Flow Chart of the US Constitution
Assignment.
e:\history\two\const\const.assign
Spring 2009
US Constitution
1. Assignment. This flow chart of the US Constitution is a simple concept. It is designed to
help students align the structures in the US Constitution with the political ends the Founding
Fathers intended to achieve.
2. Presentation. A group presentation will be held the last day of class during this unit. Focus
on three main points. A Flow Chart that demonstrates the Separation of Powers and Checks and
Balances, and one that outlines the debate between Strict Construction and the Necessary and
Proper clause are two essential points.
The United States Constitution is based on several different political theories. Your categories of
political theory might include, but should not limited to the following categories: 1) Separation
of Powers, 2) Checks and Balances, 3) Limited Government, 4) Tyranny of the Majority, 5)
Minority Rights, and/or 6) Housekeeping.
For each of the above categories provide the following information.
a. Article Number. Where is it found in the Constitution?
b. Political Theory. Which political theory does this section fall into: the Separation of Powers,
Checks and Balances, Limited Government, Tyranny of the Majority, Minority Rights, and/or
Housekeeping?
c. Constitutional Language. What language in the Constitution provides the basis of your
evidence?
d. Purpose. In your own words, what is this section trying to accomplish? For example, how
does it foster the separation of powers?
e. Applications. Put this into your own words and speculate how these sections might operate.
Where applicable provide the common name for that section.
f. Evaluation: What do you think of this section? What are your comments?
g. Flow Chart. Make a Flow Chart of the Constitution, which illustrates some of the principles
mentioned above. Present your chart to the class.
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II. Minority Rights. How do the following clauses
protect the concept of minority rights? Take a position on
this issue and explain your reasoning.
US Constitution: Article I. Section 9. The migration or
importation of such persons as any of the States now
existing shall think proper to admit, shall not be prohibited
by the Congress prior to the year one thousand eight
hundred and eight, but a tax or duty may be imposed on
such importation, not exceeding ten dollars for each
person.
The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion
the public safety may require it.
[A writ of habeas corpus is a legal document, which tells
the government either to charge the Defendant with a
crime, or let him go].
No bill of attainder or ex post facto law shall be passed.
[A Bill of Attainder has an irrebutable presumption of
guilt. An example is that all persons named Benjamin
Franklin are guilty of treason].
[An ex post facto law literally refers to a law that is passed
after the fact. Thomas Jefferson smokes cannabis on day
one. Congress passes a law outlawing smoking of
marijuana on day two. On day three Thomas Jefferson is
convicted of violating this drug law. Jefferson defense is
that is an ex post facto law. On day one, Jefferson did a
legal act. The legislature illegally passed a law,
prohibiting previously legal conduct. Instead of applying
that legislation to future violators, they reached back and
snagged Jefferson, who had no opportunity to conform his
conduct to the course of law].
No capitation, or other direct, tax shall be laid, unless in
proportion to the census or enumeration herein before
directed to be taken.
No tax or duty shall be laid on articles exported from any
State.
No preference shall be given by any regulation of
commerce or revenue to the ports of one State over those
of another: nor shall vessels bound to, or from, one State
be obliged to enter, clear, or pay duties in another.
No money stall be drawn from the Treasury, but in
consequence of appropriations made by law; and a regular
statement and account of the receipts and expenditures of
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Main Ideas:
Key Words:
Analysis:
all public money shall be published from time to time.
No title of nobility shall be granted by the United States:
and no person holding any office of profit or trust under
them shall, without the consent of the Congress, accept of
any present, emolument, office, or title, of any kind
whatever, from any king, prince, or foreign state.
