CHAPTER TWO
I. Introduction to the Importance of the Constitution
A. The revered national documents of the Declaration of Independence, Constitution, and
Bill of Rights are displayed in Exhibition Hall.
B. It is sealed in a bronze and glass-covered vault to shield it from disintegration.
C. These documents are part of our continuous quest for national identity.
D. The Constitution is more than a symbol; it is comprised of written rules on the
structure of governance and the “Supreme Law of the Land.”
E. It is the first written document of its type in the world, continually adapted to new
problems and often attacked for its failure to handle urban problems over the last few
decades.
F. The growth of presidential power has placed strains on the system of constitutional
government.
G. The Watergate and Iran-contra scandals in the 1970s and 1980s targeted two
presidents for impeachment.
H. Chapter theme: Is the constitutional framework constructed in 1787 flexible enough to
meet the needs of a complex, urban society in the 21st century?
1. Does the process of constitutional interpretation take place fast enough?
2. Why did it take 100 years after the Civil War to apply the Constitution to
outlaw racial segregation?
3. Why did it take 131 years from the founding of this nation to recognize the
rights of women?
4. Who were the framers of the Constitution? What political ideas influenced
them? What bargains were struck?
5. Why does the United States have a federal system of government, and what
does that mean?
6. How did the Supreme Court acquire its power to interpret the Constitution?
How does the Constitution affect our lives today?
II. The Constitution Today
A. Landmark Supreme Court cases show that the Constitution is constantly being
reexamined to meet today’s concerns.
1. In the summer of 2003, two decisions were handed down regarding
affirmative action and the admissions processes at colleges and universities.
Both cases involve the University of Michigan.
2. In Grutter v. Bollinger, the Court ruled that, as an admissions policy,
universities may use race as one factor among many in its decision. It was a
5-4 ruling.
3. In Gratz v. Bollinger, the Court ruled that the use of quotas, or points systems,
are considered to be unconstitutional when attempting to achieve diversity. It
was a 6-3 decision.
4. In 1954, the Court outlawed the “separate but equal” doctrine in public
schools.
5. In 1973, the Court overturned state laws restricting abortion.
III. We Hold These Truths . . .
A. Continental Congresses discuss grievances against England.
B. Richard Henry Lee of Virginia introduced a resolution declaring that colonies are free
and independent.
1. Philosophical basis: writings of people like Tom Paine in Common Sense.
2. Committee assigned to write a Declaration of Independence, led by Thomas
Jefferson.
3. Document is approved on July Fourth. It could be grounds for treason.
Harrison tells Gerry that they could hang for it.
C. The political foundations.
1. John Locke advanced the view of natural rights, a belief that people possess
certain rights that cannot be abridged by government.
2. Locke reasoned that people are born free, possess natural rights, existed in a
state of nature before government existed.
3. People contracted among themselves to form a society to protect those rights.
4. No one should be subjected to political power of another without his own consent;
government is limited by consent of the governed.
5. These ideas—dangerous in the age of the divine right of kings—are directly
reflected in the Declaration of Independence.
D. The English heritage.
1. Ironically, the colonists broke from England because they didn’t feel they were
receiving their rights as Englishmen.
2. Many of the ideas of the Declaration of Independence (1776), Constitution
(1787), and the Bill of Rights (1791) evolved from the English heritage.
a. Magna Carta (1215): British nobles told the king his power was
absolute.
b. Habeas Corpus Act (1679) and the British Bill of Rights (1689).
c. Common law, influenced by the writings of Cooke and Blackstone, is
a system of law expressed in judicial decisions and customs.
3. The heritage was British, but the new institutions were more peculiarly
American.
E. The colonial experience.
1. Puritans pen the Mayflower Compact at Plymouth, Massachusetts in 1620.
a. The 41 signers combine themselves into “a civil body politick.”
b. People set up their own civil law, based on consent of the people, and
create their own civil government.
2. Jamestown had the first elected assembly. The first formal written constitution
was written as the Fundamental Orders of Connecticut. The Massachusetts
Body of Liberties (1641) included trial by jury and due process.
3. The Puritan Calvinist work ethic and strict social codes were cornerstones of
these early documents.
F. The colonial governments.
1. All colonies had written charters that set forth their form of government and
the rights of citizens.
a. All had governors, legislatures, and a judiciary.
2. Royal colonies were the most common, and were controlled by governors
appointed by the crown.
3. Proprietary colonies belonged to individuals given authority by the king. They
appointed governors with the approval of the king.
4. Two charter colonies, Rhode Island and Connecticut, each had genuine selfgovernment with an elected legislature choosing the governor.
