The US Constitution

Outline
 Key concepts of constitutional design
– Separation of Powers
» Checks and Balances
» Federalism
– Civil Liberties
 Influences that shaped the US Constitution
– Ideas
– First-hand experiences
– Culture
 Specific Provisions of US Constitution
– History and background
 The US Constitution: The Basics
 The Basic Structure
– Creates the 3 branches of government: Legislature (Article I), Executive (Article II),
Supreme Court (Article III)
– Establishes a Common Market– a free trade zone (Article IV)
– Establishes an Amendment Procedure (Article V)
– Establishes National Supremacy over States (Article VI)
– Establishes Ratification Requirements (Article VII)
 A Republic, not a Democracy
– Technically, our form of government is not a (pure) democracy, as we often refer to
it.
» Rather, it is a republic with three basic components: separation of powers, a strong democratic
element, and civil liberty protection
 Our separation of powers system has remained largely unchanged, though all branches have
expanded their powers over time
 The democratic element and civil liberties, respectively, have expanded over time to include
more people (i.e., voting rights for more people) and to include more freedoms
 The US Constitution: The Basics
 Was anything left out of the original Constitution?
– The Bill of Rights added in 1791…17 additional amendments have been
added since, 27 amendments in total
 The Constitution lacked detail, left questions unresolved
» War Powers: Can a president send troops into battle w/o a formal declaration of
war?
 The president’s war-making powers are still controversial to this day, but through
trial-and-error, these war-making powers have been established and accepted in our
system of government
» Judicial Review: Can the US Supreme Court strike down laws as unconstitutional?
 In Marbury v. Madison (1803), the Supreme Court asserted its power to strike down
laws as unconstitutional…this was highly controversial for another 50+ years, but
today, no one questions this power
» Secession: Can a state secede from the Union?
 In part, America fought the Civil War over this question (and over slavery)…other
countries struggle with this issue also, e.g., Russia and Chechnya
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– The Separation-of-Powers Principle
» The purpose: to guard against tyranny: prevent the concentration of
government power in one person, faction, or one branch of government
» In reality, separation of powers is shared powers among the three separate
institutions (the executive, the legislature, and the judiciary)
 Why are there no military coups in America?

– Separate institutions—the executive (the presidency) and the

legislature (Congress)—share control of the military
– Congress provides the funding for the military and sets the rules
and regulations by which it operates…the president deploys US
troops into battle
– In addition, the top leadership of the armed forces are civilians,
not 5-star Generals
» Many countries have separate institutions but no “real” separation of
powers, power often resides with the executive (which includes the
military), thus creating opportunities for coups
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– Checks and Balances
» Component of separation-of- powers principle : prevent the concentration of
government power in one person, faction, or one branch of government
» Some examples of “checks”:
 Congress passes a bill, the president can veto the bill, by 2/3 rd vote

Congress can override a presidential veto and the bill becomes law
– For America’s first 50 years, Congress failed to override a single presidential
veto…the first presidential veto was overridden in 1841
– Prior to 1841, Congress made a number of failed attempts to pass an
amendment to the US Constitution to eliminate the presidential veto
 Originally, many of our founders feared a “standing army.”
– The concept of a citizen militia under the control of officers chosen
by each state was considered to be a “check” against the national
army…this was the original intent of the 2 nd Amendment
– A citizen militia was also designed to support the national army in a
time of war
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– Checks and Balances
» The concept of “balances”: includes different modes of selection—and—
different lengths of tenure for our highest government officials
 Different modes of selection: each represents different constituents

– The President: elected by the electoral college: originally, the president

had to appeal to prominent leaders from each state…today, the president
is essentially elected by the people in 50 separate state elections (plus
Washington DC)
– US House: members elected by popular vote (democracy) in individual
districts within each state
– US Senate: originally, members selected by each respective state
legislature…17th Amendment changed this…now, US Senators elected by
popular vote in each respective state
– The Federal Judiciary: nominated by the president, confirmed or
rejected by a majority vote in the US Senate
 Today, all of these positions are elected by popular vote (except the judiciary)
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– Checks and Balances
» The concept of “balances”:
 Different lengths of tenure:

