Article I, Section 1: 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.
Article I establishes the Legislative Branch of the federal government. Article I, Section 1 of the U.S. Constitution establishes the two parts of Congress, and grants all legislative powers to the two Houses of the Congress of the United States. When studying the language used in Article I, Section 1, the original intent by the Founding Fathers becomes clear.
The first word in the first section of Article I is the word “all.” The definition of all is “the whole of a particular thing.”
The next words in Article I, Section 1 are legislative powers. Legislative powers are the ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
The next word in the clause is “herein.” The primary definition of herein is “here in this document.”
After herein is the word granted. Granted is defined as “to give,” “to allow,” or more specifically “to legally transfer.” If powers are granted, then there must be a “grantor,” as well as a grantee. As we learned in our discussion regarding The Preamble, the “grantor” of the authorities enumerated in the Constitution is the States.
“Shall be” is definitive. The Constitution in its first clause reads, “All legislative powers herein granted shall be. . .,” shall be meaning “it is,” or “it will be.”
“Vested” is much like “granted.” Vested is a legal transfer of something, or in this case, an allowance to have legislative powers at the federal level granted to Congress.
The Congress of the United States is the legislative branch of the federal government, and this clause indicates that not only will the Congress be granted all legislative powers given to the federal government, but that the branch of government consists of two houses; a Senate and House of Representatives.
All legislative powers, according to this clause, are granted to the Congress by the States for the purpose of making law, modifying law, or repealing law. The powers are herein granted, which means that the laws must fall within the authorities granted by the text of the U.S. Constitution. In other words, laws made must remain consistent with the “powers herein granted.”
Based on language used in the first clause of the United States Constitution, when members of the judiciary legislates from the bench, or the President issues an executive order to modify a law, such action is unconstitutional. After all, “all legislative powers” were granted to the Congress, not to the judicial branch, or the executive branch.
Since all legislative powers belong to the Congress, that means any regulations by federal departments that are not in line with laws made by the Congress that are in line with the authorities granted by the Constitution are unconstitutional as well. All legislative powers belong to the Congress, therefore any “legislative actions” by regulatory agencies, which are a part of the executive branch, are not in line with the original intent of the Constitution.
Powers the federal government has were “granted” by the States. “We The People of the United States” granted those powers to the federal government through the Constitution. Therefore, if the federal government acts in a manner that is not consistent with the contract between the States and the U.S. Government, the States have the option to ignore those unconstitutional actions by the federal government. This action of ignoring unconstitutional law is the States’ way of being the final arbiters of the Constitution. The term for this kind of action by a State is nullification. Thomas Jefferson, in his draft of the Kentucky Resolutions, explained that any unconstitutional law is null and void, and as an illegal law, the States have the right to nullify it.
The concept that only Congress has legislative powers, only the executive branch has executive powers, and the judicial branch only has judicial powers, as described in the first sentence of each of the first three articles of the Constitution, is called Separation of Powers. The purpose of this philosophy is to disallow different branches from abusing the powers not granted to that branch, as well as to protect against collusion.
The Separation of Powers also exists between the States, and the federal government. Most authorities granted to the federal government are powers the States did not reserve to themselves. Most authorities retained by the States are not authorized to be administered to by the federal government. There are a few authorities that are concurrent, meaning that both the federal government, and the States, have some authority over the issue. One issue that is concurrent is immigration, which will be addressed later in this book. Sole authority over a particular power is called Exclusive Powers.
House of Representatives
Article I, Section 2 establishes, and defines, the House of Representatives. The members of the House of Representatives are divided among the States proportionally. As it is today, the House of Representatives was the voice of the people in the federal government. Each Representative is chosen to serve for two years, which means every two years every Representative is up for re-election, if they choose to run.
The eligibility of a Representative as explained by Article I, Section 2 requires that the candidate must be at least twenty-five years of age, and been a citizen of the United States for at least seven years. The age is lower than for Senators. Representatives were not expected to be as politically savvy as the Senators, and tended to have less experience. The age requirement simply reflected that. Political knowledge and experience tends to come with age.
Divided allegiance was a serious concern to the Founding Fathers. The requirement that Representatives have been citizens of the United States for at least seven years reflects that concern. Seven years, for a Representative of the people, was assumed to have been long enough for the Representative to have thrown off any allegiances to other nations.
The third clause of Article I, Section 2, includes the 3/5s clause, which was changed by the 14th Amendment following the American Civil War.
The Southern States used slaves for their agricultural economies. The southern states were needed to ratify the new constitution. As a condition for ratifying the Constitution, the southern states demanded that the slaves be counted as one whole person each. The idea was that if the slaves were counted as whole persons, the apportionment would tip the scales in their favor through increased representation in the new United States House of Representatives. White populations in the southern states were lower in number when compared to the northern states, due to the rural nature of the Slave States to the south.
