Chapter 2:  The Constitution

Key Terms:

amendment; Anti-Federalists; Articles of Confederation; bicameral; Bill of Rights; boycott; checks and balances; Commerce and Slave Trade Compromise; Connecticut Compromise (Great Compromise); constitution; constitutionalism; eminent domain; executive agreement; federalism; Federalist; Federalist Papers; formal amendment; Framers; informal amendment; judicial review; limited government; Magna Carta; popular sovereignty; ratification; representative government; rule of law; separation of powers; Shay's Rebellion; Three-Fifths Compromise; unconstitutional; unicameral

Relevant Supreme Court Cases

Marbury v. Madison; McCulloch v. Maryland
Kelo v. City of New London

I.       Principles of Government

A. Government makes and enforces public policies.  Government is that complex of offices, personnel, and processes by which a state is ruled, by which its public policies are made and enforced.  Public policies of a government are all those things a government decides to do. Examples: imposing an income and property taxes; minimum wages; maintaining an armed force.

B. Government consists of lawmakers (who create), executives (who implement), and judges (who interpret and apply).

II.      Origins of American Government

A. Basic Concepts of Government.  The shape of American government is based on the following English political ideas:

1. Ordered (Structured) Government— Colonists from England saw the need for orderly regulation of their relationships with one another.

2.  Limited Government — The idea that government is not all-powerful. Limited government is that basic principle of the American system of government; that government is limited in what it may do, and each individual has certain rights that a government cannot take away.

3.  Representative Government — The idea that government should serve the will of the people. Representative government is that system of government in which public policies are made by officials who are selected by the voters and held accountable to them in periodic elections.  Representative government = Republican form of government

B.      Landmark English Documents

1. The  Magna Carta — Magna Carta established the principle of limited government and fundamental rights of English citizens. This 1215 document introduced such fundamental rights as trial by jury and due process of law.

2. The Petition of Rights — The Petition of Rights limited the monarch's authority and elevated the power of Parliament while extending the rights of the individual. Challenged the idea of the divine right of kinds, declaring that even a monarch must obey the law of the land. For example, the king could not imprison critics without a jury trial, could not declare martial law in peacetime, and could not require people to shelter troops without a homeowner's consent.

3. The English Bill of Rights — The Bill of Rights redefined the rights of Parliament and the rights of individuals. No standing army, required parliamentary elections.

C.      Royal Control

1. Because of the great distance from England to America, royal control of the colonies was relaxed for much of the colonial period. Self-government made more possible.

2. Each colonial legislature assumed broad lawmaking powers. Power of the purse became very important. Colonial legislatures held the power to vote on money to pay the governor's salary, thus, they were able to persuade governors to bend to their will.

3. After 1760 Parliament imposed new taxes and restrictive regulations, (largely to support British troops in North America), acts that provoked colonial protests of "no taxation without representation."

4. Colonists saw little need for presence of troops since the French had been defeated and their power broken in the French and Indian War.

5. The colonists considered themselves British subject loyal to the crown, but took issue with Parliament's right to control their local affairs. Colonists resented having to pay taxes that they had no part in levying.

D.      Growing Colonial Unity

1. Early Attempts — In the 1600s some colonies banded together temporarily to defend themselves (against Native Americans) forming the New England Confederation, but the experiment of a union failed.

2.  The Albany Plan — Franklin's Albany Plan of Union called for annual meetings to deal with issues of common concern, but the colonial governments turned down the plan.

3. The Stamp Act Congress — Harsh tax and trade policies caused colonists to meet to denounce the practices and to organize boycotts and other acts of protest. A boycott is the refusal to buy or sell an opponent's goods in order to influence his/her behavior. Prepared Declaration of Rights and Grievances against the British policies and sent it to the king (George III).

4. New law passed to tie colonies closer to Crown. Rebellion and boycotts ensued. To boycott is to act together in abstaining from using, buying, or dealing with as an expression of protest or disfavor or as a means of coercion.

5. March 3, 1760, Boston Massacre took place, with British troops firing into a jeering crowd, killing 5.

E.       The First Continental Congress

1. In 1774 the Intolerable Acts caused colonists to send delegates to a meeting (First Continental Congress) to discuss matters and to make plans for action.

