About This Book

This book explains the Constitution simply and thoroughly, including all the juicy controversy it evokes. Whether you’re a student, a lawyer, or just a concerned citizen, I hope you find it to be both a good read and a great resource.

You don’t have to read this book from cover to cover, and you don’t have to read the chapters in order. I’ve written each chapter so it can be understood on its own; if it refers to topics that aren’t covered in that chapter, I tell you where to find information about that topic elsewhere in the book. Using the Table of Contents or the Index, feel free to identify topics of the greatest interest to you, and dive in wherever you want. Even if you dive into the middle or end first, I promise I won’t let you get lost.

I cover the entire Constitution in this book, but I don’t give each article or amendment equal attention. That’s because some parts are more important, more difficult to understand, more controversial, or more relevant to modern society than others. If I believe a particular part of the Constitution requires or deserves more explanation than another, I give it lots of real estate in the pages that follow. Parts that are easier to understand or less important to your 21st-century life get less space in the book.

Throughout the book, I offer not just facts but also a variety of opinions about constitutional issues that have created debate for more than 200 years. In some cases, the opinions belong to Supreme Court justices, advocates for or against specific rights, or any number of other sources. In other cases, the opinions are my own — and I alert you to that fact. I may sometimes try to persuade you of the rightness or wrongness of a certain opinion, but you’re welcome to disagree — that’s the fun and the privilege of becoming a more informed citizen!

Conventions Used in This Book

Whenever I quote or refer to a specific part of the Constitution, I tell you the name of that part. You’ll often see this reference in the form of an article, a section, and maybe a clause — for example, Article I, Section 8, Clause 3. If you turn to the Appendix at the back of the book, where the text of the Constitution is provided, you can see that it’s broken into seven articles, some of which are divided into sections. If a section contains more than one paragraph, I refer to each paragraph as a clause. So if you’re looking for Clause 3 within Section 8 of Article I, just find the third paragraph in that section.

The amendments to the Constitution appear in the Appendix after the main body of the document (and after the list of people who signed it). It’s pretty easy to locate an amendment, as long as you aren’t too rusty on Roman numerals.

When you see the term the Constitution, it always refers to the U.S. Constitution. Each of the 50 states also has its own constitution, but if I’m referring to one of those, I include the state name (such as the Virginia Constitution). Similarly, when I refer to the Supreme Court, the high court, or just the Court, that means the U.S. Supreme Court. If I refer to a state supreme court, I always give the name of the state concerned (such as the Texas Supreme Court).

You can’t learn about the Constitution without being introduced to some legal, political, and other jargon, but I do my best in this book to ease you into the constitutional vocabulary. If I use a term that I suspect may not be familiar to you, I put that term in italic and provide a definition or explanation nearby.

Icons Used in This Book

Throughout this book, you find small pictures in the margins. These icons highlight paragraphs that contain certain types of information. Here’s what each icon means:

The Constitution is nothing if not controversial, and this icon highlights paragraphs that explain what all the debate is about. If you want to know why people can’t seem to figure out what this document means even after 200-plus years, head toward these icons.

Where there’s debate, there are opinions, and I won’t pretend not to have some of my own. Where you see this icon, you’ll know that I’m offering my perspective on the subject at hand, and I don’t necessarily expect you to agree!

The Remember icon sits beside paragraphs that contain information that’s worth committing to memory. Even if you’re not studying for an exam on the Constitution, you may want to read these paragraphs twice.

This icon denotes material that may fall into the “too much information” category for some readers. If you like to know lots of details about a topic, the information in these paragraphs may thrill you. If details aren’t your thing, feel free to skip these paragraphs altogether.

Beyond the Book

To gain some additional insight into the U.S. Constitution, beyond the written words of this book, head to www.dummies.com/cheatsheet/usconstitution for an easily accessible reference guide.

Where to Go from Here

That depends on why you’re reading this book. If you’re a student who needs help understanding how and why the Constitution was created, what it says, and why it’s still so important, I’d suggest that you start at the beginning.

If you picked up this book because you want to understand the debate about a certain issue (such as gun rights), check the Table of Contents or Index and flip to the chapter where that debate is explored. (In the case of gun rights, that’d be Chapter 15.)

If you’re planning to start a campaign to impeach a government official who rubs you entirely the wrong way, perhaps Chapter 13 will be your cup of tea.

If you want to very quickly get a sense of why constitutional issues can cause tempers to flare, flip to Chapter 25 and read about just five of the many debates that keep people talking.

The law as stated in this book is correct, to the best of my knowledge, as of Presidents’ Day, February 19, 2018.

