The Constitution

[ ESSENTIAL QUESTION ] What Is the Right Balance of Power in Good Government?

3 The Constitution

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MAG16_SE12_NA_Topic3.indd 1 4/3/2015 2:50:35 PM Topic 3 The Constitution

Enduring Understandings • The U.S. Constitution provides the basic principles upon which the government is constructed and operates. • The Constitution is built around six basic principles: popular sovereignty, limited government, separation of powers, checks and balances, judicial review, and federalism. • The Constitution also provides the methods required to propose and ratify amendments, allowing for changes in its laws and procedures. • The U.S. system of government is federalism, wherein the powers are divided between the National Government, with a set of powers given to it explicitly by the Constitution, and the States.

>> Opening line of the Preamble of the United States Constitution

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MAG16_SE_T03.indd 77 25/02/20 11:31 AM 3.1 The Articles of Confederation had provided the new nation with domestic and international legitimacy, at the price of a weak general government. The new Constitution created a stronger federal government with a chief executive, the power to tax, and a court system.

>> The U.S. Constitution is on display in the Rotunda of the National Archives Building in Washington, D.C. At night, it is stored in a highly secure underground vault.

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>> Objectives Understand the basic outline of the An Overview of the Constitution. Understand the basic principles of the Constitution: popular sovereignty, limited Constitution government, and separation of powers. Understand the basic principles of the Constitution: checks and balances, judicial review, and federalism. An Outline of the U.S. Constitution >> Key Terms The Constitution of the United States begins with the Preamble. bicameral Executive Article “We the People of the United States, in Order inferior courts popular sovereignty to form a more perfect Union, establish Justice, limited government constitutionalism insure domestic Tranquility, provide for the rule of law common defence, promote the general Welfare, separation of powers checks and balances and secure the Blessings of Liberty to ourselves veto and our Posterity, do ordain and establish this judicial review unconstitutional Constitution for the United States of America.” federalism James Madison —United States Constitution Alexander Hamilton Andrew Johnson The Constitution of the United States dates from the latter part of Barack Obama the eighteenth century. Written in 1787, it took effect in 1789. The fact Donald Trump that it is more than 220 years old does not mean, however, that in the twenty-first century, it is only an interesting historical artifact, best

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MAG16_SE_T03.indd 78 05/03/20 7:21 PM left to museums and dusty shelves. On the contrary, it growth and change. One of the Constitution’s greatest remains a vitally important and vibrant document. strengths is that it deals largely with matters of basic The Constitution is this nation’s fundamental law. It principle. Unlike most other constitutions—those of the is, by its own terms, “the supreme Law of the Land”— 50 States and those of other nations—the Constitution the highest form of law in the United States. of the United States is not weighted down with detailed and cumbersome provisions. Sets the Rules The Constitution sets out the basic As you read the Constitution, you will also see that principles upon which government in the United States it is organized in a simple and straightforward way. It was built and operates today. The document lays out the begins with a short introduction, the Preamble. The ways in which the Federal Government is organized, balance of the original document is divided into seven how the leaders of that government are selected, and numbered sections called articles. many of the procedures those leaders must follow as The first three articles deal with the three branches they perform their duties. Of utmost importance, it sets of the National Government: Congress, the presidency, out the limits within which government must conduct and the federal court system. These articles outline itself. the basic organization and powers of each branch, and The Constitution also lays out the basic rules of the methods by which the members of Congress, the American politics. By doing so, it helps to determine President and Vice President, and federal judges are who wins and who loses in the political arena. To really chosen. understand government and politics in this country, Article IV deals mostly with the place of the States we must know a good deal about the Constitution and in the American Union and their relationships with the how it has been interpreted and applied throughout our National Government and with one another. Article V history. indicates how formal amendments may be added to the document. Article VI declares that the Constitution is Amendments Even with its 27 amendments, the the nation’s supreme law; Article VII provided for the Constitution is a fairly brief document. Its little more ratification of the Constitution. than 7,000 words can be read in half an hour. Remember that this document has successfully guided this nation through more than two centuries of tremendous

Articles of the Constitution SECTION SUBJECT

Preamble States the purpose of the Constitution

Article I Creates the Legislative branch

Article II Creates the Executive branch

Article III Creates the Judicial branch

Article IV Relations among the States

Article V Amending the Constitution

Article VI National debts, supremacy of national law, and oaths of office

Article VII Ratifying the Constitution

>> The body of the Constitution is made up of seven articles. These articles set out the basic shape of the Federal Government. Analyze Charts What is the purpose of the first three articles?

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MAG16_SE12_NA_Topic3.indd 4 4/3/2015 2:50:38 PM The 7 articles of the original document are followed Practical The Framers had to create a two-chambered by 27 amendments, printed in the order in which each body to settle the conflict between the Virginia and the provision was adopted. New Jersey Plans at Philadelphia in 1787. Recall, the most populous States wanted to distribute the seats in CATEGORIZE Describe the basic organization of Congress in proportion to the population of each State, the Constitution and why this organization was used while the smaller States demanded an equal voice in by the Framers. Congress. Bicameralism is a reflection of federalism. Each of the States is equally represented in the Senate and Article I each is represented in line with its population in the House. Immediately, the Constitution establishes a bicameral legislature—that is, a legislature made up Theoretical The Framers favored a bicameral of two houses. It does so for historical, practical, and Congress in order that one house might act as a check theoretical reasons. on the other. Historical The British Parliament had consisted of two A leading constitutional historian recounts a houses since the 1300s. The Framers and most other conversation between Thomas Jefferson and George Americans knew the British system of bicameralism Washington at Mount Vernon. Jefferson, who had quite well. Most of the colonial assemblies and, in just returned from France, told Washington that he 1787, all but two of the new State legislatures were was opposed to a two-chambered legislature. As he also bicameral. Among the original 13 colonies, only made his point, he poured his tea into his saucer, and Georgia and Pennsylvania had unicameral colonial and Washington asked him why he did so. “To cool it,” then State legislatures. Georgia’s legislature became replied Jefferson. “Even so,” said Washington, “we pour bicameral in 1789 and Pennsylvania’s in 1790. (Only one legislation into the senatorial saucer to cool it.” State, Nebraska, has a unicameral legislature today.) As a whole, the Framers were convinced that the legislature would dominate the new National Government. As Madison observed,

THE CAPITOL

THE HOUSE 435 MEMBERS

THE SENATE Old House House Chamber The Rotunda Chamber (Statuary Senate Chamber Hall) Old Senate 100 Chamber MEMBERS

>> Congress meets in the Capitol, which has undergone several additions as both the nation and Congress have grown. Analyze Maps Why are both chambers in the same building?

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MAG16_SE12_NA_Topic3.indd 5 4/3/2015 2:50:39 PM In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches. —The Federalist No. 51

The Framers saw bicameralism as a way to diffuse the power of Congress and so prevent it from overwhelming the other two branches of government. For more than 200 years now, some people have argued that equal representation of the States in the Senate is undemocratic and should be eliminated. They often point to the two extremes to make their case. The State with the least population, Wyoming, has only some 560,000 residents. The most populous State, California, now has a population of more than 37 million. Yet each of these States has two senators. Those who object to State equality in the Senate ignore a vital fact. The Senate was purposely created as a body in which the States would be represented as coequal members and partners in the Union. >> Patricia Schroeder (D., Colorado) was the first woman from Colorado to be elected to Congress. She served in Remember, if the Framers had been unable to agree that the House of Representatives from 1973 to 1997. the States would be equally represented in the Senate, the Constitution might never have been written.

SYNTHESIZE What practical problem did the Framers solve by creating a bicameral legislature?

Article II Article II of the Constitution is known as the Executive Article, which in only a few words established the presidency. It begins this way:

The executive Power shall be vested in a President of the United States of America. —Article II, Section 1

With this one sentence, the Framers laid the basis for the vast power and influence that the nation’s chief executive possesses today. The Constitution also sets out other, somewhat more specific grants of presidential power. Thus, the President is given the power to command the armed forces, to make treaties, to approve or veto acts of >> Mount Rushmore in South Dakota features four U.S. Congress and call special sessions of that body, to send Presidents—George Washington, Thomas Jefferson, and receive diplomatic representatives, and to “take Theodore Roosevelt, and Abraham Lincoln—representing Care that the Laws be faithfully executed.” the first 130 years of U.S. history. Still, the Constitution lays out the powers of the presidency in a very sketchy fashion. Article II reads

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MAG16_SE12_NA_Topic3.indd 6 4/3/2015 2:50:41 PM almost like an outline. It has been called “the most depository of the supreme will of the loosely drawn chapter” in the nation’s fundamental law. Society. It does not define “the executive Power,” and the other grants of presidential power are couched in similarly —James Madison, Notes of Debates in the Federal Convention of 1787 broad terms. Much of our political history can be told in terms As you know, those delegates who argued for of the struggle over the meaning of the constitutional a stronger executive carried the day. The Framers phrase “executive Power”—that is, over the extent of established a single executive, chosen independently presidential power. That struggle has pitted those of Congress and with its own distinct field of powers. who have argued for a weaker presidency, subordinate to Congress, against those who have pressed for a COMPARE POINTS OF VIEW What two points of stronger, independent, coequal chief executive. view of the presidency were debated by the Framers? That never-ending contest began at the Philadelphia Convention in 1787. There, several of the Framers agreed with Roger Sherman of Connecticut, who, according to James Madison, Article III During the years the Articles of Confederation were considered the Executive Magistracy in force (1781–1789), there was no provision for federal courts or a national judiciary. The laws of the United as nothing more than an institution States were interpreted and applied as each State saw for carrying the will of the legislature fit, and sometimes not at all. Disputes between States into effect, that the person or persons and between persons who lived in different States were decided, if at all, by the courts in one of the States [occupying the presidency] ought to involved. Often, decisions by the courts in one State be appointed by and accountable to were ignored by courts in the other States. the Legislature only, which was the Alexander Hamilton spoke to the point in The Federalist eNo. 22. H described “the want of a judiciary power” as a “circumstance which crowns the defects of the Confederation.” Arguing the need for a federal court system, he added, “Laws are a dead letter without courts to expound and define their true meaning and operation.” The Framers created a national judiciary for the United States in a single sentence in the Constitution:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. —Article III, Section 1

Congress also is given the expressed power “to constitute Tribunals inferior to the supreme Court”— that is, create the rest of the federal court system—in Article I, Section 8, Clause 9. Keep in mind this important point: There are two separate court systems in the United States. On one hand,e th national judiciary spans the country with its more than 100 courts. On the other hand, each of the 50 >> Until the late 1700s, U.S. laws were interpreted States has its own system of courts. Their numbers run by State courts. In a 1735 trial, Andrew Hamilton’s well into the thousands, and most of the cases that are successful defense of John Peter Zenger set a precedent heard in court today are heard in those State, not the for freedom of the press. federal, courts.