2. By 1776 the colonists' unhappiness with taxation without representation came as a surprise to the British King. The Congress sent a Declaration of Rights to the King, protesting taxes and restrictions.

F.       The Second Continental Congress

1. In 1775 Second Continental Congress met, but by now the Revolution had begun. Notable newcomers included Franklin and Hancock. Hancock was selected president.

2. The Congress organized a government and established an army, led by George Washington.

3. The Second Continental Congress served as the first national government until the Articles of Confederation went into effect. From the signing of the Declaration of Independence to March 1, 1781.

4. The Congress was unicameral, i.e., consisting of one house, exercising both legislative and executive powers. Each colony had one vote. Executive functions were handled by committees of delegates.

G.      The Declaration of Independence 

1. The Declaration announced the United State's independence from Great Britain and listed the reasons for rebellion. Almost all the work was that of Thomas Jefferson, who was greatly influenced by the philosophical works of John Locke. Independence is announced in first paragraph, remainder listed reasons for rebellion.

2. The Declaration listed various "self-evident" truths. It is one of the most important statements of American political philosophy.

3. Reflecting the natural rights philosophy of John Locke, the Declaration of Independence stated that government derived their just powers from the consent of the governed.

H.      The First State Governments

1. Congress urged each colony to adopt their own constitution.

2. Most States wrote and adopted their own constitutions. The first State constitutions differed, sometimes widely, in detail. Yet they shared many common features. What they did have in common though, included very little real power vested in the governor; political authority given to the legislatures; and, short elective terms.

A constitution is that system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution.

I.       Common Features of New States

1. Popular Sovereignty — The States' governments existed by the consent of the governed. Popular sovereignty is that principle that insists that government can exist and function only with the consent of the governed. It is the people who hold the power; it is the people who are sovereign.

2. Limited Government — The power of the State's governments was restricted.

3. Civil Rights and Liberties — Each State clearly announced the rights of its citizens. Seven of the new constitutions contained a form of a "bill of rights."

4. Separation of Powers and Checks and Balances — Each new State government was organized with independent branches of government.

J.       The First National Constitution

1. The Articles of Confederation formed a confederation among the States. Formal approval, i.e., ratification was needed. Articles established "firm league of friendship" among the States who came together "for their common defense and security of their liberties and their mutual and general welfare." Under the Articles of Confederation, most power rested with the state legislatures.

Ratification defined: The process of securing formal approval.

2. Government Structure — Government under the Articles was a unicameral legislature with no executive or judiciary. Delegates chosen annually, as determined by the States. No executive or judiciary (functions handled by committee of Congress). Congress chose one of its members as "president," but not President of the United States.

3. Powers of Congress — Most powers related to common defense and foreign affairs. Under the Articles of Confederation, Congress had the power to maintain an army and a navy.

4. State Obligations — The States agreed to accept several obligations to the central government, but retained many powers of government for themselves. Required to give full faith and credit, and generally accept horizontal federalism. States retained powers not given to the Congress.

5. Under the Articles of Confederation, power in the states began to shift to the hands of middle-class farmers and craft workers.

6. Weaknesses — The government lacked the power to levy taxes, or to regulate trade between the States, and had no power to make the States obey the Articles. Congress had no power to regulate trade between the States. Could exercise powers only with the consent of 9 of 11 State delegations. The main reason that no amendments were ever added to the Articles of Confederation was that amendments needed the consent of all 13 State legislatures.

a. Efforts to correct the problem were at first informal, like conferences to deal with commerce disagreements between the states. One such meeting at Annapolis was poorly attended and led to a call for a Philadelphia Convention.

b. Severe depression in 1786 led to Shay's Rebellion, which began in Massachusetts over farm foreclosures. This made the elites worry about rule by the mob, paving the way for a stronger replacement for the flawed Articles system.   Shay's Rebellion was a protest against the loss of the property to tax collectors. The rebellion provided a sound reason to amend the weak Articles of Confederation and a justification for calling the Constitutional Convention.

III.    The Philadelphia Convention

A.      The Framers

Framers: Those who actively were involved in the drafting of the Constitution.

