Exhaustive Study Notes on Constitutional Amendments, Ratification, and Federalism- AP GOV

Constitutional Compromises and Article VII Ratification

• Necessity of Compromise at the Constitutional Convention:

  • Compromises (such as counting three out of every five slaves for proportional representation) were mandatory to form a single union among distinct states with conflicting identities, economic structures, and interests.

  • Without strategic compromises between large and small states, as well as Northern and Southern states, individual states would have walked away from the convention and disbanded the fledgling union.

• Article VII of the Original U.S. Constitution:

  • Article VII explicitly dictates the threshold required to put the new framework into effect using a single sentence.

  • Ratification required $9$ out of the original $13$ states.

  • Even after the requisite $9$ states ratified the document, implementation was delayed to await ratification by the two largest states (Virginia and New York).

  • Delaware became known as "The First State" due to being the first to ratify the document, whereas Rhode Island and North Carolina initially refused to ratify it within the primary wave.

• Comparison to the Articles of Confederation:

  • Amending the Articles of Confederation required unanimous consent ($13$ out of $13$ states).

  • Because achieving unanimous approval was practically impossible, no amendments were ever successfully passed under the Articles, forcing the Framers to abandon the document entirely and draft a new Constitution.

The Formal Amendment Process (Article V)

• Structural Balance in Article V:

  • Article V (represented by Roman numeral V) outlines the mechanisms for formally altering the literal text of the Constitution.

  • The Framers designed a process that avoids two extremes:

    • Making amendment too easy, which would leave the Constitution vulnerable to temporary majority whims and "factions" (as warned against in Federalist No. 10). For example, state constitutions that allow amendment by simple majority, such as California, undergo frequent modifications, whereas states like Florida require supermajorities.

    • Making amendment impossible, which was the critical flaw of the Articles of Confederation.

• Two-Phase Amendment Mechanism:

  • Formal amendment is strictly a two-phase process: Phase 1 (Proposal) followed by Phase 2 (Ratification). Step two cannot occur without successfully completing step one.

  • Each phase contains two distinct constitutional options:

    • Phase 1: Proposal Options:

      • Option 1A: A $\frac{2}{3}$ supermajority vote in both the House of Representatives and the Senate.

      • Option 1B: A constitutional convention called by Congress upon application from $\frac{2}{3}$ of the states ($34$ out of $50$ states).

    • Phase 2: Ratification Options:

      • Option 2A: Approval by of state legislatures ($38$ out of $50$ states).

      • Option 2B: Approval by $\frac{3}{4}$ of special state ratifying conventions ($38$ out of $50$ states).

Historical Application of Formal Amendments

• Standard Formal Amendment Path:

  • All $27$ amendments to the U.S. Constitution were proposed via Option 1A ($\frac{2}{3}$ vote in both chambers of Congress). Option 1B (a national proposal convention) has never been utilized in U.S. history under Article V.

  • National conventions were historically used to draft foundational government structures (the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution). Calling a national convention today would likely indicate sweeping, wholesale structural reforms rather than a single targeted amendment.

  • $26$ of the $27$ amendments were ratified via Option 2A (approval by $\frac{3}{4}$ of state legislatures).

• The 21st Amendment Exception:

  • The 21st Amendment (1933), which repealed Prohibition (the 18th Amendment, ratified in 1919), is the only amendment in U.S. history ratified via Option 2B (state ratifying conventions).

  • When Congress proposes an amendment, it specifies which ratification path the states must follow.

  • Congress mandated state conventions for the 21st Amendment to bypass anti-alcohol state legislators who retained strong temperance political ties, placing the vote into the hands of delegates chosen specifically for the issue during the Great Depression.

• High Thresholds and Historical Failed Amendments:

  • Flag Burning Amendment Attempt:

    • Under Texas v. Johnson, burning the American flag in political protest is protected expression under the First Amendment (distinguished from criminal arson or endangerment). Notably, traditional flag retirement codes prescribe burning as the proper disposal method.

    • Between the 1980s and 2000s, the House of Representatives passed a proposed constitutional amendment banning flag desecration four separate times.

    • In 2006, amidst post-9/11 patriotic sentiment, the Senate vote reached $66$ yeas—falling exactly $1$ vote short of the required $\frac{2}{3}$ supermajority ($67$ votes).

  • Equal Rights Amendment (ERA):

    • First conceived around the time of the Seneca Falls Convention, the ERA stated that equal rights under the law shall not be denied on account of sex.

    • Congress passed the ERA by a $\frac{2}{3}$ vote in the 1970s and sent it to the states, but it stalled at $35$ state ratifications—$3$ states short of the required $38$ ($\frac{3}{4}$).

  • Bill of Rights and Post-1970 Amendments:

    • Congress originally approved $12$ amendments in the initial 1789 package; $10$ were ratified in 1791 as the Bill of Rights. One failed, and another regarding congressional pay was eventually ratified $202$ years later in 1992 as the 27th Amendment because it lacked an expiration clause.