Chapter 1

Identifying the Main Principles and Controversies of the Constitution

Knowing When and Why the Constitution Was Created

The Constitution emerged from a meeting called the Philadelphia Convention, which took place in 1787. (That meeting has since come to be known also as the Constitutional Convention.) The Convention was held because the Articles of Confederation — the document that had been serving as the country’s first governing constitution — were considered to be weak and problematic (see Chapter 2). The stated goal of the Convention was to revise the Articles of Confederation, but the outcome was much more than a mere revision: It was a new form of government. See Figure 1-1 for a look at a scene from the Convention.

The 55 delegates to the Philadelphia Convention came to be known as the Framers of the Constitution. They represented 12 of the 13 states (Rhode Island didn’t send a delegate), and they included some familiar names, such as George Washington, Alexander Hamilton, and James Madison.

The Convention lasted from May 25 to September 17, 1787. In the end, only 39 of the 55 delegates actually signed the Constitution. Three delegates refused to sign it, and the rest had left the Convention before the signing took place.

For the Constitution to take effect, it had to be ratified — or confirmed — by nine states. Special conventions were summoned in each state, and the Delaware, New Jersey, and Georgia conventions ratified the Constitution unanimously. But some of the other states saw a pretty fierce battle for ratification. In New York, for example, the Constitution was ratified only by 30 votes to 27.

Ratification was achieved in 1788, and the Constitution took effect with the swearing in of President George Washington and Vice President John Adams on April 30, 1789.

Summarizing the Main Principles of the Constitution

In broad strokes, here are the principles you find in the Constitution:

• Liberty: The Framers of the Constitution aimed to establish a form of government that gave the people as much individual freedom as possible, by guaranteeing them
  • Religious freedom
  • Freedom of speech
  • Freedom to defend themselves with arms
• Federalism: The United States started out as 13 separate British colonies, which banded together to throw off the British yoke. At first, in 1777, the colonies formed a loose alliance under the so-called Articles of Confederation (not to be confused with the similarly named Confederacy proclaimed by the seceding southern states in the 1860s). But the need for a stronger central government resulted in the drafting of the U.S. Constitution, which was ratified in its original, unamended form in 1788. The Constitution established a federal system of government, which gave the central or federal government certain clearly defined and limited powers, reserving the remaining powers to the states or to the people.
• Separation of powers: The Framers of the Constitution were very anxious to prevent any one person or institution from becoming too powerful. So the Constitution keeps the three branches of government separate. These branches are the Executive (the President), Legislative (Congress), and Judicial (the law courts). But a system of “checks and balances” cuts across this separation. So, for example, Congress passes laws, but the President can veto them. Similarly, the President has the power to appoint Cabinet officers and federal judges, but his appointments are subject to the “advice and consent” of the Senate. And the Supreme Court can check any perceived abuse of the power of Congress by striking down laws that the Court rules are unconstitutional.
• Due process: “Due process of law” is one of the main buzz phrases of the Constitution — according to the Supreme Court. You may assume that this phrase would refer simply to procedure, or how things should be done, like whether or not you are allowed a jury trial. But the Supreme Court has widened its interpretation of the phrase greatly to include substantive due process, or what rights the Constitution actually confers or protects. As a result, the Court has interpreted the Constitution as guaranteeing a bunch of controversial “fundamental rights,” including
  • An expansion of the rights of those suspected or accused of crimes
  • An expansion of minority rights
  • Privacy
  • Abortion

Here are some of the principles you may assume are addressed in the Constitution, but aren’t:

• Democracy: The words democracy and democratic don’t figure anywhere in the text of the Constitution. In its original form, the Constitution was not democratic, and the House of Representatives was the only directly elected part of the federal government. The Constitution became democratic as a result of the rise of President Andrew Jackson’s Democratic Party in the 1830s (see Chapter 6).
• Equality: Equality was also not one of the principles of the Constitution in its original form.
  • Slavery formed an integral part of the Constitution until the Civil War. For example, Article IV, Section 2, Clause 3 provided in its original, unamended form that runaway slaves who escaped from a slave state to a free state had to be “delivered up” to their original owners. The whole structure of the House of Representatives also depended on slavery. In its original form, Article I, Section 2 of the Constitution apportioned the representation of the various states according to the numbers of their free population — plus three-fifths of their slaves. This “three-fifths rule” cynically used the slave population (who of course didn’t have the right to vote) to give the slave states more representation in the House than they would otherwise have had.
  • Women didn’t have the right to vote in the U.S. as a whole until 1920, though some states had allowed women to vote before then.
  • To this day, the interpretation of the anti-discrimination (or equal treatment) amendments to the Constitution remains highly controversial. The most controversial amendment is the Fourteenth, which can be invoked either in support of affirmative action or in opposition to it. Those Supreme Court justices who support affirmative action see it as a necessary part of the anti-discriminatory thrust of the Due Process Clause of the Fourteenth Amendment, while those justices who oppose affirmative action see it as itself just another form of discrimination.

