
How Has the Constitution Been Changed to
Further the Ideals Contained in the
Declaration of Independence

Lesson 15: How Have Amendments and Judicial Review Changed
the Constitution?

Lesson 16: What Is the Role of Political Parties in the
Constitutional System?

Lesson 17: How Did the Civil War Test and Transform the
American Constitutional System?

Lesson 18: How Has the Due Process Clause of the 14th
Amendment Changed the Constitution?

Lesson 19: How Has the Equal Protection Clause of the
Fourteenth Amendment Changed the Constitution?

Lesson 20: How Has the Right to Vote Been Expanded since the
Adoption of the Constitution?



Since 1787, the Constitution has changed in
several important ways. The Framers provided
mechanisms for change, such as Amendments.
The Civil War transformed the Constitution in
several ways towards ideals of equality
contained in The Declaration of Independence.
In this unit, you will learn
◦ How judicial review and political parties affect
American constitutionalism.
◦ About the Civil War’s creation of a “2nd American
Constitution” through the transformation of due
process, equal protections, and expansion of voting
rights.


This lesson describes the process devised for
amending the Constitution and its first
application, the Bill of Rights.
It also explains judicial review, and the
arguments for and against this judicial power.




Describe the two ways in which the
Constitution can be amended.
Identify major categories of constitutional
amendments.
Explain why Madison introduced the Bill of
Rights.
Evaluate, take, and defend positions on the
amendment process and judicial review.

Amendment
◦ A change in or addition to a legal document.

Judicial Review
◦ The power of the courts to declare laws and actions of
the local and state governments or the national
government invalid if they are found to contradict the
U.S. Constitution.


Founders recognized that society &
conditions would change over time.
The Constitution is difficult to amend
◦ 2/3 of Congress to Propose, ¾ of States to Amend



Over 10,000 have been introduced to
Congress
Only 33 were officially proposed
Of 33, only 27 ratified

Bill of Rights (1791)
◦ First 10 Amendments protect basic rights
and liberties

Fundamental Changes
◦ 13th & 14th resulted from Civil War and
resolved issues not settled at Constitutional
Convention
 Outlawed slavery
 defined citizenship
 imposed equal protection and due process
requirements on states
 gave Congress more enforcement power

Expansion of Suffrage
◦ 15th, 19th, 24th, and 26th prohibit
states from denying voting rights
based on race, gender, age of
persons of 18 or older, or failure
to pay poll taxes

Overturning Supreme Court
Decisions
◦ 11th overturned improper
expansion of federal court power
◦ 16th overturned decision that
prevented Congress from passing
an income tax

Refinements
◦ 12th requires electors to make separate
choices for president and vice
president
◦ 20th shortened length of time between
elections and when official take office.
◦ 22nd limits president to 2 terms
◦ 25th addresses presidential succession

Morality
◦ 18th outlawed manufacture, sale,
and transport of alcohol (Prohibition)
◦ 21st repeals the 18th


Many states and
prominent figures argued
for specific protections
and listed rights
Madison followed through
on his promise to
immediately add
amendments (bill of
rights) in first session of
Congress

Marbury v. Madison (1803)
◦ Chief Justice John Marshall
concludes that judges have the
power to decide whether acts of
Congress, the executive branch,
state laws, and even State
Constitutions violate the US
Constitution
◦ Supreme Court justices have the
final say about the meaning of the
Constitution
◦ This power to declare what the
Constitution means and whether
government actions violate the
Constitution is know as JUDICIAL
REVIEW



No mention of judicial review
in Constitution
However, founders assumed
this power would be
developed (Practice has roots
in English Law)
Marshall asserted that it is the
“duty of the judicial
department to say what law
is.”
1.
2.
3.
4.
The Constitution is a superior, paramount law
that cannot be changed by ordinary means.
Acts of Congress, the Executive, and the
States reflect temporary, fleeting views of
what law is.
Acts of Congress, the Executive, and the
States that conflict with the Constitution are
not entitled to enforcement and must be
disregarded.
Judges are in the best position to declare
what the Constitution means.





