CHAPTER 2
The Constitution


LEARNING OBJECTIVES

What drove the colonists to seek independence

What the major compromises at the Constitutional Convention were

How the structure of the Constitution protects liberty

Why the Antifederalists opposed the Constitution

How the Constitution has stayed responsive to changing needs
SUMMARY OVERVIEW
The Constitution we have today, though relatively intact, is understood and interpreted very
differently than the Founding Fathers intended. The Articles of Confederation—our first attempt
at democratic, constitutional government—was a decided failure. A confederation, a system of
government that places the bulk of governmental power in the hands of the states, left the national
government impotent. As a result, 55 delegates from the 13 states met in 1787 to hammer out a
solution to the deficiencies of the Articles of Confederation, but left with a new system of
government entirely.
No constitution is perfect, as governing documents are a function of both the political culture of
the time they were written and the political compromises necessary to achieve passage. The
creation and ratification of the U.S. constitution required significant compromise. The primary
compromise centered on the scheme for representation in the new national legislature. Would
larger states dominate smaller ones, if proportional representation became the norm? Or would
equal representation carry the day, as in the Articles of Confederation? The compromise was to
create a bicameral (two house) legislature, with one providing proportional representation (the
House of Representatives), and the other, the Senate, having equal representation.
Perhaps the greatest flaw in the Constitution was its continuation of slavery. The institution was
legitimized in the Constitution, and slaves were counted at a three-fifths ratio for purposes of
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12
Chapter 2: The Constitution
representation. The international slave trade was allowed to continue until 1808, and northern
states were obliged to return fugitive slaves.
The resulting constitution created a substantially more powerful national government. It created
a bicameral legislature, with numerous explicit powers; an executive indirectly elected with
implied powers, and a judiciary that could interpret federal and state law (and eventually use
judicial review, a power it assumed for itself, to invalidate laws that conflicted with the
federal Constitution).
The federal government was also constructed with a mind toward reducing tyranny. Power is
partitioned in the Constitution, via separation of powers (among the three branches), checks and
balances (to counter the power of each independent branch), and a federal system of government
that limits both federal and state power.
Ratification of the Constitution was difficult, despite the compromises. Antifederalists (those
against the Constitution), argued that too much power was centralized with the federal
government, and too few guarantees existed to protect the people. A Bill of Rights was amended
by the first Congress to assuage some of the Antifederalist fears.
Over time, through a difficult but not impossible amendment process, the flaws of the
Constitution were remedied. After the Civil War, slavery was abolished (the Thirteenth
Amendment), citizenship was granted to native born Americans (including the former slaves (the
Fourteenth Amendment)), and black males 21 and over were given the right to vote (the Fifteenth
Amendment). The twentieth-century amendments granted the right to vote to women (the
Nineteenth Amendment, 1920), and lowered the voting age to 18 (the Twenty-Sixth Amendment,
1971). These changes suggest that future amendments may also be added to the Constitution, so
long as significant political consensus emerges on these issues.

CHAPTER OUTLINE
I.
Before the Constitution
>
What drove the colonists to seek independence
A.
What Is a Constitution?

A constitution is the fundamental law that sets up the structure of
government, based upon the organizing principles of the system.

As ours is a democracy, the U.S. Constitution embodies a structure of
government “by, for, and of” the people.

By contrast, in the British Empire, the fundamental law was set in a
series of documents (for example, the Magna Carta (1215)), setting out
the relationship between the monarch and the people. This
relationship was one that colonists in America expected to share in as
British subjects.
B.
Toward Independence

To recoup the costs of empire, the British imposed a series of taxes on
the American colonists (for example, the Sugar Act, Stamp Act,
Townshend Acts). The colonists believed these acts violated their rights,
as they had no say in their passage. The empire argued that Parliament
represented all within its boundaries, creating virtual representation.

