The Supreme Court
& The Constitution
 The Living Constitution
 The Road to the Bill of Rights
 The Amendment Process
 The Supreme Court & the Amendment Process
The Living Constitution
In the U.S. the ultimate keeper
of the constitutional conscience
is the
a.
b.
c.
d.
president
Congress
Supreme Court
politicians
The major tool of the courts in
checking the power of other
government branches has been
a.
b.
c.
d.
impeachment
habeas corpus
judicial review
common law
The court case that established
the practice of judicial review
was
a.
b.
c.
d.
Marbury v. Madison
McCulloch v. Maryland
Lochner v. New York
Printz v. United States
Law that are higher than human
law is referred to as
a.
b.
c.
d.
statutory law
universal law
natural law
constitutional law
The Bill of Rights refers to the
first ____ amendments to the
U.S. Constitution.
a.
b.
c.
d.
two
ten
seven
twelve
The Road to
the Bill of Rights
The Articles of Confederation: The
First Constitution

Provisions of the Articles
A
loose confederation of independent states
 Weak central government

Shortcomings of the Articles
 Indebtedness
and inability to finance its
activities
 Inability to defend American interests in
foreign affairs
 Commercial warfare among the states
Convening the Constitutional
Convention


Consensus that a new Constitution was
desperately needed
Yet, growing concern by influential
citizens about democratizing and
egalitarian tendencies
Why the Founders Were Worried

An Excess of Democracy in the States
In the mid-1780s, popular conventions were
established to monitor and control the actions of state
legislators.
 The Pennsylvania state constitution replaced the
property qualifications as a requirement to vote with
a very small tax.


The Threat to Property Rights in the States

Popular opinion
Stay acts

Shay’s Rebellion

The Constitutional Convention


By 1787, most of America’s leaders were
convinced that the new nation was in great danger
of failing.
Delegates to the Constitutional Convention
 Wealthy
men, well-educated
 Young, but with broad experience in American politics
 Familiar with the great works of Western philosophy
and political science
Debate Over the Intentions of the
Framers


Historian Charles Beard: The framers were
engaged in a conspiracy to protect their personal
economic interests.
Although the reality is surely more complex,
broad economic and social-class motives were
likely important.
Consensus Among the 55 Delegates





Agreement that a new constitution must replace the
the Articles of Confederation
Support for a substantially strengthened national
government
Concern that a strong national government is
potentially tyrannical
Belief in a republican form of government based on
popular consent
Desire to insulate government from public opinion
and popular democracy
The Changing Constitution, Democracy,
and American Politics


The Constitution is the basic rule book for the
game of American politics.
Constitutional rules
Apportion power and responsibility among governmental
branches
 Define the fundamental nature of relationships between
governmental institutions
 Specify how individuals are to be selected for office
 Tell how the rules themselves may be changed

The Struggle to Ratify the
Constitution


Delegates had been instructed to propose
alterations to the Articles of Confederation, but
they wrote an entirely new Constitution instead.
Ratification was a difficult process.
— favored ratification
 Anti-Federalists — opposed ratification
 Federalists

The Compromise with Ratification
Ratification of the U.S. Constitution
State
Delaware
Pennsylvania
New Jersey
Georgia
Connecticut
Massachusetts
Maryland
South Carolina
New Hampshire
Virginia
New York
North Carolina
Rhode Island
Date
December 7, 1787
December 12, 1787
December 18, 1787
January 2, 1788
January 9, 1788
February 6, 1788
April 28, 1788
May 23, 1788
June 21, 1788
June 25, 1788
July 26, 1788
November 21, 1789
May 29, 1790
Vote
30 - 0
46 - 23
38 - 0
26 - 0
128 - 0
187 - 168 *
63 - 11
149 - 73 *
57 - 46 *
89 - 79 *
30 - 27 *
194 - 77 *
34 - 32 *
Proposed Amendments not passed
with the Bill of Rights

Article I – Apportionment


After the first enumeration required by the first article of the
Constitution, there shall be one representative for every thirty
thousand, until the number shall amount to one hundred, after
which the proportion shall be so regulated by Congress, that
there shall be not less than one hundred representatives, nor less
than one representative for every forty thousand persons, until
the number of representatives shall amount to two hundred; after
which the proportion shall be so regulated by Congress, that
there shall be not less than two hundred representatives, nor
more than one representative for every fifty thousand persons.
Article II – Congressional pay raises

No law varying the compensation for the services of the Senators
and Representatives, shall take effect, until an election of
Representatives shall have intervened.
(ratified in 1992 as Twenty-seventh Amendment)
The Amendment
Process
Proposing Amendments
Ratifying Amendments
The Time for Ratification of the 27 Amendments to the Constitution
Unsuccessful Amendment Proposals


Over 10,000 considered
33 were sent to States for ratification, including
 Child
labor amendment in 1924
 Equal rights amendment in 1972

Others in consideration include
A
balanced budget amendment
 Term limits for House of Reps. And Senators
 Presidential Line item veto power
 Prohibit flag desecration
The Supreme Court &
The Amendment Process
Instigator and Interpreter

Five Amendments that overturned
Supreme Court Decisions
 11th
overturned Chisholm v. Georgia (1793)
 13th overturned Scott v. Sandford (1857)
 14th overturned Scott v. Sandford (1857)
 16th overturned Pollock v. Farmers’ Loan &
Trust Co. (1895)
 26th overturned Oregon v. Mitchell (1970)
Instigator and Interpreter

Proposals to overturn Supreme Court
Decisions
A
human life amendment to overturn Roe v.
Wade (1973)
 A school prayer amendment to overturn Engel
v. Vitale (1962) & School District of Abington
Township v. Schempp (1963)
 A flag desecration amendment to overturn
Texas v. Johnson (1989)
 A term limit amendment to overturn U.S.
Term Limits v. Thornton (1994)
Court’s Interpretation of Article V


Coleman v. Miller (1939)
Now v. Idaho (1982)
Other issue: Constitutional Conventions
Are delegates limited to the amendment
under consideration? OR
Are they free to deliberate on any part of
the Constitution?
Coleman v. Miller
Advocates
Docket: 7
Citation: 307 U.S. 433
(1939)
Petitioner: Coleman
Respondent: Miller
Abstract
Oral Argument: April 17-18, 1939
Decision: Monday, June 5, 1939
Issues: the "political question doctrine"
Categories: Article V of the Constitution, Judicial Review
Facts of the Case





In June, 1924, the Congress proposed an amendment to
the Constitution, known as the Child Labor Amendment.
In January, 1925, the Legislature of Kansas adopted a
resolution rejecting the proposed amendment and a
certified copy of the resolution was sent to the Secretary
of State of the United States.
In January, 1937, a resolution was introduced in the
Senate of Kansas ratifying the proposed amendment.
When the resolution came up for consideration, there
was a 20-20 tie vote. The Lieutenant Governor, the
presiding officer of the Senate, cast the tie breaking
vote.
The resolution was later adopted by the House of
Representatives on the vote of a majority of its
members.
Question
Does the Congress of the United States—when
proposing for ratification an amendment to the United
States Constitution pursuant to Article V—have to
specify a deadline within which the state legislatures
(or conventions held in the states) must act upon the
proposed amendment?
Conclusion

All amendments to the Federal Constitution are
considered pending before the states indefinitely
unless Congress establishes a deadline within
which the states must act. Further, Congress—
not the courts—is responsible for deciding if an
amendment has been validly ratified.