This Is Still Our Country!!!!

[HARDCORE]

6-5-2020

History is replete with organizations that have sought, in one way or another, to weaken the fabric of democracy! This is not what men and women like Washington, Adams, Jefferson, Hale, Franklin, Ross and a multitude of other patriots (past, present and future alike) - were all about!

These people, however, were not alone in their love of all that we as “A Nation of The Free” stand for, as all throughout our history, there have been and will continue to be, those patriots who truly believe that ‘The Title of PATRIOT’ is never a dirty or soiled word, especially when it is used by anyone who truly believes in the equality of mankind, just as “Our Founders” did, nearly 244 years ago!!

“So, in this respect, I make no apologies” to anyone for my exercises in the use of “Free Speech” as this is a right that was granted to us (and redundantly paid for) nearly two and a half centuries ago, by real men and women and “By The Almighty Himself!” And “By God” man, it is not only your right, but indeed, it is your responsibility to stand by it as well -

“If, That Is , We As A Nation Are To Continue To Survive & Thrive!!”

(Redundant I Agree - But Ultimately Rejuvenating As Well!!!!)

Hardcore

[Boats]

Transcript of Constitution of the United States (1787)
Re: https://www.ourdocuments.gov/doc.php...age=transcript

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States If he approve; he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, The Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independance of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington
Presidt and deputy from Virginia

Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

Maryland
James McHenry
Dan of St Thos. Jenifer
Danl. Carroll

Virginia
John Blair
James Madison Jr.

North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson

South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

Georgia
William Few
Abr Baldwin

New Hampshire
John Langdon
Nicholas Gilman

Massachusetts
Nathaniel Gorham
Rufus King

Connecticut
Wm. Saml. Johnson
Roger Sherman

New York
Alexander Hamilton

New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton

Pennsylvania
B Franklin
Thomas Mifflin
Robt. Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris

[Boats]

How Has the Constitution Expanded over Time?
Re: https://www.annenbergclassroom.org/r...-changed-time/

Our Constitution
Chapter 4 – How Has the Constitution Expanded over Time?
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The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
Chief Justice John Marshall, majority opinion in Marbury v. Madison (1803)
A constitutional amendment to permit students to pray in school; an amendment to guarantee women equal rights; an amendment to prohibit abortion; an amendment to define marriage; an amendment to make the District of Columbia a state: these are just a few of the more than eleven thousand proposed amendments formally introduced in Congress that have not become part of the Constitution. Since the Bill of Rights—the first ten amendments to the Constitution—was adopted in 1791, Congress has passed an additional twenty-three amendments, of which the states have ratified only seventeen. Such statistics indicate the magnitude of difficulty in amending the U.S. Constitution.

The few amendments that have been adopted have generally come about because of a widely recognized problem or a sustained campaign for reform. After the Nineteenth Amendment gave women the right to vote in 1920, Car*rie Chapman Catt, one of the leaders of the woman suffrage movement, re*flected that: “To get the word ‘male’ in effect out of the Constitution cost the women of the country fifty-two years of pauseless campaign.” Given the difficulty of amending the Constitution, therefore, it is not surprising that change has more often occurred through judicial interpretation than through formal amendment.

The framers of the Constitution realized that change and reform would be necessary over time, and in Article V they spelled out several processes for amending this core document of the republic. Most commonly, amendments are approved by a two-thirds vote in both houses of Congress and then ratified by the legislatures of three-quarters of the states. Instead of the state legislatures, amendments can be ratified by conventions in three-quarters of the states. Voters in each state would elect members of these conventions. If Congress fails to respond to an issue important to the states, the states can also elect delegates to a constitutional convention that can propose amendments for the states to ratify. That procedure has not been used since the original Constitutional Convention in 1787.

The Articles of Confederation had required a unanimous vote of the states to approve any changes, which kept the Confederation Congress from fixing any of the weaknesses in the Articles. The Constitution’s solution for cautious, well-considered revision was a vote in Congress and the states that was more than a majority but less than unanimity. The amendment process set high hurdles to clear, but still allowed the government to address new problems and adopt changes in the federal system peacefully, once a broad national consensus on the issue was achieved. The Constitution rests on the sovereign power of the people, who have the right to change aspects of their government when necessary. James Wilson, a delegate to the Constitutional Convention from Pennsylvania, explained in a lecture in 1791 that amendments were “not a principle of discord, rancor, or war,” they were “a principle of melioration [reformation], contentment, and peace.”

The first ten amendments satisfied complaints that the Constitution lacked specific guarantees of individual rights. After that, amendments were added individually to meet problems as they arose. The first added after the Bill of Rights was triggered by a lawsuit, filed by attorney Alexander Chisholm, who as executor of an estate for a South Carolina merchant, Robert Farquhar, sued the state of Georgia to secure payment for war supplies the state had purchased from Farquhar. The Supreme Court ruled in Chisholm v. Georgia (1793) that states could be sued. Georgia paid the claim but called on its congressional delegation to support an amendment shielding the states from suits brought by citizens of another state or foreign country in federal court. Congress responded with what became the Eleventh Amendment, which the grateful states swiftly ratified. From then on, such claims could be filed only in state courts.

The unexpected outcome of the election of 1800 prompted the Twelfth Amendment. Thomas Jefferson and Aaron Burr ran as the Democratic-Republican candidates for President and Vice President. Although they defeated their Federalist rivals, Jefferson and Burr received an equal number of votes in the Electoral College. Because neither man had gotten a majority, the outcome of the election was left to the House of Representatives, which the opposition party controlled. Federalists who hated Jefferson voted for Burr for President. The House voted thirty-six times before it chose Jefferson for President, after the Federalist Party leader Alexander Hamilton threw his support to Jefferson, as the more able and honorable candidate. Jefferson became President and Burr became Vice President. (Burr later shot and killed Hamilton in a duel.) To prevent such a situation from happening again, the Twelfth Amendment, ratified in 1804, provided that the Electors vote separately for Presidential and Vice Presidential candidates. This meant that in the future, candidates for President would compete only against the other parties’ Presidential candidates, not against their own Vice Presidential running mates.

This great document is the unique American contribution to man’s continuing search for a society in which individual liberty is secure against governmental oppression.
Justice Hugo L. Black, A Constitutional Faith (1968)
More than sixty years passed before another amendment was added to the Constitution. Political pressure for new amendments lessened because of the Supreme Court’s assertiveness in deciding constitutional issues. Starting with the 1803 case of Marbury v. Madison, the Supreme Court justices claimed the right to declare acts of Congress unconstitutional. As Chief Justice John Marshall wrote for the Court: “It is, emphatically, the province and duty of the judicial department, to say what the law is.” The Court based its authority for this practice, known as judicial review, on Article III, section 2, which extended “judicial power” to all cases of law arising under the Constitution, along with the laws of the United States, and the treaties made with other nations. Also, state supreme courts had asserted the power of judicial review over state laws, establishing precedents for the national Supreme Court. Later, in McCulloch v. Maryland (1819), the Supreme Court applied a broad interpretation of the federal government’s right to take actions “necessary and proper” to meet the urgent needs of the nation. The Court’s recognition of the flexibility and elasticity of the Constitution reduced the demand for new amendments.

Not everyone agreed with Chief Justice Marshall’s reasoning regarding the power of the federal government. President James Madison personally favored spending federal money on “internal improvements” in the states—building roads and canals, for instance, to improve transportation and commerce—but he did not believe the Constitution permitted it. Madison vetoed an internal improvements bill based on this belief but called for a constitutional amendment to allow for it. Though Congress could not override Madison’s veto, neither did it pass the amendment he desired, and the issue of the federal government’s authority to find internal improvements remained a lingering controversy between those who favored either stricter or looser interpretations of the Constitution.

No new amendments were adopted until after the Civil War. In 1860, the election of the first Republican President, Abraham Lincoln, triggered the secession of the Southern states. During the months between the election and Lincoln’s inauguration, Congress nervously passed a constitutional amendment that would have protected slavery where it already existed. This last-ditch effort to preserve the Union stipulated that: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of per*sons held to labor or service by the laws of said State.” The effort failed because the seceded states no longer felt bound by the Constitution and the remaining states—where antislavery sentiments ran high—chose not to appease them.

Five years later the Civil War led to an amendment that did the just opposite. The Thirteenth Amendment permanently abolished slavery throughout the United States. President Lincoln had signed the Emancipation Proclamation in 1863, but that order affected only the states in rebellion and did not end slavery in the states that remained in the Union.

The abolition of slavery was the first of three amendments resulting from the Civil War that shifted more power from the states to the federal government. Congress drafted the Fourteenth Amendment to ensure that African Americans were recognized as citizens of the United States—contrary to the Supreme Court’s ruling in Dred Scott v. Sandford (1857). The amendment tried to ensure that the freedmen would have rights equal to those of all other citizens. In order to be readmitted to the Union and end Reconstruction rule, the Southern states were required to adopt the Fourteenth Amendment, which was ratified in 1868. Over the next century, however, Court rulings narrowed the amendment’s application, and shifted it from protecting individuals to protecting corporations from certain government regulation, on the grounds that corporations were “persons” entitled to equal rights and due process of the law.

The Fifteenth Amendment, ratified in 1870, prohibited denying someone the right to vote because of race. It was the first of several amendments that broadened the franchise—the right to vote. This post–Civil War amendment was intended to give the newly freed African Americans sufficient political power to protect their constitutional rights. It protected only men at the time, as no states then permitted women to vote. However, the Southern states soon undermined this amendment with a series of tactics, such as poll taxes and literacy requirements, that effectively disenfranchised their black citizens for another century.

After Reconstruction, there were no new amendments until the Progressive era early in the twentieth century, when reformers sought to improve the workings of the federal government, and to reform American society. Two amendments were ratified in 1913. The first permitted the government to collect income taxes. Article I had prohibited Congress from imposing a “direct tax,” but had not defined what this meant. During the Civil War, the federal government imposed an income tax to pay for the war’s enormous expenses. The tax, which was not challenged at the time, expired in 1872. Later, in the 1890s, reformers proposed a tax on individual and corporate income as an alternative to raising tariffs to produce revenue. (The federal government received most of its operating expenses from duties imposed on imported goods, but high tariffs increased the cost of consumer goods.) In the 1895 case of Pollock v. Farmer’s Loan & Trust Co., the Supreme Court struck down the income tax as a direct tax. It took reformers another twenty years to gain the Sixteenth Amendment, which effectively reversed the court’s ruling. At first, graduated income taxes were paid only by the people with the highest incomes. Not until World War II did average wage earners pay federal taxes that were withheld from payrolls.

Another Progressive-era reform, the Seventeenth Amendment, changed the way that senators were elected. The Constitution originally assigned the state legislatures to elect U.S. senators. Senators were seen as “ambassadors” from their states. The system produced some outstanding senators, including Henry Clay and Daniel Webster. Yet state legislatures sometimes deadlocked when choosing among candidates and were unable to fill Senate seats. Muckraking journalists—a term that Theodore Roosevelt applied to investigative journalists in 1906—raised the alarm that wealthy individuals were bribing legislatures to win Senate seats, where they protected special interests rather than the general public. In a series of magazine articles that ran under the title of “The Treason of the Senate,” the muckraker David Graham Phillips denounced the senators as “perjurers,” “bribers,” and “thieves.” Reformers proposed the amendment to allow citizens to elect their senators directly, and it was adopted in 1913. Unlike reformers in Britain at that time, who reduced the power of their House of Lords, the Seventeenth Amendment kept all the Senate’s initial powers and responsibilities intact, leaving it one of the most powerful “upper houses” in any national legislature. (When parliamentary governments began, the aristocracy served in the “upper” chamber and the commoners in the “lower.” The U.S. Congress makes no such class distinctions, but the Senate by virtue of being the smaller body with longer terms, and having the additional power of advice and consent over nominations and treaties, has often been called the “upper” body. Members of the House refer to it instead as the “other body.”)

