Article II describes fundamental powers and responsibilities of the Chief Executive of the Administrative Branch of government: the Presidency.
- The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
- Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
- but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
- The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
- The Congress may determine the Time of chusing the Electors,
- and the Day on which they shall give their Votes;
- which Day shall be the same throughout the United States.
- No Person
- except a natural born Citizen,
- or a Citizen of the United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President;
- neither shall any Person be eligible to that Office who shall not have
- attained to the Age of thirty five Years,
- and been fourteen Years a Resident within the United States.
- No Person
- In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
- The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected,
- and he shall not receive within that Period any other Emolument from the United States, or any of them.
- Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
- 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.
- The President shall be Commander in Chief
- 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
- other public Ministers and Consuls,
- Judges of the supreme Court,
- and all other Officers of the United States,
- 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.
- 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.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of,
- or other high Crimes and Misdemeanors.
Section 10 lists restrictions on the States.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
The power to make treaties is an Art II sec 2 cl 2 federal authority prohibited to the States. Nor are the States allowed to make Alliances or “private” Confederations with other states or countries.
Granting letters of Marque and Reprisal is an Art I sec 8 cl 11 federal authority denied to the States.
The power to coin money is an Art I sec 8 cl 5 federal power denied to the States.
No State shall:
States cannot “emit Bills of Credit“, meaning they cannot pass IOUs.
States cannot make any Thing but gold and silver Coin a Tender in Payment of Debts. This has become a contentious issue. Some conservatives want to use this to get rid of Federal Reserve Notes – and the Federal Reserve. But then they want to turn around and pass paper based on gold and silver coins. They want people to write checks from accounts based on these coins, which negates their argument for getting rid of Federal Reserve Notes in the first place. It is also something prohibited to the states – by this clause. Checks, money orders, credit cards, debit cards, all of it would have to go away. Economic apocalypse.
These are things that are also forbidden to the Federal government:
- pass any Bill of Attainder,
- ex post facto Law,
- or Law impairing the Obligation of Contracts,
- or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
The states cannot tax imports and exports to generate revenues.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Without the permission of Congress:
The states cannot charge for shipping through their waterways.
The states cannot maintain warships or a standing army in times of peace, or wage war on their own except in defense of invasion.
The states cannot make legal compacts with other states or foreign nations.
The Constitution does not allow the states to form subgroups of states.
<== Article I sec 9
Article II ==>
While section 8 was explicitly targeted at Congress, section 9 has no similar language. In short, these constraints are not explicitly limited to Congress and the federal government in general. Further, section 8 is primarily a list of authorities while section 9 is a list of restrictions.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
- Slavery cannot be abolished before 1808.
- The government can charge no more than $10/slave for importation.
This clause has become a moot point, with only historical value. It is a relic of the negotiations and compromises that took place in writing the 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.
So what is “Habeas Corpus”?
A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner’s detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner’s release. Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system.
or, in other words (literally):
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error.
or more simply put:
Habeas corpus is a Latin term meaning “you have the body”. It is a writ (court order) which directs the law enforcement officials who have custody of a prisoner to appear in court with the prisoner in order to determine the legality of the prisoner’s confinement.
A writ of habeas corpus is a summons with the force of a court order, addressed to the custodian (a prison official for example) demanding that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody.
When someone gets arrested and locked up, someone can demand that the incarcerating agent prove that the incarceration is lawful except for two specific conditions:
- there is a rebellion in progress and the public safety would be threatened
- there is an invasion in progress and the public safety would be threatened
Essentially, it means whenever the government loses or may lose control of “the streets”, when the continuation of the government is threatened.
No Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder (also known as an act of attainder or writ of attainder) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.
An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
This is the part that banned an income tax until the 16th amendment was adopted. Before that, a direct tax would have to be based on population, not income. Very regressive.
No Tax or Duty shall be laid on Articles exported from any State.
I believe the original intent was that federal revenues would be derived from foreign trade, not domestic trade between states. The concern being that the states would not be treated equally, given the variations in trade goods from each state. Some states were more industrial, some more agricultural, and each had a unique mix of natural resources. Still do. Applying the same Tax or Duty on all states would not guarantee equal treatment. The original free-trade zone.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No favoritism for states or ports. No interference, between states, of shipping.
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.
All expenditures must be agreed to by the legislative process. The expenditures must also be made public.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The Founders rejected both the institutions and titles of aristocracy, and prohibited the same.
This section lists (enumerates) powers explicitly assigned to Congress. Some are also mentioned elsewhere in the Constitution. Some are more specific than others. This is not the complete list.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Congress has the power to raise revenue by imposing and collecting:
- and Excises.
Note that Taxes were not included in the uniformity requirement. As the word “Excises” is followed by a comma instead of a semicolon, I take it to mean that this power to raise revenues is only for the purpose of:
- Paying the Debts of the United States.
- Funding the common Defense of the United States.