The Northern States, under the heavy influence of merchants, political elitists, and a group of abolitionists, wanted the slaves counted as "zero" in order to reduce the number of representatives the southern states would receive, which would give the majority to the northern states, thus giving the north more legislative power. With this additional voting power in the House of Representatives, the northern states sought to have greater influence on the federal government through legislation. The plan was to use their legislative power to tyrannically force the southern states into submission, and to eventually abandon slavery.
In the interest of compromise, to convince the southern states to ratify the constitution, while giving the northern states the satisfaction that the southern states did not get exactly what they wanted, the decision was made that slaves would be counted as 3/5 of a whole person for the sake of apportionment. In other words, it was not a declaration that they believed blacks to be less than a person, but simply to affect the census in such a way that too much power through apportionment would not be given to either The North or The South, while also ensuring that the Constitution got ratified.
G.R. Mobley, author of We the People, Whose Constitution Is It Anyway?, believes the Founding Fathers missed a great opportunity to abolish slavery. He supports the idea that the 3/5s Clause was an error in judgment by the Founders, and that the authors of the Constitution should have only allowed those States that rejected slavery to be members of the union under the Constitution. By failing to ratify the Constitution the southern slave states would then have been on their own as a separate union. Pressure from the Spanish in Florida, and the threat of invasion by Spanish forces, would have then encouraged the slave states to abolish slavery, so that they may rejoin the union, and enjoy the strength of the union of all thirteen States.
Historically, it is impossible to know if that is exactly how it would have played out. Regardless of the opportunity, the Founders largely believed they had to compromise to ensure every State remained a member of the union, and ensure that they would receive the required nine ratifications of States in order to put the new federal government into motion.
Article I, Section 2, Clause 3, in addition to containing the 3/5s Clause, also establishes the census. The census is a required a head count to be taken once every ten years in order to determine the enumeration for establishing the number of Representatives each State shall receive. The clause also indicates that the number of Representatives shall not exceed one for every thirty thousand. This means there cannot be more than one Representative for a district of thirty thousand. However, it does not indicate there must be one Representative per thirty thousand. If that was the case, we would have thousands of Representatives.
Article I, Section 2, Clause 4 states that whenever vacancies happen in the House of Representatives, it is the duty of the Executive Authority to issue Writs of Election to fill such vacancies. What this means is that the Governors of the States have the duty to ensure there is a special election to fill any vacancies that may happen in the House of Representatives.
The House of Representatives chooses for itself its own Speaker of the House, and other officers.
According to Article I, Section 2, Clause 5, the House of Representatives has the sole power of impeachment. To impeach is to charge with misconduct. The formal process of impeachment may lead to removal of an official accused of unlawful activity or other offenses deemed to be impeachable offenses. Impeachment is not defined as removal from office, though removal from office is often the result of impeachment proceedings. In history, two presidents have been impeached, but neither were removed from office. The presidents who faced impeachment were Andrew Johnson (serving as President of the United States from 1865 to 1869), and William Jefferson Clinton (1993-2001). President Richard Nixon resigned in 1974 before impeachment proceedings began.
The United States Senate
Article I, Section 3 established, and defines, the United States Senate. The representation of the States in the U.S. Senate is equal, two per State. The Senators serve for six years, which means every two years an election is held for one-third of the Senate seats. The required minimum age of a Senator is thirty years, five years older than that of a Representative. The increased age requirement for Senators reveals the importance of longer life and political experience, as considered by the Founding Fathers. Allegiance to the United States also remained important to the framers in the U.S. Senate, requiring that Senators need to be nine years a citizen of the United States, rather than the seven years as required of Representatives.
Article I, Section 3 originally required that Senators were chosen by the legislatures of the States, rather than voted into office directly by the voters. The appointment of Senators by their State legislatures changed to the vote of the people in 1913 with the ratification of the 17th Amendment. By the State legislatures appointing the Senators, it made the Senate the voice of the States, while the House of Representatives was the voice of the people. By the Houses of Congress being different, it created a natural check and balance, which did not allow the representation of the people to accomplish anything without approval of the voice of the States, and vice versa.
Article I, Section 3, Clause 4 establishes the Vice President as the President of the Senate. The Vice President, though a member of the executive branch, is also connected to the legislative branch. The Vice President may preside over the sessions of the U.S. Senate, and even participate in the debates, but in the end, the Vice President has no vote in the U.S. Senate, except as the tie-breaking vote.
During the early days of our nation the Vice President attended a large number of sessions of the Senate. He served as the voice of the executive branch in the Senate, ensuring the States’ representation in Congress had the opportunity to be exposed to the executive branch’s opinions regarding the issues that concerned the States, and the union as a whole.
As with the House of Representatives, the Senate chooses its own officers. One of those officers is the President pro tempore, which is the President of the Senate when the Vice President is not present.