Political dissent soon became violent physical dissent. The Boston
Massacre (1770) led to the repeal of all the Townshend Acts save for the
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
II.
tax on tea, which led to the Boston Tea Party (1774), and the subsequent
British reaction (the Coercive Acts, the Quartering Act).
The result was a perceived threat to liberty, so colonists organized—
through the First and Second Continental Congresses—to list grievances
against King George III, and to plan for association.
C.
The Declaration of Independence

Written in 1776 (by Thomas Jefferson), the Declaration of
Independence is a call to revolution, listing the grievances against the
King, and a demand for a new government “by, for, and of the people.” It
states that all men are created equal and have the rights to “life, liberty,
and the pursuit of happiness.”
D.
The Articles of Confederation

The individual colonies/states created their own constitutions, but
during the Revolution, organized under the Articles of Confederation.
This document created a union of 13 individual states in a “firm league
of friendship.”

The Articles of Confederation vested most power with the states, and left
the national government weak. There was no executive, and the central
government had little authority over commerce, no ability to raise
revenue through taxes, or to provide for national security.

A debtors’ revolt comprised of farmers in Massachusetts, Shays’s
Rebellion (1786), highlighted the flaws of the Articles of Confederation,
and led to calls for reform of the document.
The Constitutional Convention
>
What the major compromises at the Constitutional Convention were
A.
The Delegates

Fifty-five delegates from the thirteen states descended on Philadelphia
for the Constitutional Convention in 1787 to address the problems of
the Articles of Confederation. In order to do so, a number of important
compromises needed to be struck.
B.
Large versus Small States

The Virginia Plan proposed a legislature with representation based upon
population (proportional representation), benefitting larger states.

The New Jersey Plan proposed a legislature with equal representation,
benefitting smaller states.

The Connecticut Compromise proposed a bicameral (two house)
legislature, with one house (the House of Representatives) having
representation based upon population, and the Senate having
equal representation.
C.
Nation versus State

Other than the Connecticut Compromise, the Virginia Plan (James
Madison) led much of the convention:
o
It called for a national legislature (Congress) with
enumerated powers.
o
Laws passed by Congress would be supreme, or superior to those
of the states.
o
State authority limited in the Constitution
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Chapter 2: The Constitution
III.
D.
North versus South

At the time of the convention, slavery existed in every state except
Massachusetts, though the concentration was in southern states.

Compromise was necessary on the continuation of slavery: How slaves
were to be counted for purposes of representation, the expansion of
slavery into new territories, and the continuation of the international
slave trade.

The Three-Fifths Compromise called for slaves to be counted at a
three-fifths ratio for purposes of representation in the House and
for taxes.
E.
Gates against Popular Influence

The Constitution provides both gateways to and gates against
popular participation.

The Framers chose to set up gates in the form of indirect elections (for
president and the Senate), to reduce the strength of popular impulses
or passions.
o
One of these gates is the Electoral College.
F.
The Ratification Process

No Bill of Rights was included in the original Constitution. One was not
deemed necessary, as Congress’s power would be limited (to its
enumerated powers).

Ratification of the Constitution required 9 of 13 states (less than the
unanimity of the Articles of Confederation).
Government under the Constitution
>
How the structure of the Constitution protects liberty
A.
The Structure of Government
1.
The Legislative Branch.

Article I creates a bicameral legislature.

House of Representatives: Representation is based on
population. House members serve two-year terms and are
directly elected.

Senate: Equal representation. Senators serve six-year terms and
are elected by state legislatures (until 1913).

Article I, Section 8 lists the enumerated powers of Congress.
2.
The Executive Branch.

Article II creates the Executive branch.

The executive branch consists of one president, serving a fouryear term, indirectly elected via the Electoral College.

The Electoral College is made up of the number of House
members plus Senators from each state. Absolute majority of
Electoral College votes wins.

The executive has few enumerated powers. (Founders preferred
a strong legislature.)
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3.
IV.
The Judicial Branch.

Article III creates one Supreme Court, and any inferior courts
created by Congress.

Federal judges are appointed by the president, with the advice
and consent of the Senate. They serve in “good behavior,” or
life tenure.

Framers did not grant the Supreme Court the power of judicial
review (the power to overturn laws passed by Congress). The
Supreme Court took this power for itself in Marbury v.
Madison (1803).

Supreme Court Cases: Marbury v. Madison (1803)
B.
The Amendment Process

The Constitution provides two paths for changing the Constitution,
or amendment.

Proposed amendments must receive two-thirds congressional approval,
then three-fourths states approval.

