Unit 3 Constitutional Change
Essential Question • How Has the Constitution Been Changed to Further the Ideals Contained in the Declaration of Independence
Unit Overview • Lesson 15: How Have Amendments and Judicial Review Changed the Constitution? • Lesson 16: What Is the Role of Political Parties in the Constitutional System? • Lesson 17: How Did the Civil War Test and Transform the American Constitutional System? • Lesson 18: How Has the Due Process Clause of the 14th Amendment Changed the Constitution? • Lesson 19: How Has the Equal Protection Clause of the Fourteenth Amendment Changed the Constitution? • Lesson 20: How Has the Right to Vote Been Expanded since the Adoption of the Constitution?
Unit 3 Purpose • Since 1787, the Constitution has changed in several important ways. The Framers provided mechanisms for change, such as Amendments. • The Civil War transformed the Constitution in several ways towards ideals of equality contained in The Declaration of Independence. • In this unit, you will learn • How judicial review and political parties affect American constitutionalism. • About the Civil War’s creation of a “2nd American Constitution” through the transformation of due process, equal protections, and expansion of voting rights.
Lesson 15: • How Have Amendments and Judicial Review Changed the Constitution?
Purpose • This lesson describes the process devised for amending the Constitution and its first application, the Bill of Rights. • It also explains judicial review, and the arguments for and against this judicial power.
Objectives • Describe the two ways in which the Constitution can be amended. • Identify major categories of constitutional amendments. • Explain why Madison introduced the Bill of Rights. • Evaluate, take, and defend positions on the amendment process and judicial review.
Terms to Know • Amendment • A change in or addition to a legal document. • Judicial Review • The power of the courts to declare laws and actions of the local and state governments or the national government invalid if they are found to contradict the U.S. Constitution.
How and Why the Framers Devised an Amendment Process • Founders recognized that society & conditions would change over time. • The Constitution is difficult to amend • 2/3 of Congress to Propose, ¾ of States to Amend • Over 10,000 have been introduced to Congress • Only 33 were officially proposed • Of 33, only 27 ratified
Types of Amendments • Bill of Rights (1791) • First 10 Amendments protect basic rights and liberties • Fundamental Changes • 13th & 14th resulted from Civil War and resolved issues not settled at Constitutional Convention • Outlawed slavery • defined citizenship • imposed equal protection and due process requirements on states • gave Congress more enforcement power
Expansion of Suffrage • 15th, 19th, 24th, and 26th prohibit states from denying voting rights based on race, gender, age of persons of 18 or older, or failure to pay poll taxes • Overturning Supreme Court Decisions • 11th overturned improper expansion of federal court power • 16th overturned decision that prevented Congress from passing an income tax
Refinements • 12th requires electors to make separate choices for president and vice president • 20th shortened length of time between elections and when official take office. • 22nd limits president to 2 terms • 25th addresses presidential succession • Morality • 18th outlawed manufacture, sale, and transport of alcohol (Prohibition) • 21st repeals the 18th
Why a Bill of Rights was Proposed • Many states and prominent figures argued for specific protections and listed rights • Madison followed through on his promise to immediately add amendments (bill of rights) in first session of Congress
The Development of Judicial Review • Marbury v. Madison (1803) • Chief Justice John Marshall concludes that judges have the power to decide whether acts of Congress, the executive branch, state laws, and even State Constitutions violate the US Constitution • Supreme Court justices have the final say about the meaning of the Constitution • This power to declare what the Constitution means and whether government actions violate the Constitution is know as JUDICIAL REVIEW
Controversy Over Judicial Review • No mention of judicial review in Constitution • However, founders assumed this power would be developed (Practice has roots in English Law) • Marshall asserted that it is the “duty of the judicial department to say what law is.”
Premises of Judicial Review • The Constitution is a superior, paramount law that cannot be changed by ordinary means. • Acts of Congress, the Executive, and the States reflect temporary, fleeting views of what law is. • Acts of Congress, the Executive, and the States that conflict with the Constitution are not entitled to enforcement and must be disregarded. • Judges are in the best position to declare what the Constitution means.
Arguments Against Judicial Review • Popular Sovereignty is represented in the Legislatures. Judicial Review disregards sovereignty of the people. • Judicial Review could lead to political turmoil if other branches or states to not follow the courts’ interpretations. • Judicial Review makes judiciary equal or even superior to legislatures, even though judges are not elected • All government officials take oath to consider constitutionality of their actions • Judges errors in interpretation cannot be corrected through voting, but only through amendments
Lesson 16: • What Is the Role of Political Parties in the Constitutional System?
Purpose • Shortly after the government was established, to the Framers’ dismay, political parties formed. • This lesson describes the Framers’ views on political parties and how they first formed. • It also explains how parties became and essential component of the American political system by addressing challenges that the Constitution left unresolved.
