Studied by 4 people
Chapter 2, 4 & 5
The Articles of Confederation
The first constitution for the central government of the United States, which operated between 1781 and 1788. The Articles would be replaced by the original U.S. Constitution, which was ratified in 1788.
confederacy
system with a central government and state governments, but that is set up so the states maintain as much sovereignty and independence as possible.
requisitions
Orders to contribute money to the central government issued by Congress to the state’s governments during the Revolutionary War and under the Articles of Confederation.
unicameral legislature
legislature with only one chamber or house.
According to Alexander Hamilton, what was “the great and radical vice” in the design of the Articles of Confederation? Why did this “vice” contribute so greatly to the weakness of the Articles of Confederation?
the lack of a strong central government. It struggled to enforce laws or raise revenue effectively, leading to a weak and ineffective national government.
Constitutional Convention/Philadelphia Convention
The meeting in Philadelphia between May and September of 1787 at which 55 delegates from 12 of the 13 states wrote the original U.S. Constitution that would be ratified in 1788.
Original Constitution
common way of referring to the pre-amended U.S. Constitution that was signed at the Constitutional Convention in Philadelphia in September of 1787 and that was ratified in 1788 - consists of the preamble and seven articles.
Bill of Rights
Name given to the first ten amendments to the U.S. Constitution, all of which were ratified in 1791, and that are the primary source of civil liberties in the U.S. Constitution.
Founders’ Constitution
That part of the U.S. Constitution that was written and ratified by the first (i.e., founding) generation (aka the Founding Fathers) - consists of the Original Constitution, Bill of Rights, 11th Amendment, and 12th Amendment.
the Great Compromise
Compromise (also known as the Connecticut Compromise) that sought to solve the disagreement between large and small states at the Constitutional Convention over how to apportion seats in Congress.
the Virginia Plan/Large State Plan
Name given to James Madison’s proposal (the first submitted at the Constitutional Convention) to replace the Articles of Confederation with a strong national government with extensive legislative authority.
the New Jersey Plan/Small State Plan
Name given to the William Paterson’s proposal (offered as the leading alternative to the Virginia Plan) to moderately reform the Articles of Confederation while maintaining its basic confederal structure of government.
the Three-Fifths Compromise
Name given to the decision by antislavery delegates at the Constitutional Convention to accommodate the demand by slave states that they be allowed to count their slaves as whole persons for purposes of apportioning seats in the House of Representatives.
the Electoral College
System established by the U.S. Constitution for selecting Presidents.
Slave Trade Clauses
provisions in various historical documents and constitutions that addressed the transatlantic slave trade.
Fugitive Slave Clauses
Part of the Founders’ Constitution that (1) granted slave owners the right to recapture runaway slaves even in states where slavery was illegal, and (2) prohibited states from passing laws to protect runaway slaves.
federalism
Principle of government that means authority is partly divided and partly shared between the federal (aka central or national) government and the state governments.
popular sovereignty
The idea that the people of a particular territory have the highest authority to rule over that territory; and, thus, government authority is legitimate only if it derives from the consent of the people.
direct democracy
A form of democratic government in which all of the citizens directly participate in making and enforcing laws.
representative democracy
form of democratic government where elected officials make and enforce laws on behalf of the majority of citizens
bicameralism
A legislature with two chambers or houses. In a bicameral legislature there is an upper chamber and lower chamber.
separation of powers/checks and balances
Principle of government that means the different branches of government exert enough power over one another in order to keep each other within their proper constitutional limits.
civil liberties
Legal rights designed to protect individuals from abuse of power by government.
Supremacy Clause
A provision in the U.S. Constitution that declares the U.S. Constitution (and all lawful treaties and other federal laws) the supreme law of the land.
The Federalist Papers
85 essays written by Alexander Hamilton, James Madison, and John Jay (under the pseudonym “Publius”) between October 1787 and August 1788.
Federalists
those who supported ratification of the original U.S. Constitution during the ratification debate in 1787-1788.
Anti-federalists
Those who opposed ratification of the original U.S. Constitution during the ratification debate in 1787-1788.
According to the textbook, what was the primary obstacle to amending the Articles of Confederation? How did the Founders get around this obstacle? (Hint: the idea of “popular sovereignty” was important here.)
the requirement for unanimous consent from all state legislatures. This made it extremely difficult to enact any changes. The Founders circumvented this obstacle by invoking the principle of popular sovereignty. They argued that the new Constitution would derive its authority directly from the people, rather than the state legislatures, allowing for a more flexible and democratic process.
