Constitutional Clauses (Articles)

Article I - (Legislative)

Basket Clause - 1-8-18


Also known as the Necessary and Proper Clause, Implied Powers Clause, the Elastic Clause, the Coefficient Clause, and the Sweeping Clause.


The draft Necessary and Proper Clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton spoke vigorously for this second interpretation in The Federalist Papers. At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a "dead letter". At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty. 


Commerce Clause - 1-8-3


The Commerce Clause, also known as the Interstate Commerce Clause, describes an enumerated power listed in the United States Constitution. The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause. 


Compact Clause - 1-10-3


Under the Compact Clause, also known as the Tonnage Clause, states may not, without the consent of Congress, keep troops or armies during times of peace. They may not enter into alliances nor compacts with foreign states, nor engage in war unless invaded. States may, however, organize and arm a militia according to the discipline prescribed by Congress. (Article I, Section 8, enumerated powers of Congress.) The National Guard, whose members are also members of the militia of the United States as defined by 10 U.S.C. § 311, fulfill this function, as do persons serving in State Militias with federal oversight under 32 U.S.C. § 109. 


Contract Clause - 1-10-1


The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. The Contract Clause applies only to state legislation, not federal legislation or court decisions.


Copyright Clause - 1-8-8 


The clause is the basis of intellectual property laws in the United States, specifically copyright and patent laws. 


Emoluments Clause - 1-6-2


Also known as the Ineligibility Clause or the Sinecure Clause, this clause is a provision that makes each incumbent member of Congress ineligible to hold an office established by the federal government during their tenure in Congress; it also bars officials in the federal government's executive and judicial branches from simultaneously serving in either the U.S. House or Senate. The purpose of the clause is twofold: first, to protect the separation of powers philosophy (upon which the federal frame of government is built); and second, to prevent Congress from conspiring to create offices or increase federal officials' salaries with the expectation that members of Congress would later be appointed to these posts.


Emolument Clause - 1-9-8 


This clause, also known as the Title of Nobility Clause, is a provision that prohibits the federal government from granting titles of nobility, and restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states without the consent of the United States Congress. It was designed to shield the republican character of the United States against so-called "corrupting foreign influences." This shield is reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the Republican Guarantee Clause in Article IV, Section 4. 


Enclave Clause - 1-8-17


The federal government may purchase land in addition to what is now the District of Columbia, but the purchase must meet the following criteria:

  • The state must cede the land. The state legislature must consent to the purchase. The federal government may not purchase land without the state's permission.
  • Congress must accept the purchase.
  • The purchase must be for one of the purposes enumerated.

The purpose must be for erection of buildings: "Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Note that the buildings described all have to do with protection and defense of the nation. It would make sense that "other needful buildings" would have a similar purpose. The federal government cannot buy or seize land for just any purpose, for example to protect an endangered species.


Export Clause - 1-10-2


Also known as the Import/Export Clause, the Clause prohibits taxes and duties that are targeted at exports or imposed on goods during the course of exportation. 


Foreign Commerce Clause - 1-8-3


The Commerce Clause describes an enumerated power listed in the United States Constitution. The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.


General Welfare Clause - 1-8-1


A general welfare clause, also known as the Spending Clause, Tax and Spending Clause and Uniformity Clause, is a section that appeared in many constitutions, as well as in some charters and statutes, which provides that the governing body empowered by the document may enact laws to promote the general welfare of the people, sometimes worded as the public welfare. In some countries, this has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed thereunder. 


Impeachment Clause (power to impeach) - 1-2-5


Section Two grants to the House of Representatives the sole power of impeachment. Although the Supreme Court has not had an occasion to interpret this specific provision, the Court has suggested that the grant to the House of the "sole" power of impeachment makes the House the exclusive interpreter of what constitutes an impeachable offense.


This power, which is analogous to the bringing of criminal charges by a grand jury, has been used only rarely. The House of Representatives has initiated impeachment proceedings 62 times since 1789, and nineteen federal officials have been formally impeached as a result.