American participation in the First World War propelled two other reform amendments. The Eighteenth Amendment, ratified in 1919, was the culmination of a century-long crusade to ban the sale and consumption of alcohol. The amendment gained momentum during the war with successful efforts to ban the sale of intoxicating drinks in the vicinity of military bases. The Eighteenth Amendment was the first to set a time limit of seven years on its ratification. Some “wet” members of Congress, torn between their personal distaste for Prohibition and the large numbers of “dry” voters in their states, observed that fewer than three-quarters of the states had adopted some form of prohibition, suggesting that the amendment might not be ratified by a sufficient number of states. The time limit enabled them to vote for the amendment with some hope that the states would not ratify it. To their surprise, enough states had responded in a little more than a year to ratify the amendment.

The Eighteenth Amendment banned “intoxicating beverages,” but left it to Congress to define exactly which beverages were included. Responding to public opinion, in 1919, Congress passed the Volstead Act, which banned beer and wine along with hard liquor. The sweeping nature of Prohibition encouraged massive violations of the law during the Roaring Twenties. The mobster Al Capone bragged to newspaper reporters that by selling illegal liquor he was a simply supplying a public demand: “Some call it bootlegging. Some call it racketeering. I call it a business. They say I violate the prohibition law. Who doesn’t?” To end the lawlessness that Prohibition stimulated, the Eighteenth Amendment was repealed by the Twenty-first Amendment in 1933, making it the only amendment to the Constitution to be voided.

The repeal of Prohibition has been the only amendment to be ratified by state conventions rather than by the legislatures. Advocates of repeal accepted ratification by convention because many state legislatures did not meet every year and waiting for them to convene would have delayed repeal. As the people would vote for state convention delegates, the convention system would also give repeal a popular mandate. Forty-three states established conventions and achieved the needed three-quarters ratification within four months. The states, however, retained the right to set their own laws regarding the transportation, sale, and consumption of alcohol.

The Eighteenth Amendment’s widely perceived failure made some people cynical about amendments. In 1930 the caustic journalist H. L. Mencken asserted in a magazine article that there was one generalization that could be made about constitutional amendments: “They never work.” Since then it has often been argued that social attitudes cannot be changed by laws or constitutional amendments. Yet the Nineteenth Amendment, ratified just after Prohibition, was highly successful. It ended a century of struggle by women seeking the right to vote. Some western states had already given women both the vote and the right to run for office. The first woman elected to the U.S. House of Representatives, Jeannette Rankin of Montana, was elected in 1916, before the Nineteenth Amendment extended woman suffrage to all the states. Women’s active roles in many capacities during the First World War helped erode opposition to their right to vote.

Testifying in 1917, the woman suffrage lobbyist Maud Younger pointed out to a congressional committee the contradiction of fighting a war to “make the world safe for democracy,” when so many American citizens were denied their democratic rights at home. “We thought, too, of the women of other nations, on the verge of enfranchisement [getting the vote] themselves,” she said. “And we wondered how they would welcome the United States at the peace council to establish democracy for them—the United States which does not recognize its own women.” In 1920, soon after the war ended, woman suffrage became part of the Constitution.

In 1933, the same year that Prohibition was repealed, the Twentieth Amendment revised the government’s calendar. Known as the “lame duck” amendment, it pushed the beginning of Congress from December (thirteen months after the elections) back to January (two months after the election). This reduced the need for congressional sessions to be held after the elections, where many members who had retired or had been defeated continued to vote in Congress. These “lame ducks” no longer owed allegiance to the voters and were more susceptible to special interests. The Twentieth Amendment also shifted the President’s inauguration from March 4 to January 20. The long delays that had made sense in earlier centuries, when transportation was slow, no longer made sense in the twentieth century, especially as the need for government action seemed more pressing.

Elected in November 1932, Franklin D. Roosevelt was the last President to have to wait until March for his inauguration. During the five-month interregnum before he took the oath of office, the national economy declined into the worst depression in American history. The government’s inability to act vigorously during the transition made the need for constitutional change all the more obvious.

Once inaugurated, Roosevelt launched an ambitious New Deal program for economic relief and reform. The Democrats increased their majorities in Congress in 1934 and 1936, showing widespread popular support for Roosevelt’s liberal program, but the Supreme Court remained dominated by Republican appointees. Conservative justices ruled unconstitutional such major New Deal initiatives as the National Industrial Recovery Act (aimed at improving business and labor conditions) and the Agricultural Adjustment Act (aimed at helping farmers). Having had no opportunity to appoint any justices to the Supreme Court during his first term, Roosevelt contemplated supporting a constitutional amendment that would require more than a simple majority vote on the Supreme Court to strike down an act of Congress. Instead, he decided to ask for legislation to enlarge the Court. His critics called this a “court packing” scheme and defeated it roundly. Within a few years, however, Roosevelt had appointed a majority of the Supreme Court justices. He appointed justices who generally favored a broad interpretation of the Constitution and were sympathetic to an active and innovative federal government.

Roosevelt’s unprecedented election to four terms as President encouraged his opponents (after his death in 1945) to propose an amendment to limit Presidents to two terms. They worried that popular Presidents could use their incumbency to keep themselves in office for life, and potentially to evolve into dictators. Opponents of the amendment argued against limiting the people’s right to choose their leader. After Republicans regained the majorities in the House and Senate, they proposed the Twenty-second Amendment, specifying a two-term limit. Strongly supported in state legislatures with Republican majorities, it was ratified in 1951. The Amendment exempted the incumbent President, Harry Truman, so that the first Presidents to feel this restriction, ironically, were popular Republicans, Dwight Eisenhower and Ronald Reagan. Not until Bill Clinton did a Democratic President serve two full terms and encounter the prohibition against running for a third term.

Ohio Republican senator John Bricker proposed another anti-Roosevelt amendment in 1953. Bricker’s amendment would have required the Senate to vote on executive agreements as it did on treaties. Presidents negotiate executive agreements with other nations, as long as those agreements reflect the President’s constitutional powers. For instance, as commander in chief the President can sign an executive agreement with another nation to station American troops in that country. The Bricker Amendment was in large part a reaction to President Franklin Roosevelt’s secret agreements with the Soviet Union made at Yalta, in the Ukraine, near the end of World War II. Supporters of the amendment felt that the Senate should have been able to vote to approve or reject that agreement, the same as it would have handled a treaty. When Congress considered the Bricker Amendment, Republican President Dwight Eisenhower vigorously opposed it as an unnecessary restriction on the President’s ability to conduct foreign policy. To Eisenhower’s relief, the amendment narrowly failed to pass.

Our country has deliberately undertaken a great social and economic experiment, noble in motive and far-reaching in purpose.
President Herbert Hoover on Prohibition, in a letter to Senator W. H. Borah of February 23, 1928
Constitutions should consist only of general provisions: The reason is, that they must necessarily be permanent, and that they cannot calculate for the possible changes of things.
Alexander Hamilton, speech to the New York ratification convention, June 28, 1788
Judicial review continued to resolve conflict and uncertainty about the Constitution. Generally, the Supreme Court operated on precedent, honoring rulings made by previous judges. But the Court was not bound by precedent and could overturn earlier decisions when circumstances and opinion had shifted. The Court’s decision in the 1954 case of Brown v. Board of Education, for instance, declared racial segregation in public schools unconstitutional. It reversed the earlier ruling in Plessy v. Ferguson (1896), which had upheld the notion that “separate but equal” facilities were acceptable. Following the Brown decision, two constitutional amendments further chipped away at racial inequalities.

The Twenty-third Amendment, ratified in 1961, gave the right to vote in Presidential elections to residents of the District of Columbia, where African Americans constituted a majority of the population. As the seat of the federal government, the district is not a state and has no senators, only a nonvoting delegate to the U.S. House of Representatives. The Twenty-fourth Amendment, ratified in 1964, abolished the poll taxes that some states had required citizens to pay in order to vote. Although poll taxes worked against poor people in general, they fell especially hard on African Americans in the South.

The shock of President John F. Kennedy’s assassination in 1963 made Americans focus on the problem of Presidential succession. After Vice President Lyn*don Johnson became President, the Vice Presidency remained vacant until the next election. Next in line of succession for the Presidency came the Speaker of the House and the president pro tempore of the Senate, both elderly men. People also wondered what might have occurred had President Kennedy been seriously wounded rather than killed. The Twenty-fifth Amendment, ratified in 1965, set up mechanisms to enable the Vice President to assume the Presidency if the President was incapable of functioning in office. When the Vice Presidency fell vacant, the President could nominate a replacement, with the consent of the Senate and House. Within a decade of the Twenty-fifth Amendment’s ratification, it was activated to appoint two Vice Presidents: the first following the resignations of Vice President Spiro Agnew and then of President Richard Nixon.

The Vietnam War prompted ratification of the Twenty-sixth Amendment in 1971. Reformers pointed out that young men were subject to the military draft at the age of eighteen, and should, therefore, be able to vote for the leaders who were sending them into combat. A few states already allowed voters younger than twenty-one. The Twenty-sixth Amendment lowered the voting age to eighteen nationwide. However, younger Americans have often failed to take advantage of this right.

Under Chief Justice Earl Warren, who served from 1953 to 1969, the Supreme Court became more liberal and activist. It struck down school desegregation, school-sponsored prayer, and state legislatures that gave more seats to sparsely populated rural areas than to heavily populated cities. Noting that the Ninth Amendment did not limit people’s rights to those enumerated in the Constitution, the Court ruled that citizens have a right to privacy, by which it overturned state laws banning contraceptives. Outraged opponents called for constitutional amendments to overturn the Court’s rulings. In none of these efforts, however, could they muster sufficient support to attain the two-thirds votes needed in Congress for an amendment.

Chief Justice Earl Warren: Promoting Social Reform from the Court
When he appointed California governor Earl Warren to be chief justice of the United States in 1953, President Dwight D. Eisenhower had little idea of what a powerful champion of change Warren would become. The new chief justice took over leadership of a Court sharply divided between those who believed in judicial restraint and judicial activism. Warren proved adept at forging new majorities among the justices, and he unexpectedly became an advocate of individual rights and liberties. In his first major case, dealing with school desegregation, Warren argued strongly that segregation violated the Constitution’s guarantee of equal protection of the laws. He convinced the other justices to join in a unanimous decision in Brown v. Board of Education (1954), which declared school segregation unconstitutional.

Warren was also proud of his leadership in striking down the old system of apportionment in state legislatures that gave more representation to sparsely populated rural districts than to large cities. “A citizen, a qualified voter,” Warren asserted, “is no more or less so because he lives in the city or on a farm.” In Baker v. Carr (1962), the Court ruled that all legislative districts must be equal in population. The Warren Court never shied from controversy. In Engel v. Vitale (1962), it struck down school-sponsored prayer. In Gideon v. Wainwright (1963) it ruled that a poor defendant must be provided with a lawyer. In Miranda v. Arizona (1966) it declared that criminal suspects must be informed of their constitutional rights. Eisenhower shook his head and called appointing Warren the biggest mistake of his Presidency, but others applauded the Warren Court’s vigorous defense of civil liberty and social reform.

