Study Notes: The Constitution and Constitutional Change
Structure and Outline of the Constitution
Fundamental Legal Status: Written in 1787 and taking effect in 1789, the Constitution serves as the supreme Law of the Land and the nation's fundamental law.
Length and Composition: A brief document of slightly more than 7,000 words consisting of a Preamble, seven numbered articles, and 27 amendments.
Preamble: Declares the purpose of the government and asserts popular sovereignty ("We the People of the United States").
The Seven Articles:
Article I: Establishes the Legislative branch (Congress).
Article II: Establishes the Executive branch (Presidency).
Article III: Establishes the Judicial branch (Supreme Court and federal courts).
Article IV: Governs relations among the States and their relationship with the National Government.
Article V: Sets out the formal amendment process.
Article VI: Declares the supremacy of national law, addresses national debts, and requires oaths of office.
Article VII: Outlines the requirements for the original ratification of the Constitution.
Six Basic Principles of the Constitution
Popular Sovereignty: All political power resides in the people; government can govern only with the consent of the governed.
Limited Government: Government is not all-powerful and may do only those things the people have empowered it to do; embodies constitutionalism and the rule of law, holding that government officers are always subject to the law.
Separation of Powers: Basic governmental powers are distributed across three distinct, independent branches (Legislative makes law, Executive executes law, Judicial interprets law) to prevent tyranny.
Checks and Balances: Each branch is subject to constitutional restraints and checks by the other two branches to prevent any single faction or branch from dominating.
Executive Checks: May veto acts of Congress, call special sessions of Congress, and appoint Supreme Court justices and other federal judges.
Legislative Checks: May override a presidential veto by a two-thirds vote in each house, refuse requested funds, reject presidential appointments and treaties in the Senate, impeach the President or federal judges, and create lower courts.
Judicial Checks: May declare legislative acts or executive actions unconstitutional through judicial review.
Judicial Review: The power of courts to determine the constitutionality of governmental actions, declaring unconstitutional actions null and void; established formally in Marbury v. Madison (1803) under Chief Justice John Marshall and extended to State laws in Fletcher v. Peck (1810).
Federalism: The territorial division of governmental power between a central National Government and regional governments (the 50 States) to restrain power and protect individual liberty.
Federal Powers: Maintain army and navy, declare war, coin money, regulate interstate and foreign trade, and make treaties.
State Powers: Conduct elections, establish schools, regulate business within a State, establish local governments, regulate marriages, and exercise reserved powers under the 10th Amendment.
Shared Powers: Enforce laws, establish courts, borrow money, protect the population, build infrastructure, collect taxes, and make laws.
Formal Amendment Process
Framework: Article V establishes four formal methods for altering the written text of the Constitution, illustrating federalism through national proposal and state ratification:
First Method: Proposed by a two-thirds vote in each house of Congress; ratified by three-fourths of State legislatures (used for 26 of 27 amendments; currently requires 38 States).
Second Method: Proposed by a two-thirds vote in each house of Congress; ratified by conventions in three-fourths of the States (used only for the 21st Amendment in 1933).
Third Method: Proposed by a national convention called by Congress at the request of two-thirds of State legislatures (34 States); ratified by three-fourths of State legislatures (never used).
Fourth Method: Proposed by a national convention called by Congress at the request of two-thirds of State legislatures; ratified by conventions in three-fourths of the States (never used).
Procedural Rules:
Proposed amendments do not go to the President for approval or veto because Congress is not passing statutory law.
Once a State ratifies an amendment, the action cannot be undone; however, a State that rejects an amendment may later reconsider and approve it.
Hawke v. Smith (1920) affirmed that a State cannot require a direct popular vote before its legislature acts, though Kimble v. Swackhamer (1978) permitted advisory votes.
Dillon v. Gloss (1921) established that Congress may place reasonable time limits on ratification (typically seven years).
Proposal Statistics: More than 15,000 joint resolutions have been proposed in Congress since 1789; 33 have been sent to the States; only 27 have been ratified.
The 27 Amendments
The Bill of Rights (Amendments 1–10): Proposed in 1789 by the First Congress and ratified in 1791 to guarantee essential personal liberties (speech, religion, assembly, press, fair trials, due process) and satisfy Anti-Federalist demands.
Early Adjustments:
11th Amendment (1795): Immunity of States from certain federal lawsuits (spurred by Chisholm v. Georgia in 1793).
12th Amendment (1804): Separate Electoral College balloting for President and Vice President following the 1800 election tie.
Civil War Amendments:
13th Amendment (1865): Abolition of slavery.
14th Amendment (1868): Definition of citizenship, due process, and equal protection under the law.
15th Amendment (1870): Prohibits denying the right to vote based on race, color, or previous servitude.
20th-Century and Modern Amendments:
16th (1913): Federal income tax.
17th (1913): Popular direct election of U.S. Senators.
18th (1919) & 21st (1933): Prohibition of alcohol, followed by its repeal.
19th (1920): Women's suffrage.
20th (1933): Changes start dates for presidential and congressional terms.
22nd (1951): Limits the President to two elected terms (prompted by Franklin D. Roosevelt's four terms).
23rd (1961): Grants presidential electors to the District of Columbia.
24th (1964): Bans poll taxes as voter qualifications in federal elections.
25th (1967): Clarifies presidential succession, vice-presidential vacancies, and presidential disability.
26th (1971): Lowers the minimum voting age to 18.
27th (1992): Prevents congressional pay raises from taking effect until after an intervening election (originally drafted by James Madison in 1789).
Constitutional Change by Other Means
Basic Legislation: Congress clarifies vague or skeletal constitutional provisions (e.g., creating the federal court system via the Judiciary Act of 1789 and establishing executive departments) and defines broad powers through statutes (e.g., regulating interstate and foreign commerce).
Executive Action: Presidents utilize commander-in-chief powers to deploy armed forces into conflict without a formal declaration of war; use executive agreements directly with foreign heads of state in place of formal treaties requiring Senate approval; and apply broad interpretations of executive power (e.g., Thomas Jefferson's Louisiana Purchase in 1803).
Court Decisions: Federal courts, led by the Supreme Court, interpret and apply the Constitution in litigated disputes, acting continuously as an interpreter of constitutional meaning.
Party Practices: Political parties structure nominations via national conventions, alter the Electoral College from an independent deliberative body into a reflection of state popular votes, and organize congressional leadership and proceedings.
Custom and Usage: Unwritten traditions that carry the force of law, including the presidential Cabinet (15 executive department heads serving as advisors), senatorial courtesy regarding state-level federal appointments, and the historic two-term tradition prior to the 22nd Amendment.