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The U.S. Constitution AP Government & Politics Unit 2 John Locke • English philosopher who wrote Two Treatises on Government in 1690. – Government is a contract between citizens and their rulers. • The purpose of government is: – to protect the rights of life, liberty, and property. – to create order in society. – Citizens have the right to rebel against a government that does not respect the rights of its citizens. – Rulers should stay in power only as long as they have the consent of the people they govern. • John Locke’s writings were used as a model for the Framers – Especially Jefferson Articles of Confederation – Adopted by Congress on November 15, 1777, the Articles became operative on March 1, 1781 – The Articles of Confederation-- in effect, the first constitution of the United States. – Did not work very well at governing the young country. The Weaknesses of the Articles • • • • Could not tax Could not raise a national army Could not coin/print money No Regulation of trade between states • • • No Executive Branch No Judicial Branch A unicameral (one-house) Congress –States charged each other tariffs –9 of 13 votes to pass a law –13 out of 13 states needed to amend. Representatives were frequently absent! The Constitutional Convention • The Philadelphia Convention (now also known as the Constitutional Convention), took place from May 25 to September 17, 1787, to address problems in The United States of America following independence from Great Britain. The Constitutional Convention • Although it was only supposed to revise the Articles of Confederation, many of the Convention's delegates, including James Madison and Alexander Hamilton, were there to create a new government rather than "fix" the existing one. The Constitutional Convention • The delegates elected George Washington to preside over the convention. • The result of the Convention was the United States Constitution!!!! Virginia Plan • On May 29, 1787, Virginia proposed what became known as "The Virginia Plan.”. • The legislature was to be set up with 2 houses: one with members elected by the people for 3-year terms and the other composed of older leaders elected by the state legislatures for 7-year terms. • Both would use population as a basis for dividing seats among the states. New Jersey Plan • After two weeks of debating the Virginia Plan, a counterproposal was put forth by William Patterson, which has become known as the New Jersey Plan (or the Small State Plan or the Patterson Plan). • The plan once again offered the idea of a unicameral (one house) legislature in which all states would have an equal number of votes The Great Compromise (AKA Connecticut Compromise) • To solve the differences regarding representation the Framers appointed a committee which recommended a compromise, known as the Connecticut Compromise or the Great Compromise. • The solution contained three important parts: Congress would be a legislature, with a Senate and a House of Representatives. • The small states received the equal representation they desired in the Senate. The large states won control of the House which was given important powers related to taxing and spending. Bicameralism • What other reason explains why ELSE did the Framers created 2 the parts/houses of Congress? • Be able to explain! US Constitution • The Constitution of the United States comprises the primary law of the U.S. Federal Government and the landmark legal document of the United States. • The Constitution of the United States is the oldest Federal constitution in existence and was framed by a convention of delegates from twelve of the thirteen original states in Philadelphia in May 1787. • It also describes the three chief branches of the Federal Government and their jurisdictions. In addition, it lays out the basic rights of citizens of the United States. The Organization of the US Constitution • There are seven Articles in the Constitution • The Articles are divided into Sections • Sections are divided into Clauses Example: I. Article 1. Section 1. Clause Know the Seven Articles! • Article I – The Legislative Branch • Article II – The Executive Branch • Article III – The Judicial Branch • Article IV – Relationships among the States • Article V – Amending the Constitution • Article VI – Supreme Law of the Land – Debts, Supremacy, Oaths of Office • Article VII – The Ratification Process The Federalist Papers • Essays written in 1787 and 1788 by James Madison, John Jay, and Alexander Hamilton under the penname of Publius • Designed to advocate the ratification of the new constitution by the states – “An authoritative but unofficial explanation of American government by those who created it.” Why was the Constitution Framed? The Roche and Beard Theories • Charles Beard argued that the framers who had drafted the American Constitution acted more on economic motives than for abstract ideals (An Economic Interpretation of the Constitution of the United States- 1913) Charles Beard 1874-1948 •John Roche saw the framers as practical politicians who were above all nationalists seeking the necessary compromises to get agreement among themselves and from the people. Important Constitutional Powers to Know • Enumerated Powers – (or delegated or expressed) • Reserved Powers • Concurrent Powers • Implied Powers • Denied Powers Federal, State, and Shared Powers Enumerated Powers (Expressed or delegated) Powers given to the federal government The Federal Government can: declare war provide for the national defense establish foreign policy and conduct diplomacy admit new states regulate interstate commerce establish a postal system set standard weights and measures coin money *make all laws necessary and proper for carrying