachment trial of the president.

SECTION 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.

The Congress shall a.s.semble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

As was the case in the instance of voting requirements, the framers of the Const.i.tution were content to leave the matter of when congressional elections should be held to the state governments.

The stipulation that Congress should a.s.semble on the first Monday in December was altered by the pa.s.sage of the Twentieth Amendment in 1933. The practical effect of the original terms of Article I, Section 4, was to delay the seating of new members of Congress until March, creating a period of months during which a lame-duck Congress would be in session. Improvements in transportation and communications made it possible, and desirable, to move the stipulated time of the meeting of Congress to January 3.

SECTION 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall const.i.tute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The items in Article I, Section 5, giving each branch of the legislature control over its own proceedings, reflect a long-standing desire, dating back to the gradual evolution of the English parliament as a legislative body with powers independent of those of the king, to preserve the independence of the legislature from executive encroachment. This section of the Const.i.tution also encourages openness in the publication and dissemination of the proceedings of Congress.

SECTION 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The provision for paying salaries to members of Congress provoked some disagreement among the delegates, as at least some members of the Const.i.tutional Convention thought that public servants should be virtuous and wealthy "gentlemen" capable of serving in office without the need to seek compensation.

The provision providing immunity from arrest except in cases of treason, felony, or breach of the peace was another attempt to ensure the independence of members of the legislature, and the provision prohibiting service in other public offices while serving in Congress marked a rejection of practices in the English parliament, where members of Parliament also served as ministers in the king's cabinet; more generally it reflected a desire to reinforce the principle of separation of powers.

SECTION 7.

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have pa.s.sed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pa.s.s the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repa.s.sed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The power over the "purse" was considered the most important of the powers that any government could wield; indeed it was the British parliament's attempt to tax the colonies without their consent that precipitated the American Revolution. The decision to give the federal government the power to levy taxes-a power denied to the government under the Articles of Confederation-may well have been the most important one made by the delegates to the Convention. It is noteworthy, however, that they gave the "people's body," the House of Representatives, the power to originate revenue bills.

The next, lengthy portion of Article I, Section 7, is one of the hallmarks of the system of separation of powers and checks and balances. It spells out the process by which a legislative proposal must pa.s.s both houses of Congress and then receive the a.s.sent of the president before it can become law. It provides for a limited executive veto over congressional legislation but gives to the Congress the power, if it can muster a two-thirds majority, to override a presidential veto.

SECTION 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States: To Borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To const.i.tute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, a.r.s.enals, dock-Yards, and other needful Buildings;-And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Const.i.tution in the Government of the United States, or in any Department or Officer thereof.

Many Americans think of their Const.i.tution as a doc.u.ment that protects the liberties of American citizens by defining those things that the federal government cannot do. This is the central concern of the first ten amendments to the Const.i.tution, which today we call the Bill of Rights. But in fact, in many respects Article I, Section 8, const.i.tutes the heart and soul of the U.S. Const.i.tution. It specifically enumerates the powers that the federal government is permitted to exercise. The initial version of this article, as outlined in the Virginia Plan, gave an open-ended grant of power to the Congress, simply providing that Congress would have the power "to legislate in all cases to which the separate States are incompetent," but when the Committee of Detail produced a comprehensive first draft of a const.i.tution in early August 1787, that general grant of power was replaced by the more specific enumeration of powers that appears in Article I, Section 8. Among the most important powers enumerated in Article I, Section 8, are: 1. As previously mentioned, the power to levy taxes-the ability of the government to provide for itself a permanent revenue with which to finance its operations-was the single most important power given to the new federal government. The broad purposes for which that power was granted-to "provide for the common Defence and general Welfare of the United States"-have been interpreted in widely different ways over the course of the nation's history, with the general trend leading toward an expansion of activity financed by the federal taxation power.

2. The "commerce power" has proven to be one of the most important and far-reaching provisions of the federal Const.i.tution. Utilizing an ever-expanding definition of its power to regulate commerce "among the several States," the federal government has broadened the definition of "commerce" to include not only the s.h.i.+pment of goods across state lines but also many other forms of activity: the building of interstate roads; the power to regulate the business activities of corporations; and the power to pa.s.s environmental legislation, consumer-protection laws, and occupational-safety regulations.

