Outline from The U.S. Constitution - Week 2 of 2

7) SEVERAL PROVISIONS OF THE CONSTITUTION THAT HAVE SEEN DRAMATIC CHANGE.


a) Free speech

i) the primary concern was protecting political speech – the ability to speak out against or for government policies

ii) Clearly their concern since gaining independence from King George’s oppressive policies. This includes certain types of “expressive” actions to communicate political speech.

b) Fee exercise of religion

i) From early American legal documents, the political practices of the Framers, and the authoritative statements of leading Founders, Justice O’Connor drew three general conclusions. First, “these early leaders accorded religious exercise a special constitutional status.”59 Second, “all agreed that government interference in religious practice was not to be lightly countenanced.”60 Third, “all shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’”61 These significant historical sources, Justice O’Connor concluded, led to the finding that:[T]he Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.

c) Establishment of religion

i) The concern was the establishment of a national religion – The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

ii) did not even apply to the States until 1947 Everson v. Board of Education

iii) This was not understood as a prohibition government aiding religion – in fact, the founders, as we’ve seen, thought religion indispensible to the operation of their new government

d) Due process

i) 14th Amendment Clause 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

ii) Process means notice of a hearing and opportunity to be heard. Today we call this procedural due process – what procedures are required to meet the constitutional requirements for taking life, liberty, or property? Next week we’ll talk about something new known as “substantive due process.”

e) Commerce clause - Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

i) With foreign Nations and the Indian Tribes is pretty clear

ii) The understanding of “Congress shall have the power . . . to regulate Commerce . . . among the several states”

iii) Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose

(1) Among the several States" meant between persons of one state and another;

(2) "To regulate" generally meant "to make regular"-that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations."

iv) In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

8) CHANGES IN CONSTITUTIONAL MEANINGS SINCE DRAFTING

9) Constitutional Interpretation

a) What’s the method? In other words, what principles do we look to in order to apply the Constitution to unforeseen circumstances not expressly addressed and how do we understand what is express in the text?

i) Strict construction – not in the text, it doesn’t exist – for example, speech and press mean just that – no other means of publication are included

ii) original intent – what did the founders intend

(1) At first blush, this sounds reasonable – but what do you do when the records indicated that different founders had different intents?

(2) Example: federalist vs. anti-federalist and the compromises each made – Adams intended the portions of the constitution touching on federalism to give more power to the federal government and Jefferson meant for those same provisions to limit the power of the feds and preserve the power of the states.

iii) Textualism - The interpretation cannot go beyond the boundaries of the text – the interpretation cannot change until the text, that is the law, changes

iv) Originalism – original understanding of the text at the time it was drafted

(1) Textualism informed by originalism – discovering what the plain meaning of the text was at the time it was drafted (looks at many of the same resources as original intent)

b) Judicial Review

i) Marburry v. Maddison

(1) First case – 1803 – to talk about judicial review – we need to clarify what that means:

(2) Basically to review acts of the other branches of government in light of their powers under the constitution – if it’s within their powers, it’s ok. If not, they can’t do it

(3) So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

ii) Federalist #78 described judicial review: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

c) Judicial activism is another term we need to define. It is not the same as judicial review. When the court determines that a law conflicts with the constitution on a legitimate constitutional basis, it is doing its job. However, when it goes outside the text and meaning of constitution to create something that is not there or distort something that is already there – that is judicial activism.

i) I would argue that it is not judicial activism to ignore the principal of stare decisis when the precedents have departed from proper action by the court.

ii) Marshall’s understanding of the limits of the judiciary is expressed in the closing lines of the Marbury case: Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and those courts, as well as other departments, are bound by that instrument.