Two-thirds of the states could request a constitutional convention that
would go into effect when approved by three-fourths of the states
(never used).

The amendment process is difficult, requiring significant consensus to
make changes.
C.
The Partition of Power
1.
Federalism. This is a vertical separation of power between the national
government and the states.
2.
Separation of Powers. This refers to independent powers granted to
each branch of the federal government.
3.
Checks and Balances. This refers to the ability of independent branches
to keep others from concentrating too much power (ex: the veto power,
the congressional override of vetoes).
4.
Limits on Powers.

Federal law is supreme to state law.

Constitution limits types of laws states may pass.

Constitution requires states to have a republican system
of government.

States are denied power to grant titles of nobility.

Congress cannot pass ex post facto laws.

Congress cannot suspend the writ of habeas corpus.

Congress cannot pass bills of attainder.
The Ratification Debates
>
Why the Antifederalists opposed the Constitution
A.
Federalists and Antifederalists

Federalists were for the ratification of the Constitution;
Antifederalists, against.

Publius (Madison, Hamilton, and Jay) published 85 Federalist Papers to
persuade states to ratify the constitution.
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Chapter 2: The Constitution

V.
Antifederalists (notably Brutus), argued that the Constitutional
Convention illegitimately went overboard in scrapping the Articles
of Confederation.
B.
Consolidation of Federal Authority

Antifederalists believed the Constitution created a national government
that was too powerful, while the Federalists argued that government
authority rested in the people, not the legislature.
C.
The Scope of Executive Authority

Antifederalists were afraid of a president becoming a monarch.

Federalists argued that the impeachment power of Congress effectively
checked potential abuses of the president.
D.
The Scope of Legislative Authority

Antifederalists objected to the general welfare clause and necessary
and proper clause of Article I. They believed both were too broad,
too sweeping.

Federalists argued that these clauses simply helped flesh out the other
enumerated powers listed in Section 8.

Later, to assuage Antifederalist fears, the Tenth Amendment was added,
reserving unstated powers back to the people, or to the states.
E.
The Lack of a Bill of Rights

Antifederalists worried that giving the federal government too much
power without a Bill of Rights was dangerous.

Federalists believed that the powers of the federal government were
already limited.
o
Additionally, Federalists feared that by listing rights, the
government would limit the rights people possess.

A Bill of Rights (the first ten amendments) was added later, including the
Ninth Amendment, which states that rights listed are not all the rights
people possess.
The Responsive Constitution
>
How the Constitution has stayed responsive to changing needs
A.
The Bill of Rights

Most of the Constitution is intact 200-plus years later, but substantial
changes have been made.

The Bill of Rights (1791)
o
The First Amendment guarantees political rights of speech,
press, assembly, and religion.
o
The Second Amendment grants the right to keep and bear arms.
o
The Third Amendment prohibits quartering of soldiers in
private homes.
o
The Fourth, Fifth, Sixth, and Eight Amendments provide
criminal procedural rights (see Chapter 4 for more information).

Global Gateways: THE ENGLISH BILL OF RIGHTS


The English Bill of Rights limited the powers of the Crown.
It provided similar rights as the U.S. Bill of Rights.
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o
Rights included: No excessive bail, no cruel and unusual
punishments, requirement of jury trials, limited right to bear
arms, right of petition.
B.
The Civil War Amendments

Thirteenth Amendment—prohibited slavery

Fourteenth Amendment—citizenship for all born in United States;
extension of Bill of Rights to the states

Fifteenth Amendment—voting rights not based on race or previous
condition of servitude (see Chapter 5 for more details).
C.
Amendments That Expand Public Participation

Seventeenth Amendment (1913)—direct election of Senators

Nineteenth Amendment (1920)—women granted the right to vote

Twenty-Third Amendment (1961)—Washington, DC residents given the
right to vote in presidential elections

Twenty-Fourth Amendment (1964)—prohibition of poll taxes

Twenty-Sixth Amendment (1971)—voting age lowered to 18
D.
Constitutional Interpretation

The meaning of the Constitution, or its clauses, may change via
interpretation by the Supreme Court (through use of judicial review).
o
In the twentieth century, the Supreme Court expanded the
meaning of the general welfare clause; expanded the federal
government’s ability to regulate interstate commerce.
E.
Future Amendments

Other contemporary political issues remain that may
provoke amendments:
o
Washington, DC residents lack representation in Congress.
o
Replacing the Electoral College with popular vote for
presidential elections
o
Flag protection
F.
Other Changes

Political parties—not mentioned in the Constitution—shape the
operation of government, influence the course of elections and the
implementation of agendas.

