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 The Constitution and what it means to-da 
 
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The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019905383 
 
THE CONSTITUTION 
 
 AND 
 
 WHAT IT MEANS TO-DAY 
 
 EDWARD S. CORWIN 
 
 McCormick Professor of Jurisprudence in Princeton University: 
 
 Author of The President's Control of Foreign Relations, 
 
 The Doctrine of Judicial Review, Etc. 
 
 PRINCETON UNIVERSITY PRESS 
 
 LONDON : HUMPHREY MILFORD 
 OXFORD UNIVERSITY PRESS 
 
 1920 
 
Copyright, 1920, by 
 Princeton University Press 
 
 Published 1920 
 Printed in the United States of America 
 
PREFACE. 
 
 The Constitution as here printed is for the most 
 part the text which appears in Old South Leaflets, 
 No. I. 
 
 I avail myself of this opportunity to express my 
 thanks to two of my colleagues, Professor Dana C. 
 Munro and Professor Christian Gauss — to the for- 
 mer for suggesting this small volume and to the 
 latter for several ideas which have been^ incorporated 
 in it to its improvement. 
 
 The Author. 
 
INTRODUCTION 
 
 Notwithstanding Mr. Bryce's assurance that the 
 Constitution can be read through in twenty minutes, 
 comparatively few people undertake the task nowa- 
 days. This unfortunate circumstance is doubtless 
 to be explained by several reasons, but there is 
 one of these reasons which is of special importance. 
 This consists in the fact that in the course of 130 
 years the real constitution of the United States has 
 come to be something very different from the docu- 
 ment referred to by Mr. Bryce. 
 
 It was the wise purpose of the men who framed 
 the Constitution to avoid what one of them called 
 "a too minutious wisdom." Being desirous that 
 their work should endure, they for the most part 
 laid down only general principles. The framework 
 of the new Government was, it is true, outlined 
 quite distinctly, but the real scope of the powers 
 which it should exercise and of the rights which it 
 should guarantee was left, to a very great extent, for 
 future developments to determine. 
 
 Moreover, in the course of 130 years conditions 
 of life, and with them political tendencies, have 
 undergone great changes. In the case of an instru- 
 ment couched in such broad terms as is the Consti- 
 tution, a great deal depends upon the point of view 
 from which the work of interpreting it is ap- 
 proached. To be sure, the final word in inter- 
 
ii Introduction 
 
 preting the Constitution belongs to the Supreme 
 Court, a body whose membership alters only very 
 gradually; yet it does alter and even if it did not, 
 its members could not remain unaffected by wide- 
 spread changes among their countrymen as to po- 
 litical philosophy and outlook. 
 
 Thus at one time the Constitution has been in- 
 terpreted from the point of view of the desire for 
 national unity, at another time from that of the 
 desire for local autonomy; at one time from the 
 point of view of concern for private rights, at an- 
 other from that of concern for majority rule. 
 
 Inevitably, the interpretations rendered from 
 these often conflicting points of view have con- 
 stantly modified — sometimes cancelled — one an- 
 other, and what the Constitution means to-day is, 
 so to speak, their algebraic sum. But whence are 
 the items of this calculation to be obtained? To 
 some extent from the history of actual practice 
 under the Constitution, to some extent from the 
 amendments which have been formally added, to it, 
 but to a more important extent from the hundreds 
 of decisions which have been handed down by the 
 Supreme Court in interpreting its provisions. 
 
 To gather all these items together, however, and 
 sum them up is obviously a task which the average 
 citizen has no time to perform for himself. It is 
 
Introduction iii 
 
 accordingly this very task which this small volume 
 endeavors to perform for him. As to the need for 
 the kind of thing here attempted there can be 
 little doubt. The Constitution is the People's Law; 
 it is the substructure of government in the U. S. ; 
 it is the great mould in which all legislation, all 
 governmental policy is cast. The citizen simply 
 cannot perform his task intelligently without a 
 considerable measure of familiarity with its provi- 
 sions and their meaning to-day. 
 
 The Constitution was framed by a convention 
 which assembled at Philadelphia toward the close 
 of May, 1787, and adjourned on the following Sep- 
 tember 17th. This body was summoned by the Old 
 Congress of the Confederation; its members were 
 chosen by the several State legislatures — all the 
 States but Rhode Island finally participating in its 
 deliberations. Of the fifty-five members who at- 
 tended, thirty-nine signed the Constitution, which 
 was then submitted for ratification to conventions 
 chosen in the several States for the purpose. Dela- 
 ware was the first State to ratify. Then followed 
 ten others in the following order: Pennsylvania, 
 New Jersey, Georgia, Connecticut, Massachusetts, 
 Maryland, South Carolina, New Hampshire, Vir- 
 ginia, New York. Under an act of the Old Con- 
 gress the new Government went into effect on 
 
iv Introduction 
 
 March 4, 1789. North Carolina and Rhode Island 
 did not ratify till later. 
 
 The thing which brought about the new Constitu- 
 tion was the apparently impending dissolution of 
 the Confederation, which was attended, especially 
 in New England, by social disorders. Even before 
 the Revolution had come to an end, the union of 
 States, which arose on the basis of the Declaration 
 of Independence, had become extremely weak and 
 ineffective, and once the war was over localism de- 
 veloped to an alarming degree. Moreover, within 
 the boundaries of several of the States, there was a 
 sharp division of society into creditors and debtors. 
 The latter were often numerous enough to control 
 the legislatures and abused their power by voting all 
 kinds of measures calculated to avoid their legal 
 obligations. Finally, Shay's Rebellion broke out 
 in Massachusetts toward the end of 1786. A move- 
 ment for a general convention to reform the Articles 
 of Confederation had already been set on foot at 
 the so-called "Annapolis Convention" of the pre- 
 vious September. The Massachusetts outbreak im- 
 parted to this movement just the necessary impetus 
 both in Congress and the State legislatures to press 
 it to rapid fruition. 
 
 Several writers with Socialistic sympathies have 
 recently implied or stated that the Convention of 
 
Introduction v 
 
 1787 was governed by unworthy motives, that in 
 particular it was concerned to bolster the public debt 
 of the Confederation, of which its members, it is 
 alleged, were large holders. These allegations are 
 refuted by several facts : In the first place, so far 
 as has been shown, the members of the Convention 
 held, in the aggregate, very little of the funded debt 
 of the Confederation, and its leading members held 
 scarcely any. In the second place, the Convention 
 took absolutely no action regarding the Continental 
 Currency, which was the principal evidence of the 
 Confederation's public indebtedness. In the third 
 place, it voted down, ten States to one, a motion 
 meant to guarantee payment of the funded debt at 
 par. 
 
 Nor is there any valid criticism to be levelled 
 against the membership of the Convention. This 
 consisted in great measure of precisely the men 
 whom one acquainted with the history of the times 
 would expect to find there, men like Washington, 
 Franklin, Madison, Hamilton, Dickinson, the two 
 Pinckneys, Ellsworth, the two Morrises, Wilson, 
 Sherman, Mason, Randolph, Rutledge, Livingston, 
 and others who had already become recognized aff 
 the foremost men of the day. The two Adamses, 
 Jefferson, and Jay did not attend, it is true; all of 
 them except Samuel Adams were out of the country 
 
vi Introduction 
 
 at the time, and they all finally favored the adoption 
 of this Constitution. 
 
 The one and only advantage which the members 
 of the Convention sought from their work was one 
 which they proposed to share with their fellowmen, 
 the gain, to wit, of a better system of government. 
 Nevertheless, it may be doubted whether their 
 fellowmen were at first disposed to appreciate this 
 service. The Constitution was ratified by the repre- 
 sentatives of a minority of the American nation; 
 in the graphic words of John Adams, it "was ex- 
 torted from the grinding necessities of a reluctant 
 people." Yet it did not continue a minority docu- 
 ment for long. Less than a decade had passed ere 
 it had become an object of popular veneration, the 
 rallying point of every considerable political force 
 in the country. What Bagehot says of the British 
 monarchy may indeed be repeated of the Constitu- 
 tion for by far the greater part of its existence. It 
 has "strengthened government with the strength of 
 religion." 
 
 Some readers of these pages may feel that certain 
 controverted points regarding the relations of the 
 States to the Constitution have been disposed of 
 rather cavalierly, in favor of the nationalistic point 
 of view. It has to be admitted, as indeed is implied 
 in what was said above, that constitutional inter- 
 
Introduction vii 
 
 pretation has undergoine several vicissitudes in this 
 respect. The Constitution itself originally repre- 
 sented a revolution against the States' Rights prin- 
 ciple. Later, however, it was itself, though less 
 completely and much more gradually, revolutionized 
 in favor of States' Rights. Then came the Civil 
 War which, by force of arms, revolutionized it 
 back again, and this time permanently, so far as 
 one can judge to-day. On the fundamental issue, 
 accordingly, of the nature of the Constitution and 
 its source, I have felt free to adopt throughout the 
 point of view of Chief Justice Marshall. At other 
 points I do not believe that I have trod on anybody's 
 controversional toes — at least I have not intended to. 
 
TABLE OF CONTENTS. 
 
 PAGS 
 
 The Preambi,e, I 
 
 Twofold purpose of the Preamble, i 
 
 "We the People," 1-2 
 
 Article I — Congress and Its Powers. 
 
 Section I — Vests legislative powers of the United 
 
 States in Congress 2 
 
 Section II — Provides for the House of Representa- 
 tives: 
 
 [Par. i] — Who vote for Representatives — "Elec- 
 tors," 2-3 
 
 [Par. 2] — Who are eligible as Representatives — 
 "Inhabitants," 3 
 
 [Par. 3] — The basis of representation. "Three- 
 fifths of other persons," 3-4 
 
 [Par. 4] — Method of filling vacancies 4 
 
 [Par. 5] — The Speaker and his powers. Im- 
 peachment, 4-5 
 
 Section III — Provides for the Senate: 
 
 [Par. i] — Number and method of choosing Sen- 
 ators (superseded by Amendment XVII), .... 5 
 
 [Par. 2] — The original three classes of Senators. 
 Vacancies, 5-6 
 
 [Par. 3] — Who are eligible as Senators, 6 
 
 [Par. 4] — The Vice-President to preside. The 
 "casting vote," 6 
 
 [Par. s]— The President pro tempore and other 
 officers of the Senate, 6 
 
 [Par. 6] — The trial of impeachments. What im- 
 peachments are, and how they are voted. Who 
 
 are subject to them 7 
 
 "Treason, bribery, or other high crimes and 
 
 misdemeanors." An illustration, 7-8 
 
 The Senate as a court, 8 
 
 (ix) 
 
Table of Contents 
 
 PAGE 
 
 [Par. 7] — The judgment in cases of impeach- 
 ment. No "jeopardy of life or limb" (see 
 Amendment V) 8-9 
 
 Section IV — Elections of members of Congress and 
 
 its assemblage : 
 [Par. I ]— Control by Congress over elections (see 
 
 Amendment XVII). Present legislation, 9-10 
 
 [Par. 2] — The time of regular sessions (see 
 
 Article II, Section III) lo 
 
 Section V — Parliamentary rights of the two houses : 
 
 [Par. i] — Each house judge of elections and 
 
 qualifications of its members, and may compel 
 
 attendance. "Qualifications," lo-ll 
 
 [Par. 2] — Rules of procedure. Power to punish 
 
 and expel members 11 
 
 [Par. 3] — ^Journal and "'ayes"; and "nays," 11-12 
 
 [Par. 4] — Rule regarding separate adjournments, 12 
 Separate and "concurrent" resolutions. Com- 
 mittees, investigations, contempts. The Act 
 
 of 1853 12-13 
 
 Section VI — Special imntunities and disabilities of 
 members : 
 [Par. i] — Compensation, immunity from arrest, 
 
 freedom of debate 13 
 
 [Par. 2] — Ineligibility to certain civil offices. 
 Same of civil officers to membership. A ques- 
 tionable practice, 14 
 
 Section VII — Procedure in the enactment of laws; 
 [Par. i] — Rule with regard to origination of 
 
 revenue bills, without effect to-day, 14 
 
 [Par. 2] — The President's veto and how it may be 
 overridden. "Two-thirds" of each "house,". .. . 14-1S 
 Early view of the veto and that held to-day. A 
 suggestion for changing the veto power 15-16 
 
Table op Contents xi 
 
 PAGE 
 [Par. 3] — What proposals must be submitted to the 
 President, what ones need not (see also Article 
 V) ifr-17 
 
 Section VIII — The most important section of the 
 Constitution, being the principal source of 
 
 Congress's Powers, 17-18 
 
 [Par. i] — Congress's plenary power of taxation. 
 
 Two exceptions 18-19 
 
 Rules governing the exercise of the power, ... 19 
 "Duties," "'excises," "imposts," "direct taxes." 
 The Income Tax Case of 189s (see Amend- 
 ment X]VI). Income and profits taxes to-day, 19-20 
 Congressional regulation of certain businesses 
 
 by taxation, 20 
 
 [Par. 2] — The borrowing power. "Fiscal powers" 
 
 of the National Government, 21 
 
 [Par. 3] — The "Commerce Ci,ause," 21 
 
 "Commerce narrowly and broadly defined." 
 
 "Among the States." "To regulate," 21-22 
 
 Congressional regulation of interstate transpor- 
 tation. Eminent domain, 22 
 
 Rate regulation (see Amendment V), 23 
 
 Incidental powers over intrastate rates. Possi- 
 ble consequences of this doctrine, 23-24 
 
 Regulations of the agents and instruments of 
 interstate transportation. The Federal Em- 
 ployers' Liability Act of 1908 24 
 
 When Congress may prohibit interstate com- 
 merce. The case of lottery tickets and that 
 
 of the products of child labor compared 24-25 
 
 Congress's absolute power over foreign Com- 
 merce, 25 
 
 Exclusiveness of Congress's power under the 
 "Commerce Clause," 26 
 
xii Table of Contents 
 
 PAGE 
 The "Commerce Clause" as a limitation on the 
 
 taxing power of the States 26 
 
 Same as a limitation on the ''police powers" of 
 
 the States 26-27 
 
 State regulation of intrastate rates and the 
 
 Fourteenth Amendment 27 
 
 [Par. 4] — Power over naturalization and bank- 
 ruptcy 27-28 
 
 [Pars, s and 6] — Power with regard to coinage, 
 weights and measures, and counterfeiting (see 
 Paragraph 2, above). 
 
 [Par. 7] — The "'postal power/' 28 
 
 Congress's power to take over the railroads, . . 28 
 Power to prevent misuse of the postal facili- 
 ties (see Amendment I), 28 
 
 [Par. 8] — Power to grant patents and copyrights, 29 
 [Par. 9] — Power to establish inferior courts (see 
 
 Article III, Section I) 29 
 
 [Par 10] — Power to punish piracies, felonies on 
 the high seas and offenses against the Law of 
 Nations. Congressional definition of the Law 
 
 of Nations, 20 
 
 [Par. 11] — Power to declare war, grant letters of 
 marque and reprisal, and regulate captures on 
 
 land and water, 29 
 
 Scope of The "War Powers" of the United 
 States (see also Article IL Sections II and 
 
 III), 29-30 
 
 Congress's power "to declare war." Provi- 
 sional power of the President, 30-31 
 
 Congress's power to declare peace, 31 
 
 "Letters of marque and reprisal," 31 
 
 [Pars. 12 and 13] — Power to raise and support 
 armies and to provide and maintain a navy, . . 31-32 
 
Table of Contents xiii 
 
 PAGE 
 Compulsory military service and the Thir- 
 teenth Amendment 32 
 
 Congressional control over the use of the 
 
 forces of the United States, 32 
 
 America's fear of standing armies 32 
 
 [Par. 14] — Power to make rules for governing 
 the land and naval forces. The Articles of 
 
 War, 32-33 
 
 [Pars. 15 and 16] — Powers over the militia. The 
 
 National Defense Act of 1916, 33 
 
 [Par. 17] — Powers of exclusive legislation. The 
 
 District of Columbia, 34 
 
 [Par. 18]— "The Coefficient Clause," "Necessary 
 AND Proper" Powers. Chief Justice Marshall's 
 
 interpretation, and the grounds thereof, 34-35 
 
 Congressional direction of other departments, 35 
 "Inherent" Powers of the National Govern- 
 ment, 3S-36 
 
 Section IX — Lays down certain Limitations on the 
 
 Powers of Congress (see also Amendments I 
 
 to X): 
 [Par. i] — Clause safeguarding the African slave 
 
 trade till 1808 36 
 
 [Par. 2] — Clause safeguarding the privilege of 
 
 the writ of habeas corpus. Great importance 
 
 of this writ. Lincoln's suspension of it. 
 
 Reasons justifying its suspension, 36-37 
 
 [Par. 3] — Prohibition of "bills of attainder" and 
 
 "ex post facto laws," 37-38 
 
 [Par. 4] — "Capitation" and other "direct taxes" 
 
 to be apportioned, .^ 38 
 
 [Par. 5] — Prohibition of "export" taxes, 38 
 
 [Par. 6] — "No preference" clause, 38 
 
xiv Table op Contents 
 
 FAG* 
 [Par. 7] — No expenditures without appropria- 
 tions. Congress's control of the purse safe- 
 guarded, 38-39 
 
 [Par. 8]— Titles of nobility prohibited; also 
 foreign honors without consent of Congress,.. 39 
 Section X — Imposes certain Restrictions on thb 
 States (see also the first Section of Amend- 
 ment XIV) : 
 [Par. i] — Absolute prohibitions. Treaties, alli- 
 ances, coinage, bills of credit, legal tender acts, 
 bills of attainder, ex post facto laws, laws im- 
 pairing the obligations of contracts, titles of 
 
 nobility, 39 
 
 "Treaty'' and "'agreement," 39-4° 
 
 "Bills of credit," 40 
 
 "Laws impairing the obligation of contracts." 
 
 Original purpose of the clause. Marshall's 
 
 extension of it to public grants. Its relation 
 
 to the "police power" of the States to-day, . . 40-41 
 
 [Par. 2] — State duties on imports or exports 
 
 without consent of Congress prohibited. An 
 
 exception, 41 
 
 [Par. 3] — Further restrictions removable by con- 
 sent of Congress. Tonnage duties, armaments, 
 
 agreements, war, 41 
 
 "Troops," the National Guard, 41 
 
 Article II — The President and his Powers. 
 
