Chapter 2: The Constitution = SUPREME Law of the Land (pp 26-63)
Case Name:
Issue:
Categories:
Facts of the Case:
Question:
Finding:
Texas v. Gregory Lee Johnson, 491 U.S. 397 (1989) - Rehnquist
First Amendment, protest demonstrations
criminal, First Amendment, flag desecration, freedom of speech
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means
of protest against Reagan administration policies. Johnson was tried and convicted under a Texas
law outlawing flag desecration.
Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected
under the First Amendment?
In a 5-to-4 decision, the Court held that Johnson’s burning of a flag was protected expression under
the First Amendment. The Court found that Johnson’s action fell into the category of expressive
conduct and had a distinctively political nature. The fact that an audience takes offense to certain
ideas or expression, the Court found, does not justify as prohibitions of speech.
Case Name:
United States v. Eichman, 496 U.S. 310 (1990) - Rehnquist
consolidated with United States v. Haggerty
Issue:
Categories:
Facts of the Case:
First Amendment, protest demonstrations
First Amendment, flag desecration, freedom of speech, symbolic speech
In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag
or any likeness of an American flag which may be “commonly displayed.” The law did, however,
allow proper disposal of a worn or soiled flag. Several prosecutions resulted from the Act.
Did the Act violate freedom of expression protected by the First Amendment?
In a 5-to-4 decision, the Court struck down the law because “its asserted interest is related to the
suppression of free expression and concerned with the content of such expression.”
Question:
Finding:
Case Name:
Issue:
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Facts of the Case:
Question:
Finding:
Case Name:
Categories:
Facts of the Case:
Baker v. Carr, 369 U.S. 186 (1962)
Judicial Power, Standing to Sue, Legal Injury, Judicial Power, Justiciable Question
Elections, Jurisdiction, Justiciability, Political Questions, Separation of Powers
Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the
seats for the state's General Assembly was virtually ignored. Baker's suit detailed how Tennessee's
reapportionment efforts ignored significant economic growth and population shifts within the state.
Did the Supreme Court have jurisdiction over questions of legislative apportionment?
In an opinion which explored the nature of "political questions" and the appropriateness of Court
action in them, the Court held that there were no such questions to be answered in this case and that
legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past
examples in which the Court had intervened to correct constitutional violations in matters
pertaining to state administration and the officers through whom state affairs are conducted.
Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others
raised in this case merited judicial evaluation.
Marbury v. Madison, 5 U.S. 137 (1803)
executive privilege, federalism, judicial review, jurisdiction
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as
a justice of the peace in the District of Columbia. Marbury and several others were appointed to
government posts created by Congress in the last days of John Adams's presidency, but these last-
Chapter 2 Notes
Page 2 of 14
Question:
Finding:
Case Name:
Categories:
Facts of the Case:
Question:
Finding:
I.
minute appointments were never fully finalized. The disgruntled appointees invoked an act of
Congress and sued for their jobs in the Supreme Court.
Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme
Court the place for Marbury to get the relief he requests?
Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last
issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the
legislature repugnant to the constitution is void." In other words, when the Constitution--the
nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes
the Supreme Court's power of judicial review.
U.S. Term Limits v. Thornton (a.k.a. Thornton v. Arkansas), 514 U.S. 779 (1995)
Federalism
On November 3, 1992, Arkansas voters adopted Amendment 73 to their State Constitution. The
"Term Limitation Amendment," in addition to limiting terms of elected officials within the Arkansas
state government, also provided that any person who served three or more terms as a member of the
United States House of Representatives from Arkansas would be ineligible for re-election as a US
Representative from Arkansas. Similarly, the Amendment provided that any person who served two
or more terms as a member of the United States Senate from Arkansas would be ineligible for reelection as a US Senator from Arkansas.
Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the
Constitution?
No. The Constitution prohibits States from adopting Congressional qualifications in addition to
those enumerated in the Constitution. A state congressional term limits amendment is
unconstitutional if it has the likely effect of handicapping a class of candidates and "has the sole
purpose of creating additional qualifications indirectly." Furthermore, "...allowing individual States
to craft their own congressional qualifications would erode the structure designed by the Framers to
form a 'more perfect Union.'"
