CASES AND MATERIALS ON FEDERAL ...Cases and materials that shed additional light on matter in the...

CASES AND MATERIALSON FEDERAL

CONSTITUTIONAL LAW

Volume IVFederalism Limitations on State

and Federal Power:The Contracts Clause,

Supremacy Clause,“Dormant” Commerce Clause,

andthe Tenth Amendment

Copyright © 2011 Carolina Academic Press, LLC. All rights reserved.

LexisNexis Law School PublishingAdvisory Board

William AraizaProfessor of LawBrooklyn Law School

Lenni B. BensonProfessor of Law & Associate Dean for Professional DevelopmentNew York Law School

Raj BhalaRice Distinguished ProfessorUniversity of Kansas, School of Law

Ruth ColkerDistinguished University Professor & Heck-Faust Memorial Chair in Constitutional LawOhio State University, Moritz College of Law

David GamageAssistant Professor of LawUC Berkeley School of Law

Joan HeminwayCollege of Law Distinguished Professor of LawUniversity of Tennessee College of Law

Edward ImwinkelriedEdward L. Barrett, Jr. Professor of LawUC Davis School of Law

David I. C. ThomsonLP Professor & Director, Lawyering Process ProgramUniversity of Denver, Sturm College of Law

Melissa WereshDirector of Legal Writing and Professor of LawDrake University Law School


CASES AND MATERIALSON FEDERALCONSTITUTIONAL LAW

Volume IVFederalism Limitations on State

and Federal Power:The Contracts Clause,

Supremacy Clause,“Dormant” Commerce Clause, and

the Tenth Amendment

Lee J. Strang


VOLUME 4 ISBN: 978–1–4224–2888–7

Odom, Thomas H.Introduction to interpretive methods & introduction to the federal judicial power / Thomas H. Odom.p. cm. -- (Cases and materials on federal constitutional law ; v. 1)Includes index.ISBN 978-1-4224-2205-2 (soft cover)1. Courts--United States. I. Title.KF8718.O36 2008347.73’1--dc22 2008036946

This publication is designed to provide accurate and authoritative information in regard to the subject mattercovered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or otherprofessional services. If legal advice or other expert assistance is required, the services of a competent professionalshould be sought.LexisNexis and the Knowledge Burst logo are registered trademarks and Michie is a trademark of Reed ElsevierProperties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registeredtrademarks of Matthew Bender Properties Inc.Copyright © 2011 Matthew Bender & Company, Inc., a member of the LexisNexis Group.All Rights Reserved.No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quoted within thiswork. Permission to copy material exceeding fair use, 17 U.S.C. § 107, may be licensed for a fee of 25¢ per pageper copy from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass. 01923, telephone (978) 750-8400.

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Editorial Offices121 Chanlon Rd., New Providence, NJ 07974 (908) 464-6800201 Mission St., San Francisco, CA 94105-1831 (415) 908-3200www.lexisnexis.com

(2011–Pub.3264)


INTRODUCTION TO THE MODULARCASEBOOK SERIES

By now you have realized that the course materials assigned by your instructor have avery different form than “traditional” casebooks. The Modular Casebook Series isintentionally designed to break the mold. Course materials consist of one or more separatevolumes selected from among a larger and growing set of volumes. Each of those volumes isrelatively short, so that an instructor may “mix and match” a suitable number of volumes fora course of varying length and focus. Each volume is designed to serve an instructionalpurpose rather than as a treatise. As a result, the volumes are published in soft cover.Publication of the separate volumes in soft cover also permits course materials to be revisedmore easily so that they will incorporate recent developments. Moreover, by purchasingonly the assigned volumes for a given course, students are likely to recognize significantsavings over the cost of a traditional casebook.

Traditional casebooks are often massive tomes, frequently exceeding 1000 or even 1500pages. Traditional casebooks are lengthy because they attempt to cover the entire breadth ofmaterial that might be useful to an instructor for a two-semester course of five or six credits.Even with six credits, different instructors may choose which portions of a traditionalcasebook do not fit within the time available. As a consequence, traditional casebooks mayinclude a range of materials that would leave hundreds of unexplored pages in any particularsix-credit class. For a student in a three or four credit course, such a book is hardly anefficient means for delivering the needed materials. Students purchase much more book thanthey need, at great expense. And students carry large, heavy books for months at a time.

Traditional casebooks are usually hard cover publications. It seems as though they areconstructed to last as a reference work throughout decades of practice. In fact, as thepresence of annual supplements to most casebooks makes clear, many casebooks areobsolete very shortly after publication. Treatises and hornbooks are designed to serve asreference works; casebooks serve a different purpose. Once again, the traditional format ofcasebooks seems to impose significant added costs on students without much reason.

The form of traditional casebooks increases the probability that the content will becomeobsolete shortly after publication. The publication of lengthy texts in hardcover producessubstantial delay between the time the author completes the final draft and the time the bookreaches the hands of students. In addition, the broader scope of material addressed in a 1,000or 1,500 page text means that portions of the text are more likely to be superseded by laterdevelopments than any particular narrowly-tailored volume in the Modular Casebook Series.Because individual volumes in the Modular Casebook Series may be revised withoutrequiring revision of other volumes, the materials for any particular course will be less likelyto require supplementation.

I hope you enjoy this innovative approach to course materials.

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Dedication

To Elizabeth and Saint Thomas Aquinas.

v


AcknowledgmentsI would like to thank Tom Odom for proposing and initiating the Modular Casebook

Series, and for inviting me to participate in the Series. The hard work of numerous researchassistants is reflected in this collection, notably Adi Pawar, Robert Tucker, and Zach Hohl.Without Elizabeth’s loving support, this project would not have been completed.

