Edward S. Corwin's Constitution and What It Means Today

Edward S. Corwin's Constitution and What It Means Today: 1978 Edition

Edward S. Corwin
Harold W. Chase
Craig R. Ducat
Copyright Date: 1978
Pages: 354
https://www.jstor.org/stable/j.ctt7pfnt
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    Edward S. Corwin's Constitution and What It Means Today
    Book Description:

    For over seventy-five years Edward S. Corwin's text has been a basic reference in the study of U.S. Constitutional Law. The 14th edition, the first new edition since 1973, brings the volume up to date through 1977.

    In this classic work, historian Edward Corwin presented the text of the U.S. Constitution along with his own commentary on its articles, sections, clauses, and amendments. Corwin was a renowned authority on constitutional law and jurisprudence, and was hired at Princeton University by Woodrow Wilson in 1905.

    Far from being an impersonal textbook, Corwin's edition was full of opinion. Not afraid to express his own strong views of the development of American law, Corwin offered piquant descriptions of the debates about the meaning of clauses, placing recent decisions of the court "in the familiar setting of his own views." The favor of his style is evident in his comments on judicial review ("American democracy's way of covering its bet") and the cabinet ("an administrative anachronism" that should be replaced by a legislative council "whose daily salt does not come from the Presidential table").

    Corwin periodically revised the book for nearly forty years, incorporating into each new edition his views of new Supreme Court rulings and other changes in American law. Although Corwin intended his book for the general public, his interpretations always gained the attention of legal scholars and practitioners. The prefaces he wrote to the revised editions were often controversial for the views he offered on the latest developments of constitutional law, and the book only grew in stature and recognition.

    After his death in 1963, other scholars prepared subsequent editions, fourteen in all.

    eISBN: 978-1-4008-2005-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. PREFACE TO EDITION XIV
    (pp. vii-viii)
    H.W.C. and C.R.D.
  3. Table of Contents
    (pp. ix-xii)
  4. Some Judicial Diversities
    (pp. xiii-xvi)
  5. THE PREAMBLE
    (pp. 1-4)

    WE, THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM A MORE PERFECT UNION, ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILLITY, PROVIDE FOR THE COMMON DEFENSE, PROMOTE THE GENERAL WELFARE, AND SECURE THE BLESSINGS OF LIBERTY TO OURSELVES AND OUR POSTERITY, DO ORDAIN AND ESTABLISH THIS CONSTITUTION FOR THE UNITED STATES OF AMERICA

    The Preamble, strictly speaking, is not a part of the Constitution, but "walks before" it. By itself alone it can afford no basis for a claim either of governmental power or of private right.¹ It serves, nevertheless, two very important ends: first, it indicates the source from which...

  6. Article I. The National Legislative Powers
    (pp. 5-147)

    Article I defines the legislative powers of the United States, which it vests in 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.

    This seems to mean that no other branch of the Government except Congress may make laws; but as a matter of fact, by Article VI, ¶2 , treaties which are made "under the authority of the United States" have for some purposes the force of laws, and the same has on a few occasions been held to be true...

  7. Article II. The National Executive Power
    (pp. 148-203)

    This article makes provision for the executive power of the United States, which it vests in a single individual, the President.

    ¶1. 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:

    What, precisely, does the opening clause of this paragraph do? Does it confer on the President his power, or merely his title? If the former, then the remaining provisions of this article exist only to emphasize or to...

  8. Article III. The National Judicial Power
    (pp. 204-245)

    This article completes the framework of the National Government by providing for "the judicial power of the United States."

    ¶ 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 behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

    "Judicial power" is the power to decide "cases" and "controversies" in conformity with...

  9. Article IV. The Federal Article
    (pp. 246-267)

    This article, sometimes called "the Federal Article," defines in certain important particulars the relations of the States to one another and of the National Government to the States.

    ¶ 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.

    In accordance with what is variously known as Conflict of Laws, Comity, or Private International Law, rights acquired under the laws or through the courts...

  10. Article V. The Amending Power
    (pp. 268-271)

    ¶ 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...

  11. Article VI. The Supremacy of the National Government within its Assigned Field
    (pp. 272-283)

    ¶ 1. 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 paragraph, which is now of historical interest only, was intended to put into effect the rule of International Law that when a new government takes the place of an old one it succeeds to the latter's financial obligations.

