Chapter 3: The Constitution - Henry County Schools /...

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Protecting Your Rights How well do you know your rights? Whatconstitutional protections do you enjoyas a United States citizen? Few peopleknow the Constitution very well, yet we all rely on its provisions to ensure a stable government that works withindefined limits.

To learn more about how the Constitution is a relevant

document that protects your rightstoday, view the Democracy in ActionChapter 3 video lesson:

The Constitution—A Living Document

Chapter Overview Visit the United StatesGovernment: Democracy in Action Web siteat gov.glencoe.com and click on Chapter3—Overview to preview chapter information.

GOVERNMENT

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http://www.gov.glencoe.com

The Founders created the Constitutionmore than 200 years ago. Like Mon-tesquieu, they believed in a separation ofpowers. They divided the federal govern-

ment into legislative, executive, and judicialbranches. The Constitution established a republic,in which power is held by voting citizens throughtheir elected representatives. It provides citizenswith information about their rights and aboutwhat they may reasonably expect of their govern-ment. The success of this system of governmentdepends on an informed, participating citizenry.An understanding of the Constitution is key to un-derstanding the structure and daily function ofAmerican government.

StructureCompared with the constitutions of othercountries, the United States Constitution is

simple and brief. It establishes the structure andpowers of government but does not spell out everyaspect of how government will function. TheFounders wisely left it to future generations towork out such details as the need arose. The Con-stitution contains about 7,000 words and is divid-ed into three parts—the Preamble, the articles,and the amendments (for the entire text, see theReference Handbook, pages 774–799).

The Preamble The Preamble, or introduc-tion, states why the Constitution was written. Inthe Preamble, the Founders indicated that theywanted a government that would provide stabil-ity and order, protect citizens’ liberties, and servethe people:

“To form a more perfect Union, establishJustice, insure domestic Tranquility, pro-vide for the common defence, promote thegeneral Welfare, and secure the Blessings of Liberty.” —The Preamble

Structure and PrinciplesS e c t i o n 1S e c t i o n 1

CHAPTER 3: THE CONSTITUTION 63

Book BannedPARIS, FRANCE, 1751

Abook by a French noble

is attracting attention

and controversy. In The Spir-

it of Laws, published three

years ago, Charles-Louis de

Secondat, the baron de Mon-

tesquieu, proposed dividing

political authority into exec-

utive, legislative, and judicial

powers. Montesquieu argued

that assigning each set of

powers to a separate branch

of government would pro-

mote liberty. Although his

book has supporters in Eng-

land and America, it has been

harshly attacked throughout Europe.

The Spirit of Lawsbook

Reader’s Guide

Key Termsarticle, jurisdiction, supremacy clause, amendment,popular sovereignty, federalism, separation of powers, checks and balances, veto, judicial review

Find Out■ What is the basic structure of the Constitution?■ How did the Founders hope to prevent any one

branch of government from gaining too muchpower?

Understanding ConceptsConstitutional Interpretations What beliefs andprinciples in the Constitution help to build a na-tional identity for the United States?

The Constitution on display at the National Archives▲

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Seven Articles The Constitution contains sevendivisions called articles. Each article covers a generaltopic. For example, Articles I, II, and III createthe three branches of the national government—thelegislative, executive, and judicial branches. Most ofthe articles are divided into sections.

Article I establishes the legislative branch.Section 1 of Article I creates the United States Con-gress. Sections 2 and 3 set forth details about thetwo houses of Congress—the House of Represen-tatives and the Senate. Other sections of Article Ispell out the procedures for making laws, list thetypes of laws Congress may pass, and specify thepowers that Congress does not have.

Article II creates an executive branch to carryout laws passed by Congress. Article II, Section 1,begins: “The executive Power shall be vested in aPresident of the United States of America.” Thissection and those that follow detail the powers andduties of the presidency, describe qualifications forthe office and procedures for electing the presi-dent, and provide for a vice president.

Article III, Section 1, establishes a SupremeCourt to head the judicial branch. The section alsogives the national government the power to createlower federal courts. Section 2 outlines the juris-diction, or the authority, of the Supreme Courtand other federal courts to rule on cases. Section 3defines treason against the United States.

Article IV explains the relationship of thestates to one another and to the national govern-ment. This article requires each state to give citi-zens of other states the same rights as its owncitizens, addresses admitting new states, and guar-antees that the national government will protectthe states against invasion or domestic violence.

Article V spells out the ways that the Constitu-tion can be amended, or changed.Article VI containsthe supremacy clause, establishing that the Con-stitution, laws passed by Congress, and treaties of the United States “shall be the supreme Law ofthe Land.” Finally, Article VII addresses ratificationand declares that the Constitution would take effectafter it was ratified by nine states.

64 CHAPTER 3: THE CONSTITUTION

Critical Thinking The above documents granted many liberties at the time they were written; however, these rights were not applied equally to everyone. Which three categories of rights were extended by all four documents?

Rights and Freedoms Magna Carta(1215)

English Bill of Rights (1689)

Virginia Declaration

of Rights (1776)

Bill of Rights(1791)

Trial by jury

Due process

Private property

No unreasonable searches or seizures

No cruel punishment

No excessive bail or fines

Right to bear arms

Right to petition

Freedom of speech

Freedom of the press

Freedom of religion

Foundations of Personal LibertiesFoundations of Personal Liberties

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The Amendments The third part of the Con-stitution consists of amendments, or changes. TheConstitution has been amended 27 times through-out the nation’s history. The amendment processprovides a way this document, written more thantwo centuries ago, can remain responsive to theneeds of a changing nation.

Major PrinciplesThe Constitution rests on six major princi-ples of government: (1) popular sovereign-

ty; (2) federalism; (3) separation of powers; (4)checks and balances; (5) judicial review; and (6)limited government. These principles continue toinfluence the character of American government.

Popular Sovereignty The Constitution isbased on the concept of popular sovereignty—ruleby the people. United States government is basedupon the consent of the governed; the authority forgovernment flows from the people.

Federalism The terms federalism and federalsystem describe the basic structure of Americangovernment. These terms should not be confusedwith the term federal government, a phrase thatsimply refers to the national government in Wash-ington, D.C.

The Constitution created a federal system ofgovernment. Under federalism, power is dividedbetween national and state governments. Both levels have their own agencies and officials, andpass laws that directly affect citizens.

Why did the Founders create such a complexsystem of government? Why did they choose fed-eralism instead of a unitary form of government inwhich the central government has all major gov-erning powers? In 1787 there really seemed to beno other choice. The weak union created by theArticles of Confederation1 had not worked, yetpeople remained afraid to give all power to a cen-tral government. Federalism represented a middleground—a way to forge a union but limit centralpower by distributing authority between the statesand the national government. Federalism gives theUnited States a flexible system of government

under which the national government has thepower to act for the country as a whole, and stateshave power over many local matters.

Separation of Powers The Constitutionlimits the central government by dividing poweramong the legislative, executive, and judicialbranches. Under separation of powers, eachbranch has its responsibilities, a system that theFounders hoped would prevent any branch fromgaining too much power.

Checks and Balances To the principle ofseparation of powers the Founders added a systemof checks and balances, whereby each branch ofgovernment exercises some control over the oth-ers. This system works in several ways.


Critical Thinking The principles outlined in the Constitution were the Framers’ solution to the complex problems of a representative government. Which principle allows the president to veto legislation?

Popular SovereigntyPeople are the source of government power.

FederalismIn this governmental system, power is divided between national and state governments.

Separation of PowersEach of the three branches of government has its own responsibilities.

Checks and BalancesEach branch of government holds some control over the other two branches.

Judicial ReviewCourts have power to declare laws and actions of Congress and the president unconstitutional.

Limited Government The Constitution limits the powers of government by making explicit grants of authority.

Major Principles of the Constitution


See the following footnoted materials in the Reference Handbook:1. The Articles of Confederation, pages 808–811.

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Congress, for example, passes laws. The presi-dent can check Congress by rejecting—vetoing—its legislation. This veto power is balanced, however,by the power of Congress to override the veto by atwo-thirds vote of each house. The federal courtsrestrain Congress by ruling on the constitutionalityof laws. This power of the judicial branch is bal-anced by the power of the president to appoint fed-eral judges. This presidential power is balanced, inturn, by the Constitution’s requirement that theSenate approve appointments. Checks and balancescreated a system of shared powers.

Judicial Review The power of the courts to de-clare laws and actions of local, state, or nationalgovernments invalid if they violate the Constitu-tion is called judicial review. All federal courtshave this power, but the Supreme Court is the finalauthority on the meaning and the interpretation ofthe Constitution. Because the Constitution is thesupreme law of the land, acts contrary to it must bevoid.

The Founders did not explicitly give suchpower to the judicial branch. Article III of theConstitution, however, states that “the judicial


Critical Thinking The principle of checks and balances prevents one branch of government from becoming too powerful. In what ways does Congress check the Supreme Court?

Congress passes the laws that create executive agencies and the programs they administer, and it can override presidential vetoes by a two-thirds vote of both chambers and can impeach the president.Senate ratifies treaties and confirms presidential appointments to the executive branch and the courts.

Congress can impeach judges, create lower federal courts and fix their jurisdictions, set the size of the Supreme Court, and determine judicial salaries.Senate confirms judges.