Identifying Some Areas of Controversy

The whole text of the Constitution takes up just a few pages of print; see the Appendix if you don’t believe me. So why do you need to read a book this long in order to understand it? The old-fashioned language of the Constitution sometimes needs to be explained. And there are a few — actually surprisingly few — genuine ambiguities in the text. But, for the most part, you can blame it on the lawyers and the judges — particularly the U.S. Supreme Court — who have made a major production out of a pretty simple, straightforward document.

How come there’s such major disagreement about what the Constitution means? There are essentially three reasons:

• Old-fashioned language: The English language has changed since the horse-and-buggy era when most of the Constitution was written (but perhaps not as much as you may think). Consider the following examples:
  • Article III, Section 3 contains the phrase “Aid and Comfort” in connection with committing treason. Does this mean that you’ll go to jail if you give the enemy milk and cookies? Not quite. The phrase was lifted straight out of the old English Treason Act of 1351. The word comfort comes from a Latin root meaning to strengthen. So, giving the enemy “Aid and Comfort” means actively assisting the enemy and strengthening him, whether by means of arms, money, or intelligence.

  • The biggest changes have occurred in punctuation. So, for example, the Fifth Amendment ends with this prohibition: nor shall private property be taken for public use, without just compensation. Some commentators have claimed to notice a smudge in the original handwritten version of the Bill of Rights, which they take to be a comma between “taken” and “for,” making “for public use” a bracketed phrase. They conclude from this that the Constitution allows the government to take private property for purposes other than “for public use.”

    Even if there’s meant to be an additional comma in there, this interpretation is plainly wrong. First, in the 18th century commas were strewn around much more liberally than today, without affecting the meaning. Second, the idea that the government can just take private property whenever it feels like it goes clean against the whole tone and tenor of the Constitution.

• Ambiguity: There are a few passages in the Constitution where the meaning is genuinely in doubt. Here are two examples:
  • Do individuals have the right “to keep and bear Arms”? The Supreme Court says yes, but the wording of the Second Amendment is not at all clear. I discuss this important question in Chapters 12 and 15.
  • If the President dies, does the Vice President become President or only Acting President? Article II, Section 1 of the Constitution is genuinely ambiguous. The Twenty-Fifth Amendment, which came along only in 1967, says that in these circumstances the Veep does become President. But the problem was actually solved in practice by John Tyler, back in 1841. See Chapters 10 and 22 for all the details.
• Interpretation: Many of the disputes about the meaning of the Constitution arise out of different approaches to constitutional interpretations by justices of the Supreme Court. Here are just a few of the most controversial constitutional issues:

  • Can Congress pass any laws it likes? The Supreme Court says no. But some commentators disagree with this interpretation and read Article I, Section 8 of the Constitution very widely. In particular, they interpret the power of Congress to “pay the Debts and provide for the common Defence and general Welfare of the United States” as meaning that Congress can pass any laws it likes. This reading is almost certainly wrong, and James Madison said so himself. I tackle this question particularly in Chapter 9.

  • Does the President have the power to lock up “enemy combatants” and deny them access to the U.S. courts? In the 2008 case Boumediene v. Bush, by a majority of 5 to 4, the U.S. Supreme Court said no. However, in June 2012 the Court declined, without comment, to take up appeals filed on behalf of seven Guantanamo detainees who claimed that they had not had a “meaningful opportunity” to challenge their detention.
  • Is the death penalty kosher? Yes, but it does depend on the method used. Lethal injection is now the favored method — and the Supreme Court says it’s not “cruel and unusual punishment.” But the Supreme Court has also held that it’s unconstitutional to execute minors and the mentally ill. In Glossip v. Gross (2015), the Supreme Court held by a majority of 5 to 4 that the use of the drug midazolam was not unconstitutional. Justice Breyer used his dissent to launch an attack on the constitutionality of capital punishment of any kind. “Welcome to Groundhog Day” was Justice Scalia’s sarcastic response, referring to earlier attacks on capital punishment in cases such as Furman v. Georgia (1972), in which a 5–4 majority succeeded in temporarily banning the death penalty as unconstitutional. In April 2017, the Supreme Court was again confronted with a problem with midazolam, which its manufacturers were no longer prepared to supply for the purpose of execution. The state of Arkansas was anxious to execute a number of death-row inmates before its stock of midazolam reached its expiration date. Newly appointed Justice Neil Gorsuch formed part of the 5–4 majority allowing all but one of the executions to go ahead.
  • Can a school district assign students to public high schools on the basis of race alone? In 2007, by 5 votes to 4, the Supreme Court said no. Writing for the majority, Chief Justice John Roberts held that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Why, then, we may ask, do school districts in a number of states still require parents to fill out a form asking “What race(s) do you consider your child?” The form often lists more than 50 “races” to choose from. The short answer to my question posed above is simply that the school districts concerned have not yet reached the goal of a color-blind educational policy.
  • Is gay marriage constitutional? Marriage doesn’t figure in the U.S. Constitution at all. It was considered to be a matter for individual states to decide. But in Obergefell v. Hodges (2015), by a majority of 5 to 4 the U.S. Supreme Court ruled that marriage is a fundamental right guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The ruling requires all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages solemnized in other jurisdictions. In his dissenting opinion, Justice Scalia scathingly characterized the majority opinion as “lacking even a thin veneer of law” and as descending “to the mystical aphorisms of the fortune cookie.” See Chapter 23 for more on this case.
  • Are states allowed to secede from the Union? The Supreme Court says no. The last time secession was tried, it took a civil war to end it. Since that time a number of groups have advocated the secession of a state, a city, or a tribe, but no serious attempt has been made. (One such group, the Alaskan Independence Party, hit the news during the 2008 election campaign because of alleged links with Sarah Palin, the Republican vice presidential candidate.)

