728 x 90
728 x 90
728 x 90
728 x 90
728 x 90


This page gives you quick summaries—without any political agenda and without regard to what the courts have ruled—about the Constitution’s meaning on controversial subjects. You might not like all the answers provided below (it would be odd if everyone agreed with every part of the Constitution all the time!), but the answers are honest and based on thorough objective research. For more info on these and other issues, see Rob Natelson’s handbook The Original Constitution: What It Actually Said and Meant (3d ed., 2014).

Advice and Consent: The Senate’s power to advise and consent does not mean the President must consult the Senate in advance of recommending an appointment or a treaty. During the Founding Era, the term “advise” in this setting meant “to deliberate,” “to take under advisement.” Once the President has made a recommendation, the Senate may deliberate on it and decide whether to consent. See The Original Constitution: What It Actually Said and Meant (3d ed., 2014).

Amendment, content: During the Founding-Era, for government purposes an “amendment” was an alteration that addressed the same general subject as the underlying measure. The amendment might completely reverse the intent of the original, but so long as it addressed the same subject, it was valid. (Today, we call this the “germaneness” rule.) Revenue was considered a single subject. Thus, in amending a tax bill under the Origination Clause, the Senate may change completely the content of the underlying bill, so long as it sticks to the subject of taxes. It may not add appropriations or regulations if there are none in the original bill. See The Founders’ Origination Clause (and Implications for the Affordable Care Act), 38 Harvard J. L. & Pub. Pol. 629 (2015).

In legislative practice, an amendment that completely replaces the content of an original bill is called a “complete substitute.” It is unlikely, however, that the amendment process could be used to adopt an entirely new Constitution because Article V limits them to changing “this Constitution.”

Amendment, procedure for: Article V of the Constitution provides for amendment using state and federal legislatures (without executive vetoes) and state and federal conventions. The conventions are limited, one-time-only assemblies. Amendments can be proposed either by Congress (2/3 vote of each house) or by a Convention for Proposing Amendments. All amendments have to be ratified by 3/4 of the states. Congress decides whether ratification is by state legislatures or state conventions.

A Convention for Proposing Amendments is a limited-purpose body and not a “constitutional convention” as erroneously claimed. Congress must call a Convention for Proposing Amendments when directed to do so by 2/3 of state legislatures. Convention commissioners (delegates) are agents of their respective state legislatures. See Is the Constitution’s Convention for Proposing Amendments a ‘Mystery’? Overlooked Evidence in the Narrative of Uncertainty, 104 Marquette L. Rev. 1 (2020).

The scope of the convention’s agenda is limited by state legislative applications and the congressional “call” based on those applications. However, the actual drafting of amendments is the job of the convention. All proposed amendments, whether proposed by Congress or Convention, must be approved by 3/4 of the states. See research articles at The Article V Information Center.

Birth-right citizenship. Under the 14th amendment, a child born in the U.S. is a natural-born citizen if his parents (or at least his father) was in “allegiance” to the United States at the time of the child’s birth. The rules for “allegiance” derive from English law. One is in allegiance to the U.S. if a citizen or lawfully in this country and not engaged in treasonous activities. Although the Supreme Court has not definitively ruled on the subject, the rules of “allegiance” tell us that a person in this country illegally is not in allegiance and thus any of his or her children born in the United States are not U.S. citizens. See The Constitution, Invasion, Immigration, and the War Powers of States 13 Brit. J. Am. L. Stud. 1 (2024).

Campaign finance. The original Constitution gave Congress very little power to regulate presidential elections, limited power to regulate congressional elections, and virtually no power to regulate campaigns. Article I, Section 4 (the Times, Places and Manner Clause) is cited to justify congressional authority to regulate campaigns, but the Clause was not that broad. Authority over campaigning was left to the states. See The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1 (2010). Government-mandated disclosure of writers and contributors violates First Amendment’s “the freedom of the press” as the Founders understood that term. See  Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding.

Commerce: Article I, Section 8, Clause 3 empowered Congress to regulate “Commerce” with foreign nations, among states, and with Indian tribes. “Commerce” means mercantile trade in goods and services and some related categories such as navigation, commercial finance, and cargo insurance. “Commerce” does not include manufacturing, agriculture or other land use, criminal law, the court system, social services, or non-economic activity. Generally, the Constitution does not empower Congress to regulate commerce wholly within states.   See The Legal Meaning of “Commerce” In the Commerce Clause, 80 St. John’s L. Rev. 789 (2006) and The Meaning of “Regulate Commerce” to the Constitution’s Ratifiers, 23 Fed. Soc’y Rev. 307 (2022). Under the Necessary and Proper Clause Congress sometimes has power to regulate activities that, while not “Commerce,” are intimately connected but subordinate to foreign, interstate, or Indian commerce. (See below.)