Popular Sovereignty is represented in the
Legislatures. Judicial Review disregards sovereignty
of the people.
Judicial Review could lead to political turmoil if other
branches or states to not follow the courts’
interpretations.
Judicial Review makes judiciary equal or even superior
to legislatures, even though judges are not elected
All government officials take oath to consider
constitutionality of their actions
Judges errors in interpretation cannot be corrected
through voting, but only through amendments



Shortly after the government was established,
to the Framers’ dismay, political parties
formed.
This lesson describes the Framers’ views on
political parties and how they first formed.
It also explains how parties became and
essential component of the American political
system by addressing challenges that the
Constitution left unresolved.




Explain why the Framers opposed the idea of
political parties.
Describe the other ideas that helped political
parties gain acceptance.
Explain the conflicting points of view that led
to the development of parties and the roles
they have played in history.
Evaluate, take, and defend positions on the
importance of political parties today.

delegated powers

party system

platform

political party

sedition

ticket
◦ According to the natural rights philosophy, people always retain their basic rights,
but provisionally entrust or assign certain powers to their government for certain,
limited purposes. The powers of government are therefore "delegated powers" in
that they are granted by the people, and the people can take them back if
government fails to fulfill its purposes.
◦ A concept in political science that political parties control government.
◦ List of the policies and priorities of a political party; also known as a manifesto.
◦
◦ An organization seeking to achieve political power by electing members to public
office so that its political philosophy is reflected in public policy.
◦ Incitement to rebellion.
◦ The choice of candidates of a political party for president and vice president.




Madison argues that Constitution would
control “evil” effects of factions
Some (Burke) consider parties necessary to
express open opposition to gov’t policies
Most American leaders oppose Burke, but
many agree that they can “promote
deliberation” and “check excesses in the
majority”
Delegates had no true experience with an
established party system.



Ironically, Madison and Hamilton become
opposing leaders of political parties w/in
10 yrs of ratification
Issue that led to party division:
1. Power of National Government
◦ Hamilton – National Gov’t should address any
national issue, mentioned in Constitution or
not
◦ Jefferson – Feared vague national powers and
“energetic” use of authority

2. Economic Vision
◦ Hamilton – National bank “necessary,” ex. Collect
taxes, regulate trade
◦ Jefferson – Believed in agrarian society, congress
should only act if absolutely and indispensably
necessary

3. Foreign Policy
◦ Jefferson – supported France in Napoleonic wars,
helped us during Rev. W/ Madison helps create
Republican party.
◦ Hamilton – supported GB, more
trade and cultural connection.
Develops into Federalist party.
◦ Neither side accepted other as a
long-term, durable “loyal opposition”



Adams signs acts that gave him power to
deport “dangerous” foreigners and
criminalize “seditious” language
Republicans (Jeff., Mad.) outraged at
censorship, respond with KY and VA
Resolutions (state need not comply w/ acts of
Congress)
Mobilized Republicans for election of 1800.


First election to feature candidates from political
parties (Fed.–Adams, Repub.-Jeff)
Repub. victory symbolized first transfer of power
through election rather than heredity / violence

However, exposed problem in Constitution
◦ Jeff & Burr tie, electors could not specify which would
be president. House had to decide.

12th Amendment
◦ Vote for Pres. & VP on same ballot

Jefferson opposed permanent political parties
and thought Federalists ideals would fade away


By 1820s, positive vision of
parties emerged
Van Buren touts parties with
clear principles and offer a clear
choice
◦ Parties are “glue” that holds federal
system / checks and balances
together.
◦ Helped president work w/ Congress
◦ Bridged great distances between
Washington & people



Patronage enabled president to build
connections across levels of gov’t
Elaborate entertainments boost support and
give members sense of belonging.
Unlike Jeff / Hamilton, Van Buren felt
competing notions of common good could
coexist.
◦ Those out of power would hold them accountable /
additional check and balance


Democrats and Republicans have dominated
since 1860s
Purposes of political parties today
Mobilize participation
Connect Executive and Legislative branches
Connect national & state governments
Creation and promotion of party platforms
Provide forums to deliberate about public policies /
help organize & channel passions & interests
◦ Provides stability
◦ Ensures change in gov’t,
not Constitution
◦
◦
◦
◦
◦



Mutes truly alternative views
Minor parties generally small, narrow
interests. Little to no chance of competing
nationally.
If single set of interest gains dominant power
w/in a party, threat of majority tyranny.