In 1972, Congress passed the Equal Rights Amendment, prohibiting discrimination on account of gender. While a majority of states ratified the proposed amendment, a vocal anti-feminist group called STOP ERA launched a counter*offensive that convinced enough states not to ratify it, killing the amendment. Congress then extended the deadline for ratifying the ERA, but the amendment again failed to win enough support from state legislatures. Opponents argued that the amendment was unnecessary because federal laws already protected equal rights for women.

Another failed amendment proposed in the 1970s would have made the District of Columbia a state, giving it two senators and at least one representative. Although the district had a population comparable to that of several states, it was geographically tiny by comparison to the smallest state. Statehood raised questions about federal control of governmental areas within the district. Republicans also recognized that their party would have little chance of winning any of the congressional seats from the heavily Democratic District of Columbia. Only sixteen states had ratified the amendment when its time limit expired in 1985.

By contrast with the failure of these two amendments, after members of Congress raised their own salaries several times between 1987 and 1991, angry public opinion caused the states to belatedly ratify one of James Madison’s original twelve amendments. What became the Twenty-seventh Amendment in 1992 stipulated that raises in congressional salaries would not go into effect until after the next election, giving the voters a chance to register their disapproval. Gregory Watson, a student at the University of Texas, had started the campaign to encourage the states to approve this long-forgotten amendment, for which Congress had set no time limit for ratification. Its cause was taken up by radio talk shows that appealed to a growing public disaffection with government. The states finally ratified the amendment more than two hundred years after Congress had passed it.

Justice Sandra Day O’Connor: The Making of a Pragmatist<
When President Reagan nominated Sandra Day O’Connor in 1981, she became the first woman justice on the U.S. Supreme Court. Raised on an Arizona ranch, she had graduated third in her class at Stanford Law School in 1952, but, as she recalled in her commencement address at Stanford University on June 13, 2004, her academic brilliance did not lead directly to a post in private practice.

I was unable to obtain employment in a private law firm. I did receive one contingent offer of employment—as a legal secretary. But the gender walls that blocked me out of the private sector were more easily hurdled in the public sector, and I first found employment as a deputy county attorney of San Mateo County, California. While I was brought to the position by something short of choice, I came to realize almost immediately what a wonderful path I had taken. I was having a better time at my job than were those of my peers who had opted for private practice. Life as a public servant was more interesting. The work was more challenging. The encouragement and guidance from good mentors was more genuine. And the opportunities to take initiative and to see real results were more frequent. Ultimately, these forays into the exciting area of public service led me to the privilege of serving as an assistant attorney general in my state, a state senator, a state judge and a United States Supreme Court Justice.

Her prior career in public service made Justice O’Connor a pragmatist, and she adopted a middle-of-the-road, problem-solving approach to the law. With the Supreme Court’s liberal and conservative wings closely balanced, she provided the critical swing vote on many five-to-four decisions, ranging widely from abortion rights to affirmative action. Although she was not chief justice, her critical swing votes shaped the outcome of so many decisions during her tenure that upon her retirement in 2005 many commentators called it the O’Connor Court.

We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
Justice William J. Brennan Jr., Texas v. Johnson (1989)
In 1994, for the first time in forty years, Republicans won the majority in the House of Representatives. They campaigned under the banner of a Contract with America, which advocated a Balanced Budget Amendment. With the United States running record high deficits, a mandatory balanced budget had gained many supporters in both parties. The House swiftly passed the amendment, but the Senate failed to achieve a two-thirds margin by a single vote. Oregon Senator Mark Hatfield, the Republican chairman of the Senate Appropriations Committee, refused to follow his party’s lead on an amendment that he feared would hinder future government policy and cause more confusion than clarity. The drive for the amendment then lost steam when the government balanced its budget without the constitutional mandate.

Conservatives also endorsed a host of other amendments concerning social issues. They sought to prohibit abortion, outlaw flag burning, and ban same-sex marriages. Some liberals also called for an amendment changing the Electoral College, after Al Gore, the Democratic Presidential candidate in 2000, won the popular vote but lost the electoral vote and the Presidency. Such amendments provided rallying cries during campaigns, motivating both supporters and opponents, but they lacked broad enough support for enactment in Congress. These failures led to calls from angry citizens for a new constitutional convention to propose amendments. Given the uncertain outcome of a convention, however, there was no groundswell for such a risky tactic.

Combined, all the amendments to the constitution do not equal the number of words in the original document, as concise as it was. Amending the Constitution has been difficult enough to discourage all but a tiny number of proposals from being adopted. Broad bipartisan national support is essential to alter the nation’s fundamental charter. Yet the courts, together with the President and Congress, have steadily widened the scope of government and addressed new issues by reinterpreting the Constitution without always amending it.

[Boats]

Chapter 3 – What Rights Does the Constitution Protect?
Re: https://www.annenbergclassroom.org/r...ution-protect/

"The First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."
Justice Hugo L. Black, majority opinion in Bridges v. California (1941)

Newspapers have gained possession of highly classified government documents that shed an unfavorable light on an ongoing war. Should they be allowed to publish what they found? A poor man has been arrested on a criminal charge but cannot afford a lawyer. Should he stand trial without the benefit of legal counsel? Facing reapportionment, the representatives of rural districts in a state legislature argue that because their districts cover so much more territory than city districts, it should not matter that they have fewer residents than the urban districts. Is that fair to the city dwellers? Home owners confront a local government that requires them to sell their property and move to make way for economic development. Do the needs of the community outweigh those of the individual property owners? These are real issues that involve fundamental constitutional rights. The decisions made in these and many other cases of human rights, liberty, and equality have significantly affected the lives of every American citizen.

Yet, surveys show that alarming numbers of Americans are unaware of the full extent of their constitutional rights. Some people readily admit that they do not know what rights are included in the Constitution and its first ten amendments, the Bill of Rights. Other Americans have expressed the opinion that the Constitution went too far in granting such rights as free speech and free press and that society should be able to restrict opinions and behavior with which the majority disapproves. These are perilous attitudes, because those who remain unaware or unappreciative of their rights run the risk of losing them.

In reading the original U.S. Constitution, one finds very few specific rights mentioned, and those that are deal primarily with legal practices. Article I, section 9 protects the right of “habeas corpus” (a Latin term meaning “you may have the body”). To keep suspects from lingering indefinitely in prison, habeas corpus literally commands a jailer to produce the person jailed. This means that a prisoner has the right to challenge wrongful imprisonment, and the right to a speedy trial before a civilian court. The same section of the Constitution outlaws “bills of attainder,” the practice by which some governments convict citizens using legislation rather than a jury trial. It forbids “ex post facto” laws (Latin for “after the fact”), making something a crime after an action had been committed. It also bans any religious requirements for candidates for public office. Beyond these few prohibitions, the Constitution of 1787 remained silent on citizens’ specific rights.

The Constitution is a charter of negative liberties; it tells the federal government or the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.
Judge Richard A. Posner, Bowers v. DeVito (1982)
When the Constitution was submitted to the states, the absence of a bill of rights generated more controversy than any other aspect of the document and nearly derailed its ratification. Most of the delegates to the Constitutional Convention felt it was unnecessary to spell out people’s rights in the national Constitution. They argued that the state constitutions already protected those rights. A few dissenters among the delegates refused to sign the document because it lacked a guarantee of individual rights. When James Madison campaigned for the Constitution’s ratification in Virginia, he encountered such intense popular dismay over the missing bill of rights that he pledged to support amendments to the Constitution as soon as the new government got under way. Elected to the House of Representatives, he kept his word.

Madison studied all of the two hundred amendments the states proposed during their debates over ratification of the Constitution. He pared these down to nineteen, which he introduced in the new Congress in 1789. Some of the other members protested that it seemed too soon to change the new Constitution, which had barely gotten started and had yet to prove itself. Yet, Madison felt committed to honoring the pledges that he and other supporters of the Constitution had made during the ratification campaign.

The House and Senate remolded Madison’s proposals into twelve amendments. The states swiftly ratified ten but allowed the other two to languish. Two centuries later, in response to public complaints over a large pay increase that Congress voted for itself, the states revived and ratified one of Madison’s amendments not included in the Bill of Rights. This amendment prohibits any raise in congressional salaries from going into effect until after the next election, giving the voters a chance to express their approval or disapproval at the polls. That left only one of the original twelve amendments unratified. This one would have pegged the number of people in a congressional district at fifty thousand. If that amendment had been approved, the U.S. House of Representatives would now contain several thousand members, rather than 435. The national population has grown far greater than the first members of Congress ever anticipated.

Ratified in 1791, the first ten amendments are collectively known as the Bill of Rights. Some of their provisions date back to the English Bill of Rights of 1689, which included freedom to petition the government and freedom of assembly, as well as prohibitions against cruel and unusual punishment and against taxation without representation. Having long considered themselves British subjects, Americans claimed all the rights of “freeborn Englishmen.” The first state constitutions limited government from performing arbitrary acts that would deprive people of their freedom of speech, their freedom of religion, their right to bear arms, and their right to assemble peacefully and to petition Madison thought that the greatest danger to individual liberties came from the states, so he originally drafted the First Amendment to read: “No state shall violate . . .” In its final version it became: “Congress shall make no law . . .” For many years, the courts interpreted the Bill of Rights as applying only to the federal government, not to the states. Added just after the Civil the Fourteenth Amendment seemed to extend the Bill of Rights to the states by prohibiting the states from abridging people’s “privileges or immunities” or depriving them of life, liberty, or property without due process of law. It further guaranteed “equal protection of the laws.” But, for decades after the Fourteenth Amendment was ratified in 1868, the federal courts interpreted it narrowly. Not until the 1920s did the courts begin to apply the provisions of the Bill of Rights, one by one, to the states. (Although, it has not yet been used to apply the Second and the Seventh Amendments.) Liberal justices have argued that the Fourteenth Amendment “incorporates” the Bill of Rights, or extends the rights guaranteed to the state level. Conservative justices have been more skeptical of this argument and more restrained in their application of the Bill of Rights to the states.

The most sweeping provisions of the Bill of Rights are contained in the First Amendment. It embodies a host of fundamental rights, from freedom of religion, speech, and the press, to the right to assemble and to petition the government with complaints. In just a few words the First Amendment captures the essence of being an American. The First Amendment bars the federal government from formally recognizing any religion as the official state religion, no matter how many citizens follow that faith. At the same time, it guarantees all citizens the right to exercise their individual religious beliefs. When the first state governments were established, some tried to recognize a particular church or Protestant Christianity in general as an established religion, and barred non-Christians from holding public office. Some states taxed religious minorities differently than others. The First Amendment followed Thomas Jefferson’s advice that a “wall of separation” be erected between church and state. Jefferson believed that the separation of church and state would protect government and organized religion from each other. Under the First Amendment, the government cannot favor one religion over others, aid any religions, or stop people from exercising their religious beliefs.

