Unit 3 Constitutional

Change

How Has the Constitution Been Changed to Further the Ideals Contained in the Declaration of Independence

Essential Question

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 Overview

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.

Unit 3 Purpose

Lesson 15:How Have

Amendments and Judicial

Review Changed the Constitution?

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.

Purpose

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.

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.

Terms to Know

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

How and Why the Framers Devised an Amendment Process

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

Types of Amendments

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

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

Why a Bill of Rights was Proposed

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

The Development of 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.”

Controversy Over Judicial Review

1. The Constitution is a superior, paramount law that cannot be changed by ordinary means.

2. Acts of Congress, the Executive, and the States reflect temporary, fleeting views of what law is.

3. Acts of Congress, the Executive, and the States that conflict with the Constitution are not entitled to enforcement and must be disregarded.

4. Judges are in the best position to declare what the Constitution means.

Premises of 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

Arguments Against Judicial Review

Lesson 16:What Is the Role of Political Parties in the Constitutional System?

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.

Purpose

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.

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.

Terms to Know

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 Framers’ Thoughts on 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

The Development of Political Parties

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”

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.

4. Alien & Sedition Acts

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

The Revolution of 1800 and its Aftermath

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

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

Political Party Growth and Functions

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

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

Political Parties Today

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.

Less Favorable Aspects…

Lesson 17:How Did the Civil War Test and Transform the American Constitutional System?

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

Purpose

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.

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.

Terms to Know

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

Constitutional Issues Lay Foundation for Civil War

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

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.

Fugitive Slave Law of 1850

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)

The Dred Scott Decision

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.

Secession & Its Constitutionality

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

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

The Constitutional Issues that Provoked War

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

Emancipation Proclamation

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

Constitutional Issues Resolved

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

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.

Weakening Public Support

Lesson 18:How Has the Due Process Clause of the Fourteenth Amendment Changed the Constitution?

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.

Purpose

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.

adversary system ◦ A system of justice in which court trials are essentially contests between accuser and accused that

take place before an impartial judge or jury.

due process of law ◦ A requirement stated in the Fifth and Fourteenth Amendments that treatment by state and federal

governments in matters of life, liberty, or property of individuals be reasonable, fair, and follow known rules and procedures. See procedural due process and substantive due process

◦ incorporation

◦ The process through which the U.S. Supreme Court has applied the due process clause of the fourteenth Amendment to extend the reach of the Bill of Rights to include protection from interference by states.

inquisitorial system

◦ A trial system in which a judicial official or set of officials acts as both prosecutor and judge, questioning witnesses, examining evidence, and reaching a verdict.

procedural due process ◦ The principle that government must respect all, not some, of a person's legal rights. Government

must not subject individuals to unreasonable, unfair, or arbitrary treatment.

substantive due process ◦ Judicial interpretations of the due process clauses of the U.S. Constitution requiring the content of law

to be fair and reasonable.

Terms to Know

Principle traced back to Magna Carta◦ Gov’t must follow established

procedures and may not act arbitrarily in negatively altering or destroying life, liberty, or property.

Due process both an ancient and evolving concept (beliefs about natural rights evolve)

Due Process of the Law

5th Amendment◦ Limits national gov’t

Article 1◦ Prohibits ex post facto laws

14th Amendment ◦ Imposes due process on states,

grants Congress authority to enforce through legislation.

◦ Courts then determine whether legislation satisfies due process requirements of 5th and 14th.

Due Process References in Constitution

Requires gov’t to act in certain ways before regulating life, liberty, and property issues.

Applies to both criminal & civil matters.

Examples◦ Requirement of notice◦ Opportunity of a fair hearing◦ Opportunity to present evidence◦ Opportunity to appeal initial

decisions

Procedural Due Process

US & England have adversarial legal systems◦ Assumes justice results from clash of

positions between contesting parties. ◦ Both sides try to persuade impartial

judge / jury In criminal cases, defendant

innocent until proven guilty. ◦ Prosecution must prove guilt beyond

reasonable doubt. Procedural justice ensures the

“fight” is fair.

Procedural Rights in our Adversarial Legal System

Judges act as both investigators and decision-makers.

