Constitution of the US

Constitution revision

Diversity in the US

-Its size brings with it the need for decentralisation, for the federal government established by the founding fathers in 1787

-Laws differ between states; elections, crimes and punishments.

-Conservative south; (Bible belt) Texas to Virginia.

-Liberal Northeast; Massachusetts and Rhode Island.

-Liberal leaning west coast; California cities of LA and San Francisco.

1776-83

1776; The 13 colonies on the eastern seaboard of North America declared their independence for Great Britain. In the Declaration of Independence.

1776-83; The war of independence between the former colonies and Great Britain.

1781; The independent colonies decided to establish a confederacy a loose association of states in which almost all political power rests with the individual states - by the Articles of Confederation 1781

Articles of confederation; The compact made between the 13 original states that formed the basis for their government form 1781 until it was replaced by the constitution.

Confederacy; A league of independent states in which the central government lacks significant powers and resembles more an international organisation, such as the United Nations, than a traditional national government.

Philadelphia convention;

• 25th May 1787

• Delegates form all 13 states were invited

• 55 of the 74 invited turned up

• Rhode Island sent no delegates. They were fearful that the hard-won gains of the War of Independence would be lost.

• It was presided over by George Washington

• James Madison, Thomas Jefferson and Alexander Hamilton were present.

• The stated purpose of the convention was to revise the Articles of Confederation, but they decided to scrap them and write a new constitution.

• Divisions arose between small and large (Virginia had the largest population) states.

• The Virginia plan set out the wishes of the large population states.

• The New Jersey plan set out those of the small population states,

• The Connecticut Compromise (often called the 'great compromise) provided the basis of agreement.

• The new constitution was written by 55 delegates who became known as the 'Founding Fathers'.

• 17th September 1787, it was completed.

• Gave America a codified constitution; A constitution that consists of a full and authorative set of rules written down in a single text.

Article 1

-'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative'

-Established that the congress was to be made up of two chambers

-Laid down methods of election

-Terms of office

-Their powers, Section 8; Lay and collect taxes, coin money and declare war.

-Provide for the common defense and general welfare of the US

-'Make all laws necessary and proper' (elastic clause)

Article 2

'The executive power shall be vested in a President of the United States of America'

-Methods of election

-Terms of office

-Powers

-Chosen indirectly by an Electoral College

Article 3

-'The judicial power of the United states shall be vested in one Supreme Court and in such inferior courts as congress may from time to time ordain and establish'

-Judges' terms of office

-Their jurisdiction

-Supremacy clause

Article 4

-Federal-state and state-state relationships

Article 5

-Amendment procedure

Article 6

-Miscellaneous provisions

-Included the supremacy clause

Article 7

-Ratification procedure of the constitution.

The three compromises;

• The form of government

Under Great Britain the colonies had been ruled under a unitary form of government. Political power rested with GB, none of the colonies themselves. from 1781 they had been ruled by a confederal form of government where virtually all political power rested with individual states, very little national government. The compromise was to devise a new form of government, a federal form of government. This gives some political power to the national government but other, equally important, powers to state government.

• The representation of the states

Large population states wanted representation to be proportional to population. The bigger the population the more representative it would have in the new congress.

The compromise was to have two houses; The House of representative would be proportional to population.

The Senate would be equal representation for all states.

NOT proportional representation

• The choosing of the president

Some thought the president should be appointed.

Others thought the president should be directly elected by the people.

The compromise was to have the president indirectly elected by an Electoral college.

The people would elect the Electoral college and the 'electors' within the college would choose the president.

A Codified Constitution;

-Would enumerate certain powers of the federal government would process and leave all other powers to the states.

-Contained a deliberately complicated amendment process; permitted but only if overwhelmingly desired by both federal and state.

Phrases were written deliberately vague;

1. 'To provide for the common defence and general welfare of the United states'General welfare clause

2. 'To make all laws which shall be necessary and proper for carrying into execution the foregoing powers'Necessary and proper clause

Have allowed powers of the federal government to expand.

Changed in the late 18th century by virtue of;

1. Formal amendment: e.g permitting a federal income tax (16th amendment 1913)

2. Interpretative amendment: by the Supreme courts power of judicial review

NOT everything is in the constitution;

• Presidential primaries

• Congressional committees

• President's cabinet

• EXOP

• Supreme Courts power of Judicial review.

Principals of the Constitution

Separation of powers

Divided national govt into; Legislative, Executive and Judiciary

• Be independent, yet co-equal

• Separate in terms of personnel

• Operate checks and balances on each other

• Promote as much desired concept of limited government

Thomas Jefferson 'that government is best which governs least'

Avoid tyranny; Law making, executing and enforcing would be separate

January 2009

• Barack Obama resigned from senate to become president

• Joe Biden resigned from senate to become VP

• Hilary Clinton resigned from Senate to become secretary of state

Checks and balances;

Checks by;

Checks on

Legislature

The Executive

The Judiciary

The legislature

-Amend/delay/reject the president's legislation

-Override the president's veto

-Control the budget

-Senates power to confirm numerous appointments made by the president

-Senate's power to ratify treaties negotiated by the president

-Declare war

-Investigation

-Impeachment, trial, conviction and removal from office of any branch member, including the president

-Senate's power to confirm appointments made by the president

-Initiate constitutional amendments

-Impeachment, trial, conviction and removal from office of any member.