 Section 1 — Defines the office and provides for the 
 choice of the oflncer : 
 [Par. i] — Vests the executive power of the 
 United States in a President. "Executive 
 
 power," 42 
 
 The Presidential term. The two-term rule, . . 42-43 
 [Par. 2]— The "Electoral College." Its impor- 
 tance to-day, 43-44 
 
Table of Contents xv 
 
 PAGS 
 
 Methods of choosing Electors 44 
 
 [Par. 3] — Has been superseded by Amendment 
 
 ^11 44-45 
 
 [Par. 4] — Power of Congress touching the 
 
 choice of Electors. The act of Congress on 
 
 the subject, 45 
 
 [Par. 5] — Who is eligible to become President. 
 Two unanswered questions 46 
 
 [Par. 6] — Succession of the Vice-President. 
 Provision for lack of both President and Vice- 
 President, 46 
 
 The Presidential Succession Act of 1886. Pro- 
 posed measures for determining disability 
 
 of the President, 47 
 
 To what does the Vice-President succeed?.... 47-48 
 
 (Par. 7] — The President's compensation safe- 
 guarded, 48 
 
 [Par. 8]— The Presidential oath of office. Does 
 not add to the powers of the office, 48-49 
 
 Section U — Defines certain of the powers of the 
 President : 
 [Par. i] — Commander-in-Chief of the Army 
 AND Navy. Relations with heads of depart- 
 ments. Pardons, 49 
 
 Scope of powers as Commander-in-Chief. The 
 
 Proclamation of Emancipation, 50 
 
 The President's Cabinet extraconstitutional. 
 Suggested admission to the floors of Con- 
 gress, 50-51 
 
 "Reprieve," "pardon," "'offenses against the 
 
 United States," Si 
 
 Scope of the pardoning power. Relation of 
 
 Congress to it, 51-52 
 
 [Par. 2, CI. i] — The Treaty-Making Power, . . 52 
 
xvi Table of Contents 
 
 PAGS 
 Procedure of treaty-making in Washington's 
 time and later. The Foreign Relations Com- 
 mittee. The Senate's veto. "Amendments'' 
 
 and "reservations/' 52-53 
 
 Undefined character of the treaty-making 
 power. Absolute over State laws. The 
 Migratory Game Treaty with Canada and 
 
 supporting legislation, 53-54 
 
 The enforcement of treaties. Where interven- 
 tion by Congress is required, where not. The 
 power of the President and that of the 
 
 courts. Illustrations, 54-55 
 
 The termination of treaties, 55 
 
 Agreements not referred to the Senate. Illus- 
 trations, 56 
 
 [Par. 2, CI. 2]— The appointing power. Classes 
 of appointive officers. Steps in their appoint- 
 ment, 56-57 
 
 Congress's power to prescribe qualifications for 
 
 office, 57 
 
 Source of the offices of "Ambassador," etc., ... 57 
 "Personal agents." Resort to should be limited, 57-58 
 
 "Shall be established by law," 58 
 
 [Par. 2, CI. 3] — Congress's power to provide for 
 
 appointment of "inferior officers," 58-59 
 
 [Par. 3] — Recess appointments. "Happen," 59 
 
 Section III — Bestows further powers on the Presi- 
 dent. The message power, power to convene 
 and adjourn Congress on certain occasions, 
 power to receive ambassadors et al. Duty to 
 See that the Laws are Faithfully Exe- 
 cuted and to commission all officers of the 
 
 United States, 59 
 
 The President's initiative to-day in legisla- 
 tion, 60 
 
TabIvE of Contents xvii 
 
 PAG8 
 
 His initiative in foreign relations, 60 
 
 Development of his powers in relation to the 
 
 execution of the laws. Illustrations, 61-62 
 
 Extraordinary powers delegated to him by 
 Congress during the World War. Execu- 
 tive legislation, 62-63 
 
 President Taft on commissioning officers, 63 
 
 Section IV — Defines liability of the President and 
 other civil officers of the United States to im- 
 peachment, 63 
 
 Other ways of keeping the President's subor- 
 dinates responsible. The power of removal. 
 Control by the courts. Question of the Presi- 
 dent's liability to the law. His political re- 
 sponsibility, 63-64 
 
 Article HI — The National Judiciary and Its Powers. 
 
 Section I — Provides for the national courts and se- 
 cures the tenures of their judges, 64 
 
 "Judicial power.'' Power to punish for con- 
 tempt of court, 65 
 
 Powers of Congress in relation to the Supreme 
 Court; to the inferior courts; to the terri- 
 torial courts, 65-66 
 
 Section II — Defines the judicial power of the United 
 States : 
 [Par. i] — The cases and controversies to which 
 
 it extends enumerated, 66 
 
 Cases "in law," "in equity," 66-67 
 
 "Arising under this Constitution," etc. The 
 Basis of the Right of the Courts to Pass 
 UPON the Validity of Legislative Acts 
 
 UNDEK the CONSTITUTIOW, 67 
 
xviii Table OF Contents 
 
 pAca 
 Appeals from State courts to the Supreme 
 Court. The 25th Section of the Act of 1789, 
 
 as amended, 68-69 
 
 "Cases of admiralty and maritime jurisdiction,'' 69 
 "Controversies." "Controversies to which the 
 United States shall be a party." "Controver- 
 sies between two or more States." "Contro- 
 versies between a State and citizens of 
 
 another State." Illustration, 69-70 
 
 Controversies "between citizens of different 
 States." The law enforced in these. "Citi- 
 zens," 70-71 
 
 [Par. 2] — The original jurisdiction of the Su- 
 preme Court. Marbury v. Madison 71-72 
 
 Effect of Amendment VII, 72 
 
 [Par. 3] — Superseded by Amendment VI 72 
 
 Section III — Defines treason and its punishment : 
 
 [Par. i] — Treason defined. Method of proof, . . 71-72 
 "Levying war." "Adhering." "Aid and com- 
 fort." "Overt act." Liability of conspirators, 73 
 [Par. 2] — Power of Congress to declare the pun- 
 ishment of treason. A restriction 73 
 
 Article IV — Interstate and Federai, Relations. 
 
 Section I — ^Provides for reciprocal "full faith and 
 
 credit" among the States in certain matters, ... 74 
 
 Section II — Lays down rules of interstate comity : 
 [Par. 1] — The privileges and immunities of citi- 
 zens in the several States. Rights of residence, 75 
 [Par. 2] — Interstate extradition. "Crime." Char- 
 acter of the duty of the Governors under this 
 
 paragraph 75-76 
 
 [Par. 3] — ^The rendition of fugitive slaves. An 
 obsolete paragraph, 76 
 
Table qf Contents xix 
 
 PAGE 
 Section III — Provides for the case of new States and 
 territories : 
 [Par. i] — The admission of new States. "This 
 
 Union," 76 
 
 [Par. 2] — Congress's control of the public lands, 76-77 
 Source and extent of its power to govern terri- 
 tories. Incorporated territories. Conquered 
 territories, 77 
 
 Section /f-'— Establishes a guaranty by the United 
 States to every State of a republican form of 
 government and security against invasion and 
 
 domestic violence 77-78 
 
 "United States." "Republican form of govern- 
 ment, 78 
 
 Article V — The Amending Power. 
 
 "The Congress," etc. "Two-thirds of both houses." 
 "Legislatures." The usual procedure of amend- 
 ment. Two exceptions to the power. Its broad 
 scope 78-80 
 
 Article VI — National Supremacy. 
 
 [Par. i] — Adoption of the debt of the Confed- 
 eration, required by the Law of Nations 80-81 
 
 [Par. 2] — The "Supremacy Clause." Its great 
 
 importance, 81 
 
 "In pursuance of the Constitution," 82 
 
 [Par. 3] — Oath of fidelity to the Constitution re- 
 quired of all officers, both National and State, . 82 
 Duties laid by the Constitution on State offi- 
 cers. How these may be increased by Con- 
 gress. A possible development, 82-83 
 
 "Religious test." "Oath or affirmation," 83 
 
XX Table of Contents 
 
 Article VII — The Schedule, 84-85 
 
 The First Ten Amendments. A Bili, of Rights Limiting 
 THE National Government : 
 
 Article I. 
 
 FAGS 
 
 Freedom of worship, speech, press, assembly, and peti- 
 tion, 86 
 
 "An establishment of religion." "The free exercise 
 thereof," 86 
 
 "Freedom of Speech" and "Press," not license of 
 speech and press 86-87 
 
 Source and scope of Congress's power over speech and 
 press, 87-88 
 
 Limits to right of assembly and petition. Implication 
 
 of latter right, 88 
 
 Article II. 
 
 The right to bear arms, 88 
 
 "Free State." "To bear arms," 88 
 
 Article III. 
 
 Restrictions on the power of the Government to quarter 
 troops, 89 
 
 Article IV. 
 
 Security of persons, houses, papers and effects against 
 
 unreasonable searches and seizures, 89 
 
 ■"Houses." "Papers and effects." "Unreasonable,"' 89-90 
 
 Article V. 
 
 Guaranties to accused persons and others (see also 
 Articles VI and VIII following) : Grand jury, no 
 second jeopardy, no self-incrimination, due process 
 of law, just compensation, 90 
 
Table of Contents xxi 
 
 PAGE 
 
 Sou-rce of these provisions, 90 
 
 "Infamous crime.'' "Presentment or indictment." 
 "Grand jury." "In time of war or public danger." 
 "Twice in jeopardy." "Life." "Nor be compelled in 
 any criminal case," etc., 90-92 
 
 "Nor be Deprived of Life, Liberty or Property with- 
 out Due Process of Law." Broad scope of the pro- 
 vision, 92 
 
 "Liberty." "Property," 92-93 
 
 "Due process of law" in criminal cases, in civil actions, 
 
 in administrative proceedings. Deportation, etc., .... 93-94 
 
 "Due process of law" as a general limitation on the 
 legislative powers of Congress, 94-95 
 
 The national power of eminent domain, "Taken." 
 
 "Public use." "Just compensation," 9S-96 
 
 Article VI. 
 
 Further guaranties to accused persons : Speedy trial by 
 jury in locality of crime, confrontation, compulsory 
 process for obtaining witnesses, counsel, 97 
 
 "A speedy trial." "Public trial." "State and district." 
 "Confronted with witnesses." "Assistance of coun- 
 sel," 97-98 
 
 Article VII. 
 Trial by jury in civil cases (see Article III, Section 
 
 II, Paragraph 2) 98 
 
 ArtiO/E VIII. 
 Further guaranties to accused persons : Excessive bail 
 
 and "cruel and unusual punishments" ruled out 9* 
 
 Article IX. 
 Unenumerated rights of a fundamental character safe- 
 guarded, 98-<» 
 
xxii Table op Contents 
 
 PAGE 
 
 Article X. 
 
 PACE 
 
 The reserved powers of the States and the people safe- 
 guarded, 99 
 
 The States' Rights interpretation of this Article; the 
 nationalistic interpretaticm. "States." "People," . . 99 
 
 Article XI. 
 
 Suits against States by private persons withdrawn from 
 the judicial power of the United States, 100 
 
 "Commenced or prosecuted" (see Article III, Section 
 II, Paragraph i ) , 100 
 
 When State officers are liable, 100 
 
 Article XII. 
 
 Method of choosing President and Vice-President by 
 the "College of Electors" altered (see Article II, Sec- 
 tion III) , ior-103 
 
 The War Amendments: A "Bill of Rights" for the 
 negro : 
 
 Article XIII. 
 
 Abolishes slavery, 103 
 
 How the Amendment is construed by the Supreme 
 Court, 103-104 
 
 Article XIV. 
 
 Section i : Limits the States : 
 
 National citizenship defined and made primary. All 
 persons guaranteed due process of law and equal pro- 
 tection of the laws from the States 104 
 
 "Subject to the jurisdiction," 104 
 
 "The privileges and immunities of citizens of the United 
 States," . .^ 104-105 
 
 "Due process of law" and State procedure 105 
 
Table op Contents xxiii 
 
 PAGE 
 
 ■"Due Process of L,aw" and the "Pouce Power" oe 
 
 THE States, 105-107 
 
 "Equal Protection of the Laws" and State Legisia- 
 
 tive Powers, 107-108 
 
 Corporations as "persons" under this Section, 108 
 
 Sections 2, 3 and 4: Without practical interest to-day, 108-110 
 Section 5: Possible powers of Congress under, no 
 
 Article XV. 
 
 Confers the ballot upon the negro. How the Amend- 
 ment is circumvented. Inaction of Congress, iio-lll 
 
 Article XVI. 
 
 The Income Tax Amendment (see Article I, Section 
 VIII, Paragraph i), in 
 
 Article XVII. 
 
 Establishes popular election of Senators (see Article 
 I, Section III, Paragraph i), ni-112 
 
 Article XVIII. 
 
 Establishes prohibition, 112 
 
 "Intoxicating liquors." "Concurrent power." (See also 
 Article V of the original Constitution), 11^-113 
 
 [Article XIX.] 
 Will extend the ballot to women. Adoption still pend- 
 ing 113 
 
"In the Constitution of the United States — ^the ntost won- 
 derful instrument ever drawn by the hand of man — there is 
 a comprehension and precision that is unparalleled; and I can 
 truly say that after spending my life in studying it, I still 
 daily find in it some new excellence.'' J. William Johnson, in 
 Blkinson v. Deliesseline, 8 Federal Cases, 593 {1823). 
 
 "When we are dealing with words that are also a con- 
 stituent act, like the Constitution of the United States, we 
 must realize that they called into life a being the develop- 
 ment of which could not have been foreseen completely by 
 the most gifted of its begetters. It was enough for them to 
 realize or to hope that they had created an organism * * ♦. 
 The case before us must be considered in the light of our 
 whole experience, and not merely in that of what was said a 
 hundred years ago." J. Holmes, in Missouri v. Holland, U. 
 S. Game Warden {April 19, i^zo). 
 
 "The subject is the execution of those great powers on 
 which the welfare of a nation essentially depends. * * * 
 This provision is made in a Constitution intended to endure 
 for ages, and, consequently, to be adapted to the various 
 crises of human affairs." Chief Justice Marshall in McCul- 
 ioch V. Maryland, 4 Wheaton, 316 (1819). 
 
The PrEambi,b. 
 
 We, the people of the United States, in 
 order to form a more perfect union, estab- 
 lish justice, insure domestic tranquility, pro- 
 vide for the common defense, promote the 
 general welfare, and secure the blessings of 
 liberty to ourselves and our posterity, do 
 ordain and establish this Constitution for the 
 United States of America. 
 
 While the Preamble is, strictly speaking, no part 
 of the Constitution, it serves two very important 
 ends: first, it indicates the source from which the 
 Constitution comes, from which it derives its claim 
 to obedience, namely, the people of 'the United 
 States as defined below ; secondly, it states the great 
 objects which the Constitution and the Government 
 established by it are expected to promote: national 
 unity, justice, peace at home and abroad, liberty, and 
 the general welfare. 
 
 "We, the people of the United States," in other 
 words, We, the citizens of the United States, 
 whether voters or non-voters. In theory the former 
 represent and speak for the latter ; actually from the 
 very beginning of our national history, the constant 
 tendency has been to extend the voting right more 
 and more widely, until to-day, with woman's suf- 
 frage aJbout to be established by the addition of the 
 
 (I) 
 
2 The Constitution 
 
 Nineteenth Amendment to the Constitution (see 
 p. 1 131), the time is at hand when the terms voter 
 and citizen are to become practically interchangeable 
 as applied toi the American adult. Two ideas have 
 aided this development: first, the idea that every 
 citizen of a republican government is entitled to an 
 immediate voice in the choice of his representatives ; 
 secondly, the idea that a republican government is 
 entitled to consult directly the interests and desires 
 of its citizens and to have the benefit of their views 
 obtained at first hand in shaping its policies. 
 
 Article I. 
 Articles I, II, and III provide t^e framework of 
 the National Government. Article I defines the 
 legislative powers of the United States, which it 
 vests in Congress. 
 
 Section I. 
 All legislative powers herein granted shall 
 be vested in a Congress of the United States, 
 which shall consist of a Senate and House of 
 Representatives. 
 
 This means that no other branch of the Govern- 
 ment except Congress may make laws. 
 
 Section II. 
 [Far. I.] The House of Representatives 
 shall be composed of members chosen every 
 second year by the people of the several 
 
What It Means To-Day 3 
 
 States, and the electors in each State shall 
 have the qualifications requisite for electors 
 of the most numerous branch of the State 
 legislature. 
 
 The term "electors" here means simply voters. 
 
 [Par. 2.] No person shall be a Representar 
 tive who shall not have attained the age of 
 twenty-five years, and been seven years a 
 citizen of the United States, and who shall 
 not, when elected, be an inhabitant of that 
 State in which he shall be chosen. 
 
 The term "inhabitant" means resident. Custom 
 has also established the rule that a Representative 
 shall be a resident of the district from which he is 
 chosen. 
 
 [Par. 3. J Representatives and direct taxes 
 shall be apportioned among the several 
 States which may be included within this 
 Union, according to their respective num- 
 bers, which shall be determined by adding to 
 the whole number of free persons, including 
 those bound to service for a term of years, 
 and excluding Indians not taxed, three-fifths 
 of all other persons. The actual enumeration 
 shall be made within three years after the 
 first meeting of the Congress of the United 
 States, and within every subsequent term of 
 ten years, in such manner as they shall by law 
 direct. The number of Representatives 
 shall not exceed one for every thirty thou- 
 sand, but each State shall have at least one 
 
4 The Constitution 
 
 Representative; and until such enumeration 
 shall be made, the State of New Hampshire 
 shall be entitled to choose three, Massachu- 
 setts eig'ht, Rhode Island and Providence 
 Plantations one, Conmecticut five, New York 
 six, New Jersey four, Pennsylifoma eight, 
 Delaware one, Maryland six, Virginia ten, 
 North Carolina five, South Carolina five, and 
 Georgia three. 
 
 This paragraph embodies one of the famous com- 
 promises of the Constitution. The term "three- 
 fifths of all other persons'' meant three-fifths of 
 all slaves. Amendment XIII has rendered this 
 clause obsolete and Amendment XIV, Section 2, has 
 superseded it (see pages 103 and 108). 
 
 The basis of representation to-day is one for 
 about every 212 thousand, and probably this number 
 will be further increased in consequence of the 
 census of 1920. 
 
 [Par. 4.] When vacancies happen in the 
 representation from any State, the executive 
 authority thereof shall issue writs of election 
 to fill such vacancies. 
 
 [Par. 5. J The House of Representatives 
 shall choose their Speaker and other officers, 
 and shall have the sole power of impeach- 
 ment. 
 
What It Means To-Day c 
 
 The powers of the Speaker have varied greatly at 
 different times. They dep. .d altogether upon the 
 rules of the House. 
 
 The subject of impeachment is dealt with at the 
 end of the next section. 
 
 Section III. 
 
 [Par. I.J The Senate of the United States 
 shall be composed of two Senators from each 
 State, chosen by the legislature thereof, for 
 six years; and each Senator shall have one 
 vote. 
 
 This paragraph has been superseded by the 
 recently adopted Seventeenth Amendment (see 
 pp. 111-112). 
 
 [Par. 2. J Immediately after they shall be 
 assembled in consequence of the first elec- 
 tion, they shall be divided as equally as may 
 be into three classes. The seats of the Sen- 
 ators of the first class shall be vacated at the 
 expiration of the second year, of the sec- 
 ond class, at the expiration of the fourth 
 year, and of the third class, at the expira- 
 tion of the sixth year, so that one-third may 
 be chosen every second year; and if vacan- 
 cies happen by resignation or otherwise dur- 
 ing the recess of the legislature of any State, 
 the executive thereof may make temporary 
 appointments until the next meeting of the 
 
6 The Constitution 
 
 legislature, which shall then fill such vacan- 
 cies. 
 
 This paragraph explains how it came about that 
 one-third of the Senators retire every two years. 
 
 [Par. 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. 
 
 The term "inhabitant", as we have seen, means 
 resident. 
 
 [Par. 4.] The Vice-President of the 
 United States shall be President of the Sen- 
 ate, but shall have no vote, unless they be 
 equally divided. 
 
 This is the source of the so-called "casting vote" 
 of the Vice-President, which has been decisive on 
 more than one critical occasion. For the rest, the 
 powers of the Vice-President as presiding officer 
 depend upon the rules of the Senate. 
 
 [Par. 5.] The Senate shall choose their 
 other officers, and also a President pro tem- 
 pore in the absence of the Vice-President, or 
 when he shall exercise the office of President 
 of the United States. 
 
 See Article II, Section I, Paragraph 6; p. 46. 
 
What It Means To-Day 7 
 
 [Par. 6.] The Senate shall have the sole 
 power to try all impeachments. When sit- 
 ting for that purpose, they shall be on oath 
 or affirmation. When the President of the 
 United States is tried, the Chief Justice shall 
 preside: and no person shall be convicted 
 without the concurrence of two-thirds of the 
 members present. 
 
 Impeachments are charges of misconduct v in 
 office, and are comparable to presentments or in- 
 dictments by a grand jury. They are voted by 
 the House of Representatives by a majority vote, 
 that is, a majority of a quorum (see Section V, 
 Paragraph i, below). 
 
 The persons subject to impeachment are "civil 
 officers of the United States" (see Article II, Section 
 IV; p. 63), which term does not include members 
 of the House or the Senate (see Article I, Section 
 VI, Paragraph 2 ; p. 14) , who, however, are subject 
 to discipline and expulsion by their respective houses 
 ( see Section V; Paragraph 2 ; p . 1 1 ) . 
 
 The charge of misconduct must amount to a 
 charge of "treason, bribery, or other high crimes 
 and misdemeanors" (see Article II, Section IV; 
 p. 63). But the term "high crimes and misde- 
 meanors" is used in a broad sense, being equivalent 
 to lack of that "good behavior" which is specifically 
 required of judges (see Article III, Section I; p. 
 