The House of Representatives has the sole power of impeachment. Article I, Section 3, Clause 6 gives the U.S. Senate the authority to try all impeachments. No conviction can be reached unless two-thirds of the U.S. Senate membership is present. Impeachment cannot extend further than the removal of the impeached from office, and the disqualification to hold any office in the future. However, a legal case can still be brought against the convicted from other sources, according to the law. Since the U.S. Senators were originally appointed by the legislatures of the individual States, this means that impeachment charges could be brought by the people (House of Representatives), but it took the States (Senate) to hear the case, and make the final determination after all evidence was provided. During impeachment hearings, the Chief Justice presides over the hearing, as provided by Article I, Section 3.
The 17th Amendment changed the dynamics of our governmental system. Note that many functions by the executive branch are subject to the advise and consent of the Senate. The Senate ratifies treaties, holds hearings for any appointments the executive branch nominates, and the Senate holds the sole power for holding hearings on impeachments. This is because actions by the federal government are subject to approval by the States. The States granted the federal government its powers in the first place.
The House of Representatives, as the voice of the people, and the Senate, as the voice of the States, and the natural check and balance that is the result of that relationship between those two Houses of Congress, also enables both Houses together to be a valuable check against the executive branch. One of the emanations of that correlation is the ability of Congress to override a veto with a 2/3 vote. The authority to override vetoes was established to enable the People, and the States, when they are in full agreement regarding a proposed bill, to be able to ensure a law is put into place, and to constrain the executive together through the power of combined vote.
Elections and Assembly of Congress
Article I, Section 4 begins, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This clause establishes that each State may have its own methods for electing members of the Congress. The same applies, as determined in Article II, to presidential elections. If there is a discrepancy, or a question regarding the acceptance of ballots, it is not the job of the courts to make final determination. Article I, Section 4 gives that authority to the State legislatures.
The same clause adds, after giving the State legislatures authority over federal elections, that “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Congress, as discussed earlier, is bicameral. The two Houses of Congress are the House of Representatives, and the United States Senate. The House of Representatives, at the time of the writing of the Constitution, was designed to be as it is now, the voice of the people. Representatives have always been elected by a direct vote. The United States Senate was the voice of the States, appointed by the State legislatures. The appointment of the Senators by representatives of the people is an example of an indirect vote.
As the representation of the people, and the States, Congress was not seen as the greatest potential danger in the federal government. Congress was the voice of the people and the States in the federal government; the eyes of the parents to ensure the central government did not grow beyond the authorities granted to it. With Congress representing the oversight by the people, and the States, the oversight powers given to the federal legislature often led to other authorities that allowed Congress to act as a check and balance against potentially dangerous government activity. Giving Congress oversight authorities was a way to ensure that Congress participated in the concept of a government “by the consent of the governed.”
Though elections were established with the State legislatures prescribing the times, places and manner of holding elections, as a check and balance against that authority, Congress may pass laws to “make or alter such regulations.”
At the end of the clause giving Congress the authority to act as an oversight regarding the manner in which elections are held, a qualifier is present, expressing, “except as to the Places of chusing Senators.”
A majority of delegates at the Federal Convention in 1787, by the conclusion of the assembly, were strong supporters of the sovereignty of the States, and the parental nature of the States in relation to the newly formed federal government, and the duty of the States as the final arbiters of the United States Constitution to ensure the new government functioned within the limitations granted to it. A part of that function by the States included the very important fact that the States had a voice in Congress with appointed U.S. Senators. The framers did not want that authority to be tinkered with, so they remind future generations at the end of this clause that though Congress has lawmaking authorities, and oversight authorities, manipulating the dynamics of government where the people, and the States, have a voice in the United States Congress is something not to be fiddled with. A similar advisement also appears at the end of Article V., “and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Oversight powers by the States were seen by the framers as being a right of the States, and as with natural rights of the people, a right is not something that should be able to be taken, but if the holder of the right wishes to give it away, no law can prevent such a foolish action.
The second paragraph of Article I, Section 4 reads, “The Congress shall assemble at least once in every Year.” The first thought regarding this clause by the typical reader may be, “Of course. How can they get anything done if Congress isn’t assembling?”
Another question may be, “Why did the framers feel it to be necessary to insert this clause into the Constitution?”
During the convention in 1787, there were some who felt this clause was “overburdensome.” Government was not supposed to dominate their everyday lives. The members of Congress were not professional politicians, nor did they care to be. They had businesses to run, and lives to live. Surely, the attitude of many of the Founding Fathers was, there is not enough business to compel Congress to meet every single year!
Those who supported the concept of an annual meeting reminded the others that Congress was the check the people and the States had available to them in the federal government. It was the duty of Congress to serve as a check against the President, and the federal judiciary. To be an effective check, Congress must meet at least once per year. The clause, it was argued, was for the benefit of the people.
