unit 1: the constitution and the bill of rights

The Supremacy Clause

Article VI of the Constitution states that the Constitution itself, all national laws, and the treaties made by the federal government hold supreme authority in the nation. Thus, in a conflict between national law and state law, national law remains superior to state law. All national and state officers and officials are bound by oath to support the Constitution of the United States above any state law.

Separation of Powers and Checks and Balances

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether one, a few, or many . . . may justly be pronounced the very definition of tyranny." —Federalist Paper Number 47 The Framers firmly believed in the idea of the separation of powers. The phrase "separation of powers" refers to a government system in which power is shared, usually between three branches. The US Constitution divides the national government between the legislative branch, the executive branch, and the judicial branch. Congress, which has the authority to pass laws, makes up the legislative branch. The president, who possesses executive authority, implements the laws passed by Congress. The judicial branch, which consists of the Supreme Court and lower courts, interprets laws and decides what is constitutional. In addition to dividing the powers of the government, the Framers also gave each branch the power to stop or influence the actions of the other branches. This power to interfere established a system of checks and balances. Under the system of checks and balances, the president has the power to appoint the members of the Supreme Court. The president also has the power to call a special session of Congress and the power to veto, or reject, laws passed by the legislature. Congress on the other hand, has the power to override the president's veto with a two-thirds majority vote. Congress holds the final power to fund presidential initiatives and can approve presidential nominees to the Supreme Court and other positions. If the president or a judge does something illegal, Congress also has the authority to remove officials through the process of impeachment. The Supreme Court primarily exerts the power of judicial review. If the court decides that a law passed by Congress or an action of the president goes against the Constitution, it can declare that law or action unconstitutional and nullify it.

The Legislative Branch

Article I describes the powers, form, and process of Congress. Elections limit the power of government by requiring the public's consent for the actions of legislative members. The Constitution allows small and large states to be equally represented: the House represents each state based on population; the Senate has equal representation for all states, with two senators per state. The people elect representatives to the House every two years, reflecting that sovereignty rests with the people. Originally, the state legislatures chose senators, but since 1913 the public has directly elected senators to six-year terms. The Senate and the House have almost equal powers of legislation. Because all laws must pass both the Senate and the House, each chamber acts as a check on the other. Nonetheless, each branch of Congress has certain special powers. For example, bills that propose taxes must originate in the House. The Senate's unique powers include confirming presidential appointments (by a majority vote) and approving treaties negotiated by the president (by a two-thirds vote).

The Executive Branch

Article II of the Constitution describes the powers of the president, the qualifications for the office, the process for indirectly electing the president and vice president through an Electoral College, and the executive departments that serve under the president. Designing the executive branch was a difficult task for the Framers. They believed the country needed a strong executive, but they feared making the president as powerful as the British king. Despite this fear, the Framers gave the president these important powers: -conducting foreign affairs -acting as supreme military director -appointing executive and judicial officers -pardoning those accused of a crime -vetoing legislation

The Judicial Branch

Article III details the powers of the judicial branch. This section describes how the Supreme Court will be the chief court of the land. Article III, Section 1, states: "The judicial power of the United States shall be vested in one Supreme Court . . . The judicial power shall extend to all cases, in law and equity, arising under this Constitution." Article III gives the Supreme Court and other federal courts the power to check the other branches by reviewing laws and executive actions and determining whether they violate the Constitution.

Interstate and Federal-State Cooperation

Article IV of the Constitution provides for cooperation among the states, as well as between the states and the national government. This article requires the states to respect one another's laws and court actions, to aid each other in bringing persons accused of crimes to justice by returning fugitives to the states from which they fled (extradition), and to return runaway apprentices, indentured servants, and slaves to their masters. Article IV, Section 4, says that the national government must assist states in preserving rights of self-government, repelling invasion, and keeping order.

Amending the Constitution

Article V of the Constitution states "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . . " With these words, the Framers set up the process for amending the US Constitution. The Framers understood that the Constitution should be able to change to fit a changing US society. The Constitution may be amended in one of two ways—either through a two-thirds vote of Congress, which must then be ratified by three-fourths of the states, or through a convention called by Congress at the request of two-thirds of the state legislatures. Amending the Constitution is a slow and difficult process, which is why the Constitution has only 27 amendments.

Ratification

Article VII briefly describes how nine of thirteen states were needed to ratify the Constitution for it to be considered in force.