Argue that adversary system based upon unjustifiable assumptions◦ Adversaries are not of equal ability or resources◦ Neither side is concerned with truth emerging

unless it helps their side of the case. Critics of Inquisitorial system say it gives

too much power to judges. Juries are more impartial than government officials.

Inquisitorial System

Based upon idea that some rights are so fundamental that gov’t must have a “compelling” reason to regulate them.

Supreme Court must identify which rights are fundamental, and if gov’t has violated that particular right.

Substantive Due Process

By 1937, court abandoned view that economic rights are fundamental.

The following are (controversially) considered fundamental◦ Right to marry and have children◦ Right to purchase and use birth control◦ Right to free speech◦ Right to interstate travel◦ Right of legal voters to vote◦ Right to religious freedom…

Indentifying Fundamental Rights

By 1925, Supreme Court begins identifying rights in the bill of rights that the state must protect. ◦ Gitlow v. New York – states cannot infringe upon

free speech and press without compelling interest. Selective incorporation means the court

examines rights on case-by-case basis. ◦ Justice Frankfurter’s “shock the conscience” test

Court more reluctant to incorporate criminal procedure rights, felt states have greater responsibility for prosecuting & punishing.

The Doctrine of Incorporation

2nd Amendment right to bear arms 5th Amendment right to an indictment by a grand jury 7th Amendment right to a jury trial in civil lawsuits Implicit requirement in 6th amendment that

the jury in a criminal case must have 12 members and must reach a unanimous verdict.

Rights Not Incorporated

Lesson 19:How Has the Equal Protection Clause of the Fourteenth Amendment Changed the Constitution?

This lesson examines how the equal protection clause prohibits state governments from denying people “equal protection of the laws.”

Like the due process clause, the equal protection clause places limits on government, not private individuals.

Purpose

Define equal protection of the laws. Explain why neither state nor the national gov’t

can deprive people of equal protection of laws. Explain the “separate but equal” doctrine and

why it was abandoned. Describe the categories used to decide cases

challenging gov’t actions that treat some people differently.

Evaluate, take, and defend positions on how conflicts between or among rights should be resolved.

Objectives

Terms to Know equality of condition

◦ Equality in all aspects of life, such as wealth, standards of living, medical care, and working conditions.

equality of opportunity ◦ A right guaranteed by both federal and many state laws against discrimination in employment,

education, housing, or credit rights due to a person's race, color, sex and sometimes sexual orientation, religion, national origin, age, or handicap.

intermediate scrutiny ◦ In U.S. constitutional law, the middle level of scrutiny applied by courts deciding constitutional

issues through judicial review.

rational basis ◦ In U.S. constitutional law, the lowest level of scrutiny applied by courts deciding constitutional

issues through judicial review.

separate but equal ◦ The argument, upheld by the U.S. Supreme Court in Plessy v. Ferguson (1896) but later reversed,

that racially segregated public facilities are constitutional if those facilities are of equal quality.

strict scrutiny ◦ Under U.S. constitutional law, the second highest level of scrutiny used by courts reviewing federal

law for constitutional legitimacy. "Super strict scrutiny" is the highest level.

Constitutional guarantee of fair treatment for all persons, regardless of sex, race, national origin, religion, or political views.

Every person entitled to equality of opportunity, not equality of condition

Early Cases: ◦ Strauder v. WV (1880)

“All White” jury requirement prohibited◦ Yick Wo v. Hopkins (1886)

Ethnically discriminatory SF laws prohibited (citizens and aliens alike)

“Equal Protection of the Laws”

Following Reconstruction, Jim Crow laws designed to limit rights of African Americans and creates institutional segregation in South.

Plessy v. Fersguson (1896)◦ Racially separated rail cars constitutional as long

as facilities were “equal”

The “Separate But Equal” Doctrine

Brown v. Board of Education (1952)◦ NAACP challenges Kansas BoE, emphasize

damaging effects segregation has on children. ◦ Court rules that “separate” is “inherently

unequal” Despite ruling, enforcement proved

challenging…

Abandoning “Separate But Equal”

Supreme Court uses 3 basic levels of analysis to decide whether laws that create classifications violate “equal protection.”