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Preface to the First EditionTechnological improvements permit the compilation of resources in a manner unthinkable

when I was a law student. Materials that permit further examination of assigned reading canbe delivered in a cost-effective manner and in a format more likely to be useful in practicethan reams of photocopies. The associated DVD-ROM contains full, searchable text ofseveral of the most important resources for interpreting the Constitution, lowering the wallbetween doctrinal courses and research courses.

With regard to assigned reading, there is no good reason to burden students with stacks ofhand-outs or expensive annual supplements. Publication through the Modular CasebookSeries ensures that even very recent developments may be incorporated prior to publication.Moreover, if important cases are decided after publication of the latest edition of thevolume, they will be included on the DVD-ROM. Cases and materials that shed additionallight on matter in the hard copy casebook are also included.

I welcome comments from readers so that I may make further improvements in the nextedition of this publication.

Lee J. Strang

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TECHNICAL NOTE FROM THE EDITORThe cases and other materials excerpted in this volume have been edited in an effort to enhance

readability. Citations of multiple cases for a single proposition have been shortened in many places toreference only one or two prominent authorities. In some places, archaic language or spelling has beenrevised. Headings were added to some of the longer decisions to permit ease of reference to variousparts of the opinion. Such headings may also assist the reader in identifying a transition from one pointto another.

Cases have been edited to a length suitable for reading within a single assignment. In order toachieve that result, many interesting but tangential points have been omitted. The length of someopinions also hindered the inclusion of excerpts from concurring or dissenting opinions. Where suchopinions have been omitted, it is noted in the text.

In editing these cases, I have not indicated the portions of cases I deleted unless such deletion withthe absence of ellipses would have been misleading. However, any time I inserted material into a case,I indicated the insertion with the use of brackets.

Lee J. Strang

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TABLE OF CONTENTSChapter 1 THE CONTRACTS CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Exercise 1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. ORIGINS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fletcher v. Peck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Exercise 2: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Trustees of Dartmouth College v. Woodward . . . . . . . . . . . . . . . . . . . . . 13

Exercise 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sturges v. Crowninshield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Exercise 4: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Exercise 5: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Arthur Bronson v. John H. Kinzie and Juliette A. . . . . . . . . . . . . . . . . . . 31

Exercise 6: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

West River Bridge Co. v. Dix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Exercise 7: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

C. LATE-NINETEENTH CENTURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

D. NEW DEAL — DECLINE OF THE CONTRACTS CLAUSE AS A LIMIT ONSTATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Home Building & Loan Ass’n v. Blaisdell . . . . . . . . . . . . . . . . . . . . . . . . 41

Exercise 8: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

E. TODAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

United States Trust Company of New York v. New Jersey . . . . . . . . . . . . . 60

Exercise 9: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Allied Structural Steel Company v. Warren Spannaus . . . . . . . . . . . . . . . 68

Exercise 10: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Chapter 2 THE SUPREMACY CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . 79

A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Exercise 1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

B. ORIGINAL MEANING OF SUPREMACY CLAUSE . . . . . . . . . . . . . . . . 80

C. EXPRESS PREEMPTION AND IMPLIED PREEMPTION . . . . . . . . . . . . 83

American Airlines, Inc. v. Myron Wolens . . . . . . . . . . . . . . . . . . . . . . . . 83

Exercise 2: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Geier v. American Honda Motor Company, Inc. . . . . . . . . . . . . . . . . . . . 94

Exercise 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

D. FIELD PREEMPTION AND CONFLICT PREEMPTION . . . . . . . . . . . . . 107

Rice v. Santa Fe Elevator Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 108

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Exercise 4: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Mary Gade, Director, Illinois Environmental Protection Agency v. National

Solid Wastes Management Association . . . . . . . . . . . . . . . . . . . . . . . . . 117

Exercise 5: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Chapter 3 “DORMANT” OR “NEGATIVE” COMMERCE CLAUSE . 129

A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Exercise 1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

B. ORIGINAL MEANING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

C. EARLY CASES AND STRUGGLES WITH DEFINITION . . . . . . . . . . . . 133

1. Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Gibbons v. Ogden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Exercise 2: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

2. Struggles with Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Thompson Willson v. The Black Bird Creek Marsh Company . . . . . . . 141

Exercise 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Aaron B. Cooley v. The Board of Wardens of The Port of

Philadelphia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Exercise 4: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Di Santo v. Commonwealth of Pennsylvania. . . . . . . . . . . . . . . . . . . . 150

Exercise 5: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

D. NEW DEAL REVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Southern Pacific Co. v. State of Arizona Ex Rel. Sullivan, Attorney

General of Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Exercise 6: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

E. TODAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

City of Philadelphia v. State of New Jersey . . . . . . . . . . . . . . . . . . . . . . 163

Exercise 7: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

1. Does the State Regulation Discriminate Against Out-of-State

Commerce? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

a. Facially Discriminatory Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

b. Facially Neutral Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Hunt v. Washington State Apple Advertising Commission . . . . . . . . 170

Exercise 8: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

Exxon Corporation v. Governor of Maryland . . . . . . . . . . . . . . . . . 175

Exercise 9: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

H.P. Hood & Sons, Inc. v. Du Mond . . . . . . . . . . . . . . . . . . . . . . . 182

Exercise 10: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

2. Neutral State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

Loren J. Pike v. Bruce Church, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 193

TABLE OF CONTENTS

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Exercise 11: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

3. Discriminatory State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

4. “Exceptions” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

a. Congressional Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

b. Market Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Hughes v. Alexandria Scrap Corporation . . . . . . . . . . . . . . . . . . . . 197