1. The Framers (delegates) were professional people and property owners: doctors, lawyers, and property owners, and included some nationally and internationally respected figures. Many had experience with governing in state or colonial capacities.

a. Washington, hero of the Revolutionary War, presided over the convention, adding instant prestige.

b. Benjamin Franklin, internationally known scientist and philosopher, also added luster.

c. James Madison of Virginia would provide the diary (journal) that is our best record of events.

d. Other key figures included Gouverneur Morris, Elbridge Gerry, and the two Pinckneys (representing the South).

e. Jefferson and Adams were not at the Constitutional Convention because they were serving the United States abroad as ambassadors.

f. Major sources of ideas for the Constitution included political writings of John Locke, British tradition and colonial experiences. John Locke believed that the "end of government" was the preservation of property.

g. All of the states except Rhode Island (the debtor colony, which feared a strong national government and currency to match) sent delegates.

h. Motives of the Framers

1) Historians have suggested that the Framers wanted a strong national government to protect their own financial interests. Others, of course, have disagreed, saying that such suggestions are unprovable and unfairly impugns the motives of the Framers. The delegates however, did have a cynical view of human nature, i.e., that human beings are selfish and greedy. They, like John Locke, believed that a major source of political conflict was the unequal distribution of property.

2) Nonetheless, some suggest that the strong national government was to be a hedge against rule by mob, that majority rule and popular democracy might generate. Examples:

a) Slavery being permitted was not democratic.

b) States could determine who could vote, and excluded blacks and women.

c) Senators were chosen by legislatures rather than by direct election. Each state entitled to two senators. Members of the House of Representatives were the only national office-holders that the Constitution ORIGINALLY provided for in a direct popular election.

d) Electors choose the president, not the voters.

e) The Framer's feared rule by the property-less classes.

B.      Organization and Procedure

1. George Washington was elected president of the convention.

2. Procedural, each State could cast one vote on an issue, and a majority of votes were needed to carry any proposal. Rule of secrecy in effect.

3. James Madison kept Notes and was held in highest esteem. Became a floor leader and deservingly has title of "Father of the Constitution."

C.      The Decision to Write a New Constitution

1. The Philadelphia Convention was called to revise the Articles of Confederation.

2. Most delegates agreed that writing a new constitution was necessary.

3. Edmund Randolf of Virginia moved that a national government be established consisting of the three branches of government which would be supreme over State governments in national matters. With that, convention moved from revising Articles of Confederation to writing a new constitution.

D.      The Virginia Plan

1. The Virginia Plan called for a strong National Government with three separate branches. Madison's plan for a National Government with greatly expanded powers.

a. Legislature would be bicameral, i.e., consisting of two houses; representation based on population or on amount of money State gave to support national government.

b. Members of House of Representatives elected by popular vote. Senate members chosen by the House from lists of persons nominated by the State legislatures. The Constitution originally provided for the direct popular election of ONLY the House of Representatives.

2. It favored large States because the number of votes in the legislature would be based on a State's population.

3. Congress would choose a national executive and a national judiciary.

E.       The New Jersey Plan

1. The New Jersey Plan resembled the Articles of Confederation, but with increased power of the Federal Government to tax and regulate trade.

2. It favored small States because each state was given equal representation in the legislature.

3. Paterson's plan for a National Government, which greatly resembled the Articles of Confederation.

F.       The Connecticut Compromise (Great Compromise)

1. Disagreement over representation in Congress caused tempers to flare.

2. The Connecticut Compromise settled the conflict.

a. The Connecticut Compromise called for a Congress to be composed of two houses. States to have equal representation in the Senate.  In House, representation would be based on population.

b. Often called the "Great Compromise" in that it settled a primary dispute. It resolved the impasse between the Virginia and New Jersey Plans.

G.      The Three-Fifths Compromise

1. The question arose of whether slaves should be counted in the populations of Southern States. Southern States conveniently suggested that they should be counted. Northerners obviously took the other side.

2. The delegates agreed to count slaves as three-fifths of a person for purposes of representation and taxation. Thus a plan to satisfy Southerner's desire to inflate the population count of their states.

