Mr
Mr. McCormack
American Government
Central Dauphin High School
Chapter Three
The Constitution
I. Basic Principles
A. Relevance
1. Although the Constitution was written more than 200 years ago, it remains the basis of our government
2. The basic principles of our social system are enumerated in and protected by the Constitution
B. Features
1. At just more than 7,000 words, one of the shorter constitutions available
2. The Constitution deals more with the basics of government than in the finer details
3. Simple and straightforward organization
C. An Outline of the Constitution
1. Preamble
a. The “purpose statement” of the Constitution
b. Never recognized as a source of governmental powers, obligations, or legal rights
c. Jacobson v. Massachusetts, 197 US 11 (1905)
i. Jacobson challenged a fine that was imposed for failing to have his child vaccinated on the principle that the law violated the spirit of the Constitution (“to secure the blessings of liberty”)
ii. Justice Harlan, writing for the court, rejected the argument
2. Article I – The Legislative Branch (Congress)
3. Article II – The Executive Branch (President)
4. Article III – The Judicial Branch (Supreme Court)
5. Article IV – Relations among the States
6. Article V – Amending the Constitution
7. Article VI – National Debts, Supremacy Clause, Oaths of Office
8. Article VII – Ratification
9. Amendments – Twenty-seven amendments to date
D. Basic Principles
1. Popular Sovereignty
a. All political power comes from the people
b. Government can only exist by the consent of the governed
2. Limited Government
a. No government is all-powerful
b. Governments can exercise a defined set of expressed powers
c. Governments may also exercise other powers incidental to the execution of their expressed powers
d. Constitutionalism – government must be conducted according to a constitution
e. Rule of Law – the government and its officers are subject to the law
3. Separation of Powers
a. The powers of government are separated into three independent and co-equal branches
b. Combining all of the powers of government into one branch would open the door to tyranny
c. Historians track the periodic ascension of one branch over the others
4. Checks and Balances
a. Each branch of government has powers to ensure that none of the others grows too powerful
b. The Constitution enables each branch to restrain (or “check”) the others
i. The President may veto a law passed by Congress
ii. Congress may impeach the President
iii. The Supreme Court may declare a law unconstitutional
iv. Other checks will be studied in future chapters
c. Direct confrontations between the branches are rare, but may occasion a constitutional crisis
d. Divided Government (when different branches are controlled by different political parties) makes conflict more likely
5. Judicial Review
a. The Supreme Court interprets the laws, including the Constitution
b. The Supreme Court determines when a law (federal or state) violates the Constitution
c. A law that violates the Constitution can not be enforced
d. Judicial Review is not an expressed part of the Constitution, but evidence suggests it was intended
i. Federalist 78 – Alexander Hamilton wrote that an independent judiciary would protect against “occasional ill humors of society”
ii. Federalist 51 – James Madison called the judiciary an “auxiliary precaution” against dominance of either Congress or the President
e. The Supreme Court first exercised this power in Marbury v. Madison, 5 US 137 (1803)
f. The Supreme Court has invalidated over 150 federal and 1,100 state laws
6. Federalism – power divided between central and state governments
II. Formal Amendment
A. The Framers, aware that future circumstances might require Constitutional change, developed a process for formal amendments
B. Four Methods of Formal Amendment
1. Amendment Proposed by Congress, Ratified by State Legislatures
a. Two-thirds of both the House and Senate must pass the proposed amendment
b. Three-fourths of the state legislatures must ratify (approve by a majority vote) the amendment
c. Twenty-six of the 27 amendments have been passed this way
2. Amendment Proposed by Congress, Ratified by State Conventions
a. Two-thirds of both the House and Senate must pass the proposed amendment
b. A special convention of elected delegates must meet to consider the amendment in each state
c. Three-fourths of the conventions must ratify the amendment
d. Only the 21st Amendment (Repealing Prohibition) was ratified in this way
3. Amendment Proposed by a National Convention, Ratified by State Legislatures
a. Two-thirds of the state legislatures must request that Congress summon a national convention
b. Three-fourths of the state legislatures must ratify the amendment
c. The threshold for a national convention has been nearly met twice
i. 1963-1969, 33/50 state legislatures sought to overturn the Supreme Court’s “one man, one vote” rulings
ii. 1975-1983, 32/50 state legislatures sought to pass a balanced budget amendment
4. Amendment Proposed by a National Convention, Ratified by State Conventions
a. Two-thirds of the state legislatures must request that Congress summon a national convention
b. Special conventions in three-fourths of the states must ratify the amendment
c. This method most closely matches the drafting and ratification of the original Constitution
5. The President has no role in amending the Constitution [Hollingsworth v. Virginia, 3 US 378 (1798)]
6. A state may reconsider an amendment it has previously rejected
7. No one is quite sure whether or not a state may repeal its ratification if it tries to do so before the requisite three-fourths of states have approved it
8. Once three-fourths of the states have ratified an amendment, a state may not change its mind and repeal its ratification
9. Congress may set time limits the states to ratify amendments [Dillon v. Gloss, 256 US 368 (1921)] and have set seven year limits for every amendment passed since the 17th (except the 19th)
C. Amending the Constitution is obviously difficult, but purposefully so