Exercise 12: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Chapter 4 FEDERALISM LIMITS ON THE FEDERALGOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

Exercise 1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

B. ORIGINS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

C. FEDERALISM’S APOTHEOSIS PRIOR TO THE NEW DEAL . . . . . . . . 209

Hammer v. Dagenhart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Exercise 2: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

D. NEW DEAL TRANSFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

United States v. Darby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

Exercise 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

E. ABORTIVE REVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

National League of Cities v. Usery . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

Exercise 4: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Garcia v. San Antonio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

Exercise 5: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

F. MODERN DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

New York v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

Exercise 6: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

Printz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

Exercise 7: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TC-1

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

TABLE OF CONTENTS

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Introduction to Volume 4

The term federalism refers to the collection of doctrines that govern the relationshipbetween the central government and the several states. This Volume addresses constitutionallimitations imposed upon states and the central government. It explains four of the limits onstate and federal power derived from the original Constitution, that is, the Constitution priorto the Reconstruction Amendments (which are addressed in forthcoming Volume 5).

A. Express Constitutional Limitations Upon States

1. Limitations to Ensure Exclusive Federal Authority

The Constitution of 1789 contained several express limitations upon states. In severalinstances, an affirmative grant of authority to the central government is joined with aprohibition on the individual states exercising any parallel authority. That is, theConstitution itself directly vests exclusive authority over the matter in the centralgovernment.

For example, Article I, § 10, provides in part: “No State shall enter into any Treaty,Alliance, or Confederation.” Those powers are affirmatively vested in the centralgovernment. The President has the “Power, by and with the Advice and Consent of theSenate, to make Treaties, provided two thirds of the Senators present concur; and he shallnominate, and by and with the Advice and Consent of the Senate, shall appointAmbassadors, other public Ministers and Consuls. . . .” Art. II, § 2, ¶ 2. Even in theabsence of action by the central government, states would be constitutionally prohibitedfrom pursuing opportunities to establish treaties with foreign nations.

Similarly, Article I, § 10, specifies: “No State shall . . . grant Letters of Marque andReprisal.” Authorizing such action would likely constitute an act of war, and Congress notonly is granted authority to declare war, it is also expressly granted the authority to issueLetters of Marque and Reprisal in Article I, § 8, cl. 11.

So too, Article I, § 10, provides that states may not “coin Money.” Again, in parallelfashion, Congress is granted the power: “To coin Money, regulate the Value thereof, andforeign Coin, and fix the Standard of Weights and Measures” in Article I, § 8, cl. 5.

These limitations upon state authority provoke little controversy.

2. Limitations on States Parallel to Limitations on the Central Government

The Constitution of 1789 contains several other express limitations on states that parallelprohibitions on the central government. For example, both the states and the centralgovernment are prohibited from (1) enacting any Bill of Attainder, (2) promulgating any expost facto law, and (3) “grant[ing] any Title of Nobility.” Compare Art. I, § 9, cls. 3 & 8,with Art. I, § 10, ¶ 1. As these provisions protect individuals from action by either the statesor the central government, they are more appropriately conceptualized as individual rightsand, consequently, are beyond the scope of this Volume.

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3. Unique Limitations on States

The Constitution of 1789 includes only a few express limitations on state autonomy thathave no parallel provision that either grants exclusive authority to the central government orthat equally prohibits action by the central government. One such provision is therequirement that states may not “pass any . . . Law impairing the Obligation of Contracts.”Art. I, § 10, ¶ 1. The Contracts Clause is the subject of Chapter 1.

B. Implied Constitutional Limitations Upon States

Even when the Constitution of 1789 does not expressly limit the several states, there arelimited situations where the grant of power to the central government necessarily implies adenial to the several states of any parallel authority.

1. Express Grants of Exclusive Authority to the Central Government

The grant of “exclusive” authority over the District of Columbia and federal enclaves, seeArt. I, § 8, cl. 17, necessarily implies a prohibition on the several states from exercising anycompeting authority. For these provisions to apply, the appropriate state must cedejurisdiction over the property; acquisition of the property by the central government, eitherby purchase or eminent domain, does not itself confer exclusive jurisdiction. See, e.g., Kohlv. United States, 91 U.S. 367, 371 (1875). Without a cessation of jurisdiction, the UnitedStates holds property within a state as “an ordinary proprietor.” James v. Dravo ContractingCo., 302 U.S. 134, 141–42 (1937).

Even grants of authority to Congress to establish “uniform” laws or to grant “exclusive”rights may not imply a prohibition on the several states. For example, Congress is grantedauthority to “establish . . . uniform Laws on the subject of Bankruptcies throughout theUnited States,” see Art. I, § 8, cl. 4, and one might reason that a uniform law necessarilydisplaces the separate non-uniform laws of the several states. In the absence ofcongressional exercise of this power, however, does the mere existence of the power serve todivest states of the authority to establish laws on the subject that vary from state to state? Ina relatively early decision, the Supreme Court answered that question in the negative.

Congress is not authorized merely to pass laws, the operation of which shall beuniform, but to establish uniform laws on the subject throughout the United States. Thisestablishment of uniformity is, perhaps, incompatible with state legislation, on that partof the subject to which the acts of Congress may extend. . . .

. . . It does not appear to be a violent construction of the Constitution, and is certainlya convenient one, to consider the power of the States as existing over such cases as thelaws of the Union may not reach. But be this as it may, the power granted to Congressmay be exercised or declined, as the wisdom of that body shall decide. If, in the opinionof Congress, uniform laws concerning bankruptcies ought not to be established, it doesnot follow, that partial laws may not exist, or that State legislation on the subject mustcease. It is not the mere existence of the power, but its exercise, which is incompatiblewith the exercise of the same power by the States. It is not the right to establish theseuniform laws, but their actual establishment, which is inconsistent with the partial acts ofthe States.