8 The Constitution 
 
 64). It is for the House of Representatives to 
 judge in the first instance and for the Senate to 
 judge finally whether alleged misconduct on the 
 part of a civil officer of the United States falls with- 
 in the terms "high crimes and misdemeanors", and 
 from this decision there is no appeal 
 
 In 1803 a Federal District Judge was removed 
 from office by the process of impeachment on ac- 
 count of drunkenness and other unseemly conduct 
 on the bench. The defense of insanity was urged 
 in his behalf, but unsuccessfully. 
 
 When trying an impeachment the Senate sits as 
 a court, but has full power in determining its pro- 
 cedure and is not required to disqualify its mem- 
 bers for alleged prejudice or interest. However, 
 "when the President of the United States is tried, 
 the Chief Justice shall preside", the idea being, of 
 course, to guard against any danger of unfairness 
 on the part of the Vice-President, who would suc- 
 ceed to the President if the latter were removed. 
 
 [Par. 7.] Judgment in cases of impeach- 
 ment shall not extend further than to re- 
 moval from office, and disqualification to 
 hold and enjoy any office of honor, trust, or 
 profit under the United States; but the 
 party convicted shall, nevertheless, be liable 
 and subject to indictment, trial, judgment, 
 and punishment, according to law. 
 
What It Means To-Day g 
 
 There have been several convictions upon im- 
 peachment in the course of our national history. 
 Sometimes judgment has extended simply to re- 
 moval from office, sometimes to disqualification for 
 further offiice-holding under the National Govern- 
 ment. 
 
 Since conviction upon impeachment does not con- 
 stitute "jeopardy of life or limb" (see Amendment 
 V ; pp. 90-92) , a person ousted from office by proc- 
 ess of impeachment may still be reached by the or- 
 dinary penalties of the laws for his ofifense, if it was 
 of a penal character. 
 
 Section IV. 
 
 [Par. I.] The times, places, and manner 
 of holding elections for Senators and Rep- 
 resentatives 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 places 
 of choosing Senators. 
 
 To a great extent State legislation under this para- 
 graph has been superseded to-day by that of Con- 
 gress. Elections f6r members of Congress take 
 place on the Tuesday following the first Monday 
 of November of the even years, in districts, "com- 
 posed of a contiguous and compact territory", each 
 district choosing one Representative by a plurality 
 
lo The Constitution 
 
 of the votes cast, which votes must be by written or 
 printed ballot, or by voting machine where this 
 method is authorized by State law. 
 
 [Par. 2. J The Congress shall assemble 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. 
 
 No such law has ever been passed, with the re- 
 sult that a new Congress, though elected in Novem- 
 ber of one year, does not assemble "in regular ses- 
 sion" until December of the next, that is, more than 
 a year after its election. In recent years, however, 
 the President has frequently summoned a new Con- 
 gress in special session some time after the March 
 4th succeeding its election '(see Article II, Section 
 III; pp. 59-60). 
 
 Section V. 
 
 [Par. I.J Each house shall be the judge 
 of the elections, returns, and qualifications 
 of its own members, and a majority of each 
 shall constitute 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 man- 
 ner, and under such penalties, as each house 
 may provide. 
 
What It Means To-Day ii 
 
 If either house doubts the qualifications of any- 
 one who claims to be a member it may suspend him 
 pending investigation, by such vote as the rules of 
 the house require. Moreover, the "qualifications" 
 here ' referred to do not consist exclusively of the 
 qualifications prescribed in Sections II and III above 
 for Representatives and Senators, respectively. 
 "Congress", it has been said, "may impose dis- 
 qualifications for reasons that appeal to the com- 
 mon judgment of mankind." Thus in 1900 the 
 House of Representatives excluded a Representa- 
 tive from Utah as "a notorious, demoralizing and 
 audacious violator of State and Federal laws relat- 
 ing to polygamy and its attendant crimes." 
 
 [Par. 2. J Each house may determine the 
 rules of its proceedings, punish its members 
 for disorderly behavior, and with the concur- 
 rence of two-thirds, expel a member. 
 
 This paragraph describes the power of each house 
 over its members once they have been "seated", 
 that is, have been recognized as duly qualified 
 members. 
 
 [Par. 3.] 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 ayes and nays of the members of either 
 house on any question shall, at the desire of 
 
12 The Constitution 
 
 one-fifth of those present, be entered on the 
 journal. 
 
 The obvious purpose of this paragraph is to make 
 it possible for the people to watch the official con- 
 duct of their Representatives and Senators. 
 
 [Par. 4. J Neither house, during the ses- 
 sion 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. 
 
 In addition to the powers enumerated above, 
 each house also possesses certain other powers which 
 are implied by the fact that it is a deliberative body 
 or which are inherited, as it were, from the Parlia- 
 ment of Great Britain. Each house may pass reso- 
 lutions, either separately or "concurrently" with the 
 other house, with a view to expressing its opinion on 
 any subject whatsoever, and may create committees 
 to deal with the matters which come before it. Also, 
 each house has certain powers of a judicial char- 
 acter over outsiders. If a stranger rudely inter- 
 rupts or physically obstructs the proceedings of one 
 of the houses, he may be arrested and brought be- 
 fore the bar of the house involved and punished by 
 the vote of its members "for contempt" ; but if 
 the punishment takes the form of imprisonment it 
 terminates with the session of the house imposing 
 
What It Means To-Day 13 
 
 it. Also each house has full power to authorize 
 investigaitions by committees looking to possible 
 legislation by Congress, which committees have the 
 right to examine witnesses and take testimony ; and 
 if such witnesses prove recalcitrant, they too may 
 be punished "for contempt", though in this case 
 the punishment is nowadays imposed, under an Act 
 of Congress passed in 1853, by the Supreme Court 
 of the District of Columbia, for "misdemeanor". 
 
 Section VI. 
 
 [Par. I.] The Senators and Representa- 
 tives 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. 
 
 "Treason, felony, and breach of the peace" cover 
 violations of State laws as well as National. The 
 provision concerning "speech or debate" removes 
 every restriction upon freedom of utterance on the 
 floor of the houses by members thereof except that 
 supplied by their own rules of order. 
 
14 The Constitution 
 
 [Par. 2. J No Stenator 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 increased 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. 
 
 Despite this paragraph Presidents have fre- 
 quently appointed members of the houses as com- 
 missioners to act in a diplomatic capacity. The con- 
 stitutionality of such a course is open to grave doubt, 
 to say the least. 
 
 Section VII. 
 
 [Par. I.] All bills for raising revenue 
 shall originate in the House of Representa- 
 tives ; but the Senate may propose or concur 
 with amendments as on other bills. 
 
 This provision is practically without efifect, as 
 the Senate may "amend" a revenue bill from the 
 House by substituting an enjtirely neNv measure 
 under the enacting clause. 
 
 [Par. 2.] Every bill which shall have 
 passed the House of Representatives and the 
 Senate shall, before it become a law, be pre- 
 sented to the President of the United States ; 
 if he approve he shall sign it, but if not he 
 
What It Means To-Day 15 
 
 shall return it, with his objections, to that 
 house in which it shall have originated, who 
 shall enter the ol)jections at larg-e on their 
 journal and proceed to reconsider it. If after 
 such reconsideration two-thirds of that house 
 shall agree to pass the bill, it shall be sent, 
 together with the objections, to the other 
 house, by which it shall likewise be recon- 
 sidered, 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 re- 
 turned 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. 
 
 "Two-thirds" of each "house" means, of course, 
 two-thirds of the same "house" which originally 
 passed the bill, that is, two-thirds of that "house" 
 as organized to do legislative business, which is two- 
 thirds of the quorum thereof (see Section V, Para- 
 graph I ; p. 10). 
 
 Before President Jackson's time it was generally 
 held that the President ought to reserve his veto 
 -power for measures which he deemed unconstitu- 
 
i6 The Constitution 
 
 tional. To-day, however, the President exercises 
 this power as he judges fit.. 
 
 The veto power of the President is interesting to- 
 day from two points of view : first, that of render- 
 ing the growing power of the President more re- 
 sponsible (see Article II, Sections III and IV; pp. 
 59-64) ; secondly, that of establishing an executive 
 budget. Both these problems might be solved to 
 some extent by ' reshaping the President's veto by 
 constitutional amendment. Thus budget reform 
 would obviously be helped by extending the veto 
 to the separate items of appropriation bills and 
 making it absolute in such cases. On the other 
 hand, if the veto were abolished altogether in the 
 case of acts of Congress repealing previous acts 
 which conferred power pn the President or his sub- 
 ordinates, powers thus conferred to meet an emer- 
 gency could be easily withdrawn once the emer- 
 gency was past. 
 
 [Par. 3.] 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 disap- 
 proved bv him, shall be repassed by two- 
 thirds of the Senate and House of Repre- 
 
What It Means To-Day 17 
 
 sentatives, according to the rules and limi- 
 tations prescribed in the case of a bill. 
 
 The phrase "may be necessary" means necessary 
 to effect legislation. Accordingly "votes" taken in 
 either house in the course of elaborating a legis- 
 lative proposition need not be submitted to the 
 President, nor resolutions passed by either house 
 separately or by both houses "concurrently" with 
 a view simply to expressing an opinion or to devis- 
 ing a common program of parliamentary action or 
 to directing the expenditure of money appropriated 
 to the use of the two houses. (See also Article V; 
 pp. 78-79.) 
 
 Section VIII. 
 
 This is the most important section of the Con- 
 stitution since it describes, for the most part, the 
 field within which Congress may exercise its legis- 
 lative power, which is also the field to which the 
 President and the National Courts are in great part 
 confined. 
 
 Congress's legislative powers may be classified as 
 follows: First, its "enumerated" powers, that is, 
 those which are defined rather specifically in para- 
 graphs I to 17, following; secondly, certain other 
 powers which also are specifically delegated in other 
 parts of the Constitution (see Section IV, above; 
 also Articles II, III, IV, and V, passim, and Amend- 
 
1 8 The Constitution 
 
 ments XIII to XIX) ; thirdly, its power conferred 
 by paragraph i8, below, the so-called "coefficient 
 clause" of the Constitution, to pass all laws "neces- 
 sary and proper" to carry into execution any of the 
 powers of the National Government; fourthly, 
 certain inherent powers, that is, powers which be- 
 long to it simply because it is the national legisla- 
 ture. 
 
 In studying each of the first seventeen paragraphs 
 of this section, one should always bear in mind the 
 1 8th paragraph, for this clause furnishes each of 
 the "enumerated" powers of Congress with its 
 second dimension, so to speak. 
 
 [Par. I.J The Congress shall have power 
 to lay and collect taxes, duties, imposts and 
 excises, to pay the debts and provide for the 
 common defense and general welfare of the 
 United States; but all duties, imposts and 
 •excises shall be uniform throughout the 
 United States. 
 
 Complete power of taxation is conferred upon 
 Congress by this paragraph, as well as the largest 
 measure of discretion in the selection of purposes 
 for which the national revenues shall be expended. 
 This complete power "to lay and collect taxes" is, 
 however, later curtailed by the provision that no 
 tax shall be levied on exports (see Section IX, 
 Paragraph 5 ; p. 38). Also, since the United States 
 
What It Means To-Day 19 
 
 guarantees to every State in this Union a "repub- 
 lican form of government" (see Article IV, Sec- 
 tion IV, below) Congress may not impair the essen- 
 tial instruments of State government. 
 
 Furthermore, Congress must levy its taxes in 
 one of two ways : alt "duties, imposts and excises" 
 must be uniform throughout the United States, 
 while, on the other hand, the burden of "direct 
 taxes" must be imposed upon the States in propor- 
 tion to population '(see Section II, Paragraph 3, and 
 Section IX, Paragraph 4; pp. 3 and 38). 
 
 "Duties" are customs duties. If a certain article 
 imported from abroad is taxed 5% at New York 
 it must be taxed at the same rate at San Francisco, 
 etc. 
 
 "Excises" are taxes upon the production, sale, or 
 use of articles; also taxes upon certain privileges 
 allowed by law. If the sale of tobacco is taxed in 
 Kentucky it must be taxed in all the other States 
 and at the same rate. 
 
 "Imposts" is a general term comprehending both 
 duties and excises. 
 
 "Direct taxes" are taxes levied directly upon 
 property "because of ownership." In the famous 
 Income Tax Case of 1895 the Supreme Court ruled 
 that a general income tax was, so far as incomes 
 derived from property were concerned, a "direct 
 tax" and, therefore, one that must be apportioned 
 
20 The Constitution 
 
 according to population. The effect of this decision 
 was overcome in 1913 by the adoption of the Six- 
 teenth Amendment (see p. iii). More recently 
 the Supreme Court has declared that a tax on in- 
 comes must be regarded as a tax on the tise of prop- 
 erty to produce the income and is, therefore, in its 
 nature an excise tax. It follows that income taxes 
 must be levied uniformly throughout the United 
 States. This does not mean, however, that large 
 incomes may not be taxed at a higher rate than 
 small incomes. All that it means is that incomes of 
 the same size must be taxed at the same rate wher- 
 ever they are found within the United States. 
 
 The Excess Profits Tax is a kind of income tax. 
 
 While the raising of revenue is the primary pur- 
 pose of taxation it does not have to be its only pur- 
 pose. Thus Congress, by laying down certain regu- 
 lations for keeping the traffic in narcotic drugs open 
 and above-board and thereby easily taxable, has 
 brought this traffic under national control. Fur- 
 thermore, there are some businesses which Con- 
 gress may tax so heavily as to drive them out of 
 existence, one example being the production of 
 white sulphur matches, another the sale of oleo- 
 margarine colored to look like butter. Whether 
 Congress has the right to levy a special tax upon 
 the products of mines and factories employing child 
 labor is a question now before the Supreme Court. 
 
What It Means To-Day 21 
 
 (See also "Due process of law" in connection with 
 Amendment V; pp. 94-95.) 
 
 [Par. 2.] To borrow money on the credit 
 of the United States ; 
 
 This paragraph, together with the one just dis- 
 cussed, and Paragraphs 5 and 6 following comprise 
 what may be called the fiscal powers of the National 
 Government. By virtue of these, taken along with 
 the "necessary and proper" clause below, Congress 
 has the power to charter national banks, to put their 
 functions beyond the reach of the taxing power of 
 the States, to issue paper money and confer upon 
 it the quality of legal tender for debts, to tax the 
 notes of issue of State banks out of existence, to 
 confer on national banks the powers of trust com- 
 panies, to establish a "Federal Reserve System," 
 etc. 
 
 [Par. 3. J To regulate commerce with for- 
 eign nations and among the several States, 
 and with the Indian tribes ; 
 
 "Commerce" is traffic, that is, the buying and 
 selling of commodities, and includes as an important 
 incident the transportation of such commodities 
 from buyer to seller. But the term has also been 
 defined much more broadly. Thus in the famous 
 case of Gibbons v. Ogdeh, Chief Justice Marshall 
 said: "Commerce undoubtedly is traffic, but it is 
 
22 The Constitution 
 
 something more — it is intercourse"; and on the 
 basis of this definition the Supreme Court has held • 
 that the mere passage of people from one State to 
 another, as well as the sending' of intelligence, as by 
 telegraph, from one State to another, is "commerce 
 among the States." 
 
 "Among the States," that is, involving more 
 States than one; in other words, interstate in con- 
 trast to intrastate or local commerce. 
 
 The power "to regulate" is the power to control, 
 to govern, to encourage, to promote, and in proper 
 cases to prohibit. 
 
 As a matter of fact. Congress has exercised its 
 powers over interstate commerce, for the most part, 
 only over interstate transportation, and especially 
 transportation by rail. But in this field its control 
 over commerce has developed tremendously within 
 the last few years. 
 
 Since the power to regulate is the power to pro- 
 mote, Congress may build railways and bridges, or 
 charter corporations and authorize them to build 
 railways and bridges ; and it may vest such corpo- 
 rations with the power of eminent domain and ren- 
 der their franchises immune from State taxation. 
 For the same reason, it has the broadest discretion 
 in dealing with any sort of emergency which threat- 
 ens to stop interstate transportation. 
 
What It Means To-Day 23 
 
 Again, Congress may regulate the rates of trans- 
 portation from one State to another, or authorize 
 its agent, the Interstate Commerce Commission, to 
 do so. But the rates set must yield a fair return to 
 the carrier on its property, since this property is 
 being used in the service of the public, and to com- 
 pel its public use without just compensation would 
 amount to confiscation (see the "Private property" 
 clause of Amendment V ; pp. 95-96) . 
 
 Furthermore, the Supreme Court has recently 
 held that "wherever the interstate and intrastate 
 transactions of carriers are so related that the gov- 
 ernment of the one involves the control of the 
 other," Congress is entitled to regulate both 
 classes of transactions. In other words, whenever 
 circumstances make it "necessary and proper" for 
 Congress to regulate local transportation in order 
 to make its control of interstate transportation 
 really effective, it may do so. Likewise, the Court 
 has held that the Interstate Commerce Commission, 
 and therefore, Congress, may take account of the 
 intention of a consignee to send certain goods out- 
 side the State and on that ground regulate the trans- 
 portation of such goods to him from points within 
 the State. By the logic of these cases Congress, it 
 would seem, could govern every stage in the pur- 
 chase and sale of goods finally intended for a pur- 
 chaser in a State different from that of the prcn 
 
24 The Constitution 
 
 ducer, or, indeed, govern sales generally in the case 
 of commodities the local and interstate traffic in 
 which are not practically distinguishable. 
 
 But not only may Congress regulate the act of 
 transportation from one State to another, but it 
 may also regulate the instruments and agents 
 thereof. Thus, by the Federal Employers' Liability 
 Act of 1908, Congress enacted the rule of liability 
 for railways engaged in interstate commerce to 
 those of their employees who are injured while em- 
 ployed in connection with such commerce. In ap- 
 plying this act the Supreme Court has held a rail- 
 way liable to an employee who was injured while 
 carrying bolts to be used in repairing a bridge 
 which was a part of a highway of interstate com- 
 merce. The logic of this case, too, if applied to 
 "commerce" in the sense of traffic, might lead to 
 interesting results. 
 
 As was indicated above, occasions may arise when 
 the power to regulate "commerce among the 
 States" becomes the power to prohibit it. Thus the 
 safety of interstate commerce as a whole may re- 
 quire that certain portions of it be prohibited; as, 
 for instance, the shipment of high explosives, ex- 
 cept under stringent safeguards. Moreover, Con- 
 gress may prevent the facilities of interstate com- 
 merce from being abused and made instruments 
 of evil, either material or moral. Thus, it has 
 
What It Means To-Day 25 
 
 prohibited the transportation of women from one 
 State to another for immoral purposes; also of 
 lottery tickets from one State to another; also of 
 impure foods. On the other hand, it was recently 
 held that Congress may not close the channels of 
 interstate commerce to the products of factories 
 and mines which employ children under other than 
 stated conditions. In this case the Court felt that 
 the act of Congress was aimed not at a traffic evil 
 in itself, as for example, the interstate traffic in 
 lottery tickets, but at a matter exclusively within 
 the control of the States, namely, the employ- 
 ment of certain kinds of labor in the business of 
 manufacturing, etc. The Court's view of the mat- 
 ter is, at least, supported by the fact that while the 
 vast majority of people regard the lottery busi- 
 ness as utterly bad, they are quite willing to pur- 
 chase or sell the products of child labor, even 
 though they condemn child labor itself. In other 
 words, the connection between the employment of 
 child labor and traffic in the products of such labor 
 seems too indirect, too remote, to be taken account 
 of ; and this was exactly the view of the Court. 
 
 Congress's power to prohibit foreign commerce, 
 as by embargoes or restrictive tariffs, etc., is ab- 
 solute, since in this field the national power over 
 commerce is supplemented by the national control 
 over our foreign relations. 
 
26 The Constitution 
 
 The power of Congress to regulate interstate 
 and foreign commerce is exclusive, and, therefore, 
 may not be exercised by the States to any extent, 
 even though Congress has not acted. The para- 
 graph under discussion is, accordingly, not only a 
 source of great power to the Natiorial Government, 
 but it is also an important restriction on State legis- 
 lative power. 
 
