Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P15 pdf

The Constitution, with its separation of powers and checks and balances, provided just such “auxiliary precautions” to be used in controlling government. The Constitution is also guided by the concept of federalism in the way that it constructs the U.S. government. Federalism is a system in which smaller political entities— such as states, counties, cities, and localities— are united in a larger political organization. Federalism intends to protect the liberties of people in these smaller politic al units by providing them with a great degree of freedom in governing themselves. The federal, or larger, government is then a limited government that cedes many decision-making responsibilities— including, for example, the creation of most criminal and civil laws, municipal codes, regulations for administering school districts, and the like—to states and localities, while Constitutional Convention of 1787 T B he Constitutional Convention of 1787 is a high point in the history of the United States. This remarkable assemblage of men, meeting in Philadel- phia between May 23 and September 17, 1787, created the document that has given the United States one of the most stable and admired constitu- tional democracies in the history of the world. Fifty-five delegates from 12 states attended various parts of the convention. Drawn from the educated and wealthy elite of the country, they included such luminaries as George Washington, the commander of American forces in the War of Independence, who presided overthe convention, and Benjamin Franklin, at 81 the oldest delegate and the country’s most famous statesman. A majority of the delegates were lawyers, and many, such as James Madison, were wealthy landowners. Many notable leaders of the time, however, including Thomas Jefferson, who was in France, and Patrick Henry, did not attend. Themeetingsoftheconventionwereclosedto the public and to the press. Thus, behind closed doors, the delegates hammered out the eventual form of U.S. government. The agreements reached during the convention exemplified the values of constitutional government. In an atmosphere that combined competitive, lively debate with tolerance and respect for differences of opinion, the dele- gates reached vital compromises on matters that threatened to divide the still loosely connected union of states. Many different factions opposed one another—small states versus large states, farmers versus businesspeople, North versus South, and slave states versus nonslave states. The Constitutional Convention occurred in three separate ph ases. The first, from May 23 to July 26, created the basic features of the national govern- ment, including its division into legislative, execu- tive, and judicial branches. During this phase, delegates also arrived at one important compro- mise between the interests of large and small states. That compromise created a bicameral, or two-chamber, legislature, composed of the House of Representatives and the Senate. During the second phase of the convention, from July 27 to August 6, the five-man Committee of Detail created a rough draft of the Constitution. In the third phase, which lasted from August 6 to September 6, the delegates debated remaining sticking points, par- ticularly relating to the executive branch and the means of electing a president. Eventually, they settled on the electoral college suggested by Benjamin Franklin. On September 17, 39 o f the 4 2 delegates present signed the Consti tution. Gouverneur Morris, coau- thor of the New York State Constitution and a key delegate, summed up the significance of the Constitution that the convention had created when, after affixing his signature to it, he uttered these words: “The moment this plan goes forth, all other considerations will be laid aside and the great question will be: Shall there be a national govern- ment or not? And this must take place or a general anarchy will be the alternative.” FURTHER READINGS Rossiter, Clinton. 1966. 1787: The Grand Convention. Reprint, New York: Norton, 1987. Scott, James Brown. 2001. James Madison’s Notes of Debates in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations. Union, N.J.: Lawbook Exchange. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 128 CONSTITUTION OF THE UNITED STATES leaving itself other responsibilities. In short, federalism is a partnership in which a central government shares authority and power with regional or local governments. The U.S. Constitution gives t he federal government—made up of the executive, legisla- tive, and judicial branches—power to m ake decisions regarding such issues as war, national defense, and trade with foreign c ountries. The federal government also retains the right to overrule laws or decisions of lower units of government when they are in violation of the Constitution. Thus, for example, t he federal government t ook on responsibilities in the oversight of local school districts after the Supreme C ourt, in BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S . Ct. 6 86, 98 L. Ed. 873 (1954), ruled t hat segregating children in different public schools by race violated the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT to the Constitution, which says, “No State shall … deny to any person … the equal protection of the laws.” FURTHER READINGS Black, Eric. 1988. Our Constitution: The Myth That Binds Us. Boulder, Colo.: Westview. Browne, Ray B., and Glenn J. Browne. 