Courts can interpret congressional statutes and declare acts of Congress unconstitutional. Courts can declare

presidential actionsunconstitutional and can determinewhether the executivebranch is properlyadministering lawspassed by Congress.

President can recommend legislation to Congress, veto bills passed by Congress,and implement laws passed by Congress.

President nominates federal judges and may enforce court orders.

CONGRESSLegislative function

COURTSJudicial function

PRESIDENTExecutive function

System of Checks and BalancesSystem of Checks and Balances

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power shall extend to all cases . . . aris-ing under this Constitution.” TheSupreme Court in the case of Marburyv. Madison1 in 1803 established theprecedent for federal courts to rule on the actions of the government.

The principle of judicial review isimportant. A Supreme Court decisionon the meaning of the Constitutioncan be changed only if the Court itselfchanges its views or if an amendmentto the Constitution is passed.

Limited Government The princi-ple of limited government means thatthe Constitution limits the actions ofgovernment by specifically listing pow-ers it does and does not have. The first10 amendments set specific limits inthe areas of freedom of expression,personal security, and fair trials.

The Constitution safeguards the na-tion against abuse of power. In 1974 when PresidentRichard Nixon resigned in the face of evidence thathe had acted illegally, President Gerald Ford said:

“My fellow Americans, our long nationalnightmare is over. Our Constitution works.Our great Republic is a government of lawsand not of men. Here the people rule.”—Gerald Ford, 1974

Checks and Balances The public disclosure of PresidentNixon’s involvement in the Watergate scandal led Congressand the Supreme Court to assert their constitutional powers.Explain how the constitutional system of checks andbalances supports the theory of separation of powers.

Constitutional Safeguards

See the following footnoted materials in the Reference Handbook:1. Marbury v. Madison case summary, page 761.

Although the democratic principles that Pres-ident Ford cited have existed for more than 200years, the Constitution as it is consistently imple-mented remains a flexible and dynamic instru-ment for meeting the changing needs of Americangovernment.

“It works!”

Sect ion 1 AssessmentSect ion 1 Assessment

Constitutional Interpretations As set out inthe Constitution, the principle of checks andbalances helps to limit the power of govern-ment. Create a diagram showing how a systemof checks and balances is provided for in yourlocal government.

Checking for Understanding1. Main Idea Using a graphic

organizer like the one to the right, show how the Constitution divides the powers of the federal government.

2. Define article, jurisdiction, supremacy clause,amendment, popular sovereignty, federalism,separation of powers, checks and balances,veto, judicial review.

3. Identify Marbury v. Madison.4. What are the six underlying principles of the

Constitution?

Critical Thinking5. Analyzing Information What is the relationship

between the principles of federalism and theseparation of powers as suggested byMontesquieu and detailed in the Constitution?


Federal Government

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Article I of the Constitution created a leg-islature of two houses: the Senate and theHouse of Representatives. The Housewas to be the voice of the people, chosen

by popular vote. The Senate represented the broadinterests of entire states, and senators were origi-nally chosen by their state legislatures. Qualifica-tions for senators were more rigorous than thosefor members of the House. Yet, in many ways, theHouse and Senate had equal powers.

Article II created the executive branch of gov-ernment. The presidency was an entirely new con-cept in 1787, and the need for the office of thepresident was hotly debated by the Founders. Theprovisions for a four-year term, appointment pow-ers, control of the armed forces, and foreign policydecisions were the result of compromises. A presi-dent with specified, limited powers was furtherguarded by an impeachment clause.

Article III established the judicial branch. TheConstitution established only one court—theSupreme Court. It gave Congress authority to setup additional courts as the need arose. In recogni-tion of the already operating state courts, theConstitution limited federal jurisdiction to casesarising under the Constitution, the laws of theUnited States, or to controversies that went out-side the jurisdiction of state courts.

The Legislative BranchThe Founders attached great importanceto lawmaking and expected Congress to

become the most important branch of the na-tional government. At the same time, however,they feared the abuse of power. Their experi-ence with the British Parliament had shownthat legislatures with unchecked powers couldpass repressive laws and endanger liberty. Con-sequently, the powers they gave Congress, un-like those enjoyed by the president and theSupreme Court, are expressed powers, powersdirectly stated in the Constitution.

Three Branches of GovernmentS e c t i o n 2S e c t i o n 2

Court Says No to NixonWASHINGTON, D.C., JULY 1974

The Supreme Court

ruled today that

President Richard M.

Nixon must surrender

tape recordings that

have long been sought

by the House and Senate

judiciary committees

investigating the 1972

break-in at Democratic

Party headquarters. The

justices rejected 8-0 the president’s argument that

recordings of Oval Office conversations are protect-

ed by executive privilege and by the doctrine of sep-

aration of powers. The Court ordered Nixon to turn

over the tapes to Watergate special prosecutor Leon

Jaworski. It is widely believed that the tapes contain

evidence of the president’s involvement in a cover-

up of the break-in.


A plea for the truth

Reader’s Guide

Key Termsexpressed powers, enumerated powers, elasticclause, federal bureaucracy

Find Out■ Why did the Constitution specifically describe

the powers of Congress, but remain vagueabout the powers of the president?

■ Which of the three branches of federal govern-ment seems to have the most power today?

Understanding ConceptsSeparation of Powers What is the chief function of each of the three branches of the federal government?

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See the following footnoted materials in the Reference Handbook:1. McCulloch v. Maryland case summary, page 761.

Symbols of GovernmentWhat does the U.S. Capitol symbolize toyou?

Present The U.S. Capitol, located onCapitol Hill, is one of the nation’s most familiar landmarks. It contains the currentSenate and House chambers.

Past The first seat of Congress containedmany symbols, such as an American eagle insignia and13 arrows and the olivebranch united, to mark it asa federal building.

▲

▲

Seats of Governmental Power

was whether a strict or a broad interpretation ofthe Constitution should be applied. The disputewas first addressed in 1819, in the case of McCul-loch v. Maryland,1 when the Supreme Court ruledin favor of a broad interpretation. The Court sup-ported the idea that the elastic clause gave Con-gress the right to make any laws necessary to carryout its other powers.

Congress Then and Now The first home ofCongress was Federal Hall in lower Manhattan,New York. (It moved to Philadelphia near the endof the second year, 1790.) The House met down-stairs; the Senate, on the upper floor. Under the direction of Speaker Fredrick A. Muhlenberg, theHouse named a committee to establish rules andprocedures. As soon as the Senate had its twelfthmember—a quorum—it informed the House thatit was ready for a joint session to count the elec-toral votes. House members climbed the stairs andhelped count the electoral votes that namedGeorge Washington and John Adams presidentand vice president.

Enumerated Powers Most of the expressedpowers of Congress are itemized in Article I, Sec-tion 8. These powers are also called enumeratedpowers because they are numbered 1–18. Fiveenumerated powers deal with economic legisla-tion—the power to levy taxes, to borrow money, toregulate commerce, to coin money, and to punishcounterfeiting. Seven enumerated powers providefor defense—the power to punish piracies, to de-clare war, to raise and support armed forces, toprovide a navy, to regulate the armed forces, to callforth the militia, and to organize the militia. In ad-dition to these powers, Section 8 provides for nat-uralizing citizens, establishing post offices,securing patents and copyrights, establishingcourts, and governing the District of Columbia.

The final enumerated power is the so-calledelastic clause. This clause gives Congress the rightto make all laws “necessary and proper” to carryout the powers expressed in the other clauses ofArticle I. It is called the elastic clause because it letsCongress “stretch” its powers to meet situations theFounders could never have anticipated.

What does the phrase “necessary and proper”in the elastic clause mean? Almost from the begin-ning, this phrase was a subject of dispute. The issue

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Once the structure of the House and Senatewas in place, each body began to work on legisla-tion. By 1795, four permanent committees hadformed. In the first Congress, the Senate intro-duced only 24 bills, and the House introduced 143.By comparison, today a total of about 10,000 billsare introduced yearly.

Attendance in legislative sessions was only apart-time job for many years. Members had otherjobs or were wealthy enough not to work. Congressdid not sit in continuous session until the mid-twentieth century. Today members of Congress liveand work nearly year-round in Washington, D.C.

The Executive BranchThe office of the presidency was initiated inresponse to the weakness of the Articles of

Confederation. It was significant that the office wasdescribed in the second, not the first, article of theConstitution. Like those of Congress, presidentialresponsibilities and powers have grown enormous-ly since George Washington took office in 1789.

Vague Constitutional Powers The presi-dent is head of the executive branch. The Foundersrecognized the need for a strong executive to carry


See the following footnoted materials in the Reference Handbook:1. The Constitution, pages 774–799.

Modern EntanglementsGeorge Washington warned fu-ture presidents to avoid foreignentanglements. In 1990, though,President George Bush persuad-ed other nations to join Opera-tion Desert Shield to free Kuwaitfrom invading Iraqi forces. Intoday’s world, do you thinkthat it is possible for Ameri-

can presidents to avoid for-eign entanglements?

Why or why not?