H.      The Commerce and Slave Trade Compromise

1. Congress was forbidden to tax exports. Southerners feared taxation on tobacco exports. It was a plan to satisfy Southern fears that the Federal Government might be funded through export duties.

2. Congress could not act on the slave trade for at least 20 years.

I.       A "Bundle of Compromises"

1. Great differences of opinion existed among the delegates.

2. Compromise was necessary on many issues.

3. Framers agreed on many basic issues, e.g., central government, popular sovereignty, limited government, representative government, separation of powers, and checks and balances.

4. Left uncovered: "Great Silences of the Constitution"

a. Abolition of slavery left for another time. The only specific mention of slavery was with respect to Three-Fifths Compromise, i.e., that slaves would count as 3/5 persons for counting the nation's population and determining seats in the House of Representatives.

b. Full scope of national powers not explicitly spelled out.

c. Who should decide if things are constitutional? (no judicial review)

d. How should the president be advised? (no privy council or cabinet)

e. Not defined was the role of political parties, the bureaucracy or the formation of congressional committees or the concept of congressional seniority, nor the right to an abortion.

J.       Sources of the Constitution

1. The Framers were all well educated.

2. Delegates drew from history, current political thought, and from their own experiences. Major sources of ideas for the constitution included political writings of John Locke, British tradition and colonial experiences.

3. Much of the language came from the articles. Number of provisions came from State constitutions.

K.      The Convention Completes Its Work

1. The convention approved the Constitution.

2. Most delegates agreed that the Constitution was not perfect, but was the best that they could produce.

3. In Benjamin Franklin's judgment, the Constitution was imperfect, but none better could be framed.

L.       The Critical Periods, the 1780s

1. Revolutionary War ended with Treaty of Paris in 1783.

2. Disputes among the States highlighted the need for a stronger, more effective National Government. Bickering, distrust and jealously. Several entered treaties with foreign governments, although prohibited.

3. Economic chaos also resulted from a weak central government. Minted their own money, taxed each other's goods. Debts went unpaid. Among the factors that contributed to economic turmoil under the Articles of Confederation was the postwar depression that left many small farmers unable to pay their debts and threatened mortgage foreclosures. Violence broke out in several places, including Shay's Rebellion which was a protest against the loss of their property to tax collectors. The rebellion provided a sound reason to amend the weak Articles of Confederation and a justification for calling the Constitutional Convention.

4. Demands grew for stronger government. Movement grew in 1785. After the Revolution, James Madison observed that "the most common and durable source of faction has been the various and unequal divisions of property." The Madisonian principles in the Constitution were based on concern that government would be dominated by a majority or minority faction.

M.      The Meetings at Mount Vernon and Annapolis

1. Maryland and Virginia, plagued by trade problems, agreed to a trade conference for the purpose of recommending a federal plan for regulating commerce. First met at Alexandria, VA in March, 1785. Moved to Mount Vernon at Washington's invitation. Virginia Assembly called to a "joint meeting of all the States to recommend a federal plan for regulating commerce." Joint meeting set for Annapolis, MD to discuss trade, but only 5 of 13 States attended. Another meeting called for Philadelphia. The original, sole, and express purpose of the convention in Philadelphia was to revise the Articles of Confederation.

2. A majority of States convened in Philadelphia to improve the Articles of Confederation. This meeting became the Constitutional Convention.

N.      Ratification

1. Remember that under the Articles of Confederation, unanimity of the states was required for changes. That is what led to the drafting to a new constitution. Ratification of the new Constitution needed approval of nine states. Not a simple majority of the states. Compared to the government under the Articles of Confederation, the new Constitution gave the central government more economic powers to resolved the economic chaos of the Critical Period.

2. Federalists favored ratification, stressing the weaknesses of the Articles. Included James Madison and Alexander Hamilton. Wanted more federal power. The Federalists supported the new document, fearing that if it did not pass, the old system would yield anarchy. Hamilton, Madison, and Jay published more than eighty letters to the editor under the pseudonym Publius (complied today as The Federalist Papers) in defense of key parts of the Constitution.