Sturges v. Crowninshield, 17 U.S. 120, 193-94 (1819) (Marshall, C.J.).

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A similar situation presented itself because Congress did not enact the first statute broadlyregulating immigration until 1875. Act of Mar. 3, 1875, ch. 141, 18 Stat. 477; see INS v. St.Cyr, 533 U.S. 289, 305 (2001). The absence of federal statutory law eliminated the basis forpreemption, leaving state laws to be challenged solely on the basis of whether the subject wasvested exclusively in the central government.

From the earliest days under the Constitution, various states enacted limitations onimmigration of criminals, see Gerald L. Neuman, The Lost Century of American ImmigrationLaw (1776–1875), 93 COLUM. L. REV. 1833, 1843 (1993), the destitute, see id. at 1848-59,and individuals infected with contagious diseases — a basis for “State authority . . . [which]had long enjoyed the unequivocal endorsement of the federal government,” id. at 1864. AsProfessor Neuman observes, initially, a majority of the Supreme Court endorsed theconcurrent authority of states. See, e.g., Gibbons v. Ogden, 22 U.S. 1, 203–06 (1824)(Marshall, C.J.) (expressly endorsing state quarantine and health laws in the absence of actualconflict with federal law); Mayor of New York v. Miln, 36 U.S. 102, 142–43 (1837)(approving state laws addressed to “paupers, vagabonds, and possibly convicts” in additionto individuals “laboring under an infectious disease”); Prigg v. Pennsylvania, 41 U.S. 539,625 (1842) (recognizing state authority to exclude “runaway slaves” as well as “idlers,vagabonds, and paupers”); Moore v. Illinois, 55 U.S. 13, 18 (1853) (endorsing state authorityto criminalize the introduction of “paupers, criminals, or fugutive slaves”). In addition tosupport for that view from the federal judiciary, Congress enacted laws and the Executiveengaged in diplomatic efforts designed to reinforce state regulation. See Neuman, supra, at1883. Only after the Civil War did the U.S. Supreme Court assert that “[t]he authority tocontrol immigration — to admit or exclude aliens — is vested solely in the FederalGovernment,” Truax v. Raich, 239 U.S. 33, 42 (1915), beginning its retreat with cases likeHenderson v. Mayor of New York, 92 U.S. 259 (1876), and Chy Lung v. Freeman, 92 U.S.275 (1876).

In light of the breadth of federal legislation in the fields of bankruptcy and immigration,and resulting preemption, the question whether the Constitution prohibits states fromexercising concurrent authority in those areas is of diminished importance.

2. The Supremacy of Federal Law

When the central government acts pursuant to its own constitutional authority, theSupremacy Clause dictates that the central government may displace state law. Such“preemption” of state law is addressed in Chapter 2.

C. Implied Grant of Exclusive Authority to the Central Government

The text of the Commerce Clause does not purport to grant exclusive authority to thecentral government. Not only is there no explicit prohibition on concurrent state regulationof commerce, certain specific prohibitions upon states would seem superfluous if the Clausewere so construed. Despite early precedent to the contrary, the U.S. Supreme Courteventually articulated the doctrine of the “dormant” Commerce Clause. Under that view,certain aspects of the regulation of commerce are vested exclusively in the centralgovernment so that even when Congress does not affirmatively legislate, states nonethelesslack the concurrent authority to regulate. The dormant Commerce Clause is the subject ofChapter 3.

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D. Federalism Limits on the Central Government

The federal structure established by the Constitution also limits the central government.The most important aspect of federalism limits on the central government is the doctrine oflimited and enumerated powers. The Tenth Amendment is the focus of debates over the scopeof that doctrine and is the subject of Chapter 4.

Federalism limits on the central government have manifested in other areas of case law aswell. Most prominently, the Supreme Court reinvigorated limits on Congress’ CommerceClause authority in United States v. Lopez, 514 U.S. 549 (1995), and United States v.Morrison, 529 U.S. 598 (2000). The Court also restricted the scope of Congress’ Section 5powers in Boerne v. Flores, 521 U.S. 57 (1997), and, in a related line of cases beginning withSeminal Tribe v. Florida, 517 U.S. 44 (1996), expanded the scope of state sovereignimmunity from suit. These limits were discussed in Volume 3.

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The Constitution of the United States

We the People of the United States, in Order to form a more perfect Union, establishJustice, insure domestic Tranquility, provide for the common defence, promote the generalWelfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain andestablish this Constitution for the United States of America.

Article I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the UnitedStates, which shall consist of a Senate and House of Representatives.

Section 2. The House of Representatives shall be composed of Members chosen everysecond Year by the People of the several States, and the Electors in each State shall have theQualifications requisite for Electors of the most numerous Branch of the State Legislature.

No person shall be a Representative who shall not have attained to the Age of twenty fiveYears, and been seven Years a Citizen of the United States, and who shall not, when elected,be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which maybe included within this Union, according to their respective Numbers, which shall bedetermined by adding to the whole Number of free Persons, including those bound to Servicefor a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. Theactual Enumeration shall be made within three Years after the first Meeting of the Congressof the United States, and within every subsequent Term of ten Years, in such Manner as theyshall by Law direct. The Number of Representatives shall not exceed one for every thirtyThousand, but each State shall have at Least one Representative; and until such enumerationshall be made, the State of New Hampshire shall be entitled to chuse three, Massachusettseight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, NewJersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolinafive, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authoritythereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall havethe sole Power of Impeachment.