Political Theorists Behind the Founding Documents (pp. 30-31)
A.
Thomas Hobbes’ (1588-1679) writing entitled Leviathan (1651) argued
1.
The first principle of human behavior was egoism, or self-interest, which is the root of all social
conflict.
2.
Man’s natural state was war, thus a strong absolute ruler was necessary to restrain man’s bestial
tendencies.
3.
Supported the need of an inherited monarchy to promote government.
B.
John Locke’s (1632-1704) writings, especially The Second Treatise of Civil Government (1689),
profoundly influenced American political leaders.
1.
Natural Rights / Equality – rights inherent in human beings, not dependent on governments,
which include life, liberty, and property.
2.
Government must be built on the consent of the governed – the people must agree on whom
their rulers will be.
3.
Limited government – (1) government must provide standing laws so people know in advance
whether their acts will be acceptable; and (2) the supreme power cannot take from any man any
part of his property without his consent.
4.
Right to Revolt – People have a right to revolt against a government that no longer has their
consent. (social contract theory)
Chapter 2 Notes
Page 3 of 14
C.
Charles Montesquieu (1689-1775) wrote The Spirit of Laws (1748)
1.
Function of Government is to maintain law and order in protecting liberty and property.
2.
Abuse of power is solved through separation of powers and checks and balances.
3.
Individuals are fearful; it is the joining of society that leads to war in search of resources.
D.
David Hume (1711-1776)
1.
The purpose of a constitution is to prevent bad government
2.
Government is not the enemy of liberty but necessary to have liberty.
3.
Government should be conducted by the many with negotiation and compromise promoting a
union and eventually establishing a republic.
E.
Jean Jacques Rousseau (1712-1778) wrote Social Contract (1762)
1.
“Man was born free, but everywhere he is in chains.”
2.
The only legitimate government is one that governs in their interest and with their consent.
3.
Government is the instrument for carrying out the people’s laws – the people are sovereign the
government is not.
Political Spectrum
Rousseau
All
Hyperpluralism
II.
Hume
Many
Pluralism
Locke
Few
Elite/Class
Hobbes
One
Absolute
They Say There’s Gonna Be a Revolution (pp 28-33)
A.
The Road to Revolution (pp. 28-29)
1.
The King and Parliament originally left almost everything except foreign policy and trade to the
discretion of individual colonial governments.
2.
Britain obtained a vast expanse of new territory in North America after the French and Indian
War (also known as the Seven Years’ War) ended in 1763.
3.
The British Parliament passed a series of taxes on the colonists to pay for the cost of defending the
territory in which the colonists were the sole beneficiary
4.
Americans resented the taxes, especially since they had no direct representation in Parliament.
5.
The colonists responded by forming the First Continental Congress (September, 1774) and sent
delegates from each colony to Philadelphia to discuss the future of relations with Britain.
B.
Declaration of Independence (pp 29-30)
1.
The Continental Congress met in almost continuous session during 1775 and 1776.
2.
In May and June of 1776, the Continental Congress began debating resolutions about
independence; after two days of debate on the wording, the Declaration of Independence (written
primarily by Thomas Jefferson) was adopted July 4.
3.
The Philosophical Basis – Using Locke’s philosophy, it established “unalienable rights” (a right
that all people in the world have that no one can take away) as the cornerstone of natural rights.
As a consequence of these rights, limited governments are formed receiving their powers from “the
consent of the governed.” The Declaration laid the foundation for American thinking about civil
rights and liberties: Any infringement on our rights is an affront on to natural law.
4.
The Grievances – In a lawyerlike dissertation, the second part of the Declaration of Independence
makes the case against Great Britain. Taxation without representation, unjust trials, quartering of
Chapter 2 Notes
Page 4 of 14
5.
C.
III.
British soldiers, abolition of colonial assemblies, and a policy of mercantilism created logic for
drastic change.
The Statement of Separation – Announcing to the world that the colonists had no choice but to
revolt, Jefferson stated that it is not only the right, but the duty of the colonists to change the
government. You should understand how risky the revolution was for the colonists. Like David
against Goliath, the outcome of the American Revolution was far from certain. England had
superior power, a navy that was supreme, and resources that could support a war effort. The
colonists, resorting to guerilla tactics and a knowledge of their land, had leadership and a desire
for freedom.