– The President: elected for 4-year term…originally, there were no

term limits…this changed with the 22nd Amendment, which limits the
president to 2 terms (if reelected)
– US House: elected for 2-year term…elections occur concurrent with
presidential elections and at the midterm of a presidency
– US Senate: elected for 6-year term…staggered elections…1/3 rd of the
Senate is elected every 2 years
– The Federal Judiciary: life tenure
 Staggered elections and different lengths of tenure were designed to

introduce a time “delay” into the system

– If a majority faction (or political party) were to take over the
government, it would take longer to do so because of this “staggered”
design
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– Federalism
» A component of the separation-of-powers principle : power is further divided
between the national government (a.k.a., the federal government) and the 50
state governments and various territories
» Federalism is tied to the concept of “states rights”
 Historically, “states rights” has meant the states’ power to discriminate

against blacks, first with slavery then with segregation

 These abuses are unfortunate and wrong, but nevertheless, federalism is

an important part of separation of powers

» Some examples:
 The speed limit: Since 1995, states can set the speed limit on federal

highways within their respective states (e.g., I-10 and I-45)

– Prior to 1995, the federal government set the speed limit at 55
 Dual Sovereignty and the death penalty : Terry Nichols (Oklahoma

City bombing) was tried by the state of Oklahoma, after the federal
government failed to sentence Nichols to death
 Concepts in Constitutional Design
 Key Concepts in the Design of the US Constitution
– Civil Liberties/Individual Rights
» Though the Bill of Rights (first 10 Amendments to the US Constitution) was not
included with the original Constitution, some states demanded that there be a Bill of
Rights as a condition of their ratification
 The US Constitution defines what the government “can” do…the Bill of

Rights defines what government “cannot” do

 Civil liberties are imbedded in the Bill of Rights

 Civil liberties are: 1) fundamental individual freedoms, 2) freedom from

government interference, 3) protections from government power (for accused

criminals), 4) human rights
– Some examples:
» Freedom of Expression and Belief -- 1) Freedom of religion, 2) Freedom of speech, 3)
Freedom of press and media
» Rule of Law (rights of the accused) -- 1) Right to jury trial, 2) Equal treatment for all
under the law
» Personal Autonomy -- 1) Freedom to travel, to choose where to live, to choose a
profession
 Ideas and Shaping Events
 Influences of Political Philosophers
– John Locke (1632-1704)
» Authored the 2nd Treatise of Government (1690)
» The purpose of government is to preserve each individual’s property,
which Locke defines as “life, liberty and estates.”
 Locke believes in a law of nature, where right and wrong, justice and

injustice are concepts derived from the nature of human beings

» Separation-of-powers principle : Locke’s vision is a government where
power is “divided” into a legislative and executive branch
 Checks on power :

– Locke’s vision protects the rights of the people by giving the

legislature (an elected body of the people) the power to remove the
executive
– The executive could dismiss the legislature, should it become
oppressive of the people
– The people have the right to overthrow the executive or the
legislature, should one or the other become oppressive
 Ideas and Shaping Events
 Influences of Political Philosophers
– Montesquieu (1690-1755)
» Authored the Spirit of the Laws (1748)
» The purpose of government is to protect individual liberties (freedom)
» Like Locke, Montesquieu calls for separation-of-powers and checks on power, but
Montesquieu’s political theory is much more developed
 Separation of powers: Three (3) branches of government, the legislative, the

executive and the judiciary

– The legislative would be divided into 2 chambers: one elected by the
people and a second consisting of the nobility (i.e., the wealthy
landowners)
– The executive would be a Monarch (or King) who is advised by a council
of ministers
 Checks on power: 1) the executive could veto legislation, 2) the legislature

could remove the Monarch’s ministers but not the Monarch (elected chamber
initiates, nobility chamber removes), 3) the legislature can limit military
funding to one year at a time, 4) each legislative chamber could veto one
another
 Ideas and Shaping Events
 Influence of first-hand experience: British Rule (1700s)
– The colonists ideally viewed the British system as a harmonious
balance between Monarchy, Aristocracy and Democracy
» In reality, the British Monarch maintained harmony through the power of
patronage, i.e., by giving disgruntled politicians in parliament jobs in the
executive branch of government, pay them salaries to keep them happy (in
other words, bribery)
» In colonial America, conflict existed between colonial governors (appointed by
British Crown) and colonial legislatures (elected by the American colonists)
 Governors vetoed legislation (not exercised in Britain since 1707)

