POLSC232: American Government

Section 1.

THE LEGISLATIVE BRANCH

Commentary:  The first three articles of the Constitution divide the powers of the United States government among three separate branches: (1) the legislative branch, represented by Congress; (2) the executive branch, represented by the President; and (3) the judicial branch, represented by the Supreme Court.  This constitutional division, called the separation of powers, is designed to prevent any branch of the government from becoming too powerful.  In addition, the Constitution creates checks and balances by providing the means by which each branch is required to work with the other branches in order to carry out its functions. For example, the President nominates federal judges but the Senate must confirm them.

The two-house – bicameral – Congress was one of the most important compromises of the Constitutional Convention.  The small states at the Convention supported the New Jersey Plan, under which each state would have had the same number of Representatives.  The large states wanted the Virginia Plan, which provided representation based on population.  As a compromise, one house was chosen according to each plan.

Article 1
Section 2.

THE HOUSE OF REPRESENTATIVES

Commentary:  Members of the House of Representatives are elected to two-year terms.  If a person is eligible to vote for the "most numerous branch" of his or her state legislature, he or she also is eligible to vote for members of Congress.   (All states except Nebraska have a two-house state legislature).  The question of who can vote for state legislators is up to the state, subject to the restrictions of the Constitution and federal law, such as the Voting Rights Act of 1965.  The 15th, 19^th, 24^th, and 26^th Amendments forbid the states to deny or restrict a citizen's right to vote because of race, sex, or failure to pay a tax; or age if the person is at least 18 years old.

Commentary:  Each state decides for itself the requirements for legal residence, subject to Constitutional limits.  Most Representatives live not only in the state but also in the district from which they are chosen.

Commentary:  The effect of this paragraph has been greatly altered both by amendments and by new conditions.  It now provides only three things: (1) the number of Representatives given to each state shall be based on its population; (2) Congress must see that the people of the United States are counted every ten years; and (3) each state gets at least one Representative.

The words "and direct taxes" mean poll taxes.  The 16^th Amendment gives Congress the right to tax persons according to the size of their own income rather than according to the population of the state in which they happen to live. 

In reference to "three-fifths of all other persons," the "other persons" meant slaves.  Since there are no longer any slaves, this part of the paragraph no longer has any meaning. 

The requirement that there shall be no more than one Representative for every 30,000 persons no longer has any practical force.  In 1929, Congress fixed the total number of Representatives at 435, and it has remained there ever since.

Commentary:  If a vacancy occurs in a House seat, the state governor must call a special election to fill it.  However, if the next regularly scheduled election is to be held soon, the governor may allow the seat to remain empty rather than call a special election.

Commentary:  The House chooses an officer called the Speaker to lead meetings.  The House alone has the power to bring impeachment charges against a federal official. It has impeached 16 federal officers, including two presidents, Andrew Johnson in 1868 and William Jefferson Clinton in 1998.  The Senate tries impeachment cases.

Article 1
Section 3.

THE SENATE

Commentary:  The Constitution at first provided that each state legislature should pick the state's two Senators.  The 17^th Amendment changes this by providing for the voters of each state to choose their own Senators.

Commentary:  Senators are elected to six-year terms.  Every two years, one-third of the Senators are elected, and two-thirds are holdovers.  This arrangement makes the Senate a continuing body, unlike the other House, whose entire membership is elected every two years.  The 17^th Amendment changed the method of filling vacancies.  The governor chooses a Senator until the people elect one.

(3) No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Commentary:  In 1806, Henry Clay of Kentucky was appointed to fill an unexpired term in the Senate.  He was only 29, a few months younger than the minimum age, but no one challenged the appointment.  In 1793, Albert Gallatin was elected to the Senate from Pennsylvania.  He was barred from taking office because he had not been a citizen for nine years.

Commentary:  The Vice President serves as president of the Senate.  He votes only when a tie vote occurs.  The Vice President's power to break ties can be important.  In 1789, for example, Vice President John Adams cast the vote that decided the President could remove Cabinet members without Senate approval.  

Commentary:  The Senate elects an officer called the president pro tempore to lead meetings when the Vice President is absent.

Commentary:  The provision that the Chief Justice, rather than the Vice President, shall preside over the Senate when a President is on trial probably grows out of the fact that a Senate conviction of a President would make the Vice President the President.  The phrase "on oath or affirmation" means that Senators are placed under oath when trying impeachment cases, just as jurors are in a regular court trial.

