The first three articles set up the threefold separation of powers, said to have been modeled on Montesquieu's study, which on this point was incorrect, of the British government. In actuality this separation has been weakened by the granting of greater powers to the President and his administrative agencies, which now have legislative and judicial as well as executive functions.1: Congress
Article 1 provides for the establishment of the bicameral Congress composed of the Senate and the House of Representatives. The various powers of the Congress and the respective houses, together with their methods of election, are enumerated in the article. The Seventeenth Amendment, passed in 1916, instituted the direct popular election of Senators and removed the power of their election from the state legislatures as had originally been provided in Article 1.
Section 4 of Article 1 gives the states power over the conduct of federal elections but permits the Congress to alter such regulations at any time. In 1842 the Congress imposed the district system on the United States. In 1962 the Supreme Court dealt with proper apportionment of election districts and in its decision in Baker v. Carr allowed voters to go into a federal court to force equitable representation in a state legislature. This decision was, however, based on the equal protection clause of the Fourteenth Amendment. Later, the court ruled (1964) that state legislative apportionment must reflect the one-person one-vote principle.
As a legislative body Congress has certain inherent powers. Among these are the power to investigate pursuant to legislative needs. Congressional investigations have led to a great many court decisions concerning the right of a witness before a Congressional committee to refuse to testify even when granted immunity from prosecution.
Section 8 of Article 1 lists the enumerated powers of the Congress. The clause of this section, the "commerce clause," which grants the Congress the right to "regulate commerce with foreign nations, and among the several States," has, in the 20th cent., been used as a strong argument for the expansion of government power. Since the historic case of Gibbons v. Ogden (1824), the commerce clause has been the battleground over which much of the struggle for and against increased federal regulation of private enterprise has been fought. Until the late 1930s Congress exercised its powers under the clause solely with reference to transportation. But after a series of dramatic reversals by the Supreme Court, Congress began to enter areas that had previously been controlled only by the states. The commerce clause is now the source of important peacetime powers of the national government and an important basis for the judicial review of state actions.
Besides its enumerated and inherent powers, the Congress has implied powers under Article 1 "to make all laws which shall be necessary and proper for carrying into execution" the enumerated or expressed powers. Sections 9 and 10 of Article 1 contain guarantees of the writ of habeas corpus, prohibit bills of attainder and ex post facto laws, and also improve certain limitations on state power.
Article 2 creates the executive branch of government headed by the President, elected, along with the Vice President, for a term of four years (see president; electoral college). The Twenty-second Amendment (1951) provides that no person may be elected President more than twice. The Twenty-third Amendment (1961) permits District of Columbia residents to vote in presidential elections. Since the adoption of the Constitution there have been two conflicting views of Article 2. The first is that the powers of the President are limited to those enumerated in the article. The opposite view is that the President is given executive power not limited by the provisions of the rest of the article. Every President has had to make the choice of interpretations for himself.
Article 3 provides for a judiciary and defines treason. Besides its enumerated powers, the judiciary has the inherent authority to interpret laws and the Constitution with an authority that must be deferred to. Article 3 also guarantees trial by jury in criminal cases and lays the basis for federal jurisdiction. The Eleventh Amendment (1798), which prohibits suits against any state by citizens of another state or foreigners (see sovereignty), was passed in reaction to the Supreme Court's accepting jurisdiction of a suit against a state by a citizen of another state.
Article 4 deals with the relations of the states (see conflict of laws), providing that "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Section 2 prohibits any state from discriminating against citizens of other states, or in favor of its own. It also provides for the extradition of criminals. The article guarantees a republican form of government to every state and provides for the admission of new states as well as the government of territories.
Article 5 provides for amending the Constitution. The supremacy of the federal Constitution and of federal law over those of the states is the heart of the federal system and is established by Article 6. Article 6 also provides for an oath of office for members of the three branches of the federal government and the states and specifically forbids any religious qualification for office. Article 7 declares that the Constitution should go into force when ratified by nine states.
The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press. All rights reserved.