To improve morality, various groups have frequently advocated religious practices in the public sphere. For instance, some states required that all public school students begin the day by reciting a prayer. The New York State legislature drafted what it considered a neutral prayer that made no references to any specific religion, but in the 1962 case of Engel v. Vitale the Supreme Court struck down the practice on the grounds that it was not “part of the business of government to compose official prayers.” Similar disputes later developed over the placing of the Ten Commandments in courtrooms and on other public property. In two narrow decisions in 2005 the Supreme Court split the difference, concluding that displaying the Ten Commandments on government property was only unconstitutional if it seemed that government was promoting religion. The Court ruled against displaying the Commandments in a Kentucky court*house, where their religious content was emphasized, but let a monument to the Commandments stand on the grounds of the Texas capitol as an acceptable tribute to the nation’s religious history.

The right of free speech has been just as controversial as the separation of church and state, because it involves freedom of expression, freedom of thought, and freedom to criticize the government. One person’s free speech may be offensive to another. The government has acted to restrict speech in radio and television broadcasting if it involves obscenity. During wartime, the government has also suppressed speech that it considers subversive, such as urging citizens to refuse to be drafted into military service. During the First World War, the Supreme Court concluded that the government could restrict such speech if it demonstrated that the speech posed a “clear and present danger” to the nation. In his opinion in Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. used the example of someone falsely crying “fire” in a crowded theater—simply to cause a panic and injure people—as an example of speech not protected by the Constitution.

Free speech sometimes involves symbolic action. The courts ruled that when protesters burn an American flag, the act is a legitimate extension of their right of free speech, no matter how much it offends people’s patriotism. In the case of Buckley v. Valeo (1976) the Supreme Court also extended the concept of “speech” to political campaign contributions. It ruled out any limit on the amount of money that candidates can contribute to their own campaigns as an infringement of their right to free speech.

An important corollary to free expression is freedom of the press. Newspapers have fiercely criticized government leaders and their policies since the Presidency of George Washington. The news media has developed into an unofficial “fourth branch of the government” that provides additional checks and balances by scrutinizing what government is doing and exposing corruption. One significant restraint on reporting for many years was the threat of libel suits brought by the public officials whom the media criticized. Then, in the case of New York Times Co. v. Sullivan (1964), the Supreme Court ruled that the media could not be convicted of libeling public officials, unless their accusers could prove malicious intent, not simply criticism or inaccuracies. This ruling substantially reduced the media’s liability for libel, which enabled reporters to question and criticize government officials more freely.

During the Vietnam War the New York Times, Washington Post, and other newspapers obtained and published still classified government documents, known as the Pentagon Papers. These documents detailed the history of how the United States entered the war. President Richard Nixon asked the courts to issue injunctions to stop the papers from publishing any more of these documents, an action called prior restraint. The Nixon administration argued that release of the documents would gravely harm national security. Yet, when the administration cited specific examples of such vital secrets, the newspapers were able to demonstrate that the information was already publicly available through other sources. The most damaging revelation in the Pentagon Papers was not classified information but evidence of the government’s poor decision making. Through the course of the trial, it became apparent that the administration’s primary motivation for suppressing publication was to avoid the perception of weakness in allowing the material to leak out. In the case of New York Times v. United States (1971), the Supreme Court ruled in favor of the newspapers, responding that the government had failed to show a “compelling interest” in restricting the right of a free press. “The press was to serve the governed, not the governors,” wrote Justice Hugo Black for the majority of the Court.

The First Amendment also protects people’s freedom to gather peacefully and to petition the government with their requests. These rights permitted the picketing and other protests during the civil rights and antiwar movements of the 1950s and 1960s, so long as they remained nonviolent. Americans have also made much use of the right to sign petitions. In the nineteenth century, anti*slavery groups sent Congress countless petitions demanding an end to the slave trade, and to other aspects of human slavery.Women’s groups also used petitions as a tactic in their long campaign to win the right to vote.

Taking the Fifth
During the Cold War, when congressional investigators were trying to root out subversives in the government, many witnesses refused to answer their questions, citing their rights under the Fifth Amendment. Some people suggested repealing the amendment but Harvard law professor (and later solicitor general of the United States) Erwin Griswold reminded them of the necessity of the amendment in a 1955 booklet called “The 5th Amendment Today.”

I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized . . . The establishment of the privilege is closely linked historically with the abolition of torture. Now we look upon torture with abhorrence. But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. For a very similar reasons, we do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed a considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being. If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment should be used to compel him to provide the evidence to accuse or to convict himself.

The Second Amendment guarantees the rights of citizens to “bear arms,” or own guns. Writing in The Federalist, Madison assured Americans that they need not fear the new government because of “the advantage of being armed, which you possess over the people of almost every other nation.” The amendment couples the right of individuals to own guns with the responsibility of forming state militias, to be called on in times of emergency. Today these militias are known as the National Guard. Congress and the courts have reasoned that the Second Amendment does not limit the federal government from enacting certain forms of gun control, such as requiring registration and a waiting period when purchasing firearms, prohibiting children and convicts from owning guns, or declaring certain weapons illegal.

The next six amendments in the Bill of Rights deal with legal rights. They protect one’s home from being taken over by the military—outlawing a practice that the British had employed during the American Revolution, when they quartered military troops in private homes. They further protect people’s homes, as well as their persons, papers, and other property, against unreasonable search and seizure by the authorities. The Fourth Amendment requires that police first obtain search warrants when hunting for incriminating evidence. It does not define “unreasonable,” however, and left the term for the courts to determine. In the twentieth century, electronic eavesdropping was deemed a violation of the Fourth Amendment, so that authorities must obtain legal permission to conduct wiretapping in criminal investigations. The Fourth Amendment assumes that people have a right to privacy and has been cited in many instances where people believe their privacy has been violated.

The Fifth Amendment safeguards the rights of anyone accused of a crime. It prohibits defendants from being tried again twice for the same crime if they have already been acquitted (a practice called “double jeopardy”). Nor can people be forced to give damaging testimony against themselves (“self-incrimination”). Such rights protect the innocent as well as the guilty, and some critics have complained that they hamper law enforcement. In the 1940s and 1950s, when congressional committees conducted investigations into Communist subversion and espionage, many witnesses “took the Fifth.” They refused to testify whether they had been members of the Communist Party or to name others who might have been involved. Government employees, including teachers, were fired from their jobs if they cited the Fifth Amendment when they declined to answer questions. The Supreme Court later in Watkins v. United States (1957) ruled that witnesses before congressional committees retained all their constitu*tional protections, including that against self-incrimination.

The Watkins ruling came too late for the popular writer Dashiell Hammett, whose crime novels included The Maltese Falcon (1930) and The Thin Man (1934). During the Great Depression, in 1937, Hammett had joined the Communist Party and was the trustee of a bail fund established by the Civil Rights Congress, later identified as a Communist dominated organization. Called to testify before the House Un-American Activities Committee in 1947, Hammett was asked to “name names” of those who had contributed money to the fund. He refused to provide information that might jeopardize people’s reputations and careers. Despite his prominence, Hammett was convicted of contempt of Congress for not answering these questions, and spent six months in a federal prison in 1951.

The Sixth Amendment upholds a defendant’s right to a speedy and fair trial. The Seventh ensures that in civil cases (those not involving criminal charges) both the plaintiff (who makes the charges) and the defendant have the right to a trial by jury, so long as one side demands it. The Eighth Amendment requires that bail and fines should not be set excessively high, and that “cruel and unusual” punishment not be inflicted on those found guilty. This amendment has given rise to a debate as to whether the death penalty can be considered cruel and unusual punishment.

Following this list of specific prohibitions, the Ninth and Tenth Amend*ments added some broad generalizations. One reason why James Madison had initially opposed a Bill of Rights was his concern that not all rights could be anticipated and enumerated. The Ninth Amendment maintains that the people have other rights that cannot be suppressed simply because they are not mentioned in the Bill of Rights. For many years the Ninth Amendment went essentially unused. It was revived in the 1965 case of Griswold v. Connecticut, when the Supreme Court struck down a state law banning contraceptives. The justices cited the Bill of Rights collectively in asserting people’s right to privacy in marital relations, and noted that the Ninth Amendment protected rights not specifically guaranteed in the Constitution. As Louis D. Brandeis wrote in an 1890 Harvard Law Review article (before he joined the Supreme Court), “the right to life has come to mean the right to enjoy life—the right to be let alone.”

The Tenth Amendment stated that those powers not delegated to the U.S. government belonged to the states. Those who advocate a “strict construction” of the Constitution—that is, applying exactly what is written in it and no more—insist that the federal government may not perform any functions that are not specifically enumerated in the Constitution. Defenders of states rights complain that the growth of the federal government consumed many responsibilities that should have been left to the states. Yet, Chief Justice John Marshall reasoned in the case of McCulloch v. Maryland (1819) that the Constitution could not anticipate all the powers that the national government would need to meet future circumstances, and that therefore the provision that Congress could make all laws “necessary and proper” to carry out its responsibilities implies additional powers.

A Consumer Advocate Defends the Right of Trial by Jury
Consumer advocate Ralph Nader described the value of jury trials in civil cases in his article “The Individual as Citizen,” which was published in 1992 in The United States Constitution: Roots, Rights, and Responsibilities.

The Seventh Amendment to the federal Constitution preserves the right of trial by jury “in suits at common law.” In recent years, that amendment has extended some remarkable benefits to the public. It was a worker sickened by asbestos who began the massive litigation that exposed the product’s health risks as well as the lengthy and very extensive cover-up of those risks by certain of its manufacturers. In this case one man succeeded in humbling a large corporation into disclosing its illegal practices and compensating its victims. Also alerted into action and precaution were the long-indifferent regulatory agencies and society at large. But the litigant would not have had a chance had he been unable to secure his right to jury trial. Juries are instruments of law that reduce the disparity of power between the haves and the have-nots. At present, a mounting attack on juries and the jury system in civil liability cases is being waged by insurance companies, trade associations, and other corporations. Recently one of their lobbies of*fered legislation to Congress that would preempt or limit various decisions made by juries in state courts. This lobby is testing the waters, for it has a long history of favoring replacement of the jury system with compensation boards operated by political appointees. The core word they use is “predictability”; the real word is “controllability.”

Tensions between these two positions reappear throughout American history. For instance, when the federal government tried to prohibit child labor, the Supreme Court in Hammer v. Dagenhart (1918), struck down these efforts as something that was more proper for the states to determine. A generation later, the Fair Labor Standards Act of 1938 again abolished child labor, and this time the courts accepted the law as constitutional.

Wartime fears have often strained the guarantees of the Bill of Rights. Responding to emergency situations, the government has argued for limiting individual rights to protect the national security. During the Civil War, President Abraham Lincoln suspended the right of habeas corpus to hold Confederate sympathizers without trial. By this method he prevented Maryland legislators from voting to secede, which would have isolated the capital of Washington, D.C., from the North. Lincoln explained that it was necessary for him to stretch the Constitution in order to save it. Not until after the war had been won did the Supreme Court uphold habeas corpus in the 1866 case of Ex Parte Milligan. During the First World War, the government prosecuted those who made public speeches against the war and the draft. During the Second World War, it sent thousands of Japanese Americans on the West Coast to inland internment centers. The Supreme Court ruled the internment camps unconstitutional in 1994. In 1990, the U.S. government formally apologized and paid reparations to the surviving internment camp prisoners. Following the terrorist attacks on September 11, 2001, Congress quickly passed the U.S.A. Patriot Act, which among other provisions vastly expanded the government’s access to private records, from medical records to books that people check out of libraries.

