American Governance CENTER FOR CIVIC EDUCATION PACKET “WE THE PEOPLE UNITS” 1-6 Stephen Schechter, EDITOR IN CHIEF Thomas S. Vontz, EXECUTIVE ASSOCIATE EDITOR Thomas A. Birkland, ASSOCIATE EDITOR Mark A. Graber, ASSOCIATE EDITOR John J. Patrick, ASSOCIATE EDITOR From American Governance © 2016 Gale, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions. CONTENTS Unit 1: What Are the Philosophical and Historical Foundations of the American Political System? Magna Carta by A.E. Dick Howard ............................1 American Revolution by John P. Kaminski ........................2 Declaration of Independence by John J. Patrick ...................10 Constitutionalism by Herman Belz ............................13 Unit 2: How Did the Framers Create the Constitution? Constitution by John J. Patrick ...............................17 Federalism, Theory of by John Kincaid .........................21 Separation of Powers by Will Morrisey ..........................25 Representation, Idea of by John J. Patrick .......................26 Unit 3: How Has the Constitution Been Changed to Further the Ideals Contained in the Declaration of Independence? American Constitutional Development from 1789 to 1868 by Paul Finkelman .......................................33 Political Party by Paul D. Moreno .............................39 Judicial Review by Daniel E. Hall .............................42 Fourteenth Amendment by Wayne D. Moore .....................45 Unit 4: How Have the Values and Principles Embodied in the Constitution Shaped American Institutions and Practices? Congress as a Governing Institution by James M. Curry .............49 Presidency, The by Amanda Ross Edwards .......................53 Supreme Court of the United States by Peter Charles Hoffer ..........55 Federalism in American History by John Kincaid ..................59 Unit 5: What Does the Bill of Rights Protect? US Bill of Rights by William B. Allen ..........................67 Constitutional Criminal Procedure by David Gray .................69 Freedom of Religion: Free Exercise by Frank Guliuzza ...............73 Freedom of Speech by Stephen M. Feldman ......................77 Unit 6: What Challenges Might Face American Constitutional Democracy in the Twenty-first Century? Citizenship by Thomas S. Vontz ..............................81 Foreign Policy by Stephen Schechter ...........................84 Civic Engagement by Kevin D. Ward ..........................89 Political Judgment by Thomas S. Vontz .........................92 War on Terrorism: A Constitutional Perspective by Louis Fisher .......94 American Governance: Center for Civic Education Packet iii INTRODUCTION Governance refers to the various ways by which the congregations that transmit values. The work also delves act of governing takes place. It includes formal govern- into the local communities, civic associations, and politi- ment structures but also the myriad components (such cal associations that people form for collective delibera- as voluntary civic associations and public and private tion and action, along with the relationships formed educational systems) that make up a given political between a people and their elected representatives. entity and comprise the communal life of its citizens. Each article offers a bibliography and cross- American Governance is a five-volume publication that references to guide the reader to related subjects; other provides scholarship on a wide range of essential issues resources include a thematic outline, historical docu- related to how Americans govern themselves. It offers a ments, an annotated list of useful websites, and over comprehensive, bird’s-eye view of the complete system 300 black-and-white images. of American governance and the complementarity of its parts. This special package of twenty-five entries was designed exclusively for teachers participating in the The set includes approximately 750 signed, peer- James Madison Legacy Project administered by the reviewed entries that explore key topics. These include Center for Civic Education (CCE). The entries in this formal frameworks such as the various US and state package provide an in-depth analysis of key concepts as- constitutions and federal, state, and local governments, sociated with each of the units in CCE’s We the People: as well as action by individuals and their representative The Citizen and the Constitution (Level 3). The entries civic and political organizations. It examines the exercise include concepts associated with each unit. of individual self-restraint, the political norms and ide- als that guide the actions of citizens and leaders, the American Governance is available in print and constitutional and legal frameworks that reinforce and e-book. For purchasing