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MAG16_SE12_NA_Topic3.indd 7 4/3/2015 2:50:42 PM The Constitution establishes the Supreme Court and leaves to Congress the creation of the inferior courts—the lower federal courts under the Supreme Court. Over the years, Congress has created two distinct types of federal courts: (1) the constitutional courts, and (2) the special courts. The constitutional courts are those federal courts that Congress has formed under Article III to exercise “the judicial Power of the United States.” Together with the Supreme Court, they now include the courts of appeals, the district courts, and the U.S. Court of International Trade. The constitutional courts are also called the regular courts and, sometimes, Article III courts. The special courts do not exercise the broad “judicial Power of the United States.” Rather, they have been created by Congress to hear cases arising out of some of the expressed powers given to Congress in Article I, Section 8. The special courts hear a much narrower range of cases than those that may come before the constitutional courts. These special courts are also called the legislative courts and, sometimes, Article I courts. Today, they >> Lillian Sing is a judge at the Community Justice Center of the Superior Court of California, San Francisco. include the U.S. Court of Appeals for the Armed Forces, This center has both a courtroom and a social-service the U.S. Court of Appeals for Veterans Claims, the center to help those in need. U.S. Court of Federal Claims, the U.S. Tax Court, the various territorial courts, and the courts of the District of Columbia.

EXPRESS PROBLEMS CLEARLY Why did the Framers see a need for the creation of a national judiciary?

Basic Principles The Constitution is built around six basic principles. The first three are popular sovereignty, limited government, and separation of powers.

Popular Sovereignty In the United States, all political power resides in the people, a concept known as popular sovereignty. The people are the only source for any and all governmental power. Government can govern only with the consent of the governed. The principle of popular sovereignty is woven throughout the Constitution. In its opening words—the Preamble—that document declares: “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” Thus, the people have given the United States >> The principle of popular sovereignty was set out in the Constitution. Analyze Political Cartoons According to Government whatever powers it has, through the the cartoon, what is citizens’ role in the government? Constitution. That government exercises those powers through popularly elected leaders who are chosen

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MAG16_SE12_NA_Topic3.indd 8 4/3/2015 2:50:44 PM by the people to represent them in the exercise of the people’s power, which is essentially what James Madison referred to as republicanism.

Limited Government The principle of limited government holds that no government is all-powerful. That government may do only those things that the people have given it the power to do. In effect, the principle of limited government is the other side of the coin of popular sovereignty. It is that principle stated the other way around: The people are the only source of any and all of government’s authority; and government has only that authority the people have given to it. The concept of limited government can be put another way: Government must obey the law. Stated this way, the principle is often called constitutionalism— that is, government must be conducted according to constitutional principles. The concept of limited government is also frequently described as the rule of law, which holds that government and its officers, in all that they do, are always subject to—never above—the >> Another basic principle of the Constitution is that law. of limited government. Analyze Political Cartoons In large part, the Constitution is a statement of How are limited government and popular sovereignty related? limited government. Much of it reads as prohibitions of power to government. For example, notice the Cartoon Constitution’s guarantees of freedom of expression. Those great guarantees—of freedom of religion, of speech, of the press, of assembly, and of petition—are vital to democratic government. They are enshrined in the 1st Amendment, which begins with the words: “Congress shall make no law. . . .”

Separation of Powers Recall that in a parliamentary system, the legislative, executive, and judicial powers of government are all gathered in the hands of a single agency. British government is a leading example of the form. In a presidential system, these basic powers are distributed—separated—among three distinct and independent branches of the government. This concept is known as separation of powers. The idea had been written into each of the State constitutions adopted during the Revolution. A classic expression of the doctrine can be found in the Massachusetts constitution written in 1780:

“In the government of this commonwealth, the legislative department shall never exercise the >> The Constitution also specifies the separation of powers. Analyze Political Cartoons How does the executive and judicial powers, or either separation of powers keep government from becoming too powerful? of them: The executive shall never exercise the legislative and judicial

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MAG16_SE12_NA_Topic3.indd 9 4/3/2015 2:50:45 PM powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” —Part the First, Article XXX

The Constitution of the United States distributes the powers of the National Government among the Congress (the legislative branch), the President (the executive branch), and the courts (the judicial branch). This separation of powers is clearly set forth in the opening words of each of the first three Articles of the Constitution. Article I, Section 1 declares: “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Thus, Congress is the lawmaking branch of the National Government. Article II, Section 1 declares: “The executive Power shall be vested in a President of the United States of America.” Thus, the President is given the law-executing, law enforcing, and law-administering >> The legislative, executive, and judicial branches are powers of the National Government. connected by a system of checks and balances. Analyze Political Cartoons What is one way the President can Article III, Section 1 declares: “The judicial Power check the powers of Congress? of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Thus, the federal courts, and most importantly the Supreme Court, interpret and apply the laws of the United States More Basic Principles in cases brought before them. The remaining three basic principles of the Remember, the Framers intended to create a Constitution are checks and balances, judicial review, stronger central government for the United States. and federalism. Yet they also intended to limit the powers of that government. The doctrine of separation of powers was Check and Balances The National Government is designed to accomplish just that. organized around three separate branches. As you have In The Federalist, No. 47, James Madison wrote of just seen, the Constitution gives to each branch its own this arrangement: “The accumulation of all powers, field of governmental authority: legislative, executive, legislative, executive, and judiciary, in the same and judicial. hands, whether of one, a few, or many . . . may justly be These three branches are not entirely separated nor pronounced the very definition of tyranny.” completely independent of one another. Rather, they The earliest of the State constitutions provided for a are tied together by a complex system of checks and separation of powers among the legislative, executive, balances. This means that each branch is subject to and judicial branches of the new governments they a number of constitutional checks, or restraints, by established. This was a reflection of the mistrust and the other branches. In other words, each branch has suspicion toward any government common to the certain powers with which it can check the operations people of the new United States in the late 1700s. Thus, of the other two. the inclusion of the doctrine of separation of powers Congress has the power to make laws, but the was both natural and inevitable in the writing of the President may veto (reject) any act of Congress. In its Constitution. turn, Congress can override a presidential veto by a two-thirds vote in each house. Congress can refuse to EXPRESS IDEAS CLEARLY Explain the concept of provide funds requested by the President, or the Senate popular sovereignty in your own words. may refuse to approve a treaty or an appointment made by the chief executive. The President is the commander

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MAG16_SE12_NA_Topic3.indd 10 4/3/2015 2:50:46 PM in chief of the armed forces, but Congress provides that of course. The President does veto some acts of military force; and so on. Congress. On rare occasions, Congress does override The system of checks and balances links the judicial a veto. And, even more rarely, the Senate does reject a branch to the legislative and the executive branches. presidential appointee. Twice in our history, the House The President has the power to name all federal judges. of Representatives has impeached (brought charges Each appointment, however, must be approved by a against) a President, seeking his removal: Andrew majority vote in the Senate. At the same time, the courts Johnson in 1868 and Bill Clinton in 1998. On both have the power to determine the constitutionality of occasions the President was acquitted by the Senate. acts of Congress and of presidential actions, and to But, again, these and other direct confrontations strike down those they find unconstitutional. are not common. Congress, the President, and even the Head-on clashes between the branches of courts try to avoid them. The check-and-balance system government do not often happen. The check-and- makes compromise necessary—and, remember, balance system operates all the time, however, and compromise is a vital part of democratic government. in routine fashion. The very fact that it exists affects Over time, the checks-and-balances system has much of what happens in Washington, D.C. worked well. It has done what the Framers intended For example, when the President picks someone it to do; it has prevented “an unjust combination of a to serve in some important office in the executive majority.” At the same time, the system of checks and branch—as, say, secretary of state or director of the balances has not often forestalled a close working Office of National Intelligence—the President is quite relationship between the executive and legislative aware that the Senate must confirm that appointment. branches of the Federal Government. So, the chief executive is apt to pick someone who very Note, however, that working relationship runs more likely will be approved by the Senate. In a similar sense, smoothly when the President and a majority in both when Congress makes a law, it does so with a careful houses of Congress are of the same political party. eye on both the President’s veto power and the power When the other party controls one or both houses, of the courts to review its actions. partisan friction and conflict play a larger-than-usual Spectacular clashes—direct applications of the part in that relationship. check-and-balance system—do sometimes occur,

CHECKS AND BALANCES

• May override a President’s veto • May impeach the President • Approves appointments of judges • May veto legislation • Approves treaties • May call special sessions of Congress EXECUTIVE LEGISLATIVE BRANCH BRANCH

• Appoints Supreme • May impeach Court justices federal judges • Appoints other • Creates lower federal judges courts

• May declare executive • May declare acts of Congress acts unconstitutional unconstitutional JUDICIAL BRANCH

>> The system of checks and balances allows each branch of government to limit the actions of the others. Analyze Diagrams How can the executive branch be checked Chart by the other two branches?

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MAG16_SE12_NA_Topic3.indd 11 4/3/2015 2:50:47 PM Through most of our history, the President and a majority of the members of both houses of Congress have been of the same party. Over the past 50 years or so, however, the American people have become quite familiar with divided government—that is, a political environment in which one party occupies the White House and the other controls one or both houses of Congress. Democrat Barack Obama had a divided government for most of his presidency. That was not the case when Republican President Donald Trump took office in 2017, however. The Republicans had captured control of the House in 2010 and of the Senate in 2014. The GOP kept their majorities in the 2016 elections, giving their party control of both the executive and legislative branches.

