The Real Constitution: Fifth Amendment (Right to a Jury Trial, from Double Jeopardy, from Self-Incrimination, and from Unjust Deprivation)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment 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 person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled 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 public use, without just compensation.

The Real Constitution: Fourth Amendment (Freedom from Unreasonable Searches and Seizures)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Real Constitution: Third Amendment (Freedom from Quartering Soldiers)

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

The Real Constitution: Second Amendment (Right to Keep and Bear Arms)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Does the Second Amendment protect private gun ownership by just about anyone, or does it only protect the existence of "a well regulated Militia"?

The Real Constitution: First Amendment (Freedom of Religion, Speech, the Press, Assembly, and Petition)

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.

The Real Constitution: Bill of Rights: Prelude

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.


THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.


RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.


ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Yes, the Bill of Rights has its own preamble.

The Real Constitution: Article VII (Ratification)

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

The Articles of Confederation had required unanimous consent between all the states for any amendment to be passed. The Constitution attempted to get around that, near as I could tell before checking my sources, by essentially saying "Well, if you don't want to party with us, we'll get started without you!"

Edmund Randolph's Virginia Plan, which still saw itself as mere "amendments" to the Articles of Confederation, would, after being approved by the Congress of the Confederation, be submitted to "an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon."

The Real Constitution: Article VI (Supremacy and Authority of the Constitution)

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


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, 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 State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

As obvious as it may seem to make the United States Constitution supreme to the state constitutions, Edmund Randolph didn't think the Articles of Confederation were, "ratified, as it was in many of the states."

Randolph also proposed that all three branches of government be asked to take an oath to support the Constitution as part of the Virginia Plan.

The Real Constitution: Article V (Amendment Process)

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the 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 the Legislatures 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 that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall 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 its equal Suffrage in the Senate.

The Articles of Confederation required any "alteration" to be agreed to by Congress and every single state Legislature. Edmund Randolph proposed as part of the Virginia Plan "that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto."

The Real Constitution: Article IV, Section IV (Pledge of the United States to the Individual States)

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

A lot of this section has its roots in Edmund Randolph's Virginia Plan; the Articles of Confederation did not explicitly guarantee "a Republican Form of Government" to the states, perhaps because it was really subordinate to the states and not the other way around. Randolph also worried that the confederation "produced no security against foreign invasion" and "could not check... a rebellion in any [state]".

The Real Constitution: Article IV, Section III (Addition of New States; Governance of US Territories)

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


The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The Articles of Confederation allowed Canada to join the Union just by asking and allowed any other state to join with the consent of nine states. Edmund Randolph's Virginia Plan allowed for "admission of States lawfully arising within the limits of the United States...with the consent of a number of voices in the National legislature less than the whole."

The Real Constitution: Article IV, Section II (Implications of Full Faith and Credit)

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


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


No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The Real Constitution: Article IV, Section I (Full Faith and Credit)

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The Real Constitution: Article III, Section III (Definition and Penalty of Treason)

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


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

It seems odd for the Constitution to cross over into lawmaking like this.

The Real Constitution: Article III, Section II (Jurisdiction of the Federal Courts)

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


In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and 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 Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

This also answers one of Edmund Randolph's problems with the Articles of Confederation, "that the foederal government could not check the quarrels between states".

The flip side to the Supreme Court being the bastard stepchild of the three branches of government was the seeming inability for the Constitution to be enforced if the Congress and President happened to pass something that violated it. Edmund Randolph's Virginia Plan would have called for the Congress to veto any state laws that violated the Constitution, and coming on the heels of Madison's speech calling for national unity (link: AISX), originally passed without a hitch. (Benjamin Franklin added a proviso also allowing Congress to veto any state laws contradicting treaties the US had signed.) But what about the national Congress?

The Real Constitution: Article III, Section I (Basic Structure of the Federal Courts)

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

It's Judicial Week in the Real Constitution series as we take a look at the bastard stepchild of the checks and balances system.

In the Virginia Plan, the Judiciary would have worked like this:

Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.

"A convenient number" of the Judiciary would also meet with the Executive to form a committee to review the decisions of the Legislature.

The Real Constitution: Article II, Section IV (Penalty of Impeachment)

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 Real Constitution: Article II, Section III (Other Powers of the President)

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Real Constitution: Article II, Section II (Powers of the President)

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, 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 with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, 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 Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The Real Constitution: Article II, Section I (The President)

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


Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office 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, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall 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 be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner 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 consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.


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


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.


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


The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased 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, or any of them.


Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

That this section is so long (covering most of Article II), and covers so many different topics (I could easily break this up into a minimum of three, and a maximum of six, different sections by the standards of Article I), should tell you a lot. Indeed, the opening sentence is of weighty importance: according to Garrett Epps, writing for the Atlantic last year, the fact that it does not appear to expressly limit the President's power to that enumerated in the Constitution in the same way as Article I's "all legislative Powers herein granted" has arguably opened the door for the executive to reach out and claim kingly power time and time again throughout American history, from Washington to Lincoln to Wilson to Roosevelt to Nixon to Bush.

But perhaps we should blame the excesses of George W. Bush on George Washington.

First things first. Under the Virginia Plan, the Executive would have been chosen by the National Legislature:

Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of ----- years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.

The Real Constitution: Article I, Section X (Prohibitions on the States)

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing 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 Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision 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 imminent Danger as will not admit of delay.

Partly continued from the discussion on Section VIII:

The first debate that broke out in terms of how much power to give Congress was a proposal in Edmund Randolph's original resolutions to give power to the Congress "in all cases to which the State Legislatures were individually incompetent". Some people felt that this phrasing was too vague, and could be used to take away just about any power from the States. Randolph again denied that was his intention. Madison for his part, remarked that

he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability....But he should shrink from nothing which should be found essential to such a form of Govt. as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.

This was sufficient to convince the room; only Connecticut had any meaningful doubt over the provision. Meanwhile, although the original Virginia Plan contained a provision allowing the use of force against a "delinquent State", Madison, a key shaper of the plan, expressed his own doubts over the proviso and "hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed," which it was.

The Real Constitution: Article I, Section IX (Prohibitions on the Congress)

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand 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 Cases of 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 or enumeration 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 of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.


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


No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The Real Constitution: Article I, Section VIII (Powers of the Congress)

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


To borrow Money on the credit of the United States;


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


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


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


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


To establish Post Offices and post Roads;


To promote the Progress of Science and useful Arts, by securing for limited Times to Authors 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 Offences against the Law of Nations;


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


To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer 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, suppress Insurrections and repel Invasions;


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


To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And


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

This section is at the heart of any debate over just how much the Federal Government really can do.

The first defect Edmund Randolph observed in the Articles of Confederation, as James Madison recounted them, was that

the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority-Of this he cited many examples; most of which tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, inlistments only could be successful, and these could not be executed without money.

The Real Constitution: Article I, Section VII (Passage of a Bill to a Law)

All Bills for raising Revenue shall originate in the House of Representatives; but the 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 he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise 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, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each 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 like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.


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

Baby boomers will recognize most of this from the Schoolhouse Rock "Bill" segment. (For being only 21, I'm sure dating myself, aren't I?)

The Real Constitution: Article I, Section VI (Privileges and Prohibitions)

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 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 returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.


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

The Real Constitution: Article I, Section V (Duties and Procedures of each House)

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent 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 disorderly Behaviour, 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 the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.


Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The Real Constitution: Article I, Section IV (Election and Assembly of Congress)

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any 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 the first Monday in December, unless they shall by Law appoint a different Day.

The Real Constitution: Article I, Section III (Structure of the Senate)

The Senate of the United States shall be composed of two Senators from each State, 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 shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may 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 temporary Appointments 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, and been nine Years a Citizen of the United States, and who shall not, when elected, be an 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 no Vote, unless they be equally divided.


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


The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence 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 United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Recall that even those members of the Convention that supported direct election of Representatives (as opposed to election by state legislatures) were comfortable with the idea of "successive filtration" for the Senate and Executive. Under Edmund Randolph's original Virginia Plan, Senators would be elected by the House of Representatives from nomination by state legislatures. Richard Spaight of North Carolina, concerned about the withdrawal of power from the states, was the first to propose that the state legislatures elect Senators directly; but since the convention was at the time thought to be likely to pass a system of assigning representatives according to state populations, and Randolph believed that the Senate should be "so small as to be exempt from the passionate proceedings to which numberous assemblies are liable", and Rufus King pointed out that under proportional representation "there must be 80 or 100 members to entitle Delaware to the choice of one of them", the motion was laid aside for the time being.

James Wilson, who had defended direct election of Representatives, believed the Senate should be independent of both the House and the state legislators and called for direct election of Senators, perhaps by uniting several different districts, which Madison opposed on the grounds that if a large and small state voted as a group, all its senators would be chosen from the large state even if someone from the small state was more qualified. Even at this early point, Roger Sherman proposed electing one member from each state legislature. Ultimately Randolph's scheme was effectively rejected, with only Massachusetts, Virginia, and South Carolina being happy with it.

The Real Constitution: Article I, Section II (Structure of the House)

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.


