Walukiewicz

Key Terms:

Anti-Federalists; bill of attainder; Bill of Rights; checks and balances; common law; distribution; due process clause; elastic clause; equal protection clause; Equal Rights Amendment (ERA); ex post facto law; federalism; flexible construction; Great Compromise (Connecticut Compromise); judicial review; line-item veto; Magna Carta; Mayflower Compact; natural rights; New Jersey Plan; participation; penetration; ratification; separation of powers; shared powers; supremacy clause; The Federalist Papers; Virginia Plan; War Powers Resolution; writ of habeas corpus

Rosenberger v. University of Virginia; Texas v. Johnson; Roe v. Wade; Brown v. Board of Education of Topeka; Marbury v. Madison; McCulloch v. Maryland


I.        Introduction to the importance of the Constitution

A.      It is a revered national document and symbol like the Declaration of Independence.

B.      It is sealed in a glass-covered vault to shield it from disintegration.

C.      The principles in action are not so easily shielded from destructive influences.

D.      The document is more than a symbol, it is written rules on the structure of governance and the "Supreme Law of the Land."

E.       It is the first written document of its type in the world. Some wonder whether it has been effective in handling urban problems over the last few decades.

F.       In the mid-1990s, conservatives considered a balanced budget more important than continuing full funding of a broad range of social programs.

G.       Both Watergate and Iran-contra scandals in the 1970s and 1980s demonstrated problems with presidential power under the system.

H.       Chapter theme: Is the constitutional framework flexible enough to meet the needs of today's complex society?

1.      Can needed change take place fast enough?

2.      Were desegregation and women's right to vote too slow in coming?

3.    Who were the framers of the Constitution? What were their motives? What bargains did they strike?

4.    Why do we have a federal system?

5.    Where did judicial review come from, and how does the Constitution affect the lives of people today?

II.      The Constitution Today

A.       Controversial Supreme Court cases show that the Constitution is constantly being reexamined to meet today's concerns.

1.      Rosenberger case about state funding for a student religious magazine (1995)

a)    Wide Awake, a Christian magazine run by students, wants state funds like those given to other student organizations.

b)       Two constitutional issues involved :free speech/press expression and no             establishment clause in First Amendment.

c)       Court finds 5-4: University must provide the money or chill free expression and hurt inquiry in an institution of higher learning.

2.        Texas v. Johnson case over anti-flag burning law (1990)

a)        Constitutional question (also free expression)

b)    Despite heightened public awareness of the flag as a symbol in the Reagan- Bush years, the court ruled 5-4 to overturn the Texas law as an infringement of the First Amendment.

3.        Brown v. the Board of Education(1954): plaintiff claims separate, black schools in the district are unconstitutional, and the court agrees that they violate equal protection under the law.

4.       Roe v. Wade (1973) asks whether state regulations of abortion are constitutional.Court finds that restrictions (at least in the first three months) are unconstitutionaland later restrictions are suspect. It has revisited the case often to clarify what restrictions it would accept.

5.     Each of these cases show that the meaning of the document is under constant scrutiny.

III.     We Hold These Truths...

A.      Continental Congresses discuss grievances against England.

B.       Richard Henry Lee of Virginia proposes that they break ties to the crown.

1.      Committee assigned to write a Declaration of Independence.

2.      Philosophical basis: writings of people like Tom Paine and Common Sense

3.    Lockean view of human rights influences Thomas Jefferson, who penned the Declaration. Locke's views are generally accepted by leaders of the day.

4.     Document is approved on July Fourth. It could be grounds for treason. Harrison tells Gerry that they could hang for it.

C.   Lockean views: people are born free, possess natural rights, existed in a state of nature before government existed. His language shows up in Declaration.

1.      People contracted among themselves to form a government.

2.      No one should be subjected to political power of another without his own consent; government is limited by consent of the governed.

3.   Clearly these were radical ideas around the world, with the accepted theory being the divine right of kings.

D.      The English Heritage

1.    Ironically, the colonists broke from England because they didn't feel they were receiving their rights as Englishmen.