Due Process Clauses: At the time of the Founding, the rule that the government could not deprive a person of “life, liberty, or property without due process of law” meant the state had to follow pre-existing law when proceeding against a person. Some argue that the meaning changed during the 19th century to provide broader protection against state action under the 14th Amendment, although this conclusion is doubtful. See The Original Constitution: What It Actually Said and Meant (3d ed., 2014).

Emolument: This term appears three times in the Constitution: I-6-2, I-9-8, and II-1-7. During the Founding Era, this word had several different meanings, but the Constitution uses the term to mean compensation with financial value, received by reason of public employment. It does not refer to profits from an unrelated business or to non-financial benefits. See The Original Meaning of “Emoluments” in the Constitution, 52 Georgia Law Review 1 (2017).

Enumerated Powers: The powers of federal officials and agencies are limited to those enumerated (listed) in the Constitution and to those powers fairly incidental to those enumerated. (See the entry below for the “Necessary and Proper Clause.”) There is a hypothesis—alternatively accepted and rejected by the Supreme Court—that the federal government also has powers inherent in sovereignty and inherited from the Confederation Congress. However, this hypothesis has no logical, legal, or historical foundation. Those resorting to it seek to justify federal actions of which they approve, but for which they can find no constitutional basis. See The False Doctrine of Inherent Sovereign Authority, 24 Federalist Soc’y Rev. 346 (2023).

Federal Functions: The courts use this term for responsibilities the Constitution delegates to persons and entities that are not part of the federal government. Examples include the election of the the President and Vice-President by the Electoral College, various actions in the amendment process by state legislatures and by state and federal conventions, regulation and administration of federal elections by state legislatures and governors, and the responsibilities of federal juries. See Federal Functions: Execution of Powers the Constitution Grants to Persons and Entities Outside the Federal Government, 23 U. Penn. J. Const. Law 193 (2021).

Freedom of the Press & Anonymity: Allowing for some ambiguity around the edges, “freedom of the press” was a well-understood concept when the First Amendment was adopted, with well-understood limitations, such as treason and libel. See The Original Constitution: What It Actually Said and Meant (3d ed., 2014). Freedom of the press included the right to participate in public debate anonymously, subject to disclosure for defamation and treason. The modern federal laws disclosure of contributors violates “the freedom of the press” as the Founders understood that term. See  Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding, 9 N.Y.U. J. of Law & Liberty 160 (2014).

General Welfare: The General Welfare Clause is a limitation on Congress’s taxing power (I-8-1). It limited taxes to revenue-raising for national (not sectional), general interest (not special interest) purposes. The current belief that the general welfare clause grants Congress power to spend for almost any purpose is based largely on a misunderstanding of 18th century English. See The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003); Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007).

Immigration: The Define and Punish Clause (I-8-10) grants Congress power to regulate both immigration and emigration. See The Constitution’s Define and Punish Clause: The Source of the Power to Regulate Immigration, 11 Brit. J. Am. Leg. Studies 209 (2022). The states also retain power to regulate immigration, subject to override by federal law. If unauthorized immigration rises to the level of “invasion” (see below), the federal government is required to resist it and the states have power to do so. The Constitution, Invasion, Immigration, and the War Powers of States 13 Brit. J. Am. L. Stud. 1 (2024)

Impeachment: Properly speaking impeachment refers only to accusation by the House of Representatives. If the House charges an official under a “bill of impeachment” (or “Articles of Impeachment”), the case is tried by the Senate. Only executive and judicial officers, not members of Congress, can be impeached. Impeachment can be for “Treason, Bribery, or other high Crimes and Misdemeanors.” The adjective “high” modifies “Misdemeanors” as well as “Crimes.” The phrase “high misdemeanors” is a term of art referring to serious crimes not traditionally punished by death—such as bribery, assault, and interfering with enforcement of the law. Thus, the common belief that an officer can be impeached for non-criminal behavior is inaccurate. See  New Evidence on the Constitution’s Impeachment Standard: “high . . . Misdemeanors” Means Serious Crimes, 21 Fed. Soc’y. Rev. 24 (2020).