A Strong Executive

out the acts of Congress. They also distrusted direct participation by the people in decision making, fearing that mass democratic movementsmight try to redistribute personal property.The executive branch, they believed, could protectliberty, private property, and business. The execu-tive branch could also hold the actions of the leg-islative branch in check.

The Constitution grants the president broadbut vaguely described powers. The exact meaningof the president’s power in specific situations isopen to interpretation. Article II 1 begins simplyby stating: “The executive Power shall be vested ina President of the United States of America.” Somescholars call this sentence the “wild card” in thedeck of presidential powers. What they mean isthat this sentence may be “played,” or interpreted,in different ways, like a wild card in a card game.For example, under the executive power, the presi-dent can fire officials in the executive branch, makeagreements with foreign nations, or take emer-gency actions to save the nation, even though noneof these powers is specifically mentioned in theConstitution.

1992 Bushcampaignbutton

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Specific Powers Sections 2 and 3 of Article IIdo define some presidential powers. The president(1) is commander in chief of the armed forces andthe state militias (National Guard) when they arecalled into service; (2) appoints—with the Senate’sconsent—heads of executive departments (such asthe Department of Labor); (3) may pardon peopleconvicted of federal crimes, except in cases of im-peachment, or reduce a person’s jail sentence orfine; (4) makes treaties with the advice and consentof the Senate; (5) appoints ambassadors, federalcourt judges, and other top officials, with Senateconsent; (6) delivers an annual State of the Unionmessage to Congress and sends Congress othermessages from time to time; (7) calls Congress intospecial session when necessary; (8) meets withheads of state, ambassadors, and other foreign of-ficials; (9) commissions all military officers of theUnited States; and (10) ensures that the laws Con-gress passes are “faithfully executed.”

The Presidency Then and Now Presiden-tial government was a novel idea in 1789. Muchwould depend on the character of the person hold-ing the office. Everyone knew, and evendiscussed openly at the ConstitutionalConvention, that George Washingtonwas the likely choice. Washington didnot seek the office. He wrote his friend,the Marquis de Lafayette:

“All that may be necessaryto add, my dear Mar-quis, in order to showmy decided predilec-tion [preference], isthat (at my time of lifeand under my circum-stances) the [i]ncreas-ing infirmities of natureand the growing love of re-tirement do not permit me toentertain a wish beyond that ofliving and dying an honest manon my own farm.”—George Washington

When pressed into service, Wash-ington was very careful about the dis-charge of his duties, knowing that every

act would set a precedent. Inundated with requestsfor jobs in the executive branch, he refused to showany partiality to friends and relatives. After twoterms he retired to private life, stating that twoterms were sufficient for anyone.

Early presidents would not recognize the officetoday. President Washington had so little to do onsome days that he advertised in the newspaper thetimes when he would entertain visitors. He heldtea parties for anyone “properly attired” on Fridayevenings. Washington had only a handful of advis-ers and staff. By 1800, when President Adamsmoved to Washington, D.C., the second president’spapers were packed in only seven boxes.

In contrast, modern presidents’ schedules aretimed minute by minute. Presidents preside over aWhite House staff numbering in the hundreds, amilitary force of millions, and a vast federal bu-reaucracy made up of all executive branch em-ployees. The Chief Executive meets with officialson a tight schedule, often working into the night. Afleet of airplanes and helicopters stands ready tocarry the president and close advisers to any part ofthe nation or the world.


Presidential Leadership George Washington set manyprecedents as president. Washington, although a brilliantleader, was cautious. During the Civil War, President Lincolnboldly used measures to quiet opposition, even though suchmeasures violated constitutional guarantees of free speech,press, and assembly. What outside forces shaped Wash-ington and Lincoln’s view of the presidency?

A Changing Office

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The Judicial BranchIf judged by the length of Article III, the ju-dicial branch appears to be the weakest of

the branches of government. After naming theSupreme Court, the Constitution allows Congressto establish all “inferior” courts. The Framers werenot concerned about the power of the justices, al-lowing them to hold office for life.

Jurisdiction of Federal Courts The judi-ciary of the United States has two different systemsof courts. One system consists of the federalcourts, whose powers derive from the Constitutionand federal laws. The other includes the courts ofeach of the 50 states, whose powers derive fromstate constitutions and laws. Some have describedthe two-court systems existing side by side as adual court system.

Every court has the authority to hear only cer-tain kinds of cases. This authority is known as thejurisdiction of the court. Two factors determinethe jurisdiction of federal courts—the subjectmatter of the case and the parties involved in it.Federal courts try cases that involve United Stateslaws, treaties with foreign nations, or interpreta-tions of the Constitution. Cases involving admiral-ty or maritime law—the law of the sea, includingships, their crews, and disputes over actions andrights at sea—also come under federal court juris-diction. Federal courts also try cases involvingbankruptcy.

Federal Courts Then and Now When thefederal government moved to Washington, D.C., in1800, the capital architects forgot to design a build-ing for the Supreme Court! Two weeks before thestart of its term, the Court was assigned a small


Sam and Geeta Dardick

Making a DifferenceMaking a Difference Sam Dardick had polio as achild, resulting in perma-nent physical disability.

Every day he faces obstacles thatgo unnoticed by most peoplewithout disabilities. Climbingstairs, boarding buses, and ma-neuvering in small public rest-rooms are a challenge forsomeone in a wheelchair.

In the 1960s Sam married.His wife, Geeta, who does nothave a disability, started to seefirsthand some of the challengesher husband faced. At the timethere were no national laws requiring businesses to provide

access to people with disabil-ities. “Sam’s wheelchair wasa problem for both of us.We’d try to rent an apartmentand find that 100 percent ofthem had stairs. We’d go tothe movies: stairs again.We’d plan to take the bus . . .more stairs,” she said.

When the Dardicksmoved to California in the

1970s, they found that the statehad wheelchair accessibility lawsbut needed help to enforce them.Geeta and Sam worked thou-sands of hours to raise communi-ty awareness and to police theconstruction sites of new build-ings to make sure people withdisabilities were taken into con-sideration. “We marched for ac-cess to public transportation inSan Francisco, testified for ac-cessible apartments in Sacra-mento, busted inaccessible citycouncil meetings in Nevada City,and started an Independent Liv-ing Center in Grass Valley,”Geeta said.

The Dardicks helped to bringabout the passage of the Ameri-cans with Disabilities Act (ADA) in1990. This was the first nationalcivil rights bill for people with disabilities. The law requires allpublic places to be wheelchair ac-cessible. It also prohibits job dis-crimination against persons withphysical or mental disabilities.

Access forthose withdisabilities

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chamber on the main floor of theCapitol. In the beginning, jus-tices of the Supreme Court wereassigned to “ride circuit,” mean-ing that when the Supreme Courtwas not in session, they had tohear appeals in faraway districtcourts. John Jay, the first chiefjustice, who resigned in 1795,later declined President Adams’snomination to serve again be-cause of the strain of such duty.

Congress created the mod-ern federal court system in 1891,but the Supreme Court did nothave its own building until 1935.Despite this humble history, theSupreme Court today heads apowerful branch of government.It has carved out power in anumber of landmark cases be-ginning with Marbury v. Madisonin 1803. In that case Chief JusticeJohn Marshall announced thatthe Judiciary Act of 1789 gave theCourt more power than the Con-stitution allowed. Thus, the actwas unconstitutional. The powerto declare laws unconstitutional, known as judicialreview, elevated the Supreme Court to a status bal-ancing the powers of the other branches.

When it rules on constitutional issues, theSupreme Court cannot be overturned except by a constitutional amendment. But Congress can effectively overturn a Supreme Court decision interpreting a federal statute by enacting a new law.

Shared Power and ConflictThe Constitution created three separatebranches of government. It spelled out

some specific areas in which those branches wouldcooperate, such as in passing legislation, conduct-ing war, and spending money. Many of the work-ing relationships among the three branches,however, are not specifically mentioned in theConstitution. These relationships developed overtime during the normal ebb and flow of govern-ment operation and policy creation.

The President as Legislator The executiveand legislative branches must work together closelyin order for legislation to become effective policy.Without cooperation among the branches the gov-ernment can do little, if anything, to address the na-tion’s problems or serve its needs.

In practice, the executive branch providesplans for much of the legislation that Congressconsiders. The presidential initiative in legislationis mentioned in Article II, Section 3, of the Consti-tution:

“He shall, from time to time, give the Con-gress information of the state of the Union,and recommend to their considerationsuch measures as he shall judge necessaryand expedient . . . .”—Article II, Section 3

The president proposes much of the legislativeagenda and spells out the details of programs thatare enacted into law. In order for programs to be


The Roles of the President Shown here in The Republican Courtby Daniel Huntington, the president held this reception in New YorkCity in 1789 to honor his wife, Martha. In his spare time, Washingtonoften entertained guests. Why have the president’s dutiesincreased over the past 200 years?

The Early Presidency

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effective, the executive branch must have thepower to carry out legislative enactments. Thisoften involves creation of a bureaucracy to carryout the details of policy.

The President vs. Congress While cooper-ation between the executive and legislative branchesis necessary, several sources of conflictbetween these two branches have devel-oped. The expansion of presidentialpower has changed the structure of thenational government without formalchanges in the Constitution. The growingpower of the executive has, at times, trou-bled Congress. At other times, presidentshave charged Congress with attempts toencroach upon executive power.

