The Constitution
How has the
Constitution lasted
through changing
times?
“These principles form the bright constellations
which has gone before us and guided our steps
through an age of revolution and reformation”
(Thomas Jefferson, 1801)
• Written in 1787, took effect in 1789
• “living constitution”
• Lays out basic framework and procedures of our
government, sets out limits within which government can
conduct itself
• Matters of basic principle
• Strength?
• Organization
• Preamble
• Articles (7)
• Amendments (27)
• 1. Popular Sovereignty
• People are sovereign—only source for any and all
government power
• Important part of Preamble (We the people…)
• 2. Limited Government
• Government may do only those things that people have given
it power to do
• Related to popular sovereignty—government must obey the
law
• Constitutionalism & rule of law
• John Locke
• Tests
• Average: 86
• Highest: 104
• Chapter 3 Quiz, next Monday (9/22)
• Current Events
• Kyce, Andres
• 9/18: David, Diego, Nicholas, Michael
• Position Paper
• 3. Separation of powers
• Power distributed among three distinct and separate branches
• State constitutions influenced (Massachusetts)
• “The accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many…may justly be pronounced the
very definition of tyranny” (Federalist No. 47)
• 4. Checks and Balances
• Each branch is subject to a number of constitutional checks (restraints) by
the other branches
• President veto power; Congressional override
• Ex: Nominations to Supreme Court
• Goal: preventing “an unjust combination of a majority”
• Partisan friction?
• Divided government
• 5. Judicial Review
• An aspect of checks and balances
• Definition: power of a court to determine the constitutionality of a
governmental action
• “power to declare unconstitutional”
• Who holds this power?
• Not explicitly in Constitution
• Federalist No. 51 (Madison): judicial power as one of “auxiliary
precautions”
• Federalist No. 78 (Hamilton): “the interpretation of the laws is the
proper and peculiar province of the courts”
• To date, Supreme Court has decided some 150 cases in which it found
some part of an act by Congress to be unconstitutional
• As well as hundreds of actions by States and local ordinances
• Supreme Court established power of judicial review
• Background
• President John Adams did not win second term; appointed large number
of political appointments
• New President Jefferson ordered his Secretary of State, James Madison,
not to deliver the paperwork
• William Marbury denied new job, petitioned Supreme Court for writ of
mandamus to force Madison to deliver commission
• Decision
• Court ruled unanimously (4-0) that Marbury had right to commission, but
that the court did not have power to force Madison to deliver commission
• Concluded that issuing writ of mandamus did not fall under their
jurisdiction according to Constitution—determined Judiciary Act of 1789
as unconstitutional
• 6. Federalism
• National government holds some powers and others belong to the states
• Definition: division of power among a central government and regional
governments
• Came to Constitution out of both necessity and experience
• Why? How was it a “compromise”?
• Framers dedication to concept of limited government
• 1) feared government power as threat to individual liberty
• 2) believed that government power must be restrained
• 3) federalism prevents abuse of power by government
• “The different governments will control each other, at the same time that
each will be controlled by itself” (Federalist No. 51, Madison)
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“Constitution Group Assignment”
Group 1: Pierce, Nicholas, Christian, Mills
Group 2: Patrick, Andres, Ryan, Aric
Group 3: Michael, Jose, Jonathan , Tyler
Group 4: William, Diego, Evan, Cooper
Group 5: Kyce, David, Douglas, Bao-Tri
• Constitution of the United
States has now been
enforced for more than
200 years—longer than the
written constitution of any
other nation
• How has it continued to
remain relevant?
• 1) by formal amendment
• 2) by other informal
means
• Article V: two methods of proposal and two methods of
ratification
• First Method – 2/3rds vote by each house of Congress and
ratified by 3/4ths of state legislatures
• 26/27 amendments adopted in this manner
• Second Method – proposed by Congress and ratified by state
conventions (3/4)
• 21st amendment adopted in this way
• Third Method – proposed by national convention, called by
Congress at the request of 2/3 of the state legislature
• Fourth Method – proposed by a convention and ratified by
conventions in ¾ of the states
• Federal nature of our government explains the
amendment process
• Some criticize sending proposals to State
legislatures over ratifying conventions
• Hawke v. Smith 1920
• Supreme Court held that a State cannot
require an amendment proposed by
Congress to be approved by a vote of the
people before it can be ratified by that
State’s legislature
• Only restriction:” “No state
without its consent, shall be
deprived of its equal Suffrage
in the Senate”
• Over 12,000 joint resolutions
for amendments proposed
• 33 sent to the states
• 27 ratified
• Ex: Giving Congress power to
regulate child labor
• Bill of Rights
• Added less than three years after
writing of Constitution
• Many people had only supported
Constitution on condition of Bill of
Rights being added later
• Grant constitutional guarantees of
freedom of belief and expression,
of freedom and security of the
person, and of fair and equal
treatment under law
• The Later Amendments
• Often grew out of particular set of circumstances
• Ex: 11th Amendment, no State may be sued in the federal
courts by a citizen of another State or by a citizen of any
foreign state
• Chisholm v. Georgia
• Ex: 13th Amendment, abolishment of slavery
• Civil War
• Most recent amendment, the 27th, written by James Madison
• Forbids members of Congress from raising own pay
• Which amendment affects you the most
today? Why?
• Which amendment affects you the least
today? Why?
• Some people have criticized the
ratification of amendments by State
legislatures instead of by popularly
elected delegates—a) why has this
process been criticized?; b) Do you
agree? Why or why not?
• Skeletal nature of amendments guarantees
interpretation & flexibility
• How does this constitutional change by means other
than formal amendment take place?
• 1) passage of basic legislation by Congress
• 2) actions taken by the President
• 3) key decisions of the Supreme Court
• 4) activities of political parties
• 5) customs and usage
• Congress has been a major agent of constitutional change
• 1) passed number of laws clarifying several of Constitution’s
brief provisions
• “adding flesh to the bone”
• Ex: Article III, Section 1: Constitution provides “one
supreme Court, and…such inferior Courts as the Congress
may from time to time ordain and establish”
• 2) Congress has added to the Constitution by the way it has
used many of its powers
• Ex: Constitution gives Congress the expressed power to
regulate foreign and interstate commerce
• The way that Presidents have
used their powers has
contributed to growth of
Constitution
• Ex: Presidents making war
without declaration of war
by Congress
• Executive agreements vs.
treaties
• Article II, Section I: “executive
power”
• Nation’s courts, especially the
US Supreme Court, interpret
and apply the Constitution in
many cases they hear
• Ex: Marbury v. Madison
• The Supreme Court is “a
constitutional convention in
continuous session” (Woodrow
Wilson)
• Despite no mention of them in
Constitution, political parties have
had major impact on constitutional
change
• Framers against political parties
• Washington warned against “the
baneful effects of the spirit of party”
• Created formal presidential
nomination process
• Converted electoral college to “rubber
stamper”
• By custom, the heads of the 15
executive departments form the
Cabinet (advisory body to
President)
• Senatorial Courtesy
• Custom that the Senate will
approve only those presidential
appointees who are acceptable
to the senators of the President’s
party from the State involved
• From informal to formal
• 22nd Amendment: limiting the
President to two terms