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Articles 5, 6, and 7

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During the Constitutional Convention, delegates from around the new United States of America came together to formulate a strong nation to replace the weak confederacy that emerged after the Revolutionary War. Article Five of said Constitution was written to give the country the ability to change as the world around it changed. Article Six was created to hold up the financial reputation of America by transferring debts, as well as sustain the standards set in earlier articles as the supreme law of the United States. Article Seven was created to streamline the process of ratifying the Constitution. 

Article Five spells out the process that the federal government has to go through in order to amend the Constitution. Either Congress can present an amendment by gathering two-thirds of both the House and the Senate to approve the amendment, or if the legislatures of two-thirds of the states come together to propose an amendment, Congress will call a convention and amendments will be proposed. Following this, three-fourths of state legislators must ratify the amendment. Congress could also decide to have the states call a convention purely to ratify an amendment. A final clause was tacked on to the end of this amendment stating that no amendment could be passed inhibiting the slave trade until 1808. Article Six transfers the debt and prior treaties from the national government under the Articles of Confederation to the new Constitution. It also states that the federal government (and therefore the Constitution) is the supreme authority in America. Finally, it specifies that oaths should be made by legislators and executives to the people of the United States instead of a religious test as a barrier to entry. Article Seven of the Constitution states that only nine states are required to ratify the Constitution for it to be the binding federal document, and it lists all 13 states and the order in which they will call a Convention to vote on the validity of the Constitution. 

An example of a complex ratification process is the Equal Rights Amendment (ERA), an amendment to codify the equality of the sexes in law, was ratified by 30 states within the first year of its proposal but it met opposition after this 30-state benchmark over concerns that women would no longer be exempt from compulsory military service as well as other issues. There are other cases of discrepancy between federal and state power like some campaign finance laws and the legalization of marijuana in spite of the Controlled Substances Act.

During the initial creation of the country, the goal was as little central regulation as possible, but this turned out to be a weak way to organize the United States as many consequential regulations changed from state to state. The Constitution’s significance comes from the combination of general principles found in state Constitutions and rolled them into one document that set the federal government as the highest rule of law in the United States. Instead of changing the federal supremacy clause, the Constitution should clarify the Elasticity Clause or refine the Tenth Amendment to clarify specifically how elastic the powers of the federal government is or where state jurisdiction starts. 

Bibliography

Congress, The Federal Status of Marijuana and the Expanding Policy Gap with States, H.R. Doc., at 3 (Mar. 6, 2023). Accessed June 2, 2023. https://crsreports.congress.gov/product/pdf/IF/IF12270.

The Editors of Encyclopaedia Britannica. “Equal Rights Amendment.” Britannica. Last modified April 27, 2023. Accessed June 2, 2023. https://www.britannica.com/topic/Equal-Rights-Amendment.

Oyez. “Colorado Republican Federal Campaign Committee V. Federal Election Commission.” In Oyez. Last modified 2023. Accessed June 2, 2023. https://www.oyez.org/cases/1995/95-489.

Articles 5, 6, and 7

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Article V covers the legal process of Amending the Constitution. It was drafted in response to the hesitation of certain states to ratify the Constitution. When an amendment is proposed, ⅔ of both houses, the Senate, and the House of Representatives need to agree to an amendment to move to the next step. The amendment then goes to state legislatures and ¾ of all legislatures must ratify it within 7 years or it will lapse. Scholars disagree about whether a state can revoke their vote in favor of an amendment. Some scholars feel that states should not be allowed to take away their vote for an amendment as that power is not explicitly stated in Article V.

Opposing scholars do not see an issue as long as the state makes its decision within the 7 year limit. Article VI of the Constitution covers debts and supreme law. It states that all debts from the previous government under the Articles of Confederation are still valid under the new Constitution, and that all members of the three branches of the new government must take an oath of allegiance to the new Constitution. As a new nation, allyship and allegiance were important and this oath ensured that the government would stand with one another as a nation under the new Constitution.

This Article also states that federal law is more powerful than state law, and when in conflict federal law becomes the, “the supreme Law of the Land”. In McCulloch vs. Maryland (1819), the state of Maryland wanted to impose taxes on the Second Bank of the United States but the cashier of the Baltimore branch refused to pay. The Supreme Court unanimously decided that because the bank was a federally created and controlled institution, the state did not have the right to tax it. This is a clear example of the national supremacy clause, in a conflict of power between state and federal rights, the federal government has more power. Article VII covers the process of the ratification of the Constitution.

It states that in order to ratify the Constitution, 9 out of 13 states must agree to it. This article is a response to the Articles of Confederation which stated that all states were required for ratification. This provision created conflict between Federalists and Anti-Federalists. Anti-Federalists pointed out that the new constitution was not supreme law yet, as it had not been ratified and therefore the process in the Articles of Confederation still stood. Federalists argued that because there had been so many violations of the Articles of Confederation they no longer stood as supreme law and that Article VII was now the guiding principle for constitutional ratification. Through the conflict and disagreement that these Articles faced, they prevailed by reshaping the Constitution to what it is today. 