Another source of conflict betweenthe branches stems from the responsibil-ity of Congress to monitor the way theexecutive branch enforces the laws.Sometimes the two branches quarrelover the way the president interprets thewill of Congress in bills it has passed.When this happens, the federal courtsmay be called upon to interpret the in-tent of Congress on a case-by-case basis.

Occasionally, however, Congress hasbeen accused of yielding too much powerto the Chief Executive. For example, in


Legislative Proposals President George W. Bush outlineshis legislative proposals to Congress. What is the purposeof the president’s annual State of the Union Address?

The President and Congress

1935 the Supreme Court nullified the law creatingthe National Recovery Administration (NRA). Inthe majority opinion Chief Justice Hughes said:

“Congress cannot delegate legislative power to the President to exercise anunfettered discretion to make whateverlaws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.”—Charles Evans Hughes, 1935

Finally, the development of political parties hascreated a source of conflict. If the executive office iscontrolled by one party and the legislature by an-other party, cooperation is unlikely. Each party hasa different agenda, different constituents to please,and even a different philosophy of government. Atbest, different parties in the executive and legislativebranches develop carefully studied compromisepolicies. At worst, they develop gridlock in whichnothing productive can be accomplished.

Congress vs. the Courts The Constitutiongave Congress power both to create the lower fed-eral courts and to limit the jurisdiction of theSupreme Court. Congress, however, has been

Quiet, Please! The delegates to theConstitutional Convention in Philadelphiareally needed to concentrate on writing the Constitution. The sound of carriages and carts passing back and forth on cobblestone streets outside the Pennsylvania State House bothered the delegates.Therefore, they hired people to shovel dirt onto the street outside to muffle the noise.

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reluctant to use this authority. When the SupremeCourt in 1964 ruled that both houses of state leg-islatures must be reapportioned on a populationbasis, the United States House of Representativespassed a bill to strip the Supreme Court and allfederal courts of jurisdiction over state legislativeredistricting. The Senate, however, killed the bill.

The Supreme Court vs. the PresidentSome Supreme Court decisions require compli-ance by the president in order that the decisionsmay be carried out. Occasionally, a president who

disagrees with the Court may refuse to enforce itsdecision. In the 1830s, the Court upheld the rightsof the Cherokee against the state of Georgia. It de-nied the state of Georgia the power to pass laws af-fecting Native Americans living there. PresidentAndrew Jackson, however, refused to provide military force to carry out the Court order. In another instance, President Franklin Roosevelt in-dicated he would not obey adverse decisions in twoseparate pending cases. In both instances theCourt avoided conflict by ruling in favor of thepresident.

Separation of PowersPresident Roosevelt’s NewDeal policies chal-lenged many of the traditional views on theseparation of powers.How can a time of crisis affect the pub-lic’s opinion on therole of the nationalgovernment?

A Time of Crisis

NRA quilt


Separation of Powers One of the cases heardby the Supreme Court involved the ruling thattelevising court proceedings does not neces-sarily deny defendants the right to a fair trial.Conduct an opinion poll to find out whetherpeople favor or oppose televised trials. Chartthe responses and summarize the poll results.

Checking for Understanding1. Main Idea Using a Venn

diagram, analyze the dif-ferent functions of the president and Congress in passing legislation and the functions they share.

2. Define expressed powers, enumerated powers,elastic clause, federal bureaucracy.

3. Identify McCulloch v. Maryland.4. Identify five powers of the president.5. What two systems of courts make up the

judiciary of the United States?6. How can Supreme Court decisions be

overturned?

Critical Thinking7. Making Comparisons What information would

you need to determine which branch of the feder-al government has the greatest power? Formu-late questions to obtain needed information.

President Congressboth


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The nation that the Founders wanted toperfect in 1787 consisted of fewer than 4million people living in 13 agriculturalstates along the Atlantic coast of North

America. More than two centuries later, that sameConstitution provides the foundation for govern-ing an industrial and highly technological nationof more than 285 million people in 50 states spreadacross the continent and beyond. The pricelessheritage of the Constitution has been its ability toadapt to new conditions while preserving the basicform of American government. The words ofChief Justice John Marshall in 1819 remain truetoday:

“We must never forget that it is . . . a Constitution intended to endure for ages tocome, and, consequently, to be adapted tothe various crises of human affairs.”—John Marshall, 1819

The Amendment ProcessThe Founders created a Constitution thatcould be adapted to a future they could

not foresee. One way they provided for changewas to describe how Congress and the statescould amend the Constitution. As outlined inArticle V, amendments may deal with any topicexcept that no state can lose equal representationin the Senate without the state’s consent.

Amendments may be proposed and rati-fied, or approved, in two ways. Regardless ofthe proposal and ratification methods used,however, the amendment process illustrates the federal system of American government.Amendments are proposed at a national level,but they are ratified on a state-by-state basis.

Proposing Amendments One method ofproposing an amendment is by a two-thirdsvote of each house of Congress. This is the onlymethod that has been used to date. Dozens of

Amending the ConstitutionS e c t i o n 3S e c t i o n 3

Madison’s AmendmentWASHINGTON, D.C., MAY 1992

The Twenty-seventh

Amendment to the

Constitution was ratified

by Michigan, the necessary

thirty-eighth state today,

more than 202 years after

it was proposed. The meas-

ure that prevents Congress

from voting itself a pay

raise stunned government

leaders. James Madison

offered the amendment

in 1789, but it was never adopted. Ten years ago, Gre-

gory Watson, then a 20-year-old student at the Uni-

versity of Texas, discovered the forgotten amendment

while doing research for a school paper. Now an aide

to a Texas state legislator, Watson made the amend-

ment’s passage his crusade. In 1991 the Senate’s un-

popular pay hike rallied support for his cause.

James Madison


Reader’s Guide

Key Termsratify, petition, balanced budget, impeach, treaty,executive agreement, judicial restraint, judicial activism

Find Out■ How does the amendment process illustrate

federalism? ■ What are the primary ways that informal

changes are made in the Constitution?

Understanding ConceptsPolitical Processes Why did the Framers makethe Constitution difficult to amend?

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Three-fourths of specialconstitutional conventions

called by the 50 states

Critical Thinking Amending the Constitution requires two steps: proposal and ratification. Why is the constitutional convention method of amending the Constitution controversial?

Three-fourths of the 50 state legislatures

A two-thirds vote of both houses of Congress

A constitutional convention called by

Congress on petition of two-thirds of the 50 states

STEP 1: Amendment Proposed by:

OR OR

STEP 2: Amendment Ratified by:

New Amendment

Process for Amending the ConstitutionProcess for Amending the Constitution

Used for all amendments except the Twenty-first

Never used

Used only for theTwenty-first Amendment (repeal of Prohibition)

Key

resolutions asking for constitutional amendmentsare introduced in Congress each year. In recentyears, suggestions have been made to put limits onincome taxes, to limit the tenure of Supreme Courtjustices to 12 years, and to give states completecontrol of oil deposits within their borders. Nonehave won the necessary two-thirds vote.

The other method for proposing amendmentsis by a national convention called by Congress atthe request of two-thirds of the states. Thismethod has never been used, but in recent historyit has almost occurred twice. In 1963 states beganto petition, or appeal to, Congress for a conven-tion to propose an amendment to overturnSupreme Court decisions affecting the election ofstate lawmakers. By 1967, 33 state legislatures, only1 short of the required two-thirds, had voted forsuch a convention. The campaign failed, however,when no other states voted for the convention.

Between 1975 and 1991, 32 state legislaturespetitioned Congress for a convention to proposean amendment requiring a balanced budget—one

in which the federal government’s spending neverexceeds its income. By 2000 federal revenues exceeded expenses and most Americans lost inter-est in a balanced budget amendment.

The convention method of proposing amend-ments is controversial, because such a conventionis not required to limit itself to a specific amend-ment. President Jimmy Carter in the 1970s cau-tioned that a convention for a federal budgetamendment might be “completely uncontrol-lable.” Legal scholars warned that such a conven-tion could propose amendments on any subject.

Ratifying Amendments When an amend-ment is proposed, Congress chooses one of twomethods for states to approve it. One way is for leg-islatures in three-fourths of the states to ratify theamendment. The other is for each state to call aspecial ratifying convention. The amendment be-comes part of the Constitution when three-fourthsof these conventions approve it.


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If a state rejects an amendment in the state leg-islature method, lawmakers may later reverse theirdecision and ratify the amendment. Suppose, how-ever, a state legislature approves an amendmentand then revokes the ratification. Is this legal? Thisquestion arose over the proposed Equal RightsAmendment (ERA) that would prohibit discrimi-nation on the basis of gender. When 5 of the 35state legislatures that approved the ERA later re-voked their ratification, questions arose. Manyconstitutional scholars contended that the states’revocations were unconstitutional. The courts,however, have never resolved the issue.

The other ratification method—by state rati-fying conventions—has been used only once. Con-ventions ratified the Twenty-first Amendment,which repealed the Eighteenth Amendment (1919)that banned the sale of alcoholic beverages. Con-gress let each state legislature determine how theratifying conventions would be organized and thedelegates elected. Delegates in each state ran forelection statewide either on a pledge to support theamendment or on a pledge to reject it. Then, at

each state ratifying convention, the elected dele-gates voted as they had pledged to do in their elec-tion campaigns. In effect, this method gave thepeople a direct voice in the amending process.