In present day politics, the opposite seems to be the norm. Government is viewed as being broken if they do not act on an endless and constant flow of issues, committees, and crises. Politicians view their position as their job, rather than a service they are providing.
Originally, the required meeting day was the first Monday in December. That was later changed to noon on the third day of January by the 20th Amendment.
Article I, Section 5 requires Congress to have a minimum number of members present in order to do business. That majority constitutes a quorum, and if the Congress deems it necessary, the present members may set fines for members who do not show up. The Houses of Congress may remain in session, during which no formal business is conducted because the House does not have a quorum, so as to prevent executive actions that may be carried out during recess. This kind of session is called a pro forma session.
In Article II, Section 2, the President is given the authority to make recess appointments, when Congress is not in session. Normally, the United States Senate has advise and consent authority over appointments, which means that appointments of personnel to fill vacancies are possible for the President to grant, but such appointments requires the approval of the United States Senate (voice of the States). If the Senate is not in session, and an appointment is necessary, the President may make appointments, but the terms of those appointments only last to the end of the Senate’s next session. If the Senate is in a pro-forma session, the President may not make any appointments. With Congress only in session when there is work to be done, and the Founders believing that would likely only be once a year, the ability of the President to make appointments when Congress is not in session was a valuable, and necessary, tool. In today’s political environment, it seems like Congress is always in session, so recess appointments are not as common.
In early January of 2012, President Barack Obama used a recess appointment to name Richard Cordray the new Director of the Consumer Financial Protection Bureau (CFPB). The CFPB is a powerful bureaucracy created by the 2010 Dodd-Frank financial overhaul legislation. However, even though most of the members of Congress were on vacation, the United States Senate was still in session. President Obama’s definition of recess, it turned out, was broader than the Constitution’s definition. In reality, the U.S. Senate was in pro-forma session. John Berlau, Director of CEI's Center for Investors and Entrepreneurs, called the nomination of former Ohio Attorney General Richard Cordray "very troubling," criticizing both Obama's controversial use of a recess appointment, and the selection of Cordray itself. Berlau later asked, “What's next, appointing nominees when the Senate takes a bathroom break?”
Article I, Section 5 also allows each House of Congress to determine its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.
The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was used when Charles Rangel broke the rules of the House of Representatives. He faced a panel for his actions, and was punished by censure in December of 2010. He later sued, spending about a third of his 2014 campaign cash on legal bills in a failed bid to overturn his fall from congressional grace. On December 11, 2013, a federal judge in Washington dismissed the lawsuit, filed by Rangel in the previous April, to get the censure overturned.
The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people. Deals behind closed doors were not supposed to be a part of our political system.
When President George Washington took office, he refused to accept the constitutionally allowed compensation for holding the office. He viewed his office as being a privilege, and an opportunity to once again serve the country he loved. During the Constitutional Convention, Benjamin Franklin considered proposing that elected government officials not be paid for their service. By the end of the debate, it was decided that government representatives should receive fixed stipends by which they may be compensated for the devotion of their time to public service. It was also determined, however, that the compensation should not be so high that it would become the motive for seeking office.
Article I, Section 6 of the Constitution addresses compensation, and the rules regarding such. Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress.
Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies who may wish to keep certain members of Congress from voting.
This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office.
To explain this clause, let’s visit a recent violation of it during the Obama administration.
After Barack Obama won the 2008 Presidential Election, he announced that Hillary Clinton would be his new Secretary of State. The position of Secretary of State received a pay raise while Hillary Clinton was a member of the United States Senate. Article I, Section 6 states that “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall be been created, or the Emoluments whereof shall have been encreased during such time.” Since Clinton was a Senator at the time the position of Secretary of State was given a raise, technically she was not eligible for the position to which she was appointed. To resolve this problem, and still allow Mrs. Clinton to accept the position, the Democrats applied the Saxbe Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxbe Fix, or a Salary rollback, is an unconstitutional action. The clause in the Constitution is clear: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.”
The Saxbe Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.
As a tool, the Saxbe fix was nothing new. The salary rollback in the case of a violation of Article I, Section 6, a mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired, was first used in 1909. The “Saxbe” name was applied to the political maneuver later in history. The Saxbe Fix is named for William Saxbe, a Senator appointed Attorney General by President Richard Nixon in 1973.
Adjourn: Suspend proceedings to a later time and/or place.
Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.
Congress of the United States: The legislative branch of the federal government which consists of two houses; a Senate and House of Representatives. The Congress is the only part of the federal government granted the authority of legislative powers.
Granted: To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty. To legally transfer.
Impeachment: To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
Legislative Powers: The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
Nullification: State power to ignore unconstitutional federal law.