Judicial Review One aspect of the principle of checks and balances is of such importance in the American constitutional system that it stands by itself, as one of that system’s basic principles. The power of judicial review may be defined as the power of a court to determine the constitutionality of a governmental action. >> Judicial review is one of the six principles of In part, then, judicial review is the power to declare government established by the Constitution. Analyze unconstitutional—to declare illegal, null and void, of Political Cartoons According to this cartoon, what is the role of the judicial branch? no force and effect—a governmental action found to violate some provision in the Constitution. The power of judicial review is held by all federal courts and by most State courts, as well. to be preferred; or, in other words, the The Constitution does not provide for judicial review in so many words. Yet it seems clear that the Framers Constitution ought to be preferred to intended that the federal courts, and in particular the statute....” the Supreme Court, should have that power. In The —The Federalist No. 78 Federalist No. 51, James Madison described the judicial power as one of the “auxiliary precautions” against the In practice, the Supreme Court established the possible domination of one branch of the government power of judicial review in the landmark case of Marbury over another. v. Madison in 1803. Since Marbury, the Supreme Court In The Federalist No. 78, Alexander Hamilton wrote: and other federal and State courts have used the power in thousands of cases. For the most part, those courts ”The interpretation of the laws is have upheld challenged governmental actions. That is, the proper and peculiar province of the in most cases in which the power of judicial review is exercised, the actions of government are found to be courts. A constitution is, in fact, and constitutional. must be regarded by the judges as a That is not always the case, however. To date, the fundamental law. It therefore belongs Supreme Court has decided some 150 cases in which to them to ascertain its meaning, as it has found an act or some part of an act of Congress to be unconstitutional. It has struck down several well as the meaning of any particular presidential and other executive branch actions as act proceeding from the legislative well. The Court has also voided hundreds of actions of body. If there should happen to be the States and their local governments, including some 1,200 State laws and local ordinances. an irreconcilable variance between the two, that which has the superior Federalism As you know, the American governmental obligation and validity ought, of course, system is federal in form. The powers held by

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MAG16_SE_T03.indd Page 87 11/6/17 11:32 PM f-0209 /136/PE02971_RDG/Backlist_Reprint_Requests/NA/SE/READING/XXXXXXXXXX/Layout/Interi ... government are distributed on a territorial basis. The Keep in mind that federalism is an important part National Government holds some of those powers, of the Constitution’s web of protections of individual which it uses to fulfill responsibilities for domestic freedom. Remember, the Framers were dedicated to the policy, such as healthcare, education, and business, concept of limited government. They were convinced and foreign policy, which includes international trade (1) that governmental power poses a threat to individual and alliances with other countries. Other powers liberty, (2) that, therefore, the exercise of governmental belong to the 50 States. power must be restrained, and (3) that to divide The principle of federalism—the division of power governmental power, as federalism does, is to curb it among a central government and several regional and so prevent its abuse. James Madison addressed governments—came to the Constitution out of both this point in this passage from The Federalist Papers: experience and necessity. At Philadelphia, the Framers faced a number of difficult problems, not the least of In the compound republic of them: How to build a new, stronger, more effective America, the power surrendered by National Government while preserving the existing the people is first divided between two States and the concept of local self-government. The colonists had rebelled against the harsh rule of distinct governments, and then the a powerful and distant central government. They had portion allotted to each is subdivided fought for the right to manage their own local affairs among distinct and separate without the meddling and dictation of the king and his departments. Hence a double security ministers in far-off London. Surely, the colonists would not now agree to another such government. arises to the rights of the people. The The Framers found their solution in federalism. In different governments will control each short, they constructed the federal arrangement, with its division of powers, as a compromise. It was an alternative to both the system of nearly independent States, loosely tied to one another in the weak Articles of Confederation, and to a much feared, too powerful central government.

Who has the Power?

FEDERAL POWERS SHARED POWERS STATE POWERS • To maintain an army • To enforce laws • To conduct elections and a navy • To establish courts • To establish schools • To declare war • To borrow money • To regulate business within • To coin money • To secure the population a State • To regulate trade • To build an infrastructure • To establish local governments between States and • To collect taxes • To regulate marriage, divorce with foreign nations • To make laws • To assume other powers • To make treaties not given to the Federal Government nor denied to the States, by the Constitution

>> The Constitution divides power among the State and Federal governments Analyze Diagrams Which government has the power to provide aid to victims of a California earthquake?

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MAG16_SE12_NA_Topic3.indd 13 4/3/2015 2:50:48 PM other, at the same time that each will tribunals to prosecute persons captured in the be controlled by itself. war against terrorism, deciding that only Congress has the power to provide for the creation of such —The Federalist No. 51 court-like bodies. On what constitutional principle was this decision based? EXPRESS IDEAS CLEARLY Explain the concept of 3. Interpret Suppose two people who live in judicial review and why it is important. adjoining states are having a land dispute. Identify the article of the Constitution that addresses this ASSESSMENT issue, and explain how it addresses the problem. 4. Infer Why is it in the President’s best interest 1. Evaluate Arguments Why might some argue that to nominate federal judges favored by most the organization of the Senate is undemocratic? Senators? 2. Draw Conclusions In 2006, the Supreme Court 5. Synthesize How did the principle of federalism struck down President Bush’s plan to use military resolve the issue of national versus States’ rights?

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MAG16_SE12_NA_Topic3.indd 14 4/3/2015 2:50:48 PM 3.2 The Constitution of the United States has now been in force for more than 200 years—longer than the written constitution of any other nation in the world.

>> Students in Seattle march in a rally in support of the 26th Amendment. Congress passed the amendment in March 1971, and the States ratified it in just four months.

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>> Objectives Describe the constitutionally prescribed Amending the procedures by which the Constitution may be formally changed. Explain how the formal amendment process Constitution illustrates the principles of federalism and popular sovereignty. Understand the 27 amendments that have been added to the Constitution, and that Formal Amendment Process several amendments have been proposed but When the Constitution became effective in 1789, the United States not ratified. was a small agricultural nation of fewer than four million people. That Identify how basic legislation has added to population was scattered for some 1,300 miles along the eastern edge our understanding of the Constitution over time. of the continent. The 13 States, joined together mostly by travel on Analyze how interpretation of the horseback and sailing ships, struggled to stay alive in a generally Constitution has changed over the years hostile world. through the actions of the executive and judicial branches, and by party practices and An Enduring Document Today, well over 300 million people live in customs. the United States. The now 50 States stretch across the continent and beyond, and the country has many far-flung commitments. The United >> Key Terms States is the most powerful nation on Earth, and its modern, highly amendment Franklin D. industrialized and technological society has produced a standard of ratification Roosevelt living that has long been the envy of many other countries. formal amendment James Madison Bill of Rights George Washington How has the Constitution, written in 1787, endured and kept pace executive agreement Lyndon Johnson with that astounding change and growth? The answer lies in this treaty highly important fact: The Constitution of today is, and at the same electoral college time is not, the document of 1787. Many of its words are the same, Cabinet senatorial courtesy and much of their meaning remains the same. But some of its words Thomas Jefferson have been changed, some have been eliminated, and some have been

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MAG16_SE_T03.indd 90 05/03/20 7:21 PM added. And, very importantly, the meanings of many of purpose, in three fourths of the States. Only the 21st its provisions have been modified, as well. Amendment (1933) was adopted in this way. This process of constitutional change, of When Congress proposes an amendment, it chooses modification and growth, has come about in two basic the method of ratification. State conventions were used ways: (1) by formal amendment and (2) by other, informal to ratify the 21st Amendment, largely because the means. In this section, you will look at the first of them: lawmakers felt that the conventions’ popularly elected the addition of formal amendments to the Constitution. delegates would be more likely to reflect public opinion The Framers knew that even the wisest of on the question of the repeal of nationwide prohibition constitution makers cannot build for all time. Thus, the than would State legislators. Constitution provides for its own amendment—that Third, an amendment may be proposed by a national is, for changes in its written words. convention, called by Congress at the request of two thirds of the State legislatures—today, 34. It must then Methods of Formal Amendment Article V sets be ratified by three fourths of the State legislatures. To out two methods for the proposal and two methods this point, Congress has not called such a convention. for the ratification of amendments. So, there are four And fourth, an amendment may be proposed by a possible methods of formal amendment—changes national convention and then ratified by conventions in or additions that become part of the written language three fourths of the States. Remember, the Constitution of the Constitution itself. itself was adopted in much this same way. First, an amendment may be proposed by a two- thirds vote in each house of Congress and ratified by IDENTIFY MAIN IDEAS How does the formal three fourths of the State legislatures. Today, at least amendment process reflect the concept of federalism? 38 State legislatures must approve an amendment to maket i a part of the Constitution. Of the Constitution’s 27 amendments, 26 were adopted in this manner. Second, an amendment may be proposed by Congress and ratified by conventions, called for that

AMENDING THE CONSTITUTION

METHOD 1 METHOD 2

PROPOSED by Congress PROPOSED at a by a 2/3 vote in each house national convention called by Congress when requested by 2/3 of the State legislatures

OR RATIFIED OR RATIFIED RATIFIED by 3/4 RATIFIED by 3/4 by conventions in by conventions of the State legislatures of the State legislatures 3/4 of the States in 3/4 of the States

>> The President does not have a role in the formal amendment process.Analyze Charts Why do you think the Constitution outlines amendment methods involving Gallery Congress and State legislatures?

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MAG16_SE12_NA_Topic3.indd 16 4/3/2015 2:50:50 PM Federalism and Popular Sovereignty Note that the formal amendment process emphasizes the federal character of the governmental system. Proposal takes place at the national level and ratification is a State-by-State matter. Also note that when the Constitution is amended, that action represents the expression of the people’s sovereign will. Some criticize the practice of sending proposed amendments to the State legislatures rather than to ratifying conventions, especially because it permits a constitutional change without a clear-cut expression by the people. The critics point out that State legislators, who do the ratifying, are elected to office for a mix of reasons, including party membership, name familiarity, and their stands on certain issues. They are almost never chosen because of their stand on a proposed amendment. On the other hand, the delegates to a ratifying convention woulde b chosen by the people on the basis of only one factor: a yes-or-no stand on the proposed amendment. >> A senator stands atop a pyramid of the groups that The Supreme Court has held that a State cannot got him elected. Analyze Political Cartoons How require an amendment proposed by Congress to be might each group have contributed to his election? approved by a vote of the people of the State before it can be ratified by that State’s legislature. It made that ruling in Hawke v. Smith, in 1920. However, a State legislature can call for an advisory vote by the people before it acts, as the Court held in Kimble v. Swackhamer, in 1978.

CHECK UNDERSTANDING Why have some people criticized sending proposed amendments to the State legislatures rather than to ratifying conventions?

Proposing an Amendment The Constitution places only one restriction on the subjects with which a proposed amendment may deal. Article V declares that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.’’ When both houses of Congress pass a resolution proposing an amendment, Congress does not send it to the President to be signed or vetoed, though the Constitution would seem to require it—because when Congress proposes an amendment, it is not making law (not legislating). Although the chief executive has no formal role in the amendment process, his or her >> Inez Milholland was a labor lawyer and activist who political influence can affect the success or failure of rode in the Woman Suffrage Parade in 1913 as part of her any attempt to amend the Constitution, of course. fight to amend the Constitution to give women the right If a State rejects a proposed amendment, it is not to vote. forever bound by that action. It may later reconsider and ratify the proposal. Most constitutional scholars

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MAG16_SE12_NA_Topic3.indd 17 4/3/2015 2:50:52 PM The Bill of Rights • Freedom of religion, speech and the press The right to: 1 • Freedom to peaceably assemble and to • a speedy trial by an impartial jury petition the government 6 • be informed of the charges, to cross-examine witnesses, and to present favorable witnesses • The right to maintain a militia • an attorney 2 • The right to bear arms The right to trial by jury in any civil case where Protection from having to quarter (house) 7 soldiers in a time of peace without the the amount of money involved is $20 or more 3 consent of the owner, nor in a time of war Protection from: except as provided by law 8 • excessive bail or fines Protection against arbitrary searches and • cruel and unusual punishment 4 seizures without a proper warrant The fact that the Constitution spells out a number Protection from: 9 of civil rights does not mean that there are not • prosecution without an indictment other, unwritten, rights held by the people. • being tried for the same crime twice 5 • having to testify against oneself The powers not delegated to the Federal • the loss of life, liberty, or property 10 Government may be exercised by the States, without due process of law as long as they are not prohibited by • loss of property without just compensation the Constitution.