Congress Sets the Rules In addition to de-ciding which ratification method will be used,Congress decides how much time the states willhave to ratify an amendment. In modern times,Congress has set the limit at seven years.

Congress can put the time limit either in thetext of the amendment or in legislation that ac-companies the amendment. Placing a time limitcan alter the fate of an amendment.

Informal Changes Although formal amendments have playedan important role in making it a “living”

document, the Constitution has kept pace with thetimes and has grown as an instrument of govern-ment through informal change as well. Thisprocess does not involve changes in the wording of


Political Processes Congress approved the ERA in 1972, but it ran into opposition when itwas sent to the states for ratification. Do you think the Framers of the Constitution made it too difficult to amend the Constitution? Explain.

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articipatingI N G O V E R N M E N T

articipatingI N G O V E R N M E N T

the Constitution itself. Rather, informal changesoccur as government leaders and citizens fill in thedetails of government on a day-to-day, year-to-year basis to suit the needs of the times.

Changes Through Law Congress has passedlaws that have enlarged or clarified many of theConstitution’s provisions. The Founders expectedCongress to do this, and they gave it authority tospell out many details of the national government.

Article I, for example, gives Congress the powerto “lay and collect taxes.” But what does this provi-sion mean? Congress has applied the taxing author-ity of the Constitution and expanded its meaning bypassing complex tax laws that fill many volumes.

The same is true of the executive branch thatArticle II of the Constitution established. Congresshas greatly expanded the executive branch by cre-ating the cabinet departments, agencies, boards,and commissions.

In Article III, the Founders created “oneSupreme Court” and other courts “as the Congressmay . . . establish.” Congress completed the judicialbranch by passing the Judiciary Act of 1789.

Over the years, Congress has changed the judi-cial branch many times in response to new condi-tions. As the nation expanded and the number of

court cases increased, Congress created additionalfederal courts, established new rules of federalcourt procedure, and provided for court workerssuch as bailiffs and clerks.

Changes Through Practices Congress hasalso shaped the Constitution by the way it has usedits other powers. Under the Constitution, the Housemay impeach, or accuse, federal officials—includ-ing the president—while it is up to the Senate to de-termine the accused person’s guilt or innocence.Article II states that:

“The President, Vice-President, and all civilOfficers of the United States shall be re-moved from Office on Impeachment for,and Conviction of, Treason, Bribery, orother high Crimes and Misdemeanors.”—Article II, Section 4

The meanings of treason and bribery are clear, but what about “high crimes and misde-meanors”? This is up to Congress to decide. Con-gress has investigated more than 60 people onimpeachment charges, including three presi-dents—Andrew Johnson, Richard Nixon, and BillClinton.


More than 10,000 proposalsfor amendments to theConstitution have been

introduced in Congress since 1789.Anyone can initiate anamendment simply by writing a proposal foramending the Constitutionto a member of Congress.

ActivitySelect an issue you

believe the Constitution

needs to address and propose anamendment. Use existing amend-ments as guides for form and lan-guage to write your ownamendment. Follow these guide-lines when writing your proposal:• Explain what your proposed

amendment will do.• Explain why you believe it is

needed and how the nation willbenefit if it is ratified.

• Indicate what opposition you expect there to be to your amendment and why.

• Suggest arguments that could be used to reply to criticism of your amendment.

Submit your proposed amend-ment in a letter to a member ofCongress.

Proposing anAmendment

The Constitution

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Informal Presidential ChangesPresidential actions have also added to theConstitution. Many of these additions af-

fect the workings of the modern presidency.

Presidential Succession In 1841 WilliamHenry Harrison became the first president to die inoffice. As provided in the Constitution, Vice Presi-dent John Tyler assumed the powers of president.But did Tyler actually become president, or would hemerely act as president until the next election?

Tyler took the presidential oath of office. Manyofficials opposed Tyler’s interpretation of the Con-stitution, but no one successfully challenged him.Not until 1967, when the Twenty-fifth Amend-ment clarified presidential succession, was Tyler’sprecedent formally endorsed in the Constitution.

Foreign Affairs Modern presi-dents usually conduct foreign affairsby executive agreement, instead ofusing the treaty process specified inthe Constitution. While a treaty isan agreement between nations, anexecutive agreement is made direct-ly between the president and thehead of state of another country; itdoes not require Senate approval.

Domestic Affairs The Found-ers thought the executive branchwould be concerned mostly withcarrying out laws initiated by Con-gress. Yet in this century, presidentshave been aggressive in requestinglegislation from Congress.

These practices have becomeimportant precedents for buildingthe power of the president. Todaythe president plays a far greater rolein American government and poli-tics than most of the Founders everimagined.

Court Decisions As federal courts settle casesinvolving constitutional

questions, they interpret the mean-ing of the Constitution’s sometimes vague wordsand phrases. The Supreme Court, the nation’shighest court, plays a key role in this process.

Judicial Review The most important devicethe Court uses to interpret the Constitution is ju-dicial review. Although the principle of judicial re-view is well established, people continue todisagree over how the Court should use this power.Some advocate judicial restraint; others argue forjudicial activism.

The philosophy of judicial restraint holds thatthe Court should avoid taking the initiative on so-cial and political questions. The Court should uphold acts of Congress unless the acts clearly vi-olate a specific provision of the Constitution. Inother words, advocates of judicial restraint wantthe Court to leave the policy making to others.

Veto Power

Presidential Influence Clinton warns Congress that if they donot “send me legislation that guarantees every American privatehealth insurance . . . you will force me to take this pen [and]veto the legislation.” How does the influence modern presi-dents have on legislation differ from what the Founders intended?

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The philosophy of judicial activism, on theother hand, holds that the Court should play a rolein shaping national policies. The Court shouldapply the Constitution to social and political ques-tions. The Supreme Court under Chief JusticeEarl Warren—from 1953 to 1969—accepted casesinvolving many controversial issues, particularlycivil rights and the rights of the accused.

Because the Warren Court is considered an ac-tivist Court, people today associate judicial activismwith civil rights or social issues. History suggests,however, that the justices’ activism may justify theirindividual choices in any area of policy. Thus, judi-cial activism may mark either a conservative or lib-eral court. For example, in the 1930s conservativejustices frequently took activist positions againstgovernment regulation of the economy.

Since the 1940s, however, most activist policieshave been in support of civil liberties. Political lib-erals have tended to support activism, while con-servatives have argued for judicial restraint.

Changing Court Rulings Social and politicalconditions of the times often affect Court interpre-tations of the Constitution. The Supreme Courthas sometimes ruled that the Constitution meansone thing and then, years later, reversed itself. In1896, for example, the Court ruled that separatepublic facilities for African Americans were consti-tutional as long as those facilities were equal. Morethan a half century later, in 1954, the Court

reversed its position when it decided to outlawracial segregation in public schools.

Changes Through Custom and Usage

The Constitution has been informally en-larged through customs that have developed

over time. Political parties are a good example. TheConstitution does not mention political parties,but they began soon after the government was or-ganized and have been an important part of Amer-ican government since then. Today parties helporganize government and conduct elections.

The amendments added to the Constitutionand the changes achieved through precedent andpractice have created a government that can respond to the conditions and needs of the times.Thus, this short, simple document has continuedfor more than two centuries to serve as thesupreme law of the land.


Political Processes Do you think the Founderswere correct in allowing the Constitution to be amended? Write a letter to the editor of alocal newspaper explaining your position onthis issue.

Checking for Understanding1. Main Idea Using a graphic organizer like the one

below, describe at least one way Congress and theSupreme Court each have changed the Constitution.

2. Define ratify, petition, balanced budget, impeach, treaty, executive agreement, judicial restraint, judicial activism.

3. Identify Equal Rights Amendment (ERA), ChiefJustice Earl Warren.

4. Identify the two methods of ratifying amendments.

Critical Thinking5. Analyzing Information How have the four

informal methods of amending the Constitutionaffected the role of the executive branch in thefederal government?

Student Web Activity Visit the United StatesGovernment: Democracy in Action Web site atgov.glencoe.com and click on Chapter 3–StudentWeb Activities for an activity about amending theConstitution.

GOVERNMENT

Changes in the Constitution By CongressBy Supreme Court

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82

N O T E B O O K

CONSIDERING THE CONSTITUTIONTHE CONSTITUTION ALLOWS CONGRESS TO IMPEACH THE PRESIDENT.BARBARA JORDAN, the first African American woman elected to

the Texas State Senate, was serving on theHouse Judiciary Committee in 1974. This

committee was considering theimpeachment of Richard Nixon for

“high crimes and misdemeanors.”Jordan examined how ourConstitution has changed andexpanded over the years. Here is part of her speech on this issue:

“Mr. Chairman . . . Earlier today weheard the beginning of the Preamble to

the Constitution of the United States, ‘We,the people.’ It is a very eloquent beginning. But

when the document was completed on the 17th ofSeptember, 1787, I was not included in that ‘We, the people.’ I feltsomehow for many years that George Washington and AlexanderHamilton just left me out by mistake. But through the process ofamendment, interpretation, and court decision, I have finally beenincluded in ‘We, the people.’”

