U.S. Constitution and Comments

Britain in 1760 was a country in the midst of great transition politically, economically and culturally. It many ways, it had one foot in the modern, one foot in the medieval. Moreover, Britain was in the midst of the Enlightenment era, with its great scientific advances and re-conception of government as a social contract, and 1760 marked the first year of the Industrial Revolution in Britain.

Politically, Britain was maturing, but had not yet done away with those medieval customs of government that were at odds with a Parliamentary system. England never had an absolute monarchy that existed above the law, though several monarchs tried. Hundreds of years of history, bloodshed and two revolutions in the last century had established that the King's power was checked and balanced by that of Parliament. That same history had established that Parliament controlled the laws and the purse strings of government. And it had established, by compact and common law, that the King was restrained to treat the people fairly within the rubric of due process. All of that made Britain, of 1760, the government that provided its citizens the most freedom of any in the world. And all of those things, our Founders copied into the U.S. Constitution.

Specifically, those things where:

1. A bicameral legislature with an Executive
2. Each house created their own rules and had sole power to verify elections to their body.
3. The House controlled the purse strings of government.
4. The House was elected in a democratic vote, though the franchise was limited.
5. All laws, including most notably revenue laws, had to initiate in the House and pass by a vote of both bodies of the legislature.
6. An Executive was created with many of the same powers of King George III. He was in charge of the administration of government, he appointed ministers and judges, and he oversaw the military and foreign affairs.
7. Checks and Balances as between the legislature and the Executive
8. British individual protections from government:

i) Right to assemble and petition governments (Magna Carta of 1215)

ii) Individual right to bear arms (Eng. Bill of Rights of 1689)

iii) No quartering of soldiers (Petition of Right of 1628)

iv) Right to be free from search by General Warrant (Magna Carta of 1215)

v) Due Process of Law to take property, liberty or life (Magna Carta of 1215)

vi) Due Process – Grand Jury (14^th century English common law)

7. No Double Jeopardy (11^th century English common law)
8. No compelled Self Incrimination (15^th century English common law)
9. Right to jury trial, both speedy and public (Magna Carta of 1215)
10. Private property cannot be taken without just compensation (Magna Carta of 1215)
11. Right to confront witnesses against the accused at trial (Magna Carta of 1215)
12. No cruel or unusual punishment, including excessive fines (Magna Carta of 1215)
13. Habeus Corpus (12^th century English common law)

There were still grave weaknesses in the British system. Though nominally a republican form of government in that people had a right to vote for representatives to the House of Commons, the reality was that the franchise, which extended only to white male property holders of sufficient wealth and property, was severely limited. Moreover, voting districts for the House of Commons were set in Medieval times and not changed with huge shifts in demographics, thus creating rotten boroughs. Add to all of that the fact that none of the members of Parliament received a salary – thus limiting the opportunity to serve in Parliament to only the independently wealthy – and what Britain had was a workable system that was significantly corrupt. Indeed, historically, it is known as the Unreformed House of Commons.

One of the questions often raised is, if the colonists complained so bitterly about taxation without representation, why didn't Britain just arrange for each colony to have seats in Parliament. The answer, it seems, is that doing so would have upset the balance of power in Parliament, perched as it was on a corrupted system of representation. Britain would have had to reform its entire system. Better to war with the colonists than do that.

Another weakness of the British system was that the Courts, which played a huge role in the development of common law and many of the rights of British system, never were given – nor did they assume – the power to review acts of Parliament. Thus, the Courts were cut off being part of the system of checks and balances.

Lastly, a vestige of the Medieval patronage system was still alive and well in 1760. The King had sole power of appointment to government posts, and he filled those positions with placemen. The King could also grant sinecures, positions that paid money with little or no work required. And King George III was certainly not above buying the loyalty and votes of members of Parliament. No one in Britain looked askance at it at the time. Lastly, many of the government positions were based on a bounty system which invited corruption. For instance, those charged with enforcing the customs laws were rewarded with a percentage of the proceeds from ships and cargo that they impounded for smuggling.