2.    British history and common law (cumulative body of law based on custom and judicial decision, rather than statutory law) were the foundations for much of what evolved in the colonies during this time period.

a) Magna Carta: British nobles told the king his rule had limits that they would set (1215).
b) Habeas Corpus Act and the British Billof Rights of the 1670s and 1680s
c) Common law and the writings of Cooke and Blackstone

3. The heritage was British, but the new institutions were more peculiarly American.

E. The Colonial Experience

1. Puritans pen the Mayflower Compactat Plymouth, Mass.

a) The forty-one signers combine themselves into "a civil body politick."

b) People set up their own civil law, base it on consent of the people, and create their own civil administration.

2. Jamestown had the first elected assembly. The first formal written constitution was written as the Fundamental Orders of Connecticut. The Massachusetts Body of Liberties included trial by jury and due process.

3. The Puritan Calvinist work ethic and strict social codes were a cornerstone. Some wonder if their legacy makes people today feel uncomfortable with the more liberal social mores.

4. Governmental structures in the colonial era had some effect on how the colonists might govern themselves someday.

a) All colonies had written charters.

b) Royal colonies were the most common, and were controlled by governors appointed by the crown.

c) Proprietary colonies belonged to individuals given authority by the king. They appointed governors with the approval of the king.

d) Two charter colonies, Rhode Island and Connecticut, each had genuine self-government with an elected legislature choosing the governor.

e) All but one of the colonial legislatures was bicameral.

F. The Paradox of Colonial Democracy

1. A number of examples show that democracy in the modem sense did not exist in the colonies.

a) Every colony had property qualifications to vote.

b) Women and blacks were not able to vote.

c) Black slaves made up almost one-third of the population. A large number of whites were indentured servants.

2. They left Britain for religious toleration, but nine of the thirteen had an officially established state church.

3. The colonial governments also provided institutional models for later:

a) Constitutional government via written charters

b) Bicameral legislatures

c) Elections

d)  Right of judicial appeal to London, foreshadowing the Supreme Court as arbiter among the states

e) Local autonomy or power-sharing with London, a precursor to the federal system.

f) A Growing Sense of Injury

1. Colonists were not respected by the crown, but seen as economic support.

2. A number of factors encouraged conflict and later revolt:

a) Colonists were expected to pay for British military protection.

b) Colonists subordinated their own economic desires to the needs of London's economy.

c) They had no representation in parliament ("Taxation without Representation").

d) Restrictive trade laws and high tariffs encouraged discontent.

3. Committees of Correspondence to unite the colonies began. By 1774, they evolved into the First Continental Congress.

a) In June, Virginian Richard Henry Lee offered a resolution of independence.

b) Committees were assignedto create a government and to write a declaration of independence. The committee later gave the job to ThomasJefferson.

c)Articles of Confederation Constitution was approved by the Second Continental Congress in 1777, and was ratified by 1781.

H.        The Articles of Confederation

1. Not a strong national union,but calls itself in Article III, a "firm league of friendship."

2. One branch system witha unicameral legislature and no executive branch or courts.

a) Each state was equally represented with one vote.

b) Governance by committees of Congress provides a weak arrangement.

c) Important decisions took vote of nine of thirteen states, which was difficult to get.

d) Could ask the state for money, but not enforce its requests.

e) Had war-making powers and coordination over state militia as an army. Congress had no power to tax citizens or regulate commerce between the states.

3. 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 poor attended and led to a call for a Philadelphia Convention.

4. Severe depression in 1786 led to Shays's Rebellion, which began in Massachusetts over farm foreclosures. This made the elites worry about rule by the mob, paving the way for stronger replacement for the flawed Articles system.

IV.     The Philadelphia Convention

A. Articles Congress agrees to call for a convention to meet at Philadelphia to revise the Articles.

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

1. Washington, hero of the RevolutionaryWar, presided over the convention, adding instant prestige.

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

3. Events.

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

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

C. The Setting of the Convention:

1. Hot stuffy Independence Hall in Philadelphia

2. Meetings are held in secret, so that delegates are free to debate all options.

3. Two weeks after the convention opens on May 29, Virginia governor Edmund Randolph proposes a new system, not just a revision of the Articles as authorized.