The Third Amendment: Quartering Troops

Compared with other amendments, this one speaks in a very straightforward manner. Recall that one of the grievances against the British king in the Declaration of Independence was that the British forced the colonists to quarter, or house, soldiers in their homes. The Third Amendment prohibits the government from forcing citizens to house soldiers in times of peace. In times of war, the government can do so only in accordance with the law. Other than reinforcing the general superiority of civilian (nonmilitary) authority over military authority, the Third Amendment has had little effect on US society. In fact, in the more than two centuries since it was passed, the Supreme Court has never directly considered this amendment.

Religious Freedoms

England, along with many other European countries, maintained an official religion, the Church of England. Many early colonists came to America fleeing religious persecution in their own country. The religious freedom clause of the First Amendment actually contains two pillars. It states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." The first pillar prohibits the government from establishing an official religion. That means that the government cannot support one religious group over another. The second pillar prohibits the government from interfering with the "free exercise" of religion. The government cannot make laws that prohibit or limit the practice or expression of religious beliefs. The Founders based the religion clause on the principle of separation of church and state, which holds that government should not involve itself in religious matters. Despite the First Amendment, the government does involve itself in religion, though sometimes in subtle ways. For example, the government provides tax breaks for churches, works with religious charities, and appoints military chaplains to serve the religious needs of the US military forces.

Federalism

Federalism refers to how governing powers are shared between nation, state, and local governments. The Articles of Confederation, which structured the first government of the United States, gave all power to the states, making the national government too weak to run the country. Under the federal system, states run most of their affairs, but the national government takes precedence in many matters. Like separation of powers, federalism divides the authority of the government. Under the new federal system, the Constitution gave the national, or federal, government significant powers and granted the states some authority within their own borders. The states and the federal government share responsibility in some areas, including taxation, where both have the power to tax. You may have noticed that people pay state taxes, such as sales taxes, and federal taxes, such as the federal income tax. Federalism provides a compromise between the centralism of the British system and the loose affiliation experienced under the Articles of Confederation. Although the states retained much of their earlier authority, the Constitution increased the power held by the central government.

The Bill of Rights

For centuries, Americans have been taught to defend and cherish the freedoms we have in our society. But where do these freedoms come from? The Bill of Rights describes many of the rights and freedoms Americans enjoy. Most Americans know the First Amendment well. It guarantees a number of basic rights: -freedom of religion -freedom of speech -freedom of the press -the right to peaceably assemble -the right to petition the government

Other Notable Amendments

In 1919, the Eighteenth Amendment forbade the sale, manufacture, and transportation of alcohol in the United States. This amendment greatly divided people's opinions. During the 1920s, black markets developed for alcohol, leading to smuggling in the United States. (The video shows government officials destroy alcohol during prohibition.) After 14 years, Congress repealed the Eighteenth Amendment. The Twenty-First Amendment, passed in 1933 stated, "The eighteenth article of amendment to the Constitution of the United States is hereby repealed." The Eighteenth Amendment remains the only amendment to have been repealed. Adopted in 1971, the Twenty-Sixth Amendment lowered the legal voting age from 21 to 18. Today all adult US citizens ages 18 and older, other than convicted felons and certain others, have the right to vote.

Loose Constructionism and Originalism

Interpreting the Constitution invites heated debate as well. Choosing to amend the Constitution or deciding whether it allows a certain branch or official to have certain powers brings up various viewpoints. These debates tend to find people in one of two camps: Those who interpret the Constitution broadly embrace the idea of "loose constructionism." Those who believe that the original intent or meaning of the Framers should guide the interpretation encourage a view called "originalism."

Fourth Amendment: Search and Seizure

Like several other amendments, the Fourth Amendment responded directly to the colonists' experiences under British rule. In the years before the Revolution, the British subjected the colonists to "writs of assistance," which authorized customs officers to conduct generalized searches in order to find smuggled items. The colonists believed that the broad intrusiveness of the writs of assistance violated people's privacy. The Fourth Amendment aims to protect citizens from the improper or intrusive use of government power, particularly by the police. To protect the people against arbitrary intrusions into their privacy, the Amendment bans "unreasonable searches and seizures." It also forces police officers to obtain a warrant before searching or confiscating a person's property. Unlike the hated writs of assistance, warrants must be based on probable cause and be specific about the reason, purpose, and location of the search. The Supreme Court has enforced the provisions of this amendment by holding that illegally obtained evidence cannot be used in a trial.