d) The Dredd Scott case – the Missouri Compromise adopted in 1820 prohibited slavery in the upper half of the western territories. Dredd Scott sued for his freedom

i) First time in 50 years (since Marbury) that the court struck down a federal law

ii) The court took this action by determining that if a slave owner in the south has a property right recognized by the constitution and then moves to a northern state, the Missouri Compromise would deprive him of his property and was thus outside the boundaries of proper legislative action (taking away what the constitution says cannot be taken away without due process)

e) Oliver Wendell Holmes – championed sociological jurisprudence at the beginning of the 20th century (1902-1932) – the law is means of progressing – social Darwinism applied to the law. The role of the judge is to figure out what is socially expedient and what the views of the dominant social group are and make decisions on those basis.

i) By combining judicial review with sociological jurisprudence, he created a theory known as judicial deference – since the judge is supposed to rely on the views of the dominant social group, and since the legislature ought to accurately reflect those views, the judiciary should defer to the legislature, even if the legislature is in violation of the constitution –

ii) Roscoe Pound, dean of Harvard Law school during the same period took the same approach

f) The Warren Court – judicial activism matured - Important decisions during the Warren Court years included decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp);

i) Griswold v. Connecticut - Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

ii) Maybe we should have a right to privacy, but that’s not the point – the point is that when we go beyond the constitution’s text and plain meaning when adopted, the courts rather than the citizens get to choose – we can always amend the constitution to add a right of privacy

10) Fee exercise of religion

a) From early American legal documents, the political practices of the Framers, and the authoritative statements of leading Founders, Justice O’Connor drew three general conclusions. First, “these early leaders accorded religious exercise a special constitutional status.” Second, “all agreed that government interference in religious practice was not to be lightly countenanced.”60 Third, “all shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’”61 These significant historical sources, Justice O’Connor concluded, led to the finding that:[T]he Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.

b) Sherbert -7th day Adventist was fired because she would not work on Saturdays and then was denied unemployment benefits. Court ruled strict scrutiny applies:

i) State action must be justified by a compelling governmental interest, and be narrowly tailored to advance that interest.

c) Smith – American Indian fired for using peyote in his religious practices and unable to obtain unemployment benefits – established a new standard (said Sherbert was limited to unemployment cases that require individualized consideration of religious activity – Smith dealt with a generally applicable rule)

i) Laws of general applicability are only subject to rational basis test: state action must only be justified by a rational relationship to a legitimate state interest

ii) Strict scrutiny will apply when religion is targeted or free exercise is combined with another constitutional right

iii) Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, see United States v. [p885] Lee, supra, 455 U.S. at 257-260; Gillette v. United States, supra, 401 U.S. at 462, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Lyng, supra, 485 U.S. at 451. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" -- permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S. at 167 -- contradicts both constitutional tradition and common sense.

d) Church of Lukumi Babalu Aye v. City of Hialeah

i) Establishment of religion

ii) The concern was the establishment of a national religion – The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

iii) Here we’ve been getting consistently bad rulings that continue to separate religion from the public square – relegating religion to the realm of the private.

e) SANTA FE INDEPENDENT SCHOOL DISTRICT v. JANE DOE The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God...."

11) Due process

a) 14th Amendment Clause 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

b) Process means notice of a hearing and opportunity to be heard. Today we call this procedural due process – what procedures are required to meet the constitutional requirements for taking life, liberty, or property?

c) Substantive Due Process

i) Dredd Scott – here we have the court specifically stated that the due process clauses of the 5th and 14th amendments dealt with more than process – they didn’t mention process, only the property rights of slave owners

ii) Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

(1) First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:

(a) Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."

(b) Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendment’s Due Process Clause.