Parties can allow for greater responsiveness of government, but can be
seen as gates for accomplishing goals.
POLICY MAKING IN A CONSTITUTIONAL SYSTEM: THE DEATH
PENALTY

Checks and Balances
Both federal and state governments possess checks and balances, so laws
of legislatures must be approved by the executive. Additionally, the
judiciary may strike down laws, so three branches participate in
policy making.

Federalism
Federalism is a way to separate power, but it allows for differences of
policy from states to state. The death penalty is one such example.
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Chapter 2: The Constitution

VI.


The Death Penalty
o
The Constitution allows capital punishment, so long as due
process is followed.
o
Thirty-four states and the federal government allow
capital punishment.
o
The Eighth Amendment prohibits cruel and unusual punishment.
o
States, up until 1972, allowed juries to decide on the death
penalty, resulting in arbitrary application of capital punishment.
Subsequently, states developed guidelines to reduce
arbitrariness, and in 1976 the Supreme Court declared the death
penalty constitutional.
o
Despite guidelines, application of the death penalty is still
unequal (race, in particular, seems to play a role) from state to
state, and within states.
o
Limits imposed by the Supreme Court:

Age (18)

Crimes eligible (capital murder only)
The Constitution and Democracy
The Constitution, as written in 1787, is not perfect. It limited popular participation, and
most especially allowed for the institution of slavery. However, it also set the path to
correcting its flaws, via amendment and interpretation.
CRITICAL THINKING QUESTIONS
1.
In what ways did the Constitution ensure that government would be responsive to the
people? How has government become more responsive since 1787?
2.
In what ways did the Constitution seek to control the popular will and ensure order?
3.
In what ways did the Constitution seek to control government itself?
4.
In what ways did the nation’s founding documents promote equality? In what ways did
they fail to promote equality?
5.
Is the Constitution a gate or a gateway to American democracy? Is it a
gatekeeper? Explain.
LECTURE LAUNCHERS
1.
Ask students to generate ideas to propose a new constitutional amendment. Then select
an idea and discuss the Amendment process. Ask students to reflect on the likelihood that
such an amendment would be successful. Why or why not? What are the obstacles to
passing this particular amendment? This discussion can be concluded with a larger
discussion of how the amendment process serves as both a gate and a gateway to politics.
2.
Discuss the Equal Rights Amendment (and its failure) with students. Ask them if such an
amendment would be ratified today, and if one is necessary.
3.
Show the “Creating a Constitution” video (see Sunnylands Classroom, Instructor
Resource section) at the start of class. Ask students to identify the key elements of
American political culture that inform the document. What were the flaws of the
convention?
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