Section 3. The Senate of the United States shall be composed of two Senators from eachState, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shallbe divided as equally as may be into three Classes. The Seats of the Senators of the first Classshall be vacated at the Expiration of the second Year, of the second Class at the Expirationof the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one thirdmay 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 temporaryAppointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, andbeen nine Years a Citizen of the United States, and who shall not, when elected, be an

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Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have noVote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in theAbsence of the Vice President, or when he shall exercise the Office of President of the UnitedStates.

The Senate shall have the sole Power to try all Impeachments. When sitting for thatPurpose, they shall be on Oath or Affirmation. When the President of the United States istried, the Chief Justice shall preside: and no Person shall be convicted without theConcurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office,and disqualification to hold and enjoy any Office of honor, Trust or Profit under the UnitedStates: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial,Judgment and Punishment, according to Law.

Section 4. The Times, Places and Manner of holding Elections for Senators and Represen-tatives, shall be prescribed in each State by the Legislature thereof; but the Congress may atany time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on thefirst Monday in December, unless they shall by Law appoint a different Day.

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of itsown Members, and a Majority of each shall constitute a Quorum to do Business; but a smallerNumber may adjourn from day to day, and may be authorized to compel the Attendance ofabsent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderlyBehaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish thesame, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Naysof the Members of either House on any question shall, at the Desire of one fifth of thosePresent, be entered on the Journal.

Section 6. 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 allCases, except Treason, Felony and Breach of the Peace, be privileged from Arrest duringtheir Attendance at the Session of their respective Houses, and in going to and returning fromthe same; and for any Speech or Debate in either House, they shall not be questioned in anyother Place.

No Senator or Representative shall, during the Time for which he was elected, beappointed to any civil Office under the Authority of the United States, which shall have beencreated, or the Emoluments whereof shall have been encreased during such time; and noPerson holding any Office under the United States, shall be a Member of either House duringhis Continuance in Office.

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Section 7. All Bills for raising Revenue shall originate in the House of Representatives; butthe Senate may propose or concur with Amendments as on other Bills.

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 heshall sign it, but if not he shall return it, with his Objections to that House in which it shallhave originated, who shall enter the Objections at large on their Journal, and proceed toreconsider it. If after such Reconsideration two thirds of that House shall agree to pass theBill, it shall be sent, together with the Objections, to the other House, by which it shalllikewise 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, andthe Names of the Persons voting for and against the Bill shall be entered on the Journal ofeach 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 likeManner as if he had signed it, unless the Congress by their Adjournment prevent its Returnin which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House ofRepresentatives may be necessary (except on a question of Adjournment) shall be presentedto the President of the United States; and before the Same shall take Effect, shall be approvedby him, or being disapproved by him, shall be repassed by two thirds of the Senate and Houseof Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts andExcises, to pay the Debts and provide for the common Defence and general Welfare of theUnited States; but all Duties, Imposts and Excises shall be uniform throughout the UnitedStates;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with theIndian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject ofBankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and foreign Coin, and fix the Standard ofWeights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of theUnited States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times toAuthors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offencesagainst the Law of Nations;

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To declare War, grant Letters of Marque and Reprisal, and make Rules concerningCaptures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for alonger Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppressInsurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing suchPart of them as may be employed in the Service of the United States, reserving to the Statesrespectively, the Appointment of the Officers, and the Authority of training the Militiaaccording to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (notexceeding ten Miles square) as may, by Cession of particular States, and the Acceptance ofCongress, become the Seat of the Government of the United States, and to exercise likeAuthority over all Places purchased by the Consent of the Legislature of the State in whichthe Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and otherneedful Buildings; — And

To make all Laws which shall be necessary and proper for carrying into Execution theforegoing Powers, and all other Powers vested by this Constitution in the Government of theUnited States, or in any Department or Officer thereof.

Section 9. The Migration or Importation of such Persons as any of the States now existingshall think proper to admit, shall not be prohibited by the Congress prior to the Year onethousand eight hundred and eight, but a Tax or duty may be imposed on such Importation,not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Casesof Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census orEnumeration herein before directed to be taken.

No Tax or Duty shall be laid on.Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports ofone State over those of another; nor shall Vessels bound to, or from, one State, be obligedto enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations madeby Law; and a regular Statement and Account of the Receipts and Expenditures of all publicMoney shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding anyOffice of Profit or Trust under them, shall, without the Consent of the Congress, accept of any

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present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreignState.

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters ofMarque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silverCoin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Lawimpairing 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 Importsor Exports, except what may be absolutely necessary for executing it’s inspection Laws: andthe net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall befor the Use of the Treasury of the United. States; and all such Laws shall be subject to theRevision and Controul of the Congress.

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 imminentDanger as will not admit of delay.

Article II

Section 1. The executive Power shall be vested in a President of the United States ofAmerica. He shall hold his Office during the Term of four Years, and, together with the VicePresident, chosen for the same Term, be elected as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Numberof Electors, equal to the whole Number of Senators and Representatives to which the Statemay be entitled in the Congress: but no Senator or Representative, or Person holding anOffice 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, ofwhom one at least shall not be an Inhabitant of the same State with themselves. And theyshall make a List of all the Persons voted for, and of the Number of Votes for each; whichList they shall sign and certify, and transmit sealed to the Seat of the Government of theUnited States, directed to the President of the Senate. The President of the Senate shall, in thePresence of the Senate and House of Representatives, open all the Certificates, and the Votesshall 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 bemore than one who have such Majority, and have an equal Number of Votes, then the Houseof Representatives shall immediately chuse by Ballot one of them for President; and if noPerson have a Majority, then from the five highest on the List the said House shall in likeManner 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 consistof a Member or Members from two thirds of the States, and a Majority of all the States shallbe necessary to a Choice. In every Case, after the Choice of the President, the Person havingthe greatest Number of Votes of the Electors shall be the Vice President. But if there shouldremain two or more who have equal Votes, the Senate shall chuse from them by Ballot theVice President.