Beyond the Bill of Rights

The Bill of Rights, which contains most fundamental civil liberties, provides the American people's primary defense against government violations of those rights. American citizens possess additional constitutional liberties, however, that are not mentioned in the Bill of Rights. Congress and the states added more amendments later to help the country live up to its founding credo, "all men are created equal."

The Abolition of Slavery

The Civil War had many effects on the United States: the outcome of the war reunited the nation and also legitimized the federal government as the nation's sovereign power. In addition, the Civil War became a turning point for equality and civil rights. After the Union defeated the Confederacy's attempt to secede from the United States, the country passed three amendments intended to end slavery and extend freedoms and rights to more people. Even though they spoke of the natural and unalienable rights of man, the Founding Fathers failed to resolve the slavery issue within the Constitution. One of the most serious flaws of the Constitution and the Bill of Rights remained that both permitted the enslavement of a substantial portion of the American population. After the war, the United States abolished slavery and forced labor by passing the Thirteenth Amendment to the Constitution. The abolition of slavery did not, however, mean that African Americans and other oppressed people automatically received full rights.

Articles of the Constitution

The Constitution consists of seven articles that describe the powers and functions of US government.

Eighth Amendment: Criminal Punishment

The Eighth Amendment prohibits the imposition of "excessive" fines or bail and bans "cruel and unusual punishment." The definitions of "excessive" and "cruel and unusual" remain unclear. For example, some people believe that the death penalty always exacts an excessive or cruel punishment. This idea lies open for debate and has been controversial for a long time.

The Fifteenth Amendment

The Fifteenth Amendment emerged in the wake the Civil War, along with the Thirteenth and Fourteenth Amendments. Although the Fifteenth Amendment theoretically guaranteed African American men the right to vote, states soon found ways to get around the requirements of the amendment. Many states instituted literacy tests and poll taxes designed to prevent African Americans, who were mostly poor and uneducated, from voting. At the same time, the states instituted grandfather clauses, which automatically gave descendants of voters the right to vote. These restrictions disenfranchised many poor whites in addition to nearly all blacks.

Fifth Amendment: Rights of Persons Before the Law

The Fifth Amendment helps define citizens' rights before the law. Before someone can be brought to trial for a serious offense, the Fifth Amendment requires an indictment, or formal accusation, by a grand jury. The amendment prohibits trying a person twice for the same crime (known as double jeopardy). The government also cannot force people to testify against themselves in court. The due process clause of the Fifth Amendment is one of the most important lines in the Bill of Rights. The clause stipulates that "no person shall be . . . deprived of life, liberty, or property, without due process of law." Due process ensures that the nation is governed according to the rule of law and not the personal, unfair decisions of those in power. This principle carries such importance that it is reiterated in the Fourteenth Amendment, which applies the due process clause to the states.

Political Freedom and Freedom of Speech

The Founding Fathers believed that the free exchange of ideas establishes an essential precondition of a democratic government. Without the right to learn about the world and freely exchange opinions with other citizens, true democracy cannot exist. For this reason, the First Amendment guarantees people the right to express their opinions freely in private or in public. The First Amendment forbids laws that prevent freedom of speech or freedom of the press. There are limits to these rights, however. For example, a person is not allowed to shout fire in a crowded theater in the hope of creating a panic. Freedom of the press is also limited. If you publish a false and damaging accusation about someone, you can be sued for libel. The First Amendment also prohibits laws that violate people's right to meet, assemble, or protest peacefully.

Democracy with Limits

The Founding Fathers understood that direct democracy was impractical in a country as large as the United States. They also did not trust the mass of common people to vote directly on important political decisions. Thus, they made the United States a representative democracy in which the people elect respected citizens to make decisions on their behalf. The Constitution created regular elections in which citizens choose representatives for the national government. However, the original rules allowed the public to directly elect only members of the House of Representatives. State legislatures selected the senators, and the president would choose federal judges with Senate approval. For the presidential election, the Framers devised the Electoral College. Instead of electing the president directly, citizens vote for presidential electors, officials who represent their state and select the president. This system is still in effect today. Today, with a few minor exceptions, nearly all adult US citizens can vote. Even now, however, the United States has not perfected democracy. In many presidential elections, barely half of those with voting rights actually cast a ballot, and there are frequent reports of people being erroneously disqualified from voting. In congressional, state, and local elections, even fewer people bother to vote.

Why did the Founding Fathers compromise on using a federal system for the new government?

The Founding Fathers wanted to find a system that effectively balanced power between the national and state governments.