3. Establis.h.i.+ng post offices and post roads may seem mundane enterprises, but this provision of the Const.i.tution, in conjunction with an expansive view of Congress's role in promoting the "general Welfare" and regulating commerce, marked the beginnings of the creation of a national infrastructure that would tie the thirteen previously independent and sovereign states into a single nation.

4. The clause relating to the promotion of science and useful arts gives to Congress the power to enact patent and copyright laws.

5. Clauses ten through sixteen of Article I, Section 8, deal with the war powers of Congress. If the "power over the purse" has long been considered to be the most important of a government's powers, the power over the "sword"-the ability not only to declare war but also to vote on appropriations for the financial support of war-has run a close second. Congress's power to declare war overlaps with the power of the president, as commander in chief of the nation's armed forces, to direct the actual conduct of war. In one sense, this overlap is part of the Const.i.tution's system of separation of powers, but in another it has become a significant source of const.i.tutional controversy in recent years. In numerous cases since the mid-twentieth century-in the Korean War, the Vietnam War, the First Gulf War, and most recently, the wars in Iraq and Afghanistan-the president has proceeded with the prosecution of the war without a formal congressional declaration of war.

6. Congress's power over the appropriation of money gives it a substantial say over how-or whether-a war should be fought, but it has only rarely denied funds for the support of an army or navy once a war is under way.

7. The seventeenth clause, giving to Congress the power to "exercise exclusive Legislation . . . over such District . . . as may . . . become the Seat of the Government," is the basis on which Congress created the District of Columbia, which is regarded not as a state but as a federal territory and the nation's capital.

8. The final provision of Article I, Section 8, has proven to be one of the most important-and controversial-provisions of the Const.i.tution. By giving Congress the power to make all laws "necessary and proper" for carrying into effect the previously enumerated powers, the framers of the Const.i.tution opened the door to a significant expansion of federal power. Within just a few years of the adoption of the Const.i.tution, some of the most important figures of the revolutionary era found themselves in bitter disagreement on the meaning of the phrase "necessary and proper," with President Was.h.i.+ngton's secretary of the treasury, Alexander Hamilton, arguing for a broad construction of its meaning (for example, as "needful," "useful," or "conducive to") and Thomas Jefferson and James Madison arguing for a strict construction (for example, as "absolutely necessary"). This line of const.i.tutional difference between "broad constructionists" and "strict constructionists" was a bitter source of contention in the period leading up to the Civil War and continues in somewhat diminished form between the respective proponents of a more limited or more active federal government even today.

SECTION 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be pa.s.sed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No t.i.tle of n.o.bility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or t.i.tle, of any kind whatever, from any King, Prince or foreign State.

Article I, Section 9, outlines those actions that the federal government may not take.

The most controversial of these prohibitions is contained in the very first item. The Convention delegates from South Carolina and Georgia, whose slave economies were still expanding, insisted that no legislation interfering with the African slave trade be permitted until at least twenty years after the adoption of the Const.i.tution. The prohibition of any legislation affecting "the Migration or Importation of such Persons as any of the States now existing shall think proper to admit" was intended to ensure that protection. As in all instances in which the Const.i.tution deals with the inst.i.tution of slavery, neither the word "slave" nor "slavery" is explicitly mentioned in the text of the doc.u.ment. In 1808 the U.S. Congress enacted legislation abolis.h.i.+ng the international slave trade, but during that twenty-year interval some two hundred thousand slaves were imported from Africa into the United States.

Many of the most important prohibitions to federal government action laid down in Article I, Section 9, were designed to protect fundamental liberties handed down to Americans through English common law. Perhaps the most important of these was the privilege of habeas corpus, the right of a prisoner to challenge his imprisonment in a court of law. On at least a few occasions American presidents have suspended this privilege while either suppressing rebellion or protecting the public safety. During the Civil War, President Abraham Lincoln held "disloyal persons" suspected of giving aid and comfort to the Confederate cause in prison without benefit of trial. More recently, President George W. Bush, citing provisions of the Patriot Act as well as implied executive powers, sanctioned the holding of several hundred "enemy combatants" in the "war on terror."