information please contact your modify those norms, and the families, schools, and Gale representative at www.cengage.com. American Governance: Center for Civic Education Packet v Unit 1 What Are the Philosophical and Historical Foundations of the American Political System? Magna Carta acts of grace on the king’s part but matters of right. “Magna Carta is such a Fellow,” Coke declared in a debate in the House Magna Carta (the “Great Charter”) resulted from a meeting of Commons on May 17, 1628, “that he will have no sovereign.” between England’s King John (1166–1216) and his rebellious Ultimately, the Stuart kings’ claim to royal prerogative brought a barons at Runnymede on May 15, 1215. The charter was, in ef- bloodless revolution, the accession of William and Mary to the fect, an attempt at a peace treaty between the king and the throne, and the enactment of the English Bill of Rights of 1689. disaffected barons. As seen by its contemporaries, the document That document itself is, like Magna Carta, the source of specific was addressed at specific grievances the barons and their allies provisions of the US Constitution and Bill of Rights, including had with King John. In subsequent centuries, Magna Carta the right of petition and the ban on cruel and unusual came to have much larger meaning, symbolizing such basic punishments. principles as constitutionalism and the rule of law. Magna Carta came to America with the first colonial charters. The Virginia Company Charter of 1606 guaranteed HISTORY OF MAGNA CARTA colonists “all liberties, franchises, and immunities” to the same extent “as if they had been abiding and born” in England. The quarrels that led to Magna Carta were years in the making. Charters of the other colonies contained similar assurances to King Richard I (the “Lion-Hearted”; 1157–99) spent most of colonists and their posterity. English laws and law books, includ- his reign abroad on Crusade or fighting in France. Financing ing Coke’s commentaries on Magna Carta, helped plant the no- these expeditions required money, which had to be extracted tion of fundamental rights as the colonies took root. from reluctant subjects at home. Succeeding Richard on the throne, King John warred with France’s King Philip Augustus In the decade leading up to the American Revolution, an (1165–1223), only to see vast portions of the English king’s outpouring of resolutions and pamphlets attacked British poli- possessions in France, including Normandy, fall to the French. cies, including revenue measures. The Americans made argu- King John also sparred with Pope Innocent III (1160/1161– ments that can be recognized as constitutional. They based their 1216) over the election of a new archbishop of Canterbury. The claims of rights firmly on Magna Carta and on English rights as pope ordered the suspension of sacraments and church services guaranteed by the early charters. Petitioning the king in 1765, in England. Faced with the pope’s threat to release the English the Stamp Act Congress declared that the rights they articulated people from their allegiance to their monarch, King John gave were “confirmed by the Great Charter of English Liberty.” In in to Innocent’s terms, including agreeing to receive the kingdom 1774 the Continental Congress traced the Americans’ rights to as a fief from the pope. At home, complaints mounted, especially the promises made in the colonial charters. about burdensome taxes and feudal obligations. Faced with open rebellion, the king reluctantly agreed to meet with the barons at LEGACY OF MAGNA CARTA Runnymede and hear their demands. These were incorporated Specific provisions of the charter have their echo in modern into the document that, sealed by the king, became what is constitutionalism. No precept in American constitutional law known as Magna Carta. has been adapted to so many uses as due process of law. Not Many of Magna Carta’s provisions deal with feudal relation- only has the Constitution’s due process clause been held to ships and thus are largely of historical interest only. Other provi- require fair procedures, but modern cases have invoked it to sions, however, anticipate some of the basic precepts of modern place substantive limits on the power of government, protecting constitutionalism. Magna Carta pays special attention to legal such interests as privacy and personal autonomy. process and how justice is to be imposed. Chapter 39 declares, More generally, Magna Carta is an early step on the path “No free man shall be taken, imprisoned, disseised [dispos- to written constitutions. Reducing rights and protections to sessed], outlawed, banished or in any way destroyed, nor will we written form is a leitmotif of American constitutionalism, as proceed against or prosecute