President pro tempore: Second highest ranking official of the United States Senate. Vice President is President of the Senate and the highest-ranking official of the Senate despite not being a member of the body. During the Vice President's absence, the president pro tempore presides over its sessions or appoints another senator to do so. The president pro tempore is elected by the Senate and is customarily the most senior senator in the majority party.
Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other." Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.
Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.
Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.
Questions for Discussion:
1. If only Congress can make law, then why do some politicians believe that Executive Orders can modify law, or that regulatory agencies can create new regulations to enforce laws that were never passed by Congress?
2. The word “granted” reminds us that all powers once belonged to the States, and some of those authorities were “granted” to the federal government for the purpose of carrying out the tasks necessary for the protection, preservation, and promotion of the union. If the federal government was created by the States, then how can statists justify their belief that all federal laws trump all State laws?
3. Why do you think the Congress has two legislative houses?
4. Why do you think representatives are only elected for two years?
5. Why is it significant that only the House can originate bills for raising revenue?
6. Why is the power of impeachment belonging to the House so important?
7. As President of the Senate, what kind of role should the Vice President play in the day to day activities of the United States Senate?
8. Why do you think the House of Representatives has the sole power of impeachment, but the Senate has the task of hearing the case?
9. How are the dynamics of our governmental system different in relation to how the Senators are appointed, or voted for?
10. How was the Senate expected to check the House of Representatives, and work together with the House to check the Executive and Judiciary?
11. Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?
12. Why was Congress given the allowance to pass laws that may make or alter such regulations?
13. Why was the federal government prohibited from influencing the places for choosing Senators?
14. To conduct business, the houses of Congress need a quorum. If they do not have a majority, they may remain in session through a rule established by Congress called pro forma. What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?
15. Why do you think neither house can adjourn without the permission of the other?
16. The houses of Congress establish their own rules of procedure. If a member breaks any of these rules, Congress also has the authority to punish the rule breaker. One type of punishment is called censure. How is censure an adequate punishment?
17. How has the concept of transparency changed over the last two hundred years?
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).
Prior to the Civil War, any federal legislation related to slavery dealt with the importation of slaves. Aspects of slavery inside State lines were considered a State issue.
Article I, Section 9, Clause 1 abolished the Atlantic slave trade, and the United States Government intervened militarily to ensure the law prohibiting the importation of slaves was enforced. The Framers of the Constitution believed that in order to ensure the southern States did their part in ratifying the Constitution, while remaining consistent with the concept of the federal government only having authority over external issues, and disputes between the States, they could not abolish slavery nationally through the articles presented by the Constitution. A large number of delegates at the federal convention in 1787 desired the immediate abolition of slavery, but the fear was that the southern States would not only refuse to ratify the Constitution, but that they would refuse to remain a part of the union, eventually succumbing to attacks from Florida and absorbed into the Spanish Empire.
A proposed amendment to abolish slavery during the American Civil War finally passed the Senate on April 8, 1864, by a vote of 38 to 6, but the House did not approve it.
When the proposed amendment was reintroduced by Representative Ashley, President Lincoln took an active role in working for its passage through the House by ensuring the amendment was added to the Republican Party platform for the upcoming Presidential elections. Lincoln’s efforts, combined with the result of the War Between the States, ensured the House passed the bill on January 31, 1865, by a vote of 119 to 56.
The 13th Amendment was ratified into law on December 6, 1865.
Atlantic Slave Trade - Started by the Portuguese, but soon dominated by the English, the Atlantic Slave Trade was the sale and exploitation of African slaves by Europeans that occurred in and around the Atlantic Ocean from the 15th century to the 19th century.
War Between the States - The Civil War was fought from 1861 to 1865 after Seven Southern slave States seceded from the United States, forming the Confederate States of America. The "Confederacy" grew to include eleven States. The war was fought between the States that did not declare secession, known as the "Union" or the "North", and the Confederate States. The war found its origin in the concept of State’s Rights, but became largely regarding the issue of slavery after President Abraham Lincoln delivered the Emancipation Proclamation. Over 600,000 Union and Confederate soldiers died, and much of the South's infrastructure was destroyed. After the War, Amendments 13, 14, and 15 were proposed and ratified to abolish slavery in the United States, and to begin the process of protecting the civil rights of the freed slaves.
Questions for Discussion:
1. Why wasn’t slavery abolished at the founding of this nation?
2. Why did the House of Representatives not originally approve this amendment?
3. How has the abolition of slavery affected this nation since the ratification of the 13th Amendment?
Congressional Proposals and Senate Passage Harper Weekly. The
Creation of the 13th Amendment. Retrieved Feb. 15, 2007
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Citizenship, Civil Rights, and Apportionment
The 14th Amendment to the United States Constitution failed in 1866 after the southern States rejected the proposed amendment. After a second attempt to ratify the amendment, it was adopted on July 9, 1868. The ratification of the 14th Amendment occurred after the federal government began to govern the South through a system of military districts. Some historians question the validity of the ratification of the 14th Amendment because it is believed by these historians that the southern States ratified the amendment under duress, and pressure applied by the northern governorships in each of the southern States during the early part of the Reconstruction Period.