 Governors suspended legislatures, established courts w/o legislative

consent, dismissed judges and denied colonists the right to jury trials (all
powers denied to the British Crown since 1701)
 But colonial legislatures denied colonial governors patronage

– The colonists believed the British were violating their own rules of
government in the colonies; the British were ruling as tyrants
 Ideas and Shaping Events
British Rule in America
 Excessive Taxation and  Reactions of American
Regulations Colonists
– Sugar Act (1764) – Boston Massacre in 1770…6
– Stamp Act (1765) colonists killed by British soldiers,
– Quartering Act (1765) who were later acquitted
– Boston Tea Party in 1773
– Declaratory Act (1766)
– – First Continental Congress in 1774
Townsend Act (1767)
to express grievances with British
– Tea Act (1773) Crown
– Intolerable Acts (1774) – Second Continental Congress
– Prohibitory Act (1775) convened in 1775 after fighting
 The British perspective broke out in Lexington and
Concord…George Washington
– Americans were not taxed much
chosen as commanding General
during the French-Indian War,
which protected the American – Declaration of Independence in
colonies from the French 1776
 Ideas and Shaping Events
 Influence of first-hand experience
– Religious persecution: the first colonists fled England because of
state-sponsored religious persecution of the Anglican Church
against the Puritans
» But in America, religious persecution still occurred in the colonies
 The concept of religious tolerance was first established in Rhode Island

in 1663
» Some colonies denied Catholics, Jews, and Deists the right to vote
 Many of our founders (George Washington, Thomas Jefferson,

Benjamin Franklin) were Deists

 Deists believed in God but not in the literal word of The Bible; they

believed in the separation of church and state but not in the separation
of religious principles (the Judeo/Christian Ethic) from state
» Freedom of religion and the prohibition of a US government-sponsored
religion were the consequence of these experiences and beliefs
 Ideas and Shaping Events
 More first-hand experiences
– Articles of Confederation (1781-1787) had failed
» Under the Articles, the national government was too weak to adequately
provide for an army and navy
» Each state had its own currency
» Nine states had their own navies
» Some had treaty agreements with foreign nations

– Defense of the nation was a major concern

» Not just the British, but other European powers were eyeing America and
its rich resources
» The first 9 “Federalist Papers” concerned the issue of security
» A United States could better defend itself than a loose confederation of 13
separate states
 Ideas and Shaping Events
 Influence of American Culture
– America experienced executive tyranny, religious persecution, and
a failure of the Articles of Confederation…what else?
» Private property: There were no idle rich in America in 1787, as there
were in Europe…the vast majority owned property, most were farmers, thus
owning property was the primary means of making a living (i.e., earning
money)
 Property rights were among the highest values of American culture at

that time
 And by establishing a common market (a free trade zone) among the 13

states, economic growth was encouraged in the Constitution

» Self-Determination: There was a strong belief in the right to self
determination, as evidenced in the Declaration of Independence
 “But when a long train of abuses and usurpations…evinces a design to

reduce them under absolute despotism, it is their right, it is their duty, to

throw off such government, and to provide new guards for their
security”
 US Constitution: Large v. Small States
 The Great Compromise
– The single most important issue at the Constitutional Convention in 1787 was
the debate over the representation in Congress of large versus small states
» US House members were to be elected by popular vote—the number from
each state would be in proportion to its population
 Thus, more populous states (e.g., Virginia and Pennsylvania) would have

more representation in the US House than smaller states (e.g., Delaware

and Georgia)
» US Senate members were to be chosen by state legislatures, and each state
was allotted 2 US Senators
 Each state had the same number of US Senators, regardless of

population…this favored small states, which would be disproportionately

represented (based on population) in the US Senate
» The US Senate would be a check on the power of the US House
 Larger (more populous) states would have greater say in the US House;

