The Constitution's Clause: Why This Addition?

The Constitution of the United States, written in 1787, is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. The document, originally intended as a revision of the Articles of Confederation, introduced a new form of government. It established a federal system with a national government composed of three branches: the legislative, consisting of the bicameral Congress (Article I); the executive, consisting of the President and subordinate officers (Article II); and the judicial, consisting of the Supreme Court and other federal courts (Article III). The Constitution has been amended numerous times, with members of the House and Senate proposing around 150 amendments during each two-year term of Congress. The process of amending the Constitution is outlined in Article V, and the first ten amendments, known as the Bill of Rights, were added to limit government power and protect individual liberties.

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To establish a new form of government

The writers of the US Constitution aimed to establish a new form of government, replacing the Articles of Confederation, which had been America's first constitution. The Articles of Confederation had given the Confederation Congress the power to make rules and request funds from the states, but it lacked enforcement powers, the ability to regulate commerce, or print money. This led to disputes between the states over territory, war pensions, taxation, and trade, threatening to tear the country apart.

The new constitution aimed to address these issues by creating a powerful central government with a federal system. The Founding Fathers proposed a national government where power was divided between three separate branches: the executive, legislative, and judiciary. This system, known as the "separation of powers," was designed to prevent the concentration of power in a single branch and encourage collaboration between the branches.

To achieve this balance, the Constitution provided for a system of checks and balances. For example, while the President can veto bills passed by Congress, Congress can override a veto if both the Senate and the House pass the bill with a two-thirds majority. Additionally, the President can be brought to trial through impeachment if they commit a serious crime.

The writers of the Constitution also wanted to ensure that the government derived its legitimacy from the people rather than the states. This is reflected in the Preamble's opening words: "We the People" of the United States. The Preamble goes on to outline the purposes of the new government, including establishing justice, ensuring domestic tranquility, providing for the common defence, promoting the general welfare, and securing the blessings of liberty for the people and their posterity.

To supersede the Articles of Confederation

The Articles of Confederation, the United States' first constitution, was adopted by the Continental Congress on November 15, 1777, and was in force from March 1, 1781, until 1789 when the present-day Constitution went into effect. The Articles established a "league of friendship" for the 13 sovereign and independent states. Each state retained "every Power...which is not by this confederation expressly delegated to the United States".

The Articles of Confederation created a government in which the colonies, now states, retained most of the power. This left the central government weak, without essential powers like the ability to control foreign policy, regulate commerce, or tax. The central government tried to operate with minimal treasury funds during high inflation. The states' disputes over territory, war pensions, taxation, and trade threatened to tear the young country apart.

In 1786, a group of western Massachusetts residents, led by former Continental Army Captain Daniel Shay, rebelled due to the state's high taxes and wartime debt. This event highlighted the federal government's inability to address internal rebellions due to a lack of funds and military power. James Madison, Alexander Hamilton, and George Washington feared that the country was on the brink of collapse.

In May 1787, the Constitutional Convention assembled in Philadelphia to address the shortcomings of the Articles of Confederation. The delegates decided to completely redesign the government, and after three months of heated debate, the new Constitution was signed. The Constitution created a bicameral legislature: the House of Representatives, elected by popular vote, and the Senate, appointed by the state legislatures. It also granted the federal government the power to tax individuals and control interstate commerce, and barred states from creating their own currency.

The Supremacy Clause, a founding principle in U.S. constitutional law, was included in the new Constitution to address the lack of a similar provision in the Articles of Confederation. The Clause establishes the supremacy of federal laws, regulations, and treaties over conflicting state laws, helping to give structure to the federal government and providing assurance of finality in governmental decision-making. It was not a major source of disagreement at the Constitutional Convention but generated controversy during debates over the Constitution's ratification.

To outline the process for amending the Constitution

The writers of the US Constitution added a clause to outline a formal process for amending the Constitution. This process is outlined in Article V of the Constitution.

Article V states that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of state legislatures can apply for a constitutional convention to propose amendments. Once an amendment is proposed, it must be ratified by three-quarters of the states (38 out of 50) to become part of the Constitution.

