The Constitution has only seven articles, preceded by a preamble and followed by the 27 amendments that have been made since its ratification. The preamble spelled out the justification for the Constitution (“to form a more perfect Union”), its fundamental goals (which included establishing justice and “securing the blessings of Liberty”), and made clear that the new Constitution and the government established by it were created by “We the people” (as opposed to being created by the states, as had been the case with the Articles of Confederation). The first three articles that follow the preamble each spell out the power of one of the three branches of government. The remaining articles are concerned with federal–state relations as well as with the relations among the states and provide procedures for ratifying the Constitution and amending it.
Article I: The Legislative Branch
Because legislators are the representatives of the people, the framers thought of the legislative branch as being the most important and presented it first (see Figure 2.5). Article I opens by stating, “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” [emphasis added]. In other words, Congress is limited to those powers given to it by the Constitution. Those powers fall into two broad categories: enumerated powers and implied powers.
Figure 2.5 Confidence in Government and American Institutions
The framers thought that Congress would be the most important governmental institution. How do people feel about it today, based on the findings shown here?
Source: “Confidence in Institutions,” Gallup, 2019, https://news.gallup.com/poll/1597/confidence-institutions.aspx
Enumerated powers are those powers specifically listed. Most enumerated powers are in Article I, Section 8, which contains a laundry list of specific powers given to Congress, including the power to impose and collect taxes, to borrow money, to regulate commerce, and to declare war. Some of these powers were lacking under the Articles of Confederation, notably the power to collect taxes and regulate commerce. Legislative powers not given to Congress, and not covered under implied powers, were presumably retained by the states, a presumption that was made explicit by the Tenth Amendment.
enumerated powers Powers specifically listed in the Constitution, such as congressional powers outlined in Article I, Section 8.
Implied powers are those authorized by the “necessary and proper clause” of Article I, Section 8, Clause 18. The necessary and proper clause (discussed in Chapter 3) expands the enumerated powers by saying that Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This clause is sometimes also referred to as the elastic clause, because it serves to expand Congress’s power. The controversial question of how much the clause can—or should—expand Congress’s power is discussed in more detail in Chapter 3 (see also Figure 2.6).
Figure 2.6 Does the Federal Government Have Too Much Power, Just Enough, or Too Little Power?
What does this figure tell us about how Americans view the power of the central government today? Are the concerns expressed in this poll valid?
Source: “Government,” Gallup, 2018, https://news.gallup.com/poll/27286/government.aspx
Article I, Section 9 places certain specific limits on the power of the national government. For example, it prohibits Congress from passing a bill of attainder (legislation declaring one or more people guilty of a crime) or ex post facto laws (those that retroactively criminalize behavior), limits when Congress may suspend habeas corpus (a recourse for unlawful imprisonment), and—in the so-called emoluments clause—prevents any government official (in any branch) from receiving any gift, payment, or items of value from a foreign state or its representatives without the consent of Congress.
Finally, Article I, Section 10 lists the powers that are withheld from the states. For example, states are forbidden to enter into treaties with foreign nations, coin money, or impose duties on imports and exports without the consent of Congress.
Article II: The Executive Branch
Article II vests the executive authority in the president. In other words, it gives the president the power to carry out the laws. However, the ambiguity of the opening sentence of Article II has led to considerable debate about the precise scope of executive power. Unlike the opening of Article I, the opening of Article II does not limit powers to those “herein granted,” even though Article II does contain enumerated powers. It simply says, “The executive Power shall be vested in a President of the United States of America.” Does the omission of the words “herein granted” give presidents greater leeway than Congress? People disagree about the answer to this question. As we shall see in Chapter 12, three quite different interpretations of the scope of presidential power have emerged.
implied powers Powers that are not specifically enumerated in the Constitution but are considered “necessary and proper” to carry out the enumerated powers.
Article II, Section 2 enumerates specific powers of the president, such as serving as commander-in-chief of the armed forces, granting pardons, negotiating treaties, and appointing specified officials with the advice and consent of the Senate. In addition, Article II spells out the way in which presidents will be elected and eligibility requirements for the office (Section 1); it requires that the president give information to Congress about the state of the union and recommend for its consideration such measures as he deems necessary and expedient and that he “take Care that the Laws be faithfully executed” (Section 3); and it provides guidelines for the president’s impeachment and removal from office (Section 4).
Article III: The Judicial Branch
Article III is the shortest of the articles delineating the three branches of government. It creates a Supreme Court and says that the judges will hold office “during good Behaviour”—in other words, unless they are impeached, they will have life tenure (the method for selecting Supreme Court justices was spelled out in Article II). Life tenure was designed to promote judicial independence, as was a guarantee that justices receive a compensation for their services that would not be reduced during their tenure. No federal courts existed under the Articles of Confederation, and some members of the Constitutional Convention feared that a large federal judiciary with expanded jurisdiction would interfere with decisions that they felt should be left to the states. Therefore, the delegates postponed the decision about creating federal courts in addition to the Supreme Court by, in Article III, giving Congress the authority to establish lower federal courts if it chose to do so (which it quickly did, in the Judiciary Act of 1789; see Chapter 14).
Articles IV–VII
The remaining four articles of the Constitution cover a wide range of issues. Article IV deals with the states and their relations. It requires states to give “full faith and credit” to the laws and