The “Conservative” Revolution (pg. 33)
1.
The Revolution was essentially a conservative movement that did not drastically alter the
colonists’ way of life.
2.
The primary goal of the Revolution was to restore rich white male colonial rights that were
already theirs as British subjects.
Geographic Distributions of Power
A.
Unitary Government – Power is held in a single, central agency.
1.
Unitary governments may create local units of government; however, the power of those local
units are determined by the central government and may be revoked at a moments notice.
2.
3.
4.
Most governments in the world are unitary in form.
Great Britain is an example – parliament is a central government that holds all the power of the
British government. They have local governments, but they solely relieve Parliament of burdens.
Don’t confuse unitary governments with “dictatorships.” Being unitary can also be democratic; i.e.,
government still gets power from the people. Being a dictatorship; however, is unitary.
Dictatorship  Unitary
IV.
but
Unitary  Dictatorship
B.
Confederate Government – The central government has limited power with the most important authority
reserved for member states.
1.
Articles of Confederation and Confederate States of America are two examples of previous
confederations that didn’t work due to their limited power.
2.
Today, the closest example is the European Union (EU); however, it is not a true confederate
government in nature. It is more of an agreement of free trade amongst the 25 member states.
C.
Federal Government – A system in which powers of government are divided between a national
government and several regional or local governments.
1.
In the United States, the national government has certain powers and the 50 states have other
powers.
a)
The division of powers was set out in the Constitution, which stands above both levels of
government, through the 10th Amendment.
b)
Federalism allows local actions in matters of local concerns and national actions in
matters of wider concern.
2.
Other countries with federal governments include: Australia, Canada, Mexico, Switzerland,
Germany, and India (list is not all inclusive).
The Government That Failed: 1776-1787 (pp. 33-36)
Chapter 2 Notes
Page 5 of 14
A.
Economic Turmoil (pg. 35)
1.
After the Revolution, James Madison observed that “the most common and durable source of
factions [special interests] has been the various and unequal division of property.”
2.
A postwar depression had left many small farmers unable to pay their debts; many were threatened
with mortgage foreclosures.
3.
State legislatures were now under the control of people more sympathetic to debtors.
4.
A few states (notably Rhode Island) adopted policies to help debtors, favoring them over creditors
– some printed paper money and passed “force acts” requiring creditors to accept the almost
worthless money.
B.
The Articles of Confederation (1781-1789): Our first Constitution (pp. 33-34)
1.
Required unanimous consent of the states to put the Articles into operation (or to amend); hence,
although Congress adopted the Articles in 1777, they did not go into effect until 1781. Maryland
was the late approving state.
2.
Established a government dominated by the states.
3.
Established a national legislature (the Continental Congress) with one house.
a)
States could send up to seven delegates or as few as two, but each state had only one vote.
b)
Maintain an army and navy (could NOT draft soldiers);
c)
Could borrow money but NO power to tax;
d)
Could NOT regulate commerce (which inhibited foreign trade and the development of a
strong national economy);
e)
All congressional decisions required a unanimous vote.
4.
NO executive (president) and NO judicial system (national court).
5.
Weak National Government prevented it from dealing with the problems that faced the new
nation.
6.
Accomplishment: It negotiated and signed the Treaty of Paris (1783) to end the Revolutionary
War.
7.
Accomplishment: It passed the Northwest Ordinance of 1787 (created a system for admitting new
states to the Union).
C.
Changes in the States (pp. 34-35)
1.
Important changes were occurring in the states, including a dramatic increase in democracy and
liberty (for white males).
a)
States adopted bills of rights to protect freedoms.
b)
States abolished religious qualifications for holding office.
c)
States liberalized requirements for voting.
2.
Expanded political participation brought a new middle class to power, which included artisans and
farmers who owned small homesteads.
3.
With expanded voting privileges, farmers and craft-workers became a decisive majority; members
of the old colonial elite saw their power shrink, and they didn’t like it.
4.
The structure of government in the states became more responsive to the people with more power
concentrated in the legislature. Legislators were considered closer to the voters than governors or
judges.
Chapter 2 Notes
Page 6 of 14
V.
D.