1986. Laws of Our Fathers: Popular Culture and the U.S. Constitution. Bowling Green, Ohio.: Popular. Corwin, Edward S. 1978. The Constitution and What It Means Today. Princeton, NJ: Princeton Univ. Press. Hamilton, Alexander, James Madison, and John Jay. 1787– 88. The Federalist Papers. Clinton Rossiter, ed. 2003, New York: Signet Classics. Harrigan, John J. 1996. Politics and the American Future: Dilemmas of Democracy. 4th ed. New York: McGraw-Hill. Levy, Michael B. 1988. Political Thought in America: An Anthology. 2d ed. Florence, Ky.: Brooks Cole. Marshall, Burke, ed. 1987. A Workable Government?: The Constitution after 200 Years. New York: Norton. Maxwell, James A., ed. 1982. You and Your Rights. Pleasantville, N.Y.: Reader’s Digest. McGuire, Robert A. 2003. To Form a More Perfect Union: A New Economic Interpretation of the United States Constitution. Oxford, New York: Oxford. Rawle, William. 2009. A View of the Constitution of the United States of America. 2d ed. Durham, N.C.: Carolina Academic. Story, Joseph. 2001. Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitu- tion. Clark, N.J.: Lawbook Exchange. “U.S. Constitution Online.” USConstitution.net Web site. Available online at http://www.usconstitution.net/ (accessed August 30, 2009). CROSS REFERENCES Congress of the United States; “Constitution of the United States” (Appendix, Primary Document); Constitutional Amendment; Constitutional Law; Federalist Papers; Full Faith and Credit Clause; Presidential Powers. CONSTITUTION PARTY The Constitu tion Party was founded in 1992 as the U.S. Taxpayers Party. The man who was most responsible for establishing the party was Howard Phillips , a veteran conservative political activist who had left the REPUBLICAN PARTY in 1974 after feeling that the party was insuffi- ciently conservative. Phillips has been the dominant figure in the party since its founding, running as its presidential candidate in 1992, 1996, and 2000. Phillips had been involved in the Republican Party since his early teens, when he decided to chart a different course. He had served as chairman of the Boston Republican Party, as a staff member at the Republican National Committee in Washington, D.C., and finally as the director of the Office of Economic Opportunity under President RICHARD NIXON, with an explicit mandate to dismantle the program. When, because of political con- straints, he was not allowed to do this, he quit the administration and established the Conser- vative Caucus, a lobbying group that became somewhat influential during the presidency of RONALD REAGAN. Phillips decided that the next step was to form a poli tical party, according to his web site, with “the common goal of limiting the federal government to its Constitutional boundaries and restoring the foundations of civil govern- ment back to the fundamental principles our country was founded upon.” The party that he formed in 1992 was named the U.S. Taxpayers Party, and befitting its name it committed itself to stopping all federal expenditures that were not specifi cally authorized by the U.S. Consti- tution, and to “restore to the states those powers, programs, and sources of revenue that the federal government has usurped.” Though the original party that Phillips formed had a primarily fiscal purpose, it also took strong conservative stands on social issues, advocating making abortion illegal in all instances, supporting a moratorium on IMMI- GRATION into the United States, and calling for the abolition of all welfare programs. Taking this platform nationwide, Phillips and his running mate, Albion Knight, managed to get on the presidential ballot in 21 states GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTION PARTY 129 and garnered approximately 40,000 votes in the 1992 presidential campaign. In 1996, Phillips and running mate, Herb Titus, managed to get on the ballot in 39 states and won 182,000 votes. In 1999 the U.S. Taxpayer Party renamed itself the Constitution Party. With Phillips once again its presidential candidate, this time running with Dr. J. Curtis Frazier, the party was able to gain access to the ballot in 42 states. However, the totals for Phillips this time were lower than he had received in 1996—approximately 98,000 votes. For the 2004 election, the Constitution Party has as its goal to get its presidential ticket on all 50 states. The Constitution Party does not only run presidential candidates. For the 2002 election, at least 20 states had candidates affiliated with the Constitution Party running for office, for positions ranging from governor and U.S. Senate down to city council and state house. In Nevada alone, the party had affiliated candidates for 30 offices for the 2002 election. In Wisconsin, the party has two affiliated elected officials: an alderman and a county supervisor. The Constitution Party takes strongly con- servative stands on a variety of issues. The party’s preamble to its 2000 National Platform views the American political system with a strongly reli- gious bent. “The U.S. Constitution established a Republic under God, rather than a democracy,” it states. “Our Republic is a nation governed by a Constitution that is rooted in Biblical law, administered by representatives who are Constitutionally elected by the citizens.” On abortion, the Constitution Party ’s 2000 platform stated that “Roe v. Wade is illegitimate, contrary to the law of the nation’s Charter and Constitution. It must be resisted by all civil government officials, federal, state, and local, and by all branches of the government— legislative, executive, and