The Executive

-Recommend legislation

-Veto legislation

-Call Congress into special session

-Appointment of judges

-Pardon

The Judiciary

-Judicial review; power to declare acts of congress unconstitutional

-Judicial review; the power to declare actions of any member of the executive branch (including the president) unconstitutional

Constitution an outline;

7 Articles

27 amendments (first 10 = the bill of rights)

• Article 1; Legislative (powers of congress, section 8)

• Article 2; Executive (powers of the president, section 2)

• Article 3; Judiciary

First 10 amendments were added in 1791 (written 1787)

Bill of rights; enumerate fundamental rights and freedoms

• 1st; Freedom of religion, speech and the press, right to peaceful assembly

• 2nd; Right to keep and bear arms

• 4th; Freedom from unreasonable searches

• 5th Rights of accused persons (including due process clause)

• 8th; Freedom from cruel and unusual punishment

• 10th; Rights reserved to the states and to the people

Since 1791- 17 further added.

18th(1919) and 21st (1933) cancel each other out (prohibition)

Other significant;

• 14th; Guarantees of 'equal protection' and 'due process' applied to all states

• 16th; Congress given power to tax income

• 17th; Direct election of senators

• 22nd; Two-term limit for a president

• 25th; Presidential disability and succession (VP)

Amending the constitution

2 stage process

Amendment proposed by:

Amendments ratified by:

-Congress; Two-thirds majority in both houses

or

-National Constitutional Convention; Called by at least two-thirds of states (never used)

-State legislatures; 3/4 of the states legislature must vote to ratify, often within a stated time limit.

of

-State Constitutional Conventions; 3/4 of the states must hold Conventions and vote to ratify

1. Proposals to amend the constitution can be made by either; - congress with a 2/3s majority in favour in both houses, - or by a national constitutional Convention call at the request of two-thirds of the states legislatures. (This has never been done).

2. Ratification can be made either by; - Three-quarters of the state legislatures -By three-quarters of the states holding a Constitutional Convention. (This has only been used once - to ratify the 21st amendment in 1933)

-Ratification of the Bill of Rights in 1791

-Since there have been 17 amendments in around 220 years

-Two of these 17 cancel each other out; prohibition of alcohol.

Six amendments proposed by congress but failed at ratification stage;

-Equal rights for women, proposed in 1972 ratified by only 35 states (3 short)

Between 1995 and 2008, congress voted 23 times on constitutional amendments;

-17 in the House

-6 in the Senate

The House passed amendments on seven occasions, 6 being on the same amendment - to forbid flag desecration.

The Senate rejected every amendment it considered during this time, including the Balanced budget amendment in three successive years 1995, 1996 & 1997 - and flag desecration in 1995,200 and 2000

Subjects of amendments

Balanced budget

Congressional term limits

Flag desecration

Tax limitation

School prayers

Super-majority to raise taxes

Marriage protection

Why rarely amended?

1. Founding fathers made it particularly difficult process

2. The vagueness of the Constitution, which has allowed the document to evolve without the need for constant formal amendment.

3. The Supreme Court's power of judicial review, which allows the Court to amend the meaning of the Constitution while the words remain largely unaltered.

4. The reverence with which the Constitution is regarded, which makes many politicians cautious of tampering with it.

5. The experience of the 18th amendment, regarding the prohibition of alcohol, which was repealed (by the 21st amendment) just 14 years later.

Constitutional rights

Two categories;

1. Freedom from

2. Freedom to

List doesn't show effectiveness; look at the government taking steps to ensure rights are protected.

• Congress can pass laws to facilitate rights. Laws enhance the rights of, for example racial minorities. It can also through its committee system and investigative powers, call the executive branch to account regarding how it implements passed laws.

• The executive branch needs to implement the laws and programmes which congress passes and establishes in order to ensure that legislation is followed by delivery.

• The Supreme Court has an important role in safeguarding the constitutional rights through its power of judicial review.

Freedom of/to;

Freedom from;

Speech (1st Amend)

Religion (1st Amend)

The press (1st Amend)

Assembly (1st Amend)

Keep and bear arms (2nd Amend)

Remain silent (5th Amend)

Speedy and public trial (6th Amend)

Voter, over-18s (26th Amend)

Unreasonable searches (4th Amend)

Cruel and unusual punishment (8th Amend)

Excessive bail (8th Amend)

Slavery and involuntary servitude (13th Amend)

Judiciary plays the most important role in this.

Time when it has been clearly ineffective;

• Dred Scot v. Stanford (1857), which stated that blacks could not become citizens of the US therefore were not entitled to rights

• Plessy v. Ferguson (1896), Upheld segregation of races on public transport and by implication in other areas of public life, 'separate but equal'

Court upholding constitutional issues;

• Abortion rights for women; Roe v. Wade

• Rights of arrested persons; Gideon v. Wainwright & Miranda v. Arizona

• Rights of racial minorities; Brown v. Board of education of Topeka

• Gun rights; District of Columbia v. Heller

Two-sides;

Some feel guaranteeing abortion rights for women, fails to protect rights of unborn child.

2nd Amendment, right to own guns, court failed to protect citizens from gun crime and violence.

Banning prayer in schools, separation of church and state, harms 1st amendment to freedom of religion.

Having once safe guarded a right, the Court may at a later date back-track

• Gratz v. Bollinger (2003), declared the university of Michigan's affirmative action- based admissions programme to be unconstitutional.

• Gonzales v. Carhart (2007), banned a certain abortion procedure, having upheld in 2000.