Indian Affairs: The Constitution’s Indian Commerce Clause (I-8-3) gave Congress authority to regulate “Commerce” (formerly called “the Indian trade”) with tribes. The Territories and Property Clause (IV-3-2) granted authority over Natives living on federal land, the Define and Punish Clause granted power to treat with non-citizen Indians, and Treaty Clause allowed the federal government to assume broader powers by treaty—if a tribe consented. Otherwise, interactions with tribes and individual Indians are within the state sphere. The claim that the Indian Commerce Clause alone granted the federal government “plenary and exclusive” power over Indian affairs is a political fiction. See The Original Meaning of the Indian Commerce Clause, 85 Denver U. L. Rev. 201 (2007); The Original Understanding of the Indian Commerce Clause: An Update, 23 Fed. Soc’y. Rev. 209 (2022).

Invasion: The Constitution uses the terms “invade” and “invasion” to trigger several powers and obligations, including the federal government’s duty to defend invaded states (IV-4) and the reserved power of states to defend themselves (I-10-3). “Invasion” includes any unauthorized incursion that causes harm, including mass illegal immigration. See The Constitution, Invasion, Immigration, and the War Powers of States 13 Brit. J. Am. L. Stud. 1 (2024).

Land: Article I, Section 8, Clause 17 gives Congress power to acquire jurisdiction over enclaves (land acquired within state boundaries), with state consent and for enumerated purposes. Article IV, Section 3, Clause 2 gives Congress power to hold title to “Territory” (land outside of state boundaries),  and “other Property” (land within state boundaries without state consent) for enumerated purposes. Federal power over enclaves is broader than over “other Property.”

Contrary to 20th century court decisions, the Constitution did not authorize the federal government indefinitely to retain land for non-enumerated purposes. See Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).

Money: The Constitution grants Congress power to “coin Money and regulate the Value thereof.” This includes not just metallic coins, but money in any medium, including paper. “Regulate the Value” refers to legal tender laws and exchange rates. States are prohibited from coining money or making anything but gold or silver coin a legal tender. See Paper Money and the Original Understanding of the Coinage Clause, 31 Harvard J.L. & Pub. Policy 1017 (2008).

Natural born: The President (II-1-5) and Vice President (12th amendment) must be natural born citizens. The rules for being natural born derive from British (not international) law. One is “natural born” if born within the United States or its dependencies to parents who are neither foreign diplomats or the minions of a foreign invader. One is also natural born if born outside the U.S. and its dependencies to a citizen father not then engaged in treasonous or felonious activities. Thus, for a child born outside the U.S., the status of the father controls; the status of the mother is irrelevant. (The status of the mother controls for certain other legal purposes, however.) See The Original Constitution: What It Actually Said and Meant (3d ed. 2014); The Constitution, Invasion, Immigration, and the War Powers of States 13 Brit. J. Am. L. Stud. 1 (2024).

A person can be born a citizen by virtue of statute—or, perhaps, by virtue of the 14th amendment—without necessarily qualifying as “natural born” in the sense the Constitution uses the term. (See also “birth right citizenship,” above.)

Necessary and Proper Clause: This clause (I-8-18) was based on similar provisions common in 18th century legal documents, which in turn were based on earlier English documents written in Latin.

The Necessary and Proper Clause had no force of its own. The “necessary” part assured the reader that the listed powers of Congress included “incidental” powers. An incidental power was less “worthy” (important) than its principal power and either customary or reasonably necessary to its exercise. Contrary to modern Supreme Court doctrine, the Constitution does not authorize Congress to regulate manufacturing, agriculture, land use, and street crime on the pretense that they are merely incidental to interstate commerce.

The “proper” part of the Clause incorporated the Founding-Era understanding that government was a public trust, and that laws must be in keeping with that trust. A law that is not reasonably impartial among citizens was not “proper.”    See The Origins of the Necessary and Proper Clause (Cambridge University Press 2010); Tempering the Commerce Power, 68 Mont. L. Rev. 95 (2007); The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. 415 ( 2014)

Origination Clause: Article I, Section 7, Clause 1 requires that bills for raising revenue originate in the House of Representatives. This means the House must pass them before the Senate can take action on them. A bill for raising revenue is synonym for a tax measure, even if the bill is revenue neutral or reduces taxes. Unlike its British predecessor, the Constitution’s origination rule does not apply to appropriations or to levies justified under parts of the Constitution other than the Taxation Clause (I-8-1). For example, it does not apply to levies designed to regulate commerce. Also, unlike in Parliament, the upper house may amend revenue bills. For the scope of the amendment power, see above, “Amendment, content.” On the Origination Clause, see The Founders’ Origination Clause (and Implications for the Affordable Care Act), 38 Harvard J. L. & Pub. Pol. 629 (2015).

