Chapter 3 The Constitution

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Chapter 3

The Constitution

Section 1

Structure and Principles

Essential Questions

  • What is a Constitution?

  • What is the basic structure of the Constitution?

  • What are the major principles outlined in the Constitution?

What is a Constitution?

A constitution is a plan that provides the rules for government. A constitution has 3 main purposes. First, it sets out the ideals that the people bound by the constitution believe and share. Second, it establishes the basic structure of government and defines the government’s powers and duties. Third, it provides supreme law for the country. Our constitution, penned in 1787, is the oldest written constitution still in use today. All governments have a constitution in the sense that they have a plan for organizing and operating the government. Some countries have unwritten constitutions that are based on hundreds of years of legislative acts, court decisions, and customs. Great Britain has such a system.

The term constitutional government refers to a government in which a constitution has authority to place clearly recognized limits on the power of those who govern. This means a constitutional government is a limited government. We want our government to be limited in some areas. We don’t want the military to be able to barge into our homes and demand to be fed. The Constitution protects us from this situation. China is an example of a nation that is not a constitutional government. They have a constitution but there are few limits (very interesting article) on the government power.
Constitutions are important but they are incomplete guides to how the government operates day to day. This is true for 2 reasons. First, no written constitution can possibly spell out all the laws, customs, and ideas that grow in a nation. Congress makes thousands of laws every year but these are not added to the Constitution. They operate as separated documents but the Constitution gives Congress the right to do this. Second, a constitution does not always reflect the actual practice of government in a nation. China has many propositions that support human rights for their citizens but they have employed a large police force to spy on people. Think of what would happen in the US if we found out we were being constantly spied on. It kind of happened a couple years ago but was nowhere near China’s level.
Constitutions typically provide a statement of goals. This occurs in the preamble of the US Constitution. Some teachers make you memorize it. A constitution will also lay out the basic framework for government. This occurs in the main body of the document. Most also describe how to change or amend the constitution. The main body is typically divided into articles or sections. The US Constitution has 7 articles containing 21 total sections. The French Constitution has 89 articles grouped under 16 titles. Seems excessive to me but they had a more difficult time overthrowing their government and maybe they thought it was better to be safe than sorry. Constitutions must also be the highest law in the land. If there are other documents with more power, the country will have too many voices and will be unstable.
What is the basic structure of the Constitution?

We covered this briefly in the previous paragraphs but the structure of the Constitution is fairly important. The Founders started with a preamble where they stated their beliefs and reasons for writing the document. The reasons are summarized in one statement:

“To form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.”

-The Preamble

You’ll notice it does not say THE perfect union. It is a more perfect union. As in better than what we had before. The Constitution does not promise that everyone will be happy and love the country but it does acknowledge that the Founders did the best they could.
The Constitution contains 7 articles which cover general topics:

  • Article I establishes the legislative branch.

  • Article II creates the executive branch.

  • Article III establishes the Supreme Court.

  • Article IV explains the relationship of states to one another and the national government.

  • Article V spells out how the Constitution can be amended.

  • Article VI contains the supremacy clause declaring that the national government provides the supreme law of the land.

  • Article VII addresses ratification.

Here’s a little explanation for a few of those articles. Article III establishes the Supreme Court and outline jurisdiction for court cases. Jurisdiction is the authority of a court to rule on certain cases. Section 3 defines treason against the US. This is the only crime that is mentioned in the Constitution. Article IV requires that states give citizens of other states the same rights it guarantees to its own citizens. That’s why you don’t have to be afraid to travel to other states. Article VI contains the supremacy clause. When it all boils down, supremacy is the biggest difference between the Constitution and the Articles of Confederation. Congress passes laws that states cannot go against. If Congress says that each state must receive a teddy bear once a month, states can’t say no. They have to provide a teddy bear. Now the teddy bear might vary state to state but it must be provided. The Articles had no such authority.

The final portion of the Constitution is the amendments. Amendments change something in the Constitution. They aren’t just tacked on because it looks good. They serve an important purpose. Amendments allow the government to change as society changes. We’ll cover amendments more in sections 2 and 3.
What are the major principles outlined in the Constitution?

The Constitution rests on 6 major principles that continue to influence the character of American government. The first principle we’ll cover is popular sovereignty. Popular sovereignty is rule by the people. The US government is based on the consent of the governed. That means we are ruled by the people who elect our government officials. In essence, you are partly in charge of the country if you vote. But you have to vote and we’ve already talked about how nobody does that.

The second principle is federalism. The terms “federalism” and “federal system” describe the basic structure of our government. Under federalism power is divided between the states and the national government. Why did the Founders choose this route? Seems like a lot of government and people that don’t really do anything right? Well at the time there wasn’t another choice. A lack of government hadn’t worked with the Articles of Confederation. The unitary system of a king scared the citizens of the new nation. Federalism seemed like a good way to split the difference. States have power to make decisions at a local level that affect its own citizens, not another states’ citizens. The national government gives a guide for laws. States can give more rights but cannot give less.
The third principle is separation of powers. The Constitution divides the powers of government between the legislative, executive, and judicial branches. Under separation of powers, each branch has its responsibilities. In this way, in the Founders’ view, no branch would gain too much power. Going hand in hand with separation of powers is the fourth principle- checks and balances. With checks and balances each branch of government exercises some control over the others. Refer to the chart for examples of possible checks and balances.