Main Ideas:
III. Tyranny of the Majority. The delegates in
Key Words:
Philadelphia made a distinction between democracy and
Analysis:
republicanism new to American political vocabulary. Pure
democracy was now taken to be a dangerous thing. As a
Massachusetts delegate put it, "the evils we experience
flow from the excess of democracy." The delegates still
favored republican institutions but they created a
government that gave direct voice to the people only in the
House and that granted a check on that voice to the Senate,
a body of men elected not by direct popular vote but by the
state legislatures. Senators served for six years, with no
limit on reelection; they were protected from the whims of
democratic majorities and their long terms fostered
experience and maturity in office. James L. Roark,
Professor of History at Emory University, Michael P
Johnson, Johns Hopkins University, Patricia Cline Cohen,
University of California, Santa Barbara, Sarah Stage,
Arizona State University, Alan Lawson, Boston College,
and Susan M. Hartmann, Ohio State University, The
American Promise: A Compact History Third Edition
Volume I: To 1877 (Boston, Massachusetts: St. Martin's,
2007), 203.
Similarly, the presidency evolved into a powerful office
out of the reach of direct democracy. The delegates
devised an electoral college whose only function was to
elect the president and vice president. Each state's legislature would choose the electors, whose number was the
sum of representatives and senators for the state, an
interesting melding of the two principles of representation.
The president thus would owe his office not to the
Congress, the states, or the people, but to a temporary
assemblage of distinguished citizens who could vote their
own judgment on the candidates. James L. Roark, 203.
The impulse behind it was aristocratic and middle-class.
The common people had little or nothing to say about it
(the US Constitution). William E. Woodward,
(Consensus Historian), A New American History (New
York: Literary Guild, 1937), 230.
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The fifty-five delegates all came from the higher social
and financial classes. William E. Woodward, (Consensus
Historian), A New American History (New York: Literary
Guild, 1937), 231-2.
The motivating spirit of the convention, not expressed but
clearly understood--was to make the nation safe from
democracy . . . "The people," said Roger Sherman,
"should have as little to do as may be with government."
William E. Woodward, (Consensus Historian), A New
American History (New York: Literary Guild, 1937), 2323.
Main Ideas:
a) Other Prohibitions. US Constitution: Article I.
Key Words:
Section 10. No State shall enter into any treaty, alliance,
Analysis:
or confederation; grant letters of marque and reprisal; coin
money; emit bills of credit; make any thing but gold and
silver coin a tender in payment of debts; pass any bill of
attainder; ex post facto law, or law impairing the
obligation of contracts, or grant any title of nobility.
[A Bill of Attainder has an irrebutable presumption of
guilt. An example is that all persons named Benjamin
Franklin are guilty of treason].
[An ex post facto law literally refers to a law that is passed
after the fact. Thomas Jefferson smokes cannabis on day
one. Congress passes a law outlawing smoking of
marijuana on day two. On day three Thomas Jefferson is
convicted of violating this drug law. Jefferson defense is
that is an ex post facto law. On day one, Jefferson did a
legal act. The legislature illegally passed a law,
prohibiting previously legal conduct. Instead of applying
that legislation to future violators, they reached back and
snagged Jefferson, who had no opportunity to conform his
conduct to the course of law].
No State shall, without the consent of the Congress, lay
any imposts or duties on imports or exports, except what
may be absolutely necessary for executing its inspection
laws; and the net produce of all duties and imposts, laid by
any State on imports or exports, shall be for the use of the
treasury of the United States; and all such laws shall be
subject to the revision and control of the Congress.
No State shall, without the consent of Congress, lay any
duty of tonnage, keep troops, or ships of war in time of
peace, enter into any agreement or compact with another
State, or with a foreign power, or engage in war, unless
actually invaded, or in such imminent danger as will not
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admit of delay.
Main Ideas:
b) Amendments. US Constitution: Article V. The
Congress, whenever two thirds of both houses shall deem Key Words:
Analysis:
it necessary, shall propose amendments to this
Constitution, or, on the application of the legislatures of
two thirds of the several States, shall call a convention for
proposing amendments, which, in either case shall be
valid to all intents and purposes, as part of this
Constitution, when ratified by the legislatures of three
fourths of the several States, or by conventions in three
fourths thereof, as the one or the other mode of ratification
may be proposed by the Congress; provided that no
amendments which may be made prior to the year one
thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth section of the
first article; and that no State, without its consent, shall be
deprived of its equal suffrage in the Senate.