SPECIAL POWERS? Article 1, Section 8 of the Constitution states that “Congress shallhave the power to declare war.” But it is the president, claimingspecial powers from the Constitution, who often declares war.Which of the wars from the past 100 years listed below weredeclared by Congress?

World War II

Korean War

Vietnam War

The war in Grenada

1

(Answer: World War II is the only war on the list that was declared by Congress.)

2

34

56

7

Persian Gulf War

The war in Afghanistan

The war in Iraq

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ACCEPTED, May 7, 1992. THETWENTY-SEVENTH AMENDMENT to the Constitution was ratified203 years after it was firstproposed. The amendmentstates that raises for membersof Congress will take effectonly after the subsequentcongressional election.

RESTORED, 2002. TWO LARGEMURALS in the National ArchivesBuilding in Washington, D.C.This building, the home of theConstitution, is where artistBarry Frank painted the muralsin 1936. They depict fictionalscenes of the presentation of the Constitution and theDeclaration of Independence.The murals were painstakinglyrestored over a two-year period.

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WHAT PEOPLE SAID

“The people made the Constitution, and the people can unmake it.It is the creature of their will, and lives only by their will.”U.S. Supreme Court Chief Justice JOHN MARSHALL, 1821

“I would rather have a King, a House of Lords and Commons thanthe new government.” The patriot PATRICK HENRY, in support of his stand against the

establishment of the Constitution in 1788

“Setting up White House operatives who secretly decide to fightdirty little wars is a direct assumption of war powers expresslyforbidden by the Constitution.”Journalist BILL MOYERS, writing about the Iran-Contra affair, when the

Reagan administration attempted to bypass Congress in the name ofnational security

“The Constitution I interpret is not living, but dead….Our first responsibility is to not make sense of thelaw—our first responsibility is to follow the textof the law.”ANTONIN SCALIA, nominated by President Reagan

to be an associate justice of the Supreme Courtin 1986

“The happy union of these states is awonder; their constitution a miracle;their example the hope of libertythroughout the world.”JAMES MADISON, sometimes

called the “Father of the

V E R B A T I M

Constitution,” 1829

83

U . S . C O N S T I T U T I O N

James Madison

REMAIN SILENTThe Supreme Court’s ruling inMiranda v. Arizona (1966) said thatpeople who are arrested must beinformed of their constitutional rightsbefore being questioned by the police.This requirement is known as “Miranda rights.” Here’s one script police officers use to inform people of their Miranda rights:

1. You have the right to remain silent.2. Anything you say can and will be used against you in a court of law.3. You have the right to have an attorney present now and during any future questioning.4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

28” by 23 ”The measurements of each ofthe four sheets of the U.S.Constitution

$30 Amount paid to JacobShallus, who transcribed thewords of the Constitution in“fancy handwriting” inpreparation for its signing

9 The number of states thatneeded to ratify the Constitutionin order for it to go into effect.This happened in June 1788,when New Hampshire becamethe 9th state to ratify.

12 Number of amendmentsoriginally proposed to theConstitution. Ten of these wereaccepted and are known as theBill of Rights.

39 Numberof signers ofthe Constitution

1 Number of amendments thathave been repealed. TheEighteenth Amendment, whichdealt with Prohibition, wasrepealed in 1933.

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Because critics attacked the proposed Con-stitution for not protecting the rights ofthe people, the Founders promised to adda list of such rights. The first Congress

quickly proposed 12 amendments and sent them tothe states for ratification. In 1791 the states ratified10 of the amendments, which became known as theBill of Rights.

The Bill of RightsThe Bill of Rights limits the powers of gov-ernment. When the Constitution was

adopted, some state constitutions had bills ofrights. Thus it seemed necessary and reasonable toadd similar limits to the new national government.Although the Bill of Rights originally applied onlyto the national government, almost all its provi-sions have been applied to the states through a se-ries of Supreme Court decisions.

The First Amendment One of the most im-portant amendments in the Bill of Rights, the FirstAmendment states:

“Congress shall make no law respecting anestablishment of religion, or prohibitingthe free exercise thereof; or abridging thefreedom of speech, or of the press; or theright of the people peaceably to assemble,and to petition the Government for a re-dress of grievances.”—First Amendment, 1791

The First Amendment protects the right ofAmericans to worship as they please, or to haveno religion if they prefer. These principles areknown as freedom of religion and separation ofchurch and state. In addition, the First Amend-ment protects freedom of speech and freedom of the press. The government cannot prevent individuals from freely expressing their opin-ions. Citizens thus have the right to criticize

The AmendmentsS e c t i o n 4S e c t i o n 4

Reader’s Guide

Key Termsprior restraint, probable cause, search warrant, arrest warrant, due process of law, eminent do-main, lame duck, poll tax

Find Out■ Why is it important in a democratic society that

the government follow due process of law whentrying suspected criminals?

■ How do the amendments to the Constitutionshow the development of democracy in theUnited States?

Understanding ConceptsGrowth of Democracy How do the amendmentsreflect changes in society’s perception of rightsunder the Constitution?

What Bill of Rights?WASHINGTON, D.C., DECEMBER 1991

Only one in three

Americans knows

what the Bill of Rights is,

according to a poll com-

missioned by the Ameri-

can Bar Association. The

survey offered a series of

multiple choice questions

to 507 participants. Thirty-

three percent correctly

identified the Bill of Rights

as the first 10 amendments

to the Constitution; but 28 percent said it was the

Constitution’s Preamble. Another 7 percent con-

fused it with the Declaration of Independence, and

10 percent simply didn’t know. Fewer than 1 in 10

knew why the Bill of Rights was adopted.

Polling Americans

84

084-093 CH03S4-860053 12/1/04 1:44 AM Page 84

government officials and decisions, and they are allowed to spread unpopular ideas.

The First Amendment protects not only indi-vidual speech, but also extends to the circulation ofideas in newspapers, books, magazines, radio, tele-vision, and, to some extent, movies. Unlike thepress in some other countries, the American pressis not subject to prior restraint—that is, govern-ment censorship of information before it is pub-lished or broadcast.

Freedom Within Limits The freedoms ofspeech and the press are not unlimited, however.For example, laws prohibit slander and libel. Slan-der is false speech intended to damage a person’sreputation. Libel is similar to slander, except that it applies to written or published statements. En-dangering the nation’s safety by giving away mili-tary secrets or calling for the violent overthrow of the government also are not protected. Courtshave also held that speech should be responsible.For example, no one has the right to cry “Fire!” ina crowded theater just to see what happens.

The First Amendment also protects the rightto assemble in groups and hold demonstrations.People may pass out pamphlets, hold meetings,and do other things that peaceably advertise theirbeliefs. Courts have ruled, however, that the gov-ernment can require a group to obtain a permitbefore holding meetings or demonstrations.

Finally, the First Amendment protects the rightto criticize government officials and their actions.The rights to sign petitions in support of an idea, topresent those petitions to government officials, andto send letters to those officials are all protected.

The Second Amendment This amendmentensures citizens and the nation the right to securi-ty. It states:

“A well-regulated Militia being necessary tothe security of a free State, the right of thepeople to keep and bear Arms shall not beinfringed.”—Second Amendment, 1791

Originally, the Second Amendment was in-tended to prevent the national government fromrepeating actions that the British had taken. Be-fore the Revolution, the British tried to take

weapons away from colonial militia, or armedforces of citizens.

This amendment seems to support the right forcitizens to own firearms, but it does not preventCongress from regulating the interstate sale ofweapons, nor has the Supreme Court applied theSecond Amendment to the states. Many state con-stitutions guarantee the right to keep and bear arms.

The Third Amendment This amendmentprohibits the government from forcing people toprovide shelter for soldiers in their homes, anoth-er British practice before the Revolution. In timesof war, however, Congress may require a home-owner to house soldiers but only under conditionsclearly spelled out by law.

The Fourth Amendment The FourthAmendment reflects the early Americans’ desire toprotect their privacy. Britain had used writs of as-sistance—general search warrants—to seek outsmuggled goods. To guard against such searchesand seizures, the Fourth Amendment protects theright to privacy. It requires authorities to have aspecific reason to search a premises or to seize evi-dence or people. Police cannot simply conduct ageneral search or seizure hoping to find damagingevidence, or arrest someone on the chance that heor she might have committed a crime.

To be lawful, a search or an arrest must be basedon probable cause, meaning that police must have areasonable basis to believe the person or premises islinked to a crime. A search or an arrest also usuallyrequires a search warrant or an arrest warrant.These are orders signed by a judge describing a spe-cific place to be searched for specific items or nam-ing the individual to be arrested for a specific crime.

The Fifth Amendment This amendmentcontains four important protections for people ac-cused of crimes. First, no one can be tried for a se-rious crime unless a grand jury has decided there isenough evidence to justify a trial.

Second, a person who is found innocent of acrime may not be tried again for the same offense.This clause prevents continued harassment of indi-viduals in order to convict them of a crime forwhich they have already been found innocent.

Third, no one may be forced to testify againsthimself or herself. As a result, people questioned by


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constitutional procedures in trials and in other actions it takes against individuals.