According to the textbook, what were the two most heated points of contention at the Constitutional Convention that made it difficult to create a constitution acceptable to the people of every state in the union?
Representation in Congress: The debate between the Virginia Plan (favoring large states) and the New Jersey Plan (favoring small states) led to the Great Compromise, which established a bicameral legislature with proportional representation in the House and equal representation in the Senate.
Slavery: The issue of how to count enslaved people for representation and taxation purposes resulted in the Three-Fifths Compromise, where three out of every five enslaved individuals would be counted.
What were 4 ways the Original Constitution protected slavery?
Three-Fifths Clause: This clause counted three-fifths of a state’s enslaved population for purposes of representation and taxation.
Slave Trade Clause: It prohibited Congress from banning the importation of enslaved people until 1808.
Fugitive Slave Clause: This required that enslaved people who escaped to free states be returned to their enslavers.
Insurrection Clause: It allowed the federal government to suppress insurrections, including slave rebellions.
the six design principles of the original U.S. Constitution
(1) federalism, (2) popular sovereignty, (3) representative democracy, (4) bicameralism, (5) separation of power / checks and balances, and (6) a small list of civil liberties.
Popular Sovereignty
The authority of the government is created and sustained by the consent of its people, through their elected representatives.
Limited Government
The government has only the powers that the Constitution gives it, ensuring that it cannot overstep its bounds.
Separation of Powers
The division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.
Checks and Balances
Each branch of government has the power to check, or limit, the actions of the other two, ensuring no single branch becomes too powerful.
Judicial Review
The power of the courts to declare laws and actions of the government unconstitutional.
Federalism
The division of power between the national government and the state governments.
Did the federal system created by the U.S. Constitution give state governments more or less power and independence compared to what they had under the Articles of Confederation?
less power and independence
How does the Constitution’s Preamble reflect the principle of “popular sovereignty”?
by starting with the words “We the People”. This phrase emphasizes that the authority of the government comes from the people themselves, rather than from a monarch or a select group. It underscores the idea that the government exists to serve the citizens and derives its power from their consent.
Why did the Founders choose a bicameral legislature instead of a unicameral one?
It facilitated the Great Compromise by allowing states to be represented equally in one chamber (the Senate) and based on population size in another (the House of Representatives).
Which group—the Federalists or the Antifederalists—supported ratification of the U.S. Constitution? Which opposed ratification?
Antifederalists opposed the ratification.
Federalists supported it.
Why were the Federalist Papers written?
To persuade New Yorkers to vote to ratify the Constitution
general subject matter of Article I of the Constitution
the Legislative Branch, detailing the structure, powers, and functions of Congress.
general subject matter of Article II of the Constitution
the Executive Branch, outlining the powers and duties of the President and Vice President.
general subject matter of Article III of the Constitution
the Judicial Branch, describing the federal court system, including the Supreme Court.
general subject matter of Article V of the Constitution
the Amendment Process, detailing how the Constitution can be amended.
the Reconstruction Amendments
Three amendments (the 13th, 14th, and 15th) to the U.S. Constitution passed during the Reconstruction Era.
birthright citizenship
The constitutional rule (established in the first clause of the 14th Amendment) that every person (regardless of race, ethnicity, religion, etc.) born in the United States is, by right of birth, a citizen of the United States.
the Second Founding
A way of referring to the transformative effect (and potential) of the Reconstruction Amendments.
What did each of the Reconstruction amendments declare?
13th Amendment: Abolished slavery and involuntary servitude, except as punishment for a crime.
14th Amendment: Granted citizenship to all persons born or naturalized in the United States and guaranteed equal protection under the law.
15th Amendment: Prohibited denying the right to vote based on race, color, or previous condition of servitude.
In what ways did the Reconstruction Amendments transform the Founders’ Constitution—particularly with respect to slavery and white supremacist views of American citizenship?
Abolition of Slavery: The 13th Amendment abolished slavery and involuntary servitude, except as punishment for a crime.
Citizenship and Equal Protection: The 14th Amendment granted citizenship to all persons born or naturalized in the United States and guaranteed equal protection under the law.
Voting Rights: The 15th Amendment prohibited denying the right to vote based on race, color, or previous condition of servitude.
civil liberties
Legal rights designed to protect individuals from abuse of power by government.
incorporation
Name for when the U.S. Supreme Court holds that a civil liberty from the Bill of Rights applies to state governments (rather than only the federal government) through the Fourteenth Amendment Due Process Clause’s command that no “State deprive any person of … liberty … without due process of law.”