judicial.” It argues that abortion should be illegal nationwide. Regarding the prevention of AIDS, the Constitution Party states in its platform, “Under no circumstances should the federal government continue to subsidize activities which have the effect of encouraging perverted or promiscuous sexual conduct. Criminal penalties should apply to those whose willful acts of omission or commission place members of the public at risk of contracting AIDS or HIV.” For members of Congress, the Constitution Party suggests abolishing federal pay for mem- bers of Congress, and abolishing Congressional pensions. It also advocates abolishing the direct election of Senators and returning that function t o the state legislatures. It supports repealing all laws that delegate legislative powers to regulatory agencies, bureaucracies, private organizations, the FEDERAL RESERVE BOARD, inter- national agencies, the president, and the judiciary. On national defense, the Constitution Party platform advocates “maintenance of a strong, state-of-the-art military on land, sea, in the air, and in space.” It opposes allowing U.S. forces to serve under any foreign flag or command. However, it also opposes “the Presidential assumption of authority to deploy American troops into combat without the consent of Congress.” The Constitution Party would like to see the DEPARTMENT OF EDUCATION abolished, and it also supports the elimination of the FOOD AND DRUG ADMINISTRATION , the Federal Reserve Board, the National Security Administration, and the INTERNAL REVENUE SERVICE. It supports voluntary SOCIAL SECURITY and would change the tax system to offer an apportioned “state-rate tax” in which the responsibility for covering the cost Chuck Baldwin ran as the Constitution Party’s candidate in the 2008 presidential election and received 384,722 votes. SCOTT J. FERRELL/ CONGRESSIONAL QUARTERLY/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 130 CONSTITUTION PARTY of federal obligations unmet by a tariff on foreign products will be divided amon g the several states in accordance with their propor- tion of the total population of the United States, excluding the District of Columbia. Under this system, if a state contains 10 percent of the nation’s citizens, it will be responsible for assuming payment of 10 percent of the annual deficit. On foreign affairs, The Constitution Party would like to see the United States withdr aw from all international monetary and financial institutions and agencies, including the INTERNA- TIONAL MONETARY FUND (IMF), the WORLD BANK , the World Trade Organization (WTO), the NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA), and the GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT). It wants to terminate all programs of foreign aid, whether military or non-military, to any foreign government or to any international organization. It would withdraw the United States from the North Atlantic Treaty Organisation (NATO), and would withdraw recognition of Communist China, which its platform describes as a murderous and tyrannical regime enslaving the Chinese people. The Constitution Party refuses to take any federal funds for its presidential campaig ns. The party made it clear after the 2000 campaign that it planned to be around for a while. On its web site, it stated, “In light of the widespread need across the country, the party is fully dedicated to building party strength and organization at the State, County and local level.” FURTHER READINGS The Constitution Party Web site. Available online at http:// www.constitutionparty.com (accessed July 15, 2009). Lieb, David A. “Constitution Party Claims Inroads, Despite Loss.” Associated Press. Available online at http:// abcnews.go.com/Politics/comments?type =story&id= 6227351; website home page: http://abcnews.go.com (accessed August 30, 2009). Lucier, James P. 2000. “Phillips Leads the Way for Constitutionalists.” News World Communications, Inc. Insight on the News (Sept 25). CROSS REFERENCES Democratic Party; Elections; Republican Party; Roe v. Wade. CONSTITUTIONAL That which is consistent with or dependent upon the fundamental law that defines and establishes government in society and basic principles to which society is to conform. A law is constitutional when it does not violate any provision of the U.S. Constitution or any state constitution. CONSTITUTIONAL AMENDMENT The means by which an alteration to the U.S. Constitution, whether a modification, deletion, or addition, is accomplish ed. Article V of the U.S. Constitution establishes the means for amending that document according to a two-step procedure: proposal of amendments, followed by ratification. Amend- ments may be proposed in two ways: by a two- thirds vote of both houses of Congress or by a special convention summoned by Congress on the petition of two-thirds (34) of the state legislatures. In the long history of the U.S. Constitution, more than 5,000 amendments have been intro- duced in Congress. Only 33 of these have been formally proposed by Congress, and none has ever been proposed by a special convention. No matter which method is used for the proposal of a constitutional amendment, Con- gress retains the power to decide what method will be used for ratification: approval of three- fourths (38) of the state legislatures, or approval of three-fourths (38) of special state conven- tions. Congress may also place other restrictions, such as a limited time frame, on ratification. Of the 33 amendments proposed by Con- gress, 27 