(2) Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights. (provided a case is properly before it)

12) The redefining of liberty

a) By trying to “expand” the rights protected by the constitution, the court has taken control of drawing the lines between what we can and cannot do

b) For every new right it finds, there is a corresponding restriction on the ability of the people to govern themselves

c) By granting a right to abortion, we have lost the right to protect the unborn

13) Commerce clause - Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

a) With foreign Nations and the Indian Tribes is pretty clear

b) The understanding of “Congress shall have the power . . . to regulate Commerce . . . among the several states”

c) In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another.

d) This was the case until the New Deal and FDR.

i) In response to the court striking down a series of his new deal laws, FDR proposed a court packing scheme which ultimately lead to a swing vote on the court moving from the previous 5-4 majority to join the four who supported the new deal legislation

ii) Now, rather than following the natural rights basis for the right to contract expressed in the Constitution and the limited view of the commerce clause, the court began to uphold laws that limited contractual rights and gave a broad interpretation of the commerce clause

e) Previously, the feds were limited by the commerce clause to regulating the actual trading of goods and service across state lines. This did not cover manufacturing or any other element related to them

i) States were allowed to do whatever they wanted with all the other aspects of business and also control trade within their borders as long as it did to obstruct commerce between the states

f) Now, the courts backed off and allowed congress to begin to regulate all aspects of trade, even trade within state borders

g) This opened the gate to federal regulation of almost every area of life via the commerce clause

14) SO WHAT DO WE DO?

a) Chuck Colson is fond of saying that politics follow the culture, not the other way around.

b) Greg Cunningham from the Center for Bioethical Reform talks about how to end abortion this way:

i) A constitution amendment is the only solution

ii) We’ll only have that when the state legislatures feel the pressure to do so

iii) They’ll only feel the pressure if public opinion changes – so Greg is working to change public opinion about abortion

iv) I would add the following – public opinion will not change until we have revival

c) We are the agents of the needed change

d) We need to engage spiritually

e) We need to become outposts of biblical thinking,

i) Our concept of what is real must match what scripture tells us

ii) We then need to develop Godly beliefs and values which result in righteous livings

f) The recent debates in congress demonstrate that if we are willing to stand for the principle without compromise, we can begin to effect change

g) Nullification actions by the states

i) The states preceded the union and were sovereign

(1) Read a biography of George Washington and listen to one of his biggest complaints as commander of the revolutionary forces – getting money and men from the various states – it was like herding cats

ii) The Constitution is a pact agreed to by the individual states

(1) ratified by the states

(2) Only amended by the states

iii) The federal government only has the power delegated to it by the states – regardless of what it wants to declare that it has

(1) If the Supreme Court – a branch of the federal government - has the power to declare what the law is without question or recourse, the government has become a tyrant

Outline from The U.S. Constitution - Week 1 of 2

1) THE BIG CONCEPTS BEHIND OUR CONSTITUTION AND FORM OF GOVERNMENT

a) Declaration of Independence

i) Stated reason for the declaration

(1) When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

ii) Stated purpose of government

(1) We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness

iii) The purposes one-by-one

(1) Self-evident – the statement itself provides the evidence of its truthfulness

(a) Romans 1:19-20 - For what can be known about God is plain to them, because God has shown it to them. 20For his invisible attributes, namely, his eternal power and divine nature, have been clearly perceived, ever since the creation of the world, in the things that have been made. So they are without excuse.

(2) Created equal

(a) Galatians 3:28 - There is neither Jew nor Greek, there is neither slave[a] nor free, there is no male and female, for you are all one in Christ Jesus.

(b) Endowed by their Creator – There is system of universal moral laws woven into the universe just as there are physical laws

(i) the basis of natural law – Romans 1 again

(3) Life – the right to exist

(a) Fundamental rights are those rights that all people can simultaneously claim without forcing someone to serve their needs.

(4) Liberty – the right to choose virtuous actions without the interference of others

(a) Different from freedom, the right to choose any action

(b) Not a license for any choice

(c) Choosing liberty results in the ultimate level of freedom – free from the dictates of base desires

(5) Pursuit of happiness – pursuit of a virtuous life – one that produces benefit to ourselves and others

(a) Euphoria vs. enjoyment

b) The Declaration of Independence is like a “policy” – a guiding principal

i) The Declaration presents the founders’ ideas of what government should be and what it should not be (or on what grounds a people can declare independence)

ii) The Constitution is like a set of “procedures” – the specific steps to implement a policy