 Since the States may not tax interstate or for- 
 eign commerce, they may not tax the carrying 
 of goods from one State to another, nor the re- 
 ceipts from such carriage, nor the negotiation of 
 sales when the orders are to be filled by goods 
 brought from other States. Also, they may not 
 tax goods imported from abroad so long as these 
 remain in the original package in the hands of the 
 importer. The States may, however, tax the in- 
 struments of interstate commerce at a fair valua- 
 tion as so much property within the State and 
 receiving its protection. It is, of course, for the 
 Supreme Court to say finally whether a State tax 
 infringes upon Congress's power to regulate com- 
 merce. 
 
 States have also their so-called "police power"; 
 that is, the power "to promote the health, safety, 
 morals and general welfare." Laws passed in 
 exercise of this power may often aflfect commerce 
 incidentally, but if the resultant burden is not "raa- 
 
What It Means To-Day 27 
 
 terial" such laws are sustained by the Court. Thus, 
 a State may require all engineers on railways, even 
 those running interstate trains, to be tested for 
 color-blindness, or may forbid the sale of oleo- 
 margarine colored to imitate butter, applying the 
 law to oleomargarine brought from without the 
 State, and illustrations might be multiplied. But 
 it is always within the power of Congress to remove 
 even such incidental burdens upon interstate com- 
 merce, while, to repeat what was said above, no 
 "direct" burdens may be imposed by State laws 
 upon interstate commerce even in the absence of 
 Congressional regulation. Thus, a State may not 
 regulate rates of transportation in the case of goods 
 being brought from or carried to points outside the 
 State; and while it may regulate rates for goods 
 bound simply from one point to another within its 
 own borders, yet even such rates are subject to be 
 set aside by national authority if they discriminate 
 against or burden interstate commerce. 
 
 Furthermore, such rates are brought by the "due 
 process of law" clause of the Fourteenth Amendment 
 under the control of the rule stated above for rates 
 set by Congress and the Interstate Commerce Com- 
 mission ; that is, they must yield a fair return to the 
 carrier on the value of its property (see p. 105). 
 
 [Par. 4. J To establish an uniform rule of 
 naturalization, and uniform laws on the sub- 
 
28 The Constitution 
 
 ject of bankruptcies throug'hout the United 
 States ; 
 
 Congress having exercised its power under both 
 clauses of this paragraph, the States have no longer 
 any power to deal with the subject matter of 
 either. (See Amendment XIV, Section i ; p. 104.) 
 
 [Par. 5.] To coin money, regulate the 
 value thereof, and of foreign coin, and fix 
 the standard of weights and measures ; 
 
 [Par. 6.] To provide for the punishment 
 of counterfeiting the securities and current 
 coin of the United States; 
 
 Paragraph 2 above. 
 
 [Par. 7.] To establish post-offices and 
 post-roads ; 
 
 Congress's powers under this and the "commerce 
 clause" together would enable it to take over the 
 railroad and telegraph lines, in return for "just 
 compensation" (see Amendment V, at p. 95). 
 
 From, its power to establish post-offices the Na- 
 tional Government derives its power to carry the 
 mails, and this power carries with it the power to 
 protect the mails and their quick and efficient dis- 
 tribution, as well as the power to prevent the postal 
 facilities from being used for evil purposes. (See 
 Amendment I y pp. 86-88. ) 
 
What It Means To-Day 29 
 
 [Far. 8.] 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 dis- 
 coveries ; 
 
 By virtue of this clause Congress has enacted 
 various patent and copyright lawrs and has author- 
 ized international agreements on the subject of 
 copyrights and patents. 
 
 [Par. 9.] To constitute tribunals inferior 
 to the Supreme Court ; 
 
 See Article III, Section I ; p. 64. 
 
 [Par. 10.] To define and punish piracies 
 and felonies committed on the high seas and 
 offenses against the law of nations; 
 
 By virtue of this and the following paragraph 
 Congress is made the final authority in defining the 
 Law of Nations for the United States. 
 
 [Par. II.] To declare war, grant letters 
 of marque and reprisal, and make rules con- 
 cerning captures on land and water ; 
 
 This paragraph, together with Paragraphs 12, 
 13, 14, 15, 16 and 18 following, and Paragraph i 
 of Section II of Article II, comprise what are or- 
 dinarily called the "war powers" of the United 
 States. It must be remembered that even before 
 
30 The Constitution 
 
 the Constitution was adopted the American people 
 had asserted their right to wage war as a unit. 
 It has accordingly been suggested that the Na- 
 tional Government does not get its power to wage 
 war from the Constitution, but that it possesses it 
 as an inherent attribute of national sovereignty, 
 and that what the above-mentioned clauses of the 
 Constitution do is simply to regulate in some par- 
 ticulars the exercise of this power. From whatever 
 source derived, the power of the National Govern- 
 ment to wage war and, therefore, to take measures 
 to wage it successfully is a power of vast scope, even 
 as it affects the American people, while as against 
 the enemies of the United States it is limited only 
 by the rules of International Law. (See further 
 Article II, Section II, Paragraph I, and Section III ; 
 pp. 49 and 60.) This power, moreover, is ex- 
 clusive in the National Government, for the 
 States have no power to wage war "unless actu- 
 ally invaded or in such danger as will not admit of 
 delay" (see Section X, Paragraph 3; p. 41). 
 
 Congress's power "to declare war" is the same 
 power which, in 1789, belonged to the King of 
 Great Britain. It was rightly felt that in a repub- 
 lican government this power must be lodged with 
 all the representatives of the people. Nevertheless, 
 since that date the President alone has come to be 
 recognized as also having a kind of war-declaring 
 
What It Means To-Day 31 
 
 power. Thus, if a nation actually begins war upon 
 the United States, the President may recognize 
 the fact and take such action as the situation de- 
 mands and the acts of Congress allow. Also, the 
 President, because of his initiative in the field of 
 foreign relations, may easily produce a situation 
 leading logically to war. Yet, in both these cases 
 the President's action is necessarily provisional 
 only; the final issue lies with Congress, which con- 
 trols the purse, and so far as the Constitution is 
 concerned. Congress is entirely free to choose 
 whether it will back up the President's action 
 or not. 
 
 The question has recently been raised whether 
 Congress may declare peace. Unquestionably, it 
 may repeal its authorization of hostilities, which is 
 all that is meant legally by the term "war"; and 
 while such repeal would not bring about peace in a 
 way to bind the other party to the war, it would pro- 
 duce a technical condition of peace sO' far as the 
 United States was concerned, of which both the 
 courts and the Executive would have to take ac- 
 count. 
 
 "Letters of marque and reprisal" were formerly 
 issued to privateers. 
 
 [Par. 12.] To raise and support armies, 
 but no appropriation of money to that use 
 shall be for a longer term than two years ; 
 
32 The Constitution 
 
 [Par. 13.] To provide and maintain a 
 navy; 
 
 Congress may raise military and naval forces 
 either by authorizing a call for volunteers or by 
 conscription. Compulsory military service does not 
 violate the Thirteenth Amendment, or any other 
 part of the Constitution. Liability to it is one 
 of the responsibilities of national citizenship. (See 
 Amendment XIII ; p. 103.) 
 
 In its measures for raising and supporting arm- 
 ies and for providing a navy, Congress may dic- 
 tate the purposes for which these may be used. 
 But so far as the statutes do not limit his dis- 
 cretion, and so long as he does not exceed the ap- 
 propriations voted by Congress, the President may 
 employ the armed forces of the United States as 
 may seem to him best for the purpose of enforcing 
 the laws of the United States and of protecting the 
 rights of American citizens abroad under Inter- 
 national Law. 
 
 The limitation of appropriations for the army 
 to two years reflects the American fear of stand- 
 ing armies. For the navy, on the other hand, 
 building programs may be laid down to run over 
 several years. 
 
 [Par. 1 4. J To make rules for the govern- 
 ment and regulation of the land and naval 
 forces ; 
 
What It Means To-Day 33 
 
 It is by virtue of this paragraph that Congress 
 has enacted the so-called Articles of War and 
 Articles for the Government of the Navy, which 
 constitute the basis of military and naval discipline. 
 
 [Par. 15.] To provide for calling forth 
 the militia to execute the laws of the Union, 
 suppress insurrections, and repel invasions; 
 
 [Par. 16.] To provide for organizing, 
 arming and disciplining the militia, and for 
 governing such part of them as may be em- 
 ployed in the service of the United States, 
 reserving to the States respectively the ap- 
 pointment of the officers, and the authority 
 of training the militia according to the dis- 
 cipline prescribed by Congress; 
 
 For many years the militia was regarded as a 
 purely State affair. By the National Defense Act 
 of June 3, 1916, however, "the militia of the United 
 States" is defined as consisting "of all able-bodied 
 male citizens of the United States" and all similar 
 declarants, between the ages of 18 and 25. The 
 same act also provides for the nationalization of 
 the National Guard, which is recognized as con- 
 stituting a part of the militia of the United States, 
 and provides for its being drafted into the mili- 
 tary service of the United States in certain contin- 
 gencies. The act rests on the principle that the 
 right of the States to maintain a militia is always 
 subordinate to the power of Congress "to raise and 
 
34 The Constitution 
 
 support armies." (See also Section lo, Paragraph 
 
 3; P-4I-) 
 
 [Par. 1 7. J To exercise exclusive legisla- 
 tion in all cases whatsoever over such dis- 
 trict (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 pur- 
 chased by the consent of the legislature of 
 the State in which the same shall be, for the 
 erection of forts, magazines, arsenals, dock- 
 yards, and other needful buildings; and 
 This paragraph is, of course, the source of Con- 
 gress's power to govern the District of Columbia. 
 
 [Par. 1 8. J To make all laws which shall 
 be necessary and proper for carrying into 
 execution the foregoing powers, and all 
 other powers vested by this Constitution in 
 the Government of the United States, or in 
 any ■ department or ofificer thereof. 
 What is a "necessary and proper" law under this 
 paragraph? This question arose in the great case 
 of McCulloch v. Maryland, and was answered by 
 Chief Justice Marshall thus : "Let the end be 
 legitimate, let it be within the scope of the Con- 
 stitution, and all means which are appropriate, 
 which are plainly adapted to that end, which are 
 not prohibited, but consist with the letter and spirit 
 of the Constitution, are constitutional." The basis 
 
What It Means To-Day 35 
 
 of this declaration was furnished by three ideas: 
 First, that the Constitution was ordained by the 
 people and so was intended for their benefit; sec- 
 ondly, that it was "intended to endure for ages to 
 come and, consequently, to be adapted to the vari- 
 ous crises of human forces" ; and thirdly, that while 
 the National Government is one of enumerated 
 powers, it is sovereign as to those powers. Mar- 
 shall's view was opposed by the theory that the 
 Constitution was a compact of sovereign States 
 and so should be strictly construed, in the inter- 
 est of safeguarding the powers of those States. 
 From this point of view the "necessary and proper" 
 clause was urged to be a limitation on Congress's 
 powers, and was interpreted as meaning, in sub- 
 stance, that Congress could pass no laws except 
 those which were "absolutely necessary" to carry 
 into effect the powers of the General Government. 
 It is hardly necessary to say that Marshall's doc- 
 trine is today the accepted doctrine. (See also 
 Article VI, Paragraph 2, and Amendment X; pp. 
 81-82 and 99.) 
 
 This clause of the Constitution is also important 
 because of the large measure of control which it 
 gives Congress over the powers of the other de- 
 partments of government. It was the theory of the 
 framers of the Constitution that ours should be a 
 government founded on law. 
 
36 The Constitution 
 
 Among the powers of the National Government 
 are certain ones that have sometimes been assigned 
 to it simply on the score that they are powers "inher- 
 ent in a national government," or "inherent in 
 sovereignty"; for instance, the power to acquire 
 and govern territories, the power to exclude aliens, 
 and, as we have just seen, the power to carry 
 on war. 
 
 Section IX. 
 
 The purpose of this section is to impose certain 
 limitations on the powers of Congress. 
 
 [Par. I.] 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. 
 This paragraph referred to the African slave 
 trade and is, of course, now obsolete. 
 
 [Par. 2.] 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. 
 The writ of habeas corpus is, perhaps, the most 
 important single safeguard of personal liberty. It 
 dates from, at latest, the 17th Century, and it is in- 
 teresting to note that the Constitution simply 
 
What It Means ToDay 37 
 
 assumes that, of course, it will be a part of the law 
 of the land. The importance of the writ is that it 
 enables anybody who has been put under personal 
 restraint to secure immediate inquiry by the courts 
 into the cause of his detention, and if he is not 
 detained for good cause, his liberty. 
 
 At the time of the Civil War President Lincoln 
 temporarily suspended the writ without author- 
 ization of Congress, but admitted the likelihood 
 that he had violated the Constitution, as undoubt- 
 edly he had. Subsequently Congress passed a law 
 authorizing him to suspend the writ in certain 
 cases. 
 
 The danger of a suspension of the writ is, of 
 course, that the officers of the Government will 
 make unwarranted arrests. The occasions when the 
 privilege of the writ may be suspended are clearly 
 occasions when "the public safety may require" that 
 the Government should have the power to make 
 arrests on suspicion, which they would, perhaps, 
 find it difficult to back up by evidence. 
 
 [Par. 3. J No bill of attainder or ex post 
 facto law shall be passed. 
 
 A "bill of attainder" is a legislative act charging 
 somebody with treason and pronouncing a penalty 
 upon such person, usually the penalty of death. 
 Such acts were occasionally passed by the Eng- 
 
38 The Constitution 
 
 lish Parliament down to the close of the 17th 
 century (see also Article III, Section III, Para- 
 graph 2; p. 73). 
 
 An "ex post facto law" is a law which imposes 
 penalties retroactively; that is, upon acts already 
 done, or which increases the penalty for such 
 acts. 
 
 [Par. 4.] No capitation or other direct tax 
 shall be laid, unless in proportion to the cen- 
 sus or enumeration hereinbefore directed 
 ^ tojap^be taken. 
 
 A "capitation" tax is a poll tax. 
 "Direct tax" was defined under Section VIII, 
 Paragraph i, above. 
 
 [Par. 5.] No tax or duty shall be laid on 
 articles exported from any State. 
 
 "Exported" means exported to a foreign country. 
 
 [Par. 6.] No preference shall be given by 
 any reei-ilation 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. 
 
 [Far. 7. J No money shall be drawn from 
 the Treasury but in consequence of appro- 
 priations made by law ; and a regular state- 
 ment and account of the receipts and ex- 
 penditures of all public money shall be pub- 
 lished from time to time. 
 
What It Means To-Day 39 
 
 This paragraph, by the support it lends to Con- 
 gress's control of the purse, also lays down one of 
 the most important safeguards of the Constitution. 
 The official whose business it is to see that it is lived 
 up to is the Comptroller of the Treasury. 
 
 [Par. 8.] No title of nobility 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 Con- 
 gress, accept of any present, emolument, 
 office or title of any kind whatever from any 
 king, prince or foreign State. 
 
 Section X. 
 The purpose of this section is to impose certain 
 restrictions on the States, principally in the interest 
 of giving the National Government exclusive 
 control in the field of foreign relations, of war, of 
 currency and of commercial regulation. 
 
 [Par. I.] No State shall enter into any 
 treaty, alliance or confederation; grant let- 
 ters of marque and reprisal; coin money, 
 emit bills of credit ; make anything but gold 
 and silver coin a tender in payment of debts ; 
 pass any bill of attainder, ex post facto law 
 or law impairing the obligation of contracts, 
 or grant any title of nobility. 
 
 A "treaty" is different from an "agreement" (see 
 Paragraph 3). The purpose of an agreement is 
 
40 The Constitution 
 
 the performance of a specific act; the purpose of 
 a treaty is the establishment of a permanent con- 
 dition of things or the setting up of a rule of action 
 which will operate until the treaty comes to an end. 
 
 "Bills of credit" are bills based on the credit of 
 the State. 
 
 A "law impairing the obligation of contracts" 
 is a law weakening the contract in some way. The 
 clause was framed more especially for the purpose 
 of preventing the States from passing laws to re- 
 lieve debtors of their legal obligation to pay their 
 debts, the power to afford such relief having been 
 transferred to the National Government (see Sec- 
 tion VIII, Paragraph 4; p. 27). Later, the Su- 
 preme Court under Chief Justice Marshall extended 
 the protection of the clause to public grants, first of 
 land, then of charters to corporations. But even 
 with this extension the clause no longer interferes 
 seriously with the power of the States to protect the 
 public health, safety, and morals, or even that larger 
 interest which is called the "general welfare", for 
 the simple reason that the State has no right to 
 bargain away this power. Thus the mere fact that 
 a corporation has a charter enabling it to man,u- 
 facture intoxicating beverages will not protect it 
 from the operation of a prohibition enactment. 
 Similarly, a contract between two persons by which 
 they agree to buy and sell intoxicating beverages 
 
What It Means To-Day 41 
 
 would be immediately cancelled by a prohibition 
 law going into effect. 
 
 [Par. 2.] No State shall, without the con- 
 sent of Congress, lay any imposts or duties 
 on imports or exports, except what may be 
 absolutely necessary for executing its inspec- 
 tion 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 control of the 
 Cong'ress. 
 
 "Imports" and "exports" refer to goods brought 
 from or destined to foreign countries. A tax on 
 imports while they are still in the original package 
 and in the hands of the importer is prohibited by 
 this clause. 
 
 [Par. 3. J No State shall, without the con- 
 sent of Congress, lay any duty of tonnage, 
 keep troops or ships 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. 
 
 Does the National Guard consist of "troops" in 
 the sense of this clause? The authors of the Na- 
 tional Defense Act of 1916 evidently thought so. 
 (See Section VIII, Paragraphs 15 and 16; p. 33.) 
 
42 The Constitution 
 
 Article II. 
 
 This article makes provision for the executive 
 power of the United States, which it vests in a 
 
 single individual, the President. 
 
 'i .1 .J, 
 Section I. 
 
 [Par. I.J The executive power shall be 
 vested in a President of the United States of 
 America. He shall hold his ofi&ce during the 
 term of four years, and together with the 
 Vice-President, chosen for the same term, 
 be elected as follows : 
 
 "The executive power" is primarily the power 
 and duty of the President to "take care that the 
 laws be faithfully executed" (see Section III; p. 
 59). In addition, however, certain other powers 
 are conferred upon the President in the following 
 paragraphs, powers which in 1789 were part of the 
 prerogative of the British monarch. 
 
 The President's term of four years begins on 
 March 4 of the year following each leap-year, be- 
 cause March 4, 1789, was the date which the old 
 Congress of the Confederation set for the Constitu- 
 tion to go into ' effect. , 
 
 It will be noticed that the Constitution makes no 
 provision regarding the re-election of a President. 
 The understanding which limits any individual's 
 
What It Means To-Day 43^ 
 
 tenure of the office to two terms rests exclusively 
 upon custom. 
 
 [Par. 2.] 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 entitled in the Con- 
 gress; but no Senator or Representative, or 
 person holding an office of trust or profit 
 under the United States, shall be appointed 
 an elector. 
 
 This and the following paragraph provide for 
 the so-called "Electoral College". It was supposed 
 that the members of this College would exercise 
 their individual judgments in their choice of a 
 President and Vice-President, but since 1796 the 
 Electors have been no more than party dummies. 
 The intervention of the College in the election of 
 the President is, however, still a matter of some 
 importance, since it permits the choice of President 
 to be by States rather than by the country at large, 
 with the result that the successful candidate may 
 have considerably less than a majority, or even 
 than a plurality, of the popular votes cast. Thus, 
 suppose that New York and Pennsylvania were the 
 only two States in the Union, and that New York 
 with 45 electoral votes went Democratic by a nar- 
 row margin, while Pennsylvania with 38 electoral 
 
44 The Constitution 
 
 votes and with a somewhat smaller population than 
 New York went overwhelmingly Republican. The 
 Democratic candidate would be elected, though the 
 Republican candidate would have much the larger 
 popular vote. 
 