The prohibition against bills of attainder, the issuing of edicts aimed at punis.h.i.+ng individuals or groups of individuals without benefit of trial, and the ban on ex post facto laws-criminal laws aimed at punis.h.i.+ng individuals for actions taken before the law itself was pa.s.sed-were also rooted in traditions of English common law. The prohibition of taxes on exports was a purely political bargain between northern and southern states, and was designed to protect the interests of the South, whose agricultural exports formed an important part of its economy. The prohibition against direct taxes unless such taxes were levied precisely in proportion to the number of citizens in each of the states was another attempt to protect the inst.i.tution of slavery from being taxed out of existence; this provision was subsequently changed by the pa.s.sage of the Sixteenth Amendment, making possible the imposition of a federal income tax.

While it would be unthinkable today for our federal government to grant a t.i.tle of n.o.bility to any of its citizens, the provision in Article I, Section 9, prohibiting the granting of t.i.tles of n.o.bility and placing additional restrictions on receiving a "present, Emolument, Office, or t.i.tle" from a foreign state reflected the strong commitment of the framers of the Const.i.tution that their government should be a "republican" one, and not one that reflected the aristocratic ways of Europe.

SECTION 10.

No State shall enter into any Treaty, Alliance, or 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; pa.s.s any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any t.i.tle of n.o.bility.

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 its 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 s.h.i.+ps 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.

The provisions in Article I, Section 10, stipulate those things that the state governments are prohibited from doing. The most important of these are: 1. Individual states may not enter into separate treaties with foreign nations.

2. The governments of the states are bound by the same requirements as the federal government in the prohibition of bills of attainder, ex post facto laws, laws impairing obligations of contracts, and granting t.i.tles of n.o.bility.

3. State governments may not issue currency for the purpose of paying debts unless that currency is in gold and silver. This provision came in reaction to the laxness of some state governments that issued depreciated or, in some cases, worthless currency during the period of the Revolution. This provision marked the beginning-but only the beginning-of the creation of a single national currency.

4. During the period of the Confederation, many states, eager to raise their own revenues, levied tariffs on goods entering their ports from other states. The new Const.i.tution reserved the power of taxing imports to the federal government alone, preventing states from enacting their own tariffs.

5. Although the individual states were permitted to maintain their own militias for the maintenance of order within their boundaries, the Const.i.tution prohibits states from maintaining either a standing army or a navy in time of peace; it also prohibits the states from entering into agreements with other states or foreign powers for military purposes.

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 ent.i.tled 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 Const.i.tution, 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 increased 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 Const.i.tution of the United States."

The opening words of Article II, Section 1, are both remarkably simple and maddeningly vague: "The executive Power shall be vested in a President of the United States of America." While other sections of Article II provide some specificity on the nature and extent of presidential power, for the most part the language of Article II relating to executive power is far less specific than that of Article I defining congressional power.

Opinions about the length of the president's term varied widely, with proposals ranging from a minimum of two years to a term of "during good behavior"-or, effectively, for life. The delegates also disagreed about whether the president should be eligible for reelection. The decision on a four-year term seemed to satisfy most delegates and, by avoiding mentioning anything about the president's eligibility for reelection, the framers left the question of how many terms a president should serve up to the voters. George Was.h.i.+ngton's decision to serve only two terms in office set a precedent that lasted until the presidency of Franklin D. Roosevelt, who won election to the presidency four times, serving from 1933 until his death in 1945. In 1951 Congress pa.s.sed, and the states ratified, the Twenty-second Amendment, limiting presidents to two terms.