(1) Procedures divorced from their policies have no reason to exist – stated positively, implementing their policies is the only reason for procedures to exist

(a) We cannot read the Constitution apart from the Declaration of Independence – it has no purpose apart from the Declaration.

iii) For example, the first seven charges against the King in the Declaration that argue against the manner in which the king governed legislative matters, as he

(1) “refused his Assent to Laws,” “

(2) forbidden his Governors to pass Laws,”

(3) “refused to pass other Laws” for the accommodation people, called the legislature at “places unusual, uncomfortable, and distant” from their homes,

(4) “dissolved Representative Houses repeatedly,”

(5) refused to allow the people to petition their representatives, and “obstructed the Laws.”

(6) Article I addresses how the legislature ought to be strong and operate for the common good.

(a) This deliberative process is expressly stated in Article I of the U.S. Constitution relating to the Legislative Powers of Congress, whereby the founders establish frequent elections, define the electorate, as well as, define the deliberative process of the legislative branch, which incorporates a bicameral legislative balance between the U.S. House of Representatives and the U.S. Senate to promote deliberation and delay for the common good of the American people.

iv) A long list of “the King does whatever he wants” grievances is addressed in

(1) Article II – the executive branch

v) He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

(1) He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

(2) Article III directly addresses the judiciary.

c) What were the Founders willing to give to make this happen?

i) And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

2) DELEGATED AUTHORITY

a) Creation works on the principle of delegated authority

i) In all of creation, who possesses ultimate authority? God.

ii) Who did he delegate some of it it to? Man – see Gen. 2:15-24

iii) On the shores of the new world, who did the people delegate some of authority to? Colonies, and then States.

iv) Who did the states delegate some of their authority to? The Union.

b) The federal government is not omnipotent – only God is

i) The federal government only has a part of a part of the authority delegated to mankind

3) WORLDVIEW PRINCIPALS

a) Explanation

i) The assumptions we make about life in order to understand it – the answers we have to the big questions of life:

(1) Where did we come from?

(2) What’s wrong with the world?

(3) How do we fix it?

(4) How do we live out our lives?

(5) These assumptions have a ripple effect on what we believe is true, hold as good, and how we act

ii) Circle Diagram – our worldview assumptions can be restated as what we believe is real

(1) What is real – Worldview

(2) What is true – beliefs

(3) What is good – values

(4) What we do – behavior

b) We can approach this from the inside out – what is real ultimately determines how we act

c) We can approach this from the outside in – how we act should shed light on what is real

i) As an aside, Del Tackett in The Truth Project video series says that the big question for Christians is whether we really believe that what we believe is really real. In other words, we have the tenants of our faith which we say we believe are really real, but when we examine our lives, our behavior may suggest that we really hold something else as really real.

d) To understand what the founders had in mind when they drafted the constitution, we need to understand their worldview – what they thought was really real.

e) Their concept of reality was grounded in Christianity

i) Christianity was the prevailing moral and intellectual influence shaping the nation from its outset. The Christian influence pervaded all aspects of life, from education to politics.

ii) Virtually every one of the Founders saw a vital link between civil religion and civil government.

(1) George Washington's admonitions in his Farewell Speech: Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports....And let us indulge with caution the supposition that morality can be maintained without religion. Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles.

iii) Numeration of beliefs

(1) There is a transcendent yet personal God (Deists would leave out the personal adjective)

(2) God has authored absolute norms of higher law which nations are obliged to seek and obey, with punishment for disobedience assured.

(3) These norms are expressed in both revealed law and natural law, but most perfectly in the revealed law – Deists would eliminate the supernatural portions of the revelation.