Between 1860 and 1861, 11 Southern states
seceded from the US, starting the Civil War.
The war raised several issues:
◦ the right of states to secede
◦ the president’s wartime powers
◦ the balance between individual rights and national
security
◦ the constitutional status of slavery

Three amendments adopted after the war defined
American citizenship and transformed the
relationship between the national and state
governments




Describe several important constitutional issues
raised by President Lincoln’s actions, including
suspension of habeas corpus and the
Emancipation Proclamation.
Explain the similarities and differences between
the US and Confederate constitutions.
Explain how the Civil War led to the creation of
the 13th, 14th, and 15th Amendments.
Evaluate, take, and defend positions on the
conditions under which the writ of habeas
corpus might be suspended and the
constitutionality of secession.

abolitionists

grandfather clause

literacy test

poll tax

secession
◦ Opponents of slavery who wished to put an end to the institution.
◦ Provisions of laws passed in the South after the Civil War stating that citizens could
vote only if their grandfathers had been allowed to vote. The law made it impossible
for African Americans to vote because their grandfathers had been excluded from
voting.
◦ A test to prove a person's abilities to read and write. Until 1964, such tests were
used in various states to prevent minorities from voting.
◦ A tax that voters in many states were required to pay in order to exercise their right
to vote. These barriers were used until 1964 to prevent African Americans from
voting.
◦ In U.S. history, the act of states leaving the Union in 1861 following the election of
President Abraham Lincoln; precipitated the Civil War.

The Constitution & Slavery
◦ Constitution addressed slavery in
following ways
 3/5ths Compromise (Art. I Sec. 2)
 “Fugitive Slave Clause” (Art. IV Sec. 2)
 Banned slave trade in 1808 (signed into
law by Jeff.)
◦ Pro-Slavery Advocates: slavery issue
should be forever regulated by state
gov’ts.
◦ Abolitionists: no mention of “slavery” in
Constitution / institution is at odds
with American ideals / Founders
sought end to slave trade

The Constitution & New Territories
◦ Congress given power to approve new state
constitutions
◦ Missouri Compromise
 Only new states south of MO’s southern border open to
slavery.
 Slave & non-slave states admitted in pairs to keep
balance in Senate
◦ Texas Annexation and Mexican War
 Most newly acquired territory above “36’ 30’”
 Compromise of 1850 – California = free state, tougher
fugitive slave laws
◦ By mid 1850’s, two sides emerge (both cite Dec.)
 Free Soilers / Republicans (human liberty)
 Popular Sovereignty Advocates - People of territory
decide for themselves whether to allow slavery



This aspect of
compromise infuriates
abolitionists.
Leads to Northern
“personal liberty laws”
/ refuse to enforce
Dred Scott v. Sanford
(1857)
◦ Scott sued master –
claims when brought to
Wisconsin, earned
freedom.

African Americans could not be
citizens
◦ No protection under national law
 (However, Constitution never defines
citizenship)

National Gov’t has no right to
exclude slavery (property) from
new territories
◦ Essentially nullifies MO Compromise

Due Process (5th Amendment)
protects property rights (slaves)

Lincoln’ Election spurs Southern
secession
◦ South opposed Republican “free soil”
principles
◦ Form Confederate States of America,
adopt own constitution


South argued that union was only
a compact of states, none gave
up sovereignty w/ ratification
Also claimed right to revolution if
fundamental (property) rights
were violated. Secession a 2nd
American Revolution.

Lincoln & Northerners deny right to secede
◦ Sovereignty granted to American people as a whole
◦ No southern rights had been violated, just fear of losing
of right to own slaves.
◦ Secession considered act of rebellion.