The fifth principle covered is judicial review. Judicial review is the power of the courts to declare laws and actions of local, state, or national governments invalid if they violate the Constitution. All federal (national) courts have this power but the Supreme Court is the final authority. Interestingly, the Constitution does not give the courts this right- they gave it to themselves. Seriously, democracy is awesome. The final principle outlined in the Constitution is limited government. We have discussed limited government already. The Constitution safeguards the nation against abuse of power. In 1974 when Richard Nixon resigned the presidency (the only president to do so) incoming president Gerald Ford said:

“My fellow Americans, our long national nightmare is over. Our Constitution works. Our great Republic is a government of laws and not of men. Here the people rule.”
He is saying that no matter who you are, even the president of the US must obey the laws.

Section 2

Amending the Constitution

Essential Questions

  • What is the main reason for amending the Constitution?

  • What are the primary ways that informal changes are made to the constitution?

  • What is the difference between judicial restraint and judicial activism?

What is the main reason for amending the Constitution?

The authors of the Constitution knew that in order for a document to stand the test the time, it needed to be able to be altered. The US Constitution has plans for such alterations. An amendment is a way to change the Constitution. This change is why people say the Constitution is a “living” document. It has the ability to change to reflect the times. For example, for many years in colonial America and later in the early days of the nation, some states practiced slavery. Slavery was abolished by the 13th Amendment to the Constitution. That is slavery was allowed in the original document, but the document was changed to get rid of something that society no longer found desirable. You might say that plenty of farmers in the south found slavery desirable, but those guys lost so their opinion was overshadowed. In a war if you win, you get what you want. That’s just the way it works.

There are a few different ways to propose amendments to the Constitution. One method is for two-thirds of each house of Congress to vote for it. To this point, this is the only method that has been used to propose amendments. Dozens of proposed amendments are introduced every year but they are rarely passed. The other method is by national convention called by Congress at the request of two-thirds of the states. This method has never been used. The convention method is controversial as there is little oversight. The convention could decide laws on almost any subject.
After an amendment is proposed Congress can approve it in one of two ways. One is for legislatures in three-fourths of states to approve it. That is each state must vote independently to determine if the amendment is something they want. If ¾ like it, it passes. The other is for states to call a special ratifying convention. The amendment becomes law if ¾ of the conventions approve it. Conventions only ratified one amendment- the 21st amendment. The 21st amendment simply repealed the 18th amendment (prohibition). Apparently the founders really like conventions. They had more meaning in the 18th century. Today we see them as a waste of time and tax-payer money. It is up to Congress to decide how long states have to ratify an amendment. In modern times the limit has usually been set at 7 years.
What are the primary ways that informal changes are made to the constitution?

Informal changes to the Constitution do not involve changing the actual language of the document. Rather, informal changes are made to make the Constitution more workable and to better define the day to day functions of the government. These informal changes can be made through law or practice and can apply to the President, Supreme Court, or legislature.

Congress has passed many laws in the past and will continue to pass laws in the future that enlarge or clarify Constitutional provisions. The Founders gave Congress this power in the Constitution. Over the years Congress has given the executive greater powers. This is important because the executive was created to be weak. Remember colonists didn’t trust powerful people and didn’t want the US to fall victim to a king abusing his power. Congress has also created a Supreme Court and given them the ability to work on laws. Congress has also expanded on their right to tax and spend funds. None of these changes required an amendment. Congress simply said in essence, “this is what the Constitution allows us to do so we’re going to do it.”
Congress has also shaped the Constitution by the way it uses its powers. Congress is allowed to impeach- or accuse federal officials of wrongdoing- officials for treason, bribery, and high crimes and misdemeanors. Treason and bribery are easy to grasp but what about high crimes and misdemeanors? What crime is so bad that it justifies getting rid of a President? Congress has investigate more than 60 people on impeachment charges including 3 Presidents- Andrew Johnson, Richard Nixon, and Bill Clinton.
Informal changes have been applied to the presidency in a few ways. Most notably, Congress decided the procedures for presidential succession- or replacing a dead or incapacitated president. We know what happens now but the Constitution did not spell out what happened when a President died in office. When William Henry Harrison, our 9th President, died after a month in office people freaked out. Naturally they were upset that the guy they just elected by majority was dead but they also didn’t know who the next president would be. The Constitution stated that the vice president would assume the duties of president. But did vice president John Tyler actually become the president or was he an interim placeholder before the next election? Or did they need to call a special election? Tyler ultimately took the oath of office which set a precedent for future successions. Not until 1967 with the passage of the 25th amendment was succession officially ruled on.
What is the difference between judicial restraint and judicial activism?

