The Constitution
The Engine of Our Republic
“Supreme Law of the Land”
MAGRUDER’S Chapter 3
The Framers of the
Constitution understood
that conditions would
change throughout time.
George Washington said,
“I do not think we are more
inspired, have more wisdom,
or possess more virtue than
those who will come after us.”
George Washington
(Lansdowne portrait). Oil on canvas.
1796. National Portrait Gallery,
Smithsonian Institution.
For this reason, the framers
devised a system for
amending the Constitution
2 Ways: Formal and Informal.
Formal
2/3 of each house
of the US Congress
can propose
amendments
2/3 of states can call
for a national
convention for the
purpose of proposing
amendments
Formal
3/4 of the state
legislatures
must approve
3/4 of special
state conventions
must approve
Formal amendments take place through the process of
constitutional amendments.
Formal amendments involve changes in the written word
of the Constitution.
The addition of amendments is federalism at work!
***proposals are made at the national level; ratification
takes place State by State. *** (write down)
Since 1789, 10,000 amendments have been introduced in Congress
(not all proposed), but only 27 have been ratified…
Some included fully proposed amendments defeated in the states:
• Voiding citizenship of anyone accepting a foreign title or honor
• prohibiting amendments regarding slavery
• Congressional regulation of child labor laws
• Equal Rights for Women (ERA)
The first 10 amendments, called the Bill of
Rights, were approved by 1791. They outline
the freedoms the government promises to
protect.
• All 27 amendments, except 21st
amendment, was proposed by Congress
by 2/3s vote in both house and ratified by
3/4s states legislatures!!!!!
Amendment 1. Freedom of Religion,
Speech, Press, Assembly, and Petition
Amendment 2. Right to Keep Arms
Amendment 3. Quartering of Troops
Amendment 4. Search and Seizure;
Warrants
Amendment 5. Rights of Accused
Persons
Amendment 6. Right to a Speedy Trial
Amendment 7. Jury Trial in Civil Cases
Amendment 8. Bail, Fines, Punishments
Amendment 9. Rights Not Listed are
Retained by the People
Amendment 10. Powers Not Listed are
Reserved to the States
Amendment 11. Immunity of States
from certain lawsuits
Amendment 12. Election of President
and Vice-President (changes
Electoral College)
Amendment 13. Slavery Abolished
Amendment 14. Citizenship Defined
Equal Protection, and Due
Process
Amendment 15. Right to Vote with No
Racial Barriers
Amendment 16. Income Tax
Authorized
Amendment 17. Election of Senators
by Direct Popular Vote
Amendment 18. National Prohibition
of Intoxicating Liquors
Amendment 19. Right to Vote Given
Nationwide to Women
Amendment 20. changes of dates for
Presidential and Congressional terms
Amendment 21. Repeal of National
Prohibition
Amendment 22. Two-Term Limit for
Presidents
Amendment 23. Presidential Vote for
District of Columbia
Amendment 24. Poll Tax Banned in
Federal Elections
Amendment 25. Presidential Disability
and Succession
Amendment 26. Voting Age Lowered to 18
Years
Amendment 27. Congressional Pay
The last 17 fall into 3 categories.
A. They make public policy.
B. They correct deficiencies in gov. structure.
C. They promote equality.
• Amendments to the United States Constitution
• The Bill of Rights
First 10 Amendments
Scope of Federal Government Power
11th and 16th Amendments
• Federal Elections and Terms
12th, 17th, 20th, 22nd, and 25th Amendments
• Civil War Amendments
13th, 14th and 15th Amendments
• Suffrage Amendments
15th, 19th, 23rd, 24th and 26th Amendments
• Prohibition - 18th and 21st Amendments
Amendment 1. Guarantees our 5 GREAT BASIC FREEDOMS.
[“Civil Liberties” or freedom of expressions are the
keystone of individual freedom.
a. Freedom of Religion or not to have a religion.
People may worship or not worship as they please.