Level 1: Strict Scrutiny◦ Race, national origin, religion, alien status, voting

rights, interstate travel, access to courts.◦ Gov’t must prove a “compelling state interest” to justify such classifications

Interpreting the Equal Protection Clause

Level 2: Intermediate Scrutiny◦ Gender, illegitimacy◦ Gov’t must prove laws “substantially related to

important gov’t purpose”◦ Cases: Craig v. Boren (‘76), Rostker v. Goldberg (‘81)

Level 3: Rational Basis◦ Wealth, disability, age…◦ Laws must be rational/reasonable. ◦ Cases: Stanton v. Stanton (‘75)

14th Only Applies To States. ◦ In Hirabayashi v. US (‘43), court ruled 5th Amendment

has equal protection component.

Interpreting the Equal Protection Clause

Is Affirmative Action Reverse Discrimination? Is Intermediate Scrutiny Appropriate For

Gender Classifications? Should Mentally Handicapped, Children of Illegal Aliens, and Gays and Lesbians Be Treated As “Discrete and Insular Minorities” Regarding Issues of Prejudice?

Controversies Remain

Lesson 20:How Has the Right to Vote Been Expanded since the Adoption of the Constitution?

During the early years of the nation, most white men met property requirements. However, many groups were historically denied the right to vote.

This lesson examines how the right to vote has been expanded since 1787 to now include almost all citizens 18 yrs. of age or older.

Purpose

Describe the extension of the franchise as a result of changes in voting laws, amendments to the Constitution, and Supreme Court decisions.

Evaluate, take and defend positions on how extending the right to vote is related to fundamental ideas and principles of American constitutional gov’t.

Objectives

Terms to Know

enfranchisement ◦ Giving the right to vote to a person or category of

persons.

franchise ◦ A right or privilege. In the context of American

politics, it means the right to vote.

Representative gov’t based upon principle that people have a say in determining who makes, executes, and judges the law.

Voting most basic means of participation. Although colonial America had property

requirements, franchise generous compared with Britain.

However, whole classes remained excluded. ◦ Women, natives, religious minorities, slaves…

Importance of American Enfrachisement

Framers could not agree, so left power with the States.

NJ (1776)◦ All inhabitants who met property / residency

(including women & African Americans)◦ However, those groups were later disenfranchised

in 1800s.

Early American Suffrage

White Men◦ Many leaders (J. Adams) feared

mob rule would erupt w/o property rights.

◦ Western states lead reform to abolish prop requirements in early 1800s (to attract settlers)

◦ Following Mexican-American War and Texas Annexation, suffrage granted to free Mexicans. However, violence and fraud deny many their rights.

Expansion of Suffrage

African American Men◦ 15th Amendment (1870) grants voting rights to

African Americans, but literacy tests, poll taxes, and grandfather clause bar many from voting.

◦ Almost a century passes until the civil rights movement galvanized national support to end voting discrimination.

Expansion of Suffrage

Women Mid 18th c. abolitionist and women suffrage movement

closely links. Stanton’s Seneca Falls Declaration of Sentiments echoes

Jefferson’s Declaration (‘48) Suzan B. Anthony & others point to section 1 of 14th claiming

that as citizens they should have suffrage Minor v. Happersett (‘75) Ruled that citizenship does not

automatically grant suffrage. WY leads western states expansion of women’s suffrage Following WWI and mass demonstrations, 19th

Amendment guaranties franchise for women

Expansion of Suffrage

Native Americans ◦ Originally, Native Americans not considered citizens◦ Considered “foreigners” and often treated as enemies◦ Dawes Act (‘87) extends citizenship if give up tribal

affiliations (attempt to undermine tribal culture)◦ Indian Citizenship Act (’24) extends franchise to all

natives with expectation that tribal gov’ts would whither and natives would assimilate into “mainstream”

◦ Enforcement lacking until passage of 24th (bans poll taxes) and Voting Rights Act (‘64)

Expansion of Suffrage

18 Year Olds◦ By ‘70, only 3 states granted suffrage to those under

age 21◦ Facing protests over Vietnam, Congress amends

Voting Rights Act to ensure suffrage for 18 yr olds◦ Oregon v. Mitchell (‘70) – rules that Congress could

regulate voting age in national elections but not state elections.

◦ In response, 26th Amendment passed prohibited all governments from denying voting rights of citizens age 18 or older.

Expansion of Suffrage