Original Intent/Understanding/Meaning: Original intent is the intent of the Constitution’s drafters. Original understanding is what the ratifiers understood the Constitution to mean. Original meaning (or original public meaning) is what it would have meant to an engaged person at the time it was ratified. The rule at the Founding was that the Constitution would be interpreted according to its original understanding; if one could not recover the original understanding because the evidence was sparse or mixed, original meaning controlled. Original intent serves as evidence of original meaning or original understanding. Usually, but not always, all three categories provide the same answer. See The Founders’ Hermeneutic: The Real Original Understanding of Original Intent, 68 Ohio St. L.J. 1239 (2007).

Privileges and Immunities: Like “necessary and proper,” this was a common phrase in legal documents at the time of the Founding, and had a specific meaning. “Privileges and immunities” were not natural rights, but only benefits given by government. The Privileges and Immunities Clause said that if a state granted a benefit to citizens merely by virtue of their citizenship, then it had to extend the benefit to visitors from out of state. Examples included access to the courts and habeas corpus. Because “privileges and immunities” did not include what the Founders called “natural rights,” this clause does not protect such liberties as freedom of religion, the right to self defense, or even the right to travel. Instead, those rights are partially protected in other sections of the Constitution.

Some people claim the meanings of “privileges” and “immunities” changed during the 19th century, with the result that the “privileges or immunities clause” of the 14th amendment is broader than the Privileges or Immunities Clause in the original Constitution.  See The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117 (2009).

Post Roads: As the Constitution uses the term, a “post road” is an inter-city highway lined with “posts”—that is stations for rest and refreshment of the kind we now call “rest stops.” The term is unrelated to the carrying of the mail. Thus, the phrase “post roads” includes the modern interstate highway system but excludes local streets. See Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause, 7 Brit. J. Am. Legal Studies 1 (2018).

Recess Appointments: The Constitution empowers the President to make temporary appointments without Senate approval by authorizing him to “fill up all Vacancies that may happen during the Recess of the Senate.” As this clause was understood by the Founders, the vacancy must have been created during the Senate’s intersession recess. It is not sufficient that a pre-existing vacancy carries over into a recess, nor is it sufficient that the vacancy be created when the Senate is on a break within a session. See The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harvard J. L. & Pub. Pol. 114 (2014).

Religion: The Constitution created neither a secular nor a Christian nation. It created a theistic nation—i.e., one based on a non-sectarian belief in God. Those holding federal or state office were required to take oaths or affirmations, and the validity of those oaths and affirmations required belief in God. The First Amendment guaranteed freedom of religion to all theists and equal treatment of all religions.   It did not prevent discrimination against (or for) atheism or agnosticism. See The Original Meaning of the Establishment Clause, 14 Wm. & Mary Bill Rights J. 73 (2005).

Taxes, Direct and Indirect: As used in the Constitution, “tax” (I-8-1) refers to a governmental exaction imposed primarily for raising revenue. A fee imposed for regulatory purposes must be justified by the Commerce Clause (I-8-3) or some other enumerated power.

A tax is direct if imposed on status or livelihood. Examples include levies on real and personal property, wealth taxes, income taxes, and occupation taxes. During the Founding Era, direct taxes generally were imposed by omnibus statutes.

A tax is indirect if it does not qualify as direct. Indirect taxes generally are those imposed on transactions—particularly consumption, legal transactions, and border-crossings.

As used in the Constitution, the term duty means a financial exaction that is not a direct tax—including both indirect taxes and regulatory exactions. An impost is a duty on imports. An excise is a tax imposed on consumption, such as a retail sales tax. (An excise is therefore one form of duty.) Tonnage is a duty measured by the cargo of ships.

Modern court cases and commentaries greatly distort the meaning of these terms. See What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise), 66 Case Western Res. L. Rev. 297 (2015).

For more information on these and other issues, see Rob Natelson’s handbook, The Original Constitution: What It Actually Said and Meant (3d ed., 2014)