Due Process Clause of the 14th Amendment
Clause of the Fourteenth Amendment that says, “No State shall … deprive any person of life, liberty, or property, without due process of law.”
selective incorporation
Gradual process by which the Supreme Court has chosen (one case and one right at a time) which civil liberties from the Bill of Rights to incorporate through the Fourteenth Amendment Due Process Clause.
total Incorporation
The idea that all of the civil liberties protected by the Bill of Rights should automatically be incorporated into the Due Process Clause all at once.
unenumerated constitutional rights
Rights that are said to be implied by the Constitution but that are not actually mentioned in it.
Do constitutions protect civil liberties against infringement by private individuals (or businesses) or do constitutions only protect against infringement by government?
Constitutions only protect civil liberties against infringement by the government.
Did the civil liberties listed in the Bill of Rights of the U.S. Constitution apply to actions taken by state governments prior to the Civil War? Did they apply to actions taken by the federal government prior to the Civil War?
Prior to the Civil War, the civil liberties listed in the Bill of Rights of the U.S. Constitution did not apply to actions taken by state governments.
They only applied to actions taken by the federal government.
religious freedom
The freedom to develop and live according to one’s own religious beliefs insofar as doing so does not interfere with the similar freedom of others.
Establishment Clause
Clause of the First Amendment that states, “Congress shall make no law respecting an establishment of religion.”
Free Exercise Clause
Clause of the First Amendment that states, “Congress shall make no law … prohibiting the free exercise [of religion].”
separation of Church and State
The view, often endorsed by liberal Supreme Court justices, that the Establishment Clause of the First Amendment of the U.S. Constitution is designed to reduce or eliminate the role of religion in government affairs altogether.
Accommodationism
The view, often endorsed by conservative Supreme Court justices, that the Establishment Clause of the First Amendment of the U.S. Constitution does not mandate the separation of church and state.
belief-action framework
a legal principle that distinguishes between beliefs, which are protected by law, and actions based on those beliefs, which may be regulated or restricted by law.
Sherbert Test
Test used for determining whether a government action interferes with the legal right to the free exercise of religion.
strict scrutiny
Label given to the most stringent approach taken by courts when reviewing potentially unconstitutional government actions.
There are two phases in the Sherbert Test. Which questions are asked are in each phase?
whether …
the government interference with religious practice is the result of pursuing a compelling government interest, and
there is a way for government to pursue the compelling government interest that would have placed less of a burden on the free exercise of religion.
What does strict scrutiny have to do with the Sherbert Test?
The Sherbert Test is used to determine whether a government action interferes with an individual's right to the free exercise of religion.
Content-Based Restriction
Government law or action that restricts the freedom of expression because of disapproval of the content of the message being expressed.
What is the baseline rule of the Supreme Court’s approach to the freedom of expression?
the First Amendment forbids government from restricting expression simply because government (or a majority of citizens) disapproves of the content of the message it conveys, especially if the message expresses a political viewpoint.
The textbook discusses two forms of expression that are protected by the U.S. Constitution (as interpreted by the U.S. Supreme Court) but that are not constitutionally protected in other democratic countries. What are those two forms of expression?
hate speech and campaign spending
Know which of the following forms of expression are entitled to less First Amendment protection than ordinary forms of political expression:
Slander of public figures
Obscenity
Student speech (in public schools)
Hate speech
"Fighting words"
Expression that promotes, and is likely to incite or produce, imminent lawless action
Libel of public figures
How do proponents of gun rights differ from proponents of gun control in how they interpret the Second Amendment?
gun rights advocates argue that the Second Amendment guarantees an individual's right to own firearms for self-defense, where gun control advocates focus on the prefatory clause "A well regulated Militia, being necessary to the security of a free State."
According to 21st century U.S. Supreme Court decisions, does the Second Amendment protect a right for individuals to own firearms for self-defense? Or does it only protect the right for persons to own guns for purposes of serving in a “well-regulated militia?
the Second Amendment protects an individual's right to own firearms for self-defense
Has the U.S. Supreme Court incorporated the Second Amendment under the Due Process Clause of the 14th Amendment?
The Second Amendment right to bear arms is -incorporated and thus applies against the states through the Due Process Clause of the 14th Amendment.
4th Amendment
Amendment that prohibits unreasonable searches and seizures and requires establishing probable cause, as determined by a judge, before receiving a search warrant.
searches and seizures
Government actions to find evidence or detain individuals, requiring probable cause and a warrant.
e.g. Any search/surveillance where the person searched would have a reasonable expectation of privacy.
Physical invasion of home and/or physically touching the body.