Shays’ Rebellion (pp. 35-36)
1.
In 1786, a small group of farmers in western Massachusetts led by Captain Daniel Shays rebelled
at losing their land to creditors.
2.
They had been given assurances during the Revolution that their land, which lay fallow because
they were away at war, would not be confiscated for unpaid debts and taxes. They were also
promised the back pay owed to them for their military service after Congress had run out of money
during the Revolution.
3.
Shays’ Rebellion was a series of armed attacks on courthouses to prevent judges from foreclosing
on farms.
4.
Wealthy interests called on the governor of Massachusetts to put down the revolt, who in-turn
called upon Congress to send the army (which they did not have).
5.
Neither Congress nor the state was able to raise a militia to stop Shays’ and his followers, thus a
privately paid force (ultimately fundraised by the governor) was assembled fueling further
dissatisfaction of the Articles and spurring the birth of the Constitution.
E.
The Aborted Annapolis Convention (pg. 36)
1.
In September 1786, a small group of continental leaders assembled at a tavern in Annapolis,
Maryland, to consider the problem of commercial conflicts that had arisen among the states.
2.
Only five states (New York, New Jersey, Delaware, Pennsylvania, and Virginia) sent delegates,
and they issued a call for a full-scale meeting of the states in Philadelphia the following May.
3.
In May 1787, the Constitutional Convention in Philadelphia began to change the United States
government.
The Madisonian Model (pp. 44-47)
A.
James Madison, who is often called “the father of the Constitution,” was perhaps the most influential
member of the Convention in translating political philosophy into governmental architecture.
B.
James Madison and his colleagues feared both majority and minority factions (Federalist #10) could
ultimately paralyze effective government.
1.
Madison believed that the distribution of wealth (Property) is the source of political conflict.
2.
He claimed that factions arise from the unequal distribution of wealth: one faction is the majority
(composed of the many who have little or no property); the other faction is the minority (composed
of the few who hold wealth).
C.
The delegates believed that either a majority or a minority faction will be tyrannical if it goes unchecked
and has too much power.
1.
Federalist No. 47 provided for the concept of Checks and Balances.
2.
Property must be protected against the tyrannical tendencies of faction.
3.
The secret of good government is ‘balanced government”: as long as no faction could seize
complete control of government, tyranny could be avoided.
D.
To prevent tyranny by the majority (the non-wealthy), Madison believed that it was essential to keep most
of the government beyond the control of the masses.
1.
Under Madison’s plan that was incorporated in the Constitution, voters’ electoral influence was
limited and mostly indirect.
2.
Only the House of Representatives was directly elected; senators and presidents were indirectly
elected, and judges were nominated by the president (modified by the Seventeenth Amendment,
which provides for direct popular election of senators).
Chapter 2 Notes
Page 7 of 14
VI.
E.
Separation of Powers & Checks and Balances (pp. 45-46)
1.
The Madisonian scheme provided for a system of separation of powers (Federalist #51) in which
each of the three branches of government would be relatively independent of the others so that no
single branch could control the others.
2.
Since power was not completely separate, each branch required the consent of the others for many
of its actions – thereby creating a system of checks and balances that reflected Madison’s goal of
setting power against power to restrain government actions.
a)
The president checks Congress by holding the veto power. The President checks the
judicial branch through appointment.
b)
Congress holds the “purse strings” of government, and the Senate has the power to
approve presidential appointments.
c)
Judicial Review (the power of courts to hold executive and congressional policies
unconstitutional) was not explicit in the Constitution, but was asserted by the Supreme
Court under John Marshall in Marbury v. Madison (1803).
d)
Since the framers thought much government activity would take place in the states,
federalism was considered an additional check on the power of the national government.
F.
The Constitutional Republic (pp. 46-47)
1.
The framers of the Constitution established a republic (a system based on the consent of the
governed in which power is exercised by representatives of the public).
2.
The system of checks and balances and separation of powers has a conservative bias because it
favors the status quo; that is, people desiring change must usually have a sizable majority rather
than a simple majority (51%).
3.
The Madisonian system encourages moderation and compromise, and retards change.