The next part of Article II, Section 1, reflects the torment the Convention delegates experienced as they wrestled with the question of how to give the president sufficient power without giving him excessive power, as well as how to free him from excessive dependence on the legislature while at the same time a.s.suring that he did not become, in their terms, an "elective monarch." While one would think that the best way to do this would be to have the president elected by and answerable to the people of the nation at large, the vast majority of delegates feared that the American people were simply too provincial-too ignorant of the merits of possible presidential candidates across a land as vast as that of the thirteen states of which America was then comprised-to make a wise choice. For that reason, for most of the Convention the delegates inclined toward election of the president by the Congress or, at least, by the more popular branch of Congress, the House of Representatives. But this method ran the risk of violating the principles of separation of powers by making the president unduly dependent upon the Congress for his election. For much of the summer of 1787, the delegates argued unproductively about various alternatives for electing the president, and finally, in the tortured language of Article II, Section 1, they called for the creation of an electoral college: a group of independent electors, selected in each of the states "in such Manner as the Legislature thereof may direct," who would then cast their ballots for a president and vice president.

Although initially designed as a decidedly elitist device by which only the most knowledgeable and distinguished men-those selected to be electors-would use their own independent judgment in casting their ballots for the president, by the election of Thomas Jefferson in 1800 the presidential electoral system had been entirely transformed by the unexpected invention of organized political parties. The newly created political party system functioned in a way that caused slates of presidential electors to be pledged in advance to vote for particular candidates, with the result being that American voters, whose numbers were expanding as the number of citizens eligible to vote expanded, were now casting their votes, not on the basis of the ident.i.ty of the individual electors, but on the merits of the candidates themselves. The invention of political parties-a development occurring wholly outside America's const.i.tutional system-fundamentally changed the way the Const.i.tution operated, transforming it from a "republican" but elitist political system into a truly democratic one.

Americans have grumbled about the imperfections of the electoral college system from the days when it was first debated in the Const.i.tutional Convention up to the present, but for the most part, it has managed to produce victors in the presidential contests whose legitimacy as duly elected chief executives has not been challenged. There have been exceptions: the election of John Quincy Adams, decided by the House of Representatives in 1824; the election of a "minority" Republican president, Abraham Lincoln, in 1860, which led to the secession of the Southern states; the disputed 1876 presidential election between Samuel Tilden and Rutherford B. Hayes, in the final days of Reconstruction; and the contested election of George W. Bush in 2000, ultimately decided by the Supreme Court. Each of these cases has provoked criticism of the electoral college system, but up to this point neither Congress nor the American people have moved to the obvious alternative: direct popular election of the president.

The decision to require that the president be a "natural born Citizen" of the United States was made in the Convention with little discussion and probably with little thought. Indeed, eight of the delegates to the Convention had themselves been born outside British North America (all were born in the British Isles and would in any case have been eligible to serve as president because they were citizens of the United States at the time of the adoption of the Const.i.tution). In an age in which America's economy, culture, and politics are increasingly shaped by recent immigrants, this particular const.i.tutional provision seems a good candidate for amendment.

This provision defines the vice president's most important duty: to succeed the president in case of his death, disability, or removal from office. The framers left the line of succession in the event of the vice president's death, disability, resignation, or removal up to Congress. The Twenty-fifth Amendment, adopted in 1967, provided a means by which a president could select, with the confirmation of a majority of members of Congress, another vice president.

Although Congress is given responsibility for setting the president's salary, it may not increase or decrease his salary during his term of service, a provision designed to render the president independent of the Congress's will.

The presidential oath is a remarkably simple one, wholly appropriate to a republican society. In taking the oath of office for the first time on April 30, 1789, George Was.h.i.+ngton added the words "So help me, G.o.d" to his oath, a tradition that has been continued by nearly every subsequent president.

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 princ.i.p.al 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 Amba.s.sadors, 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.

Article II, Section 2, is princ.i.p.ally concerned with outlining the powers of the president, but given the enormous power of the modern presidency, it seems remarkably short and vague in its prescriptions. Certainly, the most important-and controversial-of those powers has devolved from the president's role as commander in chief of the army and navy of the United States and of the militias of the several states. That role, which has given the president enormous power to "make war," has sometimes come in conflict with the power of Congress to "declare war" as well as with Congress's power to control the financial appropriations necessary to make fighting a war possible.