D. Plans proposed and compromises reached

1. Randolph's Virginia Plan, under which the large population states would have dominated the union,called for:

a) A bicameral legislature: lower basedon population and chosen by the people, and the upper selected by the lower.

b) Single executive chosen by the legislature, which large states already controlled.

c) A national judiciary selected by the Congress.

2. William Paterson of New Jersey proposed a small population state plan.

a) States should keep their equal representationin the legislature, as under the Articles of Confederation.

b) Multiple executives to be elected by theCongress

c) Revised Articles Congress would have two powers that were lacking at the time:power to tax effectively and regulate commerce between the states.

3. The "Great Compromise" or the "Connecticut Compromise," called for by Roger Sherman, overcame the deadlock that almost wrecked the convention.

a) House of Representatives (lower house) apportioned according to population large state view)

b) Senate (upper house) - equal representationas under the old Articles Congress (small state view)

4. Other compromises

a) North/South conflict over slavery not just philosophical

b) South had concerns over slavery and the region's dependence on its continuation.(Pinckney warns that there will be no Southern membership in the Union if slavery is abolished.)

c) South concerned that the North might tax exports. (The South's livelihood depended on export of agricultural products.)

5. Three-Fifths Compromise and related agreements

a) For representation and taxation apportionment, slaves were counted as three-fifths of a free person.

b) The slave trade was to end in 1808, leaving the institution of slavery intact.

6. Gouverneur Morris, James Wilson,and the Committee on Style did the final polishing and appended the now famous "We the people" preamble, which recast the"league of friendship" of 13 states into the United States of America.

IV. The document and its implications

A. This document of accommodation still created a strong national government where none had existed before, while providing a framework for system structures.

B. It created a federal system of power-sharing between the nationa government and the states, but made it clear in Article VI that national law would be supreme while states retained broad powers in their own spheres.

C. Separation of powers at the national level

1. Three branches (legislative, executive, and judicial) replaced the single legislature under the Articles, as Montesquieu suggested in his The Spirit of the Laws.

2. This separation of powers had checks and balances in it so that no one branch would become too powerful.

3. Powers were shared and duties overlapped, as in the process of legislating.

4. Judicial review, though not in the Constitution itself, came to be recognized as a way for the courts to check the actions of the other two branches. According to Chief JusticeJohn Marshall in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the Constitution means."

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

1. Abolition of slavery left for another time.

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

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

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

E. Motives of the Framers

1. Historian Charles Beard's study concluded that the Founding Fathers wanted a strong national government to protect their own financial interests.

2. Forrest MacDonald and RobertBrown, among others, have disagreed, saying the thesis is unprovable and unfairly impugns the motives of the astute framers.

3. Some suggest that the strong national government was to be a hedge against rule by mob that majority rule and popular democracy (a pejorative term to many of the founders) 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.

d) Electors choose the president, not the voters.

4. Although it started with many non-democratic features, it laid an institutional set of structures conducive to evolving democracy.

F. The Fight over Ratification

1. Took two and a half years to get the nine states required to ratify it.

2. Articles of Confederation had required unanimous approval to revise. It was not possible to use that mechanism because unanimity was virtually impossible.

3. Approval to be done by "special conventions" and not state legislatures because the latter might not approve enhancing national power. Popular conventions also added legitimacy.

4. Federalists versus Anti-Federalists

a) Antifederalist was the name given to opponents of the Constitution who 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.

b) The Federalists supported the new document, fearing that if it did not pass, the old system would yield anarchy.

c) Hamilton, Madison, and Jay published more than eighty letters to the editor under the pseudonym Publius (complied today as The Federalist) in defense of key parts of the Constitution.

d) In some states, the Constitution was ratified "by a whisker."

V. America: A Case Study in NationBuilding

A. Seymour M. Lipset calls the United States the first "new nation," since it was the first colony to successfully revolt.