This is just the tip of the iceberg when it comes to constitutional controversies, and I devote a good deal of space in this book to sifting through them and offering my own humble opinions of the Supreme Court’s interpretations. If the Constitution weren’t a source of so much debate within the halls of government, perhaps it wouldn’t be nearly as interesting to read and learn about. Luckily for you, that isn’t the case!

Chapter 2

Probing Underlying Concepts: Big Thinkers, Big Thoughts

Building on Magna Carta

Magna Carta (Latin for “Great Charter”) is a document dating back to the year 1215 containing a number of concessions made by King John of England to his rebellious barons.

What relevance could this kind of document possibly have to the United States nearly eight centuries later? The Founding Fathers used Magna Carta as a justification for the Declaration of Independence and later as a precedent for some features of the U.S. Constitution.

Such is the veneration accorded this document in the United States that in 1957 the American Bar Association erected a memorial to Magna Carta in England. And a 1297 reissue of Magna Carta (sold at auction in 2007 for $21.3 million!) sits in a glass case in the National Archives rotunda in Washington, D.C. — right beside the original texts of the Declaration of Independence and the U.S. Constitution.

If you take the trouble to read Magna Carta, you’ll probably find it just about as riveting as a phonebook — even if you speak Latin at home, because that is the language in which Magna Carta is written.

The good bits of Magna Carta are few and far between. Here’s the most quoted provision:

No free man shall be arrested or imprisoned, or deprived of his rights or property, or outlawed or exiled … except by the lawful judgment of his equals or by the law of the land.

Here are a few examples of ways Magna Carta may have influenced the Founding Fathers, as evidenced in the Declaration of Independence and the U.S. Constitution:

• Taxation without representation: Did Magna Carta prohibit taxation without representation? Clause 12 of the original promised “no scutage or aid shall be imposed on our kingdom, except by the common council of our kingdom.” Scutage and aid were two feudal taxes on knights and barons alone. But did this mean that a tax could be imposed only with the consent of those subject to it? Possibly. The American patriots sure thought so. When in 1765 the British Parliament passed the Stamp Act taxing everything from newspapers to playing cards and dice, the Massachusetts Assembly declared the act “against the Magna Carta and the natural rights of Englishmen, and therefore … null and void.” I discuss the concept of “the consent of the governed” in connection with the Declaration of Independence later in the chapter.

• Trial by jury: Did Magna Carta — in particular the clause quoted earlier in this section — guarantee trial by jury? The clause supposedly guaranteed everyone the right to be tried by their “equals,” or fellow citizens. In fact, this right took a lot longer to be established in England — and it has now largely been lost there, except in cases of serious crime. But the right to a jury trial sure is alive and well in the United States and is enshrined in the Sixth and Seventh amendments to the Constitution, which I deal with in Chapter 18.

• Habeas corpus: Did Magna Carta guarantee habeas corpus — the right to take legal action to end unlawful detention? Not exactly, but Magna Carta was a trailblazer for this later right. The passage from Magna Carta quoted earlier in this section promises that nobody is to be imprisoned except after a proper trial. But this right didn’t become available right away. As late as 1628, King Charles I had five knights imprisoned “by his majesty’s special commandment.” Habeas corpus became a major issue in the ensuing English Revolution, resulting in Charles I’s execution. Habeas corpus was eventually incorporated into statute in 1679.

  This important privilege (not a right) is now enshrined in Article I, Section 9 of the U.S. Constitution: “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.” Habeas corpus became a hot-button issue in the final year of the Bush Administration with regard to detention in Guantanamo Bay: Boumediene v. Bush (2008).