No Person shall be a Representative who shall not have attained to the Age of twenty five Years, 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 may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.


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


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

Under the Articles of Confederation, members of Congress were picked by state legislatures. When Edmund Randolph moved, as part of his original Virginia Plan, "that the members of the first branch of the National Legislature ought to be elected by the people of the several States", it touched off a firestorm among the more aristocratic members of the room. All words are Madison's: Roger Sherman: "The people...immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled." Elbridge Gerry: "The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massts. it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute." (It was in Massachusetts that Shays' Rebellion took place.)

George Mason provided the first coherent defense of the direct election of Representatives:

It was to be the grand depository of the democratic principle of the Govtt. It was, so to speak, to be our House of Commons-It ought to know & sympathise with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in Virga., different interests and views arising from difference of produce, of habits &c &c. He admitted that we had been too democratic but was afraid we sd. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people.

"He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy," Madison continued, considering that in a few generations, given the economy of the day, some of their descendents would almost certainly join the lower classes, so "every selfish motive...every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens." Mason was no poor man; he was a slaveowner born on a Virginia plantation, and arguably was far less of a self-made man than Sherman, whose "education did not extend beyond his father's library and grammar school and his early career was spent as a shoe designer" according to Wikipedia. But Sherman and Gerry were New Englanders intimately familiar with Shays' Rebellion, and the others that defended popular election of representatives were not.

Pennsylvania's James Wilson concurred that "no government could long subsist without the confidence of the people" (echoing the Declaration of Independence's "consent of the governed" clause) and "in a republican Government this confidence was peculiarly essential.

He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governmts. should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceded much more from the officers of the States, than from the people at large.

Madison himself sided with Mason and Wilson, seeing popular election of Representatives as "essential to every plan of free Government". Some states, he noted, did not even have popular election of their upper houses; if the lower house were to be elected by state legislatures, the upper by the lower, the executive by the two together, and other offices by the executive, "the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt." Madison was okay with imposing "successive filtrations" as long as they didn't apply to the lower house, and felt that "the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures."

Gerry rebutted that the comparison with the House of Commons was fallacious and "that the State legislatures drawn immediately from the people did not always possess their confidence." He would be okay with direct election of representatives "if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments." Madison thought Gerry supported a system where the people would only nominate some candidates for the legislatures to elect - a primary without a general election. When the general motion came to a vote, only New Jersey and South Carolina outright dissented.


In considering the "small state-big state" debate that broke out regarding representation in the new Congress, understand that before the Convention, the United States was much more like the European Union than it is today. To understand the change being considered, imagine if the UN voted by majority vote instead of consensus, and decided tomorrow that instead of giving each nation one vote, each nation would have a number of votes proportional to their population. A state like, say, New York really was a state, in the traditional sense as the government of a nation, rather than what it's become today, what most countries would call a "province". There might never be a conflict explicitly between the interests of "large states" as a group and "small states" as a group, but the individual small states certainly didn't want to see their power reduced more than their larger brethren, as one might reasonably expect them to.

Randolph proposed replacing the "one state one vote" principle of the Articles of Confederation with a system of proportional voting power to either the free population or the "Quotas of contribution" (tax revenue). Madison wanted to reject the "number of free inhabitants" approach out of hand, not because it was a bad idea per se, but because it "might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed". Rufus King pointed out that the government might collect taxes in such a way that determining which state contributed how much might be impossible, Madison agreed, and the question was postponed on that first day of debating Randolph's scheme. The room wasn't yet ready to open the slavery debate.

Since one approach wasn't going to work and the other was going to touch off a firestorm in the specifics, Madison moved "that the equality of suffrage established by the articles of Confederation ought not to prevail in the national Legislature, and that an equitable ratio of representation ought to be substituted." Madison observed that, being "generally relished, [the motion] would have been agreed to" before Delaware, whose deputies had been forbidden from changing the equality of representation between the states in Congress, threatened to leave the Convention.

Madison pointed out "that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Govermt. should be put into the place." The state legislatures were most important under the Confederation; it made sense that they be treated as equals. With a new, supreme, national government in the works, it made more sense for the population of the entire nation to be represented more or less equitably. Still, the matter remained postponed after that first day, and Madison believed the room was confident that "the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from Delaware."

The Real Constitution: Article I, Section I (Creation of Congress)

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

The very first order of business of the Constitutional Convention, after procedural matters such as electing George Washington its president and passing rules to govern the proceedings, was a speech by Edmund Randolph in which he proposed what came to be known as the Virginia Plan.

