Civics and Government - Unit 3
The U.S. Constitution and Federalism
Section One - Organization of the Constitution
A. Background:
1. The U.S. Constitution has three parts: the Preamble, the Articles, and the Amendments.
2. Preamble
A. The preamble explains what the framers of the Constitution expected to accomplish through a new national government.
B. The goals of the preamble
1) Help to promote unity among people and states.
2) Establish justice.
3) Insure domestic tranquility/safety and security of American citizens.
4) Provide for a common defense/national defense.
5) Promote the general welfare/protecting and improving the quality of life for citizens.
6) Secure the blessings of liberty/ to a certain extent, people must be allowed to do as they please/ limited government.
3. The Articles: Main Body of the Constitution
A. Seven Articles:
1) Article One
a) Sets up the legislative branch.
b) Considered the most important branch by the Framers.
c) Sets limits of federal authority and power.
d) Enumerated Powers
1) (Article 1, Section 8) – specific powers granted to the national government.
e) Creates a bi-cameral Congress (legislative branch).
f) Spells out procedures for making laws and lists the types of laws Congress may pass.
2) Article Two
a) Sets up the executive branch.
b) Chief Executive, Command and Chief.
c) The President elected by the Electoral College.
d) States the minimum qualifications to be president.
e) States the powers and duties of the president.
f) Requires the State of the Union address.
g) Impeachment.
3) Article Three
a) Sets up the U.S. Supreme Court.
b) Grants Congress the power to create lower federal courts.
4) Article Four
a) Explains the relation between the states and federal government.
b) Requires that each state give citizens of other states the same rights as its own citizens.
c) Congress can admit new states into the Union but new states cannot be made be made out of existing states.
d)Guarantee Clause – All states are to be run as representative democracies.
5) Article Five
a) Outlines the process to amend the constitution.
6) Article Six
a) Outlines public debts, supremacy of national law, and oaths of office.
b) Supremacy Clause – U.S. Constitution is the highest law of the land.
7) Article Seven
a) Explains the ratification process to put the constitution into effect.
4. The Amendments(27 amendments)
1) First ten are known asThe Bill of Rights.
2) Adopted by the First U.S. Congress in 1789.
3) First Amendment – Guarantees freedom of religion, speech, press, assembly, and petition. The government cannot stop people from expressing unpopular opinions, nor can it impose prior restraint, censorship of information before it is made public.
4) Second Amendment – Right to bear arms (own firearms). Government may regulate the use and sale of weapons.
5) Third Amendment – Prohibits the government from forcing people to provide shelter for soldiers in their homes.
6) Fourth Amendment – Protects the right of privacy. Police need a warrant and probable cause (a reasonable basis for believing that a person or place is linked to a crime) before a search or arrest. Prohibits “unreasonable searches and seizures.”
a) Exclusionary rule – Evidence obtained during an illegal search cannot be used in a criminal trial.
b) The Supreme Court has allowed exceptions to this principle if its application would defeat the purpose of justice.
7) Fifth Amendment – Guarantees that no one may be deprived of life, liberty, or property without due process (proper constitutional procedures in legal action against individuals).
a) Protects individuals from self-incrimination (giving evidence against themselves).
b) Miranda rule/rights – Based upon a 1965 Supreme Court case; a suspect must be clearly informed of their Fifth Amendment rights before police question them.
c) Double jeopardy – A person cannot be tried twice for the same crime.
8) Sixth Amendment – Provides protections such as the right to a speedy and public trial by jury; the right to question and obtain witnesses, the right to have a lawyer.
9) Seventh Amendment – Guarantees a jury trial in civil cases.
10) Eighth Amendment – Prohibits unusually high bail and fines; forbids cruel and unusual punishment.
11) Ninth Amendment – Gives rights not mentioned in the Constitution to the people.
12) Tenth Amendment – Reserves all power not given to the national government to the states, or to the people of the states.
Section Two - Principles of the Constitution
1. What Is Constitutionism?
A. The belief that the Constitution is the highest law of the land.
B. A true constitutional government protects the natural rights of its citizens, limits how citizens can be treated, and recognizes that there are areas of people's lives that should not come under government control.
2. Limited Government
A. The federal government is only permitted to do certain things.
B. Powers not granted to the federal government rest with the states.
C. Leaders are guided and limited by the constitution and the law.
3. Constitutional Supremacy
A. Constitutional and national laws are superior to state constitutions and state laws.
B. Nullification (Doctrine of)
1) The belief that states had the right to cancel out or nullify a national law or ruling that they did not agree with.
2) Nullification was used by Southern states that were fearful of the national government ending slavery in the 1800s.
3) The concept was put to rest with the American Civil War– states do not have the right to nullify national laws.
4. Rule of Law
A. Both the rulers and ruled are bound by the same laws.
B. Rulers use power following established principles and procedures based on a constitution.
C. Idealistic concept – the real world does not always live up to this lofty concept.
D. Standards for the Rule of Law:
1) Laws are enforced equally and impartially.
2) No one is above the law; everyone under the authority of the constitution is obligated to obey the law.
3) Laws are made and enforced according to established procedures – not the rulers’ arbitrary will.
4) There is a common understanding among the people about the requirements of the law and the consequences of violating the law.
5) Laws are not enacted or enforced retroactively.
6) Laws are reasonable and enforceable.
5. Popular Sovereignty
A. The principle that the people hold the supreme power to govern.
B. Government is based on the consent of the people.
C. Power is not legitimate if it disregards the will of the people.
6. Majority Rule and Minority Rights
A. The essence of democracy is majority rule.
B. In genuine democracy, majority rule is limited by the constitution to check oppression of persons holding unpopular views.