- Funding the general Welfare of the United States.
The big question here is just what falls under the umbrella of “general welfare”?
To borrow Money on the credit of the United States;
Congress must authorize the borrowing of money. Pretty straightforward stuff. Of course, it comes with the implied mandate to maintain the credit-worthiness of the United States, and to repay borrowed money. The Framers would have known, they had the debt accumulated from the Revolutionary War to repay. One of the reasons for a strong central government was the inability of a weak central government to repay that debt.
As an alternative to my Securing Our Sovereignty amendment, I offer another option:
- Whereas the election of government Officials is an exercise of sovereignty over a representational form of Government;
- Whereas the authority of our Government derives from the consent of its Citizens;
- Whereas petitioning elected Officials is an exercise of sovereign power;
- Whereas the success of a democracy – and a representational form of government – depend on a well-informed electorate, and thus influencing their judgment;
- Whereas money is a decisive factor in controlling the information presented to the electorate;
- It is a natural conclusion that money from sources other than Citizens, when applied to the political process, interferes with our natural Sovereignty.
Proposing an amendment to the Constitution of the United States protecting the political sovereignty of the Citizens of the United States of America.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States of America, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
All references to “persons” made in the Constitution and the Amendments thereof, shall mean only natural born persons.
The rights of “artificial persons” shall be inferior to the rights of natural persons, and consist only of those rights granted by United States Code and the laws of the several States.
The exercise of sovereign authority is a right reserved exclusively to the Citizens and Nationals of the United States.
Congress shall have power to enforce this article by appropriate legislation.
This is a preliminary draft.
The concept here is not to revoke corporate rights, but to deny them constitutional protections. Corporations are neither human beings nor citizens, and should not have equal rights.
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Thom Hartmann: SCOTUS says corporations are people but women are not
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
The House of Representatives is the House most closely tied to the citizens. Direct election and a two-year “short leash” make them the most accountable to the voters. As such, they are the ones responsible for initiating the raising of revenues. This means Taxes, Duties, Imposts, Excises, and borrowing. This does not mean spending Bills must originate in the House of Representatives.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
(clause 1 – AKA the Speech or Debate Clause)
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
- The Members of Congress are compensated for their service. Note: compensation does not specifically mean salary, it can also include things like health care and official expenses.
- The manor of compensation must be defined (and therefore limited) by law.
- The money for their pay comes from the Treasury, not their respective State.
- Members of Congress enjoy a degree of immunity from arrest while attending a session of Congress. This is not the same as Governmental Tort Immunity or Sovereign immunity. This is a recognition that arresting a Member of Congress while Congress is in session, interfering with the Member’s ability to do the business of Congress, could have national consequences that far exceed the value of immediately arresting someone for a misdemeanor offense. It also prevents the President from arresting Members of Congress in order to manipulate a particular vote. When contemplating the meaning of “during their Attendance” and “going to and returning from the same”, consider the state of travel and communication at the time.
- The ability to speak in an uninhibited manor is necessary to political debate. As such, Members of Congress cannot have their words or intentions questioned outside of chambers. Disagreement is to be expected, but threats, intimidation, and defamation are forbidden.
Section 5 describes who sets the rules and procedures for each House.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
- Each House the final judge of the election of their members; whether they were legitimately elected and meet the qualifications.
- A chamber of Congress cannot do business without a simple majority of the members present, except:
- for the business of adjournment or
- to compel its members to show up to do business.
- Each house can determine the methods and penalties that can be used to compel attendance.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The state legislatures determine the details of holding an election, but Congress can overrule them – except for where to select a Senator. I assume that the last little detail was due to the state legislature selecting the Senators, which would make this an oversight in the 17th amendment, which changes the selection of Senators to a direct popular vote.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
I find this to be one of the more curious clauses.
Congress must meet at least once every year, starting on the first Monday in December. What makes this so curious is that section 2 of the 20th amendment changes the starting date. This clause states that Congress can change the date through legislation, which means that an amendment was not needed to make the change. Granted, the 20th amendment is about presidential term limits and the succession, but they did throw in a change to the starting date for a Session of Congress. Furthermore, they kept the “unless they shall by Law appoint a different Day” wording. This tells me that the people who wrote the 20th amendment understood that this part of the amendment could have been done in statute. Curious.
Section 3 deals with the composition of the Senate:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.
Where the House represents each State according to its population, the Senate represents the States on an equal basis. This keeps the more populous states from drowning the voice of the less populous states.
Senators are also elected for a longer term than Representatives. This allows for the greater accumulation of experience among Senators. More expertise is asked and expected of them.
With equal representation between states, and being chosen by the state Legislature, Senators are apparently intended to be the professionals of Congress and represent their states at the governmental level rather than directly represent the citizens.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
Senators are divided into three classes, which are elected for overlapping terms. This allows for greater stability in the Senate than might be realized in the House.