(4) No human official has the authority or ability to alter God’s higher law

f) Applying their worldview to beliefs, values, and actions – an example

i) What is REAL: A personal yet transcendent God exists, revelation presents the truest picture of this God, revelation says this God created all that exists, and that He created man in his own image (where did we come from?)

ii) What is TRUE: people have inherent value and set of rights that are given by God, not other people

iii) What is GOOD: protecting and proclaiming the dignity of each person

iv) How they ACTED: drafting a Declaration of Independence that stated the dignity of each person and a Constitution that protected the dignity of each person

(1) Declaration: “that all men are created equal, that they are endowed by their Creator with certain unalienable rights”

(2) Constitution: See the Bill of Rights – freedom of religion, press, expression, bear arms, quartering of soldiers, search and seizure, trial and punishment, compensation for takings, right to a speedy trial, confrontation of witnesses, trial by jury in civil cases, cruel and unusual punishment, etc.

4) THE CONSTITUTION IN LIGHT OF THE DECLARATION (6/21/1788) TOTAL WORDS = 4418

a) Article 1 - The Legislative Branch total words = 2264 or 51%

i) Section 1 - The Legislature

(1) Establishes the name of the Legislature to be The Congress, a bicameral, or two-part, body.

ii) Section 2 - The House

(1) Defines the House of Representatives, known as the lower house of Congress. It establishes a few minimum requirements, like a 25-year-old age limit, and establishes that the people themselves will elect the members for two years each. The members of the House are divided among the states proportionally, or according to size, giving more populous states more representatives in the House. The leader of the House is the Speaker of the House, chosen by the members.

iii) Section 3 - The Senate

(1) Defines the upper house of Congress, the Senate. Again, it establishes some minimum requirements, such as a 30-year-old age limit. Senators were originally appointed by the legislatures of the individual states, though this later changed. They serve for six years each. Each state has equal suffrage in the Senate, meaning that each state has the exact same number of Senators, two each, regardless of the population. This Section introduces the Vice-President, who is the leader of the Senate (called the President of the Senate); the Vice-President does not vote unless there is a tie.

iv) Section 4 - Elections, Meetings

(1) Says that each state may establish its own methods for electing members of the Congress, and mandates, or requires that Congress must meet at least once per year.

(2) Section 5 - Membership, Rules, Journals, Adjournment

(3) Says that Congress must have a minimum number of members present in order to meet, and that it may set fines for members who do not show up. It says that members may be expelled, that each house must keep a journal to record proceedings and votes, and that neither house can adjourn without the permission of the other.

v) Section 6 - Compensation

(1) Establishes that members of Congress will be paid, that they cannot be detained while traveling to and from Congress, that they cannot hold any other office in the government while in the Congress.

vi) Section 7 - Revenue Bills, Legislative Process, Presidential Veto

(1) Details how bills become law. First, any bill for raising money (such as by taxes or fees) must start out in the House. All bills must pass both houses of Congress in the exact same form. Bills that pass both houses are sent to the President. He can either sign the bill, in which case it becomes law, or he can veto it. In the case of a veto, the bill is sent back to Congress, and if both houses pass it by a two-thirds majority, the bill becomes law over the President's veto. This is known as overriding a veto. There are a couple more options for the President. First, if he neither vetoes a bill nor signs it, it becomes a law without his signature after 10 days. The second option is called a pocket veto. It occurs if Congress sends the bill to the President and they then adjourn. If the President does not sign the bill within 10 days, it does not become law.

(2) Section 8 – the enumerated powers of Congress – 18 things it can lawfully do

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

(b) To borrow Money on the credit of the United States;

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

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

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

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

(g) To establish Post Offices and post Roads;

(h) 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;

(i) To constitute Tribunals inferior to the supreme Court;

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

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

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

(m) To provide and maintain a Navy;

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

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

(p) 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;

(q) 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

(r) 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.

vii) Section 9 – enumerated prohibitions on Congress

viii) Section 10 – Powers given up by the states

(1) They cannot make their own money, or declare war, or do most of the other things prohibited Congress in Section 9. They cannot tax goods from other states, nor can they have navies.