smaller states could use the US Senate to block the House

 US Constitution:
 Impeachment ofImpeachment
President and other High Officials
– Powers of impeachment and trial “divided” between US House and
US Senate, very similar to Montesquieu’s formula
1) US House has the power to impeach (Art. I Section 2)
2) Then, US Senate then holds a trial to determine if the impeached official is to
be removed from office by 2/3rd vote
 Chief Justice of Supreme Court is presiding judge in presidential
impeachment cases (Art. I Section 3)
» Grounds for impeachment (Art. II Section 4): “conviction of, Treason,
Bribery, or other High Crimes or Misdemeanors”
 A president must commit a crime to be impeached and removed
 Impeachment on grounds of “mal-administration” (i.e., doing a bad job)
was considered and rejected at Constitutional Convention
– Governor of California, Gray Davis, was in essence removed from
office for being a bad administrator, not for crimes
– A higher standard is needed to remove officials in the US
government
US Constitution: Enumerated Powers
 The Framers believed that Congress could do no more
than the powers it was explicitly granted
– Madison wanted Congress to have the power to create a non-
religious university; Franklin wanted Congress to have the power
to dig canals
» Both proposals rejected at the Constitutional Convention
– Hamilton believed that a Bill of Rights was unnecessary because
Congress was limited in its powers
– Today, Congress has far more powers than that laid out in the
Constitution
» In a series of decisions, the first of which involved the national bank
(McCulloch v. Maryland (1819)), the Supreme Court has approved each
step-by-step expansion of Congressional powers
» Enumerated powers do not bind Congress today
 But, to some degree, the Congress is bound by the Bill of Rights (as

interpreted by the US Supreme Court)

 US Constitution: Habeas Corpus
 Habeas Corpus is the power of a judge to determine if a
prisoner is being lawfully held by the government
– Civil War: Lincoln suspended Habeas Corpus, despite that only
Congress has this authority
» In 1866, after Lincoln’s death, the Supreme Court ruled that the use of
military commissions were unconstitutional, if used outside the theater of
battle where civilian courts still operated
» But Lincoln’s suspension of habeas corpus was not officially overturned
– Supreme Court cases involving Habeas Corpus after 9/11
» Guantanamo Bay (2004), Hamdi (2004), Boumediene (2008) – Court ruled
that Al Qaeda prisoners held at Guantanamo Bay are entitled to Habeas
Corpus, they can petition a court for their release
» Hamdan Case (2006) – Court ruled military commissions set up by Bush
administration must first have congressional approval
 Congress passed the Military Commissions Act (2006) in response to

Court’s decision, but it took away the right of Habeas Corpus, which the
court restored to detainees in Boumediene (2008)
 US Constitution: Electoral College
 The president is not elected by popular vote but by
the electoral college (Art. II Sec. 1; 12th Amendment)
– In the vote for president, each state is allotted electoral votes equal to its
number in the US House plus 2, for its membership in the US Senate
» In 2008, Texas was allotted 34 votes for president…Texas has 32
members in the US House and 2 in the US Senate
– Originally, the state legislatures chose presidential electors,
which technically is still the case
» But by practice dating back to the 1830s, state legislatures follow the
popular vote results in their respective states
– Some called for the end of the electoral college because in 4 cases the
popular (plurality) vote winner did not win the presidency, as was the case
with Al Gore in 2000
– Constitutional justifications for the electoral college:
1) “Balances” in the mode of election, 2) Federalism
 US Constitution: The Judiciary
 Congress has power over the federal judiciary
– Congress can largely determine the appellate jurisdiction of the
Supreme Court—and—Congress can create or abolish all other
federal courts (Art. III Section 2)
» Because of controversies associated with the Alaska oil pipeline (1970s),
Congress prevented the federal courts from hearing cases intended to stop
its construction
» During the Civil War, Congress prevented those being held in military
prisons from appealing to the Supreme Court for their release
 Congress sets the number of Supreme Court justices
» By tradition, this number has been set at 9, but Congress has the power to
change the number
 Judicial Review (declaring laws unconstitutional)
» Not an explicit power in the Constitution…state courts had been asserting
this power on occasions…the Supreme Court asserted the power
beginning in 1803
US Constitution: Full Faith and Credit
 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”
» Originally, those who owned land west of the original 13 colonies wanted
protections against newly formed states, which might not want to recognize
property deeds made prior to statehood
» Over 200 years, this provision has come to include things like marriage licenses,
divorce decrees, child custody decisions, and debt settlements
– This provision is key in the gay marriage debate
» Congress passed the Defense of Marriage Act (1996) which allows states not to
recognize gay marriages of other states
» The Bush Administration feared that the Act may be ruled unconstitutional by
the Supreme Court at some point in the future under the provisions of the full
faith and credit clause
» This is one reason Bush advocated a constitutional amendment to define
marriage…a constitutional amendment cannot be overturned by the Supreme
Court
 US Constitution: Amendment
 US Constitution: World’s most difficult to amend
– The framers wanted to distinguish between normal legislation
and constitutional matters, believed it should be difficult
 US Constitution: Amendment
– Why is the amendment process so difficult?
» A combination of factors: a two-step process + super-majority requirements
for each step (2/3rd for 1st step, 3/4ths for 2nd step)
– Super-majority requirements adopted from ratification
» Nine (9) of 13 states required to originally ratify the US Constitution…this
was 3/4ths of the states
 The 3/4th requirement chosen for practical purposes: the framers believed