The process of amending the Constitution has been criticised for being too strict, making it difficult to enact amendments. For instance, it requires the approval of two-thirds of both Houses of Congress and three-quarters of the states. This strict process aims to prevent constitutional changes that are strongly opposed by a substantial minority of the country, maintaining national allegiance to the Constitution.

Another criticism is that the process is biased towards the federal government and does not allow amendments that limit the national government. For example, the first of the two sentences at the end of Article V prohibited amendments made before 1808 from affecting the Constitution's limitations on Congress's power to restrict the slave trade or levy certain taxes on land or slaves.

Despite these criticisms, the amendment process has allowed for significant constitutional changes, including the Bill of Rights and Amendments concerning income tax and the direct election of senators.

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To ensure freedom of movement between states

The writers of the US Constitution added the clause "To ensure freedom of movement between states" to protect the right of citizens to travel freely between states and to be treated as welcome visitors in other states. This clause, known as the Privileges and Immunities Clause, states that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

The right to freedom of movement has been judicially recognized as a fundamental Constitutional right since the circuit court ruling in Corfield v. Coryell (1823). The Supreme Court has also affirmed this right in several cases, including Crandall v. Nevada (1868), where it declared that freedom of movement is a fundamental right, and United States v. Wheeler (1920), where it reiterated that the Constitution did not grant the federal government the power to protect freedom of movement.

The right to travel freely between states is closely related to other fundamental rights, such as freedom of association and freedom of expression. Strong constitutional protection for the right to travel can have significant implications for state attempts to limit certain freedoms, such as abortion rights and same-sex marriage.

The Privileges and Immunities Clause also protects the right of citizens to be treated equally regardless of their state of residence. For example, in Saenz v. Roe (1999), the Supreme Court held that the Constitution protected the right of citizens to be treated equally to native-born citizens when they become permanent residents of a new state. Similarly, in Dunn v. Blumstein, the Court struck down a California law that limited welfare benefits for new residents, citing the Privileges and Immunities Clause of the Fourteenth Amendment.

The writers of the Constitution added this clause to limit government power and protect individual liberties, such as the right to freedom of movement between states. This right is considered fundamental to a free and just society, and the writers of the Constitution recognized its importance by including it in the Bill of Rights.

To protect individual liberties, including freedom of speech and freedom of the press

The writers of the US Constitution added the clause "to protect individual liberties, including freedom of speech and freedom of the press" to limit government power and protect the natural rights of citizens. This clause, known as the First Amendment, was drafted by James Madison and ratified on December 15, 1791, as part of the Bill of Rights.

The First Amendment guarantees the freedoms of speech, religion, assembly, and the right to petition. It explicitly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This means that the government cannot jail, fine, or impose civil liability on individuals or organizations based on their speech or writing, except in exceptional circumstances. The First Amendment also protects the free exercise of religion and prohibits Congress from establishing an official religion.

The inclusion of the First Amendment in the Constitution was influenced by historical documents such as the Virginia Declaration of Rights, the Magna Carta, the English Bill of Rights, and the social, political, and religious context of colonial America. The Founding Fathers, including James Madison and Thomas Jefferson, recognized the importance of freedom of speech and the press, seeing them as natural rights that needed protection. They wanted to prevent the government from infringing upon these liberties and ensure that individuals could express themselves freely without fear of retribution.

Over time, the interpretation and application of the First Amendment have evolved. The Supreme Court has interpreted "speech" and "press" broadly to include not just talking and writing but also broadcasting, the Internet, and other forms of expression. The First Amendment now protects modern forms of communication, including radio, film, television, video games, and the internet. However, it is important to note that the First Amendment does not protect against private individuals or organizations, such as private employers or landowners. Additionally, certain forms of expression, such as commercial advertising, defamation, obscenity, and interpersonal threats, have limited protection under the First Amendment.

In conclusion, the writers of the Constitution added the clause "to protect individual liberties, including freedom of speech and freedom of the press," recognizing the fundamental importance of these freedoms in a democratic society. The First Amendment has since been interpreted and applied broadly to safeguard citizens' rights and limit government power.

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