George Lipton – Due Process Clause

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The idea of due process had been around for a long time before the U.S. Constitution was ratified, even appearing in Britain’s Magna Carta in 1215. However, the U.S. throughout its history has made it more specified and strengthened its direct ability to protect people accused of crimes. The intention in both of those documents was to promise that the governmental powers would not infringe on the fundamental rights of life, liberty, and the right to property without a “fair trial.”

The due process clause is one of many assurances that the federal government would not be too powerful which was a major concern for the new country. The federal government cannot punish or take anything away from someone without a sentence that came from a trial. This clause also is a form of checks and balances over the executive and legislative branches when they create and enforce laws because within a trial, proving guilt is a process that is channeled through the judicial system. Throughout the country’s history, the due process clause has been used as a way to keep the government from acting outside of the law.

The term has now become interchangeable with the right to a fair trial, despite historically having broader implications. This leads to it often being confused with the 14th Amendment, which calls for equal protection under state laws rather than federal laws, also mentioning due process. The vagueness of the language of the amendment, the 5th amendment has been specified by numerous court decisions. One of the most famous ones is Miranda v. Arizona, a trial about self-incrimination without warning, which led to the creation of Miranda Rights. Another decision is Gideon v Wainwright, a case establishing the right to an attorney as a key part of due process. Over time the amendment has also created a constitutional rule called the vagueness doctrine which forces laws to be straightforward in their language in order to be enforced.

Finally, the concept of substantive due process, allows the supreme court to overturn laws that restrict citizens’ constitutional rights as a part of judicial review. Without due process of law, the government can arrest whoever they want without a proper trial which in a revolutionary context, could lead to a tyrannical government. Due process is a building block of the bigger concepts of the American Revolution seeking a government that fairly represented the people. This also relates back to Rousseau’s social contract because this puts a definition on the trade-off between freedom and security or the people and government. Due process is one of the many amendments that was related back to the argument over slavery because it is the legal aspect of abolition: to be enslaved is wrongful imprisonment without due process. This is why due process needed to be re-channeled in the 14th Amendment because states now had to guarantee due process in their courts as well. 

Amendment 5 – Due Process Clause

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The historical forces and motivation behind the Fifth Amendment’s Due Process Clause largely consisted of fears of conviction without trial and the stripping of life, liberty, and property without proper processes, and a desire to prevent such events. It was largely derived from the Magna Carta, a statement of rights issued in 11th Century England that ensured no citizen would be imprisoned or arrested unless it was in accordance with a law or by means of peers’ judgment. The response may also be attributed to British violations of due process in regard to juries when America was a colony.

The common interpretation of the Due Process Clause is that it ensures the government abides by the laws. The clause aims to ensure no person’s life, liberty, and property are struck without the due process of law. It also includes procedural due process, which refers to procedures surrounding the processes of law, and has been interpreted to refer to substantive due process, which sets substantive limits to prevent the government from removing certain freedoms. 

John C. Harrison utilizes an historical interpretation of the Constitution to argue that the clause is  a reiteration of the separation of powers and it lacks support for substantive due process due to the vagueness of the language. It is a statement that only the Courts are equipped to deprive life, liberty, and property, not the Executive or Legislative Branches. He also believes the clause reiterates the provision that the government must follow the law, similarly to how the Magna Carta provides that the King must follow the laws. 

Roger A. Fairfax believes that the clause addresses both the availability and equity of procedures and informs what the government may necessitate or forbid. His main argument centers around the vagueness doctrine of the clause as an important, but overlooked asset in addition to substantive and procedural due process. For evidence, he cites the Johnson v. United States (2015) Supreme Court decision to illustrate the power of the vagueness doctrine. Given that fair notice is required by means of the Due Process Clause, the Court concluded that the term “violent felony” did not provide ample fair notice to all defendants as to sentences they may face due to the vagueness of the provision. At the end of the essay, he argues that the prohibition of vagueness places a lid on governmental action, which is exactly what substantive due process strives to do. 

Fairfax’s argument is more persuasive for three reasons. Firstly, he uses a specific case as evidence, which Harrison does not. Secondly, Harrison’s argument that the clause is a part of the separation of powers is ineffective due to the fact that it would be redundant given other measures in the Constitution. This is not likely given the Framers’ close examination and heated debate of the Constitution. Thirdly, Harrison’s argument that the clause does not support substantive due process due to its vagueness is countered by the premise of fair notice. While not explicitly stated, the clause is widely understood to include fair notice, which leads one to apply the same principle to substantive due process despite the lack of explicit statement.