were ratified. Of the amendments ratified, only one—the TWENTY-FIRST AMENDMENT, which repealed a prohibition on alcohol—was ratified by the state convention method. The rest have been ratified by three-fourths of the state legislatures. The process for amending the Constitution is deliberately difficult. Even when an amend- ment is proposed by Congress, it has taken, on average, two-and-a-half years for it to be ratified. That difficulty creates stability, with its accompanying advantages and disadvantages. The advantages lie in the fact that the Constitution’s provisions are not subject to change according to the whims of a particular moment. The disa dvantages inhere in the reality that the Constitution must also adapt and be relevant to a changing society. Given the difficulty of amendment, much of the burden GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL AMENDMENT 131 of adapting the Constitution to a changing world has fallen on the shoulders of the Supreme Court and its powers of JUDICIAL REVIEW , which have been described as an informal method of changing the Constitution. However, constitutional amendments may in turn modify or overturn judicial opinion, as was the case with the Eleventh, Thirteenth, Four- teenth, Sixteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments. Commentators have also pointed out that the amendment process is not a very democratic one. As the constitutional scholar EDWARD S . CORWIN w rote: “A proposed amendment can be added to the Constitution by thirty-eight states containing considerably less than half of the population of the country, or can be defeated by thirteen states containing less than one- twentieth of the population of the country.” Brief History of Constitutional Amendments Before the creation of the U.S. Constitution in 1787, constitutional amendments had already been instituted as part of several early state constitutions. The pioneering framers of these state constitutions recognized the need to incorporate an element of flexibility into CONSTITUTIONAL LAW, and they provided for constitutional amendment through the legisla- ture or through special conventions. However, the first na tional CONSTITUTION OF THE UNITED STATES ,theARTICLES OF CONFEDERATION,didnot have such flexibility. Amendment of that docu- ment required a unanimous vote of Congress, nearly impossible to achieve. The Framers of the U.S. Constitution sought to avoid the inflexibility of the Artic les of Confederation. JAMES MADISON, one of the principle architects of the Constitution, argued in The Federalist Papers that the new compact’s amendment procedures, unlike those of the old Articles, protected “equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults.” Proving the truth of Madison’s contention, the first ten amendments to the Constitution were passed as a package by the first session of Congress in 1791. This group of amendments is called the BILL OF RIGHTS. The Bill of Rights fulfilled a promise that the backers of the Constitution, known as the Federalists, had made during the ratification procedure of the Constitution. It guarantees specific liberties relating to (1) rights of conscience, including the freedoms of speech, press, RELIGION, and peaceable assembly ( FIRST AMENDMENT); (2) rights of the accused, including freedom from “unrea- sonable searches and seizures” ( FOURTH AMEND- MENT ), freedom from compulsory SELF-INCRIMI- NATION (FIFTH AMENDMENT), the “right to a speedy and public trial, by an impartial jury” and with legal counsel ( SIXTH AMENDMENT), and freedom from “excessive bail” and “cruel and unusual punishments” ( EIGHTH AME NDMENT); and (3) rights of property, including freedom from seizure of property without “due process of law” (Fifth Amendment). Subsequent amendments have dealt with many different issues, including the extent of federal judicial jurisdiction ( ELEVENTH AMEND- MENT [1795]), the method of electing the president ( TWELFTH AMENDMENT [1804]), the abolition of SLAVERY (THIRTEENTH AMENDMENT [1865]), legalization of the INCOME TAX (SIXTEENTH AMENDMENT [1913]), granting women the right to vote ( NINETEENTH AMENDMENT [1920]), presidential succession (TWENTY-FIFTH AMENDMENT [1967]), and the voting age ( TWENTY-SIXTH AMENDMENT [1971]). The FOURTEENTH AMENDMENT (1868), w hich holds that no state shall “deprive any person of life, liberty, or property, without DUE PROCESS OF LAW ; nor deny to any person … the EQUAL PROTECTION of the laws,” has arguably been the most important and far-reaching of all the amendments, particularly with regard to its Due Process and Equal Protection Clauses. Through the Fourteenth Amendment, most of the provisions of the Bill of Rights were eventually applied to the states. In 1972 the EQUAL RIGHTS AMENDMENT (ERA) was formally proposed by Congress. The ERA, which would have forbidden discrimination on the basis of sex, failed to gain ratification within the seven-year deadline proposed by Congress, even after a 39-month extension through June 30, 1982. FURTHER READINGS Amar, Akhil R. 2000. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale Univ. Press. Antieau, Chester James. 1995. A U.S. Constitution for the Year 2000. Chicago: Loyola. Corwin, Edward S. 1978. “Article V.” In The Constitution and What It Means Today. 