5. All but Pennsylvania (the only unicameral legislature) were bicameral.
G. The paradox of colonial democracy.
1. Democracy in the modern sense did not exist in the colonies.
a. Every colony had property qualifications to vote.
b. Women and blacks were not able to vote.
c. Of the 1.85 million living in the colonies, 400,000 were black slaves.
d. A large number of whites were indentured servants.
2. The colonists left Britain for religious toleration, but nine of the thirteen
colonies had an officially established state church that became intolerant of
religious dissent.
a. The Massachusetts Bay Colony executed four Quakers for returning to
the Colony after being banned.
b. In Virginia, the penalty for breaking the Sabbath was death.
c. The first newspaper to appear, Publick Occurrences, was suppressed.
3. The colonial governments also provided institutional models for later:
a. Separation of powers.
b. Constitutional government via written charters.
c. Bicameral legislatures.
d. Elections.
e. Right of judicial appeal to London, foreshadowing the Supreme Court
as arbiter among the states.
f. Shared power with London, a precursor to the federal system.
IV. The American Revolution
A. A growing sense of injury.
1. In the eyes of the crown, Colonists were seen only as economic support.
2. A number of factors encouraged conflict and later revolt.
a. Colonists were expected to pay for British military protection.
b. Colonists subordinated their own economic desires to the needs of
London’s economy.
c. They had no representation in parliament (“Taxation without
Representation”).
3. A series of laws held a tight grip on trade and colonial exports.
a. Committees of Correspondence were formed in 1772 to unite the
colonies.
b. The First Continental Congress met in 1774.
c. War began April, 1775.
d. Second Continental Congress met in 1775.
e. June 1776: Thomas Jefferson pens the Declaration of Independence.
B. The Articles of Confederation.
1. Declaration of Independence proclaimed the colonies “free and independent
states.”
2. The colonies adopted new constitutions, or changed their old charters to
eliminate references to the British crown.
a. Seven of the constitutions contained a bill of rights, but all restricted suffrage.
3. When Richard Henry Lee offered a resolution for independence in 1776, he
proposed a “plan of confederation”: a group of independent states united for a
common purpose.
a. Plan was approved by the Continental Congress in 1777.
4. The Articles of Confederation (1781–1789) became the written framework for
the government of the original thirteen states.
a. Articles created a weak national government dominated by the states.
b. Ratified by March, 1781, and were in effect when the war ended in
October.
c. Established a “league of friendship” among the states.
d. No executive branch existed.
e. Congress was a unicameral body with the power to:
i. establish executive departments, declare war, conduct foreign
policy
ii. ask for revenues, borrow and coin money, and equip and staff
a navy
iii. each state only had one vote, and all actions required the
consent of nine states
f. No national system of courts existed.
g. Major weaknesses: no power to levy taxes, regulate commerce, or
enforce its limited powers.
V. Toward a More Perfect Union
A. The background.
1. Lacking an adequate government, the states came close to losing the peace.
a. They quarreled over boundary lines and tariffs.
b. Some states entered into foreign negotiations, with no strong national
government to conduct foreign policy.
c. By 1786, severe economic depression left many farmers angry and
hungry.
d. All factors combined generated pressure for the creation of a new
government.
2. Virginia, at the request of James Madison, invited all states to the Annapolis
conference in 1786.
a. Only 5 states showed up.
b. Hamilton and Madison proposed a constitutional convention for May
1787.
c. In 1786, angry farmers sought to stop the Massachusetts courts from
foreclosing on their farms.
d. Shay’s Rebellion thoroughly alarmed the aristocrats and merchants.
B. The Philadelphia Convention.
1. Congress approved of the proposed convention to revise the articles in 1787.
C. The delegates.
1. Washington, hero of the Revolutionary War, presided over the convention,
adding instant prestige.
2. Benjamin Franklin, internationally known scientist and philosopher, also
added luster.
3. James Madison of Virginia would provide the diary (journal) that is our best
record of events.
4. Other key figures included Gouverneur Morris, Elbridge Gerry, and the two
Pinckneys (representing the South).
5. All of the states except Rhode Island (which feared a strong national
government and currency to match) sent delegates.
6. About half were college graduates and were generally men of wealth and
influence. They ranged in age from 26 to 81.
D. The setting.
1. To preserve their freedom, the delegates worked in secrecy.
2. The weather was hot in Philadelphia.
3. The convention opened on May 14,1787, and reached a quorum on May 25.
E. The Great Compromise.
1. Randolph’s Virginia Plan proposed an entirely new national government.
a. A bicameral legislature: the lower based on population and chosen by
the people, and the upper selected by the lower.
b. National executive chosen by the legislature, which large states
already controlled.
c. A national judiciary selected by the legislature.
d. The more heavily populated states would control the government.