Corrections to the British system in the U.S. Constitution

1. Census required every 10 years and representatives reapportioned.
2. Regular annual meeting of Congress not controlled by the Executive
3. Prevented Senators and Representatives from accepting “sinecures” or “emoluments” while in office.
4. No person could hold a federal executive office and sit in Congress.
5. Limitations on power of the Executive
   1. Power to appoint ministers and judges subject to Senate advice and consent
   2. Power to ink treaties subject to Senate approval
   3. May not dissolve or adjourn Congress.
   4. War powers limited and shared with Congress.
   5. Time limited in office and picked by electors.

Most of those things, we tried to correct in the U.S. Constitution. And while Britain would correct for many of these things themselves in the coming decades, it is perhaps the greatest single irony of the Revolution that, in an effort to justify taking away the rights of British citizens from the American colonists, Britain adopted the concept of Parliamentary Supremacy, meaning that their government, to this day, can modify ancient British rights – or extinguish them – upon a whim. Freedom of speech and the individual right to bear arms are the two most obvious examples of rights formerly held but now almost completely stripped from British citizens.

Economically, Britain of 1760 was on the cusp of transition, and not merely because of the incipient industrial revolution. The mercantile and monetary policies Britain had pursued when its colonies were in their infancy had made Britain wealthy. But those same policies proved increasingly problematic as the American colonies matured and expanded. It was a mixture of jealousy, arrogance, and a desire to keep the American colonies bottled into the mercantile system that led directly to the American Revolution. To keep the colonists bottled into that system, Britain had to deny the colonists their birthright as British citizens, the right to only be subject to the laws and taxes which their representatives had passed. Britain would leave mercantile economics behind after the American Revolution, in light of the Revolution and in light of Adam Smith's new theory of economics, that of free (and fair) market capitalism, published in 1776.

-------------------------

No Taxation without Representation; Heritage Foundation comment on Administrative Agencies

Heritage Foundation comment on organization of Courts

[1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]

US Constitution

Article 1 – The Legislative Branch

Article I, § 1 – (Legislative Vesting Clause) - 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. [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights] [No Taxation w/out Rep.]

Article I, § 2: House (Amended) 14^th Am. § 2 (1868)

Clause 1

• length of terms, (equal vs.) proportional representation of states, and direct democratic selection.
• Elector Qualifications [modified by amendment prohibiting governments from denying right to vote based on race – 15^th Am. (1870), sex – 19^th Am. (1920), failure to pay a poll tax – 24^th Am. (1964), and, for those 18 or older, age – 26^th Am. (1971); SCT – taxpayers

Clause 2 – Qualifications for office
Clause 3 –

• 3/5ths Clause
• Enumeration Clause (Census) [Britain Pocket Boroughs - notorious]
• Allocation of Representatives [Britain Pocket Boroughs - notorious]

Clause 4 – Executive [state] Writ of Election (required to fill empty seats)
Clause 5 –
– Speaker of the House (House makes its own rules free of interference)
– Impeachment

Article I, Section 3: Senate (Amended)

Clause 1 – Composition and Means of Selection amended 17^th Am. § 1 (1913)

Clause 2 – Senatorial Classes and Vacancies Clause
Clause 3 – Qualifications for Senators
Clause 4 – Vice-President as Presiding Officer
Clause 5 – Senate to Choose its Officers & President Pro-Tempore
Clause 6 – Trial of Impeachment
Clause 7 – Punishment for Impeachment

Article I, Section 4: Elections, Meetings Amended 20^th Am. (1933)

Clause 1 – Time, Place and Manner of Elections

Clause 2 – Meetings of Congress [1628 Pet. of Right] [1689 Eng. Bill of Rights] [Gov. called elections and dismissed the colonists' House of Commons at will]

Article I, Section 5: Membership, Rules, Journals, Adjournment

Clause 1 – Qualifications & Quorum. Each legislative body to be the sole judge of its elections, returns, and the qualifications of its members. [Gadsden incident]

Clause 2 – Rules and Expulsion. Each legislative body to create its own rules and may discipline and/or expel its members for malfeasance while in office (but not before they assumed office)

Clause 3 – House Journal
Clause 4 – Adjournment requires mutual agreement of the legislative bodies.