    ¶ 2. 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...

  12. Article VII. The Schedule
    (pp. 284-284)

    ¶ 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 provided for their own amendment only by the unanimous consent of the thirteen States, given through their legislatures. The provision made for the going into effect of the Constitution upon its ratification bynineStates, given throughconventionscalled for the purpose, clearly indicates the establishment of the Constitution to have been, in the legal sense, an act of revolution.

    ¶ Done in convention by the unanimous consent of the States...

  13. THE BILL OF RIGHTS
    • Amendment I. Freedom of Worship, Speech, Press, and Assembly
      (pp. 286-340)

      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.

      In the case of Gitlowv. New York, decided in 1925,¹ the Court, while affirming a conviction for violation of a State statute prohibiting the advocacy of criminal anarchy, declared: "For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment...

    • Amendments II and III. The Right to Bear Arms and Ban on Quartering Soldiers on Householders
      (pp. 340-341)

      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.

      The expression "a free state" is obviously here used in the generic sense, and refers to the United States as a whole rather than to the several states (seeArticle I, Section VIII, ¶s 15 and 16).

      The amendment does not cover concealed weapons, the right "to bear arms" being the right simply to bear them openly. Nor will the Court apply it to sawed-off shotguns, being unable to say of its own knowledge...

    • Amendment IV. Ban on "Unreasonable Searches and Seizures"
      (pp. 341-367)

      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.

      This amendment reflected the abhorrence of the times against so-called "general warrants," from which the Colonists had suffered more or less.¹ Today it derives its chief importance from the doctrine the beginnings of which were laid down by the Court in 1886 in Boydv. United...

    • Amendment V. The Grand Jury Process, Rights of Accused Persons, the "Due Process of Law" and "Just Compensation" Clauses
      (pp. 368-403)

      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 offense 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...

    • Amendment VI. Trial by Jury, Further Rights of Accused Persons
      (pp. 404-427)

      In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

      As a consequence of its decision in 1967 that the Fourteenth Amendment incorporated the right to a "speedy trial,"...

    • Amendment VII. Trial by Jury in Civil Cases
      (pp. 427-432)

      In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

      The primary purpose of this amendment was to preserve the historic line separating the province of the jury from that of the judge in civil cases, without at the same time preventing procedural improvements which did not transgress this line. Elucidating this formula, the Court has achieved the following results:...

    • Amendment VIII. No "Cruel and Unusual Punishments"
      (pp. 432-440)

      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

      The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.¹ Nearly one hundred and twenty years later, in 1951, however, it ruled that bail must not be excessive, that its purpose was to make reasonably sure of a defendant's appearance for trial but not...

    • Amendment IX. General Reservation of Fundamental Rights
      (pp. 440-442)

      The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

      In other words, there are certain rights of so fundamental a character that no free government may trespass upon them whether they are enumerated in the Constitution or not.¹ In point of fact, the course of our constitutional development has been to reduce fundamental rights to rights guaranteed by the sovereign from the natural rights that they once were—a development reflected especially in the history of the due process of law clause.

      In an intriguing concurring opinion in...

    • Amendment X. The Reserved Powers of the States
      (pp. 442-448)

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      "The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified. . . ."¹ That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States...

  14. THE CORRECTIVE AMENDMENTS
    • Amendment XI. National Judicial Power Curbed in Relation to the States
      (pp. 448-452)

      The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

      The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm v. Georgia,¹ provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by...

    • Amendment XII. The Procedure of Electing the President Altered
      (pp. 452-455)

      ¶1. The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of the government...

  15. THE WAR AMENDMENTS
    • Amendment XIII. Slavery Abolished
      (pp. 455-460)

      Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

      The historical importance of this amendment consists in the fact that it completed the abolition of African slavery in the United States, but that has not been its sole importance. The amendment is not, in the words of the Court, "a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the Nation, it...

    • Amendment XIV. Civil Rights versus the States
      (pp. 460-532)

      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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      The opening clause of this section makes national citizenship primary and State citizenship derivative therefrom. The definition it lays down...

    • Amendment XV. Negro Suffrage
      (pp. 532-539)

      The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.

