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.
SECTION 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Article II, Section 2, is principally concerned with outlining the powers of the president, but given the enormous power of the modern presidency, it seems remarkably short and vague in its prescriptions. Certainly, the most important—and controversial—of those powers has devolved from the president’s role as commander in chief of the army and navy of the United States and of the militias of the several states. That role, which has given the president enormous power to “make war,” has sometimes come in conflict with the power of Congress to “declare war” as well as with Congress’s power to control the financial appropriations necessary to make fighting a war possible.
By the terms of Article II, Section 2, the president has the primary role in entering into treaties with other nations, although it reserves to the Senate the right to approve any treaty before it assumes the force of law.
The president has the power, with the advice and consent of the Senate, to appoint ambassadors, ministers, justices of the Supreme Court, and “all other Officers of the United States.” In recent decades, as the Supreme Court has become a
more powerful and assertive branch of the federal government, members of the Senate have responded by asserting more vigorously their right to advise and consent with respect to the appointment of justices of the Court.
The president’s use of the power to appoint “all other Officers of the United States” has increased in direct proportion to the growing power of the federal government and of the executive branch in particular. Although the Founding Fathers no doubt assumed that the president would appoint members of a presidential “cabinet,” they would perhaps have been surprised at the growth in the size and scope of the bureaucracy serving each of the cabinet departments. The president’s cabinet has expanded from four members in President Washington’s day (the secretaries of treasury, war, and state and the attorney general) to fifteen (not including the vice president) today.
SECTION 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Presidents Washington and Adams addressed the Congress directly on the “State of the Union,” but from 1801 to 1909 the president merely sent the Congress written messages. Beginning in 1913, and continuing to the present day, the formal State of the Union address to Congress, given at the beginning of each year, has become an important national ritual. Some presidents, including President Barack Obama, have convened both houses of Congress on other “extraordinary Occasions,” to address them on subjects that they have considered important.
SECTION 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
This is another one of the provisions of Article II that is remarkably simple and maddeningly vague. The framers of the Constitution all agreed that a president should be removed from office if he committed treason, bribery, or other “high Crimes,” but most of them also believed that the president might be removed if he were found culpable of “malfeasance in office” (a term used in one of the earlier drafts of the Constitution). On the other hand, most of the framers agreed that it would be improper for Congress to remove a president simply because a majority of members of Congress might disagree with him, and since “malfeasance” was a term with a meaning that might vary in the eye of the beholder, they substituted the term “Misdemeanors” for “malfeasance.” It was a term that left no one wholly satisfied, and it has caused considerable confusion in those rare cases (during the presidencies of Andrew Johnson, Richard Nixon, and William Jefferson Clinton) in which impeachment proceedings against a president have been initiated.
ARTICLE III
SECTION 1
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Just as the framers of the Constitution considered the Congress to be the most vital branch of the new government and therefore dealt with that branch in the very first article of the Constitution, so too was the placement of the judicial branch in Article III of the Constitution a reflection of their view of the relative importance of that branch. The brevity and vagueness of the language in Article III are similarly a reflection of their relative lack of concern about the judicial branch as well as of their uncertainty about its function in the new federal union.
Article III, Section 1, stipulates that there would be one “supreme” court in the nation but is vague about the number and extent of the “inferior” courts. The provision that all federal judges should hold their offices during “good Behaviour” was intended to protect the independence of the judiciary and reinforce the separation of powers among the three branches of the new government.
SECTION 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Article III, Section 2, defines the jurisdiction and mode of procedure of the federal courts. The key phrase is “to all Cases, in Law and Equity, arising under this Constitution.” In other words, the jurisdiction of the federal courts extends to those areas in which the United States government itself has jurisdiction. That jurisdiction, vaguely defined in 1787, has steadily increased over the more than two centuries in which the Constitution has been in operation.
Although Article III, Section 2, makes no mention of a power of judicial review (the power of the Supreme Court or any other federal court to pass judgment on whether a federal or state law violates the terms of the Constitution), many, if not most, of the delegates to the Convention probably assumed that the federal courts would exercise at least some limited form of that power. In 1803, in the case of Marbury v. Madison, the Supreme Court, in an opinion written by its chief justice, John Marshall, enunciated a limited power of judicial review.
SECTION 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article III, Section 3, is the only instance in which the U.S. Constitution defines a specific crime, that of treason. Treason is defined either as levying war against the United States or as giving “Aid and Comfort” to the enemies of the United States. The “Aid and Comfort” clause expands the definition of treason beyond physical acts of violence—e.g., to the passing on of state secrets to another nation—but the Constitution also lays down specific legal procedures by which people accused of treason might be convicted of such an act. The Constitution further limits the punishment of treason to the person actually committing the act, not to family members or close associates.
In 1807, in the treason trial of Aaron Burr, for his role in an alleged plan to lead parts of the Louisiana territory in a secessionist movement from the United States, Chief Justice John Marshall laid down further limitations on the definition of treason, establishing the doctrine of “construc
tive treason,” meaning that the mere planning of an act that might be considered treasonous was not sufficient grounds for conviction; in order to be convicted of treason one actually had to commit, or at least be in the process of committing, the act. Moreover, the act of simply speaking, however stridently, in a manner that some might believe to be giving aid and comfort to the enemy was given further protection by the free speech guarantees of the First Amendment.
ARTICLE IV
SECTION 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The first section of Article IV stipulates that the laws of one state must be given “full Faith and Credit” (i.e., be recognized as legitimate) in another state. This provision was an important step in creating a uniform standard of law and of rights in the nation. For example, if the state of Massachusetts recognizes the marriage of a gay couple as legally valid, then other states, even if they do not have laws permitting the marriage of a gay couple, must recognize that marriage as valid.
SECTION 2
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence Page 5