b) Article 2 - The Executive Branch total words = 1023 or 23%

i) Section 1 - The President

(1) Establishes the office of the President and the Vice-President, and sets their terms to be four years. Presidents are elected by the Electoral College, whereby each state has one vote for each member of Congress. Originally, the President was the person with the most votes and the Vice-President was the person with the second most, though this is later changed. Certain minimum requirements are established again, such as a 35-year minimum age. Presidents must also be a natural-born citizen of the United States. The President is to be paid a salary, which cannot change, up or down, as long as he in his office.

ii) Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

(1) Gives the President some important powers. He is commander-in-chief of the armed forces and of the militia (National Guard) of all the states; he has a Cabinet to aid him, and can pardon criminals. He makes treaties with other nations, and picks many of the judges and other members of the government (all with the approval of the Senate).

iii) Section 3 - State of the Union, Convening Congress

(1) establishes the duties of the President: to give a state of the union address, to make suggestions to Congress, to act as head of state by receiving ambassadors and other heads of state, and to be sure the laws of the United States are carried out.

iv) Section 4 - Disqualification

(1) briefly discusses the removal of the President, called impeachment

c) Article 3 - The Judicial Branch total words = 293 or 7%

i) Section 1 - Judicial Powers

(1) Establishes the Supreme Court, the highest court in the United States. It also sets the terms of judges, of both the Supreme Court and lower courts: that they serve as long as they are on "good behavior," which usually means for life (no Justice and only a few judges have ever been impeached). It also requires that judges shall be paid.

ii) Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(1) Sets the kinds of cases that may be heard by the federal judiciary, which cases the Supreme Court may hear first (called original jurisdiction), and that all other cases heard by the Supreme Court are by appeal. It also guarantees trial by jury in criminal court

iii) Section 3 - Treason

(1) Defines, without any question, what the crime of treason is.

d) The relationship of the three branches of government

i) Legislature was intended to be the strongest branch of government because it was the closest to the will of the people 51:263

(1) The restraint on the legislature is the veto power of the president and the ability of the courts to arbitrate when a legislative act conflicts with the limits of power on government in the Constitution 78:93-94

ii) The executive was viewed as the next most powerful with the

iii) The judiciary was viewed as the weakest and in need of protection from the other two branches

(1) The other two branches were naturally restrained by their own “ambition” – protecting their own turf against each other and keeping in office

(2) However, since the judiciary must be independent so as not to be influenced and thus fairly protect the constitution, it was considered immune from the protective effects of the ambition of congress or the executive – it was to be curbed by a higher principal – self restraint.

iv) What happens when we lose the concept of strict separation of powers?

(1) The original idea is any power given to one branch cannot be exercised by another – each one only has the powers inside its boundaries. The founders wanted a firm separation of powers to prevent one or another branch from gaining too much power.

(2) Recently, the courts have taken another approach – known as functional separation. Instead of telling a branch of government they can’t engage in a particular activity because it is reserved to another branch, the analysis looks at whether or not the other branch will be prevented from performing its functions. If the activity of another branch doesn’t prevent a branch from doing its jobS, then the activity of the other branch is permitted. Now, they’re beginning to fill in the gaps between the powers. Think of the chaos that can create – 6 possible encroachments with 3 branches – add extra powers for each – 4 for one, 4 for another, and 5 for the third and it jumps to 210 -

e) Article 4 - The States

i) Section 1 - Each State to Honor All Others

(1) mandates that all states will honor the laws of all other states; this ensures, for example, that a couple married in Florida is also considered married by Arizona, or that someone convicted of a crime in Virginia is considered guilty by Wyoming

ii) Section 2 - State Citizens, Extradition

(1) Guarantees that citizens of one state be treated equally and fairly like all citizens of another. It also says that if a person accused of a crime in one state flees to another, they will be returned to the state they fled from. This section also has a clause dealing with fugitive slaves that no longer applies

iii) Section 3 - New States

(1) concerns the admittance of new states and the control of federal land

iv) Section 4 - Republican Government

v) ensures a republican form of government (which, in this case, is synonymous with "representative democracy," and both of which are opposed to a monarchical or aristocratic scheme - the state derives its power from the people, not from a king or gentry) and guarantees that the federal government will protect the states against invasion and insurrection