14th rev. ed. Harold GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 CONSTITUTIONAL AMENDMENT W. Chase and Craig R. Ducat, eds. Princeton, NJ: Princeton Univ. Press. Gilbert, Robert E., ed. 2000. Managing Crisis: Presidential Disability and the Twenty-fifth Amendment. Bronx, N.Y.: Fordham Univ. Press. Gonzalez, Carlos E. 2002. “Popular Sovereign Versus Government Institution Generated Constitution al Norms: When Does a Constituti onal Amendment Not Amend the Constitution?” Washington Univ. Law Quarterly 80 (spring). Harrigan, John J. 1984. Politics and the American Future. Reading, MA: Addison-Wesley. Hunt, Bernice Kohn. 1974. The Spirit and the Letter: The Struggle for Rights in America. New York: Viking. Palmer, Kris E., ed. 2000. Constitutional Amendments, 1789 to the Present. Detroit: Gale Group. Strauss, David A. 2001. “The Irrelevance of Constitutional Amendments.” Harvard Law Review 114 (March). Vile, John R. 2003. Encyclopedia of Constitutional Amend- ments, Proposed Amendments, and Amending Issues, 1789–2002. 2d ed. Denver, CO: ABC-CLIO. CROSS REFERENCE Constitution of the United Stat es. CONSTITUTIONAL LAW Constitutional law is the written text of the state and federal constitutions. It includes the body of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitu- tional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions that conform to the norms prescribed by a constitutional provision are also included. The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives of the execu- tive, legislative, and judicial branches are delin- eated by express constitutional provisions; a SEPARATION OF POWERS, in which the responsibili- ties of government are divided and shared among the coordinate branches; a reservation of power, in which the sovereignty of the federal govern- ment is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the prerogatives of the three branches of government are restricted by constitutionally enumerated individual rights, UNENUMERATED RIGHTS derived from sources outside the text of the Constitution, and other constraints inherent in a democratic system in which the ultimate source of authority for government action is the consent of the people. In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the doctrine of STARE DECISIS, t he judicial branch is required to adhere to existing precedent in all future cases presenting analogous factual and legal circum- stances, unless it has a compelling reason for deviating from the precedent or overruling it. A state or federal law is said to be constitutional when it is consistent with the text of a constitutional provision and all relevant judicial interpretations. A law that is inconsis- tent with either the written text or judicial interpretation of a constitutional provision is unconstitutional. The Constitution The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built. By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, the Constitu- tion has created a system of government that has allowed every area of civil, criminal, and administrative law to evolve with the needs of society. The federal Constitution became bind- ing on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for ratification. The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten amendments to the U.S. Constitution, known as the BILL OF RIGHTS, enumerate certain individual liberties that must be protected against govern- ment infringement. The rest of the Constitution contains miscellaneous other provisions, many of which are intended to maintain a federalist system of government in which the federal Constitution is the supreme LAW OF THE LAND and the federal government shares sovereignty with the states. Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress. Section 1 provides that “[a]ll legislative Powers herein granted shall be vested in a CONGRESS OF THE UNITED STATES, which shall consist of a Senate and a House of Representatives.” Article I also requires that candidates running for the Hou se of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 133 Representatives be elected directly by the residents of each state. Originally, Article I endowed the state legislatures with the power to choose members of the Senate. However, the SEVENTEENTH AMENDMENT now requires all sena- tors to be elected directly by the people of their home state. Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin money; establish and collect taxes; pay debts; establi sh uniform laws for IMMIGRATION, naturalization, and BANKRUPTCY; and provide for the common defense and GENERAL WELFARE of the United States. Both the Senate and the House must approve all bills before they are submitted to the president. If the president vetoe s a bill, Section 7 authorizes Congress to override the veto by a two-thirds vote in both houses. Because Con- gress is a public bod y, this article requires the House and Senate to record and publish its proceedings, including the votes made by any of its members. Section 8 also grants Congress the power to pass all laws that are “necessary and proper” to the performance of its legislative function. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Supreme Court broadly interpreted the NECESSARY AND PROPER CLAUSE to grant Congress the implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal responsibili- ties. THOMAS JEFFERSON had earlier argued that the necessary and proper clause authorized Con- gress only to enact measures that are indispens- able to the implementation of the enumerated powers. Congress frequently relies on its authority to regulate commerce as a justificat ion for the legislation it enacts. Section 8 gives Congress the “power to regulate commerce among the several states.” In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional power to regu- late commerce is plenary (complete in itself) and extends to all interstate commerce (com- mercial activity that concerns more than one state). The Court said that intrastate commerce (commercial activity that is conducted exclu- sively within one state) is beyond the reach of this congressional power. Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that produces and consumes its own wheat. The Court said that “even if [a farm’s] activity be local, and though it may not be regarded as commerce, it may still … be reached by Cong ress, if it exerts a substantial economic effect on interstate commerce … irrespective of whether such effect [is] direct or indirect.” This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near a school does not substantially affect interstate commerce and may not be regulated at the federal level. Although the interstate commerce power has been given an expansive reading in modern times, the Court said in Lopez, the scope of congressional authority i n this area must be considered in light of our dual system of [state and federal] government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take certain action. Section 9, for example, prohibits Congress from passing bills of attainder and EX POST FACTO LAWS.(Abill of attainder is a legislative act that imposes punish- ment on a party without the benefit of a judicial proceeding. An ex post facto law makes criminal or punishesconductthatwasnotillegalatthetimeit occurred.) Section 9 further prohibits Congress from suspending HABEAS CORPUS (a citizen’srightto protection against illegal imprisonment) except as may be necessary to preserve national security in time of rebellion or invasion. Although the Constitution delegated this power to Congress, President ABRAHAM LINCOLN suspended habeas corpus during the Civil War without congressio- nal assent. Article I also restricts the power of state legislatures, such as the power to make treaties, alliances, and confederations. ArticleII:TheExecutivePowerCongres- sional power is not absolute. The Frame rs of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 134 CONSTITUTIONAL LAW the Constitu tion were familiar with the abuses of absolute power. In the century preceding the American Revolution, the English Parliament acquired unlimited sovereignty. This arrange- ment replaced an earlier system of government in which the English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to create a system of checks and balances in which the executive and legislative branches would share power with each other and with the judiciary. In this light, many of the powers delegated to the president must be viewed in conjunction with the powers delegated to the coordinate branches of government. Article II provides that “[t]he executive Power shallbevestedinaPresidentoftheUnited States … [who] shall hold … Office during the Term of four Years … together with the Vice President.” The ELECTORAL COLLEGE, which pro- vides the method by which the president and vice president are elected, derives its constitutional authority from Article II as well as from the Twelfth and Twenty-third Amendments. The Twenty-second Amendment limits the president to two terms in office, and the Twentieth and Twenty-fifth Amendments set for th the order of succession for presidents who are unable to begin their term or continue in office. Article II, Section 2, makes the president the commander in chief of the armed forces. But only Congress has the power to declare war. Between these two powers lies a gray area in which presidents have exercised the preroga- tive to commit U.S. troops to foreign military excursions without congressional approval. The U.S. involvement in the VIETNAM WAR resulted from one such exercise of power. In response to these executive maneuvers, Congress passed the War Powers Resolution (Pub. L. No. 93-148 [codified at 50 U.S.C.A. §§ 1541 et seq.]), which restricts the president’s authority to involve the United States in foreign hostilities for more than 60 days without the approval of Congress. The president also shares power with Congress in other areas under Article II. Section 2 authorizes the president to make treaties with foreign governments, but only with the ADVICE AND CONSENT of the Senate. The president must also seek senatorial approval when appointing ambassadors; federal judges, including Supreme Court justices; and other public ministers. Section 4 states that the president may be removed from office only through IMPEACHMENT for “Treason, BRIBERY, or other High Crimes and Misdemeanors.” The House is responsible for drafting ARTICLES OF IMPEACHMENT (accusations of misconduct), and the Senate is responsible for holding an impeachment trial. A two-thirds vote in the Senate is required for conviction. The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the impeachment proceedings against President WILLIAM JEFFERSON CLINTON. In 1998 the U.S. House of Representatives approved two articles of impeachment against President Clinton, accusing the president of having committed the crimes of perjury and OBSTRUC- TION OF JUSTICE to conceal his relationship with White House intern Monica Lewinsky. The impeachment trial was then held before the Senate from January 7, 1999, through February 12, 1999. Clinton supporters generally opposed im- peachment on grounds that c oncealing a private, extramarital affair should not constitute an impeachable high crime or misdemeanor. Clinton detractors