Article I, Section 6 – Compensation Amended 27^th Am. (1992)

Clause 1 –

• Compensation Clause
• Privilege From Arrest Clause
• Speech and Debate Clause

Clause 2 –
– Sinecure Clause – to stop bribery (as by the King) and corruption [notorious British practice]
– Incompatibility Clause [Hutchinson, Egerton Leigh, British practice of MP's also acting as Cabinet Ministers, thus the potential for self-dealing]

Article I, Section 7 - Revenue Bills, Legislative Process, Presidential Veto

Clause 1 – Origination Clause – all revenue bills must originate in the House [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]

Clause 2 –
– Presentment Clause (bills approved in Congress to be presented to the President)
– Pocket Veto
Clause 3 – Presentment of Resolutions (2/3^rd of Congress can override Presidential veto)

Article I, Section 8 - Powers of Congress (Limited due to a desire for less dangerous fed. Government, Federalism – which was unknown to Britain, and a response to Parliament's assumption of vast powers)

Clause1

• Spending Clause (Congress has power to tax to pay the debts of the US and to provide for defense and the general Welfare)
• Uniformity Clause (all duties imposts and excises to be uniform throughout the country)

Clause 2 – Borrowing Clause – Congress has the power to borrow money on the credit of the U.S.

Clause 3 (Commerce Clause)
– Commerce with Foreign Nations
– Commerce among the States
– Commerce with Indian Tribes
Clause 4 –

• Naturalization (uniform rules for immigration and naturalization)
• Bankruptcy Clause (uniform rules)

Clause 5 –

• Coinage Clause [Chaos Caused by British Monetary Policies]
• Weights & Measures

Clause 6 – Counterfeiting
Clause 7 – Post Office
Clause 8 – Patent & Copyright
Clause 9 – create Inferior Courts

Clause 10 – Define & Punish Clause – Admiralty law & Offenses against ambassadors or in violation of treaties

Clause 11 –

• Declare War
• Letters of Marque & Reprisal
• Captures

Clause 12 – Army Clause (no standing army; reauthorization every two years) [1689 Eng. Bill of Rights] [Britain's Standing Army in Colonies post French-Indian War]
Clause 13 – Navy Clause (allowed for a standing Navy)
Clause 14 – Military Regulations

Clause 15 – Militia Clause Congress has the authority to call out the state militias to execute the law, suppress rebellion and repel invasion. By statute, they have given this authority to the President.

Clause 16 – Organizing the Militia. Congress drafts rules for organizing, arming and disciplining the militia, and for governing conduct of the militia when federalized. States retain the right to appoint militia officers and to train the militia.

Clause 17 –

• Enclave Clause. Federal laws and rules govern D.C., federal lands and installations
• Military Installations are wholly under federal authority.

Clause 18 – Congress may pass all laws Necessary & Proper to exercise its enumerated powers

Article I, Section 9 - Limits on Congress Amended 16^th Am. (1913)

Clause1 – Regulation of the Slave Trade

Clause 2 – Habeas Corpus not to be suspended but in times of invasion or rebellion [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]
Clause 3 –

• No Bills of Attainder (legislative acts that, without trial, condemned specifically designated persons or groups to death. Bills of attainder also required the "corruption of blood"; that is, they denied to the condemned's heirs the right to inherit his estate. Long history in Britain and colonial America)
• No Ex Post Facto Laws (laws criminalizing past acts that were not criminal at the time they were undertaken)

Clause 4 – No Capitation or Direct Taxes except under limited circumstance. This is unclear. It appears that perhaps this was part of a scheme whereby the Federal government would impose a tax on each state, but it was not clear from the debates, nor has it been made clear in court cases since)

Clause 5 – Export Taxation prohibited.
Clause 6 – Port Preference prohibited.

Clause 7 – Appropriations Clause: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Clause 8 – Emoluments Clause

Article I, Section 10 - Powers prohibited of States

Clause 1 –

• No State Treaties. This reserves foreign policy to the federal government.

• No State Coinage

• No Bills of Attainder or Ex Post Facto Laws

– No laws Impairing the Obligations of Contracts

– No State Title of Nobility

Clause 2 – Import-Export Clause. States not allowed to lay taxes of duties on imports or exports.

Clause 3 – Compact Clause.