>> The first ten amendments protect many fundamental rights held by the people. Generate Explanations Why is it important to spell out these rights? Timeline

agree that the reverse is not true, however. Once a deadline for its ratification. The Supreme Court held State has approved an amendment, that action cannot that Congress can place “a reasonable time limit” on be undone; and no governor’s veto power extends to the ratification process in a case from California, Dillon the ratification of a proposed amendment. v. Gloss, in 1921. Congress has set a similar limit on the ratification period for each of the amendments Proposed Amendments Some 12,000 joint (except the 19th) that it has proposed since then. It also resolutions calling for amendments to the Constitution granted a three-year extension of the deadline for the have been proposed in Congress since 1789. Only 33 Equal Rights Amendment in 1979. of them have been sent on to the States. Of those, only 27 have been finally ratified. One of the unratified DESCRIBE How can the chief executive impact the amendments had been offered by Congress in 1789— formal amendment process? along with 10 other proposals that became the Bill of Rights in 1791, and another that became the 27th Amendment in 1992. The unratified amendment of 1789 dealt with the The 27 Amendments distribution of seats in the House of Representatives. As you read about the Constitution’s amendments, A second, proposed in 1810, would have voided the consider that they are quite significant, but they have citizenship of anyone accepting any foreign title or not been responsible for the extraordinary vitality of other honor. Another, in 1861, would have prohibited the Constitution. That is to say, they have not been a forever any amendment relating to slavery. A fourth, major part of the process by which the Constitution has in 1924, was intended to give Congress the power to kept pace with more than two centuries of change. regulate child labor. A fifth one, proclaiming the equal The Bill of Rights The first ten amendments were rights of women (ERA), was proposed in 1972; it fell added to the Constitution less than three years three States short of ratification and died in 1982. An after it became effective. They were proposed by amendment to give the District of Columbia seats in the first session of the First Congress in 1789 and Congress was proposed in 1978; it died in 1985. were ratified by the States in late 1791. Each of these amendments arose out of the controversy surrounding Reasonable Time Limit When Congress proposed the ratification of the Constitution itself. Many people, the 18th Amendment in 1917, it set a seven-year including Thomas Jefferson, had agreed to support the

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MAG16_SE12_NA_Topic3.indd 18 4/3/2015 2:50:52 PM Constitution only if a listing of the basic rights held by States Supreme Court. The case (Chisholm v. Georgia, the people were added to it, immediately. decided by the Court in 1793) arose out of a dispute Collectively, the first ten amendments are known as over the ownership of some land in Georgia. It had the Bill of Rights. They set out the great constitutional been brought to the brand new federal court system by guarantees of freedom of belief and expression, of a man who lived in South Carolina. freedom and security of the person, and of fair and The 12th Amendment was added in 1804 after the equal treatment before the law. electoral college had failed to produce a winner in The first ten amendments were added to the the presidential election of 1800. Thomas Jefferson Constitution so quickly that, for all intents and purposes, became the third President of the United States in they might just as well be regarded as a part of the 1801, but only after a long, bitter fight in the House of original Constitution. In point of fact, they were not. Representatives. The 13th Amendment, added in 1865, We shall look at the 1st through the 9th amendments provides another example. It abolished slavery in the at some length in later readings. The 10th Amendment United States and was a direct result of the Civil War. does not deal with civil rights, as such. Rather, it spells Slaves freed under the 13th Amendment were out the concept of reserved powers held by the States legally in limbo in regards to their rights. The 14th in the federal system. Amendment, adopted in 1868, defined citizenship as “all persons born or naturalized in the United States,” The Later Amendments Each of the other granting the former slaves citizenship. amendments that have been added to the Constitution Passage of the 14th Amendment was bitterly over the past 200 years also grew out of some contested by the southern States, who were forced to particular, and often interesting, set of circumstances. ratify it in order to regain representation in Congress. For example, the 11th Amendment declares that no The 15th Amendment later prohibited denying the vote State may be sued in the federal courts by a citizen based on a citizen’s “race, color, or previous condition of another State or by a citizen of any foreign state. It of servitude,” which granted the freed slaves the right was proposed by Congress in 1794 and ratified in 1795, to vote. after the State of Georgia had lost a case in the United The 18th Amendment, establishing a nationwide prohibition of alcohol, was ratified in 1919. Known as “the noble experiment,” it lasted fewer than 14 years. The 18th Amendment was repealed by the 21st in 1933. The 22nd Amendment (1951), limiting the number of terms in which a President may serve to two, was proposed in 1947, soon after the Republican Party had gained control of Congress for the first time in 16 years. Over that period, Franklin D. Roosevelt, a Democrat, had won the presidency four times. The 26th Amendment was added in 1971. It lowered the voting age to 18 in all elections in the United States. Many who backed the amendment began to work for its passage during World War II, creating the slogan “Old enough to fight, old enough to vote.” Its ratification was spurred by the war in Vietnam. The most recent amendment, the 27th, was written by James Madison and was among the first to be offered by Congress, in 1789. It forbids members of Congress from raising their own pay during that term. It finally became a part of the Constitution in 1992, when the 38th State, Michigan, ratified it.

SYNTHESIZE Many of the 27 current amendments were proposed in response to legal disputes, social >> The Buffalo Soldiers were members of the first conflicts, or perceived constitutional problems. What all-black regiments to serve in the U.S. Army during problem was resolved by the 12th Amendment? peacetime. Because of the 13th and 14th Amendments, they were free men and U.S. citizens.

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MAG16_SE12_NA_Topic3.indd 19 4/3/2015 2:50:54 PM Change by Other Means Surely, the Framers would be surprised to learn that only 17 amendments have been added to their handiwork since the adoption of the Bill of Rights more than two centuries ago. That so few formal changes have been made is, in part, a tribute to the wisdom of the Framers. But it is also due, in no small part, to the fact that many of the Constitution’s provisions are cast in almost outline-like form; they are brief and seldom very detailed or specific. In short, their skeletal nature virtually guarantees interpretation. So,o t understand the Constitution, you must grasp this key point: There is much in that document—in fact, a great deal—that cannot be seen with the naked eye. To put this essential point another way: Over time, many interpretations have been made in the Constitution that have not involved any changes in its written words. This vital process of constitutional change by means other than formal amendment has taken place— and continues to occur—in five key ways: through >> Gun control advocates and opponents protest (1) the passage of basic legislation by Congress; (2) outside the U.S. Supreme Court. The role of the Court actions taken by the President; (3) key decisions of the is to interpret the Constitution and determine the Supreme Court; (4) the activities of political parties; constitutionality of federal laws. and (5) custom and usage.

Basic Legislation Congress has been a major agent of constitutional change in two important ways. First, it has passed a number of laws to clarify several of the Constitution’s brief provisions. That is, Congress has added flesh to the bones of those sections of the Constitution that the Framers left purposely skeletal—provisions they left for Congress to detail as circumstances required. Take the structure of the federal court system as an example. In Article III, Section 1, the Constitution provides for “one supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish.” Beginning with the Judiciary Act of 1789, all of the federal courts, except the Supreme Court, have been created by acts of Congress. Or, similarly, Article II creates only the offices of President and Vice President. The many departments, agencies, and offices in the now huge executive branch have been created by acts of Congress. As an additional example, the Constitution deals with the matter of presidential succession, but only up to a point. The 25th Amendment says that if the presidency becomes vacant, the Vice President >> The Judiciary Act of 1789 established the federal court system and gave Congress the power to create the courts. automatically succeeds to the office. Who becomes President if both the presidency and the vice presidency are vacant? Thus, the Constitution leaves the answer to that question to Congress.

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MAG16_SE12_NA_Topic3.indd 20 4/3/2015 2:50:56 PM Second, Congress has added to the Constitution by the way in which it has used many of its powers. The Constitution gives to Congress the expressed power to regulate foreign and interstate commerce. But what is “foreign commerce” and “interstate commerce”? What, exactly, does Congress have the power to regulate? The Constitution does not say. Congress has done much to define those words, however, by exercising its commerce power with the passage of literally thousands of laws. As it has done so, Congress has, in a very real sense, expanded the Constitution.

Executive Action The manner in which various Presidents, especially the more vigorous ones, have used their powers has also contributed to the growth of the Constitution. For example, the document says that only Congress can declare war. But the Constitution also makes the President the commander in chief of the nation’s armed forces. Acting under that authority, several Presidents have made war without a declaration of war by Congress. In fact, Presidents have used the armed forces abroad in combat without >> In 1947, President Harry S. Truman signed the such a declaration on several hundred occasions in our Presidential Succession Act, which designated the history. Speaker of the House to succeed the President and Vice President if neither is able to serve. Take the use of executive agreements in the conduct of foreign affairs as another example. An executive agreement is a pact made by the President directly with the head of a foreign state. A treaty, on the other hand, is a formal agreement between two or more sovereign states. The principal difference between agreements and treaties is that executive agreements need not be approved by the Senate. They are as legally binding as treaties, however. Recent Presidents have often used them in our dealings with other countries, instead of the much more cumbersome treaty-making process outlined in Article II, Section 2 of the Constitution. Additionally, most Presidents have insisted that the phrase “executive power” in Section 1 of Article II includes much more than the particular presidential powers set out in that article. Thus, Thomas Jefferson engineered the Louisiana Purchase in 1803, doubling the size of the United States—even though the Constitution does not say that the President has the power to acquire territory.

Court Decisions The nation’s courts, most tellingly the United States Supreme Court, interpret and apply the Constitution in many of the cases they hear. You have already encountered several of these instances of >> President Obama meets in the Situation Room to plan for the war in Afghanistan. As commander in chief, the constitutional interpretation by the Court, most notably President can send U.S. troops into combat without an in Marbury v. Madison, 1803. official declaration of war. Recall that the Court established the power of judicial review—which is not specifically mentioned

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MAG16_SE12_NA_Topic3.indd 21 4/3/2015 2:50:58 PM in the Constitution. You will fi nd many more instances of constitutional interpretation—for the Supreme Court is, as Woodrow Wilson once put it, “a constitutional convention in continuous session.”