Principles of the Constitution
The Constitution is the Supreme Law of the land. It stands above the laws of the National Government and the laws of the
State Governments. It contains the six purposes of government (why our government exists as seen in the preamble) AND
sets up the guidelines for how our government is maintained.
A.
Popular Sovereignty
1.
People are the only source of governmental power.
2.
Government can govern only with the consent of the governed.
3.
Sovereign people created the Constitution and the government.
B.
Limited Government a/k/a rule of law
1.
Government may do only those things that the people have given it the power to do.
2.
The government and its officers are always subject to the law / constitutional principles; they are
never above the law.
3.
The government must be conducted according to constitutional principles (a/k/a
constitutionalism)
Chapter 2 Notes
Page 8 of 14
C.
Separation of Power
1.
The Constitution distributes the powers of the National Government among Congress (legislative
branch), the President (executive branch), and the courts (judicial branch).
a.
Congress – the lawmaking branch.
b.
The President – the law-executing, law-enforcing, law-administrating powers.
c.
The Federal Courts – interpret and apply the laws of the U.S. in cases brought before
them.
2.
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 is subject to a number of constitutional restraints by the other
branches; i.e., each branch as certain powers with which it can check the operations and balance the
power of the other two.
a.
Executive Branch checks the Judicial Branch by appointing Supreme Court Justices and
other federal judges.
b.
Executive Branch checks the Legislative Branch by vetoing legislation, calling special
sessions, recommending legislation, and appealing to the people.
c.
Legislative Branch checks the Judicial Branch by creating lower courts, removing judges
through impeachment, and the Senate’s approval or rejection of appointment of judges.
d.
Legislative Branch checks the Executive Branch by making laws, creating agencies and
programs, appropriating funds to carry out laws and programs, overriding vetoes with
two-thirds votes, removing the President through impeachment, and Senate approval of
treaties and presidential appointments.
e.
Judicial Branch checks the Executive Branch by being appointed for law and therefore
being free from executive control AND declare executive actions to be unconstitutional.
f.
Judicial Branch checks the Legislative Branch by declaring acts of Congress being
unconstitutional.
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.
E.
Judicial Review
1.
The power of the courts to decide whether government acts are constitutional
2.
Was established through the landmark case Marbury v. Madison (1803).
3.
In most cases the judiciary has supported the constitutionality of government acts; but in more
than 130 cases, the courts have found congressional acts to be unconstitutional (illegal, null and
void, of no force and effect), and they have voided thousands of acts of State and local
governments.
4.
Power of judicial review is held by all federal courts and most state courts (specifically those with
records of the proceedings).
F.
Federalism
1.
Federalism is the division of political power among the national government and 50 state
governments.
2.
United States federalism originated in American rebellion against the edicts of a distant central
government in England.
3.
Federalism is a compromise between a strict central government and a loose confederation, such as
that provided for in the Articles of Confederation.
4.
Federalism’s major strength is that it allows local action in matters of local concern, and national
action in matters of wider concern.
Chapter 2 Notes
Page 9 of 14
VII.
VIII.
Making A Constitution: The Philadelphia Convention a.k.a Constitutional Convention (pp. 36-39)
A.
Delegates were given specific instructions to meet “for the sole and express purpose of revising the Articles
of Confederation.”
1.
Amending the Articles was not feasible because it required the unanimous consent of the states.
2.
Twelve states sent representatives; Rhode Island refused to participate.
3.
The 55 delegates ignored their instructions and began writing the U.S. Constitution (the
supreme law of the land).
B.
Gentlemen in Philadelphia (pg. 36)
1.
A select group of economic and political notables.
2.
Men of wealth; many were college graduates.
3.
Most were coastal residents; a significant number were urbanites.
C.
The Cincinnati
1.
As the delegates gathered to change the government, a group of disgruntled veteran officers also
met in Philadelphia calling themselves “the Cincinnati” (after a public-minded Roman hero).
2.
The veterans hoped that George Washington would join them and take control of the
government.
3.
Washington’s refusal to attend the meeting, let along lead a rebellion carried a lot of influence
thereby legitimizing the Constitutional Convention and delegitimizing splinter groups, like “the
Cincinnati”.
D.
Philosophy into Action (pp. 36-39)
1.
Although very different philosophical views were represented, the group agreed on questions of
human nature, the causes of political conflict, and the object and nature of a republican
government.