3. Anti-Federalists opposed it, attacking ratification process, absence of mention of God, to the denial to the States of a power to print money.  The believed that the new government was an enemy of freedom (designed to give control of the government to a rich elite), that the new Constitution was a class-based document, and that the new government would erode fundamental liberties. They felt that the Convention exceeded its mandate to revise the Articles of Confederation. They also would not support the new Constitution unless it contained a bill of rights. Included such notables as Patrick Henry, John Hancock and Samuel Adams. Included two future Presidents, Jefferson and Monroe. The Anti-Federalists were so powerful during the ratification process largely because many of their leaders had also led during the Revolutionary War. Anti-Federalists wanted less federal power.

4. Debate about ratification involved the follow objections, among others:

a. the increased power of the central government (MAJOR OBJECTION);

b. the Constitution lacked bill of rights (MAJOR OBJECTION);

c. God was not mentioned in the document

d. the Constitution did not allow States to print money, to place duties on imports from other states, to interfere with lawfully contracted debts and to harbor runaway slaves.

5. Free speech, freedom of the press, and freedom of religion, all later contained in the Bill of Rights, were NOT explicitly guaranteed during the ratification process. It was the guarantee of a Bill of Rights, as well as the publication of The Federalists, which were instrumental in convincing the 13 original states to ratify the new constitution. The Bill of Rights was added to the Constitution after the ratification process was complete, and partly to fulfill a promise to those who supported ratification.

6. Ratification of the Constitution was done by special conventions in each state.  Success was achieved when Virginia and New York ratified the document in the summer of 1788. Ratification of the Constitution in those states was crucial because they were two of the largest, most populous states. Didn't give ratification a simple majority, but rather, went beyond the majority because of their importance.

O.      Inauguration of the New Government

1. The ratification process in New York gave rise to The Federalist, a collection of 85 essays written in support of the Constitution. Said to be the most convincing commentary on the meaning of the Constitution.

2. The new government assembled in its temporary capital, New York City, in March 1789. Moved to Philadelphia in 1790 and ultimately Washington, D.C. in 1800.

3. In April 1789, George Washington was elected President of the United States.

IV.     The United States Constitution

A.      Popular Sovereignty

1. Recall that in the United States, all political power belongs to the people, who are sovereign. The Constitution guarantees to the states a republican form of government.

Popular Sovereignty:  Basic principle of the American system of government; that the people are the only source of any and all governmental power, that government must be conducted with the consent of the governed.

2. Government can govern only with the consent of the governed.

3. Sovereign people created the Constitution and the government, both federal and state.

4. Recall the Preamble:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], 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."

B.       Limited Government

1. Government may do only those things that the people have given it the power to do.

Limited Government: Basic principle of the American system of government; that government is limited in what it may do, and each individual has certain rights that government cannot take away.  The Bill of Rights is an example of the principle of limited government, restricting what the national government can and cannot do.

2. The government and its officers are always subject to the law.

Constitutionalism: Basic principle of American system of government; that those who govern are bound by the fundamental law. Government is to be conducted according to constitutional principles.

Rule of Law: Concept that government and its officers are always subject to — never above — the law.

3. Constitution is a statement of limited government. Reading it, displays explicit prohibitions of power to government. See Article I, 9 and 10; the 1st through the 10th Amendments; and the 13th, 14th, 15th, 19th, 24th, and 26th Amendments.

C.       Separation of Powers

Separation of Powers: Basic principle of the American System of government, that the executive, legislative, and judicial powers are divided among three independent and co-equal branches of government which can cooperate with each other as well as oppose each other.

1. Recall previous discussions regarding differences between parliamentary system (power in one central agency) and presidential system (three branches).

2. The Constitution distributes the powers of the National Government among Congress (legislative branch), the President (executive branch), and the courts (judicial branch).

3. The Framers of the Constitution created a separation of powers in order to limit the powers of the government and to prevent tyranny — too much power in the hands of one person or a few people.

D.      Checks and Balances

1. Each branch of government was subject to a number of constitutional restraints by the other branches. This is the concept of "checks and balances."

Checks and Balances: System of overlapping the powers of the legislative, executive, and judicial branches, to permit each branch to check the actions of the others.

2. Although there have been instances of spectacular clashes between branches, usually the branches of government restrain themselves as they attempt to achieve their goals.