Party Practices The nation’s political parties have been a major agent of constitutional change over the course of our political history, despite the fact that the Constitution makes no mention of them. In fact, most of the Framers were opposed to political parties. In his Farewell Address in 1796, George Washington warned the people against what he called “the baneful effects of the spirit of party.” He and many others feared the divisive effect of party politics on government. Yet, even as he spoke, parties were developing. They have had a major place in the shaping of government and its processes ever since. Illustrations of that point are almost endless. Neither the Constitution nor any law provides for the nomination of candidates for the presidency. From the 1830s on, however, the major parties have held national conventions to do just that. The parties have converted the electoral college, the body that makes >> After succeeding to the offi ce of President after John the formal selection of the nation’s President, from what F. Kennedy’s 1963 assassination, Lyndon Johnson was elected President in his own right in 1964. the Framers intended into a “rubber stamp” for each State’s popular vote in presidential elections. Both houses of Congress are organized and conduct much of their business on the basis of party. The President senatorial courtesy, and it amounts to an unwritten makes appointments to offi ce with an eye to party rule that is closely followed in the Senate. Notice that politics. In short, government in the United States is in its practical effect is to shift a portion of the appointing many ways government through party. power from the President, where the formal wording of the Constitution puts it, to certain members of the Custom and Usage Unwritten customs may be Senate. as strong as written law, and many of them have Both the strength and the importance of unwritten developed in our governmental system. Again, there customs can be seen in the reaction to the rare are many examples. By custom, not because the circumstances in which one of them has not been Constitution says so, the heads of the 15 executive observed. For nearly 150 years, the “no-third-term departments make up the , an advisory body Cabinet tradition” was a closely followed rule in presidential to the President. politics. The tradition began in 1796, when George On each of the eight occasions when a President Washington refused to seek a third term as President, died in offi ce, the Vice President succeeded to that and several later Presidents followed that lead. In 1940, offi ce—most recently Lyndon Johnson, following and again in 1944, however, Franklin Roosevelt broke John Kennedy’s assassination in 1963. Yet, the written the no-third-term custom. He sought and won a third words of the Constitution did not provide for this and then, four years later, a fourth term in the White practice until the adoption of the 25th Amendment House. As a direct result, the 22nd Amendment was in 1967. Until then, the Constitution said only that the added to the Constitution in 1951, limiting the President powers and duties of the presidency—but not the offi ce to two terms. What had been an unwritten custom, an itself—“shall devolve on” (be transferred to) the Vice informal rule, became part of the written Constitution President. itself. It is a long-established custom that the Senate will approve only those presidential appointees, such IDENTIFY CAUSE AND EFFECT How has the as a federal judge or a United States marshal, who are general way the Framers laid out the provisions of the acceptable to the senator or senators of the President’s Constitution eased change throughout the last two party from the State involved. This practice is known as centuries?

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MAG16_SE_T03.indd 97 5/11/16 5:40 PM ASSESSMENT 4. Generate Explanations Why do you think only 27 amendments have been added to the Constitution 1. Make Generalizations How do the since its ratification, even though thousands have constitutionally prescribed procedures by which been proposed? the U.S. Constitution can be changed reflect the concepts of federalism and sovereignty? 5. Cite Evidence The Framers wrote the Constitution knowing that needs and customs 2. Draw Conclusions What is the purpose of the Bill would change over time. What techniques did of Rights? they use to ensure that the Constitution would, in 3. Synthesize Woodrow Wilson called the Supreme fact, be relevant for hundreds of years? Court “a constitutional convention in continuous session.” What did Wilson mean by this?

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MAG16_SE12_NA_Topic3.indd 23 4/3/2015 2:50:59 PM 3.3 You know that federal law requires young men to register for military service at age 18, that most employers must pay their workers at the least a minimum wage set by act of Congress, and that no person can be denied a job on the basis of his or her race or ethnicity.

>> The division of power between federal and State governments often requires national and local leaders, like President Trump and Michigan governor Rick Snyder (middle), to work together.

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>> Objectives Federalism: Powers Define federalism and explain why the Framers adopted a federal system instead of a unitary system. Divided Categorize powers delegated to and denied to the National Government, and powers reserved for and denied to the States, and the difference between exclusive and concurrent The Founders Choose Federalism powers. You also know that State law says that you must have a driver’s license Summarize the obligations that the in order to drive a car, that it is illegal for anyone under 21 to buy Constitution, as the “the supreme Law of the Land,” places on the National Government alcoholic beverages, and that only those persons who can satisfy with regard to the States. certain requirements can buy or own firearms. Those three examples illustrate a very complex matter: the division of the powers of government in this country between the National >> Key Terms Government, on the one hand, and the 50 States on the other. This federalism division of powers section will help you to better understand that sometimes complicated, delegated powers but very important, arrangement. expressed powers implied powers inherent powers Balancing National and State Powers When the Framers of reserved powers the Constitution met at Philadelphia in 1787, they faced a number of exclusive powers difficult questions. Not the least of them: How could they possibly concurrent powers create a new central government that would be strong enough to meet Supremacy Clause John Marshall the needs of the day and would, at the same time, preserve the already existing States? Even those founders who, like Thomas Jefferson, were not part of the Constitutional writing process, took an active interest in designing the document to meet the needs of a growing nation.

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MAG16_SE_T03.indd 99 05/03/20 7:21 PM Few of the Framers favored a strong central central government and several regional governments, government based on the British model, and all of usually called states or provinces. Each of those basic them knew that the Revolution had been fought in levels of government has its own substantial set of the name of local self-government. They also knew powers. Neither level, acting alone, can change the that the government established under the Articles of basic division of powers the Constitution has created. Confederation had proved too weak to deal with the Additionally, each level of government operates through new nation’s many problems. its own agencies and acts directly through its own While the Framers favored a stronger national officials and laws. government, they also knew firsthand the importance The American system of government stands as a of limiting federal powers. They were convinced that prime example of federalism. The basic design of that (1) governmental power inevitably poses a threat to system is set out in the Constitution. The document individual liberty, (2) that therefore the exercise of provides for a division of powers between the governmental power must be restrained, and (3) that National Government and the governments of the to divide governmental power, as federalism does, is to 50 States. That is, it assigns certain powers to the prevent its abuse. National Government and reserves others to the States. This division of powers was implied in the SUMMARIZE What set of contradictions made the original Constitution and then spelled out in the 10th development of a Constitution so complex? Amendment. In effect, federalism produces a dual system of government. That is, it provides for two basic levels of government, each with its own field of authority, and What Is Federalism? each operating over the same people and the same territory at the same time. Federalism Defined Federalism is a system of In the American federal system, each of the two government in which a written constitution divides the basic levels of government can make certain decisions powers of government on a territorial basis, between a and do certain things that the other level cannot. For example, only the Federal Government can regulate interstate commerce—that is, trade conducted between and among the various States. On the other hand, each of the States decides for itself whether those who commit certain crimes in that State can be put to death.

Strengths of Federalism Federalism’s major strength lies in this central fact: It allows local action in matters of local concern and national action in matters of wider concern. Local traditions, needs, and desires vary from one State to another, and federalism allows for differing circumstances among the States. In addition, geographic differences can have a significant impact on States’ policies. States located in earthquake zones, for example, may need to enact laws regarding earthquake-resistant building codes, while States located along the coasts may need to enact policies related to flooding, fisheries, or maritime commerce. Illustrations of this point are nearly endless. For example, in 48 States most gas stations are self-service; in New Jersey and Oregon, the law forbids motorists to pump their own gas. Only one State—North Dakota— does not require voters to register in order to cast their >> The American Revolution was fought for freedom from British control, fueling the desire of the Framers ballots. Only Nebraska has a unicameral (one-house) of the Constitution to create the right balance between legislature. Oregon and Washington are the only local and central government. States that have legalized physician-assisted suicide.

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MAG16_SE12_NA_Topic3.indd 25 4/3/2015 2:51:01 PM The Role of State and Federal Governments in Welfare Reform

1970 1988 1996 – Present State: States respond National: Congress National: The Welfare Reform Act passes in 1911 to tightening budgets passes the Family Congress and is signed by President Clinton. The State: Welfare (then by shrinking Welfare Support Act to give act creates a single capped block grant referred to called “mother’s benefits. The idea of States new oppor- as Temporary Assistance for Needy Families (TANF). pensions”) starts Welfare reform is tunities to experiment The block grants allow States to design their own at the state level in suggested in multiple with AFDC. Welfare systems within basic federal requirements. Illinois and Missouri. States.

1900 1920 1940 1960 1980 2000

1935 1988–1990 National: Federal 1935 1940–1970 National: Under the Family 1990–1995 government incorpo- State: Despite new State: Welfare rolls Support Act, States may request State: rates family assistance Federal involvement, climb in almost every waivers to experiment with new Additional (AFDC) into the Social States retain authority State while benefits Welfare programs. California, States request Security Act of 1935. to set eligibility and increase. Wisconsin, Michigan and New waivers to lower AFDC and Welfare benefit levels. Jersey petition to reduce benefits Welfare benefits are funded jointly by while creating innovative while increasing federal and state Welfare–to-work programs. Welfare-to-Work governments. programs.

>> Welfare reform has alternated between State and National governments for many years. Analyze Charts How are welfare programs now managed at both levels of government?

Only five States—Alaska, Delaware, New Hampshire, disaster. When a flood, drought, hurricane, or other Montana, and Oregon—do not impose a general sales catastrophe hits a particular State, the resources of tax. the National Government and all of the other States Federalism also allows for experimentation and can be mobilized to aid the stricken area. However, a innovation in solving public policy problems. Indeed, disadvantage of federalism is the redundancy that can the several States have long been described as so occur due to overlapping jurisdictions, as evidenced by many “laboratories of government.” New approaches to the handling of Hurricane Katrina. In this instance, the difficult matters may originate in one State and then National Government’s efforts and the State’s efforts be adopted in another or even be put in place at the were not coordinated. national level. The Welfare Reform Act passed by Congress in 1996 APPLY CONCEPTS Why are the States sometimes affords a useful illustration of the point. That landmark described as “laboratories of government?” statute revolutionized the Federal Government’s approach to providing welfare assistance to millions of Americans on the lower rungs of the nation’s economic Three Types of Federal ladder—and its basic features were first suggested by welfare administrators in the States of Wisconsin, Powers California, and Michigan. The National Government is a government of delegated In its most noteworthy provisions, the law abolished powers. That is, that government has only those the Aid to Families with Dependent Children (AFDC) powers delegated (granted) to it in the Constitution. program, replacing it with block grants to the States. There are three distinct types of delegated powers: The several States now have wide discretion in the expressed, implied, and inherent. determination of eligibility for financial assistance. While federalism allows individual States to The Expressed Powers The expressed powers are handle State and local matters, it also provides for the those powers delegated to the National Government strength that comes from union. National defense and in so many words—spelled out, expressly, in the foreign affairs offer useful illustrations of this point. So, Constitution. Those powers are also sometimes called too, do domestic affairs. Take, for example, a natural the “enumerated powers.”