Objectives • Explain why the Framers opposed the idea of political parties. • Describe the other ideas that helped political parties gain acceptance. • Explain the conflicting points of view that led to the development of parties and the roles they have played in history. • Evaluate, take, and defend positions on the importance of political parties today.
Terms to Know • delegated powers • According to the natural rights philosophy, people always retain their basic rights, but provisionally entrust or assign certain powers to their government for certain, limited purposes. The powers of government are therefore "delegated powers" in that they are granted by the people, and the people can take them back if government fails to fulfill its purposes. • party system • A concept in political science that political parties control government. • platform • List of the policies and priorities of a political party; also known as a manifesto. • political party • An organization seeking to achieve political power by electing members to public office so that its political philosophy is reflected in public policy. • sedition • Incitement to rebellion. • ticket • The choice of candidates of a political party for president and vice president.
The Framers’ Thoughts on Political Parties • Madison argues that Constitution would control “evil” effects of factions • Some (Burke) consider parties necessary to express open opposition to gov’t policies • Most American leaders oppose Burke, but many agree that they can “promote deliberation” and “check excesses in the majority” • Delegates had no true experience with an established party system.
The Development of Political Parties • Ironically, Madison and Hamilton become opposing leaders of political parties w/in 10 yrs of ratification • Issue that led to party division: • 1. Power of National Government • Hamilton – National Gov’t should address any national issue, mentioned in Constitution or not • Jefferson – Feared vague national powers and “energetic” use of authority
2. Economic Vision • Hamilton – National bank “necessary,” ex. Collect taxes, regulate trade • Jefferson – Believed in agrarian society, congress should only act if absolutely and indispensably necessary • 3. Foreign Policy • Jefferson – supported France in Napoleonic wars, helped us during Rev. W/ Madison helps create Republican party. • Hamilton – supported GB, more trade and cultural connection. Develops into Federalist party. • Neither side accepted other as a long-term, durable “loyal opposition”
4. Alien & Sedition Acts • Adams signs acts that gave him power to deport “dangerous” foreigners and criminalize “seditious” language • Republicans (Jeff., Mad.) outraged at censorship, respond with KY and VA Resolutions (state need not comply w/ acts of Congress) • Mobilized Republicans for election of 1800.
The Revolution of 1800 and its Aftermath • First election to feature candidates from political parties (Fed.–Adams, Repub.-Jeff) • Repub. victory symbolized first transfer of power through election rather than heredity / violence
However, exposed problem in Constitution • Jeff & Burr tie, electors could not specify which would be president. House had to decide. • 12th Amendment • Vote for Pres. & VP on same ballot • Jefferson opposed permanent political parties and thought Federalists ideals would fade away
Political Party Growth and Functions • By 1820s, positive vision of parties emerged • Van Buren touts parties with clear principles and offer a clear choice • Parties are “glue” that holds federal system / checks and balances together. • Helped president work w/ Congress • Bridged great distances between Washington & people
Patronage enabled president to build connections across levels of gov’t • Elaborate entertainments boost support and give members sense of belonging. • Unlike Jeff / Hamilton, Van Buren felt competing notions of common good could coexist. • Those out of power would hold them accountable / additional check and balance
Political Parties Today • Democrats and Republicans have dominated since 1860s • Purposes of political parties today • Mobilize participation • Connect Executive and Legislative branches • Connect national & state governments • Creation and promotion of party platforms • Provide forums to deliberate about public policies / help organize & channel passions & interests • Provides stability • Ensures change in gov’t, not Constitution
Less Favorable Aspects… • Mutes truly alternative views • Minor parties generally small, narrow interests. Little to no chance of competing nationally. • If single set of interest gains dominant power w/in a party, threat of majority tyranny.
Lesson 17: • How Did the Civil War Test and Transform the American Constitutional System?
Purpose • Between 1860 and 1861, 11 Southern states seceded from the US, starting the Civil War. • The war raised several issues: • the right of states to secede • the president’s wartime powers • the balance between individual rights and national security • the constitutional status of slavery • Three amendments adopted after the war defined American citizenship and transformed the relationship between the national and state governments
Objectives • Describe several important constitutional issues raised by President Lincoln’s actions, including suspension of habeas corpus and the Emancipation Proclamation. • Explain the similarities and differences between the US and Confederate constitutions. • Explain how the Civil War led to the creation of the 13th, 14th, and 15th Amendments. • Evaluate, take, and defend positions on the conditions under which the writ of habeas corpus might be suspended and the constitutionality of secession.