By the terms of Article II, Section 2, the president has the primary role in entering into treaties with other nations, although it reserves to the Senate the right to approve any treaty before it a.s.sumes the force of law.

The president has the power, with the advice and consent of the Senate, to appoint amba.s.sadors, ministers, justices of the Supreme Court, and "all other Officers of the United States." In recent decades, as the Supreme Court has become a more powerful and a.s.sertive branch of the federal government, members of the Senate have responded by a.s.serting more vigorously their right to advise and consent with respect to the appointment of justices of the Court.

The president's use of the power to appoint "all other Officers of the United States" has increased in direct proportion to the growing power of the federal government and of the executive branch in particular. Although the Founding Fathers no doubt a.s.sumed that the president would appoint members of a presidential "cabinet," they would perhaps have been surprised at the growth in the size and scope of the bureaucracy serving each of the cabinet departments. The president's cabinet has expanded from four members in President Was.h.i.+ngton's day (the secretaries of treasury, war, and state and the attorney general) to fifteen (not including the vice president) today.

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 Amba.s.sadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Presidents Was.h.i.+ngton and Adams addressed the Congress directly on the "State of the Union," but from 1801 to 1909 the president merely sent the Congress written messages. Beginning in 1913, and continuing to the present day, the formal State of the Union address to Congress, given at the beginning of each year, has become an important national ritual. Some presidents, including President Barack Obama, have convened both houses of Congress on other "extraordinary Occasions," to address them on subjects that they have considered important.

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.

This is another one of the provisions of Article II that is remarkably simple and maddeningly vague. The framers of the Const.i.tution all agreed that a president should be removed from office if he committed treason, bribery, or other "high Crimes," but most of them also believed that the president might be removed if he were found culpable of "malfeasance in office" (a term used in one of the earlier drafts of the Const.i.tution). On the other hand, most of the framers agreed that it would be improper for Congress to remove a president simply because a majority of members of Congress might disagree with him, and since "malfeasance" was a term with a meaning that might vary in the eye of the beholder, they subst.i.tuted the term "Misdemeanors" for "malfeasance." It was a term that left no one wholly satisfied, and it has caused considerable confusion in those rare cases (during the presidencies of Andrew Johnson, Richard Nixon, and William Jefferson Clinton) in which impeachment proceedings against a president have been initiated.

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.

Just as the framers of the Const.i.tution considered the Congress to be the most vital branch of the new government and therefore dealt with that branch in the very first article of the Const.i.tution, so too was the placement of the judicial branch in Article III of the Const.i.tution a reflection of their view of the relative importance of that branch. The brevity and vagueness of the language in Article III are similarly a reflection of their relative lack of concern about the judicial branch as well as of their uncertainty about its function in the new federal union.

Article III, Section 1, stipulates that there would be one "supreme" court in the nation but is vague about the number and extent of the "inferior" courts. The provision that all federal judges should hold their offices during "good Behaviour" was intended to protect the independence of the judiciary and reinforce the separation of powers among the three branches of the new government.

SECTION 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Const.i.tution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Amba.s.sadors, 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 Amba.s.sadors, 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.

Article III, Section 2, defines the jurisdiction and mode of procedure of the federal courts. The key phrase is "to all Cases, in Law and Equity, arising under this Const.i.tution." In other words, the jurisdiction of the federal courts extends to those areas in which the United States government itself has jurisdiction. That jurisdiction, vaguely defined in 1787, has steadily increased over the more than two centuries in which the Const.i.tution has been in operation.

Although Article III, Section 2, makes no mention of a power of judicial review (the power of the Supreme Court or any other federal court to pa.s.s judgment on whether a federal or state law violates the terms of the Const.i.tution), many, if not most, of the delegates to the Convention probably a.s.sumed that the federal courts would exercise at least some limited form of that power. In 1803, in the case of Marbury v. Madison, the Supreme Court, in an opinion written by its chief justice, John Marshall, enunciated a limited power of judicial review.

SECTION 3.