2.
Because, as Hamilton noted, “Men love Power,” the delegates were united in their belief that
people were self-interested and that government should play a key role in checking and containing
the natural self-interest of the people.
3.
Jefferson’s Handiwork: the American Creed
a)
There are a number of close parallels between Locke’s thoughts and Jefferson’s language
in the Declaration of Independence.
b)
The sanctity of property was one of the few ideas absent in Jefferson’s draft of the
Declaration of Independence (but the Lockean concept of property figured prominently at
the Constitutional Convention).
c)
Jefferson altered Locke’s phrase “life, liberty, and property” to “life, liberty, and the
pursuit of happiness.”
The Agenda In Philadelphia: How to Create a Great Government (pp. 39-44)
A.
Although the Constitution is silent on equality, some of the most important issues on the policy agenda at
Philadelphia concerned equal representation of the states; what to do about slavery; and whether or not to
ensure political equality.
Chapter 2 Notes
Page 10 of 14
B.
Representation of the States
1.
The New Jersey Plan, proposed by William Paterson of New Jersey, called for each state to be
equally represented in the new Congress.
2.
The Virginia Plan, suggested by Edmund Randolph of Virginia called for representation in
Congress based on the state’s share of the American population.
3.
The Connecticut Compromise (a/k/a the Great Compromise), devised by Roger Sherman and
William Johnson of Connecticut, was the solution adopted by the delegates that created a
bicameral legislature (two houses) in which the Senate would have two members from each state
and the House of Representatives would have representation based on population.
a)
Gives more power to people who live in states with small populations than to those who
live in more heavily populated states.
b)
In the case of the Senate (which ratifies treaties, confirms presidential nominations, hears
trials of impeachment), a citizen of Wyoming has more than 50 times the representation
as does a citizen in California.
c)
In the case of the House, when no presidential candidate receives a majority of votes in
the Electoral College, each states has one vote; again a citizen of Wyoming has more than
50 times the representation.
C.
Slavery (pg. 40)
1.
Roughly 90% of slaves in 1787 lived in the South and accounted for about 30 percent of the
southern population.
2.
Southern delegates wanted slaves to be counted as people only when determining representation
in Congress because a larger population meant more representatives and therefore more political
power.
3.
The delegates agreed that Congress could limit future importing of slaves (the South agreed to
halt the import of slaves in1808 so long as the North agreed to return fugitive slaves), but they did
not forbid slavery itself.
4.
The Constitution stated that persons legally “held to service or labour” who escaped to free states
had to be returned to their owners.
5.
Under the famous three-fifths compromise, both representation and taxation were to be based
upon the “number of free persons” plus three-fifths of the number of “all other persons.” (Every five
slaves would count as three people for representation and tax purposes.)
D.
Political Equality (pp. 40-41)
1.
Universal Suffrage
a)
Some delegates favored suffrage for all free, adult males; some wanted to put property
qualifications on the right to vote.
b)
Ultimately, they decided to leave the issue to the states.
2.
Electoral College
a)
Some delegates favored direct election of the president, whereas others wanted to ensure
that only the “best man” could hold office.
b)
c)
d)
They compromised by creating the Electoral College, a presidential voting system
whereby a special body of electors in each state casts a fixed number of votes for the
president according the to the combined number of seats the state has in the House and
the Senate.
The framers intended the Electoral College to serve as a safeguard should the people ever
elect a president unwisely.
According to the Constitution, the House of Representatives chooses the president if no
single candidate receives a majority of electoral votes.
Chapter 2 Notes
Page 11 of 14
IX.
E.
Tariffs
1.
The North wanted to tax Southern exports to Europe and wanted to protect their own
manufactured goods.
2.
The South did not want to tax European goods so that their own exports would not be taxed.
3.
They agreed to tax only imports.
F.
Economic Issues (pp. 41-43)
1.
The Constitution clearly spelled out the economic powers of Congress.
a)
Congress was to be the chief economic policymaker.
b)
Congress was granted power to tax and borrow, and to appropriate funds.
c)
Congress was also granted powers to protect property rights – powers to punish
counterfeiters and pirates, ensure patents and copyrights, to legislate rules for
bankruptcy, and to regulate interstate and foreign commerce.