IN-CLASS ACTIVITIES
1.
Draft a constitutional amendment that would eliminate the death penalty in all fifty states
and include an alternative sentence for crimes that might otherwise qualify for the
death penalty.
2.
Draft a set of five requirements for the imposition of the death penalty that would apply
in all fifty states.
3.
Discuss the reasons why the U.S. constitution is less influential today than in years past
(see Law and Versteeg article, shown in Instructor Resources section). Does it matter?
KEY TERMS
amendment: Formal process of changing the Constitution.
Antifederalists: Those who opposed the new proposed Constitution during the
ratification period.
Articles of Confederation: Initial governing authority of the United States, 1781–88.
Bill of Rights: First ten amendments to the Constitution, which provide basic political rights.
checks and balances: Government structure that authorizes each branch of government
(executive, legislative, and judicial) to share powers with the other branches, thereby
holding some scrutiny of and control over the other branches.
Connecticut Compromise: Compromise on legislative representation whereby the lower
chamber is based on population and the upper chamber provides equal representation to
the states.
constitution: Document or set of documents that establish the basic rules and procedures for
how a society shall be governed.
Constitutional Convention: Meeting in 1787 at which twelve states intended to revise the
Articles of Confederation but ended up proposing an entirely new Constitution.
Declaration of Independence: 1776 document declaring American independence from Great
Britain and calling for equality, human rights, and citizen participation.
Electoral College: The presidential electors, selected to represent the votes of their respective
states, who meet every four years to cast the electoral votes for president and
vice president.
enumerated powers: Powers expressly granted to Congress by the Constitution.
federalism: System of government in which sovereignty is constitutionally divided between
national and state governments.
Federalists: Initially, those who supported the Constitution during the ratification period; later,
the name of the political party established by supporters of Alexander Hamilton.
general welfare clause: Gives Congress the power to tax to provide for the general welfare
(Article I, Section 8).
implied powers: Powers not explicitly granted to Congress but added through the necessary and
proper clause.
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Chapter 2: The Constitution
judicial review: Authority of courts to declare laws passed by Congress and acts of the
executive branch to be unconstitutional.
necessary and proper clause: Gives Congress the power to pass all laws necessary and proper
to the powers enumerated in Section 8 (Article I, Section 8).
political parties: Broad coalitions of interests organized to win elections in order to enact a
commonly supported set of public policies.
republic: Form of government in which power derives from citizens, but public officials make
policy and govern according to existing law.
separation of powers: Government structure in which authority is divided among branches
(executive, legislative, and judicial), with each holding separate and independent powers
and areas of responsibility.
three-fifths compromise: Compromise over slavery at the Constitutional Convention that
granted states extra representation in the House of Representatives based on their number
of slaves at the ratio of three-fifths.
veto: Authority of the president to block legislation passed by Congress. Congress can override a
veto by a two-thirds majority in each chamber.

WEB LINKS
Constitution. (http://www.constitution.org/cs_found.htm). This site includes the Declaration of
Independence, the debates at the Constitutional Convention and at state ratification conventions,
the Federalist Papers and the Antifederalist Papers.
ConstitutionFacts. (www.ConstitutionFacts.com). This site, from the publisher of the Pocket
Constitution, is a resource with Founding documents, and interactive quizzes; it also sponsors
Constitution Day contests.
Founding Fathers. (www.foundingfathers.info). This site provides a wealth of information about
the Founders and Framers, including biographies and images, and the text of the Federalist
Papers.
National Constitution Center. (http://www.ushistory.org/tour/constitution-center.htm). This
website provides the history and description of the oldest and shortest written constitutions.
United Nations Rule of Law. (http://www.unrol.org/article.aspx?article_id=31). The
relationship between constitution-making, the rule of law, and the United Nations may be found
on this website.

INSTRUCTOR RESOURCES
Collier, Christopher, and James Lincoln Collier. Decision in Philadelphia. New York: Random
House, 1986. Print. Detailed history of the Constitutional Convention.
Forte, David F., Edwin Meese, and Matthew Spalding. The Heritage Guide to the Constitution.
Washington, D.C.: Regnery Publishing, Inc., 2005. Print.
Jordan, Terry L. The U.S. Constitution and Fascinating Facts About It. 7th ed. Naperville: Oak
Hill Publishing Company, 1999. Print.
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Law, David S., and Versteeg, Mila. The Declining Influence of the United States Constitution.
(May 26, 2012). New York University Law Review, Vol. 87, No. 3, pp. 762–858, June 2012;
Washington University in St. Louis Legal Studies Research Paper No. 11-09-01; Virginia Public
Law and Legal Theory Research Paper No. 2011-39. Available at SSRN:
(http://ssrn.com/abstract=1923556).
Middlekauff, Robert. The Glorious Cause. New York: Oxford UP, 1982. Print. History of the
founding of the United States, 1763–89.
Rakove, Jack N. James Madison and the Creation of the American Republic. Glenview, Ill.:
HarperCollins, 1990. Print. Short biography of the fourth president.
Sunnylands Classroom. “Creating A Constitution.”
(http://sunnylandsclassroom.org/Asset.aspx?id=12). Engaging, short (23 minute) video on the
events leading to the Constitutional Convention, and compromises necessary to establish a new
system of government.
Wood, Gordon S. The American Revolution. New York: Modern Library Chronicles, 2002. Print.
Concise history of the Revolution.
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