Vail Daily column: Investigating our Constitution, part 3
Editor’s note: This is the third part of a series.
A bill of rights was essential, a bill — that is, a proposed law — that would declaim both the fundamental rights of the people and expressly state the limitations of power of the fledgling government. As the colorful Virginian Richard Henry Lee succinctly stated, the fundament of the new Constitution must be based upon “those essential rights of mankind without which liberty cannot exist.”
Although a bill of rights had been barely mentioned at the Constitutional Convention in Philadelphia, by the fall of 1788, the swell of sentiment for such an element was undeniable. Ultimately, owing substantially to the tireless campaign of the sprightly James Madison, 12 proposed amendments passed both the House and Senate, and on Oct. 2, 1789, President George Washington sent to each of the states a copy of the 12 amendments adopted by the Congress. By Dec. 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the Bill of Rights. Why two of the 12 amendments fell away will be taken up later in this series.
What came before?
What, though, came before the Bill of Rights? Although the Bill of Rights may have been the fireworks, the flame that lighted them came before.
The Constitution starts with the Preamble, the familiar opening that gloriously states that, “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Cool stuff, indeed.
What the Preamble states in a nutshell is who we are, what we stand for and who we aspire to be. It declares the essential value of justice — which in substantial part meant just treatment separate and apart from British tyranny — and seeks tranquility at home and in our lives. Seminally, the Preamble affirms our commitment to be a free and independent people into perpetuity. Too, the Preamble recognizes our collective responsibility to promote the general welfare and provide for our common defense.
Next came the Articles, numbered one through seven, which provided for the hard work of the national housekeeping. While we will take each of these in turn, Articles I through VII deal with the rules that apply to the legislative branch, the office of the presidency, establishment of the judiciary, what shall (and shall not) apply to the various states, the process of amendment, the legal status of the Constitution and issue of ratification.
Article I of the United States Constitution, consisting of 10 sections, establishes the legislative branch of the federal government, the United States Congress. The Congress was established as a bicameral legislature consisting of a House of Representatives and a Senate.
Section 1 deals with the legislative powers vested in the Congress and, logically, contains what is known as a “vesting clause.” Similar vesting clauses are found in Articles II and III, which grant “the executive power” to the president and “the judicial power” to the federal judiciary. The vesting clauses establish the principle of separation of powers by specifically giving to each branch of the federal government only those powers it can exercise and no others. What this means is that no branch may exercise powers that properly belong to another. (For example, as the legislative power is only vested in Congress, neither the executive nor judiciary may enact laws).
A substantial part of the elegance of the Constitution (and many would argue one of its great strengths) is its brevity and its economy of words. As an example, Section 1 provides in its entirety that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Legislative powers are conferred upon the Congress, which shall be made up of two bodies. And that’s it — short, powerful and succinct.
Section 2 is a bit more verbose and details the composition of the House. It provides that representatives shall be elected “by the people of the several states” every two years, that one must have reached the age of at least 25, and have been a citizen for at least seven years in order to serve in the House. Representatives shall be apportioned among the states in accordance with their population, which shall be reapportioned every 10 years. Every state — regardless of how sparsely populated — shall have at least one representative.
Not so equal
Under the original conception, the population to be considered in allocating representatives among the states was to be determined “by adding to the whole number of free persons, including those bound to service for a term of and excluding Indians not taxed, three fifths of all other persons.” In short, while all persons may have been, according to the founder’s aspirations, “created equal,” they were not exactly treated equally when it came to their representation in the House.
We will find, throughout this series that was a recurring and unfortunate theme; despite the lofty aspirations of complete equality, the sad fact was much different. Direct taxes were to be apportioned among the states the same way as representatives; that is according to the respective numbers of their population.
Initially, the number of representatives were not to exceed one for every 30,000 un population, but the nation’s growth amended that. To be integrated with the other instruments of government, the House was meant to be autonomous, and so, the delegates conferred upon it the right to choose their speaker and other officers. It was also conferred upon the House and the House alone the power of impeachment.
Section 3 deals with establishment and maintenance of the Senate and details the powers conferred upon it. This includes that the Senate shall be composed of two senators from each state, that each shall serve six-year terms, and that, to be eligible to serve, one must have attained at least the age of 30 and have been a citizen for nine years. Section 3 establishes that the vice president shall also be President of the Senate, but shall have no vote, unless there is a tie. Like the House, the Senate was to be semi-autonomous and granted the power to choose their officers.
The Senate shall have the sole power to try all impeachments. If trial of the president upon articles of impeachment were to occur, the chief justice of the United States Supreme Court was to preside. The impeachment provisions (which can and have extended to offices other than the president) provide that “no person shall be convicted without the concurrence of two-thirds of the members present.”
In the next part of the series, we will delve into Sections 4-10 of Article I, the first parts of the scaffold upon which the edifice of our amendments were constructed.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with Stevens, Littman, Biddison, Tharp & Weinberg LLC. He may be reached at Robbins@SLBLaw.com.