Court decisions have also given some informal changes to the Constitution. Judicial Review is the most important change. People continue to disagree over how the Courts should wield their power. Some say the courts should avoid taking initiative on social and political questions, a philosophy known as judicial restraint. Others say the Courts should play a role in shaping national policies with a philosophy called judicial activism. Under judicial restraint, the Supreme Court would simply leave the policy making to others by refusing to take on controversial cases. With judicial activism, the Supreme Court would make decision that dealt with topics that could change the culture of the US. Judicial activism was used during the Civil Rights battles of the 1960s where the Supreme Court rendered a number of decisions that dealt with advancing rights of minorities.

The biggest thing you need to take away from the amendment process is this: we have 27 amendments. That seems like a lot but consider this- the Constitution was signed in 1787 and 10 amendments were approved right off the bat. That means we have basically had 17 amendments in 200 years. What this tells me is the Constitution is a solid document with a number of good ideas. If the Constitution sucked there would be 1,000 amendments or we would have gotten rid of it completely. The amendment process is difficult and changes are hard to make. But if we could change things in the Constitution very easily our nation would look nothing like it does today. We would have moved on from a bunch of good plans before really giving them a chance.

Section 3

The Amendments

Essential Questions

  • How do the amendments reflect changes in society’s perception of rights under the Constitution?

How do the amendments reflect changes in society’s perception of rights under the Constitution?

This section is going to be very short. I’m only going to give you a basic rundown of the amendments. The main reason for this is you have seen all of this before. We’ll talk about each amendment in class. As you’re reading over these amendments pay close attention to how they change over time.

The Bill of Rights (1791):

The First Amendment- establishes freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right to petition the government.
The Second Amendment- gives citizens the right to keep and bear arms.
The Third Amendment- prohibits the government from forcing people to provide shelter for soldiers in their homes
The Fourth Amendment- protects citizens’ rights to privacy by mandating that authorities have a specific reason to search homes. Prevents “unreasonable searches and seizures.”
The Fifth Amendment- No one can be tried for a serious crime unless a grand jury has decided there is enough evidence to justify a trial. A person found innocent of a crime may not be tried again for the same offense (double jeopardy). No one may be forced to testify against himself or herself (pleading the fifth). Gives the government the right to eminent domain- the power of government to take private property for public use such as highways.
The Sixth Amendment- Protects the right to a speedy trial, a trial by jury of one’s peers, right to know the charges against you, right to hear and question all witnesses against them, the right to compel witnesses to testify, and the right to be defended by a lawyer.
The Seventh Amendment- provides the right to a jury trial in federal courts to settle all disputes about property worth more than $20.
The Eighth Amendment- Prohibits excessive bail- money or property that the accused deposits with the court to gain release from jail until the trial begins. Prevents judges from issuing an excessive fine to people convicted of crimes. Bans “cruel and unusual punishment.”
The Ninth Amendment- Rights not spelled out in the Constitution are “retained by the people.”
The Tenth Amendment- Reaffirmed the relationship between the national and state governments.
The Bill of Rights are the first 10 amendments. There are 17 more that we will discuss now.
The Eleventh Amendment (1795)- prohibits states from being sued in federal court by citizens of another state or another nation.
The Twelfth Amendment (1804)-Corrects a problem that arose when electing presidents by placing the president and vice president on separate ballots (before the person who finished second in the presidential voting would be vice president).
The Civil War Amendments are amendments 13-15. These were added in the years shortly following the Civil War.
The Amendment Thirteen (1865)- Outlaws slavery
The Amendment Fourteen (1868)- All citizens have equal rights and protections under the law. Also prohibits states from depriving any person of life, liberty, or property without “due process of law.”
The Fifteenth Amendment (1870)- gives African-American men the right to vote.
The Sixteenth Amendment (1913)- allows Congress to levy an income tax
The Seventeenth Amendment (1913)- states that people, instead of state legislatures, elect senators to US Congress.
The Eighteenth Amendment (1919)- prohibits the manufacture, sale, or transportation of alcoholic beverages.
The Nineteenth Amendment (1920)- Gives women the right to vote (universal suffrage)
The Twentieth Amendment (1933)- sets new dates for Congress to begin its term and for the inauguration of the president and vice president.
The Twenty-first Amendment (1933)- repeals the eighteenth amendment.
The Twenty-second Amendment (1951)- limits the president to a maximum of two elected terms.
The Twenty-third Amendment (1961)- allows citizens living in Washington, D.C. to vote for president and vice president.
Twenty-fourth Amendment (1964)- prohibits poll taxes- taxes paid in order to vote- in federal elections
Twenty-fifth Amendment (1967)- established a process for the vice president to take over the leadership of the nation when a president is disabled.
Twenty-sixth Amendment (1971)- lowers the voting age in both federal and state elections to 18
Twenty-seventh Amendment (1992)- makes congressional pay raises effective during the term following their passage.

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