1. The fundamental charter of our government should not be changed unless it has the support of an overwhelming, national majority
2. Critics complain that the people (through direct votes or conventions) should have the ultimate ability to ratify the Constitution, not the state legislatures
a. The Supreme Court has upheld legislative ratification without a referendum even when the state constitution specifically required one [Hawke v. Smith, 235 US 221 (1920)]
b. The Supreme Court has not prevented legislatures from calling for referenda before they vote on ratification [Kimble v. Swackhammer, 439 US 1835 (1978)]
D. Limits on Amendments
1. The Constitution prohibited any amendment interfering with the importation of slaves or method of assigning taxes before 1808 (now, obviously, moot)
2. The Constitution prohibits any amendment that would deprive a state of its equal representation in the Senate (unless, for some reason, the state consents)
E. The Constitution has been formerly amended only twenty-seven times
1. Freedom of religion, speech, press, assembly, and petition (1791)
2. Right to bear arms (1791)
3. The governments can not force homeowners to shelter the army (1791)
4. Prohibition on unreasonable search and seizure, warrants required for searches (1791)
5. Indictment by grand juries, double jeopardy, self-incrimination, due process, eminent domain
6. Speedy, public, impartial trial by jury in district of offense, arraignment, confront witnesses, subpoena witnesses, assistance of counsel (1791)
7. Trial by jury, limit of appeal (1791)
8. No excessive bail, no cruel and unusual punishment (1791)
9. Rights retained by the people (1791)
10. Reserved powers to the state or people (1791)
11. State immunity from certain lawsuits (1795)
12. Changes in the procedure for electing a President (1804)
13. Abolition of Slavery (1865)
14. Citizenship, due process, equal protection (1868)
15. No denial of vote because of race, color, or previous enslavement (1870)
16. Power to tax incomes (1913)
17. Senators elected by the people, not chosen by the state legislatures (1913)
18. Prohibition of Alcohol (1919)
19. Women Allowed to Vote (1920)
20. Changed in date for the start of presidential and congressional terms in office (1933)
21. Repeal of Prohibition (1933)
22. Presidents limited to two terms (1951)
23. Washington, DC allowed to vote in presidential elections (1961)
24. Voters can’t be required to pay a poll tax to vote (1964)
25. Presidential disability and succession, vice presidential vacancies
26. Voting age reduced to 18
27. Restricting Congressional pay raises
F. There have been many unsuccessful attempts to amend the constitution
1. Nearly 15,000 joint resolutions to amend the Constitution have been proposed in Congress
2. Only 33 have been sent to the states, and six of them were never ratified
a. Fixing the membership of the House of Representatives at one representative for every fifty thousand people (average ratio today about 1 for every 680,000 people) – ratified by ten states, still active
b. Any citizen accepting a foreign title or gift without the consent of Congress loses citizenship – ratified by twelve states, still active
c. Prohibiting Congress from passing any law to interfere with slavery – ratified by two states, still active
d. Granting Congress the power to regulate child labor – ratified by 28 states, still active
e. Equal Rights Amendment (for women) – ratified by 35 states (ratification rescinded by five), expired
f. Washington, D.C. Voting Rights in Congress – ratified by 16 states, expired
3. Recent efforts to amend the Constitution to ban same-sex marriage and flag desecration have also failed
III. Constitutional Change by Other Means
A. While the words of the Constitution have not changed, the meanings and understandings of those words (i.e. “cruel and unusual punishment”) might
B. The majority of Constitutional changes have been informal (not by written amendment)
C. Informal Agents of Change
1. Basic Legislation
a. Congressional acts have clarified areas that are vague in the Constitution
i. Determined what inferior courts will exist under the Supreme Court
ii. Determined what departments will exist under the President
b. Congressional acts have defined terms that are used, but not explained, in the Constitution (i.e. “commerce”)
2. Presidential actions have defined the powers of that office
a. The Constitution declares that Congress has the power to declare war, but Presidents have sent troops into combat without declarations of war on hundreds of occasions
b. Presidents have circumvented the treaty process (a function of the senate) by signing executive agreements with foreign heads of state
3. Judicial Decisions
a. Courts interpret and apply the Constitution through the process of judicial review
b. Courts change their interpretations, and, therefore, the meaning of the Constitution, when they reverse their prior decisions
c. President Woodrow Wilson called the Supreme Court “a constitutional convention in continuous session”
4. Political Parties
a. The Constitution does not mention political parties, but they play important roles in our government
b. Political parties control elections through their nominating processes
c. Political parties have sidelined the original function of the Electoral College
d. Political parties dominate the activities in Congress
5. Custom
a. The President’s Cabinet (a group composed of the secretaries of various federal departments) meet without mention in the Constitution
b. Vice-presidents who assumed the powers of president upon their predecessors’ deaths took the title of president even without Constitutional permission
c. Senatorial Courtesy – The Senate will not confirm presidential appointments that involve a state (i.e. judges in district court) unless the two senators (providing they belong to the president’s political party) of that state approve
d. Presidential Term Limits – For more than 150 years prior to the presidency of Franklin Roosevelt, no president served more than two terms (this custom was then added to the Constitution in the 22nd Amendment)
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