The Fifth Amendment also defines govern-ment’s right of eminent domain—the power ofgovernment to take private property for public use such as to build a highway, a dam, or a park.The government must pay a fair price for the prop-erty taken and must use it in a way that benefits the public.

The Sixth Amendment This amendmentprotects the rights of individuals charged with fed-eral crimes to defend themselves in a court trial.The Supreme Court, however, has ruled that theserights also apply to people charged with crimessubject to state courts. The Sixth Amendment givesan accused person several important rights.

A basic protection is the right to a speedy, pub-lic trial by an impartial jury. Thus, the authoritiescannot purposely hold a person for an unnecessar-ily long time awaiting trial. This protection pre-vents government from silencing its critics byholding them for years without trials, as often hap-pens under dictatorships. The requirement thattrials be conducted in public assures that justice iscarried out in full view of the people.

Although the amendment provides for trial byjury, an accused person may ask to be tried by ajudge alone. The accused also may ask to have hisor her trial moved to another community. Achange of venue, or new trial location, is some-times requested when unfavorable publicity indi-cates that the defendant cannot receive animpartial trial in the original location.

The Sixth Amendment gives accused personsthe right to know the charges against them, so thatthey may prepare a defense. Accused persons alsohave the right to hear and question all witnessesagainst them and the right to compel witnesses toappear at the trial and testify in their behalf. Theseprotections allow defendants to respond to the tes-timony of witnesses. In addition, accused personshave the right to be defended by a lawyer.

The Seventh Amendment The SeventhAmendment provides for the right to a jury trial infederal courts to settle all disputes about propertyworth more than $20. When both parties in a con-flict agree, however, a judge rather than a jury mayhear evidence and settle the case.


Critical Thinking The Bill of Rights was not part of the original Constitution. For what purpose were the first 10 amendments added to the Constitution?

10

9

8

7

6

5

4

3

2

1 Guarantees freedom of religion, speech, assembly, and press, and the right of people to petition the government

Protects the right of states to maintain a militia and of citizens to bear arms

Restricts quartering of troops in private homes

Provides that people’s rights are not restricted to those specified in Amendments 1–8

Restates the Constitution’s principle of federalism by providing that powers not granted to the national government nor prohibited to the states are reserved to the states and to the people

Protects against excessive bail and cruel and unusual punishment

Protects against “unreasonable searches and seizures”

Guarantees the right to a speedy and public trial by an impartial jury

Assures the right to a jury trial in cases involving the common law (the law established by previous court decisions)

Assures the right not to be deprived of “life, liberty, or property, without due process of law,” including protections against double jeopardy, self-incrimination, and government seizure of property without just compensation

The Bill of RightsThe Bill of Rights

the police, on trial, or testifying before a congres-sional hearing may refuse to answer questions iftheir answers would connect them with a criminalact. The government must establish a person’s guilt by finding independent evidence of the per-son’s involvement with the crime. Individuals can-not be required to convict themselves.

Finally, the Fifth Amendment states that gov-ernment may not deprive any person of life, liber-ty, or property without due process of law. Thismeans that the government must follow proper

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The Eighth Amendment This amendmentprohibits excessive bail—money or property that the accused deposits with the court to gain release from jail until the trial. The judge sets bailin an amount that ensures the accused will appearfor trial. When the trial ends, bail is returned. If theaccused does not appear, bail is forfeited.

The Eighth Amendment also prevents judgesfrom ordering someone convicted of a crime topay an excessive fine. Fines for serious crimes maybe higher than those for less serious ones. If some-one is too poor, he or she cannot be imprisoned forlonger than the maximum sentence to “work off”the fine.

Finally, the Eighth Amendment bans “crueland unusual punishment” for crimes. These arepunishments that are out of proportion to thecrime committed. For example, 20 years in prisonfor stealing a candy bar would be cruel and unusu-al punishment. The Eighth Amendment also hasbeen used to limit the use of the death penalty insome circumstances.

The Ninth Amendment The Ninth Amend-ment states that all other rights not spelled out inthe Constitution are “retained by the people.” Thisamendment prevents government from claimingthat the only rights people have are those listed inthe Bill of Rights. The amendment protects allbasic or natural rights not specifically noted in theConstitution.

The Tenth Amendment Unlike the otheramendments, the Tenth Amendment did not addanything to the ratified constitution. The finalamendment was intended to reaffirm the relation-ship between the national and state governments.It confirms that the people and states have rightsthat the national government may not assume.

Other AmendmentsThe 27 amendments fall into 3 majorgroups. The first group, which includes the

Bill of Rights, was added between 1791 and 1804 toput finishing touches on the original Constitution.The Eleventh and Twelfth Amendments also be-long to this group.

Article III, Section 1, of the Constitution gavethe federal courts jurisdiction in cases arising

between states, between citizens of different states,or between a state and citizens of another state. In1795 the Eleventh Amendment was added to theConstitution to prohibit a state from being sued infederal court by citizens of another state or of an-other nation.

In 1793 two citizens of South Carolina hadsued Georgia in the Supreme Court over propertyconfiscated during the Revolution. The Georgialegislature maintained that a sovereign state couldnot be summoned into federal court and orderedto defend itself. When Georgia officials refused to appear for the trial, the Supreme Court decidedagainst the state. Although Georgia lost the courtcase, it won its power struggle with the federal


Civil Rights As this painting His First Vote byThomas Waterman Wood shows, African Ameri-can men won the right to vote when the Fif-teenth Amendment became law in February1870. How did the Civil War amendmentsexpand civil rights in the nation?

The Power of the Ballot

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Critical Thinking The United States Constitution is the oldest active written constitution in the world, yet it has been amended only 27 times. Which amendments are known as the Civil War amendments?

Amendments Date Purpose

12

22

27

20

25

21

11

13

14

15

16

17

18

19

23

24

26

1795 Removed cases in which a state was sued without its consent from the jurisdiction of the federal courts

Required presidential electors to vote separately for president and vice president

Extended voting rights to African American males by outlawing denial of the right to vote on the basis of race, color, or previous condition of servitude

Empowered Congress to levy an income tax

Authorized Congress to prohibit the manufacture, sale, and transportation of liquor

Extended the right to vote to women

Repealed the Eighteenth Amendment and empowered Congress to regulate the liquor industry

Limited presidents to two full terms in office

Forbade requiring the payment of a poll tax to vote in a federal election

Provided for succession to the office of president in the event of death or incapacity and for filling vacancies in the office of vice president

Extended the right to vote to 18-year-olds

Banned Congress from increasing its members’ salaries until after the next election

Granted voters in the District of Columbia the right to vote for president and vice president

Shortened the time between a presidential election and inauguration by designating January 20 as Inauguration Day; set January 3 as the date for the opening of a new Congress

Provided for the election of U.S. senators by direct popular vote instead of by the state legislatures

Abolished slavery and authorized Congress to pass legislation implementing its abolition

Granted citizenship to all persons born or naturalized in the United States; banned states from denying any person life, liberty, or property without due process of law; and banned states from denying any person equal protection under the laws

1804

1865

1868

1870

1913

1913

1919

1920

1933

1933

1951

1961

1964

1967

1971

1992

Key

Amendments changing the powers of the national and state governments

Amendments changing government structure or function

Amendments extending the suffrage and power of voters

Other Constitutional AmendmentsOther Constitutional Amendments

See the following footnoted materials in the Reference Handbook:1. Chisholm v. Georgia case summary, page 756.

judiciary. The day after the Supreme Court announced its decision in Chisholm v. Georgia 1

Congress introduced an amendment to limit thejurisdiction of the federal courts.

The Twelfth Amendment, added in 1804, cor-rects a problem that had arisen in the method ofelecting the president and vice president. Thisamendment provides for the Electoral College touse separate ballots in voting for president and vicepresident.

Civil War Amendments The second group ofamendments—Thirteen, Fourteen, and Fifteen—often are called the Civil War amendments becausethey grew out of that great conflict.

The Thirteenth Amendment (1865) outlawsslavery, and the Fourteenth Amendment (1868)originally was intended to protect the legal rights of


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elect United States sen-ators. Congress had in-troduced amendmentsfor a direct popularelection of senatorsseveral times before.However, in 1912charges of vote buying

in state legislatures aided in the passage of thisamendment.

The Eighteenth Amendment (1919) prohibitsthe manufacture, sale, or transportation of alco-holic beverages, concluding a crusade to abolishthe use of liquor that began in the 1830s. The fol-lowing year, the Nineteenth Amendment (1920)guaranteed women the right to vote. By thenwomen had already won the right to vote in manystate elections, but the amendment put their rightto vote in all state and national elections on a constitutional basis.

The Twentieth Amendment (1933) sets newdates for Congress to begin its term and for the in-auguration of the president and vice president.Under the original Constitution, elected officialswho retired or who had been defeated remained inoffice for several months. For the outgoing presi-dent, this period ran from November until March.

the freed slaves and their de-scendants. Today it protects therights of citizenship in generalby prohibiting a state from de-priving any person of life, liber-ty, or property without “dueprocess of law.” In addition, itstates that all citizens have theright to equal protection of the law in all states. TheFifteenth Amendment (1870) prohibits the govern-ment from denying a person’s right to vote on the basisof race.