 Down to 1832 Presidential Electors were gen- 
 erally chosen by the State legislatures themselves. 
 To-day they are universally chosen by popular vote 
 and, as was implied above, on State-wide tickets. 
 
 [Par. 3.] 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 them- 
 selves. 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 government of the United States, directed 
 to the President of the Senate. The Presi- 
 dent 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 Presi- 
 dent, if such number be a majority of the 
 whole number of electors appointed; and if 
 there be more than one who have such ma- 
 jority, and have an equal number of votes, 
 then the House of Representatives shall im- 
 mediately choose by ballot one of them for 
 President ; and if no person have a majority, 
 
What It Means To-Day 45 
 
 then from the five highest on the list the said 
 House shall in like manner choose the Presi- 
 dent. But in choosing the President the 
 votes shall be taken by States, the repre- 
 sentation 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 choose from them by 
 ballot the Vice-President. 
 
 This paragraph has been superseded by Amend- 
 ment XII (see pp. 101-103). 
 
 [Par. 4.] The Congress may determine 
 the time of choosing the electors and the day 
 on which they shall give their votes, which 
 day shall be the same throughout the United 
 States. 
 
 Under the act of Congress the Electors are 
 chosen on the Tuesday following the first Monday 
 in November of every fourth year, the Electors of 
 each State meet and cast their votes on the second 
 Monday of the following January, and Congress 
 meets to count the votes in the Hall of the House 
 of Representatives at i o'clock P. M., of the second 
 Wednesday in the ensuing February. 
 
46 The Constitution 
 
 [Par. 5.] No person except a natural- 
 born citizen, or citizen of the United States 
 at the time of the adoption of this Constitu- 
 tion, shall be eligible to the office of Presi- 
 dent; 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. 
 
 Would a person born abroad of American parents 
 be eligible to the office of President? This question 
 has never been answered. (See the opening clause 
 of Section I of the Fourteenth Amendment; p. 
 104.) 
 
 Does "fourteen years a resident within the 
 United States" mean residence immediately pre- 
 ceding election to office? This question also has 
 never been authoritatively determined. 
 
 [Par. 6. J In case of the removal of the 
 President from office, or of his death, resig- 
 nation, or inability to discharge the powers 
 and duties of the said office, the same shall 
 devolve on the Vice-President, and the Con- 
 gress 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 Presi- 
 dent, and such officer shall act accordingly 
 until the disability be removed or a President 
 shall be elected. 
 
What It Means To-Day 47 
 
 By the Presidential Succession Act of 1886 Con- 
 gress has provided that in case of the disqualifica- 
 tion of both President and Vice-President the 
 Secretary of State shall act as President provided 
 he possesses the qualifications laid down in Para- 
 graph 5 above; if not, then the Secretary of the 
 Treasury, etc. In any case, the officer of the Cabi- 
 net who acts as President still retains his Cabinet 
 post, since it is by virtue of his holding such post 
 that he is called upon to act as President. 
 
 Congress has never passed any law for deter- 
 mining when a President is unable "tO' discharge 
 the powers and duties" of his office so that the 
 Vice-President should take his place, but there 
 is httle doubt that it might do so. A recent sug- 
 gestion is that this function should be devolved 
 upon the Cabinet, which being made up of the 
 President's appointees, would probably be disposed 
 to give his side of the case fair consideration. 
 
 Another question which the first clause of this 
 paragraph leaves unsettled is whether the Vice- 
 President, when he succeeds to "the powers and 
 duties of the said office", becomes President. In 
 all cases hitherto the occasion of the Vice- 
 President's taking over the Presidential office has 
 been the death of the President, and the Vice- 
 President has promptly assumed the title of the 
 President and, of course, has *mained in office 
 
48 The Constitution 
 
 until the end of the term. Probably these prece- 
 dents also settle the question for those cases in 
 which the Vice-President might be called upon to 
 discharge the duties of the Presidential office on 
 account of the President's resignation or removal. 
 But surely it cannot have been the intention of the 
 framers of the Constitution that a President should 
 be permanently displaced for a merely temporary 
 disability. 
 
 [Par. 7. J The President shall, at stated 
 times, receive for his services a compensa- 
 tion, which shall neither be increased nor 
 diminished during the period for which he 
 may have been elected, and he shall not re- 
 ceive within that period any other emolu- 
 ment from the United States or any of them. 
 
 Is the President's salary diminished by being 
 taxed by a general income tax of the National 
 Government? There is no good reason why the 
 President and other officers should not discharge the 
 general duties of good citizenship unless their doing 
 so would really hamper them in the performance of 
 their ofifiicial duties. 
 
 [Par. 8.] Before he enter on the execu- 
 tion 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 Presi- 
 
What It Means To-Day 49 
 
 dent of the United States, and will to the 
 best of my ability preserve, protect and de- 
 fend the Constitution of the United States." 
 
 The fact that the President takes an oath "to 
 preserve and protect" the Constitution does not 
 authorize him to exceed his own powers under the 
 Constitution on the pretext of preserving and pro- 
 tecting- it. The President may veto a bill on the 
 ground that in his opinion it violates the Constitu- 
 tion, but if the bill is passed over his veto, he must 
 regard it as law until it is set aside by an authorita- 
 tive judicial decision, since the power of interpret- 
 ing the law, and therefore the Constitution, belongs 
 to the Judicial Department of Government and not 
 to the Executive Department. 
 
 Section II. 
 
 [Par. I.] The President shall be Com- 
 mander-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 principal 
 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 
 ofifenses against the United States, except in 
 cases of impeachment. 
 
50 The Constitution 
 
 The power of the President as Commander-in- 
 Chief is primarily that of military command in war 
 time, and is no greater for being vested in the 
 President than it would be if it were vested in any 
 other person. Since, however, it is vested by the 
 Constitution in the President, it may not be trans- 
 ferred to another person by Congress. Incidentally, 
 the Commander-in-Chief possesses, as against the 
 persons and property of enemies of the United 
 States encountered within the theatre of military 
 operations, all the powers allowed a military com- 
 mander in such cases by the Law of Nations. 
 President Lincoln's famous Proclamation of Eman- 
 cipation rested upon this ground. It was effective 
 within the theatre of military operations while the 
 war lasted, but no longer. (See Article IV, Sec- 
 tion III, Paragraph 2, and Section IV; pp. 76-78.) 
 
 "The principal officers" "of the executive de- 
 partments" have, since Washington's day, com- 
 posed the President's Cabinet, a body utterly un- 
 known to the Constitution. They are invariably 
 of the President's own party and loyalty to the 
 President is an indispensable qualification, al- 
 though, of course, such loyalty may not be carried 
 to the extent of violating the law. 
 
 It has been frequently suggested, once by a 
 joint committee of Congress, that the members of 
 the Cabinet should be given seats on the floors of 
 
What It Means To-Day 51 
 
 Congress, and permitted to speak there. There is 
 obviously nothing in the Constitution which stands 
 in the way of this being done at any. time. 
 
 A "reprieve" suspends the penalties of the law; 
 a "pardon" remits them. 
 
 "Offenses against the United States" are offenses 
 against the national laws, not State laws. 
 
 Pardons may be absolute or conditional and may 
 be conferred upon specific individuals or upon 
 classes of offenders, as by amnesty ; a special par- 
 don, however, has to be formally accepted by the 
 person to whom it is proffered in order to be ef- 
 fective. Pardons may issue at any time after the 
 offense pardoned has been actually committed but 
 not before the offense has been committed, for that 
 would be to give the President a power to set the 
 laws .aside, that is, a dispensing power. 
 
 It is sometimes said that a pardon "blots out of 
 existence the guilt" of the offender, but such a view 
 is absurd. A pardon cannot qualify a man for a 
 post of trust from which those convicted of crime 
 are by law excluded. In such a case the pardoned 
 man is in precisely the same situation as a man 
 who has served his sentence. The law will punish 
 him no further for his past offense, but neither will 
 it ignore altogether the fact that he committed it. 
 
 Although Congress may not interfere with the 
 President's exercise of the pardoning power, it may 
 
52 The; Constitution 
 
 itself, under the "necessary and proper" clause, 
 enact amnesty laws remitting penalties incurred 
 under the naticmal statutes. 
 
 [Par. 2, CI. I.J He shall have power, by 
 and with the advice and consent of the Sen- 
 ate, to make treaties, provided two-thirds of 
 the Senators present concur ; 
 
 It is usual to regard the process of treaty-making 
 as falling into two parts, negotiation and ratifica- 
 tion, and to assign the former to the President ex- 
 clusively and the latter exclusively to the Senate. 
 In fact, however, it will be observed, the Constitu- 
 tion makes no such division of the subject, but the 
 President and the Senate are associated throughout 
 the entire process of "making" treaties. Origin- 
 ally, accordingly, Washington tried to take coun- 
 sel with the Senate even regarding the negotiation 
 of treaties, but he early abandoned this method 
 of procedure as unsatisfactory. In 1816, the Sen- 
 ate created the Committee on Foreign Relations 
 as a standing committee, and through this me- 
 dium most Presidents have kept rather closely in 
 touch with Senatorial sentiment regarding pending 
 negotiations. Moreover, ratification also belongs 
 to the President, only he may not ratify a treaty 
 with the result of "making" it, unless the Senate 
 by a two-thirds vote of the members present — not 
 
What It Means To-Day 53 
 
 necessarily a quorum — advises such ratification and 
 consents to it. And since the Senate may or may 
 not consent, it may consent conditionally, stating 
 its conditions in the form of amendments to the 
 proposed treaty or reservations to the proposed act 
 of ratification, the difference between the two being, 
 that whereas amendments, if accepted by the Presi- 
 dent and the other party or parties to the treaty, 
 change it for all parties, reservations merely limit 
 the obligations of the United States thereunder. 
 Amendments are accordingly resorted to in the case 
 of bilateral treaties, and reservations in the case of 
 international treaties, like the League of Nations 
 Covenant. O'f course, if the President is dissatis- 
 fied with the conditions laid down by the Senate to 
 ratification he may refuse to proceed further with 
 the matter. 
 
 The power to make treaties is bestowed upon the 
 United States in general terms and extends to all 
 proper subjects of negotiation between nations, but 
 since a treaty to which the United States is party 
 is both an international compact and "law of the 
 land" it may not override specific provisions of 
 the Constitution. Therefore, it may not change the 
 character of the Government which is established 
 by the Constitution nor take away its powers. The 
 powers of the States, on the other hand, of them- 
 selves set no limit to the treaty-making power, any 
 
54 The Constitution 
 
 more than to any other power of the National Gov- 
 ernment. (See Article VI, Paragraph 2, and 
 Amendment X; pp. 81-82 and 99.) 
 
 How broad the scope of the treaty-making power 
 is, is well illustrated by the recent treaty between 
 the United States and Canada providing for the 
 reciprocal protection of migratory birds which 
 make seasonal flights from the one country to the 
 other. Congress has passed a law putting this treaty 
 into effect and authorizing the Secretary of Agricul- 
 ture to draw up regulations to govern the hunting 
 of such birds, any violation of these regulations to 
 be subject to certain penalties. Both the treaty and 
 the law have just been sustained by the Supreme 
 Court, the latter as a law "necessary and proper" to 
 put the treaty into effect. 
 
 How is a treaty enforced? Being "law of the 
 land" the provisions of a treaty may, if it was 
 the design of the treaty-making body to put them 
 into effect without reference to Congress, be en- 
 forced in court like any other law when private 
 claims are based upon them ; and by the President, 
 when the other contracting sovereignty bases a 
 claim upon them. An example of the former case 
 would be where an alien claimed the right to own 
 land in the United States or to engage in business 
 under the clause of a treaty between the United 
 States and his home country. An instance of the 
 
What It Means To-Day 55 
 
 latter would be a demand by the other government 
 for the extradition from the United States of a 
 fugitive from justice. However, it frequently 
 happens that treaty provisions contemplate supple- 
 mentary action by Congress, as did, for instance, 
 the treaty with Canada just referred to; and this 
 is necessarily the case where money is needed to 
 carry a treaty into effect ( see Article I, Section IX, 
 Paragraph 7; p. 38). Hence the question arises 
 whether Congress is obliged to carry out a treaty 
 which it alone may carry out. The answer is that 
 it is not legally obliged to do so, since the Con- 
 stitution generally leaves it full discretion as to 
 whether or not it shall exercise its powers. But 
 morally it would be obliged to carry out the pledges 
 of the United States duly entered into unless in the 
 specific situation before it it would be morally justi- 
 fied in not doing so. 
 
 Treaties of the United States may be terminated 
 in accordance with their own provisions or by 
 agreement with the other contracting party; or as 
 "law of the land" they may be abrogated by act 
 of Congress, but such abrogation still leaves the 
 question of their international obligation outstand- 
 ing. 
 
 Besides treaties proper, the President frequently 
 negotiates agreements with other governments which 
 
56 Th^ Constitution 
 
 are not referred to the Senate for its advice 
 and consent. These are of two kinds: 
 
 Those which he is authorized by Congress to 
 make, and so rank as acts of Congress, such as 
 reciprocity conventions; those which he makes on 
 his own initiative. 
 
 The latter are usually temporary understandings 
 and look toward the early completion of a formal 
 treaty. Sometimes, however, their scope ap- 
 proaches that of regular treaties, as for example 
 the Lansing-Ishii agreement of 191 7, which was 
 effected by an exchange of notes between the Sec- 
 retary of State of the United States and a diplo- 
 matic representative of the Mikado. Such agree- 
 ments can be regarded only as announcements of 
 policy by the Administration entering into them, and 
 as imposing no legal obligation of any sort upon the 
 United States or any of its organs of government. 
 
 [Par. 2, CI. 2. J And he shall nominate, 
 and, by and with the advice and consent of 
 the Senate, shall appoint ambassadors, 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 ; 
 
 Except the President and the Vice-President all 
 civil officers of the United States are appointive and 
 
What It Means To-Day 57 
 
 fall into two classes, the so-called "Presidential 
 officers" and "inferior officers". 
 
 The steps of appointment in the first class are, 
 first, their nomination by the President; secondly, 
 their appointment "by and with the advice and 
 consent of the Senate"; thirdly, their commis- 
 sioning, which is also by the President (see Sec- 
 tion III; p. 59). 
 
 Although Congress has not the power to appoint 
 officers it has the right to lay down their qualifica- 
 tions, but some choice must be left to the appoint- 
 ing power. Thus the Civil Service Act leaves the 
 appointing officer the right to select from among 
 those who have best sustained the tests of fitness 
 imposed by the act. 
 
 The offices of "ambassador", "public minister" 
 and "consul" are recognized by the Law of Nations, 
 and the President may nominate to them (or in a 
 vacancy appoint temporarily), as occasion arises in 
 our intercourse with foreign nations, but Congress 
 may lay down the qualifications for such officers. 
 
 Besides "ambassadors" and "public ministers" 
 there has sprung up in the course of time a class 
 of "personal agents" of the President, in whose 
 appointment the Senate does not participate. 
 Theoretically these do not have diplomatic quality, 
 but if their identity is known they will be ordin- 
 arily accorded it in the countries to which they are 
 
58 The Constitution 
 
 sent. If such agents act simply as observers for 
 the President or are dispatched to communities or 
 governments without standing at International 
 Law, they are legitimate enough. But resort to 
 them should not be carried to such an extent as to 
 defeat the evident purpose of the Constitution to 
 lodge the important diplomatic business of the 
 United States with representatives of the United 
 States in whose appointment the Senate has par- 
 ticipated. 
 
 "Shall be established by law" : All civil offices 
 of the United States except those of President, 
 Vice-President, Judges of the Supreme Court, Am- 
 bassadors, Public Ministers and Consuls rest ex- 
 clusively on acts of Congress. 
 
 [Par. 2, CI. 3-] But the Congress may by 
 law vest the appointment of such inferior 
 officers, as they think proper, in the Presi- 
 dent alone, in the courts of law, or in the 
 heads of departments. 
 
 "Inferior officers" for the most part are officers 
 subordinate to the heads of departments, but many 
 classes of such officers are still appointed by the 
 President with the advice and consent of the Senate 
 because Congress has never vested their appoint- 
 ment in the President alone or in the heads of de- 
 partments. It is an interesting question whether 
 
What It Means To-Day 59 
 
 the judges of "inferior courts" are "inferior of- 
 ficers" within the sense of this clause. If so, Con- 
 gress might vest their appointment in the Justices 
 of the Supreme Court. 
 
 [Par. 3.] The President shall have power 
 to fill up all vacancies that may happen dur- 
 ing the recess of the Senate, by granting 
 commissions which shall expire at the end 
 of their next session. 
 
 "Happen" in this connection means "happen to 
 exist"; otherwise if a vacancy existed on account 
 of inaction of the Senate it would have to continue 
 throughout the recess, and in 'this way the work 
 of government might be greatly impeded. 
 
 Section III. 
 
 He shall from time to time give to the 
 Congress information of the state of the 
 Union, and recommend to their considera- 
 tion such measures as he shall judge neces- 
 sary and expedient; he may, on extraordi- 
 nary occasions, convene both houses, or 
 either of them, and in case of disagreement 
 between them with respect to the time of ad- 
 journment, he may adjourn them to such time 
 as he shall think proper; he shall receive 
 ambassadors and other public ministers; he 
 shall take care that the laws be faithfully 
 executed, and shall commission all the officers 
 of the United States. 
 
6o The Constitution 
 
 The duty conferred by the opening clause of this 
 section has in recent years developed, at the hands 
 of President Roosevelt and President Wilson, into 
 a tremendous power of legislative leadership. The 
 President's duty under this clause does not extend 
 to the imparting of information which in the public 
 interest should be kept secret, a matter of which 
 the President himself is final judge. 
 
 The President has frequently summoned Con- 
 gress into what is known as Special Sessions. His 
 power to adjourn the Houses has never been exer- 
 cised. 
 
 The power to "receive ambassadors and other 
 public ministers" includes the power to dismiss them 
 fot" sufficient cause; and the exercise of the latter 
 power may, as in the recent case of Count Berns- 
 torff, result in a breach of diplomatic relations, 
 leading eventually to war. The same power also 
 carries with it the power to recognize new govern- 
 ments or to refuse them recognition, also a very 
 important power sometimes, as was shown in the 
 case of President Huerta of Mexico. Finally, it 
 may be said that it is the President's power under 
 this clause taken together with his power in con- 
 nection with treaty making and with the appoint- 
 ment of the diplomatic representatives of the United 
 States that gives him his large initiative in deter- 
 mining the foreign policies of the United States. 
 
What It Means ToDay 6i 
 
 The President, be it noted, does not enforce the 
 laws himself, but sees that they are enforced, and 
 this is so even in the case of those laws which 
 confer powers upon the President directly rather 
 than upon some head of department or bureau. 
 
 Because of his duty "to take care that the laws 
 be faithfully executed", the President has the right 
 to take any necessary measures which are not for- 
 bidden by statute to protect against impending dan- 
 ger those great interests which are entrusted by 
 the Constitution to the National Government. He 
 may order a marshal to protect a Justice of the 
 Supreme Court whose life has been threatened, and 
 his order will be treated by the courts as having 
 the force of law. He may dispatch troops to points 
 at which the free movement of the mails and of 
 interstate commerce is being impeded by private 
 combinations, or through the Department of Justice 
 he may turn to the courts and ask them to use their 
 power of injunction to forbid such combinations. 
 In the same way he may use the army and navy 
 to protect American rights abroad. In the language 
 of the Supreme Court, his duty is not limited "to 
 the enforcement of acts of Congress or of treaties 
 of the United States according to their express 
 terms," but includes "the rights, duties and obliga- 
 tions growing out of the Constitution itself, our 
 international relations, and all the protection im- 
 
62 The Constitution 
 
 plied by the nature of the Government under the 
 Constitution". 
 