IV. Strict Construction vs. Necessary and
Proper Clause. Take a stand on this issue.
Discuss and evaluate both positions.
1. Elastic Clause vs. Limited Powers. Is the Necessary
and Proper clause of the US Constitution inconsistent with
the concept of limited government. Does it override other
specific positions? Take a position on this issue and
explain your reasoning.
US Constitution: Article I. Section 8. The Congress shall
have power . . . To make all laws which shall be necessary
and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in
the government of the United States, or in any department
or officer thereof.
Implied Powers. In McCulloch vs. Maryland, Marshall
ruled . . . The government of the Union, he said, is limited
in its powers, but it is supreme within the authority
delegated to it. He then proceeded to define the "implied
powers" of the federal government. Here is the definition,
which has become a legal classic: "Let the end be
legitimate, let it be within the scope of the Constitution,
and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are
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constitutional." William E. Woodward, (Consensus
Historian), A New American History (New York: Literary
Guild, 1937), 360.
Bill of Rights: Article IX. The enumeration in the
Constitution of certain rights, shall not be construed to
deny or disparage others retained by the people.
Bill of Rights: Article X. The powers not delegated to the
United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people.
Main Ideas:
2. Strict Construction. Strict constructionists, such as
Key Words:
Thomas Jefferson, say that the Constitution contains a
Evaluation:
very specific list of enumerated or listed powers, a very
specific list of prohibited powers and only a very narrow
necessary and proper clause; therefore, the implied power
should be interpreted very narrowly. Consistent with the
separation of powers, the retained rights, the reserved
rights, and limited government the implied powers should
be very narrowly construed.
A) Broad Construction. By contrast, the Federalists,
who supported a strong federal government, argued that
our Founding Forefathers could not see every contingency
and the Necessary and Proper Clause should be interpreted
broadly constrained only by common sense. The
Constitution is a living document which was intended to
endure through the ages.
B) Enumerated Powers. US Constitution, Article I,
Section 8. The Congress shall have power: To lay and
collect taxes, duties, imposts, and excises, to pay the debts
and provide for the common defense and general welfare
of the United States; but all duties, imposts and excises
shall be uniform throughout the United States; To borrow
money on the credit of the United States; To regulate
commerce with foreign nations, and among the several
States, and with the Indian tribes; To establish an uniform
rule of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures; To
provide for the punishment of counterfeiting the securities
and current coin of the United States; To establish post
offices and post roads; To promote the progress of science
and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings
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and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on
the high seas and offenses against the law of nations; To
declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water; To raise and
support armies, but no appropriation of money to that use
shall be for a longer term than two years; To provide and
maintain a navy; To make rules for the government and
regulation of the land and naval forces; To provide for
calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions; To provide
for organizing, arming and disciplining the militia, and for
governing such part of them as may be employed in the
service of the United States, reserving to the States
respectively the appointment of the officers, and the
authority of training the militia according to the discipline
prescribed by Congress; To exercise exclusive legislation
in all cases whatsoever, over such district (not exceeding
ten miles square) as may, by cession of particular States,
and the acceptance of Congress, become the seat of the
government of the United States, and to exercise like
authority over all places purchased by the consent of the
legislature of the State, in which the same shall be, for the
erection of forts, magazines, arsenals, dock-yards, and
other needful buildings; and
A letter of marque and reprisal is a commission by a
governmental official allowing a privateer or pirate to
attack enemy ships and seize the property of a hostile
nation on the high seas. James A. Ballentine, Ballentine's
Law Dictionary (Rochester, New York: Bancroft Whitney,
1969), 727.]