2. William Paterson of New Jersey proposed the New Jersey plan.
a. Continuation of the Articles Confederation, including one vote for
each state. Congress could impose taxes, regulate trade, and acts of
Congress would become the “supreme law.”
b. An executive of more than one person to be elected by the Congress.
c. A Supreme Court, appointed by the executive.
3. The “Great Compromise” or the “Connecticut Compromise,” called for by
Roger Sherman, broke the deadlock.
a. House of Representatives (lower house) apportioned according to
population of free inhabitants and 3/5 of slaves.
b. Senate (upper house)—equal representation as under the old Articles
Congress comprised of two members of each state.
c. Plan broke the deadlock by guaranteeing the small states an equal vote
in the Senate.
4. In August, the convention drafted a constitution that called for a congress, a
supreme court and a president of the United States of America.
F. The other compromises.
1. Underlying the 3/5 Compromise was a deep-seeded conflict between the North
and the South.
2. The North argued that the slaves must also count for tax purposes as well as
for population.
3. Charles Cotesworth Pinckney of South Carolina argued that his state would
not join the union if the slave trade were prohibited.
a. The slave trade was to end in 1808.
4. The South won an agreement forbidding the imposition of export taxes.
G. We the people.
1. The Committee on Style was named to polish the final draft.
2. Gouverneur Morris, aided by James Wilson, drafted the final version and
added a new preamble.
3. On September 17, thirty-nine men signed the Constitution.
a. Benjamin Franklin had to be helped to the table and wept as he signed.
VI. The constitutional framework.
A. The Constitution represented a practical accommodation among conflicting
sections and interests.
B. It created a strong national government and provided the written framework to control
that government.
C. The Federal System
1. Article VI (the Supremacy Clause) declares that laws passed by Congress
“shall be the law of the land.”
2. The concept of federalism, in which the powers of government are shared by
the national government and the states.
D. The national government.
1. A government divided between three branches: legislative, executive, and
judicial.
2. This created the principles of separation of powers and checks and balances.
a. Each of the three branches are constitutionally equal and independent
of each other while preventing any single branch from becoming too
powerful.
b. Montesquieu’s The Spirit of the Laws (1748) advocated a separation of
powers.
3. Separation of powers is misleading: Although separated, their powers and
functions overlap.
a. Although Congress makes laws, the president submits legislation as
well and vetoes bills passed by Congress.
b. Congress responds to the executive process through the creation of
federal agencies and advises on and consents to executive
appointments.
c. Congress also appropriates money to run the federal government and
may delve deeply into the operations of executive agencies.
4. Through judicial review, the courts decide whether laws passed are
constitutional.
5. The notion of three separate-but-equal branches has eroded in the 20th century.
a. Power has been concentrated in the hands of the president.
b. Congress’s power to declare war has diminished since World War II.
c. Congressional frustration over the president’s ability to wage war
without congressional approval led to the passage of the War Powers
Resolution in 1973.
6. The lines between the branches have become blurred: The complex task of
managing the economy has been delegated to regulatory commissions and
agencies that do not fall neatly into the three branches.
7. Although the three branches are based on separation of powers, they also share
powers in a never-ending tug-of-war for dominance.
E. Great silences.
1. Some issues were so difficult the framers did not attempt to settle them.
2. The question of whether to abolish slavery was not faced so that the 5 southern
states would ratify the Constitution.
3. The framers did not define the full scope of the powers of the national
government.
4. Judicial review is not expressly provided for in the Constitution.
a. The power of judicial review would not be firmly established until
1803, with Marbury versus Madison.
5. The Constitution says nothing about the selection of candidates, political
parties, national conventions, and primaries.
6. The cabinet is not established in the Constitution, and is an extralegal creation.
F. Motives of the framers.
1. Was the strong government formed to protect the interests and property of the
framers, or did they act from nobler motives?
a. Historian Charles Beard’s study concluded that the Founding Fathers
acted to protect their own financial interests.
2. Forrest MacDonald asserted that the 55 delegates acted to the dictates of their
personal economic interests.
3. Robert Brown argued it would be unfair to the farmers to assume that
“property or personal gain was their only motive.”
G. Was it democratic?
1. It is argued that the Constitution was framed to guard against popular
democracy and unchecked majority rule.
2. To the framers, democracy was a term of derision.
3. Some of the provisions appear undemocratic:
a. Slavery was permitted to flourish.
b. States could determine who could vote, and persons without property,
women, and many African Americans were left disenfranchised.
c. Until the passage of the Seventeenth Amendment (1913), senators
were chosen by legislatures.
d. The Constitution imposed an electoral college between the voters and
the presidency.
e. One should not overlook the representative structure of the
government and the revolutionary heritage of the framers.
