The Constitution of the United States of America: Analysis and Interpretation Part 4

[38] Meyers _v._ United States, 272 U.S. 52 (1926).

[39] For the famous debate between "Pacificus" (Hamilton) and "Helvidius" (Madison), see E.S. Corwin, _The President's Control of Foreign Relations_, chap. I (1917).

[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895).

[41] 1 Cr. 137, 163 (1803).

[42] Ibid., 165-166.

[43] 7 How. 1.

[44] Fleming _v._ Page, 9 How. 602 (1850).

[45] United States _v._ Tingy, 5 Pet. 115, 122.

[46] 6 _Op. Atty. Gen._ 466 (1854).

[47] 2 Black 635 (1863).

[48] 4 Wall. 2 (1866).

[49] 4 Wall. 475 (1866).

[50] United States _v._ Lee, 106 U.S. 196, 220.

[51] In Re Neagle, 135 U.S. 1, 64.

[52] 158 U.S. 564.

[53] _Autobiography_, 388-389 (1913).

[54] _Op. cit._, 144 (1916).

[55] _Const.i.tutional Government in the United States_, 70 (1908).

[56] _See_ E.S. Corwin. _Total War and the Const.i.tution_, 35-77 (1947).

[57] 343 U.S. 579, 662.

[58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV (1948).

[59] "... the supreme power cannot take from any man any part of his property without his consent". _Second Treatise_, -- 138.

[60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795).

[61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan a.s.sociation _v._ Topeka, 20 Wall. 655 (1875).

[62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244.

[63] Scott _v._ Sandford, 19 How. 393, 450 (1857).

[64] 13 N.Y. 378 (1856).

[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the Wynehamer case was replaced by the Supreme Court, under the due process clause of the Fourteenth Amendment, by a more flexible doctrine, which left it open to the State to show reasonable justification for that type of legislation in terms of acknowledged ends of the Police Power, namely, the promotion of the public health, safety and morals. _See_ Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case, Bartemeyer _v._ Iowa, 18 Wall. 129 (1874).

[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion of the Court was focused princ.i.p.ally on the privileges and immunities clause, and the narrow construction given it at this time is still the law of the Court. But Justices Bradley and Swayne pointed out the potentialities of the due process of law clause, and the former's interpretation of it may be fairly regarded as the first step toward the translation by the Court of "liberty" as Freedom on Contract.

[67] 94 U.S. 113 (1876).

[68] Benjamin R. Twiss, _Lawyers and the Const.i.tution, How Laissez Faire Came to the Supreme Court_, 141-173 (1942).

[69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and Adkins _v._ Children's Hospital, 261 U.S. 525 (1923).

[70] 169 U.S. 466; ibid. 366.

[71] _See_ Charles W. Collins, _The Fourteenth Amendment and the States_, 188-206 (1912).

[72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392.

[73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S.

530, 543 (1922).

[74] The subject can be pursued in detail in connection with Amendment I, pp. 769-810.

[75] These cases are treated in the text, _see_ Table of Cases.

[76] _See_ Williams _v._ United States, 341 U.S. 97 (1951).

[77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239, 295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206 (1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science Review_, xii, 241 (1918); _New York Times_, February 12, 1930. It was also during the same period that Judge Andrew A. Bruce of North Dakota wrote: "We are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic law". _The American Judge_, 6, 8 (1924). Substantially contemporaneously a well read French critic described our system as _Le Gouvernment des Juges_ (1921); while toward the end of the period Louis B. Boudin published his well known _Government by Judiciary_ (2 vols., 1932).

[78] _Collected Legal Papers_, 295-296.

CONTENTS

[For contents in detail, see tables at beginning of each article and amendment]

Page Prefaces III, V Editor's forward VII Editor's introduction IX Historical note on formation of the Const.i.tution 9 Text of the Const.i.tution (literal print) 17 Text of the amendments (literal print) 37 The Const.i.tution, with annotations 55 The preamble 59 Article I. Legislative Department: Section 1. The Congress 71 2. House of Representatives 87 3. Senate 91 4. Elections and meetings 92 5. Legislative proceedings 95 6. Rights of Members 99 7. Bills and resolutions 101 8. Powers of Congress 105 9. Powers denied to Congress 312 10. Powers denied to the States 325 Article II. Executive Department: Section 1. The President 377 2. Powers and duties of the President 389 3. Miscellaneous powers and duties of the President 462 4. Impeachment 501 Article III. Judicial Department: Section 1. The judges, their terms, and compensation 511 2. Jurisdiction 538 3. Treason 638 Article IV. Federal relations: Section 1. Full faith and credit given in each State 647 2. Citizens 686 3. New States and government of Territory, etc. 697 4. Form of State government 704 Article V. Mode of amendment 707 Article VI. Miscellaneous provisions 717 Article VII. Ratification 741 Amendments to the Const.i.tution: Amendment 1. Religion, free speech, etc. 753 2. Bearing arms 811 3. Quartering soldiers 815 4. Searches and seizures 819 5. Rights of persons 833 6. Rights of accused in criminal prosecutions 873 7. Civil trials 887 8. Punishment for crime 899 9. Rights retained by the people 907 10. Reserved State powers 911 11. Suits against States 923 12. Election of President, etc. 937 13. Slavery and involuntary servitude 945 Section 1. Prohibition of slavery and involuntary servitude 949 2. Power of Congress 949 14. Rights of citizens 955 Section 1. Citizens.h.i.+p; due process; equal protection 963 2. Apportionment of representation 1170 3. Disqualification of officers 1173 4. Public debt; claims for loss of slaves 1174 5. Enforcement 1175 15. Right of citizens to vote 1179 Section 1. Suffrage not to be abridged for race, color, etc. 1183 2. Power of Congress 1183 16. Income tax 1187 17. Popular election of Senators 1203 18. Prohibition of intoxicating liquors 1209 Section 1. Prohibition of intoxicating liquors 1213 2. Concurrent power to enforce 1213 3. Time limit on ratification 1213 19. Equal suffrage 1215 20. Commencement of the terms of the President, Vice President, and Members of Congress, etc. 1221 Section 1. Commencement of terms of President, Vice President, Senators, and Representatives 1225 2. Meeting of Congress 1225 3. Death or disqualification of President elect 1225 4. Congress to provide for case wherein death occurs among those from whom House chooses a President 1225 5. Date of effect 1226 6. Time limit on ratificn 1226 21. Repeal of Eighteenth Amendment 1227 Section 1. Repeal of prohibition 1231 2. Transportation into States prohibited 1231 3. Time limit on ratification 1231 22. Presidential Tenure 1235 Section 1. Restriction on Number of terms 1237 2. Time limit on ratification 1237 Acts of Congress held unconst.i.tutional in whole or in part by the Supreme Court of the United States 1239 Table of Cases 1257 Index 1337

THE CONSt.i.tUTION OF THE UNITED STATES OF AMERICA

HISTORICAL NOTE ON FORMATION OF THE CONSt.i.tUTION