Article II - The Executive Branch

Article II, Section 1: The President Amended 12^th Am. (1804) 20^th Am. (1933) 25^th Am. (1967)

Clause 1 –

• Vesting Clause. President vested with the executive powers of a head of state. Responsible for executing federal laws. Has the power of nomination and removal of executive officers. Has plenary authority over foreign policy except where shared with Congress.
• Presidential term of office.
• Vice President.

Clause 2 – Presidential Electors

Clause 3 – Electoral College

Clause 4 – Uniform Date of voting for President
Clause 5 – Eligibility For Office of President
Clause 6 – Presidential Succession
Clause 7 – Compensation
Clause 8 – Oath of Office

Article II, Section 2: Civilian Power Over Military, Cabinet, Pardon Power, Appointment

Clause 1 –

• Commander in Chief of the Military
• Commander in Chief of the state militias
• Opinion Clause (gives President control over the Executive Departments)
• Pardon Power

Clause 2 –

• Treaty Clause. President negotiates treaties. Two-thirds of the Senate must approve.
• Appointments Clause. President nominates federal judges and senior executive officials. Senate tasked to “advise and consent.” [Power of appointment in UK existed solely in the monarch – along with sinecures, were a medieval patronage system]
• Appointing Inferior Officers.

Clause 3 – Recess Appointments

Article II, Section 3: State of the Union, Convening Congress

• Required to annually report the State of the Union [Copied from Britain, unfortunately, did not copy “question time”]
• Recommendations Clause – allows the President to recommend legislation to Congress and to coordinate its passage.
• Power to Convene a special session of Congress
• Ambassadors
• President is charged to Take Care that the laws of the nation are faithfully executed.
• President has sole authority to Commission all officers of the U.S. That authority is discretionary.

Article II, Section 4: Disqualification

– Standards for Impeachment of the President

Article III - The Judicial Branch

Article III, Section 1: Judicial Powers

• Vesting Power; Judicial power vested in a Supreme Court (no set number of justices) and such inferior courts as Congress might create.
• Life tenure of judges subject only to condition of Good Behavior.

• Compensation

Article III, Section 2: Trial by Jury, Original Jurisdiction, Jury Trials – 11^th Am. (1795)

Clause1 – Jurisdiction to hear law suits:

• on Treaties of the U.S.
• vs. Foreign Ambassadors
• Admiralty
• Federal government is a Party to the lawsuit
• Interstate Disputes (states suing other states)
• Ctizen-State Diversity (a state is a party and the opposing party is a citizen of another state or a foreign state or a citizen of a foreign state)
• Concurrent Jurisdiction to hear Diversity cases where the parties are from different states (though Congress has imposed a minimum “amount in controversy” floor)
• Landgrant Cases

Clause 2 –

• Original Jurisdiction
• Appellate Jurisdiction
• Criminal Trials to be tried by a jury in the state where committed

Article III, Section 3: Treason

Clause1 – Treason

Clause 2 – Limitation on Punishment for Treason

[Not mentioned was the requirement that the people charged with applying and executing the law be familiar with the law of the land. That comes from [1215 Magna Carta]

Article IV - The States

Article IV, Section 1: Each State to Honor all Others

§1 – States to give Full Faith & Credit to the records, acts and judgments of other states

Article IV, Section 2 : State Citizens, Extradition Amended 13^th Am. (1865)

Clause1 – Each citizen entitled to all Privileges and Immunities of U.S. citizens. [The basic cause of the Revolution – colonists not in mainland Britain were not treated to all of the rights of British colonists as articulate in [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights] ]

Clause 2 – Interstate Rendition of felons
Clause 3 – Fugitive Slave clause

Article IV, Section 3: New States

    Clause 1 – New States

Clause 2 – Federal Property within state lands are under jurisdiction of Congress.
Clause 3 – Claims (dealing with expansion immediately after the Rev. War)

Article IV, Section 4: Republican Government

§ 4 – Guarantee Clause. Fed government guarantees each state a Republican form of government, to protect against invasion, and upon request, to assist in quelling domestic violence

Article V: Amendment

• Amending Procedure: Provides the sole two means by which the Constitution may be amended. Note that neither is by judicial fiat of the Supreme Court. [Doctrine of Parliamentary Supremacy in UK developed to allow Parliament to ignore British Rights of the colonists. Now, the UK has no rights but what the Parliament chooses to allow on a daily basis. The best example are the draconian anti-gun laws in the UK.]
• Prohibition on amendments affecting slavery prior to 1808
• Prohibition on amendments that would alter Equal Suffrage in the Senate.