The Constitution does not specify how impeachment proceedings are to be initiated. Until the early 20th century, a House member could rise and propose an impeachment, which would then be assigned to a committee for investigation. Presently, it is the House Judiciary Committee that initiates the process and then, after investigating the allegations, prepares recommendations for the whole House's consideration. If the House votes to adopt an impeachment resolution, the Chairman of the Judiciary Committee recommends a slate of "managers," whom the House subsequently approves by resolution. These Representatives subsequently become the prosecution team in the impeachment trial in the Senate.


Impeachment Clause (effect of) - 1-3-7


If any officer is convicted on impeachment, he or she is immediately removed from office, and may be barred from holding any public office in the future. No other punishments may be inflicted pursuant to the impeachment proceeding, but the convicted party remains liable to trial and punishment in the courts for civil and criminal charges.


Orders, Resolutions and Votes Clause - 1-7-3


Every bill, order, resolution, or vote that must be passed by both Houses, except on a question of adjournment, must be presented to the President before becoming law. However, to propose a constitutional amendment, two-thirds of both Houses may submit it to the states for the ratification, without any consideration by the President, as prescribed in Article V. 


Origination Clause - 1-7-1


The clause, also known as the Revenue Clause, says that all bills for raising revenue must start in the House of Representatives, but the Senate may propose or concur with amendments as in the case of other bills. 


Presentment Clause - 1-7-2,3


This clause outlines federal legislative procedure by which bills originating in Congress become federal law in the United States. 


Qualifications Clause - 1-2-1


"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."


This clause provides for the election of the House of Representatives every second year. Since Representatives are to be "chosen... by the People," State Governors are not allowed to appoint temporary replacements when vacancies occur in a state's delegation to the House of Representatives; instead, the Governor of the state is required by clause 4 to issue a writ of election calling a special election to fill the vacancy.


Qualifications (of Senators) Clause - 1-3-3


A Senator must be at least 30 years of age, must have been a citizen of the United States for at least nine years before being elected, and must reside in the State he or she will represent at the time of the election. The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a House of Congress exercising its Section. 5. authority to "Judge... the... Qualifications of its own Members," or by a state in its exercise of its Section. 4. authority to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives,..." 


Speech or Debate Clause - 1-6-1

 

The clause states that members of both Houses of Congress,


"...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."


The intended purpose is to prevent a President or other officials of the executive branch from having members arrested on a pretext to prevent them from voting a certain way or otherwise taking actions with which the President might disagree.


Suspension Clause - 1-9-2


The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."


Three Fifths Clause - 1-2-3


The clause provides that representation in Congress will be based on "the whole Number of free Persons" and "three fifths of all other Persons. 


Vesting Clause (Legislative) - 1-1


The Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power in the Federal judiciary of the United States. The Constitution thus explicitly creates a separation of powers among the three branches of the federal government of the United States. 


War Clause - 1-8-11


This clause grants Congress the power to declare war. The President, meanwhile, derives the power to direct the military after a Congressional declaration of war from Article II, Section 2, which names the President Commander-in-Chief of the armed forces. 

Article II - (Executive)

Advice and Consent Clause - 2-2-2


Also known as the Excepting Clause, The President exercises the powers in the Advice and Consent Clause with the advice and consent of the Senate. 


Appointments Clause - 2-2-2


This empowers the President of the United States to appoint certain public officials with the "advice and consent" of the United States Senate. This clause also allows lower-level officials to be appointed without the advice and consent process. 


Faithful Execution Clause - 2-3


This clause in the Constitution imposes a duty on the President to enforce the laws of the United States and is called the Take Care Clause, or the Faithfully Executed Clause. This clause is meant to ensure that a law is faithfully executed by the President even if he disagrees with the purpose of that law. 


Impeachment Clause - 2-4


The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The Constitution also allows for involuntary removal from office. 