out delegated powers * elastic clause Concurrent Powers Powers shared by the federal and state governments Both the federal and state governments can: make and enforce laws levy taxes borrow money charter banks establish courts provide for the public welfare Reserved Powers Powers held only by the states or the people They are not listed but include: establish and maintain schools establish local governments regulate trade within the state make marriage laws assume all other powers not delegated to the national government or prohibited to the states Enumerated Powers (or delegated or expressed) • Enumerated Powers are powers given to the federal government by the terms of the U.S. Constitution. – These powers are found in Article I Section 8 of the United States Constitution • They enumerate the authority granted to the United States Congress. • Congress may exercise only those powers that are stated in the Constitution, and are limited by the Bill of Rights and the other protections found in the Constitution. Reserved Powers • Reserved powers are those that have been reserved specifically for the states or are of a traditionally state scope. • These consist mostly of police powers, such as providing fire and police protection, establishment of health regulations, licensing, and education(?). Concurrent Powers • Concurrent powers are those held to some extent by both the federal and state governments. • Both, for example, have taxation power, the ability to construct and maintain roads, and other spending for the general welfare. Implied Powers • Implied Powers give the branches of government flexibility when it comes to carrying out their express powers. – The Legislative Branch’s implied powers flow from the Necessary and Proper Clause. – The Executive Branch’s implied powers flow from the powers of Commander-in-Chief, and the Executive's emergency powers. – The Judicial Branch has assumed the implied power of judicial review, as shown in Marbury v. Madison. Denied Powers • Many things are denied of both or either levels of government. – States, for example, have no authority to coin money or wage war. – Neither may pass a bill of attainder or any ex post facto law. • The Bill of Rights applies restrictions to the federal government, but Bill of Rights originally had no effect of restriction on the states. • However, interpretation of the 14th Amendment's due process clause has incorporated much of the upholding of civil rights to the states. all of the Bill of Rights applies restrictions to the federal government. Important Clauses of the Constitution to Know • Supremacy Clause • Necessary and Proper Clause • Commerce Clause • Contract Clause • Full Faith and Credit Clause • Republican Form of Government Clause Supremacy Clause • Article VI- "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding….” • Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. Necessary and Proper Clause • Article I- Section 8 – “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” • Also known as the elastic clause because it can be used to stretch the powers of the federal government • This clause grants to Congress the power to enact laws to carry out the “enumerated powers” which are specifically assigned to the federal government. Commerce Clause • Article I, Section 8, Clause 3 – "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." • The direct source of one the most important powers of the federal government • Strengthens federal power while setting limitations on state power Contract Clause • Article I, Section 10, Clause 1 – 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 any Title of Nobility. • The Contract Clause applies to contracts between private individuals or contracts made by a state government. – However, if a contract endangers the health, safety, or welfare of the public, the state may regulate or void it. Full Faith and Credit Clause • Article IV, Section 1. – “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state... – Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. • The Full Faith and Credit Clause requires each state to recognize a judgment entered in another state Republican Form of Government Clause • Article IV, Section 4 – The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence • This insures that the citizens of each state that their state governments elect their officials and that republican standards are followed Methods of Formally Amending the Constitution Part 1. Proposing an Amendment • There are essentially two ways spelled out in the Constitution for how to propose an amendment. 1. By way of the Congress 2. By way of the states • The second way has never been used. Methods of Formally Amending the Constitution Proposal by Congress Method • The first method is for a bill proposing to pass both houses of the legislature, by a two-thirds majority in each. • This is the route taken by all current amendments. – Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd). Methods of Amending the Constitution Proposal by the States Method • The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States • These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. – This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about. Part 2 Approval/Ratification by the States • Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. • Once the amendment has passed both houses, it goes on to the states where ¾ of states must ratify it Part 2 Approval/Ratification by the States • There are two ways to do this, too. 1. Through the state legislatures 2. Or by a state convention. • Amendments are sent to the legislatures of the states by default. • Only one amendment, the 21st, specified a convention. • In any case, passage by the legislature or convention is by