The government cannot favor one religion over
another [separation of church and State – no
prayers or devotional reading from the Bible in school.]
b. Freedom of speech – this freedom is restricted if it
harms others. We have laws against slander [spoken]
or libel [written statements] intended to damage one’s
reputation.
Speech that offends the moral sense [obscenity] of
others or speech that endangers the safety of the
nation [military secrets] may be punished.
c. Freedom of the Press means we can write our
opinions and circulate them to others through T.V.,
newspapers, or magazines. This freedom also
protects our right to know. Obscenity cannot be sent
through the mail but may be viewed in the privacy of
your own house. There can be no prior restraint –
stopping the spreading of news before they are
published or broadcast.
d. Right to assemble for any peaceable purpose.
Any political party or interest group has the right to
hold a meeting as long as they are peaceful.
e. Right to petition government officials, or convey
our opinions to them. You can get people to sign a
petition and send it to government officials.
Amendment 2. Right To Keep And Bear Arms
The purpose was to prevent Congress from denying
States the right to have a militia of armed citizens.
The States and federal government can regulate the
possession and use of firearms by individuals.
Amendment 3. No Quartering of Troops In Homes
This is absolute during peacetime; limited during wartime.
Amendments 4-8 protect the individual in dealing with the
police and courts.
Amendment 4. Limits The Conditions Under
Which Police May Search for and Seize
Evidence and People [Privacy Amendment]
A. No “Fishing Expeditions” by public officials [a search
must be reasonable and based on probable cause].
B. In most cases, a search or arrest warrant will be
necessary. The warrant must describe the specific place
to be searched and the persons or things to be seized.
C. A police officer may chase a suspect into his house
& not secure a warrant (this would be probable cause).
D. The Supreme Court has ruled that evidence gained
as a result of an unlawful search or seizure cannot be
used at the trial. [Exclusionary Rule–has to be excluded]
Amendment 5. Rights of Accused Persons
[5-8 have to do with “rights of the accused”]
A. A person can be tried for a serious crime only if
he has been accused of that crime by a grand jury.
B. No one may be tried twice for the same offense.
[Double Jeopardy clause] – no one may be put in
jeopardy twice for the same offense]
So, if the jury foreman says?
There will be no 2nd trial.
C. No one may be forced to testify against himself
or his spouse. You don’t have to answer questions
by the police or the courts. [Plead the “5th”]
D. No one can be deprived of life, liberty,
or property without due process of law
[fair and equal treatment under the law].
E. The government may take private property for a
legitimate public purpose; but when it exercises that
power of EMINENT DOMAIN [taking property for
public use], it must pay a fair price.
New Cowboys stadium
meant property losses.
Amendment 6. Right To A Speedy Trial
A. IMPARTIAL JURY. You do not have to use a jury
and can have the case transferred if it has received
too much publicity.
B. Right to be told what crime
you are accused of.
C. Right to hear and question all witnesses
against you.
D. The right to compel [require their
testimony] witnesses to appear at
a trial to tell your side of the story.
E. Right to a lawyer.
Marcia Clark
Amendment 7. Jury Trial In Civil Cases [not a
criminal matter – but where one person sues
another] Applies to all disputes in excess of $20.
Amendment 8. No Excessive Bail or Fines, or
“Cruel and Unusual Punishment” [like
torture and beheading] [The Court of Military
appeals has abolished an old Navy punishment
of 3 days on bread and water as both cruel and
unusual]
Tar and
Feathering
The
“Rack”
Amendment 9. Unenumerated Rights – The Constitution
does not describe all of our rights. This amendment
guarantees those fundamental rights not enumerated.
Courts can’t define all your rights but that doesn’t mean
you don’t have them.
Amendment 10. Limits The Power Of The Federal
Government. Powers not granted to the U.S., nor prohibited
to it by the States are given to the States or the people.
But what are they? State and federal governments have fought
over what this means. In 1860, Southern States thought they
had the right to quit the Union, starting the Civil War. The
Union victory cemented the supremacy of federal power.
Both the 9th and 10th Amendments echo the theory of the social
contract; if the people have not agreed to delegate the powers,
people still have them.