Qualifications Clause (for presidency) - 2-1-5


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


Reception Clause - 2-3-4


The President receives all foreign Ambassadors. This clause of the Constitution, known as the Reception Clause, has been interpreted to imply that the President possesses broad power over matters of foreign policy, and to provide support for the President's exclusive authority to grant recognition to a foreign government. 


Treaty Clause - 2-2-2


 This empowers the president of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of two thirds of the United States Senate. 


Vesting Clause (Executive) - 2-1


The Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power in the Federal judiciary of the United States. The Constitution thus explicitly creates a separation of powers among the three branches of the federal government of the United States.

Article III - (Judicial)

Arisings Clause - 3-2-1


This empowers the Supreme Court to exercise its judicial powers. According to this clause, the Supreme Court can exercise its original jurisdiction where the case affects Ambassadors, other public Ministers and Consuls, and those in which a State is a party. 


Case or Controversy Clause - 3-2-1


It is known as embodying two distinct limitations on exercise of judicial review. The Court has held that the clause identifies the scope of matters which a federal court can and cannot consider as a case (i.e., it distinguishes between lawsuits within and beyond the institutional competence of the federal judiciary), and limits federal judicial power only to such lawsuits as the court is competent to hear.


Diversity (of citizenship) Clause - 3-2-1


The United States Constitution, in Article III, § 2, gives the Congress the power to permit federal courts to hear diversity cases through legislation authorizing such jurisdiction. 


Exceptions Clause - 3-2-2


The Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party; the Court has held that the latter requirement is met if the United States has a controversy with a state. In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make." 


Vesting Clause (Judicial) - 3-1


The Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power in the Federal judiciary of the United States. The Constitution thus explicitly creates a separation of powers among the three branches of the federal government of the United States. 

Article IV

Admissions Clause - 4-3-1


The Admission to the Union Clause of the United States Constitution, oftentimes called the New States Clause, authorizes the Congress to admit new states into the United States beyond the thirteen already in existence at the time the Constitution went into effect. 


Comity Clause - 4-2-1


Also known as the Privileges and Immunities Clause, prevents a state from treating citizens of other states in a discriminatory manner.  Additionally, a right of interstate travel may plausibly be inferred from the clause. 


Extradition Clause - 4-2-2


Provides for the extradition of a criminal back to the state where he or she has committed a crime. 


Fugitive Slave Clause - 4-2-3


Also known as either the Slave Clause or the Fugitives From Labor Clause, requires a "person held to service or labour" (usually a slave, apprentice, or indentured servant) who flees to another state to be returned to the owner in the state from which that person escaped. The passage of the Thirteenth Amendment to the United States Constitution, which abolished slavery except as punishment for a crime, made the clause mostly moot.


Full Faith and Credit Clause - 4-1


This addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments. Judgments are generally entitled to greater respect than laws, in other states. At present, it is widely agreed that this Clause of the Constitution has little impact on a court's choice of law decision, although this Clause of the Constitution was once interpreted differently. 


Guarantee Clause - 4-4


The Guarantee Clause mandates that all U.S. states within the Union be guaranteed a republican form of government; meaning a republic; not a democratic, socialistic or communistic.


Property Clause - 4-3-2


Article Four, also known as the Territorial Clause, of the United States Constitution outlines the relationship between each state and the others, and the several States and the federal government.

Article VI

Loyalty Clause - 6-3


Federal and state legislators, executive officers and judges are, by the third clause of the article, bound by oath or affirmation to support the Constitution. Congress may determine the form of such an oath. 


Supremacy Clause - 6-2


This establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law. In essence, it is a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles of Confederation, which provided that "Every State shall abide by the determination of the United States in Congress Assembled, on all questions which by this confederation are submitted to them." A constitutional provision announcing the supremacy of federal law, the Supremacy Clause assumes the underlying priority of federal authority, at least when that authority is expressed in the Constitution itself. No matter what the federal government or the states might wish to do, they have to stay within the boundaries of the Constitution. This makes the Supremacy Clause the cornerstone of the whole American political structure. 