The Bill of Rights protects people’s civil liberties, which allow them to live their own lives according to their own consciences. Civil rights, by contrast to liberties, generally refer to matters of equality. Just before the Civil War, in the 1857 case of Dred Scott v. Sandford the Supreme Court had ruled that slaves were not citizens and, therefore, had no constitutional rights. Following the war, the Thirteenth, Fourteenth, and Fifteenth Amendments outlawed slavery, forbade racial discrimination in voting, and guaranteed all citizens equal protection of the laws. Yet the civil rights embodied in these amendments went largely unenforced for the next century. When the southern states adopted racial segregation, the Supreme Court upheld the notion of “separate but equal” in the 1896 case of Plessy v. Ferguson. Later in Brown v. Board of Education (1954) the Court concluded that in education, separate was not equal. Congress further struck down racial segregation with the Civil Rights Act of 1964.

The argument then switched when affirmative action programs offered ra*cial minorities an advantage in college enrollment, government contracts, and other areas. Critics complained that these programs amounted to “reverse discrimination.” In Regents of the University of California v. Bakke (1978) the Supreme Court ruled in favor of a white student who had not been admitted into medical school despite having higher test scores than some of the minorities who had been accepted. The Court did not strike down all affirmative action plans, but said that universities could not set fixed enrollment quotas specifically for minority students. Otherwise, the Supreme Court has recognized that diversity in education is constitutionally permissible, and that race can be considered as a factor in admissions.

An important right not guaranteed by the Bill of Rights was the right to vote. At the time that the first ten amendments were ratified, most of the states limited voting to white men who owned property. The states eventually dropped property requirements for voting, but it took several constitutional amendments to extend voting privileges to African Americans, women, and those between the ages of eighteen and twenty-one. In a democracy, the right to vote is as critical as any others guaranteed in the Constitution, and the responsibility of every citizen to exercise.

[Boats]

Chapter 5 – How is the Constitution Interpreted?
Re: https://www.annenbergclassroom.org/r...n-interpreted/

attempting to do: to create a representative democracy, with a central government strong enough to unify a vast, diverse, then and now politically fractious nation; but a government limited enough to allow individual liberty and enterprise to flourish. Well, 213 years later, we can say with thanks, they succeeded. Not only in keeping liberty alive, but in providing a strong, yet flexible, framework within which America could keep moving forward, generation after generation, toward making real the pure ideals embodied in their words.
President Bill Clinton, dedicating the National Constitution Center in Philadelphia on September 17, 2000

It irked President Thomas Jefferson that the Supreme Court in Marbury v. Madison (1803) and other cases had taken upon itself the power to declare acts of Congress unconstitutional. “There is not a word in the Constitution that has given that power to them,” Jefferson fumed in a letter to W. H. Torrance on March 11, 1815, about the Federalist justices who dominated the court in his day, “more than to the executive or the legislative branches.” Since then, other Presidents and congressional leaders have expressed similar outrage over Court rulings that struck down their legislative accomplishments. Liberals and conservatives alike have decried “judicial activism,” whenever rulings went against them. Despite these complaints, the Supreme Court has reserved the final word on whether the actions of the executive and legislative branches comply with the Constitution.

Constitutional law consists of the applications and legal interpretations of the Constitution, as distinguished from statutory law (the acts of Congress) and common law (the precedents established by lower court rulings). Consti*tutional law deals with the government’s legitimate functions and the limits that the Constitution places upon it. The executive and legislative branches constantly address new issues and establish new policies. Because Article III of the Constitution only gives federal courts the power to hear “cases or controversies,” only those persons who have been harmed by a law will have “standing” to challenge it.

An example of the question of “standing” occurred in 1995, when Congress enacted a “line-item veto” that enabled Presidents to veto a single fund*ing item within a larger appropriations bill without having to veto the whole bill. A few members of Congress who had voted against the line-item veto brought suit in the federal courts on the grounds that their legislative “power of the purse” had been diminished. However, a court found that they lacked standing—that is they had not been harmed by the line-item veto—and dismissed their suit. Then President Bill Clinton used the line-item veto to strike out funding that would have gone to New York City, and the courts heard the city’s suit because it did clearly have standing. In Clinton v. City of New York (1998), the Supreme Court struck down the line-item veto as unconstitutional.

Although all federal officers take an oath to uphold the Constitution, they often read that document very differently. Presidents assert powers that they be*lieve the Constitution gives them by implication. Congress enacts laws it deems “necessary and proper” to carry out its constitutional role. Their overlapping powers and responsibilities are an invitation to struggle. “The Constitution was designed to force conflict,” said House Speaker Newt Gingrich in a December 6, 2004, interview on National Public Radio’s Morning Edition. “You elect 100 senators, two per state. They’re not part of the president’s team. They work with the president, not for the president. You elect 435 House members by population; they work for the people who elect them. Then you have the president, who’s elected every four years by the whole country.” And, often the struggle between the executive branch and the legislature involves the President’s nomi*nation of and the Senate’s right to approve or reject judicial appointments, who will interpret the Constitution.

Political parties also play a role in the varying interpretations of the Constitution, even though the Constitution made no mention of them. Those who favor a limited national government and more states’rights have gravitated toward one party, while those favoring a stronger, more active federal government tended toward another. Presidents George Washington and John Adams were identified with the Federalist Party, which tended toward a dominant federal government, but their party lost the Presidency and majorities in both houses of Congress to the Democratic-Republicans, who favored states’ rights, in the election of 1800. This first transfer of power between the parties left only the judiciary under the control of the Federalists, since only Federalist-appointed judges were then serving. President Thomas Jefferson, a Democratic-Republican, then set out to purge the Supreme Court by encouraging his supporters in the House to impeach Supreme Court Justice Samuel Chase. A bitter partisan who never hesitated to speak his mind, Justice Chase struck many of Jefferson’s supporters as lacking a judicial temperament; however, this was hardly an impeachable offense. Jeffer*sonians in the House accused Chase of some minor infractions on the bench, but essentially accused him of having rendering legal interpretations of the law in “an arbitrary, oppressive, and unjust way.” Had these trumped-up charges suc*ceeded in convicting Chase, the Jeffersonians might have also tried to remove Chief Justice John Marshall. However, Justice Chase was acquitted at his Senate trial, discrediting the notion of using impeachment as a political tool.

Within a few years, the Federalist Party crumbled and the United States entered into a period of one-party rule, called the Era of Good Feelings. Al*though unified on the surface, political leaders had sharply different opinions over what the Constitution meant and how the government should operate. The Era of Good Feelings ended with the hotly contested election of 1824, in which Andrew Jackson won the greatest share of the popular vote but lost the election in the House of Representatives to John Quincy Adams. Jackson’s followers created their own party, the Democrats, while his opponents called themselves the Whigs, borrowing that name from the British political party that opposed the king, and supported social reforms in Parliament. In 1828 Jackson won the Presidency and began to spar with the Whigs in Congress—where the majorities fluctuated between Democrats and Whigs.

One of the clashes during this period between the executive and judicial branches dealt with efforts to remove Native Americans from their lands in the East and relocate them west of the Mississippi River. After the discovery of gold on Cherokee lands, the state of Georgia refused to recognize the Cherokees as a sovereign nation and opened tribal lands to white settlers. The Cherokees ap*pealed to the courts, and in the case of Cherokee Nation v. Georgia (1832), Chief Justice John Marshall upheld their rights. President Jackson, who disagreed with the Court’s order, refused to carry it out. “John Marshall has rendered his deci*sion,” Jackson supposedly said, “now let him enforce it.” Jackson instead sup*ported the Indian Removal Act, which paid the tribes for their land in the East and relocated them to new territory in the West. In 1838 the U.S. Army carried out that act and forcibly evicted the Cherokees who had resisted, sending them on the Trail of Tears to Oklahoma, so named because so many Cherokees died on the rugged journey.

Slavery also became a political and constitutional question. The question of whether slavery should be allowed to spread into the newly acquired western territories split apart the existing parties and encouraged the creation of the new Republican Party.When Abraham Lincoln became the first Republican to be elected President, eleven Southern states seceded from the Union out of concern that Lincoln would prevent the extension of slavery into the West, and perhaps move to abolish it completely. Lincoln denied being an abolitionist. Although he opposed the spread of slavery, he believed that the Constitution protected slaveholding where it already existed. During the Civil War, Lincoln signed an executive order known as the Emancipation Proclamation that freed people enslaved in territories under insurrection against the federal government. This act did not free anyone in the border states that had remained within the Union. Not until after the South was defeated did the Thirteenth Amendment abolish slavery entirely.

After Lincoln’s assassination, in the period of Reconstruction that followed the war, Congress fought fiercely with President Andrew Johnson over how to treat the defeated southern states. Johnson believed in carrying out Lincoln’s lenient policies, while congressional Republicans preferred a much tougher stance designed to protect the newly freed African Americans in the South. To prevent the President from dismissing cabinet officers sympathetic to the congressional Republicans, the Tenure of Office Act in 1867 required Senate approval to remove a cabinet officer, just as the Senate needed to confirm appointments. Presi*dent Johnson called the act unconstitutional and defiantly fired his secretary of war, Edwin Stanton. The House of Representatives impeached Johnson for this action and related issues in 1868. At his Senate trial, Johnson came within one vote of being removed from office. Congress later repealed the Tenure of Office Act, and in 1924 the Supreme Court belatedly confirmed the President’s right to remove executive branch appointees.

As a condition for being readmitted to the Union, the North required the southern states to ratify the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, known as the Reconstruction Amendments. On the surface, the amendments provided African Americans with citizenship, equal protection of the laws, and the right to vote. But, the language of the amendments, especially the sweeping nature of the Fourteenth Amendment, opened wide new areas for Congress to legislate and for the Court to interpret.

As the United States became a more industrial nation, the Supreme Court recognized the rights of corporations as “persons” under the Fourteenth Amend*ment and struck down efforts by the state and federal governments to regulate business as a violation of the amendment’s guarantee that no state shall “deprive any person of life, liberty, or property, without due process of law.” It would take another half century before the Supreme Court revised its interpretation of the amendment to permit laws that prohibited child labor, protected women workers, and set minimum wages for workers in general. Increasingly, the courts also used the Fourteenth Amendment to apply the restrictions and guarantees of the Bill of Rights to the states as well as to the federal government, using it to interpret laws related to voting and the rights of aliens and of criminal defendants. As the American industrial society developed, the federal courts changed their positions, becoming more tolerant of Presidential and legislative efforts to experiment with new means of protecting and improving the public welfare.

For the most part, the judicial branch has resisted intervening in the internal operations of the Congress. In the 1920s, when the Senate held highly publicized investigations into executive branch corruption, the Supreme Court confirmed the right of Congress to call any witnesses, even those who were not government officials, and to investigate anything remotely related to its legislative functions. Drawing on this authority, in the 1930s, congressional committees aggressively investigated the economic conditions that contributed to the Great Depression, the use of business lobbyists to shape legislation, and other issues.

After the Second World War, committees in both the House and Senate held sensationalized hearings into alleged Communist infiltration and subversion of government agencies. They subpoenaed numerous witnesses who had little connection with the government and interrogated them about their past political beliefs and activities, particularly any involvement with the Communist Party. The Supreme Court eventually concluded that these practices had overstepped constitutional bounds. In Watkins v. United States (1957) the court insisted that an investigative committee had to demonstrate a legislative purpose to justify its probing. The Supreme Court further ruled that the Bill of Rights applied fully to all witnesses before Congress.