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MAG16_SE12_NA_Topic3.indd 26 4/3/2015 2:51:02 PM You can find most of the expressed powers in I, Section 8, Clause 18 gives Congress the “necessary Article I, Section 8. There, in 18 separate clauses, the and proper power.” The Necessary and Proper Clause Constitution expressly gives 27 powers to Congress. says that Congress has the power They include the power to lay and collect taxes, to coin money, to regulate foreign and interstate commerce, to to make all Laws which shall be raise and maintain armed forces, to declare war, to fix necessary and proper for carrying standards of weights and measures, to grant patents and copyrights, and to do many other things. into Execution the foregoing Powers Several other expressed powers are set out elsewhere and all other Powers vested by this in the Constitution, as well. Article II, Section 2 gives Constitution in the Government of the several powers to the President—including the power United States, or in any Department or to act as commander in chief of the armed forces, to grant reprieves and pardons, to make treaties, and to Officer thereof. appoint major federal officials. Article III grants “the —Article I, Section 8, Clause 18 judicial Power of the United States” to the Supreme Through decades of congressional and court Court and other courts in the federal judiciary. And, interpretation, the words necessary and proper have finally, several expressed powers also are found in come to mean, in effect, “convenient and useful.” various amendments to the Constitution; thus, the Indeed, the Necessary and Proper Clause is sometimes 16th Amendment gives Congress the power to levy an called the Elastic Clause, because, over time, it has income tax. been stretched to cover so many different situations. Here are but a few of the thousands of examples of The Implied Powers The implied powers are the exercise of implied powers: Congress has provided not expressly stated in the Constitution, but they are for the regulation of labor-management relations, reasonably suggested—implied—by the expressed the building of hydroelectric power dams, and the powers. The constitutional basis for the implied building of the 42,000-mile interstate highway system. powers is found in one of the expressed powers. Article It has made federal crimes of such acts as moving stolen goods, gambling devices, and kidnapped persons across State lines. It has prohibited racial discrimination in granting all people access to such places as restaurants, theaters, hotels, and motels. Congress has taken these actions, and many more, because the power to do so is reasonably implied by just one of the expressed powers: the power to regulate interstate commerce.

The Inherent Powers The inherent powers are those powers that belong to the National Government because it is the national government of a sovereign state in the world community. Although the Constitution does not expressly provide for them, they are powers that, over time, all national governments have come to possess. It stands to reason that the Framers of the Constitution intended the National Government they created would also hold those several constitutional powers. The inherent powers are few in number. The major ones include the power to regulate immigration, to deport unauthorized immigrants, to acquire territory, to grant diplomatic recognition to other states, and to protect the nation against rebellion or other attempts to >> President Woodrow Wilson walking with other world overthrow the government by force or violence. leaders while negotiating the Treaty of Versailles. The One can argue that most of the inherent powers really Constitution gives the Federal Government the power to are implied by one or more of the expressed powers. negotiate and sign treaties. For example, the power to regulate immigration is Chart

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MAG16_SE_T03.indd Page 102 2/7/19 2:18 AM f-0242new /143/PE02971_HM/Backlist_Reprint_Requests/NA/SE/HUMANITIES/XXXXXXXXXX/Layout/Inte ... Examples of Powers Expressly Denied to the Federal Government POWER DENIED EXAMPLE OF ILLEGAL USE OF POWER

Levy taxes on exports The Federal Government levies a tax on coal exports from Pennsylvania to Canada.

Take private property for public use The Federal Government appropriates a farmer’s land to build without payment of compensation a highway, and offers him no compensation.

Prohibit freedom of religion, speech, The Federal Government enacts a law stating that no one may press, or assembly make a speech outside of public buildings.

Conduct illegal search or seizure The Federal Government sends an agent without a warrant to find and confiscate a business’s financial records.

Deny a speedy trial to an The Federal Government holds a suspected criminal in jail accused person without trial for two years.

>> The powers denied to the National Government are varied and extensive. Analyze Charts How is federalism preserved by the denial of these powers?

suggested by the expressed power to regulate foreign Among the many powers not granted to the trade. The power to acquire territory can be drawn from National Government are the powers to do such things the treaty-making power and the several war powers. as create a public school system for the nation, enact But the doctrine of inherent powers holds that it is not uniform marriage and divorce laws, and set up units of necessary to go to these lengths to find these powers in local government. The Constitution says nothing that the Constitution. In short, these powers exist because would give the National Government the power to do the United States exists. any of those things, expressly, implicitly, or inherently. In short, the lack of any such provision—the silence Dr aw Con cl usion s Why is it unacceptable for a of the Constitution—denies power to the National State to deport unauthorized immigrants? Government. Third, some powers are denied to the National Government because of the federal system itself. Clearly the Constitution does not intend that the National Powers Denied to the Government should have the power to take any action Federal Government that would threaten the existence of that system. For Although the Constitution delegates certain powers to example, in the exercise of its power to tax, Congress the National Government, it also denies certain powers cannot tax any of the States or any of their local units in to that level of government in order to keep federalism the conduct of their various governmental functions. If intact. It does so in three distinct ways. it could, it would have the power to destroy—tax out of First, the Constitution denies some powers to the existence—one or more, or all, of the States. National Government in so many words—expressly. Among them are the powers to levy duties on exports; Appl y Co ncept s Explain why the U.S. to take private property for public use without the Government cannot break into your home to search payment of just compensation; to prohibit freedom of for stolen goods without a warrant. religion, speech, press, or assembly; to conduct illegal searches or seizures; and to deny to any person accused of a crime a speedy and public trial or a trial by jury. Powers of the Fifty States Second, several powers are denied to the National The 50 States are the other half of the very complicated Government because of the silence of the Constitution. equation we call federalism. Their many-sided role in Recall that the National Government is a government the American federal system is no less important than of delegated powers; it has only those powers the that of the National Government. Constitution gives to it.

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MAG16_SE_T03.indd Page 103 2/7/19 2:32 AM f-0242new /143/PE02971_HM/Backlist_Reprint_Requests/NA/SE/HUMANITIES/XXXXXXXXXX/Layout/Inte ... Powers Reserved to the States Recall, the 10th Amendment states that the States are governments of reserved powers. The reserved powers are those powers that the Constitution does not grant to the National Government and does not, at the same time, deny to the States. Thus, any State can forbid persons under 18 to marry without parental consent. It can ban the sale of pornography, outlaw prostitution, and permit some forms of gambling and prohibit others. A State can require that doctors, lawyers, hairdressers, and plumbers be licensed in order to practice in the State. It can confiscate automobiles and other property used in connection with such illicit activities as drug trafficking. It can establish public schools, enact land use laws, regulate the services and restrict the profits of such public utilities as natural gas, oil, electric power, and telephone companies, and do much, much more. In short, the sphere of powers held by each State— the scope of the reserved powers—is huge. The States can do all of those things just mentioned, because the Constitution does not give the National Government >> One reserved State power is the right to issue the power to do those things, and it does not deny the licenses to various professionals, such as nurses and States the power to do them. physicians. Such a license is required to practice in that particular State. How broad the reserved powers really are can be understood from this fact: Most of what government Gallery does in this country today is done by the States (and their local governments), not by the National Government. The point can also be seen from this fact: The reserved powers include the vitally important police power—the power of a State to protect and promote the public health, the public morals, the public safety, and the general welfare. The Constitution does not grant expressed powers to the States, with one notable exception. Section 2 of the 21st Amendment gives the States a virtually unlimited power to regulate the manufacture, sale, and consumption of alcoholic beverages.

Powers Denied to the States s Ju s t a t he Constitution denies many powers to the National Government, so it denies many powers to the States. Some of those powers are denied to the States in so many words. For example, no State can enter into any treaty, alliance, or confederation. Nor can a State print or coin money or deprive any person of life, liberty, or property without due process of law. Some powers are denied to the States inherently— that is, by the existence of the federal system. Thus, >> The Texas Ranger Division is the oldest State law no State (and no local government) can tax any of the enforcement agency in the country and is an example of agencies or functions of the National Government. a State’s right to enforce order among its own people.

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MAG16_SE12_NA_Topic3.indd 29 4/3/2015 2:51:05 PM Remember, too, each State has its own constitution. Those documents also deny many powers to the States.

CHECK UNDERSTANDING Describe the breadth of powers provided to the States.

The Exclusive and the Concurrent Powers

Exclusive Powers f Most o the powers that the Constitution delegates to the National Government are exclusive powers. That is, they can be exercised only by the National Government; they cannot be exercised by the States under any circumstances. Some of these powers are expressly denied to the States—for example, the power to coin money, to make treaties with foreign states, and to lay duties (taxes) on imports. Some of them are not expressly denied to the States but are, nonetheless, among the exclusive powers of the Federal Government because of the nature of the particular power involved. The power >> The 1897 Dingly Tariff Act is an example of the exclusive power to lay duties on imports.Analyze to regulate interstate commerce is a leading example Political Cartoons What was the impact of this act of this point. If the States could exercise that power, according to this cartoon? trade between and among the States would be at best chaotic and at worst impossible.

Concurrent Powers f Some o the powers delegated to the National Government are concurrent powers. That is, they are powers that both the National Government and the States possess and exercise. Those powers include the power to levy and collect taxes, to define crimes and set punishments for them, and to condemn (take) private property for public use. The concurrent powers are held and exercised separately and simultaneously by the two basic levels of government. That is, the concurrent powers are those powers that the Constitution does not grant exclusively to the National Government and that, at the same time, does not deny to the States. The concurrent powers, in short, are those powers that make it possible for a federal system of government to function. Although government in the United States is often discussed in terms of three levels—national, State, and local—there are, in fact, only two basic levels in the federal system: the National Government and the State governments. The more than 87,000 units of local government in the United States today are subunits of the various State governments. Local governments >> Some reservoirs, such as Shasta Lake in California, can provide services, regulate activities, collect taxes, were created on land with existing homes. The land was and do many other things only because the State has claimed through eminent domain, a power shared by federal and State governments. given them the power to do so. In short, when local

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MAG16_SE12_NA_Topic3.indd 30 4/3/2015 2:51:07 PM governments exercise their powers, they are actually This Constitution, and the Laws of exercising State powers. the United States which shall be made Another way of putting all of this is to remind you in Pursuance thereof; and all Treaties of a point that we first made in Chapter 1. Each of the 50 States has a unitary form of government—an made, or which shall be made, under arrangement in which a central government that creates the Authority of the United States, local units of government for its own convenience. shall be the supreme Law of the Land;

EXPRESS IDEAS CLEARLY How do local and the Judges in every State shall governments relate to State governments? be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding. The Constitution Reigns —Article VI, Section 2

Supreme The Constitution and the laws and treaties of the As you have just seen, the division of powers in the United States are “the supreme Law of the Land.” This American federal system produces a dual system means that the Constitution ranks above all other of government, one in which two basic levels of forms of law in the United States. Acts of Congress and government operate over the same territory and the treaties stand immediately beneath the Constitution. same people at the same time. Such an arrangement is The Supremacy Clause has been called the “linchpin bound to result in conflicts between national and State of the Constitution” because it joins the National law. Government and the States into a single governmental unit, a federal government. The Supremacy Clause The Supremacy Clause The Framers anticipated is the provision in the Constitution that makes the those conflicts—and so they wrote the Supremacy complex federal system a working reality. Clause into the Constitution. That provision declares Our political history is studded with challenges to that the concept of national supremacy. In the 1950s, for example, several southern states defied a Supreme Court ruling that schools must desegregate. In fact, it was not until 1964 and the passage of the Civil Rights Act that desegregation began in any meaningful way. Those who have rejected the concept of national supremacy have insisted that the Constitution is a compact among sovereign States, rather than one among the people as a whole at the national level. They believe that the powers that compact gives to the National Government should be narrowly defined and applied.