      At the outset the Court emphasized only the negative aspects of this amendment. "The Fifteenth Amendment," it asserted, did "not confer the right . . . [to vote] upon any one," but merely "invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or...

  16. TWENTIETH CENTURY AMENDMENTS
    • Amendment XVI. Power of Congress to Tax Incomes
      (pp. 539-543)

      The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

      The ratification of this amendment was the direct consequence of the decision in 1895¹ whereby the attempt of Congress the previous year to tax incomes uniformly throughout the United States² was held by a divided Court to be unconstitutional. A tax on incomes derived from property,³ the Court declared, was a "direct tax" which Congress under the terms of Article I, Section II, clause 3, and Section XI, clause 4,...

    • Amendment XVII. Popular Election of Senators
      (pp. 543-544)

      ¶1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

      ¶2. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill...

    • Amendment XVIII. National Prohibition
      (pp. 544-545)

      After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

      The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

      This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof...

    • Amendment XIX. Woman Suffrage
      (pp. 545-546)

      The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

      Congress shall have power to enforce this article by appropriate legislation.

      This amendment, which consummated a reform that had been long under way in the States, was passed by the House on May 21, 1919, and by the Senate on June 4, 1919. It was ratified by the required number of States in time for the Presidential election, November 1920. An objection that the amendment, by enlarging the electorate without a State's...

    • Amendment XX. Inauguration of the President and the Assembling of Congress Put Forward, Succession to the Presidency Further Provided for
      (pp. 546-547)

      The terms of the President and Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

      The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

      If, at the time fixed for the beginning of the...

    • Amendment XXI. National Prohibition Repealed
      (pp. 548-550)

      The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

      The transportation of importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

      This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

      This amendment was proposed by Congress February 20, 1933, to...

    • Amendment XXII. Anti-Third Term
      (pp. 550-551)

      No person shall be elected to the office of President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this...

    • Amendment XXIII. Presidential Electors for District of Columbia
      (pp. 551-551)

      The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

      A number of electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in...

    • Amendment XXIV. Qualifications of Electors; Poll Tax
      (pp. 551-552)

      The right of citizens of the United States to vote in any primary or other election for President or Vice-President, for electors for President or Vice-President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

      The Congress shall have power to enforce this article by appropriate legislation.

      This amendment was proposed by Congress in 1962 and declared ratified on February 4, 1964.¹

      As the House Report accompanying the proposal indicated: "Federal legislation to eliminate poll taxes, either...

    • Amendment XXV. Succession to Presidency and Vice-Presidency; Disability of President
      (pp. 552-555)

      In case of the removal of the President from office or of his death or resignation, the Vice-President shall become President.

      Whenever there is a vacancy in the office of the Vice-President, the President shall nominate a Vice-President who shall take office upon confirmation by a majority vote of both Houses of Congress.

      Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the...

    • Amendment XXVI. Right to Vote; Citizens Eighteen Years of Age or Older
      (pp. 555-557)

      The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

      The Congress shall have power to enforce this article by appropriate legislation.

      This amendment was proposed and ratified in 1971.¹ The impetus for the amendment was explained in the Senate report accompanying the proposal this way: "Thus the Committee is convinced that the time has come to extend the vote to 18-year-olds in all elections: because they are mature enough in every way to...

  17. PROPOSED CONSTITUTIONAL AMENDMENT
    (pp. 557-560)

    The following resolution was passed by Congress on March 22, 1972, submitting the proposed Equal Rights Amendment to the States for ratification:

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That

    The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislature of three-fourths of the several States within seven years from the date of its submission by the Congress:

    "Article—

    "Section...

  18. EPILOGUE
    (pp. 560-561)

    One cannot parse the meaning of the Constitution without coming away from it with great admiration and respect for the document and its authors. Yet, as one canvasses the problems of the 1970's, one cannot help but wonder if a restructuring of our governmental system is not in order. This is said as no disrespect to the Framers. For, as Professor James M. Burns pointed out (seequote, p. 200), the Constitution has, indeed, served us well for nearly two hundred years. But that fact in itself does not mean that it will continue to serve us well as our...

  19. Text of the Constitution
    (pp. 562-582)

    We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    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.

    [1] The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the...

  20. TABLE OF CASES
    (pp. 583-644)
  21. INDEX
    (pp. 645-673)
  22. Back Matter
    (pp. 674-678)