Constitutional Clauses (Amendments)

First Amendment

Establishment Clause


The Establishment Clause is a limitation placed upon the United States Congress preventing it from passing legislation respecting an establishment of religion. 


Free Exercise Clause


Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. 


Free Speech Clause


The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. 


Free press Clause


Freedom of the press is the right to circulate opinions in print without censorship by the government. 


Free Assembly Clause


Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their ideas. 


Petition Clause


The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals. 

Fourth Amendment

Search and Seizure Clause


This protects people from being searched or having their things taken away from them without any good reason. If the government or any law enforcement official wants to do that, he or she must first have probable cause, supported by an oath or affirmation describing the place that needs to be searched and the people and things that need to be seized and they must get permission (warrant) to perform the search from a judge.  

Fifth Amendment

Double Jeopardy Clause


The Double Jeopardy Clause in the Fifth Amendment prohibits anyone from being prosecuted twice for substantially the same crime. The four essential protections included are prohibitions against, for the same offense:

  • retrial after an acquittal;
  • retrial after a conviction;
  • retrial after certain mistrials; and
  • multiple punishment

Due Process Clause


Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses more broadly because these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights. Due process ensures the rights and equality of all citizens. 


Self-Incrimination Clause


The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to an accusation or charge of crime, or as involving oneself (or another person) in a criminal prosecution or the danger thereof. The privilege against compelled self-incrimination is defined as the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself. To "plead the Fifth" is to refuse to answer any question because the implications of the question, in the setting in which it is asked lead a claimant to possess a reasonable cause to apprehend danger from a direct answer, believing that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. 

Sixth Amendment

Assistance of Counsel Clause


In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence. The assistance of counsel clause includes five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself pro se.


Compulsory Process Clause


This allows defendants in criminal cases to secure witnesses in their favor through the issuance of a court-ordered subpoena. 


Confrontation Clause


The Confrontation Clause provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The right only applies to criminal prosecutions, not civil cases or other proceedings. 


Impartial Jury Clause


Judges whose actions and decisions are free of bias or prejudice constitute a fair and impartial jury. All people, regardless of race, religion, sex, national origin, or economic status, have the right to a trial by a fair and impartial jury. 


Information Clause


A criminal defendant has the right to be informed of the nature and cause of the accusation against him. Therefore, an indictment must allege all the ingredients of the crime to such a degree of precision that it would allow the accused to assert double jeopardy if the same charges are brought up in subsequent prosecution.


Public Trial Clause


The accused may also request a closure of the trial; though, it must be demonstrated that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's right to a fair trial.


Speedy Trial Clause


The Clause protects the defendant from delay between the presentation of the indictment or similar charging instrument and the beginning of trial. 


Vicinage Clause


The clause says that the accused shall be entitled to a jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. The Vicinage Clause limits the vicinity of criminal jury selection to both the state and the federal judicial district where the crime has been committed. 

Eighth Amendment

Excessive Bail Clause


The Clause was drafted in response to the perceived excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of Rights. If a judge posts excessive bail, the defendant's lawyer may make a motion in court to lower the bail or appeal directly to a higher court. 

Fourteenth Amendment

Citizenship Clause


It states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 


Privilege or Immunities Clause


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.


Due Process Clause


Due process is a trial by jury for all people accused of wrongdoing.  Although you may think the 1st amendment already protects these rights, the 14th amendment specially enforces the Bill of Rights on the states, to make sure that they can never limit the rights of Americans without fairness.  There were also a number of rights that are protected for those that are accused of a crime but have not been proven to do anything wrong yet. 


Equal Protection Clause


This part of the fourteenth amendment states that there may be no discrimination against them by the law. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments.  

Enforcement Clause

A Congressional power of enforcement is included in a number of amendments to the United States Constitution. The language "The Congress shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII, XIV, XV, XIX, XXIII, XXIV, and XXVI. The variations in the pertinent language are as follows: The Thirteenth Amendment leaves out the word "the", the Fourteenth Amendment states "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." In addition to the amendments above, the Eighteenth Amendment states "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."