Terms to Know • abolitionists • Opponents of slavery who wished to put an end to the institution. • grandfather clause • Provisions of laws passed in the South after the Civil War stating that citizens could vote only if their grandfathers had been allowed to vote. The law made it impossible for African Americans to vote because their grandfathers had been excluded from voting. • literacy test • A test to prove a person's abilities to read and write. Until 1964, such tests were used in various states to prevent minorities from voting. • poll tax • A tax that voters in many states were required to pay in order to exercise their right to vote. These barriers were used until 1964 to prevent African Americans from voting. • secession • In U.S. history, the act of states leaving the Union in 1861 following the election of President Abraham Lincoln; precipitated the Civil War.
Constitutional Issues Lay Foundation for Civil War • The Constitution & Slavery • Constitution addressed slavery in following ways • 3/5ths Compromise (Art. I Sec. 2) • “Fugitive Slave Clause” (Art. IV Sec. 2) • Banned slave trade in 1808 (signed into law by Jeff.) • Pro-Slavery Advocates: slavery issue should be forever regulated by state gov’ts. • Abolitionists: no mention of “slavery” in Constitution / institution is at odds with American ideals / Founders sought end to slave trade
The Constitution & New Territories • Congress given power to approve new state constitutions • Missouri Compromise • Only new states south of MO’s southern border open to slavery. • Slave & non-slave states admitted in pairs to keep balance in Senate • Texas Annexation and Mexican War • Most newly acquired territory above “36’ 30’” • Compromise of 1850 – California = free state, tougher fugitive slave laws • By mid 1850’s, two sides emerge (both cite Dec.) • Free Soilers / Republicans (human liberty) • Popular Sovereignty Advocates - People of territory decide for themselves whether to allow slavery
Fugitive Slave Law of 1850 • This aspect of compromise infuriates abolitionists. • Leads to Northern “personal liberty laws” / refuse to enforce • Dred Scott v. Sanford (1857) • Scott sued master – claims when brought to Wisconsin, earned freedom.
The Dred Scott Decision • African Americans could not be citizens • No protection under national law • (However, Constitution never defines citizenship) • National Gov’t has no right to exclude slavery (property) from new territories • Essentially nullifies MO Compromise • Due Process (5th Amendment) protects property rights (slaves)
Secession & Its Constitutionality • Lincoln’ Election spurs Southern secession • South opposed Republican “free soil” principles • Form Confederate States of America, adopt own constitution • South argued that union was only a compact of states, none gave up sovereignty w/ ratification • Also claimed right to revolution if fundamental (property) rights were violated. Secession a 2nd American Revolution.
Lincoln & Northerners deny right to secede • Sovereignty granted to American people as a whole • No southern rights had been violated, just fear of losing of right to own slaves. • Secession considered act of rebellion. • Confederate Constitution • Key differences: • President = One 6-yr term • Restricts Congressional power over tariffs and infrastructure • Explicitly protected slavery
The Constitutional Issues that Provoked War • Slavery the main cause, but initially fought to preserve Union / defend Constitution • Unprecedented Presidential Powers • Expanded army w/o approval of Congress • Suspended habeas corpus (power of Congress) • Military trials / arrest for “treasonable” speech
Emancipation Proclamation • Abolishing slavery considered a military necessity, would undercut South’s main labor source • Freed all slaves in rebellious states • Profoundly symbolic • Union now committed to principle of liberty
Constitutional Issues Resolved • Slavery • 13th Amendment abolishes slavery • Secession • Not a constitutional right / established supremacy of national government • Citizenship / Rights • South responds to 13th Amendment with Black codes / limit political power • Congress passes Civil Rights Act of 1866, but little change
14th Amendment • Nullifies Dred Scott decision / grants citizenship to all born in US • States cannot abridge privileges or immunities of citizens • States cannot deny due process or equal protection of law • 15th Amendment • Prohibits gov’t from denying right to vote based on race or status as former slave
Weakening Public Support • Southern States pass laws destroying political power of African Americans • Poll Taxes • Literacy Tests • Grandfather Clauses • As gov’t failed to enforce 14th & 15th, community leaders become backbone of civil rights struggles.
Lesson 18: • How Has the Due Process Clause of the Fourteenth Amendment Changed the Constitution?
Purpose • The 5th Amendment limits the national government, but the 14th guarantees that states cannot deprive rights without “Due Process.” • Due process is not defined, but has roots in English history and plays a central role in what government actions are considered valid. • This lesson explains how “due process” has changed since the 14th Amendment and how the requirement of due process has been used to protect individual rights from state government actions.
Objectives • Explain the historical origins of due process. • Explain the difference between procedural and substantive due process. • Define the concept of incorporation and describe its effects on the powers of the states. • Evaluate, take, and defend positions on historical and contemporary issues involving due process.