 The President's executive powers hav« been fur- 
 ther enlarged in recent years by the growing prac- 
 tice on the part of Congress of passing laws in 
 general terms, which laws have to be supplemented 
 by regulations drawn up by the head of a depart- 
 ment under the direction of the President. Under 
 4he legislation which Congress passed during the 
 World War the following powers, among others, 
 were vested in the President : to control absolutely 
 the transportation and distribution of. foodstuffs; 
 to fix prices; to license importation, exportation, 
 manufacture, storage, and distribution of the 
 necessaries of life; to operate the railroads; to 
 issue passports; to control cable and telegraph 
 lines; to declare embarg'oes; to determine priority 
 of shipments; to loan money to foreign govern- 
 ments; to enforce prohibition; to redistribute and 
 regi;oup the executive bureaus. In carrying these 
 powers into effect the President's authorized agents 
 have put in force a huge number of executive regu- 
 lations having the force of law. It used to be said 
 that "Congress may not delegate its powers"-, but 
 the rule nowadays has become that Congress may 
 not delegate its powers unless it is convenient to 
 do so. As the field of national power expands and 
 the problems confronting the National Government 
 
What It Means To-Day 63 
 
 become more complex we must expect more and 
 more of this sort of legislation. 
 
 Ex-President Taft says that the President's duty 
 to "commission all the officers of the United States" 
 is the most onerous "manual labor" thrust upon 
 him by the Constitution. 
 
 Section IV. 
 
 The President, Vice-President and all civil ' 
 officers of the United States shall be re- 
 moved from office on impeachment for and 
 conviction of treason, bribery, or other high 
 crimes and misdemeanors. 
 
 Besides their liability to impeachment (see Sec- 
 tion III, Paragraphs 6 and 7, above) , the President's 
 subordinates are liable to him, since as the law now 
 stands, and has generally stood from the beginning 
 of the National Government, he has a practically 
 unrestricted power of removal. They are also' re- 
 sponsible to the courts in various ways. Thus, an 
 order of the President himself not in accordance 
 with law will be set aside by the courts if a case in- 
 volving it comes before them. Also, a subordinate 
 of the President may be prohibited by writ of in- 
 junction from doing a threatened illegal act which 
 might lead to irreparable damage, or be compelled 
 by writ of mandamus to perform a duty definitely 
 required by law, such suits being usually brought in 
 
64 The Constitution 
 
 the Supreme Court of the District of Columbia. 
 Finally, by common law principles, a subordinate of 
 the President is personally liable under the ordinary 
 law for any act done in excess of authority, nor will 
 an order of the President exonerate him in such a 
 case. The extent of the President's own liability 
 to the ordinary law, while he is clothed with of- 
 ficial authority, is a matter of some doubt. Im- 
 peachment aside, his principal responsibility seems 
 to be simply his accountability, and that of his party, 
 to the people on election day. (See also Article I, 
 Section VII, Paragraph 2; pp. 14-16.) 
 
 Article III. 
 
 This article completes the framework of the 
 National Government by providing for "the 
 judicial power of the United States". 
 
 Section I. 
 
 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 
 behavior, and shall, at stated times, receive 
 for their services a compensation which shall 
 not be diminished during their continuance 
 in office. 
 
What It Means To-Day 65 
 
 "Judicial power" is the power to decide "cases" 
 and "controversies" in conformity with law and 
 by the methods established by the usages and prin- 
 ciples of law. 
 
 Like "executive power," judicial power implies 
 certain incidental powers, as for example the power 
 to punish for contempt of court; but this power 
 may be regulated in the case of the national courts 
 by act of Congress. 
 
 Although the Supreme Court is provided for by 
 the Constitution, its organization rests upon an act 
 of Congress, but having been once established it 
 cannot be abolished by act of Congress, although its 
 size may at any time be thus enlarged. 
 
 The "inferior courts'' covered by this Section 
 comprise today the nine Circuit Courts of Appeals, 
 the 80 or more District Courts, the Court of Claims, 
 and the Court of Customs Appeals. Since they 
 rest upon act of Congress alone, they may be 
 abolished by Congress at any time; but whether 
 their incumbents may be thus thrown out of office 
 is at least doubtful. When in 1802 Congress re- 
 pealed an act of the previous year creating certain 
 Circuit Courts of the United States, it also 'threw 
 their judges out of office. On the other hand, the 
 Act of 1 91 3 abolishing the Commerce Court, left its 
 judges still judges of the United States. The latter 
 
66 The Constitution 
 
 act undoubtedly represented the view of the best 
 authorities. 
 
 The territorial courts, those of Hawaii and 
 Alaska, do not exercise "judicial power of the 
 United States", but a special judicial power con- 
 ferred upon them by Congress, by virtue of its 
 power to govern territories of the United States 
 (see Article IV, Section III, Paragraph 2; pp. 
 7^77)- Their judges accordingly have a limited 
 tenure and are removable by the President. 
 
 Section II. 
 
 [Par. I.J The judicial power shall extend 
 to all cases, in law and equity, arising under 
 this Constitution, the laws of the United 
 States, and treaties made, or which shall "be 
 made, under their authority ; to ' all cases 
 affecting ambassadors, other public minis- 
 ters, 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. 
 
 Whether a case is one "in law" or "in equity" is 
 a mere matter oi history. Criminal prosecutions 
 
What It Means To-Day 67 
 
 and private actions for damages are cases "in law", 
 since these were early decided in England in the 
 regular law courts. An application for an injunc- 
 tion, on the other hand, was passed upon by the Lord 
 Chancellor, as a matter of grace, and so is a suit "in 
 equity". In the National Government the same 
 courts dispense both "law" and "equity", but the 
 distinction between the two kinds of cases is still 
 maintained, as it is in most of the States. 
 
 A case is one "arising under this Constitution, 
 the laws of the United States, and treaties" of the 
 United States, when an interpretation of one or the 
 other of these is demanded for its final decision. 
 
 Cases "arising under this Constitution" are cases 
 in which the validity of an act of Congress or a 
 treaty or of a legislative act or constitutional pro- 
 vision of a State is challenged with reference to the 
 Constitution. Since the Constitution is law (see 
 Article VI, Paragraph 2), it must be interpreted 
 and enforced by the judges in cases "arising" under 
 it; since it is "supreme law" the judges must give 
 it preference over any other law. Also, as is the 
 case with any other law, judicial interpretation of it 
 is final for the case to which it is applied and for 
 like cases. It is upon these principles that the power 
 of the courts rests to pass upon the validity of legis- 
 lative acts under the Constitution. 
 
68 The Constitution 
 
 It frequently happens that cases "arising under 
 this Constitution, the laws of the United States, 
 and treaties" of the United States are first brought 
 up in a State court, in consequence of a prosecution 
 by the State itself under one of its own laws or of 
 an action by a private plaintiff claiming something 
 under a law of the State. If in such a case the de- 
 fendant sets up a counter claim under the Constitu- 
 tion or laws or treaties of the United States, there- 
 upon the case becomes one "arising under this Con- 
 stitution", etc. By the famous 25th Section of the 
 Judiciary Act of 1789 (Section 709 of the Revised 
 Statutes, and Section 235 of the Judiciary Code) 
 such a case may be appealed to the United States 
 Supreme Court on a "writ of error", if the decision 
 of the highest State court to which by the law of 
 the State it can come, affirms the claim based on the 
 State law. (See also Amendment XI; p. 100.) 
 Also a recent act of Congress enables the Supreme 
 Court, by "writ of certiorari", to bring the kind of 
 case just described before itself for final review on 
 the point of law involved even if the claim which 
 was based on State law was rejected by the State 
 court in deference to national law. This was done 
 for the reason that some State courts have in the 
 past taken a broader view of certain clauses of the 
 Constitution as limiting State power (see the "Due 
 process of law" clause of Amendment XIV; p. 105). 
 
What It Means To-Day 69 
 
 than has the Supreme Court of the United States, 
 and it was thought desirable that State legislation 
 should be tested by the more liberal standards of the 
 United States Supreme Court. 
 
 "Cases of admiralty and maritime jurisdiction" 
 are not only cases arising from acts or injuries done 
 upon the high seas and within the marine league, as 
 at common law, but also for acts and injuries done 
 upon "the navigable waters of the United States." 
 Thus a collision on one of the Great Lakes would 
 fall within this jurisdiction, as well as a collision at 
 sea. The same jurisdiction also extends to all con- 
 tracts and claims of a maritime nature, and, of 
 course, in war time, to prize cases. 
 
 "Controversies" means "justiciable" controversies, 
 that is, such controversies as are capable of being 
 decided by a judicial tribunal; they are always of a 
 civil nature. 
 
 The "controversies to which the United States 
 shall be a party" are either controversies in which 
 it appears as plaintiff or in which it has consented 
 to be sued before the Court of Claims. 
 
 "Controversies between two or more States" to- 
 day comprehends almost any sort of controversy 
 between States of the Union. Recently, moreover, 
 the Court has made it clear that it regards the 
 National Government as possessed with adequate 
 
70 The Constitution 
 
 authority to enforce the Court's decrees against any 
 State which might fail to obey them. 
 
 Since the adoption of the Eleventh Amendment 
 (see p. lOo) "controversies between a State and 
 citizens of another State" include only such contro- 
 versies as are originated by a State. On the other 
 hand, the grounds upon which such controversies 
 may be based are today very broad, for in recent 
 years the Supreme Court (see Paragraph 2., below) 
 has recognized increasingly the right of a State 
 government to intervene in behalf of important in- 
 terests of its citizens, or a considerable section of 
 them, and to ask the Court to protect such interests 
 against tortious acts on the part of outside persons 
 and corporations. Thus in what is probably the 
 leading case the Court granted the petition of 
 Georgia for an injunction against certain copper 
 companies in Tennessee, forbidding them to dis- 
 charge noxious gases from their works in Tennessee 
 over the adjoining counties of Georgia. 
 
 The judicial power of the United States is ex- 
 tended to the kinds of controversies already men- 
 tioned because there is no other tribunal for such 
 controversies. It is extended to controversies "be- 
 tween citizens of different States" for a quite differ- 
 ent reason, namely, to make available a tribunal for 
 such cases which shall be free from local bias. In 
 this field, accordingly, Congress has felt free to 
 
What It Means To-Day .71 
 
 leave the States a concurrent jurisdiction, and as the 
 statute now stands, the United States District 
 Courts have original jurisdiction of controversies 
 between citizens of different States in which 3,000 
 dollars or more is involved, while controversies of 
 the same pecuniary importance, if brought by a 
 plaintiff in a court of a State of which defendant is 
 not a resident may be removed by the latter to the 
 nearest United States District Court. The law in- 
 volved in such controversies is ordinarily State law 
 and the general principles of common law. 
 
 The word "citizens" in this clause as well as 
 other clauses of this paragraph also includes cor- 
 porations, a corporation being deemed to be a citizen 
 of the State which charters it. 
 
 [Par. 2. J In all cases affecting ambassa- 
 dors, other public ministers and consuls, and 
 those in which a State shall be a party, the 
 Supreme Court shall have original juris- 
 diction. In all the other cases before men- 
 tioned the Supreme Court shall have appel- 
 late jurisdiction, both as to law and fact, 
 with such exceptions and under such regula- 
 tions as the Congress shall make. 
 
 Jurisdiction is either original or appellate. In 
 the famous case of Marbury v. Madison, in which 
 for the first time the Supreme Court pronounced an 
 act of Congress void as being in conflict with the 
 
jT, The Constitution 
 
 Constitution, it was held that Congress could not 
 extend the original jurisdiction of the Supreme 
 Court to other cases than those mentioned in the 
 first sentence of this paragraph. 
 
 As we have just seen, Congress has extended the 
 appellate jurisdiction of the Supreme Court in some 
 instances to the State courts. Of course, it cannot 
 do this except for cases to which the "judicial power 
 of the United States" is extended by the Constitu- 
 tion itself. 
 
 The appellate jurisdiction of the Supreme Court 
 as to fact is very much curtailed by Amendment VII 
 (seep. 98). 
 
 [Par. 3. J 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. 
 
 This paragraph is largely superseded by Amend- 
 ment VI below. 
 
 Section III. 
 
 [Par. I.J Treason against the United 
 States shall consist only in levying war 
 against them, or in adhering to their ene- 
 mies, giving them aid and comfort. No 
 person shall be convicted of treason unless 
 
What It Means To-Day 73 
 
 on the testimony of two witnesses to the 
 same overt act, or on confession in open 
 court. 
 
 "Levying war" consists, in the first place, in a 
 combination or conspiracy to effect a change in the 
 laws or the government by force, but a war is not 
 "levied" until the treasonable force is actually 
 assembled. 
 
 One "adheres" to the enemies of the United 
 States, "giving them aid and comfort", when he 
 knowingly furnishes them with assistance of any 
 sort. 
 
 "Overt act" means simply open act, that is to say, 
 an act which may be testified to. Since treason by 
 levying war involves a conspiracy, if an overt act of 
 war in pursuance of the conspiracy takes place, all 
 the conspirators are equally liable for it at the place 
 at which it occurs. 
 
 [Par. 2.] The Congress shall have power 
 to declare the punishment of treason, but no 
 attainder of treason shall work corruption 
 of blood or forefeiture except during the life 
 of the person attainted. 
 
 By this paragraph the cruel feature of the old 
 common law which punished the traitor in the per- 
 sons of his descendants was forever prohibited. 
 
74 The Constitution 
 
 Article IV. 
 
 This Article defines in certain important partic- 
 ulars the relations of the States to one another and 
 of the National Government to the States. 
 
 Section I. 
 
 Full faith and credit shall be given in each 
 State to the public acts, records, and judicial 
 proceedings of every other State. And the 
 Congress may by general laws prescribe the 
 manner in which such acts, records, and pro- 
 ceedings shall be proved, and the effect 
 thereof. 
 
 By this Section the "public acts, records and 
 judicial proceedings" of each State become entitled 
 to receive the same force and effect that they have 
 in the State of origin. A marriage good in one 
 State is good in all; also, generally speaking, a 
 divorce. A mortgage recorded for one State is 
 recorded for all. A judgment rendered by the 
 courts of one State must be enforced in accordance 
 with the rules laid down by Congress in the courts 
 of another State. 
 
 Section II. 
 
 [Par. I.] The citizens of each State shall 
 be entitled to all privileges and immunities 
 of citizens in the several States. 
 
What It Means To-Day 75 
 
 This "paragraph entitles the citizens of each State 
 "to all privileges and immunities of citizens" in 
 any State wherein they may be temporarily so- 
 journing. But there are certain privileges and im- 
 munities for which a State may require previous 
 residence, as for example the privilege of voting. 
 It is for the Supreme Court to say finally whether 
 a particular privilege is one of citizenship merely or 
 one for which the additional qualification of resi- 
 dence may be fairly required. 
 
 [Par. 2.] A person charged in any State 
 with treason, felony, or other crime, who 
 shall flee from justice, and be found in 
 another State, shall, on demand of the ex- 
 ecutive authority of the State from which 
 he fled, be delivered up, to be removed to the 
 State having jurisdiction of the crime. 
 
 The word "crime" here includes statutory crimes 
 as well as common law crimes but does not include 
 misdemeanors. 
 
 The performance of the duty which is cast by 
 this paragraph upon the States has been imposed by 
 act of Congress upon the governors thereof, but 
 the Supreme Court has held that the act or duty is 
 a discretionary one and that therefore its perform- 
 ance may not be compelled by writ of mandamus, 
 and in consequence the governors of States have 
 often refused compliance with a demand for extra- 
 
76 The Constitution 
 
 dition when in their opinion substantial justice re- 
 quired such refusal. 
 
 [Par. 3.] No person held to service or 
 labor in one State, under the laws thereof, 
 escaping into another, shall, in consequence 
 of any law or regulation therein, be dis- 
 charged from such service or labor, but shall 
 be delivered up on claim of the party to 
 whom such service or labor may be due. 
 
 "Person held to service or labor" meant slaves 
 and apprentices. The paragraph is now of historical 
 interest only. 
 
 Section III. 
 
 [Par. I.] New States may be admitted by 
 the Congress into this Union; but no new 
 States shall be formed or erected within the 
 jurisdiction of any other State; nor any 
 State be formed by the junction of two or 
 more States or parts of States, without the 
 consent of the legislatures of the States con- 
 cerned as well as of the Congress. 
 
 When new States are admitted into "this 
 Union" they are admitted upon a basis of equality 
 with the previous members of the Union, since 
 "this Union" is a Union of equal States. 
 
 [Par. 2.] The Congress shall have power 
 to dispose of and make all needful rules 
 
What It Means To-Day ^^ 
 
 and regulations respecting the territory or 
 other property belonging to the United 
 States; and nothing in this Constitution 
 shall be so construed as to prejudice any 
 claims of the United States or of any par- 
 ticular State. 
 
 Congress's control of the public lands is derived 
 from this paragraph. Its power to acquire and 
 therefore to govern territories, however, is derived, 
 by best authority, from the fact that such a power 
 is inherent in any national government. 
 
 While the treaty-making power may acquire ter- 
 ritory, only Congress can incorporate it into the 
 United States, which may be done either by admit- 
 ting the territory into "this Union" as new States 
 or, less completely, by extending the Constitution 
 to it. Until territory is thus incorporated into the 
 United States, Congress's power to govern it is 
 nearly absolute, though doubtless it is limited by 
 certain fundamental rights of persons. 
 
 Conquered territory may be governed tempo- 
 rarily by the President by virtue of his power as 
 Commander-in-Chief of the Army and Navy, but 
 Congress may at any time supplant such govern- 
 ment with one of its own creation. 
 
 Section IV. 
 
 The United States shall guarantee to every 
 State in this Union a republican form of 
 
78 The Constitution 
 
 government, and shall protect each of them 
 against invasion, and on application of the 
 legislature, or of the executive (when the 
 legislature cannot be convened), against 
 domestic violence. 
 
 "The United States" here means the political 
 branches of the Government, that is, the President 
 and Congress. A "republican form of govern- 
 ment" means, strictly speaking, a government by 
 the representatives of the people, and is to be con- 
 trasted with monarchy on the one hand and direct 
 government on the other hand. But a considerable 
 admixture of direct government does not make a 
 government unrepublican ; and whether the gov- 
 ernment of a State is republican in form or not is 
 finally for Congress to say. Thus Congress may 
 approve of the government of a new State by ad- 
 mitting it into the Union, or the houses of Con- 
 gress may indicate their approval by seating the 
 Senators and Representatives of the State. 
 
 The President is authorized by statute to employ 
 the forces of the United States to discharge the 
 duties of the United States under the second part of 
 this paragraph. 
 
 Article V. 
 
 The Congress, whenever two-thirds of 
 both houses shall deem it necessary, shall 
 
What It Means To-Day 79 
 
 propose amendments to this Constitution, or, 
 on the application of the legislatures of two- 
 thirds of the several States, shall call a con- 
 vention for proposing amendments, which in 
 eithej case shall be valid to all intents and 
 purposes as part of this Constitution, when 
 ratified by the legislatures of three-fourths 
 of the several States, or by conventions irt 
 three-fourths thereof, as the one or the other 
 mode of ratification may be proposed by the 
 Congress, provided that no amendments 
 which may be made prior to the year one 
 thousand eight hundred and eight shall in 
 any manner affect the first and fourth 
 clauses in the ninth section of the first 
 article; and that no State, without its con- 
 sent, shall be deprived of its equal suffrage 
 in the Senate. 
 
 "The Congress, whenever . . . both houses 
 shall deem it necessary" : The necessity of amend- 
 ments to the Constitution is a question to be deter- 
 mined by the two houses alone; and neither the 
 President nor the courts have any voice in the 
 matter. 
 
 "Two-thirds of both houses" means two-thirds 
 of a quorum in both houses (see Article I, Section 
 VII, Paragraph 2; p. 15). 
 
 "Legislatures" means the legislative assemblies 
 of the States and does not include even their gov- 
 nors, far less their voters. 
 
8o The Constitution 
 
 Of the two methods here laid down for proposing 
 amendments to the Constitution only the first has 
 ever been resorted to, and all such amendments have 
 been referred to the State legislatures. It is to be 
 hoped, however, that in' the future conventions will 
 be called in the States, elected for the purpose. 
 