C. Protection for individual rights.
D. Tyranny by a minority over the majority and the majority over the minority is barred.
E. Ongoing tension between majority rule and minority rights.
7. Pluralism
A. The widespread distribution of political power and influence with the state and civil society.
B. Individuals and groups can express different points of view freely, independently, and effectively in order to influence public opinion and the decision making process of government.
8. The Separation of Powers/Federalism
A. Division of powers among a legislative, executive, and judicial branch.
B. Division of power between the national, state, and local levels of government.
C. Each level of government controls its own sphere of responsibilities and can separately exercise powers directly upon the people under its authority.
D. 10th Amendment
1) Powers not delegated to the national government nor prohibited by the U.S. Constitution are reserved for the states.
9. Checks and Balances
A. Each branch of government checks on the other branches
B. Examples include presidential vetoes, declaring law unconstitutional, and ratifying treaties and appointments.
10. Judicial Review
A. Allows courts to determine whether a law or government action is constitutional. May declare laws invalid if they violate the U.S. Constitution.
B. Supreme Court decisions can only be overridden by a constitutional amendment.
Section Three –Federalism
1. Background
A. The United States consists of one national government, fifty state governments, and approximately 87,000 local units of government.
B. Definition - a system in which the power to govern is shared between national and state governments.
2. Constitutional Basis of Federalism
A. National Powers
1) Expressed / Enumerated Powers.
a) Powers given specifically to the national government by the U.S. Constitution.
2) Implied Powers
a) Powers not specifically listed in the U.S. Constitution by inferred by Article I, Section 8.
b) Necessary and Proper Clause / Elastic Clause
1) Allows the national government to create new power for itself if it deems they are required to governor the nation.
c) McCulloch v. Maryland (1803)
1) Established the principle of implied powers and the concept of national supremacy.
2) Maryland sued the national government over the creation of a national bank. The Supreme Court ruled in favor of the national government.
3) Inherent Powers
a) Powers that are granted to nation-states by international law.
B. State Powers
1) 10th Amendment
a) Provides for powers not delegated to the national government to be given to the states or the people.
b) Includes such things as police power and intrastate commerce.
c) Also known as Reserved Powers.
2) States’ Rights
a) A concept that the state should be free from as much as national government interference as possible when conducting its own affairs within the state borders.
3. Forms of Federalism
A. Dual Federalism (Layer Cake Federalism)
1) The national and state governments are equal sovereign power, which occupy distinct spheres of responsibilities.
2) States exercise authority in areas such as police powers and intrastate commerce.
B. Cooperative Federalism (Marble Cake Federalism)
1) The mixing / sharing of authority and programs between the national, state, and local governments.
C. Concurrent Powers
1) Powers that are shared by both the national and state government.
2) Example – taxation, establishing courts, providing for the general welfare.
Section Four – Authentic Democracy
1. Background
A. To have an authentic democracy the government is constitutional and limited.
B. There are five means to limit the powers of government through a well-constructed constitution:
1) Enumerating Powers
a) The government may not assume powers that are not listed or granted to them.
2) Separation of Powers
a) Executive, legislative, and judicial branches.
b) Checks and balances are provided for.
3) Power is decentralized (diffused)
a) Sharing of power/authority by various levels of government.
b) The essence of federalism.
4) People can limit the power of government.
a) Holding public officials accountable.
b) Routine elections
c) The use of constitutionally protected rights such as speech, press, assembly, and association to mobilize against the abusive or irresponsible exercise of power by government.
5) The inclusion of human rights in the constitution.
a) Government is prohibited from denying the people the following rights: voting and the expression of opinions (free media).
b) Guarantee personal rights to private property and freedom of conscience.
Section 5 - The Changing Constitution
1. Background:
A. The U.S. Constitution is a general statement of principles that is flexible enough to adapt to changing times.
B.The Constitution can be formally changed by an amendment or informallythrough court decisions (interpretation of constitutional law).
2. The Process of Making Formal Constitutional Amendments.
A. Two ways to formally amend the U.S. Constitution. (Article 5)
1) 2/3 of the House and Senate vote for the amendment.
2) ¾ of the states approve the amendment (38 states).
OR
3) A national constitutional convention is called by 2/3 of the states.
4) Approval is given by the ratifying conventions called by Congress.
B. There are no constitutional time limits for a proposed amendment to be ratified.
1) Example: the 27th Amendment.
2) It was submitted to the states in 1789, it was finally ratified in 1992 (202 years).
1) Today Congress often includes a time frame for ratification to take place – normally 7 years.
2) If 38 states have not approved by the end of that time frame the proposed amendment is considered dead and must be reintroduced.
C. Since 1789over 9000 amendments have been proposed, only 27 have been adopted.
3. Informal Changes to the Constitution
A. Judicial Interpretation
1) Justices interpret the principles of the Constitution.
2) Interpretations can change over time.
3) Precedents- A court ruling that serve as guidelines for making future decisions.
B. Actions by Congress
1) Congress can pass laws to remedy problems.
2) The Civil Rights Act of 1964 was passed by the U.S. Congress and signed by President Johnson since there wasn’t much of a likelihood of Southern legislatures supporting a constitutional amendment banning Jim Crow laws.
C. Actions by the President
1) Can expand the powers of the presidency - especially as Commander-in-Chief.
2) Example: Can involve a nation in war even though the Constitution stated that Congress can only declare war.
D. Actions by the Political Parties.
1) Creation of political parties and the nomination process.
E. Customs and Traditions.
1) Maintaining the way things are.