3. The system of checks and balances in the Constitution means that change usually comes slowly, if at all, and moderation and compromise are typical in our political system. Some scholars have suggested that a consequence of separation of powers and checks and balances has been fragmented policy-making processes.

4. The separation of powers and the checks and balances established by the Constitution allow almost all groups some place in the political system where their demands for public policy can be heard. Refer to linkage institutions.

E.       Judicial Review

1. Through the landmark case of Marbury v. Madison (1803), the judicial branch possesses the power of judicial review, i.e., the power to check the actions of the other branches in order to determine the constitutionality of their actions.

Marbury v. Madison: (Article III, judicial powers) Chief Justice Marshall established "judicial review" as a power of the Supreme Court. After defeat in the 1800 elections, President Adams appointed many Federalists to the federal courts, but the commissions were not delivered. New Secretary of State James Madison refused to deliver them. Marbury sued in the Supreme Court. The Court declared a portion of the Judiciary Act of 178 unconstitutional, thereby declaring the Court's power to find acts of Congress unconstitutional.

Judicial Review: Power of the courts to determine whether the actions of the legislative and executive branches of government are in accordance with the Constitution. Doctrine of judicial review can be traced directly to Marbury v. Madison.  The constitutional principle of judicial review was never a factor at the Constitutional Convention, but never a matter of disagreement. The power of judicial interpretation is NOT address in the Constitution.

2. In most cases the judiciary has supported the constitutionality of government act; but in more than 130 cases, the courts have found congressional acts to be unconstitutional, and they have voided thousands of acts of State and local governments.

Unconstitutional: Contrary to constitutional provisions and so invalid. Illegal, null and void, of no force and effect.

F.       Federalism

Federalism: The division of political power between a central government and several regional governments. Horizontal and vertical federalism

1. United States federalism originated in American rebellion against the edicts of a distant central government in England.

2. Federalism is a compromise between a strict central government and a loose confederation, such as that provided for in the Articles of Confederation.

G.      Formal Amendment Process

Framers knew of need to build for all time. Constitution provides for its own amendment.

Amendment: A change in, or addition to, a constitution or law. Formal amendment refers to changes or additions that become part of the written Constitution. Amendments to the Constitution have as much legality as the original Constitution.

1. Methods of amending the Constitution: [ONLY by Congress or national convention]

a. First Method — The most popular method of amendment the Constitution is by approval of an amendment proposed by Congress by a two-thirds vote in both houses, then ratified by three-fourths of the State legislatures (38 of 50)(27 adopted).

b. Second Method — Amendment is proposed by Congress by a two-thirds vote in both houses, then ratified by special conventions in three-fourths of the States (38 of 50)(Only repeal of prohibition, i.e., 21st Amendment adopted in this fashion).

c. Third Method — Amendment is proposed at a national convention when requested by two-thirds of the State legislatures (34 of 50), then ratified by three-fourths of the State legislatures (38 of 50).

d. Fourth Method — Amendment is proposed at a national convention called by Congress when requested by two-thirds of the State legislatures (34 of 50), then ratified by special conventions held in three-fourths of the States (38 of 50).

2. Procedures and Restrictions:

a. Art. V declares that "no State, without its consent, shall be deprived of its equal suffrage in the Senate."

b. Proposals at national level, ratification is a State-by-State process. The participation of both the Federal Government and state government in the amendment process is evidence of federalism.

c. When Congressional resolution passed, proposal not forwarded to President for signature, as in other enrolled legislation.

d. Criticism due to no popular vote or conventions, rather legislative action.

1) The Supreme Court has held that a State cannot require an amendment proposed by Congress to be approved by a vote of the people of the State before it can be ratified by the State legislature.

2)  A State, however, can call for an advisory vote by the people before it acts.

e. Congress can place reasonable time limits on ratification process.

f. Note as an illustration of how difficult it is to amend the constitution, the fact that a simple majority is not enough to satisfy constitutional requirements in either the proposal stage or the ratification stage of the amendment process.

g. The most commonly used method of amending the Constitution is for Congress to propose and the State legislatures to ratify.

H.      The Amendments

1. Three historical time periods for amendments:

a. First twelve between 1791 and 1804

b. Next three after the Civil War

c. The rest were twentieth century amendments, reflecting demands for social change.