Confederate Constitution
◦ Key differences:
 President = One 6-yr term
 Restricts Congressional power over
tariffs and infrastructure
 Explicitly protected slavery


Slavery the main cause, but initially fought to
preserve Union / defend Constitution
Unprecedented Presidential Powers
◦ Expanded army w/o approval of
Congress
◦ Suspended habeas corpus
(power of Congress)
◦ Military trials / arrest for
“treasonable” speech
Abolishing slavery considered a military
necessity, would undercut South’s main labor
source
 Freed all slaves in rebellious
states
 Profoundly symbolic

◦ Union now committed to
principle of liberty

Slavery
◦ 13th Amendment abolishes
slavery

Secession

Citizenship / Rights
◦ Not a constitutional right /
established supremacy of
national government
◦ South responds to 13th Amendment with Black
codes / limit political power
◦ Congress passes Civil Rights Act of 1866, but little
change

14th Amendment
◦ Nullifies Dred Scott
decision / grants
citizenship to all born in
US
◦ States cannot abridge
privileges or immunities
of citizens
◦ States cannot deny due
process or equal
protection of law

15th Amendment
◦ Prohibits gov’t from
denying right to vote
based on race or status as
former slave

Southern States pass laws
destroying political power
of African Americans
◦ Poll Taxes
◦ Literacy Tests
◦ Grandfather Clauses

As gov’t failed to enforce
14th & 15th, community
leaders become backbone
of civil rights struggles.



The 5th Amendment limits the national
government, but the 14th guarantees that
states cannot deprive rights without “Due
Process.”
Due process is not defined, but has roots in
English history and plays a central role in what
government actions are considered valid.
This lesson explains how “due process” has
changed since the 14th Amendment and how
the requirement of due process has been used
to protect individual rights from state
government actions.




Explain the historical origins of due process.
Explain the difference between procedural
and substantive due process.
Define the concept of incorporation and
describe its effects on the powers of the
states.
Evaluate, take, and defend positions on
historical and contemporary issues involving
due process.

adversary system

due process of law

incorporation

inquisitorial system

procedural due process

substantive due process
◦ A system of justice in which court trials are essentially contests between accuser and accused
that take place before an impartial judge or jury.
◦ A requirement stated in the Fifth and Fourteenth Amendments that treatment by state and
federal governments in matters of life, liberty, or property of individuals be reasonable, fair, and
follow known rules and procedures. See procedural due process and substantive due process
◦
◦ The process through which the U.S. Supreme Court has applied the due process clause of the
fourteenth Amendment to extend the reach of the Bill of Rights to include protection from
interference by states.
◦ A trial system in which a judicial official or set of officials acts as both prosecutor and judge,
questioning witnesses, examining evidence, and reaching a verdict.
◦ The principle that government must respect all, not some, of a person's legal rights.
Government must not subject individuals to unreasonable, unfair, or arbitrary treatment.
◦ Judicial interpretations of the due process clauses of the U.S. Constitution requiring the content
of law to be fair and reasonable.

Principle traced back to Magna
Carta
◦ Gov’t must follow established
procedures and may not act
arbitrarily in negatively altering or
destroying life, liberty, or
property.

Due process both an ancient
and evolving concept (beliefs
about natural rights evolve)

5th Amendment
◦ Limits national gov’t

Article 1
◦ Prohibits ex post facto laws

14th Amendment
◦ Imposes due process on states,
grants Congress authority to
enforce through legislation.
◦ Courts then determine whether
legislation satisfies due process
requirements of 5th and 14th.



Requires gov’t to act in
certain ways before
regulating life, liberty, and
property issues.
Applies to both criminal &
civil matters.
Examples
◦
◦
◦
◦
Requirement of notice
Opportunity of a fair hearing
Opportunity to present evidence
Opportunity to appeal initial
decisions

US & England have adversarial legal
systems
◦ Assumes justice results from clash of
positions between contesting parties.
◦ Both sides try to persuade impartial
judge / jury

In criminal cases, defendant
innocent until proven guilty.
◦ Prosecution must prove guilt beyond
reasonable doubt.

Procedural justice ensures the
“fight” is fair.


