NOTE: There is no requirement to be a resident of the district of the state from which elected. Section 2 also contained the so-called “Three-Fifths Compromise.” A state’s total population would be used to determine how much direct taxes the state would have to pay to support the new national government and the number of members of the new House of Representatives to which a state would be entitled. A state’s population would be determined by counting each free person as one person, each indentured servant would be counted as one person, Indians would not be counted, and three-fifths of “all other persons” would be counted.
NOTE: Delegates at the constitutional convention who adopted this language understood that “all other persons” meant slaves.
NOTE: This part of Section 2 was changed when Section 2 of the Fourteenth Amendment was added to the Constitution.
Section 2 also provides for a census to be conducted every ten years for determining the population of each state. It provides as well that each state will have at least one Representative, that the House will choose its Speaker and other officers, and that the House has the sole power to bring impeachment charges against executive or judicial officials. It does not set the size of the House of Representatives.
NOTE: There is no requirement that the Speaker must be a member of the House.
NOTE: Congress itself by law set the number of members of the House at 435 in 1913. This is a fixed number which does not change except temporarily when Congress admits a new state to the union.
As written at the constitutional convention, the two senators from each state were elected by the state legislature of each state.
NOTE: This was changed in 1913 when the Seventeenth Amendment was added to the Constitution. That amendment provides for Senators to be elected by the people of the state.
There are three qualifications one must have to be a U. S. Senator: (1) 30 years of age; (2) a citizen of the U. S. for nine years; and (3) an inhabitant of the state from which chosen.
The Vice President of the United States serves as President of the Senate, but has no vote except when there is a tie.
The Senate chooses its other officers, including a President Pro Tempore to preside over the Senate when the Vice President is absent. The Senate has the sole power to try executive or judicial officials against whom impeachment charges have been voted on by the House of Representatives. Conviction requires a two-thirds vote of the Senators present. When the President is being tried by the Senate, the Chief Justice of the U. S. presides over the trial. When the Senate convicts an individual, that individual is removed from office and can never hold another office in the U. S. The individual may still be indicted, tried in a traditional court of law, and, if convicted, punished for violation of the law.
NOTE: The latter was changed to noon on the 3rd day of January when the Twentieth Amendment was added to the Constitution in 1933.
Section 5 provides: (1) that each house will be the judge of the elections, returns, and qualifications of its members; (2) that each house will determine its rules, punish its members for disorderly conduct, and by a two-thirds vote expel a member; and (3) that neither house during a session of Congress without consent of the other house shall adjourn for more than three days nor to any other place than that where the two houses are sitting.
Section 6 provides: (1) that senators and representatives shall be compensated for their services; (2) that except for treason, felony, and breach of the peace, members will be privileged from arrest during attendance at a session of Congress and in going to and returning from the same, and for any speech in either house they shall not be questioned in any other place; (3) that no member of either house during the time for which elected shall be appointed to any office under the authority of the U. S. which shall have been created or the payment thereof shall have been increased during such time; and (4) that no person holding another office in the U. S. government shall be a member of either house of Congress during the person’s continuance in office.
NOTE: This means that the House has a larger voice in the passage of revenue bills since the Senate must react to what the House has already decided. Before they can become law, all bills must be passed in identical form by both the House of Representatives and the Senate and are then sent to the President. After a bill is presented to the President, he has ten days in which to take action. If he approves the bill, the President signs it, but if not, he vetoes it and returns it with his objections to the chamber where it began. That chamber then reconsiders the bill. After reconsideration of the bill, if two-thirds of the members of that chamber pass it, it is sent to the other chamber. If that chamber, after reconsideration of the bill, also passes the bill by a two-thirds vote, it becomes law. (In other words, Congress can override the President’s veto by a two-thirds vote of the members of both houses.)
NOTE: Presidential vetoes are very rarely overridden because of the two-thirds requirement in both houses. As long as most or all of the President’s own party members stand by him, and they usually will do so, Congress cannot achieve the two-thirds vote required. If the President does not sign a bill and does not return it to Congress with his objections within ten days after it is presented to him (Sundays excepted) and Congress is still in session, it becomes law as if he had signed it. However, if the president has not signed the bill, and Congress has adjourned thus preventing the bill’s return to reconsider, it does not become law.
NOTE: The latter means that the President has what is called a pocket veto in this situation.
Some of the most important powers granted Congress by Article I, Section 8 are the following: (1) to lay and collect taxes and duties; (2) to pay the debts and provide for the common defense and general welfare of the U. S.; (3) to borrow money on the credit of the U. S.; (4) to establish a uniform rule of naturalization (how one can become a naturalized citizen of the U. S.; (5) to coin money and regulate the value thereof; (6) to fix the standard of weights and measures; (7) to establish courts below the Supreme Court; (8) to pass legislation concerning any area that becomes the seat of the government of the U. S. (the District of Columbia).
NOTE: It is a power, however, which Congress has formally used only five times in American history: War of 1812, Mexican-American War, Spanish-American War, World War I, and World War II. Thus, the last time Congress formally declared war was World War II even though the nation has been involved in other wars since then. This power given Congress by the Constitution has sometimes appeared to be in conflict with the power given the President in Article II, Section 2 to be the Commander in Chief of the armed forces of the U. S. Controversy surrounding the President’s power to involve the nation in war without Congress having formally declared war led Congress in 1973 to adopt the War Powers Resolution over President Richard Nixon’s veto.