Justice John Marshall Harlan Dissents

The highest courts in some countries issue rulings without indicating what the votes of the justices were, or publishing dissenting opinions. The U.S. Supreme Court, by contrast, identifies how the justices voted and allows the majority to explain its rationale and the dissenters to explain their objections. As social thinking and public opinion change over time, however, these dissenting opinions may eventually prevail.

In the late nineteenth century, many southern states passed laws, called Jim Crow laws, requiring racial segregation in schools, transportation, and other public accommodations. African Americans sued on the grounds that these Jim Crow laws violated their civil rights under the Fourteenth Amendment’s guarantee of equal protection of the laws. When the African American Homer A. Plessy refused to leave the first-class compartment of a train in Louisiana, for which he had purchased a ticket, he was arrested and convicted of violating state law. The case went to the Supreme Court, which, in Plessy v. Ferguson (1896), decided that racial separation was constitutional so long as both races were treated equally, this became known as the doctrine of separate but equal. Justice John Marshall Harlan vigorously dissented from that opinion, arguing that “the thin disguise of ‘equal’ accommodations . . . will not mislead anyone, nor atone for the wrong this day done.”

Born in Kentucky, Justice Harlan had fought in the Union Army during the Civil War. President Rutherford B. Hayes, who had served as a Union general nominated him to the Supreme Court in 1877. A strong advocate of civil rights and civil liberties, Justice Harlan consistently argued in favor of a color-blind Constitution that would equally protect all citizens, black and white, and argued that Congress had the authority under the Fourteenth Amendment to protect the rights of African Americans. Although Justice Harlan was far out of step with his times, his arguments won favor with later generations. After the Supreme Court allowed segregation, in general, to continue for another half century, it voted unanimously in the case of Brown v. Board of Education of Topeka, Kansas (1954) to strike down segregation in public schools. Regardless of whether equal facilities were provided, the court now decided, segregation was inherently unequal because it created feelings of inferiority in those who were being segregated. Although he had died forty years earlier, Justice Harlan’s reasoning had finally prevailed.

The civil rights movement for racial equality also pressed the various branches of the federal government to readjust their thinking. Since its 1896 ruling in Plessy v. Ferguson, the Supreme Court had tolerated racial segregation as long as all races were treated equally. In the 1954 case of Brown v. Board of Education, the Supreme Court reversed itself and found that segregated schools violated the constitutional ideal of equal treatment. Concluding that “separate but equal” facilities had been, in reality, grievously unequal, the Court ordered school integration “with all deliberate speed.”

Some southern states resisted this order, and when the governor of Arkansas refused to protect African American students trying to attend a previously all-white high school, President Dwight D. Eisenhower sent in the National Guard to ensure the students’ safety. When the state of Arkansas asserted that it had not been a party to the Brown v. Board of Education case and therefore was not bound by the Court’s decision, the Supreme Court responded unanimously. In the 1958 case of Cooper v. Aaron the Court ruled that it would tolerate no resistance to its judicial authority.

While the courts struck down segregation in schools, Congress enacted legislation to require racial integration in all forms of public transportation and accommodation. The legislation passed the House of Representatives but encountered a filibuster in the Senate. Opponents of the legislation conducted the longest filibuster in the Senate’s history, from March until June 1964, until a coalition of Democrats and Republicans gained enough votes to invoke cloture and shut off the debate. The Civil Rights Act of 1964 then won speedy passage.

The Supreme Court’s reversal of its stand on segregation marked the beginning of a dramatic shift in the Court’s outlook. Chief Justice Earl Warren’s dramatic rulings struck down traditionally sanctioned behavior as unconstitutional. Warren believed that the Supreme Court itself had contributed to national problems by not taking bolder action in the past. He pointed out that for most of the twentieth century, the population of the United States had been shifting from rural to urban areas, but state legislatures had not been redistricted to reflect these changes, and the courts had not objected. “Because of its timidity, it made change hopeless,” Warren wrote in his memoirs about the Supreme Court before his tenure. “It refused to enter, or to permit lower federal courts to consider, any litigation [or lawsuits] seeking to remedy unequal apportionment.” The justices had not intervened because they saw reapportionment as a political question best handled by the politicians. But the Warren Court, in the 1962 case of Baker v. Carr insisted that all legislatures must be reapportioned to guarantee one person, one vote.

Justice William J. Brennan Jr., who served on the Supreme Court from 1956 to 1990, promoted the idea of a “living Constitution,” in which legislators and federal judges adapted the Constitution “to cope with current problems and cur*rent needs.” For example, Justice Brennan believed that even though the death penalty had existed when the Constitution was adopted, it had become “cruel and unusual punishment” by modern values and could, therefore, be declared un*constitutional. Justice Brennan’s arguments had a profound impact on the way the Court dealt with such issues as voting rights, free speech, and the separation of church and state. A liberal in outlook, Brennan believed that the Court should promote broader notions of opportunity, liberty, equality, and human dignity.

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written . . . The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

Chief Justice John Marshall, Marbury v. Madison (1803)

Conservatives countered this notion of a “living Constitution” with an insis*tence that the courts should limit their rulings to the original intent of the framers of the Constitution. Justice Antonin Scalia, who joined the Supreme Court in 1986, called himself an “originalist.” At a conference in 2005, he declared that “the Constitution is not a living organism, for Pete’s sake; it’s a legal document and like all legal documents, it says some things and it doesn’t say others.” He explained that he did not mean that the Constitution has to be interpreted strictly, but it needs to be interpreted reasonably. “I do believe you give the text the meaning it had when it was adopted.” Justice Scalia dissented in the case of Roper v. Simmons (2005), which banned the execution of convicted criminals less than eighteen years old. He reasoned that because minors could be executed in 1787, it was still constitutional. He used the same reason for disagreeing with Roe v. Wade (1972), which permitted abortions, arguing that abortion was largely illegal when the Fourteenth Amendment was first adopted.

Those who argue for “original intent,” say that the courts should leave social change to elected officials who can pass laws or introduce constitutional amendments to bring about such changes. President George W. Bush pledged to appoint judges who would not try to “legislate from the bench,” that is, who would apply the law as written and leave policy decisions to the politicians. By this, Bush meant that he intended to appoint neutral, apolitical, but ideologically conservative judges. Yet, those who spoke for a “living Constitution” pointed out that conservative justices have been just as likely to overturn legislation as liberals, although for different reasons.

The debate between “original intent” and a “living Constitution” has taken place essentially between those who view the Constitution as a limit on the powers of government and those who believe that the Constitution is flexible enough to cover modern contingencies without frequent amendment. Senator Barry Goldwater insisted in his 1960 book The Conscience of a Conservative that “the Constitution is what its authors intended it to be and said it was—not what the Supreme Court says it is.” Justice Brennan responded that the Constitu*tion should not be judged in terms of “a world dead and gone,” but that judges should apply the Constitution’s basic principles to modern problems. Justice Thurgood Marshall, the first African American to serve on the Supreme Court, from 1967 to 1991, commented that he did not accept the notion that the Philadelphia convention had forever “fixed” the Constitution. Instead, he believed that the compromise with slavery had made a government that was “defective from the start” and it took a civil war, a civil rights movement, and several constitutional amendments to develop a federal system that respected the individual rights and freedoms of all its citizens. Yet, Marshall appreciated the progress that the United States had made over the past two centuries, and at the time of the Constitutional bicentennial in 1987 he said that he would “celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights, and other amendments protecting individual freedoms and human rights.”

This debate has taken place against the backdrop of major clashes between the branches of the federal government. The Vietnam War and the Watergate scandal helped further refine interpretations of the Constitution. In 1971, the Supreme Court upheld the right of the New York Times and other newspapers to publish classified government documents on how the United States had gone to war in Vietnam, despite the government’s protests that the “Pentagon Papers” jeopardized national security.

After five men were arrested while breaking into the Democratic National Committee offices in the Watergate building to plant eavesdropping devices in 1972, evidence mounted that implicated members of President Richard Nixon’s administration. The Senate appointed a special committee to investigate these allegations, and during its hearings the committee learned that President Nixon had been secretly tape-recording his conversations in the White House. The committee subpoenaed the tapes, but Nixon resisted, citing executive privilege. The case went to the Supreme Court, where eight of the nine justices, including those he had appointed, ruled that executive privilege did not cover evidence in a criminal case. (The decision was still unanimous as Justice William H. Rehnquist recused himself as a former official in the Nixon Justice Department.) The forced release of the tapes provided evidence that President Nixon had participated in a cover-up of the crime, forcing his resignation. The outcome of the Watergate scandal demonstrated that no one, not even the President of the United States, is above the law.

Following Watergate, Congress reasserted much of the authority it had lost to the Presidency over past decades. Sparring between the President and Con*gress grew more intense, particularly over the appointment of judges. In 1987, the Senate rejected President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. Although the former law professor and judge had extensive experience, liberal Democrats, who held the majority in the Senate, complained that his conservative ideology was beyond the mainstream. Bork’s defeat was followed by accusations on both sides that political “litmus tests” were being applied to nominees, whose nominations and confirmations often depended on how they stood on the most controversial issues of the day, rather than their legal qualifications.

It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text.
Justice Joseph Story, Commentaries on the Constitution of the United States, (1833)

The Fight Over the Watergate Tapes

A mighty struggle took place between all three branches of the government over the release of President Richard M. Nixon’s secret tape-recordings. This struggle tested the separation of powers, with the Congress, a special prosecutor, and the President disagreeing over the release of the tapes and the Supreme Court deciding among them.

In 1973, a special committee of the Senate was investigating irregularities in the previous year’s Presidential campaign. Men associated with the Committee to Reelect the President had been arrested while breaking into Democratic National Committee headquarters at the Watergate building in Washington, D.C., in order to plant listening devices. The Senate Watergate Committee called various White House officials to testify, and one of them admitted that the President had secretly tape-recorded his own conversations in the Oval Office. The Committee immediately sought access to the tapes, but President Nixon refused to provide them on the grounds that the information they contained was covered by “executive privilege.” The President argued that in order for the officers of the executive branch to make internal decisions and weigh policy choices they are entitled to keep internal discussions private and should not have to provide them to Congress or the courts. Although President Nixon later agreed to provide edited transcripts of selective tapes, he effectively stonewalled the committee’s request.

At the same time, Archibald Cox, a special prosecutor looking into the Watergate break-in sought access to the tapes. President Nixon not only refused to comply but also fired Cox. Public opinion was so outraged over his action that Nixon eventually bowed to public pressure and appointed another special prosecutor, Leon Jaworski. Jaworski also demanded the tapes, taking his case to the U.S. Supreme Court. In Nixon v. United States (1974), the Court ruled 8-to-0 that executive privilege did not cover evidence needed for criminal prosecution. (Justice William Rehnquist did not participate because he had been previously involved in the case while he served in the Justice Department.) The Court ordered the President to turn the requested tape recordings over to the special prosecutor, which he did. One of these recordings, known as the “smoking gun,” gave evidence that the President had been personally involved in a coverup of the Watergate burglary. With that revelation, Congress moved to impeach the President, who chose to resign from office instead.

Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.
By: Justice Hugo L. Black, dissenting opinion, Turner v. United States (1970)

Changes in the political parties created further tensions. For most of the twentieth century, both the Democratic and Republican Parties had been internally divided between liberals, moderates, and conservatives. As a result, there were few straight party-line votes in Congress, as bipartisan coalitions of con*servatives voted against similarly bipartisan coalitions of liberals. By the 1990s, the two parties had grown far more internally cohesive. In Congress, the party members stuck together until almost every vote became a party-line vote, with the balance occasionally tipped one way or the other by a small number of moderates who forged compromises.

In 1994, Republicans won control of both houses of Congress and positioned themselves against the Democratic President Bill Clinton. A dispute between the President and Congress over federal funding in 1995 led to a brief shut-down of government agencies. The Senate also opposed many of Clinton’s more liberal judicial nominees and appointments to key governmental positions. When a special prosecutor brought charges that Clinton had lied to a grand jury about his inappropriate relationship with a White House intern almost all the Republicans in the House of Representatives voted to impeach the President, while almost all the Democrats voted against impeachment. The Senate held a trial, where the vote fell far short of the two-thirds needed to convict the President and remove him from office.

During the Presidency of George W. Bush, a conservative Republican, liberal Democrats filibustered to block the confirmation of a number of his judicial nominees. Republicans in the Senate protested that the Constitution required only a majority vote for nominations and that all nominees deserved an “up or down” vote, that is, a vote in favor or against without obstruction. The intensity of the struggle testified to how seriously the executive and legislative branches take lifetime appointments to the independent judiciary, which has the final word in interpreting our Constitution.

[Boats]

Chapter 2 – What Kind of Government Did the Constitution Create?

Visitors to the U.S. Capitol often expect to find the President’s office there. They assume—incorrectly—that the entire government leadership must work under the Capitol’s recognizable dome. There is a President’s Room in the Capitol, but it is simply a ceremonial room that was set aside a century ago. Back when the President’s term ended on the same day as the Congress, on March 4, Presidents would use the room to sign or veto the last bills enacted at the end of a session. After 1933, when the Twentieth Amendment set different dates for the end of Presidential and congressional terms, Presidents rarely used the President’s Room. Instead, the President works across town, in the West Wing of the White House. The Supreme Court did once occupy a chamber in the Capitol Building, until 1935 when the separate Supreme Court building was opened across the street from the Capitol. The three branches come together now only occasionally, for an inauguration or a State of the Union message. Otherwise, they operate out of separate buildings in largely separate spheres.

Monarchs ruled the nations of the world when the U.S. Constitution was written in 1787. Some monarchies, such as the one that ruled Great Britain, also had parliaments in which the people and the aristocracy were represented. As parliamentary systems developed, they combined legislative and executive functions, with the prime minister and other cabinet members serving as members of Parliament. This differs sharply from the separation of powers established in our Constitution.

The delegates to the Constitutional Convention often referred to the English philosopher John Locke’s Two Treatises on Government, written in 1690 just after England’s Glorious Revolution of 1688 had strengthened Parliament’s hand against the king. Locke argued that all people were born with certain “natural rights” to life, liberty, and property, which governments existed to protect. Locke believed that a government should be seen as the agent of the people, not their ruler, and therefore should operate under some restraints. An equally influential book was The Spirit of the Laws, written in 1748 by the French philosopher the Baron de Montesquieu. Writing while France was still under the rule of an all-powerful monarchy, Montesquieu admired the British system that separated the powers of the monarch, the parliament, and the judiciary. In Britain, the king served as the head of state, performing ceremonial functions and commanding the military, while the prime minister functioned as the head of government, providing political and legislative leadership. Because the Americans had rebelled against Great Britain, the delegates modified Montesquieu’s political theories into something that differed from the British parliamentary system. They created entirely separate executive, legislative, and judicial branches of government, making sure that no single branch would hold exclusive power, but each would check and balance the others. With power so divided, the independent branches must reach some common agreement for the federal government to act harmoniously.

Under the system of government the framers of the Constitution created, the President of the United States combines the monarch’s role as head of state with the prime minister’s role as head of government. The President serves as chief executive and commander in chief of the military. The President appoints the heads of the executive offices of the government and, with the officers he appoints, is responsible for administering the laws of the land. The President proposes legislation, and vetoes or approves bills that Congress enacts, but depends entirely on the legislature for all the funds necessary for operating the government. While the American Presidency has grown steadily more powerful, particularly in matters of diplomacy and military policy, the Constitution’s division of powers has caused Presidents to contend with Congresses that have often disagreed with their policies and attempted to steer a different course.

As the only federal official elected by the entire population, Presidents feel they have a mandate from the people to lead in the manner they see fit and to establish the policies on which they campaigned. Presidents are elected separately from members of Congress. Their administrations do not fall if their party loses the legislative majority, unlike a prime minister whose party loses a working majority in Parliament. Often, American Presidents have had to cope with opposition party majorities in one or both houses of Congress. Democrats, for instance, lost their majorities in Congress two years into Bill Clinton’s Presidency, in 1994, and for the next six years he faced Republican majorities in both the House and Senate. When Presidents are on the ballot, their “coattails” may help some fellow party members win election, which will encourage them to support the President’s legislative agenda. The President’s party leaders also do their best to ensure legislative victories.

Nonetheless, members of Congress feel that they are elected to represent the people of their states and districts. They often campaign on different issues than the President, even when they are members of the same party, and they often serve through several Presidential administrations. Members of Congress therefore resist being a “rubber stamp” for the President and act according to their own principles, and in the interests of their own constituents. Personal ambition plays a role as well, as some members of Congress may see themselves as candidates for the Presidency in future elections.

The different perspectives of the White House and the Capitol often create tensions between the branches. Presidents have the constitutional right to name cabinet officers, agency heads, diplomats, and federal judges, but these nominations must be confirmed by the U.S. Senate. Over the past two centuries, the Senate has confirmed all but a very small percentage of the executive branch nominations—on the assumption that Presidents deserve to work with people of their own choosing. But the statistics change dramatically for judicial nominations—on the grounds that the judiciary is an independent branch of the government, and that all federal judges hold lifetime appointments. Since the administration of George Washington, the Senate has blocked a third of all Supreme Court nominations. Senators also point out that the Constitution refers to Presidents seeking the “advice and consent” of the Senate, and note that Presidents are much more likely to seek their consent than their advice. Senators therefore insist on scrutinizing all nominations and rejecting those they consider unfit.

Foreign policy has provided another major arena for struggle between the executive and legislative branches. Presidents conduct the foreign policy of the United States, but Congress appropriates the necessary funds and senators hold hearings in which they interrogate State Department officials about policy developments. The Senate also has the constitutional power to reject or approve by a two-thirds margin treaties that the President’s administration has negotiated. In the late nineteenth century, the Senate rejected a number of significant treaties, causing Secretary of State John Hay to compare a treaty entering the Senate to a bull entering the ring. “One thing is certain,” said Hay, “neither will leave alive.”

The most tragic confrontation between a President and the Senate took place after the First World War, when President Woodrow Wilson went to Paris to negotiate the Treaty of Versailles that ended the war and created a League of Nations to preserve the peace. Republicans by then had won the majority in the Senate, but Wilson took no Republican senators with him on that mission. Suspicious of the Democratic President’s treaty, and unwilling to see the United States enter the League, Republican senators sought to amend the treaty. But Wilson fought any changes and refused to authorize Democratic senators to reach a compromise with the Republicans. Wilson took his case directly to the American people, warning that without the League of Nations the world would face another war within a generation. On his national speaking tour, Wilson suffered a paralytic stroke and could offer no further leadership. The Senate then rejected the Treaty of Versailles and the United States never joined the League of Nations. A generation later, after the world had plunged into the Second World War, President Franklin D. Roosevelt learned from Wilson’s mistakes and made sure that prominent senators of both parties were involved in negotiating the treaty that created the United Nations, which the Senate overwhelmingly approved.

Although the Constitution gives Congress the sole power to declare war, Congress has not passed a declaration of war since World War II. Subsequent military missions overseas were authorized by congressional resolutions, some in support of United Nations efforts. In 1964, following a confrontation between American and North Vietnamese naval vessels in the Gulf of Tonkin, President Lyndon B. Johnson asked Congress to enact a resolution authorizing him to use military force in response to North Vietnamese military action. The Senate and House passed the Gulf of Tonkin Resolution with only two dissenting votes. Members of Congress saw their vote as an act of solidarity with the President at a critical moment, but none anticipated that he would use it as the equivalent of a declaration of war. Yet that was exactly how Johnson used the resolution when he sent large numbers of American combat troops to fight in Vietnam. Congress later repealed the Gulf of Tonkin Resolution, but it had no effect on American military policy. Johnson’s successor as President, Richard Nixon, insisted that the Gulf of Tonkin Resolution had not been necessary and that his powers as commander in chief were enough to continue the war effort.

As a result of the Vietnam War, Congress passed the War Powers Resolution in 1973, over President Nixon’s veto. The resolution required Presidents to notify Congress within set time periods when they sent American troops into combat, and it permitted Congress to vote to withdraw troops from combat. The War Powers Resolution has proved difficult to implement, however, and neither Presidents nor Congress invoked it when the United States became involved in the Persian Gulf War in 1991 or the Iraq War in 2002.

The Constitution requires the President to give Congress a periodic report on the state of the union. Presidents have used the State of the Union message as a vehicle for recommending legislation to be enacted, and have therefore become the chief legislator as well as the chief executive. Presidents George Washington and John Adams delivered their State of Union addresses in person. Thomas Jefferson thought this practice too closely resembled the pomp of the monarch’s messages to the British Parliament. Jefferson chose to send his message to be read aloud by clerks in the Senate and House. Other Presidents followed Jefferson’s lead until 1913, when Woodrow Wilson revived the practice of delivering the message in person.

Throughout each session of Congress, Presidents meet regularly with the legislative leaders of the major parties, and will often contact individual legislators to win their support on key measures. The modern White House also maintains a congressional liaison staff that shepherds nominees through the Senate confirmation process and works with the leadership of the President’s party to develop legislative strategies.

Presidents have complained that Congress attempts to “micromanage” the executive branch by specifically instructing agencies how to administer the laws. Congress has objected when Presidents have withheld documents it sought (a practice known as executive privilege), and when agencies have administered the laws in a different manner than the legislation specified. Congressional committees therefore hold oversight hearings, calling cabinet secretaries and other officials to explain and justify their departments’ actions. When John F. Kennedy served in the House and the Senate, he believed that the real power in the American political system resided in the Oval Office. It was only after he was elected President and faced a skeptical Congress that he realized how much power resided on Capitol Hill. While an individual member has limited authority, the Congress as a whole can be a formidable opponent to any President’s plans.

Yet, the Congress itself is divided into two very different bodies, the Senate and House of Representatives. Although the Senate has the exclusive power to confirm nominations and approve treaties, the two bodies participate equally in all legislation and appropriations. The Constitution permits each house to set its own rules, and as a result they have grown distinctly different. The larger House, where membership reflects the population of each state, has set rules that permit the majority to prevail, so long as it stays united. Members of the House operate under rules that limit how long they can speak and reduce their opportunities to block legislation from coming to a vote. The House operates under a hierarchy headed by the Speaker, who is elected by the majority party, and a Rules Committee, most of whose members are chosen by the Speaker. When the House leadership is ready to hold a debate and vote on a bill, the House Rules Committee determines how long the debate will last and how many amendments will be considered. Members of the House gain influence through their seniority, which requires them to win reelection and move up through their party’s ranks until they chair a subcommittee or full committee.