Commentary:  If an impeached person is found guilty, she or he can be removed from office and forbidden to hold federal office again.  The Senate cannot impose any other punishment, but the person may also be tried in regular courts.  The Senate has convicted seven persons, all of them judges. All these men were removed from office, but only two of them were disqualified from holding any federal office.

Article I
Section 4.

ORGANIZATION OF CONGRESS

Commentary:  As long as state legislatures chose the Senators, it would not do to let Congress fix the place of choosing.  This would have amounted to giving Congress the power to tell each state where to locate its capital.  The words "except as to the places of choosing Senators" were set aside by the 17^th Amendment.

Commentary:  In Europe, monarchs could keep parliaments from meeting, sometimes for many years, simply by not calling them together.  This is the reason for the requirement that the Congress of the United States must meet at least once a year.  The 20^th Amendment changed the date of the opening day of the session to January 3, unless Congress sets another date by law.

Article I
Section 5.

Commentary:  Each house determines if its members are constitutionally qualified and have been properly elected.  In judging the qualifications of its members, each house may consider only the age, citizenship, and residence requirements set forth in the Constitution. In acting on motions to expel a member, however, either house of Congress may consider other matters bearing on that member's fitness for office. Discussion and debate can go on whether a quorum is present or not, as long as a quorum is present for the final vote.

Commentary:  Each house makes its own rules.  For example, the House of Representatives puts strict time limits on debate to speed up business.  It is much more difficult to end debate in the Senate. By Senate rules, a Senator may speak as long as he or she wishes unless the Senate votes for cloture, a motion to end debate.  On most matters, cloture requires a vote of 60 Senators, or three-fifths of the total Senate membership. Either house can expel one of its members by a two-thirds vote.

Commentary:  The House Journal and the Senate Journal are published at the end of each session of Congress.  They list all the bills and resolutions considered during the session, as well as every vote.   All messages from the President to Congress also are included.

Of more importance, the Congressional Record is published daily and includes verbatim transcripts of the debates.

Article I
Section 6.

Commentary:  The privilege of immunity (freedom from arrest) while going to and from congressional business has little importance today.  Members of Congress, like anyone else, may be arrested for breaking the law.  They may be tried, convicted, and sent to prison.

Congressional immunity from charges of libel and slander remains important.  Libel is an untrue written statement that damages a person's reputation.  Slander is a spoken statement that does so.  Immunity under the speech and debate clause means that members of Congress may say whatever they wish in connection with congressional business without fear of being sued.  This immunity extends to anything said by members during debate, in an official report, or while voting.

Commentary:  These provisions keep members of Congress from creating jobs to which they can later be appointed, or while serving in Congress from raising salaries of jobs they hope to hold in the future, and from holding office in the other branches of the government.

In 1909, Senator Philander C. Knox resigned from the Senate to become Secretary of State.  But the salary of the Secretary of State had been increased during Knox's term as Senator.  In order that Knox might accept the post, Congress withdrew the salary increase for the period of Knox's unfinished term.

Article I
Section 7.

Commentary:  Tax bills must originate in the House.  The tradition that tax laws should originate in the lower house of the legislature comes from England.  There, the lower house – the House of Commons – is more likely to reflect the people's wishes because the people elect its members.  They do not elect the upper house, the House of Lords.  In the United States, since the adoption of the 17^th Amendment, this rule has little importance because the people elect both the Senate and the House.  In addition, the Senate can amend a tax bill to such an extent that, in effect, it rewrites the whole measure.

Commentary:  A bill passed by Congress goes to the President for the President's signature.  If the President disapproves the bill, he has 10 days not counting Sundays to return it to the chamber which originated it with a statement of the objections.  This action is called a veto.  Congress can pass a law over the President's veto by a two-thirds vote of each house of those members present.  The President can also let a bill become a law without signing it merely by letting 10 days pass.  But a bill sent to the President during the last 10 days of a session of Congress cannot become a law unless it is signed.  If a bill the President dislikes reaches the President near the end of the session, the bill may simply be held unsigned.  When Congress adjourns, the bill is killed.  This practice is known as a pocket veto.

Article I
Section 8.

POWERS GRANTED TO CONGRESS

The Congress shall have Power

Commentary:  Duties are taxes on goods coming into the United States.  Excises are taxes on sales, use, or production, and sometimes on business procedures or privileges.  For example, corporation taxes, cigarette taxes, and amusement taxes are excises.  Imposts is a general tax term that includes both duties and excises.