generally supported impeach- ment on grounds that perjury and obstruction of justice are felony-level offenses that render a chief executive who is guilty of such offenses incompetent to discharge the duties of his office. Clinton supporters contended that past presidents had concealed their extramarital affairs without it rising to the level of an impeachable offense, and Clinton detractors countered by arguing that the president was not being impeached for having an extra- marital affair but for committing crimes to conceal it. Scholars debated the merits of the Clinton impeachment proceedings as well. However, constitutional historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanors had no settled usage at the time the Constitution was ratified by the states, except that the Founding Fathers rejected proposals that would have allowed for impeach- ment in cases of maladministration, malpractice, or neglect of duty. The Founding Fathers favored a chief executive who was subject to constitu- tional checks and balances, but not one who was weak and easy to remove by political opponents. In the end, the Senate voted to acquit President Clinton. Neither article of impeachment was supported by even a majority of votes, far short of the 67 votes required to convict. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 135 Although the president participates in the lawmaking process by preparing budgets for congressional review, recommending legislation on certain subjects, and signing and vetoing bills passed by both houses, no formal lawmaking powers are specifically delegated to the EXECU- TIVE BRANCH . The president nonetheless “legis- lates” by issuin g executive orders, decrees, and proclamations. No express provision of the Constitution delineates the parameters of this executive lawmaking power. However, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court set forth some guidelines. Known as the Steel Seizure case, Youngstown examined the issue of whether the president of the United States could order the government seizure of steel mills that were crippled by a labor strike during the KOREAN WAR. In holding the EXECUTIVE ORDER unconstitutional, the Su- preme Court ruled that “the President’s power to see that the laws are faithfully executed refutes the idea that [the president] is to be a lawmaker.” Justice ROBERT H. JACKSON, in a concurring opinion, set forth an analysis by which the Supreme Court has subsequently evaluated the constitutionality of presidential action. Jackson opined that PRESIDENTIAL POWERS are not fixed, but fluctuate according to “their disjunction or conjunction with those of Congress.” When the president acts pursuant to congressional autho- rization, the action carries maximum authority. When the executive acts contrary to congressio- nal will, presidential powers are at their lowest ebb. Between these positions, when a president faces an issue on which Congress is silent, the executive acts in “a zone of twilight in which [the president] and Congress may have concur- rent authority, or in which the distribution is uncertain.” In such instances, Jackson reasoned, courts must balance the in terests of the parties and of society to determine if a particular executive action has violated the separation of powers. Another area that has stirred debate over the appropriate separation of powers involves the delegation of legislative, executive, and judicial authority to federal administrative bodies. Since the mid-1930s, the United States has seen an enormous growth in the administrativ e state. Administrative agencies have been created to establish, evaluate, and apply rules and policies over a diverse area of law, including taxes, SECURITIES, transportation, antitrust, the envi- ronment, and employment relations. Federal administrative bodies are created by statute, and Congress has the authority to prescribe the qualifications for administrative officials who are appointed by the president, courts of law, and heads of government departments. The NATIONAL LABOR RELATIONS BOARD (NLRB) demonstrates the overlapping powers that may be exercised by an administrative body. The NLRB is empowered by statute to issue regula- tions that govern union activities. Such re- gulations are virtually indistinguishable from legislative enactments and are considered no less authoritative. The NLRB also adjudicates disputes between unions and employers, with an administrative law judge presiding over such cases. Finally, the NLRB is endowed with the power to make prosecutorial decisions, a power traditionally exercised by the executive branch. Although successful challenges have been lodged against the delegation of certain powers to federal administrative bodies, by and large, the Supreme Court has permitted administra- tive officials and agencies to play all three government roles. Article III: The Judicial Power Article III provides that “[t]he 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.” Pursuant to this constitutional authorization, Congress has created a federal judicial system comprising a lower tier of federal trial courts, known as the U.S. district courts, and an intermediate tier of federal appellate courts, known as the U.S. COURTS OF APPEALS. At least one federal district court is located in each of the 50 states. The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District of Columbia and the Court of Appeals for the Federal Circuit. Each federal appellate co urt has jurisdiction over a certain geographic area and