H. The fight over ratification.
1. The contest over ratification took two and a half years, from 1787 to 1790.
2. The Constitution went into effect in June 1788 when it was ratified by nine
states.
3. Articles of Confederation had required unanimous approval to revise. It was
not possible to use that mechanism because unanimity was virtually
impossible.
4. Article VII states that “ratification of the conventions of nine states shall be
sufficient for the establishment of this constitution.” The framers were
concerned that because the constitution took power away from the state
legislatures, popular conventions would be a sufficient base of national
legitimacy.
5. Federalists versus Antifederalists
a. Antifederalists opposed the Constitution. They also would not support
the new Constitution unless it contained a bill of rights.
b. The Federalists supported ratifying the new document.
c. Although historians pay more attention to the Federalists, the
Antifederalists had a strong case—they argue the framers had exceeded
their mandate to revise the Articles of Confederation.
d. The Federalists argued that the states faced anarchy unless they united
under a central government.
e. Richard Henry Lee’s Letters from the Federal Farmer was the most
effective of the Antifederalist attacks circulated.
f. Hamilton, Madison, and Jay published more than 80 letters to the
editor under the pseudonym Publius (compiled today as The Federalist
Papers) in defense of key parts of the Constitution.
g. By January, 1788, only 5 states had ratified: Delaware, Pennsylvania,
New Jersey, Georgia, Connecticut.
h. On June 21, 1789, New Hampshire became the ninth state to ratify,
putting the Constitution into effect.
VII. America: A Case Study in Nation Building
A. Seymour M. Lipset calls the United States the first “new nation,” since it was the first
colony to successfully revolt.
B. The Declaration of Independence and the success of the American Revolution
influence the French Revolution.
C. Problems of a new nation.
1. The turmoil that accompanied the emergence of new nations in Africa and
Asia demonstrates that independence does not necessarily bring political
maturity and peace.
2. The same is true for Eastern Europe.
3. Yet, despite a Civil War, two world wars, depression, inflation,
unemployment, Vietnam, Watergate, Iran-contra, and the impeachment of two
presidents, America’s revolution has survived.
D. The United States went through growing pains similar to those of Africa and Asia
today.
1. They too encountered difficulty in establishing political freedom and
democratic procedures, as did America.
2. The Federalists wanted no organized political opposition and used the Alien
and Sedition Acts (passed in 1798) to suppress their opponents.
VIII. The Constitution: A Document “Intended To Endure . . . ”
A. It is an evolving document, meant to last throughout the ages according to Justice
Marshall in McCulloch v. Maryland.
B. The principle of flexible construction means that the Constitution must be interpreted
to meet changing conditions.
C. What it says.
1. The legislative branch:
a. Article I vests all legislative powers in a Congress.
b. Qualifications and methods of electing House and Senate members.
c. Authorizes the House to impeach the president and the Senate to try
the case.
d. Empowers the vice president to preside over the Senate.
e. Provides that all tax legislation must originate in the House.
f. Says that the president may sign or veto legislation, and both houses of
Congress override.
g. Lists the powers of Congress (Article 1 Section 8).
h. Section 9 also protects citizens’ rights to habeas corpus, saying a
person is protected from illegal imprisonment.
i. Article 1 Section 9 also forbids Congress from passing bills of
attainder (punitive legislation aimed at a specific person), and ex post
facto laws (punishing a person for an act that was not a crime when it
was committed).
2. Executive branch (Article II) includes:
a. Executive power is vested in the president.
b. Electoral college, not direct popular vote, elects a president, with the
number of electors for each state equal to the state’s number of
representatives and senators.
c. Electoral college is later modified by the Twelfth Amendment,
requiring that electors vote separately for president and vice president.
d. President is commander of armed forces.
e. President makes treaties with the advice and consent of the two-thirds
of a quorum of the Senate.
f. President appoints ambassadors, high officials, and judges with Senate
advice and consent.
g. President may call Congress into special session.
3. The judiciary (Article III):
a. Judicial power is vested in a supreme court and other inferior courts
that Congress may establish.
b. This article calls for trial by jury.
c. Claim of judicial review stems from “all cases” phrasing in this article
and the “supremacy clause” of the Constitution (which is not in this
article).
4. Provisions of remaining articles:
a. Article IV governs relations between the states and the federal
government.
b. Article V covers ways to propose and ratify amendments.
c. Article VI includes the “supremacy clause,” saying that the
Constitution, laws, and treaties of the United States “shall be the
supreme Law of the Land.”
d. Article VII says the Constitution will be considered ratified when
ratified by conventions in nine states.