3 states would not vote to ratify…also 3/4 th vote used under Articles of
Confederation to authorize action by Congress
– Given the practical reasons, at most 10 states would ratify…the 9-
state requirement provided a one-state margin, just in case another
state failed to ratify
» If 3/4ths of the states were required for ratification, it makes sense that 3/4ths
should be required to amend the constitution
– Why is the US Supreme Court the final arbiter of disputes in
American society?
» Because the amendment process does not serve as an effective “check” on the
power of the judiciary…just too difficult to amend Constitution
US Constitution: National Supremacy
 National supremacy over the states (Article VI)
– The framers debated how to implement this concept
» It was proposed that Congress would have the power to strike down state
laws…this was defeated at the Constitutional Convention
» The constitutional convention settled on binding the Judges in the various
states to the supremacy of national laws
 In a sense, this was a grant of the power of judicial review to the state

courts to strike down state laws as unconstitutional if they

contradicted the US Constitution
– Still, this concept was not readily accepted in the states
» In McCulloch v. Maryland (1819), the Supreme Court struck down a state
law that placed a tax on a branch of the national bank
» Many believed at that time (1819), including Jefferson and Madison, that
a state could overturn a Supreme Court decision
» Today, no one questions the US Supreme Court’s final decision authority
on the issues it addresses…the check on the Supreme Court’s authority is
the amendment process, which is largely ineffective
 US Constitution: Original Intent
 Some of the original intent of the US Constitution has been
abandoned
– Changes from Original Intent
» The enumerated powers do not limit Congressional power
 Federalism has changed—states are not as strong today

– As business became national, the commerce clause was used

to regulate big business—this increased congressional power,
displaced the regulatory powers of the states
– Slavery, segregation, and racism also changed the relationship
between the federal government and states—the federal
government intervened to end slavery, stop discrimination
» The president has far more war power than originally intended
 The founders envisioned that Congress would check the president

through its power to “declare war”

 But Congress has not asserted itself by forcing a showdown with

the president over going to war (i.e., voting not to declare war)
 US Constitution: Original Intent
– Changes from Original Intent (cont.)
» The US Supreme court has grown in power far beyond what our
founders intended
 The amendment process is the check on the US Supreme Court, but because
the amendment process is far too difficult, Supreme Court decisions are not
overturned by Congress and the states
» Civil liberties have expanded; property rights have been curtailed
 Political and personal freedom has expanded over time

– More people have the right to vote (blacks and women), protest of
government is tolerated more today, no restrictions on religion or race
with respect to who we marry (gay marriage legal in a few states)
 Socialist values are increasingly trumping property rights
– Government was to guarantee your right to life and liberty only in the
founding era; one had the right to the “pursuit” of other values
– Our vision of what is a “right” has changed: a right to education, a right
to health care, a right not to be discriminated against—these are socialist
values, justifying government regulation of property owners (taxpayers,
doctors/hospitals/insurance companies, and business owners,
respectively)