The first clause of the 14th Amendment is known as “The Citizenship Clause.” The clause was intended to ensure the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument. The clause reads:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This clause has been misinterpreted to mean all persons born in the United States are automatically citizens, which is not the case. The defining term in this clause that enables the reader to recognize that citizenship needs more than just being born on American soil reads: "subject to the jurisdiction, thereof."
To understand the term jurisdiction, one may go to the debates on the congressional record of the 14th Amendment. In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that “full jurisdiction” was meant to mean “full allegiance to America.” The intention was to protect the nation against persons with divided loyalties.
The writers of the 14th Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers. As far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.
Despite the defeat of the Confederacy in the American Civil War, the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been. The former slaves were present in the United States legally, and because they were here legally they were "subject to the jurisdiction thereof," but they were still not receiving any assurance of equal protection under the law.
The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.
Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
Senator Howard’s responses to questions regarding the language he used in the Citizenship Clause were recorded in The Congressional Globe, which are the recorded transcripts of the debates over the 14th Amendment by the 139th Congress:
Mr. HOWARD: “I now move to take up House joint resolution No. 127.”
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
“The 1st Amendment is to section one, declaring that all persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
Senator Howard even went out of his way to indicate that children born on American soil of foreign citizens are not included.
Clearly, the framers of the 14th Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.
The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."
The full quote by Senator Trumbull:
"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."
Senator Howard concurred with what Mr. Trumbull had to say:
"I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.
The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts. Changes to the Constitution can only be made by amendment (Article V.).
It was through the progressive actions of the Lincoln administration in the American Civil War, and the actions of the courts to incorporate the Bill of Rights to the States, that America ceased to be “The United States Are,” and became a more nationalistic “The United States Is.”
Privileges and Immunities Clause
The next clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was expected to protect the newly emancipated slaves from local legislation that may treat them differently. This clause was a direct response to the Black Codes, laws passed in the States that were designed to limit the former slaves from obtaining all of the freedoms they thought they had been guaranteed.
The Due Process Clause of the 14th Amendment prohibits state and local governments from depriving persons of the proper due process of law. The right to a fair trial was to be extended to all persons, including the emancipated slaves.
Due Process Clause and Equal Protection Clause
The Due Process Clause, and the Equal Protection clause, have been the subject of debate since the language written by Congressman John Bingham, the principal author of the later part of Section 1 of the 14th Amendment, was first penned. Bingham believed the federal government should use all national tools available to ensure the southern States behaved as instructed. Bingham repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the States, but the majority of the members of Congress present did not concur with his muddled and inconsistent argument.
Author Raoul Berger, in his book Government by Judiciary, discussed whether the 14th Amendment should be construed to enforce the Bill of Rights against the States. Relying on the analysis of Professor Charles Fairman in his published article, Does the Fourteenth Amendment Incorporate the Bill of Rights?, Berger concluded that Bingham was a "muddled" thinker whose views should be discounted. Berger agreed with Fairman that the framers of the 14th Amendment did not intend it to enforce the Bill of Rights against the States. Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the States through the 14th Amendment
Antislavery activists largely supported Bingham’s conclusion that that Bill of Rights must be applied to the States, and such application must be enforced by the federal government. Though the Bill of Rights was originally intended by the Founding Fathers not to apply to the States, and with less than a centuryt since the American Revolution and the writing of the Constitution behind them, Bingham’s supporters contended that local jurisdiction over cases regarding an individual’s rights could no longer be allowed because the southern States could not be trusted to be fair to the newly emancipated slaves.
Bingham’s call for an incorporation of the Bill of Rights to the States established the concept that all people’s rights are supposed to be protected by the federal government. The Founding Fathers did not apply the Bill of Rights to the States from the beginning because giving that kind of power to a potentially tyrannical federal government carries with it many pitfalls. As the quote by Gerald Ford goes, “A government big enough to give you everything you want is a government big enough to take from you everything you have.” Nonetheless, despite the dangers of a central government dictating to the States regarding their laws regarding individual rights, because of the mistreatment of the former slaves by the Southern States, the Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause, have been commonly interpreted to mean that the Bill of Rights is applicable to the States.
Since the Incorporation of the Bill of Rights did not take hold as a result of the 14th Amendment, as the statists that supported Bingham’s position had desired, the federal courts stepped in and took pursuit. Pursuing a nationalist agenda, the courts disregarded the original intent of the Framers of the Constitution, as well as the conclusions of the Congress regarding the 14th Amendment, and began to selectively incorporate the Bill of Rights to the States, beginning with the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause as the authority to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation.