 Of the two exceptions here made to the amend- 
 ing power the first is today obsolete. The only 
 change that the power which amends the Constitu- 
 tion may not make in the Constitution is to deprive 
 a State without its consent of its "equal suffrage in 
 the Senate". This follows, first, from the fact that 
 this exception and no other is specifically men- 
 tioned which is today in force ; secondly, from the 
 fact that the amending power represents the people 
 of the United States (see Preamble) in their ulti- 
 mate capacity to change or alter their institutions 
 at will. For if this supreme power is not provided 
 for in this Article it is nowhere provided for in the 
 Constitution, and the only way in which the people 
 of the United States could exercise it would be by 
 act of revolution. 
 
 Article VI. 
 
 [Par. I.] All debts contracted and en- 
 gagements entered into, before the adoption 
 of this Constitution, shall be as valid against 
 the United States under this Constitution as 
 under the confederation. 
 
What It Means To-Day 8i 
 
 This paragraph, which is now only of historical 
 interest, was intended to put into effect the rule of 
 International Law that when a new government 
 takes the place of an old one it succeeds to the 
 latter's financial obligations. 
 
 [Par. 2.] This Constitution, and the laws 
 of the United States which shall be made in 
 pursuance thereof, and all treaties made, or 
 which shall be made, under the authority of 
 the United States, shall be the supreme law 
 of the land; and the judges in every State 
 shall be bound thereby, anything in the 
 Constitution or laws of any State to the con- 
 trary notwithstanding. 
 
 This paragraph has been called "the linch pin of 
 the Constitution", and very fittingly, since it com- 
 bines the National Government and the States into 
 one governmental organization, one Federal State. 
 
 It also makes plain the fact that, while the Na- 
 tional Government is for the most part one of 
 enumerated powers, as to its powers it is supreme 
 over any conflicting State powers whatsoever. 
 When, accordingly, a collision occurs between 
 national and State law the only question is, whether 
 the former was within a fair definition of Con- 
 gress's powers. If it was, then the State law must 
 give way, no matter by virtue of what power it was 
 passed. 
 
82. The Constitution 
 
 Finally, this paragraph, in establishing the obli- 
 gation of State judges to prefer the laws of the 
 United States which are "in pursuance of the Con- 
 stitution" to conflicting State laws and constitutions, 
 implies their right to say whether laws of the 
 United States are in pursuance of the Constitution; 
 and from their decisions on this question there may 
 always be, as we have seen, a final appeal to the 
 United States Supreme Court (see Article III, Sec- 
 tion II, Paragraph i ; pp. 66-68) . 
 
 [Par. 3.] The Senators and Representa- 
 tives before mentioned, and the members of 
 the several State legislatures, and all execu- 
 tive and judicial ofificers both of the United 
 States and of the several States, shall be 
 bound by oath or affirmation to support this 
 Constitution ; but no religious test shall ever 
 be required as a qualification to any office or 
 public trust under the United States. 
 
 State officers have many duties, both positive 
 and negative, laid upon them by the Constitution 
 (see Article I, Section III, Paragraph i ; Section 
 IV, Paragraph i ; Section X ; Article II, Section I, 
 Paragraph 2 ; Article III, Section II, Paragraph 2 ; 
 Article IV, Sections I and II ; Article V ; Amend- 
 ments XIII, XIV, XV, XVII, and XVIII), and 
 these may be increased frequently by Congress, by 
 virtue of its "necessary and proper" powers. Thus 
 
What It Means To-Day 83 
 
 the recent Draft Act was enforced to a great extent 
 through State officers. Hence, it becomes necessary 
 that State officers should take the oath to support 
 the Constitution, since for many purposes they are 
 national officers. Indeed, the possible uses to 
 which the State governments might be put as agents 
 of the National Government have never yet been 
 fully appreciated, but it may be supposed that as 
 the powers of Congress expand and those of the 
 State governments correspondingly contract, the 
 latter may be utilized more and more by the Na- 
 tional Government for administrative purposes. 
 
 A "religious test" is one demanding the avowal 
 or repudiation of certain religious beliefs. While 
 no religious test may be required as a qualification 
 for office under the United States, indulgence in 
 immoral practices claiming the sanction of religious 
 belief, such as polygamy, may be made a disquali- 
 fication. Contrariwise, alleged religious beliefs or 
 moral scruples do not furnish ground for evasion 
 of the ordinary duties of citizenship, like the pay- 
 ment of taxes or military service, although, of 
 course, Congress may of its own free will grant 
 exemptions on such grounds. 
 
 "Oath or affirmation" : This option was provided 
 for the special benefit of the Quakers. 
 
84 The Constitution 
 
 Article VII. 
 
 The ratification of the convention of nine 
 States shall be sufficient for the establish- 
 ment of this Constitution between the States 
 so ratifying the same.^ 
 
 Done in convention by the unanimous 
 consent of the States present, the seven- 
 teenth day of September, in the year of our 
 Lord one thousand seven hundred and 
 eighty-seven, and of the independence of the 
 United States of America the twelfth. In 
 witness whereof we have hereunto sub- 
 scribed our names. 
 
 George Washington, President, and Dep- 
 uty from Virginia. 
 
 New Hampshire — John Langdon, Nich- 
 olas Oilman. 
 
 Massachusetts — Nathaniel Gorham, Rufus 
 King. 
 
 Connecticut — William Samuel Johnson, 
 Roger Sherman. 
 
 New York — Alexander Hamilton. 
 
 New Jersey — William Livingston, David 
 Brearly, William Patterson, Jonathan Day- 
 ton. 
 
 Pennsylvania — Benjamin Franklin, Thos, 
 Mifflin, Robert Morris, George Clymer, 
 Thomas Fitzsimons, Jared Ingersoll, James 
 Wilson, Gouverneur Morris. 
 
 Delaware — George Read, Gunning Bed- 
 ford, Jr., John Dickinson, Richard Bassett, 
 Jacob Broom. 
 
What It Means To-Day 85 
 
 Maryland — ^James McHenry, Daniel of 
 St. Thomas Jenifer, Daniel Carroll. 
 
 Virginia — ^John Blair, James Madison, Jr. 
 
 North Carolina — John Rutledge, Charles 
 Cotesworth Pinckney, Charles Pinckney, 
 Pierce Butler. 
 
 Georgia — William Few, Abraham Bald- 
 win. 
 
 Attest: WiUviAM Jackson, Secretary.* 
 
 Amendments.* 
 The first ten amendments make up the so-called 
 Bill of Rights of the National Constitution. They 
 were designed to quiet the fears of mild opponents 
 of the Constitution in its original form and were 
 proposed to the State legislatures by the first Con- 
 gress which assembled under the Constitution. 
 They bind only the National Government and in 
 nowise limit the powers of the States. 
 
 * The first ten amendments were proposed in 1789, and de- 
 clared adopted in 1791. 
 
 The eleventh amendment was proposed in 1794, and de- 
 clared adopted in 1798. 
 
 The twelfth amendment was proposed in 1803, and de- 
 clared adopted in 1804. 
 
 The thirteenth amendment was proposed and adopted in 1865. 
 
 The fourteenth amendment was proposed in 1866, and 
 adopted in 1868. 
 
 The fifteenth amendment was proposed in 1869, and 
 adopted in 1870. 
 
 The sixteenth amendment was proposed and adopted in 1913. 
 
 The seventeenth amendment was proposed and adopted in 
 
 1913- 
 
 The eighteenth amendment was proposed in 191 7, and 
 adopted in 1919. 
 
86 The Constitution 
 
 ArticIvE I. 
 
 Congress shall make no law respecting an 
 establishment of religion, or prohibiting the 
 free exercise thereof ; or abridging the free- 
 dom, of speech or of the press; or the right 
 of the people peaceably to assemble, and to 
 petition the government for a redress of 
 grievances 
 
 Congress may make no law at all "respecting an 
 establishment of religion," nor yet "prohibiting the 
 free exercise" of religious belief; and it may not 
 make laws which abridge "the freedom of speech 
 or of the press" or the rights of assembly and peti- 
 tion. 
 
 "An establishment of religion" means a state 
 church, such as for instance existed in Massachu- 
 setts for more than 40 years after the adoption of 
 the Constitution. 
 
 "The free exercise thereof" does not extend, as 
 has already been suggested, to immoral practises. 
 Hence Congress at an early date passed laws pro- 
 hibiting polygamy in some of the territories. 
 
 "Freedom of speech" and "press" may be defined 
 as the right of fair discussion of public men and 
 measures. Such a right is absolutely indispen- 
 sable to a republican form of government such as 
 
What It Means To-Day 87 
 
 ours. But freedom of utterance is not license of 
 utterance, and it is only the former which is pro- 
 tected by this Amendment. 
 
 Outside of certainQterritories, as a matter of fact, 
 Congress has no general power over either speech 
 or press, but it has, of course, the power to make 
 "all laws necessary and proper" to carry the 
 powers of the National Government into effect; in 
 short, to keep the Government working efficiently. 
 What may be a "necessary and proper" restraint 
 from this point of view upon speech and press at 
 one tirhe would not be at another. In time of war 
 or public danger when even the privilege of the 
 writ of habeas corpus may be suspended (see Ar- 
 ticle I, Section IX, Paragraph 2 ; p. 36) , measures 
 of restraint may go to lengths not allowable in 
 quieter times. Yet at all times, it is generally con- 
 ceded, Congress may ban utterances calculated to in- 
 cite to violence or a forcible breach of the law ; and 
 this means in practice that it may ban utterances 
 which to a jury of twelve Americans may seem cal- 
 culated to do this. 
 
 Congress's control over the newspaper press is 
 reinforced by its control of the mails (see Article 
 I, Section VIII, Paragraph 7; p. 28). Pew news- 
 papers or periodicals can profitably circulate except 
 locally unless they enjoy the "second class privilege," 
 that is the privilege of specially low rates, and this 
 
88 The Constitution 
 
 privilege is under the practically absolute control of 
 Congress, and, by delegation, the Postmaster Gen- 
 eral. Moreover, Congress can banish from the 
 mails altogether or even from the channels of inter- 
 state commerce, indecent, fraudulent, and seditious 
 matter. For there can be no right to circulate 
 what there is no right to publish. 
 
 The rights of assembly and petition are also to 
 be defined with reference to the primary necessity 
 of good order, but from the nature of the case the 
 latter right would be ordinarily less affected by this 
 consideration than the former. The right of peti- 
 tion implies the further right on the part of the peti- 
 tioners that the Government at least give a hearing 
 to their grievances. 
 
 Article II. 
 
 A well-regulated militia being necessary to 
 the security of a free State, the right of the 
 people to keep and bear arms shall not be in- 
 fringed. 
 
 The expression "a free State" is here used in the 
 generic sense, and so refers to the United States as 
 a whole as well as to the several States ( see Article 
 I, Section VIII, Paragraphs 15 and 16; p. 33). 
 
 The right "to bear arms" is the right to bear 
 them openly, not in concealment. 
 
What It Means To-Day 89 
 
 Article III. 
 
 No soldier shall, in time of peace, be quar- 
 tered in any house without the consent of 
 the owner, nor in time of war, but in a man- 
 ner to be prescribed by law. 
 
 This and the following Amendment sprang from 
 certain grievances which contributed to bring about 
 the American Revolution. 
 
 Article IV. 
 
 The right of the people to be secure in 
 their persons, houses, papers and effects, 
 against unreasonable searches and seizures, 
 shall not be violated, and no warrants shall 
 issue but upon probable cause, supported by 
 oath or affirmation, and particularly de- 
 scribing the place to be searched, and the 
 person or things to be seized. 
 
 "Houses" means dwelling places, not places of 
 business. 
 
 The right to security of "papets and effects" sup- 
 plements the provision in the following Amend- 
 ment against self-incrimination. No one may be 
 compelled to turn over to the authorities private 
 papers which may be made the basis of proceedings 
 against him. Nor may papers seized without a 
 proper warrant by agents of the Government be 
 used as evidence against him. 
 
90 The Constitution 
 
 Whether a warrant is in such broad terms that a 
 seizure under it would be "unreasonable" is, of 
 course, finally for the Supreme Court to say. 
 
 Article V. 
 
 No person shall be held to answer for a 
 capital or otherwise infamous crime, unless 
 on a presentment or indictment of a grand 
 jury, except in cases arising in the land or 
 naval forces, or in the militia, when in actual 
 service in time of war or public danger ; nor 
 shall any person be subject for the same 
 offense to be twice put in jeopardy of life 
 or limb ; nor shall be compelled in any crimi- 
 nal case tO' be a witness against himself, nor 
 be deprived of life, liberty or property, with- 
 out due process of law; nor shall private 
 property be taken for public use without just 
 compensation. 
 
 Amendments V, VI, and VIII constitute a "bill 
 of rights" for accused persons. For the most part 
 ,_they are compiled from the Bills of Rights of the 
 early State Constitutions, and in more than one 
 respect they represent a distinct advance upon the 
 English law of that time and indeed for many years 
 afterward. . 
 
 "Infamous crime" is one rendered so by the pen- 
 alty attached to it. Any offense involving impris- 
 onment or loss of civil or political privileges is, it 
 
What It Means To-Day 91 
 
 has been held, "infamous" in the sense of the Con- 
 stitution. 
 
 "Presentment or indictment" : A presentment is 
 returned upon the initiative of the grand jury; an 
 indictment is returned upon evidence laid before 
 that body by the public prosecutor. 
 
 A "grand jury" consists of at least twelve and 
 not more than twenty-three men chosen from the 
 community by a process described by law. Once 
 constituted it has large powers of investigation, but 
 its presentments or indictments must have the sup- 
 port of at least twelve members. 
 
 "In time of war or public danger" : This clause 
 indicates that except for "the land and naval 
 forces", etc., the Fifth Amendment is designed for 
 times of war as well as for times of peace. But it 
 is obvious that in order to enforce its provisions, as 
 well as those of the following Amendment, the 
 courts must be open. In regions where the courts 
 are not open, or cannot, on account of disorder, 
 function properly, martial law may be established 
 by proper authority; but the necessity for its es- 
 tablishment will still be a question for the civil 
 courts, and finally for the Supreme Court. 
 
 "Twice in jeopardy" : A person has been once 
 in jeopardy when a jury has returned a verdict on 
 the facts in his case in a court having jurisdiction 
 of it. This clause does not, however, prevent the 
 
92 The Constitution 
 
 Government from taking an appeal en questions of 
 law at any time before the return of such verdict. 
 
 "Life or limb" has come to mean life or liberty. 
 
 "Nor be compelled in any criminal case", etc. : 
 This clause, which originated in the common law as 
 a protest against the torture of witnesses, is today 
 so broadly interpreted as to allow a witness to 
 refuse to testify in any sort of judicial or quasi- 
 judicial proceeding with reference to facts which 
 he is legally advised would furnish a basis for 
 criminal proceedings against himself. But Con- 
 gress may at any time, by promising immunity 
 from prosecution, put it beyond the power of a 
 witness to claim the benefits of the clause; and, of 
 •course an accused person may, if he wishes, take 
 the stand in his own behalf, but if he does so he at 
 once waives his constitutional immunity completely. 
 
 "Nor be deprived of life, liberty or property 
 without due process of law" : The protection of 
 this clause is by no means confined to accused per- 
 sons, but extends to all persons in all circumstances 
 in which their rights may be affected by any action 
 taken by the National Government, while a like 
 clause of the Fourteenth Amendment affords a 
 similar range of protection against the States. 
 
 "Liberty" is not simply freedom from detention 
 but also signifies all the ordinary rights which one 
 enjoys as a member of the community. 
 
What It Means To-Day 93 
 
 "Property" means not merely physical possession 
 of the thing owned, but the sum total of its per- 
 missible uses. 
 
 It should be noted, however, that this clause does 
 not say that no person shall "be deprived of life, 
 liberty or property" in any possible circumstance, 
 but that "no person shall be deprived of life, liberty 
 or property without due process of lazif". What 
 then is "due process of law"? It is, briefly, that 
 method of exercising the powers of government 
 which either custom or justice sanctions for the 
 kind of case which is under consideration. 
 
 In criminal proceedings "due process of law" is, 
 so far as the National Government is concerned, the 
 kind of process which is here described in the Fifth 
 and Sixth Amendments. 
 
 In "actions at common law," "due process of 
 law" in the national courts ordinarily includes, by 
 the requirement of Amendment VII, trial by jury. 
 
 Generally speaking, too, "due process of law" 
 exacts that the final interpretation of the law be left 
 to the courts. 
 
 On the other hand, the ascertainment of facts, 
 and even to some extent the interpretation of the 
 law, may be frequently put by Congress into the 
 hands of executive officers without violation of 
 "due process of law." Whether an alien who 
 wants to enter the country may do so or not, or 
 
94 'f HE Constitution 
 
 whether an ahen already here shall be deported, are 
 both questions which are to-day finally determined 
 by the Secretary of Labor, in accordance with the 
 acts of Ck)ngress regulating these matters. Also, 
 whether a periodical is entitled to the second class 
 privilege is a question for the Postmaster General 
 to decide, and so on. In these cases the Govern- 
 ment is not aiming to pmdsh anybody, but is simply 
 exercising its self-protective powers against certain 
 dangers. "Due process of law" accordingly does 
 not exact trial by jury for such cases, but only 
 that the administrative body concerned act within 
 the powers conferred upon it by law, that it give the 
 person or persons to be affected by its orders an 
 opportunity for a fair hearing, and that it do' not act 
 "arbitrarily." 
 
 But this clause also limits legislative power di- 
 rectly, in which sense it signifies that Congress may 
 not eixercise its powers "arbitrarily." Thus, if 
 Congress should attempt to levy a special income 
 tax on blue-eyed persons, or to exclude from the 
 channels of interstate commerce the products of 
 members of certain political parties or religious 
 organizations, its action would be so outrageous an 
 abuse of power as to amount to an action in excess 
 of power, a fact which the "due process of law" 
 clause simply makes plain from the point of riew 
 of personal rights. Also, there are certain types of 
 
What It Means To-Day 95 
 
 legislation which have occasionally fallen under 
 the condemnation of this clause because of the 
 novel restrictions which they have set to private 
 liberty. Thus when Congress passed an act for- 
 bidding railroad companies to discharge their em- 
 ployees because of membership in labor unions, 
 while still leaving such employees free to quit their 
 employment at will, the Court set the act aside as 
 violative of "due process of law." On the other 
 hand, the Court has recently recognized that Con- 
 gress may take extraordinary measures in an 
 emergency to keep interstate commerce moving, 
 and such measures may be "due process of law" 
 even though they invade private rights very drasti- 
 cally. 
 
 In a word, the "due process of law" clause rules 
 out all arbitrary exercise of governmental power; 
 but an emergency may sometimes justify what 
 would ordinarily be arbitrary. 
 
 The power which the Government exerts when it 
 "takes private property" for "public use" is called 
 the power of eminent domain. Before the Civil 
 War it was generally denied that the National Gov- 
 ernment could exercise the power of eminent 
 domain within a State without the consent of the 
 State (see Article I, Section VIII, Paragraph 17). 
 Today, however, it is well settled that the National 
 Government may take property by eminent domain 
 
96 The Constitution 
 
 whenever it is "necessary and proper" for it to do 
 so, in order to carry out any of the |)owers of the 
 National Government. It may also, in proper 
 cases, vest this powder in corporations chartered 
 by it. 
 
 Property is "taken," generally speaking, only 
 when the title to it is transferred to the Govern- 
 ment or the Government takes over or assumes to 
 control its valuable uses. It is not "taken" simply 
 because its value declines in consequence of an exer- 
 tion of lawful power by the Government. Thus, 
 Congress may lower the tariff or declare war, etc., 
 without having to compensate those who suffer 
 losses as a result of its action. 
 
 What is a "public use"? The Government can- 
 not take the property of one person and transfer it 
 :to another out of pure favoritism, even though it 
 pay the original owner a fair price ; but what may 
 at first glance seem a private purpose may be a 
 public one, as where a railroad company is vested 
 with the power of eminent domain. What is a 
 "public use" is in the first instance a question for 
 Congress, but finally one for the Supreme Court. 
 
 "Just compensation" must be determined by an 
 impartial body, not necessarily a court or a jury. 
 
 See also Article I, Section VIII, Paragraph 3, 
 at page 23. 
 
