Starting and Managing a Nonprofit Organization: A Legal Guide

By Bruce R. Hopkins | Go to book overview

CHAPTER TWENTY-SIX
Nonprofit Organizations
and the Constitution

The United States Constitution does not make any reference to nonprofit organizations. This is not surprising: The Constitution is a sketch of the structure and functioning of the federal government and its relationship with the states, not a framework for the entirety of U.S. society. Nonetheless, the Supreme Court has abundantly shaped nonprofit law.


CONSTITUTIONAL LAW BACKGROUND

The Constitution of the United States provides two groupings of constitutional law relevant to the development of nonprofit law: appropriate portions of the original Constitution and appropriate portions added by adoption of the Bill of Rights and thereafter.

Four articles of the original Constitution are relevant to the development of nonprofit law. Section 1 of Article I of the Constitution established the U.S. Congress (the vesting of the legislative authority in the federal government). Section 2 concerns the creation, composition, and functions of the House of Representatives. Section 3 concerns the creation, composition, and functions of the Senate. Section 7 requires that all bills for raising revenue originate in the House. Section 8 authorizes Congress to impose taxes and regulate commerce among the states (Commerce Clause).

Section 1 of Article II of the Constitution established the U.S. Presidency (the vesting of the executive authority in the federal government). Section 1 of Article III of the Constitution established the federal judicial system. It provides for a Supreme Court and such “inferior” courts as Congress may establish. Section 2 describes the cases to which this judicial authority extends. Article VI of the Constitution makes it clear that the Constitution and the federal laws “made in Pursuance thereof” are the “supreme Law of the Land.”

Five articles added to the Constitution, including those adopted by ratification of the Bill of Rights (the first ten of these amendments), are relevant to the development of nonprofit law.

Article I of the Bill of Rights amendments (First Amendment) contains four pertinent provisions. One, Congress may not make any law “respecting an establishment of religion” (the Establishment Clause).Two, Congress may not make any law “prohibiting the free exercise” of religion (the Free Exercise Clause). These two

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