So long as I have a mind to think, a tongue to speak, and a heart to love my country, I shall deny that the Constitution confers any arbitrary power on any President, or empowers any President to convert George Washington’s America into Caesar’s Rome.
North Carolina Senator Sam Ervin, addressing students at the University of North Carolina at Chapel Hill in 1973

A Call for an Expanded Government

In his first Inaugural Address, delivered at the depth of the Great Depression, on March 4, 1933, Franklin D. Roosevelt spoke for those who believe that the U.S. Constitution is an elastic document, designed to grow with the times and to confer extraordinary authority in times of crisis. This is what he said:

If I read the temper of our people correctly, we now realize as we have never realized before our interdependence on each other; that we cannot merely take but we must give as well; that if we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective. We are, I know, ready and willing to submit our lives and property to such discipline, because it makes possible a leadership which aims at a larger good. This I propose to offer, pledging that the larger purposes will bind upon us all as a sacred obligation with a unity of duty hitherto evoked only in time of armed strife . . .

Action in this image and to this end is feasible under the form of government which we have inherited from our ancestors. Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced. It has met every stress of vast expansion of territory, or foreign wars, or bitter internal strife, or world relations. It is to be hoped that the normal balance of Executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.

By contrast to the majority-run House, the smaller Senate has set rules that give greater voice to the minority. In the Senate, all states are equally represented, meaning that California, with 34 million residents (and fifty-three representatives in the House) has two senators, as does Wyoming, with a half million residents (and one representative). The majority of all the senators therefore represent a minority of the population. For certain actions, the Constitution requires the approval of a “supermajority” of senators, such as the two-thirds vote needed to overturn a Presidential veto, to approve a treaty, or to convict a federal official who has been impeached by the House.

Senate rules add another supermajority requirement: it takes a vote of three-fifths of the Senate (currently sixty out of one hundred) to invoke cloture, closing a debate and calling for a vote. Unlike the House, which sets limits on the length of all speeches, senators can engage in “unlimited debate.” They can speak for as long as they feel necessary and can use the rules of the Senate to prevent a vote from occurring. This practice is called a filibuster, a name that comes from the Dutch word for “pirate,” for those who seize the Senate floor and hold it against all others to prevent a vote from being taken. Only if sixty senators agree can the majority leadership cut off debate and force a vote. Bills that sail through the House with little amendment, therefore, can be subject to delay and revision in the Senate.

Not until 1917 did the Senate establish the cloture rule to cut off filibusters. When the rule was first established, it took a two-thirds vote to establish cloture, which proved almost impossible to achieve. Over the next forty-six years, the Senate was able to invoke cloture only five times. The most significant cloture vote occurred on June 10, 1964. After fifty-five days of debate, supporters of the Civil Rights Act of 1964, which banned racial discrimination in all public facilities, mustered the necessary two-thirds of the Senate to cut off debate. Nine days later the Senate overwhelmingly approved the bill. Because the filibuster had so often been used to protect segregation, senators who favored civil rights had generally refrained from using the filibuster as a tactic. After segregation was illegal, however, the filibuster became a more universally employed tactic. In 1975, liberal Democrats led a movement to make cloture easier to establish, reducing the needed number of senators from two-thirds to three-fifths. Despite that change, the filibuster has continued to distinguish the Senate from the House, the rules of which prohibit such tactics.

Committees in both the House and Senate hold hearings on prospective legislation, collecting information and listening to testimony, before they vote on a bill that will be reported to the full House or Senate for debate, amendment, and passage. Both the Senate and House must pass legislation in exactly the same form in order for it to be sent to the President for approval before it becomes law. Frequently, the two houses will pass different versions of the same piece of legislation. To resolve their differences they appoint members of each house to serve on a conference committee. Once the conference committee reaches agreement, it reports back to the Senate and House, which must accept or reject the conference report, but cannot amend it any further. The practical result of this complicated process is that legislation almost never passes in its original form, but is revised constantly until a sufficiently broad consensus can be reached. This helps to make sure that legislation benefits and appeals to large portions of the country rather than favoring one region or interest over the others.

To become law, the bill must still go to the White House. The President can approve and sign the bill or can veto—reject—the bill. It takes a two-thirds vote of both the House and Senate to overturn a Presidential veto. If Congress adjourns within ten days after sending a bill to the President, the President can decide not to act on it, neither signing nor formally vetoing it. This is called a pocket veto, which kills the bill, as Congress is out of session and cannot vote to overturn the veto. Presidents will often use the threat of a veto to convince Congress to pass a bill more to their liking. Presidents whose own party controls the majority in Congress will veto bills far less frequently than Presidents who face opposition majorities. Gerald Ford, who had spent decades in Congress as the Republican leader of the House, issued many vetoes during his Presidency to establish more legislative control over a Congress with large Democratic majorities.

In times of national emergency, the President can call the Congress into special session. This was a critical feature during the nineteenth century, when Congress met for just a few months each year, but it became unnecessary in the twentieth century, when Congress began meeting year round. During wartime and periods of economic crisis, Congress has tended to give the President much more room to act, passing legislation quickly and with less second guessing. This was especially true during the First and Second World Wars and during the First Hundred Days of Franklin D. Roosevelt’s New Deal in 1933. The nation had been plunged into a deep depression that had caused many banks to fail, businesses to close, and workers to lose their jobs, a crisis so severe that members of both parties felt the urgency to approve the President’s legislative proposals to restore economic order. During that period, members of Congress found themselves voting for bills on which they had held no hearings and sometimes had no chance to read in advance.

A Call for Limited Government

In contrast to those who view the Constitution as expansive, there are others who see the role of the federal government as far more confined and insist that all powers not expressed in the Constitution belong to the states. Tom A. Coburn, a medical doctor who was elected first to the House of Representatives and then to the U.S. Senate from Oklahoma, campaigned on arguments that he expressed in his 2003 book Breach of Trust: How Washington Turns Outsiders into Insiders:

In 1791, the framers clarified the Constitution’s intent to limit the role of the federal government with the Tenth Amendment, which reads, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ In other words, Congress’s role is limited to providing for the common defense, regulating interstate commerce, providing for the general welfare, and levying taxes. All other powers are reserved for the states . . . Still, most members of Congress are either ignorant of or indifferent to Congress’s constitutional guidelines and the warnings in history that should caution us against consolidating too much power in a large central government. The courts themselves have overreached and undermined the founders’ design for limited government. I always found it ironic when my Republican colleagues would deliver passionate speeches criticizing the judicial branch for not respecting the Constitution when they were gladly joining their colleagues in the legislative branch in violating the very same document. The next time a member of Congress criticizes the Supreme Court for not respecting the Constitution they should be prepared to offer legislation rescinding about half of the federal budget that is used for purposes never envisioned by our founders.

Once the struggles between Congress and the President have ended and the bill becomes law, it is still subject to judicial review. Even the legislative initiatives of Roosevelt’s New Deal, which had overwhelming public and Congressional support, were reviewed by the Supreme Court, which struck down many of its major programs as unconstitutional. In one of the most significant of the New Deal cases, the Supreme Court rejected the National Recovery Administration, which set production levels and wages for various industries, on the grounds that Congress had improperly delegated its own constitutional powers over commerce to an executive branch agency. Many other Presidents were frustrated by court rulings that ran contrary to objectives. This is why Presidents take such care in making judicial appointments, and why the Senate so often resists Presidential choices.

Other than creating the Supreme Court, the Constitution said less about the judiciary than any other branch of the government. The Constitution left it to Congress to set the number of justices on the Supreme Court and to create the lower federal courts. Congress did this with the Judiciary Act of 1789. Over the next two centuries the federal judiciary has grown larger, more influential, and more controversial. The U.S. Constitution stands as the “supreme law of the land,” as it identifies itself in Article VI, which puts federal law above state law, and federal court decisions over state court decisions, when they are in conflict. (Although federal law is supreme, state constitutions and courts are free to recognize rights beyond those included in the federal Constitution.)

Some federal judges have taken a more active approach to the law than others, striking down federal and state laws as unconstitutional. This puts the burden back on the state and federal legislatures to end programs or to pass new laws that will gain the courts’ approval. Some judges believe in interpreting the Constitution broadly to meet new developments in society, and therefore refer to a “living Constitution.” Others insist that they cannot go beyond the “original intent” of the founders in applying the Constitution to current situations. Both approaches weigh the accumulated court rulings and precedents and attempt to maintain some consistency in how the laws are interpreted. Sometimes the courts will dramatically reverse earlier rulings, declaring them to have been in error. This was especially notable in 1954 when the Supreme Court unanimously declared school segregation unconstitutional, sixty years after a previous court had upheld racial segregation. Most cases dealing with federal laws are heard in the lower federal courts and only a few cases reach the U.S. Supreme Court each term. Once a case reaches the Supreme Court through the appeals process, the Court can review, uphold, or overturn the decisions of other federal judges. The lower federal courts then must tailor their rulings to meet the standards set by the Supreme Court’s decisions.

In addition to the three branches, the federal government has also created a number of independent regulatory commissions that straddle the division of powers, performing quasi-administrative, legislative, and judicial functions. Beginning with the Interstate Commerce Commission in 1887 and continuing with the Federal Trade Commission in 1914, Securities and Exchange Commission in 1934, and later agencies, these commissions combine executive, legislative, and judicial functions in an effort to resolve complex economic issues outside of the political arena. Congress created these agencies under the commerce clause, which grants Congress the right to oversee interstate commerce, a justification that the federal courts have accepted as constitutional. The commissions are not entirely “independent,” however, as their members are appointed by the President, confirmed by the Senate, and subject to scrutiny by the courts.

This complex system of independence and interdependence among the branches of government also includes a system to punish those who act improperly and violate their offices. Each house of Congress is authorized to discipline its own members, whether censuring (or condemning) them by a majority vote or expelling them by a two-thirds vote. The Constitution also authorizes the House of Representatives to impeach, a form of indictment, any judge or executive officer for “high crimes and misdemeanors.” A majority vote is required for the House to impeach. In order for an impeached officer or judge to be convicted, the Senate must hold a trial and cast a two-thirds vote. If this happens, the person is removed from office. The Vice President presides over such trials, except when a President has been impeached, in which case the chief justice of the United States presides.

Impeachment is a rare occurrence. Most executive branch officials accused of crimes either resign or are fired before impeachment proceedings can begin, but federal judges serve lifetime appointments and cannot be fired. In the 1990s, three federal judges were impeached and removed from the bench for crimes ranging from tax evasion to bribery. There have been three impeachment efforts against Presidents. In 1868 and 1998, the House impeached Presidents Andrew Johnson and Bill Clinton. Both were acquitted in the Senate. In 1974, President Richard Nixon resigned in the face of an impeachment that would likely have led to conviction in the Senate.

Impeachment stands as a reminder that no federal official, even the President, is above the law and all can be brought to justice. The American constitutional system is often cumbersome and slow. It has frustrated Presidents and legislators alike. Yet, while the federal government has grown much larger, the basic powers and responsibilities of its three branches have changed very little since the Constitution was first implemented in 1789. In times of crisis, the branches of government pull together to meet a common threat. In ordinary times, they pull back to check and balance each other. No single branch has been able to amass total power and the government remains the agent of the people who elect it.

It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also.

By: Thomas Jefferson, letter to Spencer Roane, September 6, 1819