f) Article 5 - Amendment

i) details the method of amending, or changing, the Constitution

g) Article 6 - Debts, Supremacy, Oaths

i) Concerns the United States itself. First, it guarantees that the United States under the Constitution would assume all debts and contracts entered into by the United States under the Articles of Confederation. It sets the Constitution and all laws and treaties of the United States to be the supreme law of the country. Finally, it requires all officers of the United States and of the states to swear an oath of allegiance to the United States and the Constitution when taking office

h) Article 7 - Ratification

i) Details the method for ratification, or acceptance, of the Constitution: of the original 13 states in the United States, nine had to accept the Constitution before it would officially go into effect.

5) THE BILL OF RIGHTS (AND WHY IT WASN’T IN THE ADOPTED CONSTITUTION)

a) Amendment 1 - Freedom of Religion, Press, Expression 12/15/1791

i) Protects the people's right to practice religion, to speak freely, to assemble (meet), to address (petition) the government, and of the press to publish.

b) Amendment 2 - Right to Bear Arms 12/15/1791

i) Protects the right to own guns. There is debate whether this is a right that protects the state, or a right that protects individuals

c) Amendment 3 - Quartering of Soldiers 12/15/1791

i) guarantees that the army cannot force homeowners to give them room and board

d) Amendment 4 - Search and Seizure 12/15/1791

i) Protects the people from the government improperly taking property, papers, or people, without a valid warrant based on probable cause (good reason).

e) Amendment 5 - Trial and Punishment, Compensation for Takings 12/15/1791

i) Protects people from being held for committing a crime unless they are properly indicted, that they may not be tried twice for the same crime, that you need not be forced to testify against yourself, and from property being taken without just compensation. It also contains due process guarantees

f) Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses 12/15/1791

i) Guarantees a speedy trial, an impartial jury, that the accused can confront witnesses against them, and that the accused must be allowed to have a lawyer.

g) Amendment 7 - Trial by Jury in Civil Cases 12/15/1791

i) Guarantees a jury trial in federal civil court cases.

h) Amendment 8 - Cruel and Unusual Punishment 12/15/1791

i) Guarantees that punishments will be fair, and not cruel, and those extraordinarily large fines will not be set.

i) Amendment 9 - Construction of Constitution 12/15/1791

i) is simply a statement that other rights aside from those listed may exist, and just because they are not listed doesn't mean they can be violated

j) Amendment 10 - Powers of the States and People 12/15/1791

i) Is the subject of some debate, but essentially it states that any power not granted to the federal government belongs to the states or to the people. See the Federalism Topic Page for more information

6) THE LATER AMENDMENTS

a) Amendment 11 - Judicial Limits 2/7/1795

b) Amendment 12 - Choosing the President, Vice President 6/15/1804

c) Amendment 13 - Slavery Abolished 12/6/1865

d) Amendment 14 - Citizenship Rights 12/6/1865

e) Amendment 15 - Race No Bar to Vote 2/3/1870

f) Amendment 16 - Status of Income Tax Clarified 2/3/1913

g) Amendment 17 - Senators Elected by Popular Vote 4/8/1913

h) Amendment 18 - Liquor Abolished 1/16/1919

i) Amendment 19 - Women's Suffrage 8/18/1920

j) Amendment 20 - Presidential, Congressional Terms 1/23/1933

k) Amendment 21 - Amendment 18 Repealed 12/5/1933

l) Amendment 22 - Presidential Term Limits 2/27/1951

m) Amendment 23 - Presidential Vote for District of Columbia 3/29/1961

n) Amendment 24 - Poll Taxes Barred 1/23/1964

o) Amendment 25 - Presidential Disability and Succession 2/10/1967

p) Amendment 26 - Voting Age Set to 18 Years 7/1/1971

q) Amendment 27 - Limiting Changes to Congressional Pay 5/7/1992