The Supreme Court and Federalism The Supreme Court is the umpire in the federal system. One of its chief duties is to apply the Constitution’s Supremacy Clause to the conflicts that the dual system of government inevitably produces. The Court was first called to settle a clash between a national and a State law in 1819. The case, McCulloch v. Maryland, involved the controversial Second Bank of the United States. The bank had been chartered by Congress in 1816. In 1818, the Maryland legislature, hoping to cripple the bank, placed a tax on all notes issued by its Baltimore branch. James McCulloch, >> Local governments can collect taxes and provide the branch cashier, refused to pay the tax, and the some local services like fire departments, but their Maryland courts convicted him for that refusal. The authority comes from the State.

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MAG16_SE_T03.indd Page 106 9/23/19 11:01 PM f-0222 /146/PE02971_SC/Backlist_Reprint_Requests/NA/SE/SCIENCE/XXXXXXXXXX/Layout/Interio ... Supreme Court unanimously reversed the Maryland courts. Speaking for the Court, Chief Justice John Marshall based the decision squarely on the Constitution’s Supremacy Clause: [If] any one proposition could command the universal assent of mankind, we might expect [If] any one proposition could it would be this—that the government of the Union, though command the universal assent of limited in its powers, is supreme mankind, we might expect it would within its sphere of action. be this—that the government of the . . . [T]he states have no power . . . to retard, impede, burden, or in Union, though limited in its powers, is any manner control, the operations of the constitutional laws enacted supreme within its sphere of action. by Congress. . . . —McCulloch v. Maryland, 1819 —McCulloch v. Maryland, 1819

Marshall, a strong Federalist, served on the Supreme Court for more than 30 years, and he believed strongly in the importance of the Supreme Court as a force in determining the law of the land. Since the decision in this landmark case, it has been impossible to overstate the significance of the role of the Court as the umpire of the federal system. Had the Court not assumed this role, the American federal system and probably the United States itself could not have survived its early years. Justice Oliver Wendell Holmes once made that point in these words:

I do not think the United States would come to an end if we [the Court] lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. —Collected Legal Papers

The Supreme Court first held a State >> Chief Justice John Marshall established that the Constitution grants law to be unconstitutional in a case from the Federal Government implied powers for implementing its express Georgia, Fletcher v. Peck, in 1810. The powers, and that States cannot impede those powers. Court found that a Georgia law passed in 1794 that sold some 35 million acres

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MAG16_SE12_NA_Topic3.indd 32 4/3/2015 2:51:09 PM of public land for 1.5 cents an acre amounted to a 2. Compare How do the powers of the National contract between the State and Peck and other buyers. Government compare in breadth to the powers of Despite the obvious corruption involved, it found that the States? the legislature’s later (1796) repeal of the law violated the Constitution’s Contract Clause (Article I, Section 3. Identify How would President Lyndon Johnson 10, Clause 1). That provision prohibits the States the be able to justify the use of federal troops to power to pass any “Law impairing the Obligation of manage riots during the summer of 1967? Contracts.” Over the centuries since then, the High 4. Apply Anna wanted to apply for a license to Court has found thousands of State laws and local become a lawyer in the State of Alabama. Would ordinances unconstitutional, but it has upheld the she apply to the federal or State government for constitutionality of thousands of others. the license? Why?

RECALL Why is the Supremacy Clause often called 5. Check Understanding What approach did the the “linchpin” of the Constitution? Framers of the Constitution use to limit the powers of the National Government, and why was that approach successful? ASSESSMENT

1. Connect How does the Supremacy Clause impact disputes among States or between States and the National Government?

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MAG16_SE12_NA_Topic3.indd 33 4/3/2015 2:51:09 PM 3.4 Have you ever really focused on the words United States, and what those two words say? The United States is a union of States, the several States joined together, the States united.

>> Arizona’s journey to statehood took more than two years. After changing a provision in its constitution, the State was finally admitted as the 48th State on February 14, 1912.

Flipped Video

>> Objectives The National Explain the process for admitting new States to the Union. Examine the many and growing areas of Government and the cooperative federalism. Explain why States make interstate States compacts. Understand the purpose of the Full Faith and Credit Clause, the Extradition Clause, and the Privileges and Immunities Clause. The Nation’s Obligations Under >> Key Terms the Constitution enabling act The Framers of the Constitution created that union of States, and they act of admission intended to preserve it. To that end, the Constitution (1) requires the grants-in-aid National Government to guarantee certain things to the States and (2) programs categorical grants makes it possible for the National Government to do certain things for block grants the States. project grants The Constitution places several obligations on the National interstate compacts Government for the benefit of the States. Most of them are found in Full Faith and Credit Clause Article IV. extradition Privileges and Republican Form of Government The Constitution requires the Immunities Clause National Government to “guarantee to every State in this Union a William Howard Taft Republican Form of Government.” The Constitution does not define “Republican Form of Government,” and the Supreme Court has regularly refused to do so. The term is generally understood to mean a “representative government.”

SavvasRealize.com 109 Access your Digital Lesson

MAG16_SE_T03.indd 109 05/03/20 7:21 PM The Supreme Court has held that the question of whether a State has a republican form of government is a “political question.” That is, it is one to be decided by the political branches of the government—the President and Congress—and not by the courts. The only extensive use ever made of the republican- form guarantee came in the years immediately following the Civil War. Congress declared that several southern States did not have governments of a republican form, and refused to admit senators and representatives from those States until they had ratified the 13th, 14th, and 15th amendments and broadened their laws to recognize the voting and other rights of African Americans. The Constitution states that the National Government must also

protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be >> President Lincoln planned to quickly reunite convened) against domestic Violence. the nation after the Civil War. Analyze Political Cartoons How might his assassination have affected —Article IV, Section 4 reconciliation?

Cartoon Making War, Keeping Peace ts Today i i clear that an invasion of any one of the States would be met as an attack on the United States itself. This constitutional guarantee is therefore now of little significance. That was not the case in the late 1780s. Then it was not at all certain that all 13 States would stand together if a foreign power attacked one of them. So, before the States agreed to give up their war-making powers, each demanded that an attack on any one of the States would be met as an attack on all of them. The federal system assumes that each of the 50 States will keep the peace within its own borders. Thus, the primary responsibility for curbing insurrection, riot, or other internal disorder rests with the individual States. However, the Constitution does recognize that a State might not be able to control some situations. It therefore guarantees protection against internal disorder, or what the Constitution calls “domestic Violence.” The use of federal force to restore order within a State has been a rare event historically. Several instances did occur in the 1960s, however. When racial unrest exploded into violence in Detroit during the >> The Constitution guarantees the Federal Government “long, hot summer” of 1967, President Lyndon Johnson will assist States that are attacked. U.S. Army soldiers ordered units of the United States Army into the city. helped patrol New York City after the 2001 attack on the He acted at the request of the governor of Michigan, World Trade Center. George Romney, and only after Detroit’s police and firefighters, supported by State police and National

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MAG16_SE12_NA_Topic3.indd 35 4/3/2015 2:51:12 PM Guard units, could not control riots, arson, and looting in the city. In 1968, again at the request of the governors involved, federal troops were sent into Chicago and Baltimore to help put down the violence that erupted following the assassination of Martin Luther King, Jr. In 1992, President George H.W. Bush ordered members of the National Guard, the Army, and the Marines to Los Angeles to restore order after three days of rioting. The violence was sparked by the acquittal of four white officers charged with beating Rodney King, a black motorist, after he led them on a highspeed chase. Normally, a President has sent troops into a State only in answer to a request from its governor or legislature. If national laws are being broken, national functions interfered with, or national property endangered, however, a President does not need to wait for such a plea. President Grover Cleveland ordered federal troops to end rioting in the Chicago rail yards during the Pullman Strike in 1894 despite the objections of Illinois Governor William Altgeld. The Supreme Court upheld his actions in In re Debs (1895). The Court found that >> In 1963, President Kennedy sent federal troops to intervene when Governor George Wallace blocked the rioters had threatened federal property and impeded door of the University of Alabama to prevent African the flow of the mail and interstate commerce. Thus, American students from entering. more than “domestic Violence” was involved. Since then, several Presidents have acted without a request from the State involved. President Dwight Eisenhower did so at Little Rock, Arkansas, in 1957, and President State e can b deprived of its equal representation in the John Kennedy did so at the University of Mississippi United States Senate without its own consent. in 1962 and at the University of Alabama in 1963. In each of those instances, the President acted to halt INFER What compromise made it possible for the unlawful obstruction of school integration orders States to agree to give up their power to make war? issued by the federal courts. The ravages of nature—storms, floods, drought, forest fires, and the like—can be far more destructive than human violence. Here, too, acting to protect Admitting New States the States against “domestic Violence,” the Federal That new States would soon join the original 13 as Government stands ready to aid stricken areas. members of the new United States was generally accepted as fact in the 1780s. To that end, the Congress Respect for Territorial Integrity The National of the Confederation, meeting as the Framers were Government is constitutionally bound to respect drafting what was to become the Constitution, enacted the territorial integrity of each of the States. That is, the Northwest Ordinance of 1787—clearly, the most the National Government must recognize the legal important measure passed by that body in its eight existence and the physical boundaries of each State. years as the government of the United States. The basic scheme of the Constitution imposes this The ordinance anticipated the creation of new States obligation. Several of its provisions do so, as well. For in what was then known as the Northwest Territory—a example, Congress must include, in both of its houses, roughly defined area lying north of the Ohio River and members chosen in each one of the States. Recall, west of New York, Pennsylvania, and Virginia. The too, that Article V of the Constitution declares that no measure provided for the eventual Statehood of any sector in that region that acquired a population of at least 60,000 persons. Understanding that geographical differences would require unique laws and policies, it made provisions for local self-government, for civil and

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MAG16_SE12_NA_Topic3.indd 36 4/3/2015 2:51:14 PM political rights, and for the support of education. An of time, frequently more than 15 years, as an organized earlier measure, the Ordinance of 1785, had created the territory. township system for the dividing of land for the support of local schools. Its provisions were folded into the 1787 Admission Procedure The process of admission to enactment. the Union is usually simple. The area desiring Statehood The Northwest Ordinance was re-adopted by the first asks Congress for admission. If and when Congress new Congress under the Constitution in 1790, and it chooses, it passes an enabling act, an act directing served as the basis for later legislation regarding the the people of the territory to frame a proposed State nation’s territorial possessions. It established that constitution. A territorial convention prepares the those territories were not to be kept in a second-class constitution, which is then put to a popular vote in the status but were to be groomed for Statehood on an proposed State. If the voters approve the document, equal footing with the existing States. it is submitted to Congress for its consideration. If Congress still agrees to Statehood after reviewing the Congress and New States Only Congress has proposed constitution, it passes an act of admission, the power to admit new States to the Union, and the an act creating the new State. If the President signs the Constitution places only one restriction on that power: act, the new State enters the Union. A new State cannot be created by taking territory from The two newest States, Alaska and Hawaii, one or more of the existing States without the consent shortened the usual admission process. Each adopted a of the legislature(s) of the State(s) involved. proposed constitution without waiting for an enabling Congress has admitted 37 States since the original act, Hawaii in 1950 and Alaska in 1956. Both became 13 formed the Union, as the map shows. Four States States in 1959. (Kentucky, Tennessee, Maine, and West Virginia) were created from parts of already existing States. Conditions for Admission Before finally admitting a Texas and Vermont were independent republics before new State, Congress has often set certain conditions. admission. California was admitted shortly after being For example, in 1896, Utah was admitted on condition ceded to the United States by Mexico. Each of the other that its constitution outlaw polygamy, the practice of 30 States entered the Union only after a longer period having more than one spouse at a time. In admitting