The Articles of Confederation had allocated one vote to each state in a single house of Congress. The Virginia Plan created a two-house legislature, the lower house to be elected by the people and the upper house to be elected by the lower house from a pool of people nominated by state legislatures. The two-house Congress would have power to "legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation", veto laws passed by individual states they deemed to contradict the Constitution (referred to as the "articles of Union"), and use force against any state they deemed to be "failing to fulfill its duty under the [Constitution]". An executive would be chosen by the legislature, who - besides normal executive duties - would, along with "a convenient number" of the "National Judiciary... compose a Council of revision" that would review every national law and every vetoed state law, with their own veto power that could be overridden. So powerful was this plan that the following day, Charles Pinckney of South Carolina asked whether Randolph wanted to completely abolish the state governments.

The two-branch structure of Congress would be agreed to without a peep except from Pennsylvania, which Madison attributed to Benjamin Franklin "who was understood to be partial to a single House of Legislation."

Bracket Watch: A new approach to bracketology

One of the most common arguments against a playoff in college football is that it would turn college football into college basketball, where - allegedly - the regular season is completely meaningless.

This is complete bullshit. If you're going to use the "meaningless regular season" line, college basketball is not the place to use it. (That would be the NBA and NHL, which push more than half their teams into the postseason.)

There are about 347 teams in Division I college basketball. Only 65 get to play in the NCAA Tournament, or 18.7%. By contrast, major league baseball puts 26 2/3% of its teams in its postseason - even counting the NIT, college basketball is nearly as selective, putting 27.95% of its teams in the postseason. But college basketball's regular season is far more meaningful than baseball's because its teams only play 30 or so games. We can get a rough estimate of how meaningful the regular season is by taking the reciprocal of the selectiveness percentage and dividing it by the number of games. By that measure, college basketball's regular season is more meaningful than that of the NFL.

(Incidentially, college football, if it adopted a 11/5 playoff, would still only put 13 1/3% of its teams in the playoffs and have a far more meaningful regular season than any other major sport. Right now, its meaningfullness index number is 5, which means it's too meaningful because its number is over 1.)

So why does this perception of the meaningless college basketball regular season persist? Undoubtedly, a lot of it has to do with the subjectivity of the process, and its cousin, the unbalanced schedules played by college basketball conferences. In the pros, you know exactly the impact a given game will have on a given team's chances to make the playoffs. You can't know that for certain in college basketball. What's at stake for North Carolina entering today's game? Are they already locked into a #1 seed? Are they in trouble of sinking to a #2 or #3? Are they going to get an ideally situated region, or can they? We don't know.

The fast-growing field of "bracketology" (a neologism invented out of whole cloth by ESPN) could help answer these questions and help us know exactly what to expect out of a given game. Unfortunately, most bracketologists post little more than their reckoning of where the field stands right now, not how close all the teams are to each other. So we know that North Carolina is (for example, since I'm writing this during last year's March Madness!) the second #1 seed. Could they rise up to the overall #1? Could they fall? How far could they fall, and how soon? We don't know. The closest most bracketologists come, if you're lucky, is a "bubble watch" feature tracking only whether teams are in or out of the field, not how high they are if they're in. Often, even that only contains vague descriptions. Say what you will about Joe Lunardi and his tendency to get way more play than his accuracy would indicate, but if you're willing to pay for ESPN Insider, he'll give you percentage chances for every possibility you could care about. That's way more than most bracketologists.

If. You're willing to pay for ESPN Insider. (And the subscription to ESPN the Magazine Insider requires.)

Over the next two months, leading up to Selection Sunday, I'm thinking I'm going to run my own bracketology project, showing the information college basketball fans really want to know: what's at stake. I'll tell you exactly who has a shot at the overall #1 seed, the range of seeds a team could get, whether a team's in or could still be out or if they're on the bubble or if they're out but could still be in, using color-coded bars and all the information you could ever need.

I'm going to make an effort to use the same information the selection committee uses, but the NCAA seems to be more tight-lipped about what info the selection committee uses than I recall them being in the past. (Is the committee really using game scores now?) So I'm going to use the same information I use for my Golden Bowl selection process: record, RPI, strength of schedule, out-of-conference record, road/neutral record, record in the last 12 games, record against other teams in consideration, quality of wins and losses. (I'm okay with using injury info and the like.) However, this is not an effort to attempt to predict what the selection committee will do, because the purpose is to demonstrate the format. Rather, this is a record of what I would do if I were on (or rather, were) the selection committee.

I'm spending today going through each team's resume and forming an initial ranking. I hope to have a first, rough sketch of where I see the field by the end of the day. And we'll see where we go from there.