Exclusionary Rule
Rule that if government acquires evidence through unconstitutional methods, then the evidence may not be admitted into court.
Fifth Amendment
Amendment that guarantees five distinct liberties, including the right to a Grand Jury for indictments; protection against double jeopardy; right to not be compelled to self-incriminate; the right to due process; and the right to not have property taken for public use without receiving just compensation.
Self-Incrimination:
The making of statements that provide evidence of one’s own guilt.
Miranda Warnings:
A statement, such as the following, which law enforcement makes to a criminal suspect prior to interrogating them: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
Sixth Amendment:
Amendment providing six rights pertaining to criminal trials, including the rights to a speedy trial, impartial jury, and to having a lawyer.
right “to a speedy … trial”)
right, designed to prevent government from depriving criminal suspects of their liberty for long periods of time prior to standing trial.
Eighth Amendment:
Amendment that prohibits excessive bail, excessive fines, and cruel and unusual punishments.
Cruel and unusual punishment
Punishments that are considered inhumane, degrading, or excessively harsh, prohibited by the Eighth Amendment.
According to the textbook, what is the purpose (or “aim”) of civil liberties pertaining to the criminal justice system?
to establish rules and procedures that the executive and judicial branches must follow when investigating, accusing, convicting, and punishing criminal suspects and convicts.
Generally speaking, how do liberals and conservatives tend to differ in how they interpret civil liberties pertaining to the criminal justice system?
Liberals tend to prioritize protecting the rights of criminal suspects and convicts, while conservatives focus more on empowering the government to prevent and punish criminal activity.
Why, according to the textbook, is the incorporation of criminal justice rights under the 14th Amendment “especially important?
because most law enforcement activities are conducted by state and local police departments and most criminal trials take place in state courts and pertain to state criminal laws.
Why did the Supreme Court create the exclusionary rule? Why are a growing number of constitutional scholars, lawyers and judges questioning its wisdom?
-In a decision in 1914, the U.S. Supreme Court established something called the exclusionary rule for searches and seizures conducted by the federal government.
-because police may have failed to strictly follow Fourth Amendment standards.
According to the Supreme Court in Miranda v. Arizona (1966), what must police tell criminal suspects before they question them?
“You have the right to remain silent and refuse to answer questions. Anything you say can and will be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.”
If someone goes a full year after being charged with a crime before having a trial, would this necessarily result in charges being dropped on account of the person being deprived of their right to a speedy trial?
no, in some cases holding that delays of multiple years are still speedy enough to meet the 6th Amendment requirement
According to the Supreme Court, what exactly is required by the 6th Amendment command that criminal trials must be by an “impartial jury?
potential jurors must be drawn randomly from the population, so they closely resemble the community from which they are drawn
What did the Supreme Court declare about the 6th Amendment right to an attorney in Gideon v. Wainwright (1963)? What specific impact (discussed by the textbook) did this decision have on the criminal justice system?
-the 6th Amendment requires government to provide an attorney to any criminal defendant who requests one and cannot afford one.
-state governments now directly employ over 15,000 Public Defenders who each year provide legal counsel to millions of criminal defendants who cannot afford to hire their own attorneys.
According to the Supreme Court, in what specific circumstances does the Eighth Amendment not allow imposing the death penalty?
*Underage of 18 at the time of the murder;
*Those who are unable to rationally understand why they're being executed due to insanity, dementia, or intellectually disabled;
*The victim didn't die.
unenumerated constitutional right to privacy
-laws that seek to regulate any sexual activity engaged in privately by consenting adults.
How are unenumerated constitutional right and right to privacy related?
-it is said to be protected by the Due Process Clause of the 14th Amendment.
In Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the Supreme Court held that the Fourteenth Amendment Due Process Clause protects an unenumerated constitutional right to privacy that included the right of a woman to choose to have an abortion. What did the Supreme Court declare about the constitutional right to choose to have an abortion in Dobbs v. Jackson Women’s Health (2022)? As a result, abortion laws are now determined primarily by what level of government (federal or state)?
It overturned Roe v. Wade and held that the U.S. Constitution does not guarantee the right of a woman to choose to have an abortion.
This moved abortion laws to the state level.
On what ground did the U.S. Supreme Court, in Lawrence v. Texas (2003), declare unconstitutional a Texas statute that made it a crime to engage in sodomy “with another individual of the same sex”
They decided that the problem was with the law was that it was regulated sexual conduct engaged in by consenting adults within the privacy of their own home.
According to the U.S. Supreme Court, what part of the U.S. Constitution is violated if state or local governments deprive same sex couples of the right to marry?
the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
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