may only hear appeals from federal district courts within that jurisdiction. Specialized courts of appeals have been created to hear appeals concerning dis- putes concerning international trade (the court of International Trade) and military matters (the Court of Military Appeals). Parties ag- grieved by a decision made by any of these federal appellate courts may appeal their case to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 136 CONSTITUTIONAL LAW the Supreme Court, which has the ultimate judicial power. Cases that originate in state court and present a FEDERAL QUESTION may also be appealed to the U.S. Supreme Court. The Supreme Court is not required to hear every case that is appealed to it; instead, the Court has broad discretion to accept or decline cases that are appealed by a lower court. Only four justices need to vote in favor of hearing an appeal before a WRIT of CERTIORARI will be granted. Certiorari is a device that allows the Supreme Court to call up the records of a lower court and review them in order to identify important legal questions that need to be resolved. Granting “cert” has no bearing on the Court’s subsequent resolution of a case. The Court is asked to review about 5,000 cases a year and grants certiorari in fewer than 250 of them. Federal courts do not have jurisdiction to hear every kind of lawsuit. Article III lists certain types of cases that may be heard by the federal judiciary, including cases arising under the Constitution; under treaties with foreign nations; and under federal laws passed by Congress, the executive, or an administrative body. Federal courts also have jurisdiction to hear lawsuits between two or more states, between citizens of different states, and between a citizen or government of one state and a citizen or governmen t of a foreign country. The Supreme Court has ORIGINAL JURISDIC- TION over cases involving ambassadors and other public ministers as well as cases in which a state government is a party. Original jurisdic- tion gives a court the power to hear a lawsuit from the beginning, rather than on appeal. This grant of original jurisdiction does not preclude Congress from giving original jurisdiction to other courts over the same matters. In fact, Congress has granted concurrent original juris- diction to the federal district courts for all controversies except those between state gov- ernments. Nowhere in Articl e III, or elsewhere in the Constitution, is the power of the federal judiciary defined. Historically, the role of English and U.S. courts was to interpret and apply the laws passed by the other two branches of government. At the close of the eighteenth century, it was unclear whether that role included the prerogative of JUDICIAL REVIEW, which is the authority of state and federal courts to review and invalidate laws passed by legislatures that violate a constitutional provi- sion or principle. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court clarified this ambiguity by pronouncing that it “is emphatically the duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret the rule. If two laws conflict with each other, the court must decide on the operation of each.” Because the federal Constitution is the supreme law of the land, the Court reasoned, any laws that violate the Constitution must be declared void. It was the essence of judicial duty, the Court intimated, for judges to evaluate the constitu- tionality of a particular act, because judges are not elect ed and are, therefore, independent from the political considerations that may have motivated the popular branches of government to enact that law. The Court reasoned that the executive and legislative branches could not be impartial arbiters of their own laws. The Bill of Rights When the U.S. Constitution was ratified by the states in 1789, it contained no bill of rights. During the last days of the Constitutional Convention, one of the delegates proposed that a bill of rights be included, but this proposal was voted down by every state. Many Framers of the Constitution believed that there was no need for a bill of rights because the powers of Congress and of the president were explicitly enumerated and limited, and no provision of the Constitu- tion authorized any branch of government to invade the personal liberties of U.S. citizens. Other Framers were concerned that any list of rights would be hopelessly incomplete and that the government would deny any liberties left unmentioned. This concern was ultimately expressed by the NINTH AMENDMENT to the U.S. Constitution, which provides that “[t]he enu- meration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment was later relied on by the Supreme Court to recognize the unenumerated right of married adults to use BIRTH CONTROL (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]). By 1791, the need for a bill of rights was viewed in a different light. The residents of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 137 . candidates running for the Hou se of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 133 Representatives be elected directly by the residents of each state. Originally, Article. Neither article of impeachment was supported by even a majority of votes, far short of the 67 votes required to convict. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 135 Although. Madison’s Notes of Debates in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations. Union, N.J.: Lawbook Exchange. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 128