The Congress may determine the Time of chusing the Electors, and the Day on which theyshall give their Votes; which Day shall be the same throughout the United States.

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No Person except a natural born Citizen, or a Citizen of the United States, at the time ofthe Adoption of this Constitution, shall be eligible to the Office of President; neither shall anyPerson 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.

In the Case of the Removal of the President from Office, or of his Death, Resignation, orInability to discharge the Powers and Duties of the said Office, the Same shall devolve on theVice 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 Officershall then act as President, and such Officer shall act accordingly, until the Disability beremoved, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shallneither be encreased 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, orany of them.

Before he enter on the Execution of his Office, he shall take the following Oath orAffirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office ofthe President of the United States, and will to the best of my Ability, preserve, protect anddefend the Constitution of the United States.”

Section 2. The President shall be the Commander in Chief of the Army and Navy of theUnited States, and of the Militia of the several States, when called into the actual service ofthe United States; he may require the Opinion, in writing, of the principal Officer in each ofthe executive Departments, upon any Subject relating to the Duties of their respective Offices,and he shall have Power to grant Reprieves and Pardons for Offenses against the UnitedStates, 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 withthe Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers andConsuls, Judges of the supreme Court, and all other Officers of the United States, whoseAppointments are not herein otherwise provided for, and which shall be established by Lawbut the Congress may by Law vest the Appointment of such inferior Officers, as they thinkproper, 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 Recessof the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3. He shall from time to time give to the Congress Information of the State of theUnion, and recommend to their Consideration such Measures as he shall judge necessary andexpedient; he may, on extraordinary Occasions, convene both Houses, or either of them, andin Case of Disagreement between them, with Respect to the Time of Adjournment, he mayadjourn them to such Time as he shall think proper; he shall receive Ambassadors and otherpublic Ministers; he shall take Care that the Laws be faithfully executed, and shallCommission all the Officers of the United States.

Section 4. The President, Vice President and all civil Officers of the United States, shall beremoved from Office on Impeachment for, and Conviction of, Treason, Bribery, or other highCrimes and Misdemeanors.

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Article III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, andin such inferior Courts as the Congress may from time to time ordain and establish. TheJudges, both of the supreme and inferior Courts, shall hold their Offices during goodBehaviour, and shall, at stated Times, receive for their Services, a Compensation, which shallnot be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under thisConstitution, the Laws of the United States, and Treaties made, or which shall be made, undertheir Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which theUnited States shall be a Party; — to Controversies between two or more States; — betweena State and Citizens of another State; — between Citizens of different States; — betweenCitizens of the same State claiming Lands under Grants of different States, and between aState, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in whicha State shall be a Party, the supreme Court shall have original Jurisdiction. In all the otherCases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Lawand 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 Trialshall be held in the State where the said Crimes shall have been committed; but when notcommitted within any State, the Trial shall be at such Place or Places as the Congress mayby Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them,or in adhering to their Enemies, giving them Aid or Comfort. No Person shall be convictedof Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confessionin open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder ofTreason shall work Corruption of Blood, or Forfeiture except during the Life of the Personattainted.

Article IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, andjudicial Proceedings of every other State. And the Congress may by general Laws prescribethe Manner in which such Acts, Records and Proceedings shall be proved, and the Effectthereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities ofCitizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee fromJustice, and be found in another State, shall on Demand of the executive Authority of theState from which he fled, be delivered up, to be removed to the State having Jurisdiction ofthe Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into

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another, shall, in Consequence of any Law or Regulation therein, be discharged from suchService or Labour, but shall be delivered up on Claim of the Party to whom such Service orLabour may be due.

Section 3. New States may be admitted by the Congress into this Union; but no new Stateshall be formed or erected within the Jurisdiction of any other State; nor any State be formedby the Junction of two or more States, or Parts of States, without the Consent of theLegislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulationsrespecting the Territory or other Property belonging to the United States; and nothing in thisConstitution shall be so construed to Prejudice any Claims of the United States, or of anyparticular State.

Section 4. The United States shall guarantee to every State in this Union a Republican Formof Government, and shall protect each of them against Invasion; and on Application of theLegislature, or of the Executive (when the Legislature cannot be convened) against domesticViolence.

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall proposeAmendments to this Constitution, or, on the Application of the Legislatures of two thirds ofthe several States, shall call a Convention for proposing Amendments, which, in either Case,shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by theLegislatures of three fourths of the several States, or by Conventions in three fourths thereof,as the one or the other Mode of Ratification may be proposed by the Congress; provided thatno Amendment which may be made prior to the Year One thousand eight hundred and eightshall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.

Article VI

All Debts contracted and Engagements entered into, before the adoption of thisConstitution, shall be as valid against the United States under this Constitution, as under theConfederation.

This Constitution, and the Laws of the United States which shall be made in Pursuancethereof; and all Treaties made, or which shall be made, under the Authority of the UnitedStates, shall be the supreme Law of the Land; and the Judges in every State shall be boundthereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several StateLegislatures, and all executive and judicial Officers, both of the United States and of theseveral States, shall be bound by Oath or Affirmation, to support this Constitution; but noreligious Test shall ever be required as a Qualification to any Office or public Trust under theUnited States.

