Constitutional Amendments

Constitutional Amendments Richard M. Skinner

The Amending Process • Constitutional amendments must be passed by a 2/3 vote in the House and Senate. • They must then be ratified by ¾ of the states, either by vote of the state legislatures, or by specially assembled state conventions. • Alternatively, 2/3 of the states can call for a new constitutional convention.

The Bill of Rights • In order to get the Constitution ratified, Federalists had agree to a Bill of Rights. • Alexander Hamilton had argued that there was no need for a Bill of Rights, since the Constitution created a government with limited powers. • James Madison, serving in the House, wrote the Bill of Rights in 1789. Congress approved 12 amendments; 10 were ratified.

The First Amendment • Guarantees the freedom of religion ….

The First Amendment • The Establishment Clause: “Congress shall make no law respecting an establishment of religion…” • Before the Revolution, most colonies had an established church supported by tax money, although dissenters were tolerated. • The Church of England (established in New York and the Southern States) saw its prestige hurt by the Revolution, since many clergy had remained loyal to the King.

The First Amendment • During the Revolution, Virginia temporarily disestablished the Church of England; this was made permanent after the war. • In 1786, Jefferson and Madison won the passage of the Virginia Statute of Religious Freedom: • “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.”

The First Amendment • The Establishment Clause forbids the United States from adopting a state religion. • It did not initially apply to the states: four states maintained established churches into the early 19th century. • The Establishment Clause has given rise to numerous cases concerning whether the government can recognize the role of religion in American life (e.g., school prayer) and whether it can assist religious institutions (e.g., aid to parochial schools).

The First Amendment • The Free Exercise Clause: “… or prohibiting the free exercise thereof.” • The Free Exercise Clause has given rise to many cases concerning whether laws can infringe on religious practices, e.g. denying unemployment benefits to people who refuse to work on their Sabbath.

The First Amendment • Guarantees the freedom of expression…

The First Amendment • “Congress shall make no law … abridging the freedom of speech or of the press.” • The Supreme Court has been skeptical of most restrictions on free speech. • But there have been numerous controversies involving libel, obscenity, “fighting words,” and campaign finance regulation, among other areas.

The First Amendment • “Congress shall make no law … abridging … the right of the people peaceably to assemble.” • The Supreme Court has upheld this right even for unpopular groups who might provoke unrest.

The First Amendment • “…and to petition the Government for a redress of grievances” • This drew upon a long history in the Anglo-American world of citizens – even those who couldn’t vote – signing petitions urging action from the authorities. • This protects the right to lobby government.

The Second & Third Amendments • The Second Amendment: “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.” • Not clear whether this protects an individual right to bear arms, or just prohibits the disarming of state militias. • But in District of Columbia v. Heller (2007), the Supreme Court declared that the amendment does protect an individual right, although many forms of gun control are permitted. • The Third Amendment: no quartering of soldiers in private homes in times of peace.

The 4th – 8th Amendments: Rights of the Accused • The Fourth Amendment • No “unreasonable searches and seizures.” • No searches without a warrant issued by a judge.

The 4th – 8th Amendments: Rights of the Accused • The Fifth Amendment. • Indictments only by grand jury. • No double jeopardy. • No self-incrimination. Source of “Miranda warning.” • A citizen may not be deprived of their “life, liberty, or property without due process of law.” • Private property may not be taken for public use “without just compensation.”

The 4th – 8th Amendments: Rights of the Accused • The Sixth Amendment. • Accused must enjoy a right to a “speedy and public trial…” • a trial by jury (also protected in Article III) … • the right to confront the witnesses against them and to call witnesses in their defense… • the right to the assistance of defense counsel.

The 4th – 8th Amendments: Rights of the Accused • The Seventh Amendment • Protects the right to trial by jury in civil suits under federal law. • The Eighth Amendment • No “excessive bail” or “cruel and unusual punishments.”

The 9th & 10th Amendments • The 9th Amendment: The Bill of Rights does not “deny or disparage others retained by the people.” • Used in 1965 to declare a right to marital privacy. • The 10th Amendment: Powers not delegated to the federal government, or forbidden to the states, are reserved to the states or the people. • Cornerstone of “dual federalism.”

The 12th Amendment (1804) • Reformed the unworkable Electoral College system created in the Constitution. • In 1796, John Adams elected president, his opponent Thomas Jefferson elected VP. • In 1800, running mates Jefferson and Aaron Burr tied for president; House elected Jefferson. • 12th Amendment created separate votes for president & vice president.

The Civil War Amendments • Three amendments passed during and after the Civil War fundamentally changed the relationship between the federal government and the states.

The Civil War Amendments • The 13th Amendment (1865) bans slavery. • Before the Civil War, few Americans believed that the federal government could interfere with slavery within the states. • The Emancipation Proclamation (1863) applied only to the states in rebellion, and was justified as a wartime measure.

The Civil War Amendments • The 14th Amendment (1868): • Defines “all persons born or naturalized in the United States” as citizens, overturning the Dred Scott decision (1857) that declared that blacks were not citizens.

The Civil War Amendments • The “Due Process” Clause: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” • In the 20th century, this became the source for the doctrine of “incorporation,” i.e. that “due process” incorporates most of the guarantees of the Bill of Rights and applies them to the states. • Justice Hugo Black was the principal proponent of this view.

The Civil War Amendments • The Equal Protection Clause: “nor deny to any person within its jurisdiction the equal protection of the laws.” • This clause has been used to overturn many state regulations deemed discriminatory, most famously, racially segregated schools in Brown v. Board of Education (1954).

The Civil War Amendments • The 15th Amendment (1870): The federal and state governments may not deny the right to vote to citizens “on account of race, color, or previous condition of servitude.” • Constitution had previously left suffrage qualifications to the states. • Not effectively enforced until the Voting Rights Act of 1965. White Southerners had found many means – legal and extralegal – to subvert the 15th Amendment.

Progressive Era Amendments • These amendments were aimed at reducing the power of big business and at “cleaning up” politics. • 16th Amendment (1913): federal government may impose an income tax. • 17th Amendment (1913): direct election of senators.

Progressive Era Amendments • 18th Amendment (1919): Prohibition – repealed by 21st Amendment (1933). • 19th Amendment (1920): women’s suffrage.

Constitutional Amendments