The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.
The attitude of the southern States, and their refusal to treat the former slaves fairly led to a perceived need for clarification and enforcement by the federal government, which led to the passage of the Civil Rights Act of 1866, and eventually to the Civil Rights Movement of the 1960s.
A separate but equal doctrine existed for more than fifty years, despite numerous attempts to ensure blacks enjoyed full rights and privileges of citizenship.
In modern politics, laws continue to test the limits of the Equal Protection Clause. While the clause was intended to make sure that everyone is treated equally under the law, politicians supporting the Affordable Care Act have handed out exemptions to members of Congress, and some individuals or corporations, allowing those that receive the exemptions to be treated differently under the law.
Section 2 of the 14th Amendment altered the rules for the apportioning of Representatives in the Congress to the States. The enumeration was changed to include all residents, while also calling for a reduction of a State's apportionment if it wrongfully denies any adult male's right to vote.
For fear that the former slaves would support the Republicans, southern Democrats worked feverishly to dissuade blacks from voting. Section 2 addressed this problem by offering to the southern States the opportunity to enfranchise black voters, or lose congressional representation.
Consequences of Insurrection
Section 3 of the 14th Amendment prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion or treason. A two-thirds vote by each House of the Congress could override this limitation. The interest was to ban the service of any members of the Confederacy that refused to renounce their participation in the Confederacy.
Public Debt as a Result of the War
Section 4 of the 14th Amendment confirmed the legitimacy of all United States public debt appropriated by Congress. The clause also indicated that neither the United States nor any State would pay for the loss of slaves or debts that had been incurred by the Confederacy. This clause was to ensure that all States recognized the validity of the debt appropriated by Congress as a result of the war, while bonds secured by the Confederacy in order to help finance the South’s part of the war “went beyond congressional power.”
Political battles over the debt ceiling in 2011 and 2013 encouraged some politicians to argue that the “validity of the public debt” clause outlawed a debt ceiling, because placing a limit on federal spending interferes with the duty of the government to pay interest on outstanding bonds and to make payments owed to pensioners (such as Social Security). The clause in the 14th Amendment addressing the validity of the public debt, however, was never intended to be a general clause to be used by future administrations, but a specific clause only addressing the debt accrued as a result of the American Civil War.
The final clause of the 14th Amendment authorizes Congress to “enforce, by appropriate legislation, the provisions of this article.” Federal intrusion upon the States, however, has been a long-time fear by those that support the concept of State Sovereignty. The question regarding enforcement was addressed in the Civil Rights Cases of 1883, where the opinion of the Supreme Court interpreted Section 5 of the 14th Amendment to mean that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation".
In a more recent case, City of Boerne v. Flores, 1997, the Supreme Court ruled that Congress's enforcement power according to the last clause of the 14th Amendment is limited to only enacting legislation as a response to a "congruence and proportionality" between the injury to a person's 14th Amendment rights and the means Congress adopted to prevent or remedy that injury.
Court interpretation of the Constitution can be a dangerous practice, and we must remember that any interpretation of the Constitution offered by the courts in a ruling are merely opinions. The final authority regarding the definitions of Constitutional law resides with the people, through their States. Any allowance of the courts to fully define the Constitution at the whims of the judges opens up the opportunity for the courts to change definitions for ideological purposes, resulting in a judicial oligarchy, rather than a constitutional republic driven by the consent of the governed, and the self-evident standards of Natural Law.
Black Codes - Laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks.
Constitutional Republic - Government that adheres to the rule or authority of the principles of a constitution. A representative government that operates under the rule of law.
Equal Protection Under the Law - Laws must treat an individual resident or citizen in the same manner.
Incorporation of the Bill of Rights - The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.
Jurisdiction - Full loyalty, a condition in which all foreign allegiances have been released; not owing allegiance to anybody else.
Military Districts - Districts created in the seceded states (not including Tennessee, which had ratified the 14th Amendment and was readmitted to the Union), headed by a military official empowered to appoint and remove state officials.
Nationalist - An advocate of Nationalism.
Natural Law - Unchanging moral principles regarded as a basis for all human conduct; observable law relating to natural existence; birthright law.
Original Intent - Original meaning of the United States Constitution as intended by the framers during the Federal Convention of 1787, and the subsequent State Ratification Conventions.
Public Debt - National debt; the financial obligations of a national government resulting from deficit spending.
Reconstruction Period - Period following the American Civil War during which the United States government began to rebuild the States that had seceded from the Union to form the Confederacy, lasting from 1865-1877. During Reconstruction, the federal government proposed a number of plans and committed large amount of resources, to the readmittance to the union, and the rebuilding, of the defeated Confederate States.