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishmentof this Constitution between the States so ratifying the Same.

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Go. Washington — Presidt.and deputy from Virginia

New Hampshire New JerseyJohn Langdon Wil: LivingstonNicholas Gilman David Brearley

Wm. PatersonJona: Dayton

Massachusetts PennsylvaniaNathaniel Gorham B FranklinRufus King Thomas Mifflin

Robt. MorrisConnecticut Geo. ClymerWm. Saml. Johnson Thos. FitzsimonsRoger Sherman Jared Ingersoll

James WilsonNew York Gouv MorrisAlexander Hamilton

Delaware North CarolinaGeo: Read Wm: BlountCunning Bedford jun Richd. Dobbs Spaight.John Dickinson Hu WilliamsonRichard BassettJaco: Broom

Maryland South CarolinaJames McHenry J. RutledgeDan of St. Thos. Jenifer Charles Cotesworth PinckneyDanl. Carroll Pierce Butler

Virginia GeorgiaJohn Blair — William FewJames Madison Jr. Abr Baldwin

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The Bill of Rights(1791)

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the freeexercise thereof; or abridging the freedom of speech, or of the press; or the right of the peoplepeaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of thepeople to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of theowner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, and no warrants shall issue, butupon probable cause, supported by oath or affirmation, and particularly describing the placeto be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on apresentment or indictment of a grand jury, except in cases arising in the land or naval forces,or in the militia, when in actual service in time of war or public danger; nor shall any personbe subject for the same offense to be twice put in jeopardy of life or limb; nor shall becompelled in any criminal case to be a witness against himself, nor be deprived of life,liberty, or property, without due process of law; nor shall private property be taken for publicuse, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,by an impartial jury of the state and district wherein the crime shall have been committed,which district shall have been previously ascertained by law, and to be informed of the natureand cause of the accusation; to be confronted with the witnesses against him; to havecompulsory process for obtaining witnesses in his favor, and to have the assistance of counselfor his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, theright of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwisereexamined in any court of the United States, then according to the rules of the common law.

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Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusualpunishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny ordisparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it tothe states, are reserved to the states respectively, or to the people.

Later Amendments

Amendment XI(1798)

The judicial power of the United States shall not be construed to extend to any suit in lawor equity, commenced or prosecuted against one of the United States by Citizens of anotherState, or by Citizens or Subjects of any Foreign State.

Amendment XII(1804)

The Electors shall meet in their respective states and vote by ballot for President andVice-President, one of whom, at least, shall not be an inhabitant of the same state withthemselves; they shall name in their ballots the person voted for as President, and in distinctballots the person voted for as Vice-President, and they shall make distinct lists of all personsvoted for as President, and of all persons voted for as Vice-President, and of the number ofvotes for each, which lists they shall sign and certify, and transmit sealed to the seat of thegovernment of the United States, directed to the President of the Senate; — The President ofthe Senate shall, in the presence of the Senate and House of Representatives, open all thecertificates and the votes shall then be counted; — the person having the greatest number ofvotes for President, shall be the President, if such number be a majority of the whole numberof Electors appointed; and if no person have such majority, then from the persons having thehighest numbers not exceeding three on the list of those voted for as President, the House ofRepresentatives shall choose immediately, by ballot, the President. But in choosing thePresident, the votes shall be taken by states, the representation from each state having onevote; a quorum for this purpose shall consist of a member or members from two-thirds of thestates, and a majority of all the states shall be necessary to a choice. And if the House ofRepresentatives shall not choose a President whenever the right of choice shall devolve uponthem, before the fourth day of March next following, then the Vice-President shall act asPresident, as in the case of the death or other constitutional disability of the President. Theperson having the greatest number of votes as Vice-President, shall be the Vice-President, ifsuch number be a majority of the whole number of Electors appointed, and if no person havea majority, then from the two highest numbers on the list, the Senate shall choose theVice-President; a quorum for the purpose shall consist of two-thirds of the whole number ofSenators, and a majority of the whole number shall be necessary to a choice. But no person

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constitutionally ineligible to the office of President shall be eligible to that of Vice-Presidentof the United States.

Amendment XIII(1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall exist within the United States, or anyplace subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV(1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No State shallmake or enforce any law which shall abridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in each State, excluding Indiansnot taxed. But when the right to vote at any election for the choice of electors for Presidentand Vice President of the United States, Representatives in Congress, the Executive andJudicial.officers of a State, or the members of the Legislature thereof, is denied to any of themale inhabitants of such State, being twenty-one years of age, and citizens of the UnitedStates, or in any way abridged, except for participation in rebellion, or other crime, the basisof representation therein shall be reduced in the proportion which the number of such malecitizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of Presidentand Vice President, or hold any office, civil or military, under the United States, or under anyState, who, having previously taken an oath, as a member of Congress, or as an officer of theUnited States, or as a member of any State legislature, or as an executive or judicial officerof any State, to support the Constitution of the United States, shall have engaged ininsurrection or rebellion against the same, or given aid or comfort to the enemies thereof. ButCongress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, includingdebts incurred for payment of pensions and bounties for services in suppressing insurrectionor rebellion, shall not be questioned. But neither the United States nor any State shall assumeor pay any debt or obligation incurred in aid of insurrection or rebellion against the UnitedStates, or any claim for the loss or emancipation of any slave; but all such debts, obligationsand claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, theprovisions of this article.

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Amendment XV(1870)

Section 1. The right of citizens of the United States to vote shall not be denied or abridgedby the United States or by any State on account of race, color, or previous condition ofservitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XVI(1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever sourcederived, without apportionment among the several States, and without regard to any censusor enumeration.