simple majority. To Summarize…. The Constitution, then, spells out four paths for an amendment: 1. Proposal by convention of states, ratification by state conventions (never used) 2. Proposal by convention of states, ratification by state legislatures (never used) 3. Proposal by Congress, ratification by state conventions (used once- 21st) 4. Proposal by Congress, ratification by state legislatures (used all other times) Methods of Informally Amending the Constitution The Informal Process • There are essentially two ways that change can occur: 1. Through the courts and judicial review • Established in Marbury v Madison 2. Through social and cultural change • Laws, regulations, referendums passed concerning equality for all; modern ideas… The Bill of Rights • A number of prominent Americans were alarmed at the omission of individual liberties in the proposed constitution. • The Bill of Rights satisfied these critics and in 1791 became the first ten amendments to the Constitution.....known collectively as The Bill of Rights. Practice Constitution Quiz Articles I II III IV V VI VII Amendments 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. For the Quiz: Know The Bill of Rights!! (FYI: Quiz has actual wording) 1. Freedom of religion, speech, press, assembly, and petition. 2. Right to keep and bear arms in order to maintain a well regulated militia. 3. No quartering of soldiers. 4. Freedom from unreasonable searches and seizures. 5. Right to due process of law, freedom from selfincrimination, double jeopardy. 6. Rights of accused persons, e.g., right to a speedy and public trial. 7. Right of trial by jury in civil cases. 8. Freedom from excessive bail, cruel and unusual punishments. 9. Other rights of the people. 10.Powers reserved to the states. • Amendment I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. • Amendment II – A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. • Amendment III – No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. • Amendment IV – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. • Amendment V – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. • Amendment VI – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. • Amendment VII – In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. • Amendment VIII – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. • Amendment IX – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. • Amendment 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. Amendment XI The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Amendment XII The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President…directed to the President of the Senate •Amendment XIII Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. •Amendment XIV All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. •Amendment XV The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. •Amendment XVI The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration •Amendment XVII The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures •Amendment XVIII After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Amendment XIX The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Amendment XX The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. , at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Amendment XXI The eighteenth article of amendment to the Constitution of the United States is hereby repealed Amendment XXII No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. Amendment XXIII The District (of Columbia) constituting the seat of government of the United States shall appoint in such manner as the Congress may direct a number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state… they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President… Amendment XXIV The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax. Amendment XXV In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Amendment XXVI The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. Amendment XXVII No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened. AP Government Case File • Name of case- Date of Decision • Facts of Case– What happened, who won • Importance of Case – How did the Supreme Court decision impact the law, how we live, work… • Unit 2 Case File – Cases that deal with federalism issues • All cases address the question of: – “Is the state or the federal government supreme in the area of…” • Case files will be checked periodically– No Procrastination!! Marbury v. Madison (1803) • The Judiciary Act of 1801 gave the president the right to appoint members of the judicial branch. • William Marbury had been commissioned justice of the peace in the District of Columbia by President John Adams in the “midnight appointments” at the very end of his administration. • When the new administration did not deliver the commission, Marbury sued James Madison, Jefferson’s Secretary of State. Importance of Case • The Court and Chief Justice John Marshall ruled that a part of the Judiciary Act of 1789 was unconstitutional, thus the appointment was voided. (The BIG winner was the Court and Marshall) • The Court’s decision in Marbury v Madison (1803)established “judicial review”. • Thus the Court could declare acts of Congress, and acts of the president unconstitutional if they exceeded the powers granted by the Constitution. McCulloch v. Maryland (1819) • In 1791, the U.S. government created the controversial first national bank. • The State of Maryland tried to close a branch of the Bank of the United States by making that branch pay $15,000 in taxes. James McCulloch, who worked at the Baltimore branch of the Bank of the United States, did not pay the tax. The State of Maryland took him to court. • Issue #1 – Can there be a Bank of