As people put the Constitution into practice, they found that the
machinery of government did not work exactly the way its
designers had expected. Slight changes were made in the
11th and 12th Amendments.
Amendment 11. [1798] Removed From The Federal Courts
All Lawsuits By Individuals Against States.
You can bring suit against any State by introducing the case
in the courts of the State that is being sued.
Amendment 12. [1804] Changed The Electoral system
For Choosing The President & Vice President.
Originally, there was no distinction between candidates
for president and vice president.
Civil War Amendments – 13, 14, & 15 – wiped out slavery.
[13 – freed the slaves; 14 – gave citizenship; 15 – gave right vote]
Amendment 13. [1865] Banned Slavery and
Involuntary Servitude.
Amendment 14. [1868] Guaranteed Citizenship to
the Freed slaves and Guaranteed Their Rights.
All citizens were to get “Due Process” [now was applied
to the States] and “Equal Protection” of the laws.
Amendment 15. [1870] Guaranteed The right Of Freed
Slaves To Vote.
Amendment 16. [1913] Income Tax Laws are Legal.
Amendment 17. [1913] Senators Will Be Elected By People,
Not Legislatures.
Amendment 18. [1919] Prohibition [Prohibited the manufacture,
sale, or transportation of alcoholic beverages]
A. Prohibition didn’t stop drinking, or people from
making and selling beer, wine, or whisky.
B. Bootleggers became rich by selling illegal liquor and bribing
government officials. [In 1933, it was canceled by the 21st Amendment]
[This attempt to make public policy was a disaster. It lasted for 14
years (1919-1933). Gangsters bootlegged liquor; people died from drinking
homemade booze; and millions broke the law by drinking anyway.]
Amendment 19. [1920] Women’s Suffrage [Right to vote] In 1972,
218 women from 26 States were arrested for picketing the
White House. 100 went to jail, some for months. Hunger strikes
followed. The movement had began in 1873 by Susan B. Anthony.
Women had been voting in some State and local elections since 1869.
It took 133 years for women to get to vote in national elections.
Amendment 20. [1933]
A. Set new dates for the start of terms for
Congress [January 3, instead of the first
Monday of December following the election]
and for the inauguration of the President
and Vice President [January 20, instead
of March 4]
B. Defeated candidates were called “Lame Ducks”
suggesting that their political wings had been clipped.
This shortened the time they could remain in office.
Amendment 21. [1933] Repealed
the 18th Amendment [Prohibition]
Amendments 22–26 deal with the presidency
and with presidential elections.
Amendment 22. [1951] Two-term Limit For
Presidents or Not More Than 10 Years.
Amendment 23. [1961] Presidential Electors For Washington DC.
A. People living in the nation’s capital could not vote in previous national
elections.
B. This gave them 3 members of the Electoral College, the same number
elected by each of the less populous States. They now could vote.
Amendment 24. [1964] Poll Tax Banned In Federal Elections
A. Five States were still requiring a fee to vote.
Many thought this was discriminatory.
B. Poll taxes were banned in State and local elections in 1966.
[It violated the “equal protection clause” of the 14th Amendment]
Amendment 25. [1967] Presidential Disability and Succession
A. Vice President Succession – President nominates a Vice
President and a majority of both houses must approve.
B. Presidential Disability – this is decided by the Vice President & a majority
of the Cabinet. They send a written proclamation to the President pro
tempore of the Senate and the Speaker of the House. The Vice President
takes over as acting President. When the president recovers, he sends a
written declaration to the same officials. If there is a disagreement over his
recovery, the Vice President and Cabinet sends a new declaration within 4
days of the President’s. Congress must decide by a 2/3 vote within 21 days.
Amendment 26. [1971] Voting Age is Lowered To 18.
Who cannot vote? [the insane, criminals and those dishonorably
discharged from the armed forces]
Amendment 27. [1992] Congressional Pay.
No law changing the compensation for the services of the Senators
and Representatives, shall take effect, until an election of
Representatives shall have intervened.
