U.S. Constitution For Dummies^®

Foreword

“We the people” are the opening words of the U.S. Constitution, and it is fitting that this book is written for “We the people.” Both the Constitution itself, and this book explaining it, were meant for everybody, for all of the American people.

This book can be read on several different levels. If you just want to understand the basics of the Constitution, this book offers you an easy, enjoyable, and at times humorous way to do so. But the book also offers a much deeper insight into the Constitution and all the controversies surrounding it.

Michael Arnheim does not pull his punches. He makes no secret of his own views on the Constitution. However, the book always presents both sides of every argument fairly, so that you, the reader, can decide what take to adopt on any issue.

The U.S. Constitution is the world’s oldest written constitution, and it was a revolutionary document. Written by men who just a few years earlier had won American independence from Britain, it changed the relationship altogether between people and government.

Indeed, that was the genius of the Constitution — limiting government to protect the liberty of the people. Because the Framers recognized that unchecked government can strip the people of their freedoms, they designed a constitution to prevent that from happening.

James Madison, the primary author of the Constitution, explained as follows:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Because men are not angels, the Constitution was designed to create an effective national government and, at the same time, prevent the government from overreaching.

At the time of this writing, our Nation is facing some of the greatest challenges in its history. One possible solution to these problems is to allow the government ever-expanding power. But it remains to be seen whether that would really be the best choice either in practical terms or in terms of the Constitution.

For good or for ill, the meaning of the Constitution has often been very much in the hands of the nine justices of the U.S. Supreme Court. This book goes in depth into the different approaches adopted by different justices over the years. Dr. Arnheim explains his own interpretations in simple, direct language, and he also explains why he favors the approach that he adopts — while at the same time setting out the opposing views.

For example, Justices William Brennan and Thurgood Marshall both believed that the death penalty always constituted “cruel and unusual punishment.” Dr. Arnheim explains why he believes they were wrong — based on the text of the Constitution itself. But Dr. Arnheim goes further, arguing that Justices Brennan and Marshall were really confusing what the Constitution actually says with what they as judges thought it ought to have said. There are serious policy arguments both for and against capital punishment — but given that the constitutional text twice explicitly authorizes capital punishment, the only proper way to change that would be a constitutional amendment as laid down in Article V of the Constitution. And an amendment is unlikely to be passed, because large majorities of the American people have consistently supported capital punishment for the very worst criminals. Accordingly, a judge imposing his or her views on the issue is not only unconstitutional, it is also undemocratic.

Chief Justice Rehnquist, for whom I had the honor of clerking, was an original dissenter from the Court’s opinion striking down the death penalty. And, over his three decades on the Court, he helped overturn that decision and return the Court to a more limited view of judicial authority. Indeed, the very last opinion he ever wrote was a case I was privileged to litigate for the State of Texas, Van Orden v. Perry, which upheld the Texas Ten Commandments monument and repudiated many years of judicial hostility to expressions of religious faith (discussed in Chapter 14).

Likewise, in 2008, the Supreme Court decided District of Columbia v. Heller, holding for the first time that the Second Amendment protects an individual right to keep and bear arms (discussed in depth in Chapter 15). Texas led 31 states in defense of the Second Amendment in that case, and our arguments for giving force to the plain text of the Constitution and the original understanding of the Framers prevailed by a vote of 5 to 4.

The Constitution is designed to limit government and to protect all the freedoms that you and I cherish as Americans. And this book is a clear, straightforward roadmap to understanding how it works — and a lot more.

Ted Cruz

Partner, Morgan, Lewis & Bockius LLP

Former Solicitor General of Texas

Introduction

Okay, so you bought this book (or you got it as a present, or you borrowed it, or you’re browsing through it in a bookstore). Obviously, you have some interest in the U.S. Constitution, but maybe you’re afraid the Constitution isn’t really that interesting.

Well, you’re in luck. Even if you don’t find the Constitution itself to be the most riveting read, it’s a never-ending source of debates and arguments. And we all know how interesting debates and arguments can be!

About This Book

This book explains the Constitution simply and thoroughly, including all the juicy controversy it evokes. Whether you’re a student, a lawyer, or just a concerned citizen, I hope you find it to be both a good read and a great resource.