the US?? • Issue #2 – Can Maryland tax the Bank of the US?? Importance of Case • Issue #1 – The Court said YES • Issue #2 – The Court said NO! • Chief Justice Marshall not only endorsed the constitutionality of the bank, but went on to uphold a broad interpretation of the federal government's powers under the Constitution • Marshall also noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution (necessary and proper clause). – Cited the Supremacy Clause in Article VI Clause 2 Gibbons vs. Ogden (1824) • Ogden held a New York State license allowing him to operate a ferry across the Hudson between New York and New Jersey. – Gibbons received a Federal license and claimed that his license superceded that of Ogden. – Was the federal license more important than the state license? Decision and Importance of Case • Yes! – The Court ruled that Gibbon's federal license took precedence over that of Ogden because the federal government was given the power to regulate interstate trade. • Why important- The Commerce Clause expanded federal power • Congressional power to regulate interstate commerce was established. Fletcher v. Peck (1810) • John Peck purchased land in Georgia that had previously been sold under the 1795 Land Act. • A new GA administration passed a law voiding the land grants made by the previous administration (The Yazoo Land Fraud) • Peck sold this land to Robert Fletcher and in 1803 Fletcher brought suit against Peck, claiming that he did not have clear title to the land when he sold it. • Did Fletcher have a case and the right to the land he bought from Peck? Decision and Importance • The Court said YES! • Marshall ruled that the contract had to stand so, Peck’s original contract was held as valid interpreting Article I, Sect 10 of the Constitution to forbid states to declare contracts void. • Importance: Created contract law and invalidated illegal state laws. Dartmouth v. Woodward (1815) • Dartmouth College’s charter was granted by King George III in 1769. • In 1815, the legislature of New Hampshire attempted to invalidate Dartmouth's charter in order to convert the school from a private to a public institution. • The trustees of the College objected, and thus sought to have the act of the legislature declared unconstitutional. • Who won??? Decision and Importance • Dartmouth won! • The decision was in favor of the college, and invalidated the act of the New Hampshire legislature and allowed Dartmouth to remain a private institution. • Importance: Strengthened the Commerce and Contract clause and limiting the power of the States to interfere with private institutions' charters; protected contracts against specifically state encroachments. – More recently it has had the effect of safeguarding business enterprises from state governments’ dominion. Barron v. Baltimore (1833) • Background- John Barron owned a wharf in the harbor at Baltimore. When municipal street construction made his wharf too shallow for most ships to enter, he sued the city. • The suit contended that the city’s action violated the Fifth Amendment, which provides that private property shall not be taken for public use without just compensation. • The legal issue was this: Could the Fifth Amendment be used to restrain the power of a state as well as that of the United States? Importance of Case • No! Chief Justice John Marshall said that the first ten amendments restrained only the federal government not the states constitutions. – Mr. Barron lost his case against the city • Citizens civil and political liberties were not protected from the states according to the case. • Americans would have to wait 100+ years for this to change in Gitlow v New York. Gitlow v NY 1925 – Facts of the Case • Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. • He was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. • However, he did not condone violence or the overthrowing of the government in the pamplet. – Question • Did the New York law violate the free speech clause of the First Amendment? Amendment XIV • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Gitlow v NY 1925 – The Court said “Yes!” – It overturned idea in Barron v Baltimore that the Bill of Rights can only be applied to the federal government and incorporated these rights into the 14th amendment • Known as Incorporation or selective incorporation because the courts are selective when using it – States were now prohibited from “impairing” citizen’s personal freedoms and Constitutional rights not just the federal government • Used 14th Amendment’s “Equal Protection” clause NLRB vs. Jones Laulfin Steel (1937) • Jones operated a national-level iron and steel plant. He was accused of discriminatory discharges of its employees for their involvement in union activities. • He was sued by the National Labor Relations Board for unlawfully firing his employees. • Does Congress have the power to enforce the NLRB regulations at Jones’ business? Decision and Importance of Case • The Court said, “Yes!” – Congress had the power because of the Commerce Clause. • …“(the employees’ firings) could have “immediate and catastrophic effects on interstate commerce”. • Set precedence for other businesses dealing with labor unions who had to follow federal guidelines. Heart of Atlanta Motel vs. United States (1964) • The Heart of Atlanta motel was a large, 216room motel in Atlanta, GA. which refused to rent rooms to black patrons. • The owner of the motel filed suit in federal court, arguing that the requirements of the Civil Rights Act exceeded the authority granted to Congress over interstate commerce. Decision and Importance of Case • The Court said, “NO!” • Why important?-Interstate commerce and public accommodations can not be discriminated – Used often in Civil Rights cases