IX. The Amendment Process
A. Two methods for proposal were provided for.
1. Approval by two-thirds of each house of Congress.
2. National convention called by Congress at the request of the legislatures in
two-thirds of the states.
3. No amendment has ever been proposed by the convention method.
B. Proposals must be ratified by one of these methods:
1. Approval by the legislatures in three-fourths of the states.
2. Special ratifying conventions in three-fourths of the states.
3. Only one—the Twenty-first Amendment—was ratified by state conventions.
The rest were ratified by state legislatures.
X. The Bill of Rights
A. Three historical time periods for amendments.
1. First 12 between 1791 and 1804 as remedial amendments designed to perfect
the original instrument.
2. Next three after the Civil War designed to deal with the new position of
blacks.
3. The rest were 20th century amendments, reflecting demands for social change.
B. The Bill of Rights (first 10 amendments providing protection from federal power).
1. The provisions of the first four are:
a. (First) Freedom of religion, speech, press, assembly, and petition.
b. (Second) The right to bear arms.
c. (Third) Protection against soldiers quartered in homes.
d. (Fourth) Protection from unreasonable search and seizure.
2. The Fifth provides that no person shall be a witness against himself or stand
trial twice for the same crime.
3. The Sixth calls for a speedy trial and a lawyer in criminal cases.
4. The Seventh provides for a jury trial, even in civil cases.
5. The Eighth bars excessive bail or fines, or cruel and unusual punishment.
6. The Ninth Amendment provides the enumeration of certain rights but shall not
deny other rights retained by the people.
7. The Tenth Amendment reserves to the states, or to the people, powers not
delegated to the federal government.
8. These ten were designed to protect Americans against the power of the federal
government. The Constitution does not require state governments to also abide
by the Bill of Rights.
C. The later amendments.
1. The Eleventh Amendment (1795) protects the states from being sued by
private citizens or foreigners.
2. The Twelfth Amendment (1804) provided that electors must cast separate
ballots for president and vice president.
3. Three amendments resulted from the Civil War:
a. The Thirteenth (1865) forbids slavery and outlaws involuntary servitude.
b. The Fourteenth (1868) makes former slaves citizens.
c. The Fifteenth (1870) bars federal and state governments from denying people
the right to vote.
4. States may not “abridge the privileges and immunities of citizens.”
5. States may not “deprive any person of life, liberty, or property, without due
process of law” nor deny anyone “the equal protection of the law.”
6. The Sixteenth (1913) allowed Congress to create a tax on individual incomes.
7. The Seventeenth (1913) provides for direct election of senators by voters,
rather than by state legislatures.
8. The Eighteenth (1919) established Prohibition by outlawing the
manufacturing, transport, and sale of alcoholic beverages.
9. The Nineteenth (1920) guaranteed women the right to vote.
10. The Twentieth (or “lame duck”) Amendment (1933) sets the terms of the
president and vice president begin on January 20 and the terms of the new
Congress on January 3.
11. The Twenty-first (1933) repealed Prohibition and the Eighteenth
Amendment.
12. The Twenty-second (1951) limits presidents to two terms plus two years of
an unexpired term of a predecessor, for a total of ten years.
13. The Twenty-third (1961) gives citizens of the District of Columbia the right
to vote in presidential elections.
14. The Twenty-fourth (1964) abolished the poll tax as a prerequisite for voting
in federal primaries and state primaries.
15. The Twenty-fifth (1967) defines the circumstances in which a vice president
may take over the leadership of the country in case of presidential disability.
16. The Twenty-sixth (1971) gives persons 18 years old and older the right to
vote in all elections.
17. The Twenty-seventh (1992) prohibits Congress from voting itself a pay raise.
18. Other constitutional amendments have been suggested:
a. The House Republicans proposed an amendment that would balance
the federal budget. However, it failed in the Republican-controlled
Senate.
b. Congress also failed to pass an amendment to limit the terms of its
members to twelve years.
c. The Equal Rights Amendment (ERA) was proposed in 1972 and sent
to the states for approval. At the height of its popularity, it got the
approval of 35 states—three short of what was required. The approval
term was extended by Congress to ten years, but the amendment
failed.
d. In 1983 an effort to repropose the ERA failed.
e. Other proposed amendments have been offered to vacate Roe v. Wade,
to allow prayer in public schools, and to institute a line item veto for
the president.
f. In 1996, Congress legislated a line item veto for the president. This decision, signed by
President Clinton, may not pass constitutional muster since it might be seen as violating the
Constitution.