The Later Amendments The third group ofamendments have all been added in the twentiethcentury. They deal with a range of topics that re-flect the changes in modern American society.

The Sixteenth Amendment (1913) gives Con-gress the power to levy individual income taxes. Al-though the federal government had collectedincome taxes earlier, in 1895 the Supreme Court re-versed a previous decision and held that the basicfeatures of the federal income tax were unconstitu-tional. This decision prevented passage of anotherincome tax law until after the constitutionalamendment. The Seventeenth Amendment (1913)states that the people, instead of state legislatures,


Enforcing Laws Explainwhy the EighteenthAmendment may havebeen more difficult to en-force than the FourthAmendment.

Present The Fourth Amendment protects citizens from unlawful searches and arrest by governmentauthorities.

Past The Eighteenth Amendmentproved difficult to enforce and led to an illegal trade in alcohol. In Prohibition Raid, Thomas Hart Benton depicts police forcing the destruction of illegal alcohol.

▲

▲

Amendments in Practice

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Such outgoing officials had little influence and ac-complished little, and they were called lame ducksbecause they were so inactive. The amendment addressed and in most cases solved this problem byending the terms of senators and representativeson January 3, and the term of the president on January 20 in the year following their Novemberelections.

The Twenty-first Amendment (1933) repealsthe unsuccessful Eighteenth Amendment. TheTwenty-first Amendment, however, continued toban the transport of alcohol into any state whereits possession violated state law.

The Twenty-second Amendment (1951) lim-its presidents to a maximum of two elected terms.It was passed largely as a reaction to Franklin D.Roosevelt’s election to four terms between 1933and 1945.

The Twenty-third Amendment (1961) allowscitizens living in Washington, D.C., to vote forpresident and vice president, a right previously de-nied residents of the nation’s capital. The Districtof Columbia now has three presidential electors,the number to which it would be entitled if it werea state.

The Twenty-fourth Amendment (1964) pro-hibits poll taxes in federal elections—taxes paid inorder to vote. Prior to the passage of this amend-ment, some states had used such taxes to keep low-income African Americans from voting.

The Twenty-fifth Amendment (1967) estab-lishes a process for the vice president to take overleadership of the nation when a president is dis-abled. It also sets procedures for filling a vacancy inthe office of the vice president. This amendmentaddresses a delicate issue—when should a presi-dent be considered unable to perform the duties of the office? A few times in the nation’s history illness prevented a president from performing hisofficial duties. Should the vice president be con-sidered president during this time? The amend-ment says that when a president—or vice presidentwith the support of the majority of the cabinet—writes to the president pro tem of the Senate and the Speaker of the House expressing the in-ability of the president to perform the duties of theoffice, the vice president immediately becomes theacting president. In a conflict between the presi-dent and the vice president over this issue, Con-gress must decide who will perform the duties of the office.

The Twenty-sixth Amendment (1971) lowersthe voting age in both federal and state elections to 18.

The Twenty-seventh Amendment (1992)makes congressional pay raises effective during theterm following their passage. Originally proposedby James Madison in 1789, this amendment lin-gered in obscurity for more than 200 years until itwas discovered by a university student.

Sect ion 4 Re v iewSect ion 4 Re v iewSect ion 4 AssessmentSect ion 4 Assessment

Growth of Democracy Amendments often re-flect a change in society or a need for changein the structure and power of government.Write a report that identifies the reasons and events that led to the adoption of one of the 27 amendments. Present your findingsto the class.

Checking for Understanding1. Main Idea In a table, categorize the 27

amendments into the three major groups described in this section.

2. Define prior restraint, probable cause, searchwarrant, arrest warrant, due process of law, eminent domain, lame duck, poll tax.

3. Identify Bill of Rights, Chisholm v. Georgia.4. What rights are listed in the First Amendment?5. Identify the twentieth-century amendments that

deal with voting rights.

Critical Thinking6. Analyzing Information How do the amendments

to the Constitution preserve individual rights?


Constitutional Amendments

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Taking Notes

Effective note taking involves breaking up theinformation into meaningful parts so that itcan be understood and remembered.

Learning the SkillWhen taking notes, you must group facts into

a logical order. This order can be chronological—that is, placing facts in order of what happenedfirst, next, and last. Or you may take notes basedon relationships between events—for example,causes and effects or problems and solutions.

Before you take notes, skim the material.What are the main points? You can take notes byusing any of the organizers listed below.

• Time Line—Notes on sequenced events• Cause-and-Effect Chart—Identifies connec-

tions between events• Semantic Web—Shows different aspects of a

general topic or theme• Category Chart—Arranges data into specific

categories• Outline—Identifies main ideas with sub-

heads under each main ideaSelect an appropriate method; paraphrase

your notes in short phrases.

Practicing the Skill Read Section 2, pages 68–75, then answer

the following questions.1. Complete the web that follows; then state

what information it gives you in two or threecomplete sentences.

2. Complete the outline. What would be a goodtitle for it?

3. What new information does the outline provide that the web did not?

91

I.A. Legislative branch

1. Senate2.

B.1. President2. Vast federal bureaucracy

C. Judicial branch1.2.

U.S. Constitution

Article I

??

? ?

(Created) (Created) (Created)

Judicial Branch

Application ActivityApplication Activity

The Glencoe SkillbuilderInteractive Workbook, Level 2provides instruction and practicein key social studies skills.

Scan a local newspaper for a short edito-rial or article about a branch of the nationalor local government. Take notes by creatingan outline or graphic organizer. Summarizethe article using only your notes.

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Reviewing Key TermsChoose the italicized word or phrase that bestcompletes each of the following sentences.

1. The national government is divided into threebranches according to the principle of judicialrestraint/separation of powers.

2. All powers of Congress specifically listed in theConstitution are expressed powers/reservedpowers.

3. According to the principle of judicialreview/eminent domain, the government canforce someone to sell his or her home tomake way for a highway.

4. The idea that the Supreme Court should playan active role in shaping politics reflects thephilosophy of judicial restraint/judicial activism.

Recalling Facts1. Identify the six major principles of government

on which the Constitution is based.2. What is the constitutional principle illustrated

by the division of the national government intothree branches?

3. In the Constitution, what right does the finalenumerated power give Congress?

4. Describe how an amendment to the Constitu-tion is proposed and ratified.

5. In what ways may the Constitution be changedinformally?

Understanding Concepts1. Constitutional Interpretations How has the sys-

tem of checks and balances caused the sepa-ration of powers among the three branches ofgovernment to become less distinct?

Assessment and ActivitiesChapter 3Chapter 3

Self-Check Quiz Visit the United States Government:Democracy in Action Web site at gov.glencoe.com andclick on Chapter 3–Self-Check Quizzes to prepare forthe chapter test.

GOVERNMENT

Legislative Branch• Makes the law• Article I, Section 8, states the

expressed powers of Congress

Executive Branch• Carries out acts of Congress• Article II grants president broad but

vaguely described powers

Judicial Branch• Interprets the law• Article III establishes Supreme Court

and allows Congress to set up lower courts

• Popular sovereignty• Separation of powers• Judicial review• Federalism• Checks and balances• Limited government

GovernmentEstablished by

the Constitution


084-093 CH03S4-860053 12/1/04 1:46 AM Page 92



2. Why did the writers of the Magna Carta andthe Bill of Rights want to make sure their docu-ments prohibited the establishment of a statereligion?

Participating in Local GovernmentThe First Amendment guaranteesfreedom of assembly. Contact yourlocal government to find out its rulesabout holding assemblies, such as political rallies,meetings, or parades. Find out what restrictionsthe community places on where and when theassemblies take place.

2. Separation of Powers Howdid John Marshall help toelevate the Supreme Courtto be equal to the other twobranches of government?

Critical Thinking1. Understanding Cause and

Effect Use the graphic organizer below to show two results of having a briefConstitution that is a basicframework, rather than aspecific plan, of government.

2. Predicting Consequences Howwould the federal system ofgovernment be affected ifthe Supreme Court did nothave the power of judicial review?

Analyzing PrimarySourcesThe Magna Carta (1215), uponwhich much of British law isbased, is the foundation ofsome of the major principles ofthe United States Constitution. Read the followingexcerpt from the Magna Carta and answer thequestions that follow.

“(39) No free man shall be seized or imprisoned, or strippedof his rights or possessions, or outlawed or exiled, . . . nor willwe proceed with force against him, . . . except by the lawfuljudgement of his equals or by the law of the land. . . .(63) IT IS ACCORDINGLY OUR WISH AND COM-MAND that the English Church shall be free, and thatmen in our kingdom shall have and keep all these liberties,rights, and concessions, well and peaceably in their fulnessand entirety for them and their heirs. . . .

1. Why was it important to the creators of boththe Magna Carta and the Constitution to putinto writing the rights of citizens that the gov-ernment was sworn to protect?

Chapter 3Chapter 3

Interpreting Political Cartoons Activity

1. Which branch of government does the cartoonist imply is the most important?

2. Do you think the writers of the Constitution believed onebranch of government was more important? Explain youranswer.

“Let’s never forget that the constitution provides for three equally important branches of government; the legislative

and the other two.”

Brief ConstitutionResult

Result

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