Judges act as both investigators and
decision-makers.
Argue that adversary system based upon
unjustifiable assumptions
◦ Adversaries are not of equal ability or resources
◦ Neither side is concerned with truth emerging
unless it helps their side of the case.

Critics of Inquisitorial system say it gives too
much power to judges. Juries are more
impartial than government officials.


Based upon idea that some rights are so
fundamental that gov’t must have a
“compelling” reason to regulate them.
Supreme Court must identify which rights are
fundamental, and if gov’t has violated that
particular right.


By 1937, court abandoned view that
economic rights are fundamental.
The following are (controversially) considered
fundamental
◦
◦
◦
◦
◦
◦
Right
Right
Right
Right
Right
Right
to
to
to
to
of
to
marry and have children
purchase and use birth control
free speech
interstate travel
legal voters to vote
religious freedom…

By 1925, Supreme Court begins identifying
rights in the bill of rights that the state must
protect.
◦ Gitlow v. New York – states cannot infringe upon free
speech and press without compelling interest.

Selective incorporation means the court
examines rights on case-by-case basis.
◦ Justice Frankfurter’s “shock the conscience” test

Court more reluctant to incorporate criminal
procedure rights, felt states have greater
responsibility for prosecuting & punishing.
2nd Amendment right to
bear arms
 5th Amendment right to
an indictment by a grand
jury
 7th Amendment right to a
jury trial in civil lawsuits
 Implicit requirement in 6th amendment that
the jury in a criminal case must have 12
members and must reach a unanimous
verdict.



This lesson examines how the equal
protection clause prohibits state governments
from denying people “equal protection of the
laws.”
Like the due process clause, the equal
protection clause places limits on
government, not private individuals.





Define equal protection of the laws.
Explain why neither state nor the national gov’t
can deprive people of equal protection of laws.
Explain the “separate but equal” doctrine and
why it was abandoned.
Describe the categories used to decide cases
challenging gov’t actions that treat some
people differently.
Evaluate, take, and defend positions on how
conflicts between or among rights should be
resolved.

equality of condition

equality of opportunity

intermediate scrutiny

rational basis

separate but equal

strict scrutiny
◦ Equality in all aspects of life, such as wealth, standards of living, medical care, and working
conditions.
◦ A right guaranteed by both federal and many state laws against discrimination in employment,
education, housing, or credit rights due to a person's race, color, sex and sometimes sexual
orientation, religion, national origin, age, or handicap.
◦ In U.S. constitutional law, the middle level of scrutiny applied by courts deciding constitutional
issues through judicial review.
◦ In U.S. constitutional law, the lowest level of scrutiny applied by courts deciding constitutional
issues through judicial review.
◦ The argument, upheld by the U.S. Supreme Court in Plessy v. Ferguson (1896) but later
reversed, that racially segregated public facilities are constitutional if those facilities are of
equal quality.
◦ Under U.S. constitutional law, the second highest level of scrutiny used by courts reviewing
federal law for constitutional legitimacy. "Super strict scrutiny" is the highest level.



Constitutional guarantee of fair treatment for
all persons, regardless of sex, race, national
origin, religion, or political views.
Every person entitled to equality of
opportunity, not equality of condition
Early Cases:
◦ Strauder v. WV (1880)
 “All White” jury requirement prohibited
◦ Yick Wo v. Hopkins (1886)
 Ethnically discriminatory SF laws prohibited (citizens
and aliens alike)


Following Reconstruction, Jim Crow laws
designed to limit rights of African Americans
and creates institutional segregation in South.
Plessy v. Fersguson (1896)
◦ Racially separated rail cars constitutional as long as
facilities were “equal”

Brown v. Board of Education (1952)
◦ NAACP challenges Kansas BoE, emphasize
damaging effects segregation has on children.
◦ Court rules that “separate” is “inherently unequal”

Despite ruling, enforcement proved
challenging…


Supreme Court uses 3 basic levels of analysis
to decide whether laws that create
classifications violate “equal protection.”
Level 1: Strict Scrutiny
◦ Race, national origin, religion, alien status, voting
rights, interstate travel, access to courts.
◦ Gov’t must prove a
“compelling state interest”
to justify such
classifications