Informally amending the constitution is not truly amending it, just interpreting
it differently over time, so these are non-constitutional [unwritten] changes.
Many people despise informally amending the constitution citing that it
deviates from the intent of the Framers of the Constitution.
These changes have made the presidency more powerful and have made the
federal government’s power over the States more substantial.
Most changes [informal amendments] have come through reinterpretation of
constitutional rules to suit the times.
Focus
1. Why the informal amendment process is the real key to the changing
constitution.
2. How the Constitution is amended informally.
Most constitutional changes have been brought about through informal
amendments – changes that have been made in the Constitution but that
have not involved any changes in its written words. [unwritten changes]
The informal amendment process is the key to the vitality of the Constitution.
Much of the Constitution can not be seen with the naked eye. It has been put
there by the day-today experiences of government. The Constitution can be
informally amended by all three branches of government.
This occurs in 5 basic ways:
3. Supreme Court Actions [decisions]
1. Congressional Action [law]
2. Presidential Action
4. Political Party Actions
5. Custom
Basic Legislation:
Congress is the major agent of informal
procedures in 2 ways:
1. Pass laws to spell out several of the
Constitution’s brief provisions that were
left “skeletal” by the Framers. The Congress
has added details as times have required.
Article III Section established a Supreme
Court but all “inferior Courts” will be
created by Congress. The 25th Amendment
details minimal presidential succession
roles… therefore the Congress created
more detail.
2. The Constitution give expressed power
to the Congress. For example, it states that
the Congress can regulate foreign and
interstate trade… but how? And what is
regulate foreign and interstate trade? The
Constitution does not say, the Congress
has defined it.
2. Executive Actions: These actions may produce informal
amendments. Nowhere does it say the President can propose
bills or budgets to congress, but Presidents have proposed
hundreds of bills.
Presidents also enter into executive agreements (pacts made with
other foreign executives) rather than negotiate treaties which would
require approval by the Senate. These executive action do carry the
same force of law as a treaty. (write down)
The way some presidents have used their powers have led to a
redefinition of the constitution
Example: The Congress declares war, but the president is commander
in chief. Truman sent troops to Korea even though it says only
Congress can “declare war” so this would be an example of
executive action. Lincoln did this during the Civil War. Kennedy and
Johnson sent troops to Viet Nam. Reagan sent troops to Grenada.
Bush 41 sent troops to Panama. Clinton sent troops to Haiti in 94
and Bosnia in 95. Bush 43 sent troops to Iraq. Presidents, on over
200 occasions, have used their position to order military force
without the consent of Congress.
3. Court Decisions: The Supreme Court’s
interpretation’s of the constitution can be
considered a way to informally amending it.
In Marbury v. Madison, the Court established
Judicial review (not a power listed in the
constitution) and it remains with us today.
In Roe v. Wade found a right to privacy
granting a Constitutional right to abortion.
Engel v. Vitale found that prayer in school
was unconstitutional; Stone v. Graham
found posting of the Ten Commandments
in a classroom was unconstitutional.
Brown v. Board of Education found that
“separate but equal” education was
unconstitutional.
Woodrow Wilson referred to the Supreme
Court as “a constitutional convention in
continuous session.”
4. Party Practices: Even though such
figures as George Washington feared
political parties and advised against
them, they formed and have become
very powerful.
Neither the Constitution nor any law
say anything about how candidates
for president will be nominated. Since
the 1830’s, parties have held
presidential primaries to determine this.
The president picks appointees by
party…etc. (cabinet members) write down
Custom: There are 14 cabinet heads… that
was a creation of the executive branch, not
the Framers, so this is an example of an
informal amendment.
The Vice President has taken over for every
president who has died in office (8 since 1841)
but it wasn’t until the 25th Amendment of the
Constitution that the VP was officially
empowered with the power to take over the
Presidency.
The practice of only serving two terms in office
was well accepted until Franklin D. Roosevelt,
who was elected to 4 terms. As a result, the 22nd
Amendment (1951) of the Constitution was added
to make the precedent set by Washington part of
the Constitution.