Basic Principles of the Constitution

The Founding Fathers were firmly committed to the principle of popular sovereignty. They disagreed with any government system that ignored the people's voice and will. However, the Framers also feared a government system built on majority rule because a larger group could unfairly control smaller groups. For this reason, the Constitution provides protections for minority rights. These provisions ensure that even though a majority of people may agree on a certain issue, they cannot take basic rights and protections away from those in the minority.

The Fourteenth Amendment

The Fourteenth Amendment includes four sections that cover multiple points, particularly US citizenship. Congress passed the Fourteenth Amendment to give full citizenship to all Americans, including former slaves and all people born in the United States. The amendment guarantees all Americans equal protection under the law and prohibits states from violating the privileges and rights of their citizens. For all states, the Fourteenth Amendment also reiterates the due process clause of the Fifth Amendment: "No state shall . . . deprive any person of life, liberty, or property, without due process of law."

Why did the Framers of the Constitution want to include checks and balances in the federal government?

The Framers wanted to create a stronger central government, but they wanted to make sure that one branch couldn't gain too much power.

Second Amendment: The Right to Bear Arms

The Second Amendment emerged out of the colonists' experiences during the American Revolution, when colonial militias (armies composed of average citizens) fought against the professional British army. The Founding Fathers understood that sometimes the people need to rise up against an oppressive government, and they did not want the new US government and its army of professional soldiers to have a monopoly on the ability to fight. The Second Amendment, therefore, guarantees the right of citizens to own and carry weapons for the purpose of maintaining a "well-regulated militia." There are two main interpretations of the Second Amendment. One interpretation holds that the Second Amendment guarantees the right of every individual to own guns, even military-style weapons. Under this interpretation, most laws that regulate the availability of firearms violate the Second Amendment. The alternative interpretation holds that the amendment is really talking about the right of states to keep a "well-regulated militia" composed of its citizens. This view allows more leeway in regulating individual gun ownership.

Seventh Amendment: Jury Trial in Civil Cases

The Seventh Amendment guarantees the right to a jury trial in civil cases. Unlike criminal law, civil law does not determine whether a crime has been committed. Instead, it deals with conflicts between individuals. For instance, if a person gets into a car accident and sues the other driver, the case is decided under civil law.

Sixth Amendment: Rights of Accused Persons

The Sixth Amendment guarantees a number of rights to people who have been accused of crimes. These rights help ensure procedural due process. Two of the rights apply to pretrial proceedings: the right to be informed what crime you are accused of and the right to assistance from a lawyer. The other clauses pertain to how criminal trials are conducted.

Tenth Amendment: Reserved Powers

The Tenth Amendment stands as the only amendment of the Bill of Rights that talks about powers instead of rights. This amendment reserves the powers not given to the federal government to the states and the people. The Framers included this amendment to reassure those who feared that the new national government would give itself new powers not named in the Constitution.

Living Document

The amendment process gives rise to the understanding that the Constitution is a living document. Like a living organism, it can adapt to its surroundings. The idea of changing the Constitution always remains controversial, however, and the process is not undertaken lightly.

Limited Government

Thomas Jefferson once stated, "When the people fear their government, there is tyranny; when the government fears the people, there is liberty." This quote illustrates the Founding Fathers' mindset: protecting the liberties of citizens was vital. Guarding the civil liberties of citizens provides one of the most effective ways to limit the power of the government. The Bill of Rights, drafted alongside the Constitution, names and protects US citizens' civil liberties. These liberties include freedom of speech, freedom of religion, the right to bear arms, and the right to a fair trial. Later Constitutional amendments granted more civil liberties to citizens.

Ninth Amendment: Unenumerated Rights

When the framers proposed the Constitution, some people opposed including a Bill of Rights. Those in opposition argued that it was impossible to list all rights and was dangerous to list only some of them. They feared that providing a list of guaranteed rights would imply that rights not mentioned in the list were lesser or invalid. When writing the Bill of Rights, the Framers of the Constitution compromised by creating the Ninth Amendment to solve this problem. The amendment explicitly states that just because the Bill of Rights enumerates, or mentions, certain rights, that does not mean other rights do not exist.

The Nineteenth Amendment

Women's suffrage achieved only minimal progress before 1900. In the next 20 years, however, support for women's suffrage increased, culminating in the passage of the Nineteenth Amendment in 1920. Unlike blacks, white women faced few procedural obstacles to voting after they were officially granted suffrage.