Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (6 page)

Article I, Section 9, outlines those actions that the federal government
may not
take.

The most controversial of these prohibitions is contained in the very first item. The Convention delegates from South Carolina and Georgia, whose slave economies were still expanding, insisted that no legislation interfering with the African slave trade be permitted until at least twenty years after the adoption of the Constitution. The prohibition of any legislation affecting “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” was intended to ensure that protection. As in all instances in which the Constitution deals with the institution of slavery, neither the word “slave” nor “slavery” is explicitly mentioned in the text of the document. In 1808 the U.S. Congress enacted legislation abolishing the international slave trade, but during that twenty-year interval some two hundred thousand slaves were imported from Africa into the United States.

Many of the most important prohibitions to federal government action laid down in Article I, Section 9, were designed to protect fundamental liberties handed down to Americans through English common law. Perhaps the most important of these was the privilege of habeas corpus, the right of a prisoner to challenge his imprisonment in a court of law. On at least a few occasions American presidents have suspended this privilege while either suppressing rebellion or protecting the public safety. During the Civil War, President Abraham Lincoln held “disloyal persons” suspected of giving aid and comfort to the Confederate cause in prison without benefit of trial. More recently, President George W. Bush, citing provisions of the Patriot Act as well as implied executive powers, sanctioned the holding of several hundred “enemy combatants” in the “war on terror.”

The prohibition against bills of attainder, the issuing of edicts aimed at punishing individuals or groups of individuals without benefit of trial, and the ban on ex post facto laws—criminal laws aimed at punishing individuals for actions taken before the law itself was passed—were also rooted in traditions of English common law. The prohibition of taxes on exports was a purely political bargain between northern and southern states, and was designed to protect the interests of the South, whose agricultural exports formed an important part of its economy. The prohibition against direct taxes unless such taxes were levied precisely in proportion to the number of citizens in each of the states was another attempt to protect the institution of slavery from being taxed out of existence; this provision was subsequently changed by the passage of the Sixteenth Amendment, making possible the imposition of a federal income tax.

While it would be unthinkable today for our federal government to grant a title of nobility to any of its citizens, the provision in Article I, Section 9, prohibiting the granting of titles of nobility and placing additional restrictions on receiving a “present, Emolument, Office, or Title” from a foreign state reflected the strong commitment of the framers of the Constitution that their government should be a “republican” one, and not one that reflected the aristocratic ways of Europe.

The provisions in Article I, Section 10, stipulate those things that the
state governments
are prohibited from doing. The most important of these are:

The opening words of Article II, Section 1, are both remarkably simple and maddeningly vague: “The executive Power shall be vested in a President of the United States of America.” While other sections of Article II provide some specificity on the nature and extent of presidential power, for the most part the language of Article II relating to executive power is far less specific than that of Article I defining congressional power.

Opinions about the length of the president’s term varied widely, with proposals ranging from a minimum of two years to a term of “during good behavior”—or, effectively, for life. The delegates also disagreed about whether the president should be eligible for reelection. The decision on a four-year term seemed to satisfy most delegates and, by avoiding mentioning anything about the president’s eligibility for reelection, the framers left the question of how many terms a president should serve up to the voters. George Washington’s decision to serve only two terms in office set a precedent that lasted until the presidency of Franklin D. Roosevelt, who won election to the presidency four times, serving from 1933 until his death in 1945. In 1951 Congress passed, and the states ratified, the Twenty-second Amendment, limiting presidents to two terms.

The next part of Article II, Section 1, reflects the torment the Convention delegates experienced as they wrestled with the question of how to give the president sufficient power without giving him excessive power, as well as how to free him from excessive dependence on the legislature while at the same time assuring that he did not become, in their terms, an “elective monarch.” While one would think that the best way to do this would be to have the president elected by and answerable to the people of the nation at large, the vast majority of delegates feared that the American people were simply too provincial—too ignorant of the merits of possible presidential candidates across a land as vast as that of the thirteen states of which America was then comprised—to make a wise choice. For that reason, for most of the Convention the delegates inclined toward election of the president by the Congress or, at least, by the more popular branch of Congress, the House of Representatives. But this method ran the risk of violating the principles of separation of powers by making the president unduly dependent upon the Congress for his election. For much of the summer of 1787, the delegates argued unproductively about various alternatives for electing the president, and finally, in the tortured language of Article II, Section 1, they called for the creation of an electoral college: a group of independent electors, selected in each of the states “in such Manner as the Legislature thereof may direct,” who would then cast their ballots for a president and vice president.

Although initially designed as a decidedly elitist device by which only the most knowledgeable and distinguished men—those selected to be electors—would use their own independent judgment in casting their ballots for the president, by the election of Thomas Jefferson in 1800 the presidential electoral system had been entirely transformed by the unexpected invention of organized political parties. The newly created political party system functioned in a way that caused slates of presidential electors to be pledged in advance to vote for particular candidates, with the result being that American voters, whose numbers were expanding as the number of citizens eligible to vote expanded, were now casting their votes, not on the basis of the identity of the individual electors, but on the merits of the candidates themselves. The invention of political parties—a development occurring wholly outside America’s constitutional system—fundamentally changed the way the Constitution operated, transforming it from a “republican” but elitist political system into a truly democratic one.

Americans have grumbled about the imperfections of the electoral college system from the days when it was first debated in the Constitutional Convention up to the present, but for the most part, it has managed to produce victors in the presidential contests whose legitimacy as duly elected chief executives has not been challenged. There have been exceptions: the election of John Quincy Adams, decided by the House of Representatives in 1824; the election of a “minority” Republican president, Abraham Lincoln, in 1860, which led to the secession of the Southern states; the disputed 1876 presidential election between Samuel Tilden and Rutherford B. Hayes, in the final days of Reconstruction; and the contested election of George W. Bush in 2000, ultimately decided by the Supreme Court. Each of these cases has provoked criticism of the electoral college system, but up to this point neither Congress nor the American people have moved to the obvious alternative: direct popular election of the president.

The decision to require that the president be a “natural born Citizen” of the United States was made in the Convention with little discussion and probably with little thought. Indeed, eight of the delegates to the Convention had themselves been born outside British North America (all were born in the British Isles and would in any case have been eligible to serve as president because they were citizens of the United States at the time of the adoption of the Constitution). In an age in which America’s economy, culture, and politics are increasingly shaped by recent immigrants, this particular constitutional provision seems a good candidate for amendment.

This provision defines the vice president’s most important duty: to succeed the president in case of his death, disability, or removal from office. The framers left the line of succession in the event of the vice president’s death, disability, resignation, or removal up to Congress. The Twenty-fifth Amendment, adopted in 1967, provided a means by which a president could select, with the confirmation of a majority of members of Congress, another vice president.

Although Congress is given responsibility for setting the president’s salary, it may not increase or decrease his salary during his term of service, a provision designed to render the president independent of the Congress’s will.

The presidential oath is a remarkably simple one, wholly appropriate to a republican society. In taking the oath of office for the first time on April 30, 1789, George Washington added the words “So help me, God” to his oath, a tradition that has been continued by nearly every subsequent president.