2. The Bill of Rights (First ten amendments providing protection from federal power, is an example of "limited government.") The Bill of Rights set out the great constitutional guarantees of freedom of expression and belief, of freedom and security of the person, and of fair and equal treatment before the law. [Note that a women's right to vote is not a right guaranteed by the Bill of Rights] The constitutional principle of limited government is exemplified by the Bill of Rights.

a. The first four dealt with:

1) Speech, press, assembly, petition, and religion (First)

2) Bearing arms (Second)

3) No troops quartered in homes (Third)

4) Forbids unreasonable search and seizures (Fourth)

b. The next four deal with:

1) The rights of the accused, including double jeopardy protection, right to avoid self-incrimination, and the power of eminent domain. Eminent domain is the power of the government to take private property for public use, in exchange for payment of fair market value. (Fifth)

2) Rights to speedy trial and lawyer in criminal cases (Sixth)

3) Jury trial right, even in civil cases (Seventh)

4) Protections against excessive bail or fines, and cruel and unusual punishment (Eighth)

c. The Ninth Amendment says there may be rights other than those listed in the Bill of Rights.

d. The Tenth says that states and people have reserved powers if a power is not given to the national government.

3. Eleventh through Twenty-seventh:

a. States can't be sued in federal court by private citizens or foreigners (Eleventh)

b. Electoral college changed (due to 1800 election), so that each elector must cast separate ballots for president and vice president (Twelfth).

c. Thirteenth through Fifteenth (The Civil War Amendments):

1) Frees the slaves (Thirteenth)

2) Former slaves are citizens, and states may not "abridge the privileges and immunities of citizens," nor "deprive any person of life, liberty, or property, without due process of law"; nor deny anyone "the equal protection of the law." (Fourteenth)

3) Race cannot be used to deny people the right to vote (Fifteenth).

d. Sixteenth through Twenty-first:

1) Congress authorized to create a tax on individual incomes (Sixteenth).

2) Senators to be chosen directly by voters, instead of by state legislatures (Seventeenth). Prior to the Seventeenth Amendment, only members of the House of Representatives were directly elected by the people. (President elected by the electoral college).

3) Outlaws production, transport and sale of alcoholic beverages (Eighteenth).  With repeal of Prohibition, states were permitted to approve sale of alcohol or remain dry (Twenty-first).

4) Women's suffrage or right to vote guaranteed (Nineteenth).

5) Often called the "lame duck" Amendment, the terms of the president and vice president begin on January 20 and the terms of the new Congress on January 3 (Twentieth).

e. Twenty-second through Twenty-fourth:

1) Limits president to two terms plus two years of an unexpired term of a predecessor, for a total of ten years (Twenty-second).

2) Gives citizens of the District of Columbia the right to vote for president and select electors, even though they are not citizens of a state (Twenty-third).

3) Abolishes a poll tax levied in the states for voting in federal primaries and elections, which had been used in five southern states to keep the poor and blacks from voting (Twenty-fourth).

f. The Twenty-fifth allows the vice president to temporarily take over the responsibilities of the president when the president is mentally or physically disabled. The amendment also allows the president to appoint a new vice president if the vice presidency becomes vacant, with the approval of the majority of each house of Congress.

g. The Twenty-sixth gives persons eighteen years old and older the right to vote in all elections.

h. Twenty-seventh says that any Congressional pay raise cannot take effect until the next Congress is elected.

I.        Basic Legislation

1. Congress can pass laws that spell out some of the Constitution's brief provisions.

2. Congress can pass laws defining and interpreting the meaning of constitutional provisions. Congressional legislation is an example of the informal process of amending the constitution. An informal amendment is a changed to to the implementation of the Constitution what does not involved an actual change to the written document. Political parties are an important example of the informal amendment process.

3. Two ways in which Congress may informally amend the Constitution is by enacting laws that expand the brief provisions of the Constitution, and enacting laws that further define expressed powers.

J.       Executive Action

1. Presidents have used their powers to delineate unclear constitutional provisions, for example, making a difference between Congress's power to declare war and the President's power to wage war.