You don’t have to read this book from cover to cover, and you don’t have to read the chapters in order. I’ve written each chapter so it can be understood on its own; if it refers to topics that aren’t covered in that chapter, I tell you where to find information about that topic elsewhere in the book. Using the Table of Contents or the Index, feel free to identify topics of the greatest interest to you, and dive in wherever you want. Even if you dive into the middle or end first, I promise I won’t let you get lost.

I cover the entire Constitution in this book, but I don’t give each article or amendment equal attention. That’s because some parts are more important, more difficult to understand, more controversial, or more relevant to modern society than others. If I believe a particular part of the Constitution requires or deserves more explanation than another, I give it lots of real estate in the pages that follow. Parts that are easier to understand or less important to your 21st-century life get less space in the book.

Throughout the book, I offer not just facts but also a variety of opinions about constitutional issues that have created debate for more than 200 years. In some cases, the opinions belong to Supreme Court justices, advocates for or against specific rights, or any number of other sources. In other cases, the opinions are my own — and I alert you to that fact. I may sometimes try to persuade you of the rightness or wrongness of a certain opinion, but you’re welcome to disagree — that’s the fun and the privilege of becoming a more informed citizen!

Conventions Used in This Book

Whenever I quote or refer to a specific part of the Constitution, I tell you the name of that part. You’ll often see this reference in the form of an article, a section, and maybe a clause — for example, Article I, Section 8, Clause 3. If you turn to the Appendix at the back of the book, where the text of the Constitution is provided, you can see that it’s broken into seven articles, some of which are divided into sections. If a section contains more than one paragraph, I refer to each paragraph as a clause. So if you’re looking for Clause 3 within Section 8 of Article I, just find the third paragraph in that section.

The amendments to the Constitution appear in the Appendix after the main body of the document (and after the list of people who signed it). It’s pretty easy to locate an amendment, as long as you aren’t too rusty on Roman numerals.

When you see the term the Constitution, it always refers to the U.S. Constitution. Each of the 50 states also has its own constitution, but if I’m referring to one of those, I include the state name (such as the Virginia Constitution). Similarly, when I refer to the Supreme Court, the high court, or just the Court, that means the U.S. Supreme Court. If I refer to a state supreme court, I always give the name of the state concerned (such as the Texas Supreme Court).

You can’t learn about the Constitution without being introduced to some legal, political, and other jargon, but I do my best in this book to ease you into the constitutional vocabulary. If I use a term that I suspect may not be familiar to you, I put that term in italic and provide a definition or explanation nearby.

What You’re Not To Read

This may seem like a strange topic to discuss — after all, I’d love for you to read every word that I’ve written! But the beauty of the For Dummies series is that I won’t demand such commitment. If you’re not interested in knowing every nitty-gritty detail about a certain subject, there are two types of text you can skim or skip altogether:

Paragraphs that have a Technical Stuff icon next to them: In just a minute, I explain what the various icons in this book mean. This one means that the information in a given paragraph goes into detail that may be interesting to some readers but isn’t essential to your understanding of the subject at hand.

Sidebars: The text tucked into gray boxes is also optional. Sidebars contain in-depth historical information, somewhat technical explanations of legal or political situations, or just interesting stories that happen to be tangential to the topic at hand. Take them or leave them — it’s your call.

How This Book is Organized

I’ve divided the book into six parts, each of which contains a series of related chapters. Here’s a bird’s-eye view of the way the book is arranged.

Part I: Exploring Constitutional Basics

This part of the book explains the basic concepts underlying the Constitution and the motivating forces behind its creation. I present the basic concepts of the Constitution and where they came from. You may find a few surprises here. For example, the Constitution didn’t originally establish a democracy — the word democracy doesn’t appear even once in the entire document.

I also explain the different approaches to interpreting the Constitution and how those approaches can conflict. And I then show you how the Constitution has changed in the past 200-plus years in both formal ways (through relatively few amendments) and informal ways (as a result of the way the U.S. Supreme Court has interpreted and reinterpreted the Constitution).

Part II: We the People: How the United States Is Governed

In this part, I first study who wields power in the United States, considering how that power is shared among “We the People,” the President, Congress, the Supreme Court, and possibly other entities.

The Framers of the Constitution (the men who wrote and ratified it) were anxious to prevent the concentration of power in the hands of one person or one government institution, so they designed an elaborate structure to make sure that power was shared. They did so first by creating a federal government: one in which power is shared between the national and state governments. In Chapter 7, I explore how that power-sharing arrangement works.

