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