Article VI – Debts, Supremacy, Oaths

• Debt Assumption from the Revolutionary War
• Supremacy Clause: Constitution and Federal Law are the Supreme Law of the Land
• Oaths Clause: Federal and State officers and elected officials must take an oath to uphold and support the Constitution
• No Religious Test for office. No State Religion.

Article VII – Ratification Documents

The Amendments

The following are the Amendments to the Constitution. The first ten Amendments collectively are commonly known as the Bill of Rights – Ratified 1791

Amendment 1- Freedom of Religion, Press, Expression

Congress shall make no law . . .

• Establishment Clause: . . . respecting an establishment of religion, or
• Free Exercise Clause: . . . prohibiting the free exercise thereof; or
• Freedom of Speech & Press; . . . abridging the freedom of speech, or of the press; or . . . [Zengler's Case - Colonies] [Wilkes' Case - UK]
• Freedom of Assembly & Right to Petition: . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]

Amendment 2 - Right to Bear Arms. [1689 Eng. Bill of Rights (Individual Right)]

Right to Bear Arms: 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 infringed.

Amendment 3 - Quartering of Soldiers. [1628 Pet. of Right] [1689 Eng. Bill of Rights] [Britain's Quartering Acts in the colonies]

Quartering: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4 - Search and Seizure. [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights] [Writs of Assistance (General Warrants)] [Wilkes Case (General Warrants)]

• Search and Seizure: 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 . . .
• General Warrants Prohibited: . . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5 - Trial and Punishment, Compensation for Takings.

• Grand Jury: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury; . . . [1215 Magna Carta] [14^th century British common law]
• Double Jeopardy: . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . [Common Law in Britain since 1066]
• Self-Incrimination: . . . nor shall be compelled in any criminal case to be a witness against himself, . . . [British Common Law from the Medieval Period]
• Due Process: . . . nor be deprived of life, liberty, or property, without due process of law; [Admiralty Courts to try smuggling] [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]
• Takings Clause . . . nor shall private property be taken for public use, without just compensation. [1215 Magna Carta]

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses

In all criminal prosecutions, the accused shall enjoy the right to” . . .

• Speedy Trial: . . . a speedy and . . . [[1215 Magna Carta]
• Public Trial: . . . [a] public trial,. . . [1215 Magna Carta]
• Jury 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 . . [1215 Magna Carta]
• Arraignment Clause: . . . to be informed of the nature and cause of the accusation; [Part of Due Process at common law]|
• Confrontation Clause: . . . to be confronted with the witnesses against him; . . .  [1215 Magna Carta]
• Compulsory Process Clause: . . . to have compulsory process for obtaining witnesses in his favor, . . .
• Right to Counsel: . . . and to have the Assistance of Counsel for his defense.

Amendment 7 - Trial by Jury in Civil Cases

• Right to Jury Trial In Civil Cases: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . [Admiralty Courts to try smuggling, Profit motive] [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]
• Reexamination Clause: . . . and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment 8 - Cruel and Unusual Punishment [1215 Magna Carta] [1628 Pet. of Right] [1689 Eng. Bill of Rights]

Cruel or Unusual Punishment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment 9 - Construction of Constitution.

Rights Retained by the People: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10 - Powers of the States and People.

Reserved Powers: 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.

The historical millieu

• English Civil War and the Glorious Revolution
• 15 and 45 – supported by France and the papacy
• religious wars
• religious discrimination and, at times, brutal repression
• British treatment of the Irish in the 17^th and 18^th century
• Anglican agitation against dissenters and embrace of divine right theory
• Slavery and nascent abolitionism
• Most nations were run as tyrannies. France was a particular example. At the other end of the spectrum was Britain, by far the most free for the time and place.
• Enlightenment – rational thought based on a foundation of Christianity
• Mercantilism as expressed through the navigation laws was at its height, though it was not a system through which
• 1760 was year one of the Industrial Revolution in Britain