What It Means ToDay 97 
 
 Articxe VI. 
 
 In all criminal prosecutions the accused 
 shall enjoy the right to a speedy and public 
 trial, by an impartial jury of the State and 
 district wherein the crime shall have been 
 committed, which district shall have been 
 previously ascertained by law, and to be in- 
 formed of the nature and cause of the accu- 
 sation; to be confronted with the witnesses 
 against him ; to have compulsory process for 
 obtaining witnesses in his favor, and to 
 have the assistance of counsel for his de- 
 fense. 
 
 "A speedy trial" means a reasonably speedy trial, 
 and the right to it may be secured by the writ of 
 habeas corpus. "Public trial" does not mean one 
 to which the public at large is admitted, but one to 
 which representatives of the public and especially 
 friends of the prisoner are admitted in order to see 
 that justice is done. "Jury" means the common 
 law jury of twelve. 
 
 "State and district" : The prisoner is to have 
 such benefit as may be derived from his reputa- 
 tion among his neighbors. 
 
 "Confronted with the witnesses against him": 
 This is in order that he may be able to cross-ex- 
 amine them. 
 
 "Assistance of counsel" : The relation between 
 a prisoner and his counsel is a confidential one 
 
98 The Constitution 
 
 and communications between them may on no ac- 
 count be divulged in court. 
 
 Article VII. 
 
 In suits at common law, where the value 
 in controversy shall exceed twenty dollars, 
 the right of trial by jury shall be preserved, 
 and no fact tried by a jiu-y shall be other- 
 wise re-examined in any court of the United 
 States, than according to the rules of the 
 common law. 
 
 This Amendment, as we have seen, restricts the 
 power of the Supreme Court of the United 
 States in reviewing questions of fact upon appeal 
 from the lower Federal courts. '(See Article III, 
 Section II, Paragraph 2; p. 82.) 
 
 ArticIvE VIII. 
 
 Excessive bail shall not be required, nor 
 excessive fines imposed, nor cruel and un- 
 usual punishments inflicted. 
 
 "Cruel and unusual punishments" means cruel 
 and unusual punishments; that is, a punishment 
 is not forbidden merely because it is unusual. Thus, 
 the penalty of death may be inflicted by elec- 
 trocution. 
 
 ART1CI.E IX. 
 
 The enumeration in the Constitution of 
 certain rights shall not be construed to 
 
What It Means To-Day 99 
 
 deny or disparage others retained by the 
 people. 
 
 In other words, there are certain rights of so 
 fundamental a character that no free government 
 may trespass upon them, whether they are enum- 
 erated in the Constitution or not. 
 
 Article X. 
 
 The powers not delegated to the United 
 States by the Constitution, nor prohibited 
 by it to the States, are reserved to the States 
 respectively or to the people. 
 
 There was a tendency before the Civil War to 
 read' this Article as if it said that the powers re- 
 served by the States were not delegated to the 
 United States. Obviously, the proper reading is 
 that the powers reserved to the States are reserved 
 to them by the Constitution and conditionally 
 upon their not having been delegated to the United 
 States nor prohibited to the States. 
 
 "States" means the State governments and the 
 people of the States. 
 
 "The people" means the people of the United 
 States; that is, the same people who ordained and 
 established this Constitution (see Preamble), and, 
 therefore, have the right to amend it at will in ac- 
 cordance with the procedure prescribed by it (see 
 Article V; pp. 78-80.). 
 
loo The Constitution 
 
 AnTici^ XI. 
 
 The judicial power of the United States 
 shall not be construed to extend to any suit 
 in law or equity, commenced or prosecuted 
 against one of the United States by citizens 
 of another State, or by citizens or subjects 
 of any foreign State. 
 
 This Amendment was inserted primarily in order 
 to protect the States against suits for debt, but it 
 is construed to prevent any kind of suit being 
 brought in a national court against a State, not 
 only "by citizens of another State," but even by 
 the State's own citizens. A suit js, however, not 
 "commenced or prosecuted" against a State by 
 the appeal of a case which was instituted by the 
 State itself against a defendant who claims rights 
 under the Constitution or laws or treaties of the 
 United States (see Article III, Section II, Para- 
 graph I ; pp. 66-68. 
 
 Also, an officer of a State who is acting in viola- 
 tion of rights protected by the Constitution or 
 laws or treaties of the United States may not, since 
 he is acting contrary to "the supreme law of the 
 land" (see Article VI, Paragraph 2; p, 81), claim 
 the protection of this Amendment, and he may, ac- 
 cordingly, be prevented from so acting by writ of 
 injunction. 
 
What It Means To-Day ipi;> 
 
 Article XII. 
 
 [Par. I.J The electors shall meet in their 
 respective States and vote by ballot for 
 President and Vice-President, one of whom, 
 at least, shall not be an inhabitant of the 
 same State with themselves ; they shall name 
 in their ballots the person voted for as 
 President, and in distinct ballots the person 
 voted for as Vice-President, and they shall 
 make distinct lists of all persons voted for as 
 President and of all persons voted for as 
 Vice-President, and of the number of votes 
 for each ; which lists 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 Presi- 
 dent 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 for President shall 
 be the President, if such number be a ma- 
 jority of the whole number of electors ap- 
 pointed; and if no person have such major- 
 ity, then from the persons having the highest 
 numbers not exceeding three on the list of 
 those voted for as President, the House of 
 Representatives shall choose immediately, by 
 ballot, the President. But in choosing the 
 President the votes shall be taken by States, 
 the representation from each State having 
 one vote; a quorum for this purpose shall 
 
I02 The Constitution 
 
 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. 
 And if the House of Representatives shall not 
 choose a President whenever the right of 
 choice shall devolve upon them, before the 
 fourth day of March next following, then 
 the Vice-President shall act as President, as 
 in the case of the death or other constitu- 
 tional disability of the President. 
 
 [Par. 2.] The person having the greatest 
 number of votes as Vice-President shall be 
 the Vice-President, if such number be a 
 majority of the whole number of electors 
 appointed; and if no person have a majority, 
 then from the two highest numbers on the 
 list the Senate shall choose the Vice-Presi- 
 dent ; a quorum for the purpose shall consist 
 of two-thirds of the whole number of Sena- 
 tors, and a majority of the whole number 
 shall be necessary to a choice. But no person 
 constitutionally ineligible to the office of 
 President shall be eligible to that of Vice- 
 President of the United States. 
 
 This Amendment supersedes Article II, Section 
 III, above, of the original Constitution. It was 
 inserted on account of the tie between Jefferson 
 and Burr in the election of 1800. The differ- 
 ence between the procedure which it defines and 
 that which was laid down in the original Consti- 
 tution is in the provision it makes for a separate 
 
What It Means ToDay 103 
 
 desfgnation by the electors of their choice for 
 President and Vice-President respectively. 
 
 Articles XIII, XIV, and XV are the so-called 
 War Amendments. Article XIII freed the negro 
 from slavery, Article XIV made him a citizen and 
 bestowed upon him civil rights, Article XV made 
 him, temporarily at least, a voter. 
 
 Article XIII. 
 
 Section i. Neither slavery nor involun- 
 tary servitude, except as a punishment for 
 crime whereof the party shall have been duly 
 convicted, shall exist within the United 
 States or any place subject to their jurisdic- 
 tion. 
 
 Section 2. Congress shall have power to 
 enforce this article by appropriate legisla- 
 tion. 
 
 This Amendment was recently construed by the 
 Supreme Court in the following language: "This 
 Amendment was adopted with reference to con- 
 ditions existing since the foundation of our Gov- 
 ernment, and the term involuntary servitude was 
 intended to cover those forms of compulsory labor 
 akin to African slavery, which, in practical opera- 
 tion were intended to produce like undesirable 
 results. It was not intended to interdict enforce- 
 
I04 The Constitution 
 
 ment of those duties which individuals owe to the 
 State, such as services in the Army, militia, and the 
 jury, etc. The great purpose in view was liberty 
 under the protection of effective government, not 
 the destruction of the latter by depriving it of essen- 
 tial powers." 
 
 Article XIV. 
 
 Section i. All persons born or naturalized 
 in the United States, and subject to the juris- 
 diction thereof, are citizens of the United 
 States and of the State wherein they reside. 
 No State shall make or enforce any law 
 which shall abridge the privileges or immu- 
 nities of citizens of the United States ; nor 
 shall any State deprive any person of life, 
 liberty or property, without due process of 
 law ; nor deny to any person within its juris- 
 diction the equal protection of the laws. 
 
 The opening clause of this section makes national 
 citizenship primary and State citizenship derivative 
 therefrom. 
 
 "Subject to the jurisdiction thereof" : The chil- 
 di^n of foreign diplomats born in the United States 
 are not subjett to the jurisdiction of the United 
 States, and, therefore, are not citizens of the 
 Uhitied States. 
 
 "The privileges or immunities of citizens of the 
 United States" are those privileges and immuni- 
 ties which they derive from their national citizen- 
 
What It Means To-Day 105 
 
 ship, not their State citi2epship. They comprise, 
 in other words, those priyileges and immunities 
 which the Constitution, the la\ys, apd the treaties 
 of the United States confer upon them, such as 
 the right to engage in interstate and foreign com- 
 merce, the right to appeal in proper cases to the 
 federal Courts, the right to protection abroad, and 
 so on. 
 
 "Nor shall any State (leprive any person of life, 
 lijjerty, or property without due process of law" : 
 This clause, in a general way, imposes the same 
 kind of limitations upon the powers of the States 
 that the similar clause of Amendment V imposes 
 upon the powers of the National Government. 
 However, it should be noted that the Fourteenth 
 Amendment does not impose on the States the 
 same detailed requirements regarding criminal 
 procedure that the Fifth and Sixth Amendments 
 iijipose upon the National Governfneijt. For this 
 reason the States are regarded as being left quite 
 free by this Amendment in remodelling tbeir laws 
 of procedure. All that the Amendmisnt requires 
 of the States in this respect, the Court has stated, 
 is that the accuse,d person be given the right to a 
 fair hearing in a tribunal having jurisdiction of 
 his case, a definition of "due process of law" which 
 wotjld permit a State even to abolish trial by jury. 
 
 As we have seen, the principal legislative power 
 
io6 The Constitution 
 
 of the States is their "police power," which is the 
 power to promote the public health, safety, morals, 
 and general welfare. But not every measure that 
 a State may enact in pretended exercise of its 
 police power is necessarily constitutional. In order 
 that it may be "due process of law" it must have 
 "a real and substantial relation" to the recognized 
 ends of the police power. Thus, a compulsory 
 vaccination law, although a somewhat drastic 
 invasion of the field of private liberty, is, never- 
 theless, "due process of law" because of its clear 
 relation to the promotion of public health. On the 
 other hand, a law which gave the occupant of a 
 lower berth in a sleeping car the right to demand 
 that the upper berth should not be lowered except 
 for a purchaser was pronounced void as having 
 no reasonable relation to the acknowledged ends 
 of the police power. Again, a legislative measure 
 must not operate with undue harshness upon pri- 
 vate rights, unless it is clear that the general wel- 
 fare cannot be otherwise promoted. Thus, while 
 the State may forbid absolutely the manufacture 
 and sale of intoxicating beverages, it may not treat 
 private employment agencies so severely, since 
 in the latter case the public end to be obtained can 
 be obtained by regulation of the business. Fur- 
 thermore, in applying this clause the Court has rec- 
 ognized that "jurisprudence is a progressive sci- 
 
What It Means To-Day 107 
 
 ence," and so has felt free at times to give its sanc- 
 tion to legislation which originally it regarded as 
 violative of "due process of law." Thus, recently 
 it has sustained a general ten-hour day law in the 
 face of an earlier decision pronouncing a much more 
 restricted measure on the same subject unconstitu- 
 tional. 
 
 Summing the whole matter up, one may say that 
 "due process of law" is reasonable law and that 
 what is reasonable law will be determined by usage, 
 by the prevailing morality and by the preponderant 
 opinion of the community regarding the demands 
 of the public welfare. If, then, the Court appears 
 at times to hesitate to give its sanction to legislative 
 novelties which invade the accustomed field of indi- 
 vidual liberty, it is because it is not yet persuaded 
 that these novelties have back of them "a strong 
 and preponderant public opinion." 
 
 "Equal protection of the laws" : This clause does 
 not rule out legislative classifications, but only 
 those which are "unreasonable" or "arbitrary." 
 Thus, it is reasonable to deny aliens the use of shot 
 guns, but it is not reasonable to deny them the right 
 to work for a living. Again, it is reasonable to pro- 
 vide that whites and negroes shall travel in separate 
 cars, but it is not reasonable to require that they 
 shall be segregated as to their abodes. 
 
io8 The Constitution 
 
 Corporations are "persons" within the meaning' 
 of the Fourteenth Amendment, and so are entitled to 
 the "equal protection of the laws". This does not 
 mean that the law may not exact special duties of 
 them, but it does mean that such duties must bear 
 some reasonable relation to the fact that they are 
 corporations or to the nature of the business in 
 which they are engaged. Thus, in view of the 
 special dangers to which the railroad business ex- 
 poses the public, railroad companies may be re- 
 quired to stand the heavy expense of elevating their 
 grade crossings. On the other hand, a railroad may 
 not be required to pay attorney's fees for those who 
 sue it successfully. 
 
 See also Article I, Section VIII, Paragraph 3, 
 at page 27. 
 
 Section 2'. Representatives shall be appor- 
 tioned among the several States according 
 to their respective numbers, counting the 
 whole number of persons in each State, ex- 
 cluding Indians not taxed. But when the 
 right to vote at any election for the choice of 
 electors for President and Vice-President of 
 the United States, Representatives in Con- 
 gress, the executive and judicial officers of a 
 Sitate, or the members of the legislature 
 thereof, is denied to any of the male inhabi- 
 tants of such State, being twenty-one years 
 of age, and citizens of the United States, or 
 
What It Means To-Day 109 
 
 in any way abridged, except for participa- 
 tion in rebellion, or other crime, the basis 
 of representation therein shall be reduced in 
 the proportion which the number of such 
 male citizens shall bear tO' the whole number 
 of male citizens twenty-one years of age in 
 such State. 
 
 Section 3. No person shall be a Senator 
 or Representative in Congress, or elector of 
 President and Vice-President, or hold any 
 office, civil or military, under the United 
 States or under any State, who, having pre- 
 viously taken an oath as a member of Con- 
 gress, or as an officer of the United States, 
 or as a member of any State legislature, or 
 as an executive or judicial officer, of any 
 State, to support the Constitution of the 
 United States, shall have engaged in insur- 
 rection or rebellion against the same, or 
 given aid or comfort to the enemies thereof. 
 But Congress may, by a vote of two-thirds 
 of each house, remove such disability. 
 
 Section 4. The validity of the public debt 
 of the United States, authorized by law, in- 
 cluding debts incurred for payment of pen- 
 sions and bounties for services in suppress- 
 ing insurrection or rebellion, shall not be 
 questioned. But neither the United States 
 nor any State shall assume or pay any debt 
 or obligation incurred in aid of insurrection 
 or rebellion against the United States, or any 
 claim for the loss or emancipation of any 
 
no The Constitution 
 
 slave; but all such debts, obligations and 
 claims shall be held illegal and void. 
 
 These sections are today, for the most part, of 
 historical interest only. 
 
 Section 5. The Congress shall have power 
 to enforce, by appropriate legislation, the 
 provisions of this article. 
 
 Congress undoubtedly might claim under this 
 section a vast power in the regulation of civil rights 
 which it has never exercised. 
 
 ArticIvE XV. 
 
 Section i. The right of citizens of the 
 United States to vote shall not be denied or 
 abridged by the United States or by any 
 State on account of race, color or previous 
 condition of servitude. 
 
 While the right to vote may not be denied "on 
 account of race, color, or previous condition of 
 servitude," it may be denied upon other grounds, 
 such, for instance, as that of illiteracy; and, in fact, 
 most of the Southern States have imposed such 
 tests, which, in their practical application, usually 
 abridge the right of the negro to vote very seri- 
 ously. Laws of this character render a State liable 
 to have its representation in Congress reduced (see 
 Amendment XIV; Section 2, above), but actually 
 this penalty has never been imposed 
 
What It Means To-Day hi 
 
 Section 2. The Congress shall have power 
 to enforce this article by appropriate legisla- 
 tion. 
 
 Not since 1876 has the National Government 
 exercised any real power under this section, nor 
 would public sentiment today sanction such action. 
 
 ArticIvE XVI. 
 
 The Congress shall have power to lay and 
 collect taxes on incomes, from whatever 
 source derived, without apportionment 
 among the several States, and without re- 
 gard to any census or enumeration. 
 
 The occasion and operation of this Amendment 
 have already been discussed (see Article I, Section 
 VIII, Paragraph i; pp. 18-20). 
 
 Article XVII. 
 
 [Far. I.J The Senate of the United States 
 shall be composed of two Senators from each 
 State, elected by the people thereof, for six 
 years ; and each Senator shall have one vote. 
 The electors in each State shall have the 
 qualifications requisite for electors of the 
 most numerous branch of the State legisla- 
 tures. 
 
 [Par. 2. J When vacancies happen in the 
 representation of any State in the Stenate, 
 
112 The Constitution 
 
 the executive authority of such State shall 
 issue writs of election to fill such vacancies : 
 Provided, That the legislature of any State 
 may empower the executive thereof to make 
 temporary appointments until the people fill 
 the vacancies by election as the legislature 
 may direct. 
 
 [Par. 3. J This amendment shall not be so 
 construed as to affect the election or term 
 of any Senator chosen before it becomes 
 valid as part of the Constitution. 
 
 This Amendment, as was noted before, super- 
 sedes Article I, Section III, Paragraph i. 
 
 ArticIvE XVIII. 
 
 Section i. After one year from the rati^ 
 fication of this article the manufacture, sale 
 or transportation of intoxicating liquors 
 within, the importation thereof into, or the 
 exportation thereof from the United States 
 and all territory subject to the jurisdiction 
 thereof for beverage purposes is hereby pro- 
 hibited. 
 
 "Intoxicating liquors": It is for Congress to 
 define this term within reasonable limits. By the 
 recently-enacted Enforcement Act it defines as in- 
 toxicating any beverage containing more than 
 one-half of one per cent, of alcohol. The validity 
 of this enactment is now before the Supreme Court. 
 
What It Means To-Day 113 
 
 Section 2. The Congress and the several 
 States shall have concurrent power to en- 
 force this article by appropriate legislation. 
 
 "Concurrent power" : As hitherto used in Con- 
 stitutional Law, the term "concurrent power" has 
 signified a power on the part of the States to pass 
 laws within sorne field of power belonging to Con- 
 gress and such State laws have been held to be 
 valid only until Congress acted. Literally, how- 
 ever, the term "concurrent power" would seem to 
 signify power which must be exercised concur- 
 rently, that is conjointly. What meaning it has in 
 this Amendment is also a question now before the 
 Supreme Court. ( See also Article V ; pp. 78-80. ) 
 
 Article XIX. 
 
 Section i. The right of citizens of the 
 United States to vote shall not be denied or 
 abridged by the United States or by any 
 State on account of sex. 
 
 Section 2. Congress shall have jwwer, by 
 appropriate legislation, to enforce the pro- 
 visions of this article. 
 
 This amendment was passed by the House on 
 May 21, 1 9 19, and by the Senate on June 4, 1919. 
 It was ratified by the Wisconsin legislature on June 
 5th. Since then it has been accepted by the legisla- 
 tures of thirty-four other States. It needs therefore 
 
114 The Constitution 
 
 but one more ratification (May 22, 1920) to make 
 it a part of the Constitution. 
 
 ' Note. 
 
 The reader who wishes to pursue the subject fur- 
 ther is urged to go to the sources, that is, the deci- 
 sions of the Supreme Court itself. The most recent 
 and most compendious collection of leading cases on 
 American Constitutional Law is that of Mr. Law- 
 rence B. Evans, which is published by Callaghan and 
 Co., of Chicago. 
 
KF 4528 C83 
 
 Author Vol. 
 
 Corwin, Edward Samuel 1 
 
 Title Constitution and what it copy ; 
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