Congress is also given the power to grant “Letters of Marque and Reprisal.”
NOTE: This means that Congress is authorized to issue a government license to a private person to attack and capture enemy vessels and bring them before courts for condemnation and sale. The U. S. has not issued a Letter of Marque and Reprisal in over 200 years, but during the American Revolution, they played an important role for the American colonies.
NOTE: This so-called “commerce clause” has been the constitutional authority Congress has used to pass many landmark acts such as the Kansas-Nebraska Act, the Compromise of 1850, the Interstate Commerce Act, and the Civil Rights Act of 1964. Congress’ power under the commerce clause has also been the issue in several landmark Supreme Court cases, such as Gibbons v Ogden (1824), Heart of Atlanta Motel v U. S., Katzenbach v McClung (1964), South Dakota v Dole (1987), and U. S. v Morrison (2000). If Congress is unable to point to any other constitutional authority for the passage of a law, it can almost always point to the commerce clause. This is because in the modern world, nearly everything or everybody at some time or another crosses state boundary lines or moves between the U. S. and another nation, and if it does so, it is probably subject to Congress’ power to legislate.
NOTE: Congress carries out this power by issuing copyrights and patents. A copyright is the exclusive right to publish and make money from a written, musical, or other artistic work for a limited time. A patent provides the same protection for inventions. The purpose of copyrights and patents, as the Constitution says, is to promote the progress of science and the arts. Individuals have more incentive to create and invent if they know they can protect the fruits of their labor.
NOTE: This paragraph of Article I, Section 8 is sometimes called “the elastic clause.” This is because it has been understood and interpreted by the Supreme Court to “stretch” the powers of Congress beyond those which are specifically listed in the first seventeen paragraphs of Article I, Section 8. In the landmark 1819 Supreme Court case McCulloch v Maryland, Chief Justice John Marshall and the Supreme Court interpreted the Necessary and Proper Clause, when combined with other powers specifically listed in the first seventeen paragraphs of Section 8, to give Congress the power to establish a Bank of the U. S. even though such a power is not specifically listed as being a power of Congress. As a result, it is frequently noted that Congress thus has what are called “implied powers.”
NOTE: Without actually using the words, delegates at the 1787 Constitutional Convention understood that this meant Congress could not outlaw “the slave trade” before 1808 (twenty-one years after the writing of the Constitution). In 1808, Congress did exactly that and abolished the slave trade.
Another limitation in Section 9 provides 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.”
NOTE: The Latin term habeas corpus means “have the body.” It refers to the right of a person who has been arrested and jailed to be taken within a certain period of time before a neutral judge so that the judge may determine if the person is being detained for a lawful reason. The burden is on those holding the individual to persuade the judge that this is true. If the judge decides that this is not the case, the individual must be released.
NOTE: Only a few times in American history has this important protection for an accused person been suspended. One such occasion was during the Civil War when President Abraham Lincoln suspended the right in an area of the U. S. where there was no fighting. The Supreme Court in the 1866 case Ex parte Milligan declared Lincoln’s action unconstitutional.
Two more limitations provide that “no bill of attainder or ex post facto law shall be passed.”
NOTE: This prohibition on bills of attainder means that Congress cannot convict a person of a criminal offense. While Congress can pass criminal laws, only the courts can decide who may have violated those laws. The prohibition on ex post facto laws means that individuals cannot be convicted and punished for an act which when committed was not illegal.
Another limitation forbids Congress to lay any tax or duty on exports or to give preference to the ports of one state over those of another state.
One of the most important limits requires that Congress cannot spend any money from the U. S. Treasury except as a result of appropriations made by law, and a regular statement and account of receipts and expenditures of public money must be published from time to time. Another limitation provides that the U. S. cannot grant any title of nobility.
A final limitation called “the emoluments clause” forbids any person holding any office in the government of the U. S. from accepting any present, “emolument,” office, or title of any kind from any king, prince, or foreign government without Congress’ consent.
No state can enter into any treaty, alliance, or confederation or grant Letters of Marque and Reprisal.
NOTE: An explanation of the meaning of Letters of Marque and Reprisal is found in the discussion of powers of Congress in Article I, Section 8 where Congress is given the power to issue such Letters. No state can coin money or make anything but gold or silver coin payment for debts.
No state can pass any bill of attainder or ex post facto law. NOTE: See Article I, Section 9 for an explanation of these terms which are also prohibitions on Congress.
No state shall pass any law interfering with contracts nor shall any state grant any title of nobility.
Without Congress’ consent, no state can place taxes on imports or exports except what may be absolutely necessary for enforcing the state’s inspection laws, and the net result of any tax by any state on imports or exports is for the use of the U. S. Treasury, and all such laws are subject to revision and control of Congress.
No state without consent of Congress can keep troops or ships of war in time of peace or enter into agreement or compact with another state or with another nation or engage in war unless invaded or in such imminent danger that delay is not possible.