    • The last amendment successfully passed through the modern standard proposal-and-ratification cycle was the 26th Amendment in 1971, which lowered the voting age to $18$

  • Constitutional amendments generally fulfill two purposes: altering institutional structures (e.g., the 12th Amendment decoupling presidential and vice-presidential ballots after political rivals like John Adams and Thomas Jefferson ended up in the same administration) or expanding civil rights and liberties.

Informal Constitutional Change and Judicial Review

• Definition of Informal Change:

  • Informal change refers to modifying the operational meaning, scope, and application of the Constitution through judicial interpretation or evolving political practice without altering the written legal text.

• Marbury v. Madison (1803):

  • Background: Arose from the "Midnight Judges" controversy, in which the outgoing Federalist administration attempted to pack federal court appointments prior to leaving office.

  • Precedent Established: Established the fundamental principle of Judicial Review.

  • Core Definition: Judicial review grants all federal courts the power to evaluate whether acts of Congress, executive actions, or state actions violate the Constitution and to strike down unconstitutional actions or enforce separation of powers.

  • Significance as Informal Change: Judicial review is not explicitly stated anywhere in Article III of the Constitution. Chief Justice John Marshall and the Supreme Court claimed this power through constitutional interpretation, elevating the judiciary from what Alexander Hamilton termed the "least dangerous branch" into a fully co-equal branch capable of checking executive and legislative encroachments.

Informal Change through Evolving Political Practices

• Senate Advice and Consent Clause:

  • Article II states that the President appoints executive officers and federal judges "with the Advice and Consent of the Senate."

  • The Constitution provides zero procedural rules defining how "advice and consent" must operate.

  • Over time, political practice created a rigorous confirmation process featuring Senate Judiciary Committee hearings, extensive candidate questioning, and committee votes that can kill a nomination before the full Senate ever votes.

• The Legislative Filibuster:

  • Article I specifies that a simple majority ($51$ votes in the Senate) is required to pass standard legislation.

  • The filibuster—a practice where a senator or group of senators prolongs debate indefinitely to delay or prevent a vote—is completely absent from the text of the Constitution.

  • Through Senate procedural rules, invoking cloture to end debate requires $60$ votes, informally altering the operational threshold needed to pass controversial legislation from a simple majority to a $60$-vote supermajority.

• Committee Power and Budgetary Conundrums:

  • Unwritten committee rules allow individual senators to hold or stall legislation.

  • Example: Senator Ron Johnson of Wisconsin utilized committee procedural maneuvers to halt a rescissions package bill concerning $\$810\,000\,000$ in congressional appropriations that the executive branch refused to spend, highlighting how internal legislative practices alter constitutional mechanics.

The Ratification Debate: Federalists vs. Anti-Federalists

• Federalist Position:

  • Supported ratifying the new Constitution.

  • Favored a stronger, consolidated national government to address economic instability and defense vulnerabilities present under the Articles of Confederation.

  • Authored The Federalist Papers to defend constitutional provisions and reassure citizens regarding checks and balances.

• Anti-Federalist Position:

  • Opposed ratification of the proposed Constitution.

  • Champions of strong state sovereignty and local self-governance, fearing national power consolidation.

  • Exemplified by political writings such as Brutus No. 1.

  • Two Core Fears:

    1. The national government was granted excessive power that would inevitably strip state governments of their sovereignty.

    2. The absence of an explicit Bill of Rights left individual civil liberties and states vulnerable to federal overreach and abuse.

  • Key figure George Mason attended the Philadelphia Convention and helped draft much of the Constitution, but ultimately refused to sign it due to the omission of a Bill of Rights.

• The Compromise:

  • To secure the necessary $9$ states for ratification, Federalists made a binding political promise to immediately add a Bill of Rights upon convening the First Congress.

  • The initial ten amendments (Bill of Rights) were enacted to protect both individuals and state governments from federal abuse.

Modern Constitutional Debates and Unsettled Powers

• The Philosophical Divide (Federalist No. 10 vs. Brutus No. 1):

  • Brutus No. 1 View: Asserts that governments closest to the people understand their needs best and that a distant central government cannot effectively manage regional diversity without becoming oppressive.

  • Federalist No. 10 View (Madison): Asserts that small, localized governments fall prey to dominant majority factions that tyrannize minorities; a large republic dilutes factional influence and protects stability.

• Government Surveillance vs. Privacy Rights:

  • Following the September 11 attacks, federal passage of the Patriot Act and subsequent legislation expanded federal data-mining capabilities (tracking credit card transactions, digital metadata, and communications).

  • Represents an ongoing constitutional tug-of-war between federal demands for order and security versus individual Fourth Amendment privacy rights.

  • Local analog: The deployment of automatic license-plate readers (Flock cameras) by state/local authorities creates identical debates regarding security tracking versus government surveillance overreach.

• Federal Power vs. State Control in Education:

  • Under the 10th Amendment, public education policy is traditionally a reserved power belonging to individual state governments.

  • Federal interventions—such as the No Child Left Behind law—attempted to guide state educational practices by conditioning federal funding on mandatory standardized testing regimes (e.g., state FCAT or ERB assessments).

  • Tie-in to Constitutional Federalism: High-stakes testing forced educators to "teach to the test," illustrating how federal fiscal conditions can compromise state flexibility and local curricular tailoring.