2.
The framers also prohibited practices in the states that they viewed as inhibiting economic
development:
a)
State monetary systems;
b)
Placing duties on imports from other states; and
c)
Interfering with lawfully contracted debts.
3.
States were required to respect civil judgments and contracts made in other states, and to return
runaway slaves to their owners (overturned by the Thirteenth Amendment). [Full Faith and
Credit]
4.
The national government guaranteed the states “a republican form of government” to prevent a
recurrence of Shays’ Rebellion, and the new government was obligated to repay all the public
debts incurred under the Continental Congress and the Articles of Confederation ($54 million).
G.
Individual Rights: Safeguarding Individualism (pp. 43-44)
1.
The delegates felt that preserving individual rights would be relatively easy.
a)
They were constructing a limited government that, by design, could not threaten
personal freedoms.
b)
Powers were dispersed so that each branch or level of government could restrain the
others (checks and balances).
c)
Most delegates believed that the various states were already protecting individual rights.
2.
Although the Constitution says little about personal freedoms, it does include the following:
a)
The writ of habeas corpus (a court order requiring jailers to explain to a judge why they
are holding a prisoner in custody) may not be suspended except during invasion or
rebellion. (Article 1, Section 9)
b)
Congress and the states are prohibited from passing bills of attainder (which punish
people without a judicial trial) and ex post facto laws (which punish people or increase
the penalties for acts that were not illegal or were not as severely punished when the act
was committed) (Article 1, Section 9)
c)
Religious qualifications may not be imposed for holding office in the national government.
(Article VI)
d)
Treason is narrowly defined, and strict rules of evidence for conviction of treason are
specified. (Article III, Section 3)
e)
Right to trial by jury in criminal cases is guaranteed. (Article III, Sect 2)
Ratifying the Constitution (pp. 48-51)
Chapter 2 Notes
Page 12 of 14
A.
Federalists (those that supported the Constitution) and Anti-Federalists (those that opposed it).
1.
Federalists James Madison, Alexander Hamilton, and John Jay (writing under the name Publius)
wrote a series of 85 articles (the Federalist Papers) in defense of the Constitution and providing
political philosophy thereon.
2.
Anti-Federalists (led by George Mason and Richard Henry Lee) questioned the motives of the
writers of the Constitution (through rival publications Pennsylvania Packet and Letters From the
Federal Farmer) believing that the new government was an enemy of freedom and intended to
ensure that the economic elite remained in control.
3.
In a compromise to assure ratification, the Federalists promised to add amendments to the
document specifically protecting individual liberties.
a)
b)
B.
X.
James Madison introduced twelve constitutional amendments during the first Congress in
1789.
Ten of the amendments – known as the Bill of Rights – were ratified by the states and
took effect in 1791.
Ratification (pg. 51)
1.
The Federalists specified that the Constitution be ratified by special conventions in each of the
states, not by state legislatures (a shrewd move since state legislatures were populated with
political leaders who would lose power under the Constitution).
2.
The Constitution itself specified that nine states approve the document before it could be
implemented.
3.
Delaware was the first state to ratify the Constitution (Dec. 7, 1787); New Hampshire became the
ninth state six months later. North Carolina and Rhode Island held out for the Bill of Rights.
4.
George Washington was the electoral college’s unanimous choice for president and he took office
on April 30, 1789.
Constitutional Change (pp. 51-59)
A.
Constitutional changes may occur either by formal amendments or by a number of informal processes.
B.
Formal Amendments change the written language of the Constitution.
1.
There are two stages to the amendment process (proposal and ratification), each with two
alternative routes.
a)
Proposal – an amendment may be proposed either by a two-thirds vote in each of
Congress, or by a national convention called by congress at the request of two-thirds of
the state legislatures.
b)
Ratification – an amendment may be ratified either by the legislatures of three-fourths of
the states, or by special state conventions called in three-fourths of the states.
2.
All 27 amendments to the Constitution have been proposed by Congress (no constitutional
convention has been convened since the original Constitutional Convention); all except one of the
successful amendments have been ratified by the state legislature (21 st Amendment ending
prohibition).
3.
The president has no formal role in amending the Constitution.