Commentary:  This section, called the commerce clause, gives Congress some of its most important powers.  The Supreme Court has interpreted commerce to mean not only trade but also all kinds of commercial activity.  The Supreme Court has ruled that "commerce among the several states" – interstate commerce – includes not only transactions across state boundaries but also any activity that affects commerce in more than one state.  The power to regulate this commerce is the power to encourage, promote, protect, prohibit, or restrain it.  As a result, Congress can pass laws and provide funds to improve waterways, enforce air safety measures, and forbid interstate shipment of certain goods.   It can regulate the movement of people, trains, stocks, bonds, television signals, and the Internet.  Congress has made it a federal crime to flee across state lines from state or local police to use interstate commerce for a wide variety of crimes.  It also has forbidden people who operate interstate facilities or who serve interstate passengers to treat customers unfairly because of race, gender, national origin, old age, or physical disability.

Commentary:  From this section, along with the section that allows Congress to regulate commerce and to borrow money, Congress gets its right to charter national banks to establish the Federal Reserve System.

Commentary:  Securities are government bonds.

Commentary:  Books, music, photographs, videotape, digital video discs (DVDs), and films may be copyrighted under this rule.

Commentary:  Examples of federal courts "inferior to the Supreme Court" include the United States district courts and U.S. Courts of Appeals.

Commentary:  Congress, rather than the states, has jurisdiction over crimes committed at sea.

Commentary:  Only Congress can declare war.  However, the President, as Commander-in-Chief, has engaged the United States in wars without a formal declaration of war by Congress.   Undeclared wars include the Korean War (1950-1953), the Vietnam War (1957-1975), and the Gulf Wars (1991, 2003).

Commentary:  Congress has given the President power to decide when a state of invasion or insurrection (uprising) exists.  At such times, the President can call out the state militia, now known as the National Guard, as well as the regular armed forces.

Commentary:  The federal government helps the states maintain the militia, also known as the National Guard.  Until 1916, the states controlled the militia entirely.  That year, the National Defense Act provided for federal funding of the Guard and for drafting the Guard into national service under certain circumstances.

Commentary:  This section makes Congress the legislative body not only for the District of Columbia, but for federal property on which forts, naval bases, arsenals, and other federal works or buildings are located.

Commentary:  This section, the famous "necessary and proper" clause, allows Congress to deal with many matters not specifically mentioned in the Constitution.   This flexibility helps explain why the Constitution is one of the oldest written constitutions and why it has needed so few formal amendments.

Article I
Section 9.

POWERS FORBIDDEN TO CONGRESS

Commentary:  This paragraph refers to the slave trade.  Dealers in slaves, as well as some slaveholders, wanted to make sure that Congress could not stop anyone from bringing African slaves into the country before the year 1808.  That year, Congress did ban the importation of slaves.

Commentary:  A writ of habeas corpus is a court order that commands officials who have a person in custody to bring the person into court.  The officials must explain to the judge why the person is being restrained.  If their explanation is unsatisfactory, the judge can order the prisoner released.

Commentary:  A bill of attainder is an act passed by a legislature to punish a person without trial.  An ex post facto law is one that makes criminal an act that was not illegal when the act was committed.  This also includes an act that retroactively increases the punishment for a criminal act.

Commentary:  A capitation is a tax collected equally from everyone.  It is also called a head tax or poll tax.  The Supreme Court held that this section prohibits an income tax, but the 16^th Amendment set aside the effect of the court's decision.

Commentary:  In this sentence, exported means sent to other states or to foreign countries.   The Southern states feared that the new government would tax their exports and that their economies would suffer as a result.  This sentence forbids such a tax.  However, Congress can prohibit shipment of certain items, as well as regulate the conditions of their shipment.

Today the flag contains 50 stars for the 48 contiguous states plus Alaska and Hawaii.

Commentary:  Congress cannot make laws concerning trade that favor one state over another.  Ships going from one state to another need not pay taxes to do so.

Commentary:  Government money cannot be spent without the consent of Congress.  Congress must provide for the issuance of financial statements from time to time. 

Commentary:  Congress cannot give anyone a title of nobility, such as countess or duke.  Federal officials may not accept a gift, office, payment, or title from a foreign country without the consent of Congress.

Article I
Section 10.

POWERS FORBIDDEN TO THE STATES

Commentary:  Without the consent of Congress, a state cannot tax goods entering or leaving the state except for small fees to cover the cost of inspection.

Commentary:  Only the federal government has the power to make treaties or negotiate with foreign countries.