Separate But Equal - Various laws designed to undermine the 14th Amendment requirement that former slaves be treated equally under the law, contending that the requirement of equality could be met in a manner that kept the races separate. The result of these laws was a generally accepted doctrine of segregation throughout The South.
State Sovereignty - The individual autonomy of the several states; strong local government was considered the key to freedom; a limited government is the essence of liberty.
United States are - These States that are united; a group of sovereign member States in America voluntarily united into a republic.
United States is - Nation of the United States containing a number of States similar to provinces ruled over by a centralized federal government.
Questions for Discussion:
1. How might have the governors of the military districts influenced the ratification of the 14th Amendment?
2. Does the Citizenship Clause have anything to do with Natural Born Citizenship? Why?
3. Why was Congress concerned with the threat of divided allegiance?
4. Did the 14th Amendment eliminate laws like the Black Codes, as intended?
5. How is it that despite the original intent of those that voted for the 14th Amendment that the Bill of Rights not be applied to the States most of the first ten amendments have been applied to the States anyway?
6. What pieces of legislation since the ratification of this amendment have been passed in order to ensure that the Equal Protection Clause is properly enforced?
Congressional Globe, 39th Congress (1866) pg. 2890: Senator Jacob
Howard States the Intent of the Fourteenth Amendment Published in the Congressional Record, May 30, 1866.
Doris Kearns Goodwin, Team of Rivals: The Political Genius of
Abraham Lincoln; New York: Simon & Schuster Paperbacks (2005)
Frank J. Williams, Judging Lincoln; Carbondale: Southern Illinois University Press (2002)
John F. Marszalek, Sherman: A Soldier’s Passion for Order; New York:
Vintage Civil War Library (1993)
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham
Lincoln, His Agenda, and an Unnecessary War; Roseville, California: Prima Publishing, a division of Random House (2002)
William S. NcFeely, Grant; New York: W.W. Norton & Company
The 15th Amendment was designed to protect the voting rights of all citizens, regardless of race, color, or if the voter had previously been a slave or indentured servant. As stated in the amendment, this article applies to both the federal government, and the States.
As the third reconstruction amendment, the 15th Amendment faced another challenge that was unexpected. In some States the requirements were that all voters and candidates must be Christians. As originally written, the amendment would require these States to change their rules regarding the manner of elections. Realizing the ratification of the amendment may depend on the support of the States with Christianity requirements regarding elections, the amendment was revised in a conference committee to remove any reference to holding office or religion and only prohibited discrimination based on race, color or previous condition of servitude.
Democrat Party created militias, like the Ku Klux Klan, continued to try and intimidate black voters and white Republicans. The federal government promised support, assuring that black and Republican voters could both vote, and serve, in confidence. When an all-white mob in the Battle of Liberty Place attempted to take over the interracial government of New Orleans, President Ulysses S. Grant sent in federal troops to restore the elected mayor.
President Rutherford B. Hayes narrowly won the election in 1876. To appease the South after his close election, in the hopes of gaining their support and soothing angry Democrats, President Hayes agreed to withdraw the federal troops who had been occupying the South since the end of the Civil War. The hope was that the southern States were ready to handle their own affairs without a need for any interference from the North.
In the process, President Hayes also overlooked rampant fraud and electoral violence in the Deep South, despite several attempts by Republicans to pass laws protecting the rights of black voters and to punish intimidation. Without the restrictions, voting place violence against blacks and Republicans increased, including instances of murder.
By the 1890s many of the southern States had enacted voter eligibility laws that included literacy tests and poll taxes. Since the black population was normally steeped in poverty, the inability to afford the poll tax kept them from voting in elections.
It took nearly a century for the promise of the Fifteenth Amendment to finally take hold. The ratification of the 24th Amendment in 1964, which eliminated poll taxes, and the passage of the Voting Rights Act of 1965, served to ensure that blacks in the South were able to freely register to vote, and vote without any obstacles.
Poll Tax - A tax levied on people rather than on property, often as a requirement for voting.
Questions for Discussion:
1. Why was the wording of the Fifteenth Amendment changed to not include discrimination based on religion?
2. Why do you think the Democrat Party played a part in forming the Ku Klux Klan?
3. Why did President Hayes withdraw federal protections against racial discrimination in the South?
4. How did poll taxes enable the Southern Democrats from keeping Blacks from being able to vote without violating the Constitution?
5. Why do you think it took nearly a century for the promise of the Fifteenth Amendment to be realized?
Congressional Globe, 40th Cong., 3d Sess (1869) pg. 1318
Foner, Eric, Reconstruction: America's Unfinished
Revolution, 1863-1877; New York: Harper Perennial Modern
Gillette, William, The Right to Vote: Politics and the Passage of the
Fifteenth Amendment; Baltimore: John Hopkins Press (1969)