To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of
the United States, or in any department or officer thereof.
C) Denied Powers. Section 9. The migration or
importation of such persons as any of the States now
existing shall think proper to admit, shall not be prohibited
by the Congress prior to the year one thousand eight
hundred and eight, but a tax or duty may be imposed on
such importation, not exceeding ten dollars for each
person. The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or
invasion the public safety may require it. No bill of
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attainder or ex post facto law shall be passed. No
capitation, or other direct, tax shall be laid, unless in
proportion to the census or enumeration herein before
directed to be taken. No tax or duty shall be laid on
articles exported from any State. No preference shall be
given by any regulation of commerce or revenue to the
ports of one State over those of another: nor shall vessels
bound to, or from, one State be obliged to enter, clear, or
pay duties in another. No money stall be drawn from the
Treasury, but in consequence of appropriations made by
law; and a regular statement and account of the receipts
and expenditures of all public money shall be published
from time to time. No title of nobility shall be granted by
the United States: and no person holding any office of
profit or trust under them shall, without the consent of the
Congress, accept of any present, emolument, office, or
title, of any kind whatever, from any king, prince, or
foreign state.
[A writ of habeus corpus is an ancient English common
law idea which literally means give me the body. It is a
writ or piece of paper issued by a court, which tells the
jailer to either charge a defendant with an official crime or
release him from his illegal confinement. James A.
Ballentine, Ballentine's Law Dictionary, 543. A bill of
attainder is a legislative act which inflicts punishment
without a judicial trial. James A. Ballentine, Ballentine's
Law Dictionary, 135. For example, the Congress passes a
law that Halliburton is guilty and must pay $10 billion.
An ex post facto law is a law which in its operation, makes
that criminal which was not so at the time of the act.
James A. Ballentine, ibid., 441. For example, let us
assume that green cars cause 45% more automobile
accidents than any other color of car because they are easy
on the eyes, and in 1992, the legislature bans green cars
effective back to 1990. GM argues that making green cars
was legal in 1991, and it is unfair to allow the government
to making some a crime after the fact. We need notice and
the opportunity to bring our conduct into compliance with
the law, before we can be held accountable.]
D) Prohibited Powers. Section 10. No State shall enter
into any treaty, alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver coin a tender in
payment of debts; pass any bill of attainder; ex post facto
law, or law impairing the obligation of contracts, or grant
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any title of nobility. No State shall, without the consent of
the Congress, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for
executing its inspection laws; and the net produce of all
duties and imposts, laid by any State on imports or
exports, shall be for the use of the treasury of the United
States; and all such laws shall be subject to the revision
and control of the Congress. No State shall, without the
consent of Congress, lay any duty of tonnage, keep troops,
or ships of war in time of peace, enter into any agreement
or compact with another State, or with a foreign power, or
engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay.
E) Rationale. The legal concept is expressio unius
exclusio alterius. The listing of some alternatives implies
that the legislature has spoken their mind, which means
that alternatives that could have been listed but were not,
should not be read in. If the legislature outlaws red,
orange, blue and pink cars, they have spoken their mind,
and courts should not imply that green and brown cars
should also be outlawed because they serve the same
purpose.
F) Application. The first major application of this issue
came when Thomas Jefferson wanted to purchase the
Louisiana territory from France, and his opponents argued
that the Constitution's enumerated powers did not allow
him to do this. The court has held that the interstate
commerce clause must have included the power to
regulate against the transport of sick chickens across state
lines. Schecter Poultry Corp. v. United States (1933).
The Court has ruled that Congress' land grants for Indian
reservations must have included grants for water. Winters
v. United States (1908).
V. Runaway Government. Take a stand on this
issue. Discuss and evaluate both positions. Some have
argued that the federal government has run wild and now
overpowers our state governments, the separation of
powers, checks and balances, the people and our cherished
rights. These people hope to rein in the federal
government, particular the executive branch.
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