B. Words in the Declarationof Independence were widely quoted in Europe at the time. The document is still a conceptual model in nascent democracies around the world.

C. America went through growing pains, as do developing countries or others seeking democratic institutions.

D. Political freedoms, democracy,and security are hard to reconcile, as we learned early from the Alien and Sedition Acts of 1798, which made it a crime for individuals to publicly criticize administration policies.

E. Researcher Lucian Pye believes nation building survived a series of crises:

1. Identity crisis, in which citizens view themselves as a part of a common political system.(Colonists saw themselves as Virginians, New Yorkers, etc.)

2. Integration stage, in which people learn to interact with each another. (The Committees of Correspondence served this role.)

3. Penetration stage, in which national governments act on all layers of society in implementing public policy. (This has increased markedly since 1789. Example:   federal income tax)

4. Participation, in which people are brought into the political process. (For example:various efforts to broaden voting rights.)

5. Distribution describes government's control over the outputs of the political process. The rewards of the system and who gets them are at the heart of any political system.

VI. 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.

1.The principle of the Constitution's loose or flexible construction was the opinion's central thesis.

2. 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, nvestigation, and administration.

3. Beyond interpretation and application, the Constitution has changed twenty-seven times via amendment.

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.
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.

VII. The Amendment Process

A. Two methods for proposal were provided for:

1. Approval by two-thirds of each house of Congress.

2. National convention called by Congress at the request of the legislatures in two-thirds of the states.

3. No amendment has ever been proposed by the convention method.

B. Proposals must be ratified by one of these methods:

1. Approval by the legislatures in three-fourths of the states.

2. Special ratifying conventions in three-fourths of the states.

3. Only one - the Twenty-first Amendment - was ratified by state conventions. The rest were ratified by state legislatures.

VIII. The Amendments

A. Three historical time periods for amendments:

1. First twelve between 1791and 1804

2. Next three after the CivilWar

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

B. The Bill of Rights (First ten amendments providing protection from federal power.)

1.The first four dealt with:

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

b) Bearing arms (Second)

c) No troops quartered in homes (Third)

d) Forbids unreasonable search and seizures (Fourth)

2. The next four deal with:

a) The rights of the accused, including double jeopardy protection, right to avoid self- incrimination (Fifth)

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

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

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

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

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

C. Eleventh through Twenty-seventh:

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

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

3. Thirteenth through Fifteenth:

a) Frees the slaves (Thirteenth)

b) 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)

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

4. Sixteenth through Twenty-first:

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

b) Senators to be chosen directly by voters, instead of by state legislatures (Seventeenth).

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

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

e) 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).

5. Twenty-second through Twenty-fourth:

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

b) 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).

c) 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).

6. 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.

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

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

IX. Other proposed amendments

A. In 1995

1. Two from the GOP "Contract with America":

a) Requiring that the federal budget be balanced each year. This passed in the House and failed in the Senate, despite GOP majorities there.

b) Congressional terms limited to twelve years for both House and Senate. This failed. The Supreme Court also denied states the right to limit terms short of a constitutional amendment.

2. An amendment to outlaw desecration of the American flag. This was aimed at negating a 1989 Supreme Court ruling in Texas v. JohnsoAmendment effort failed.

3. An amendment to give crime victims greater rights throughout the criminal justice process.

B. In 1978 an amendment was proposedto treat Washington, D.C., as a state, giving it senators and a representative. (This was sent to the states, but was not ratified within the required seven years.)

C. The Equal Rights Amendment (ERA) was proposed in 1972 and sent to the states for approval. At the height of its popularity, it got the approval of 35 states - three short of  what was required. The approval term was extended by Congress to ten years, but the amendment failed.

D. In 1983 an effort to re-propose the ERA failed.

E. Other proposed amendments have been offered: prayer in public schools, to vacate Roev. Wade, and to institute an item veto for the president.

F. In 1996, Congress legislated a lineitem veto for the president. This decision, signed by President Clinton, was declared unconstitutional by the United States Supreme Court in June, 1998.