Amendment XVII(1913)

The Senate of the United States shall be composed of two Senators from each State, electedby the people thereof, for six years; and each Senator shall have one vote. The electors ineach State shall have the qualifications requisite for electors of the most numerous branch ofthe State legislature.

When vacancies happen in the representation of any State in the Senate, the executiveauthority of such State shall issue writs of election to fill such vacancies: Provided, That thelegislature of any State may empower the executive thereof to make temporary appointmentsuntil the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to effect the election or term of any Senatorchosen before it becomes valid as part of the Constitution.

Amendment XVIII(1919)

Section 1. After one year from the ratification of this article the manufacture, sale, ortransportation of intoxicating liquors within, the importation thereof into, or the exportationthereof from the United States and all territory subject to the jurisdiction thereof for beveragepurposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce thisarticle by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendmentto the Constitution by the legislatures of the several States, as provided in the Constitution,within seven years from the date of the submission hereof to the States by the Congress.

Amendment XIX(1920)

The right of citizens of the United States to vote shall not be denied or abridged by theUnited States or by any State on account of sex.

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Congress shall have power to enforce this article by appropriate legislation.

Amendment XX(1933)

Section 1. The terms of the President and Vice President shall end at noon on the 20th dayof January, and the terms of Senators and Representatives at noon on the 3d day of January,of the years in which such terms would have ended if this article had not been ratified; andthe terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shallbegin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the Presidentelect shall have died, the Vice President elect shall become President. If a President shall nothave been chosen before the time fixed for the beginning of his term, or if the President electshall have failed to qualify, then the Vice President elect shall act as President until aPresident shall have qualified; and the Congress may by law provide for the case whereinneither a President elect nor a Vice President elect shall have qualified, declaring who shallthen act as President, or the manner in which one who is to act shall be selected, and suchperson shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the personsfrom whom the House of Representatives may choose a President whenever the right ofchoice shall have devolved upon them, and for the case of the death of any of the personsfrom whom the Senate may choose a Vice President whenever the right of choice shall havedevolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following theratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendmentto the Constitution by the legislatures of three-fourths of the several States within seven yearsfrom the date of its submission.

Amendment XXI(1933)

Section 1. The eighteenth article of amendment to the Constitution of the United States ishereby repealed.

Section 2. The transportation or importation into any State, territory, or possession of theUnited States for delivery or use therein of intoxicating liquors, in violation of the lawsthereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendmentto the Constitution by conventions in the several States, as provided in the Constitution,within seven years from the date of the submission hereof to the States by the Congress.

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Amendment XXII(1951)

Section 1. No person shall be elected to the office of the President more than twice, and noperson who has held the office of President, or acted as President, for more than two yearsof a term to which some other person was elected President shall be elected to the office ofthe President more than once. But this article shall not apply to any person holding the officeof President when this article was proposed by the Congress, and shall not prevent any personwho may be holding the office of President, or acting as President, during the term withinwhich this article becomes operative from holding the office of President or acting asPresident during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendmentto the Constitution by the legislatures of three-fourths of the several States within seven yearsfrom the date of its submission to the States by the Congress.

Amendment XXIII(1961)

Section 1. The District constituting the seat of government of the United States shall appointin such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number ofSenators and Representatives in Congress to which the District would be entitled if it werea State, but in no event more than the least populous State; they shall be in addition to thoseappointed by the States, but they shall be considered, for the purposes of the election of thePresident and Vice President, to be electors appointed by a State; and they shall meet in theDistrict and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXIV(1964)

Section 1. The right of citizens of the United States to vote in any primary or other electionfor President or Vice President, for electors for President or Vice President, or for Senator orRepresentative in Congress, shall not be denied or abridged by the United States or any Stateby reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have the power to enforce this article by appropriatelegislation.

Amendment XXV(1967)

Section 1. In case of the removal of the President from office or his death or resignation, theVice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shallnominate a Vice President who shall take office upon confirmation by a majority vote of bothHouses of Congress.

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Section 3. Whenever the President transmits to the President pro tempore of the Senate andthe Speaker of the House of Representatives his written declaration that he is unable todischarge the powers and duties of his office, and until he transmits to them a writtendeclaration to the contrary, such powers and duties shall be discharged by the Vice Presidentas Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of theexecutive departments or such other body as Congress may by law provide, transmit to thePresident pro tempore of the Senate and the Speaker of the House of Representatives theirwritten declaration that the President is unable to discharge the powers and duties of hisoffice, the Vice President shall immediately assume the powers and duties of the office asActing President.

Thereafter, when the President transmits to the President pro tempore of the Senate and theSpeaker of the House of Representatives his written declaration that no inability exists, heshall resume the powers and duties of his office unless the Vice President and a majority ofeither the principal officers of the executive department or of such other body as Congressmay by law provide, transmit within four days to the President pro tempore of the Senate andthe Speaker of the House of Representatives their written declaration that the President isunable to discharge the powers and duties of his office. Thereupon Congress shall decide theissue, assembling within forty-eight hours for that purpose if not in session. If the Congress,within twenty-one days after receipt of the latter written declaration, or, if Congress is not insession, within twenty-one days after Congress is required to assemble, determine bytwo-thirds vote of both Houses that the President is unable to discharge the powers and dutiesof his office, the Vice President shall continue to discharge the same as Acting President;otherwise, the President shall resume the powers and duties of his office.

Amendment XXVI(1971)

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote,shall not be denied or abridged by the United States or any State on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriatelegislation.

Amendment XXVII(1992)

No law varying the compensation for the services of the Senators and Representatives shalltake effect until an election of Representatives shall have intervened.

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