C.
Effects of Formal Amendment
1.
Formal amendments have made the Constitution more egalitarian and democratic.
2.
The emphasis on economic issues in the original document is now balanced by amendments that
stress equality and increase the ability of a popular majority to affect government.
3.
The most important effect has been to expand liberty and quality in America.
Chapter 2 Notes
Page 13 of 14
D.
Informal Amendment – refers to an unwritten body of tradition, practice, and procedure that when altered
may change the spirit of the Constitution.
1.
Basic Legislation – Congress can spell out, further define, or interpret provisions of the
Constitution. For example, Congress has the expressed power to regulate “foreign and interstate
commerce” but fails to define either.
2.
3.
4.
5.
E.
XI.
Executive Action – The growth of the U.S. as a superpower in international affairs requires that
the president be afforded flexibility in delineating unclear provisions of the Constitution. For
example, the power to wage war (versus Congress’s power to declare war).
Court Decisions – The nation’s courts interpret and apply the constitution as they see fit
(Marbury v. Madison) and are considered a constitutional convention in continuous session.
Party Practices – Shape government and its processes by holding political conventions,
organizing Congress along party lines, injecting party policies in the process of presidential
appointments, and the Electoral College.
Custom/Tradition – Each branch of government has developed traditions that fall outside the
provisions of the Constitution. One example of an informal amendment that became formal is the
“no-third-term tradition” which was ultimately broken by F.D.R. in 1940 and 1944 and became the
22nd formal amendment in 1951.
The U.S. Constitution has the oldest functioning constitution in existence today and was created as a
flexible system of government that could adapt to the needs of the times without sacrificing personal
freedoms.
Purposes of the Constitutions as Identified in the Preamble of the Constitution
A.
To Form A More Perfect Union – In union there is strength.
B.
To Establish Justice – The law, in its content and administration, must be reasonable, fair, and impartial.
C.
To Insure Domestic Tranquility – Without order, people would live in anarchy.
D.
To Provide for the Common Defense – The security of the U.S.
1.
2.
E.
The state’s security rests on a wise defense.
The state’s security rests on wise foreign affairs.
To Promote the General Welfare – The state has a responsibility to provide a variety of public services
that benefit all or most people and are not likely to be provided by the voluntary acts of private individuals
or groups.
1.
Public Schools
2.
Protecting the quality of air you breathe
3.
4.
F.
To Secure the Blessings of Liberty
1.
2.
XII.
Protecting the quality of the water you drink
Protecting the quality of the food that you eat
Freedom is necessary for a democracy, but it cannot be absolute.
No person can be free to do whatever he or she pleases – for that behavior would interfere with the
freedoms of others.
Navigation 101: Getting Around The Constitution
Chapter 2 Notes
Page 14 of 14
A.
Article I: Outlines the Legislative Branch
1.
Splits the responsibility between a bicameral (two house) legislature.
2.
The House of Representatives is defined first as the body most directly responsible to the people.
3.
The Senate, its make-up based on equal representation, joins in a partnership with the House in
passing laws.
4.
The rules of impeachment of government officials are also outlined in Article I.
B.
Article II: Outlines the Executive Branch
1.
Although not specifically defined, the president’s major responsibility is to administer and execute
the public policies of the United States.
2.
3.
4.
5.
6.
C.
The inherent power includes those powers that the president exercises that grow out of the
existence of the national government, explains the power of the presidency.
By signing congressional legislation into law, the president assumes the responsibility of enforcing
the laws of the land.
Reference is also made to the president’s authority in the area of foreign policy.
This article also outlines the mechanics of the electoral college and determines its procedures in
the case where a candidate does not receive a majority of the electoral votes.
It refers to executive departments, though it does not specifically mention the president’s cabinet
or the federal bureaucracy.
Article III: Outlines the Judicial Branch.
1.
This article is the most vague regarding the qualifications of its members.
2.
It refers to one Supreme Court and the manner in which cases get there.
3.
The authority of judicial review was not given in the Constitution; instead, it was established in
the landmark case of Marbury v. Madison.
4.
The scope of the court system and the jurisdiction of the court system is defined.
5.
This article also defines treason, and provides for a range of penalties, including death, if a person
is convicted of the crime.