Level 2: Intermediate Scrutiny
◦ Gender, illegitimacy
◦ Gov’t must prove laws “substantially related to
important gov’t purpose”
◦ Cases: Craig v. Boren (‘76), Rostker v. Goldberg (‘81)

Level 3: Rational Basis
◦ Wealth, disability, age…
◦ Laws must be rational/reasonable.
◦ Cases: Stanton v. Stanton (‘75)

14th Only Applies To States.
◦ In Hirabayashi v. US (‘43), court ruled 5th Amendment
has equal protection component.
Is Affirmative Action Reverse Discrimination?
 Is Intermediate Scrutiny Appropriate For
Gender Classifications?
 Should Mentally
Handicapped, Children of
Illegal Aliens, and Gays
and Lesbians Be Treated
As “Discrete and Insular
Minorities” Regarding
Issues of Prejudice?



During the early years of the nation, most
white men met property requirements.
However, many groups were historically
denied the right to vote.
This lesson examines how the right to vote
has been expanded since 1787 to now
include almost all citizens 18 yrs. of age or
older.


Describe the extension of the franchise as a
result of changes in voting laws, amendments
to the Constitution, and Supreme Court
decisions.
Evaluate, take and defend positions on how
extending the right to vote is related to
fundamental ideas and principles of American
constitutional gov’t.

enfranchisement
◦ Giving the right to vote to a person or category of
persons.

franchise
◦ A right or privilege. In the context of American
politics, it means the right to vote.




Representative gov’t based upon principle
that people have a say in determining who
makes, executes, and judges the law.
Voting most basic means of participation.
Although colonial America had property
requirements, franchise generous compared
with Britain.
However, whole classes remained excluded.
◦ Women, natives, religious minorities, slaves…


Framers could not agree, so left power with
the States.
NJ (1776)
◦ All inhabitants who met property / residency
(including women & African Americans)
◦ However, those groups were later disenfranchised
in 1800s.

White Men
◦ Many leaders (J. Adams) feared
mob rule would erupt w/o
property rights.
◦ Western states lead reform to
abolish prop requirements in early
1800s (to attract settlers)
◦ Following Mexican-American War
and Texas Annexation, suffrage
granted to free Mexicans.
However, violence and fraud deny
many their rights.

African American Men
◦ 15th Amendment (1870) grants voting rights to
African Americans, but literacy tests, poll taxes, and
grandfather clause bar many from voting.
◦ Almost a century passes until the civil rights
movement galvanized national support to end
voting discrimination.

Women
 Mid 18th c. abolitionist and women suffrage movement
closely links.
 Stanton’s Seneca Falls Declaration of Sentiments echoes
Jefferson’s Declaration (‘48)
 Suzan B. Anthony & others point to section 1 of 14th claiming
that as citizens they should have suffrage
 Minor v. Happersett (‘75) Ruled that citizenship does not
automatically grant suffrage.
 WY leads western states
expansion of women’s suffrage
 Following WWI and mass
demonstrations, 19th
Amendment guaranties
franchise for women

Native Americans
◦ Originally, Native Americans not considered citizens
◦ Considered “foreigners” and often treated as enemies
◦ Dawes Act (‘87) extends citizenship if give up tribal
affiliations (attempt to undermine tribal culture)
◦ Indian Citizenship Act (’24) extends franchise to all
natives with expectation that tribal gov’ts would whither
and natives would assimilate into “mainstream”
◦ Enforcement lacking until
passage of 24th (bans poll taxes)
and Voting Rights Act (‘64)

18 Year Olds
◦ By ‘70, only 3 states granted suffrage to those under
age 21
◦ Facing protests over Vietnam, Congress amends Voting
Rights Act to ensure suffrage for 18 yr olds
◦ Oregon v. Mitchell (‘70) – rules that Congress could
regulate voting age in national elections but not state
elections.
◦ In response, 26th Amendment passed prohibited all
governments from denying voting rights of citizens age
18 or older.