2. Presidents have extended their authority over foreign policy by making informal executive agreements with representatives of foreign governments, avoiding the constitutional requirement for the Senate to approve formal treaties. Executive agreements are pacts made by a President with heads of a foreign government.

K.      Court Decision

1. The nation's courts interpret and apply the Constitution as they see fit, as in Marbury v. Madison, a court case involving the process of informal amendment.

2. The Supreme Court has been called "a constitutional convention in continuous session."

L.       Party (Political) Practices

1. Political Parties have been a major source of informal amendment.

2. Political parties have shaped government and its processes by holding political conventions, organizing Congress along party lines, and injecting party politics in the process of presidential appointments.

3. The fact that government in the United States is in many ways government through political party is the result of a long history of informal amendments. The development of the two-party system is an example of informal constitutional change through party practice.

M.     Custom

1. Each branch of government has developed traditions that fall outside the provisions of the Constitution. Prior to Franklin Roosevelt, there was a tradition of the Executive branch that a president would not serve a third term, however that "custom" was added to the written Constitution through formal amendment. No third term for president.

2. An example is the executive advisory board known as the President's cabinet.

V.      The Constitution: Then and Now

A. It is an evolving document, meant to last throughout the ages according to Justice Marshall in McCulloch v. Maryland. It encourages hyperpluralism. Recall that pluralist theory contends that many centers of influence compete for power and control. Hyperpluralism is pluralism gone sour.

1. The principle of the Constitution's loose or flexible construction, interpreting the "necessary and proper" clause, i.e., the "elastic clause," was the opinion's central thesis.

2. The "elastic clause" that allows the national government to expand its authority to meet the changing needs of the nation is grounded on the "necessary and proper clause" of the United States Constitution.

3. Since that time, the judiciary has applied this approach as it interprets the document. Other branches view the meaning flexibly when they apply it to their duties of legislation, investigation, and administration.

4. Beyond interpretation and application, the Constitution has changed twenty-seven times via amendment. It is more remarkable for what is NOT contained in the document. For example, the rules of the political game are not neutral, political power is divided under the concept of federalism, the supremacy clause prevents it from being superseded by acts of the branches of government.

5. The Constitution does have various economic provisions which are designed to create a strong national government so as to bring stability out of economic chaos.

B. The machinery: What it says about the makeup and duties of the branches

1. Legislative Branch (covered in Article I) includes:

a) Qualifications and methods of electing House and Senate members

b) Empowers the vice president to preside over the Senate.

c) Authorizes the House to impeach the president and the Senate to try the case.

d) Provides that all tax legislation must originate in the House.

e) Says that the president may sign or veto legislation, and both houses of Congress override.
Example of checks and balances.

f) Lists the powers of Congress (Article 1 Section 8)

g) Section 9 also protects citizens' rights to habeas corpus, saying a person is protected from illegal imprisonment

h) Article 1 Section 9 also forbids Congress from passing bills of attainder (punitive legislation aimed at a specific person), and ex post facto laws (punishing a person for an act that was not a crime when it was committed).

2. Executive Branch (Article II) includes:

a) Executive power is vested in the president.

b) Electoral college — not direct popular vote — elects president, with the number of electors for each state equal to the state's number of representatives and senators.

c) Electoral college is later modified by the Twelfth Amendment, requiring that electors vote separately for president and vice president.

d) President is commander of armed forces.

e) President makes treaties with the advice and consent of the two-thirds of a quorum of the Senate.

f) President appoints high officials and judges with Senate advice and consent.

g) President may call Congress into special session.

3. The Judiciary (Article III):

a) Judicial power is vested in a supreme court and other inferior courts that Congress may establish.

b) This article calls for trial by jury.

c) Claim of judicial review stems from "all cases" phrasing in this article and the "supremacy clause" of the Constitution (which is not in this article).

4. Provisions of remaining articles:

a) Article IV handles intergovernmental relations.

b) Article V covers ways to propose and ratify amendments.

c) Article VI includes the "supremacy clause," saying that the Constitution, laws, and treaties of the United States "shall be the Supreme Law of the Land."

d) Article VII says the Constitution will be considered ratified when ratified by conventions in nine states.

Chapter 2: Multiple Choice Questions