In Chapter 8, I discuss another way in which power is shared: among the three branches of the federal government — the Executive (the President and his Cabinet), the Legislature (Congress), and the Judiciary (the Supreme Court and other federal courts).

Perhaps the biggest tug-of-war between the federal government and the states has centered on the power given to Congress in the Commerce Clause of the Constitution. In Chapter 9, I explain why this power is so important, how judicial interpretation has broadened it (and has recently reined it in slightly), and why the whole issue matters so much.

Part III: Balancing the Branches of Government: The President, Congress, and the Judiciary

This part tackles the three main parts of the U.S. government — the Executive, Legislative, and Judicial branches — as well as how members of those branches can be fired or removed.

I open this part by focusing on the President, covering such topics as how the President is elected, what it means to be commander in chief, how a president makes appointments, and whether (and when) a president is immune from lawsuits. I then turn my attention to Congress, explaining the membership and the important functions of the House of Representatives and Senate. Chapter 12, on the judiciary, explains how the justices of the Supreme Court and other federal judges are appointed, the powers of the Supreme Court, and how the Court operates.

I finish this part with a discussion of impeachment, explaining why it’s possible to be impeached but not convicted (and therefore not removed from office), what the impeachment process is, and who has been impeached since the Constitution was ratified.

Part IV: The Bill of Rights: Specifying Rights through Amendments

Here I discuss the first ten amendments to the Constitution, which were all ratified together in 1791 (only three years after the main body of the Constitution). These amendments are commonly referred to as the Bill of Rights because they confer or guarantee fundamental civil rights, including the right to freedom of speech and assembly; the separation of church and state; the right to bear arms; the guarantee of a fair trial; the protection of private property rights; and the prohibition of “cruel and unusual punishments.”

Part V: Addressing Liberties and Modifying the Government: More Amendments

In this part, I discuss the ragbag of amendments that have been ratified since 1791, including amendments that have reformed presidential elections, abolished slavery, ensured equal protection, prohibited alcohol and then made it legal again, given voting rights to women, and limited presidents to two elected terms.

Part VI: The Part of Tens

This part contains three short chapters: one that outlines ten landmark Supreme Court cases that have tackled constitutional issues; one that discusses the influence of ten Supreme Court Justices who have served at various times in the country’s history; and one that presents two sides of five sticky constitutional issues that are bound to be debated for years to come.

Icons Used in This Book

Throughout this book, you find small pictures in the margins. These icons highlight paragraphs that contain certain types of information. Here’s what each icon means:

The Remember icon sits beside paragraphs that contain information that’s worth committing to memory. Even if you’re not studying for an exam on the Constitution, you may want to read these paragraphs twice.

This icon denotes material that may fall into the “too much information” category for some readers. If you like to know lots of details about a topic, the information in these paragraphs may thrill you. If details aren’t your thing, feel free to skip these paragraphs altogether.

The Constitution is nothing if not controversial, and this icon highlights paragraphs that explain what all the debate is about. If you want to know why people can’t seem to figure out what this document means even after 200-plus years, head toward these icons.

Where there’s debate, there are opinions, and I won’t pretend not to have some of my own. Where you see this icon, you’ll know that I’m offering my perspective on the subject at hand, and I don’t necessarily expect you to agree!

Where To Go from Here

That depends on why you’re reading this book. If you’re a student who needs help understanding how and why the Constitution was created, what it says, and why it’s still so important, I’d suggest that you start at the beginning.

If you picked up this book because you want to understand the debate about a certain issue (such as gun rights), check the Table of Contents or Index and flip to the chapter where that debate is explored. (In the case of gun rights, that’d be Chapter 15.)

If you’re planning to start a campaign to impeach a government official who rubs you entirely the wrong way, perhaps Chapter 13 will be your cup of tea.

If you want to very quickly get a sense of why constitutional issues can cause tempers to flare, flip to Chapter 25 and read about just five of the many debates that keep people talking.

Part I

Exploring Constitutional Basics

In this part . . .

These chapters give you a bird’s-eye view of constitutional thought as a whole, starting with the ideas on which the Constitution was based and ending with a very brief summary of the Constitution as originally ratified in 1788 and of some of its amendments. Chapter 5 also explains how the Constitution has undergone some fundamental changes without formal amendment.