Territorial Expansion N LEGEND Acquired lands W E Original 13 states WA S NH Additional states, 1776–1791 1889 VT 1788 ME 1791 Louisiana Purchase, 1803 MT ND 1820 1889 1889 MN Ceded by Britain and Spain, OR 1858 1859 ID 1818–1819 SD WI NY MA 1788 1890 1848 1788 Adjusted by Webster- WY 1889 MI RI 1790 1890 1837 Ashburton Treaty, 1842 IA PA CT 1788 NV NE 1846 OH 1787 NJ 1787 IN Texas Annexed, 1845 1864 1867 IL 1803 DE 1787 UT 1818 1816 Oregon Territory, 1846 CA 1896 CO WV MD 1788 1863 VA Ceded by Mexico, 1848 1850 1876 KS MO KY 1788 1861 1821 1792 Gadsden Purchase, 1853 NC TN 1796 1789 Purchased from Russia, 1867 AZ OK AR 1912 NM 1907 SC Hawaii Annexed, 1898 1912 1821 1788 MS AL GA 1817 1819 1788 TX LA 1845 1812 FL AK 1845 1959 Note: Dates on map indicate when new states were created. HI 1959

>> From 1776 to 1898, the U.S. acquired the land from which new States were eventually formed. Analyze Maps From which acquisition were the most States Map formed?

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MAG16_SE12_NA_Topic3.indd 37 4/3/2015 2:51:14 PM Alaska to the Union, Congress forever prohibited that State from claiming title to any lands legally held by any Native American. Each State enters the Union on an equal footing with f each o the other States. Thus, although Congress can set certain conditions like those just described, it cannot impose conditions of a political nature. For example, when Oklahoma was admitted to the Union in 1907, Congress said the State could not move its capital from Guthrie to any other place before 1913. In 1910, however, the Oklahoma legislature moved the State’s capital to Oklahoma City. When that step was challenged, the Supreme Court held, in Coyle v. Smith (1911) that Congress can set conditions for a prospective State’s admission, but those conditions cannot be enforced if they compromise the independence of a State to manage its own internal affairs. Consider one more example: President William Howard Taft vetoed a resolution to admit Arizona to the Union in 1911. He did so because Arizona’s proposed constitution provided that members of the State’s judiciary could be recalled (removed from office) by popular vote. This provision meant, said Taft, that >> Passed in 1971, the Alaska Native Claims Settlement in deciding cases a judge would have to keep one eye Act gave Alaska Natives title to lands they had used for generations. The United States paid them to give up on the law and the other on public opinion. In response claims to other lands. to the President’s concern, Arizona removed the recall section from the document. In 1912 Congress passed, and the President signed, another act of admission for Arizona. Almost immediately after admission, however, thew ne State amended its new constitution to provide for the recall of judges. That provision remains a valid part of Arizona’s constitution today.

IDENTIFY STEPS IN A PROCESS What are the usual steps required to admit a new State to the United States of America?

States and Federal Government Sharing Resources Remember, federalism produces a dual system of government, one in which two basic levels operate over the same people and the same territory at the same time. As a result of this complex arrangement, competition, tensions, and conflict are a regular and ongoing part of American federalism. In short, the American federal system is much like a tug-of-war, a continuing power struggle between the National >> A superhero, representing the Federal Government, is Government and the States. ineffective due to a shift in power to the States. Analyze Political Cartoons How does the Constitution prevent The American federal system also involves a broad this from happening? area of shared powers. That is, in addition to the two separate spheres of power held and exercised by the

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MAG16_SE12_NA_Topic3.indd 38 4/3/2015 2:51:16 PM two basic levels of government, there are large and growing areas of cooperation between them.

Federal Grants-in-Aid Perhaps the best known examples of this intergovernmental cooperation are the many federal grants-in-aid programs—grants of federal money or other resources to the States and their cities, counties, and other local units. Many of these governments are regularly strapped for funds; these grants often help them perform a large share of their everyday functions. The history of grants-in-aid goes back more than 200 years, to the period before the Constitution. In the Northwest Ordinance, the Congress under the Articles of Confederation provided for the government of the territory beyond the Ohio River and set aside sections of land for the support of public education in those future States. On through the nineteenth century, most States received grants of federal lands for a number of purposes: schools and colleges, roads and canals, flood control work, and several others. A large number of the >> In 1984, the Federal Government withheld partial major State universities, for example, were founded as funding for highway maintenance to encourage States to land-grant colleges. These schools were built with the raise the minimum drinking age to 21. States depend on federal funds for road repairs. money that came from the sale of public lands given to the States by the Morrill Act of 1862. Congress began to make grants of federal money quite early, too. In 1808, it gave the States $200,000 to support the militia, the forerunner of the present-day National Guard. Cash grants did not play a large role, however, until the Depression years of the 1930s. Many of the New Deal programs aimed at bringing the nation out of its economic crisis were built around grants of money. Since then, Congress has set up hundreds of grants-in-aid programs. In fact, more than 500 are now in operation. Dozens of programs function in a variety of areas: in education, mass transit, highway construction, healthcare, and many others. Grants-in-aid are based on the National Government’s taxing power. The Constitution gives Congress that power in order

to pay the Debts and provide for the common Defense and general Welfare of the United States. . . . —Article I, Section 8, Clause 1

Today, these grants total about $400 billion, >> The Morrill Act established land-grant colleges, and account for about a third of all State and local such as Texas A & M, to provide a practical education to students. Classes originally covered agriculture, military government spending each year. science, and engineering. In effect, grants-in-aid blur the division-of-powers line in the federal system. They make it possible for the

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MAG16_SE12_NA_Topic3.indd 39 4/3/2015 2:51:18 PM TYPES OF FEDERAL GRANTS TO STATES $ BLOCK CATEGORICAL Funds used for BROAD PURPOSES Funds used for CLOSELY DEFINED Funds used for INDIVIDUAL where States have freedom to PURPOSES with conditions set by PROJECTS that States, localities, decide how to spend the money. Federal Government. and private agencies compete for.

EXAMPLES EXAMPLES EXAMPLES • Social Services • Construction of airports • Research into diabetes treatments • Transportation • Distribution of school lunches • Implementation of an innovative educational program • Education • Construction of wastewater plants • Digitization of a local library • Support for senior centers

>> Congress has the implied power to make grants-in-aid to States and their local governments. Analyze Charts What kinds of organizations might receive a block grant?

Federal Government to operate in many policy areas a f set o guidelines tailored to the particular purpose for in which it would otherwise have no constitutional which the monies are given. authority—for example, in such fields as education, Block grants have come into wide use over low-income housing, local law enforcement, and mental the last several years. They are made for much more health. broadly defined purposes than are categorical grants— Critics of grants-in-aid have long made this point. for healthcare, social services, or welfare, for example. They also argue that the grants, which usually come They are also made with fewer strings attached, so with strings attached, often give Washington a major— State and local governments have greater freedom in and, they say, an unwarranted—voice in the making of deciding just how and on what to spend block grant public policy at the State and local levels. Conversely, dollars. From the 1980s on, many programs once proponents of grants-in-aid maintain that the many supported by separate and fragmented categorical programs and projects made possible by grants-in-aid grants have been merged into broader block grants. offset any negatives associated with the funds. Congress also provides money for project grants. These are grants made to States, localities, and Types of Federal Grants Today, Congress sometimes private agencies that apply for the grants. appropriates money for three types of grants-in-aid: The Department of Health and Human Services makes categorical grants, block grants, and project grants. many project grants—through its National Institutes Over time, most grants have been categorical. of Health, for example, to support scientists engaged Categorical grants are made for some specific, in research on cancer, diabetes, neurological disease, closely defined purpose—for school lunches or for the and other medical issues. Many State and local construction of airports or wastewater treatment plants, governments also apply for these grants to fund their for example. Categorical grants are usually made with job training and employment programs. conditions attached. These “strings” require the State to (1) use the federal monies only for the specific purpose Other Forms of Federal Aid The National involved; (2) make its own monetary contribution, Government aids the States in several other important often a matching amount but sometimes much less; (3) ways. For example, the FBI gives extensive help to State provide an agency to administer the grant; and (4) obey and local police. The army and the air force equip and

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MAG16_SE12_NA_Topic3.indd 40 4/3/2015 2:51:18 PM train each State’s National Guard units. The Census Agreements Among States Bureau’s data are essential to State and local school, housing, and transportation officials as they plan for The Constitution Reduces Interstate Frictions the future. You know that rivalries, conflicts, and jealousies among Many other forms of aid are not nearly so visible. the newly independent States was a principal reason “Lulu payments,” for example, are federal monies that for the writing and the adoption of the Constitution. go to local governments in those areas in which there The fact that the new document strengthened the hand are large federal landholdings. These direct payments of the National Government, especially with regard are made in lieu of (to take the place of) the property to trade among the States, reduced many of those taxes that those local governments cannot collect from frictions. So, too, did several of the new Constitution’s the National Government. These payments are also provisions dealing with the States’ relationships with known as PILTs (payment in lieu of taxes). one another.

State Aid to the National Government Interstate Compacts No State can enter into any Intergovernmental cooperation is a two-way street. treaty, alliance, or confederation, says the Constitution. That is, the States and their local governments also aid However, the States can, with the consent of Congress, the National Government in many ways. Thus, State enter into interstate compacts—agreements among and local election officials conduct national elections. themselves and with foreign states. These elections are financed with State and local The States made few of these agreements for funds, and they are regulated largely by State laws. several decades—only 36 of them by 1920. The number The legal process by which aliens can become has grown steadily since then, however. New York and citizens, called naturalization, takes place most often New Jersey led the way in 1921 with a pact creating in State courts. The examples go on and on. what is now the Port Authority of New York and New Jersey to manage the harbor facilities bordering both INTERPRET In what way is the American States. More than 200 compacts are now in force, and government like a “tug of war?” many involve several States. There are several interstate compacts that all 50 States have signed onto, such as the Compact for the Supervision of Parolees and Probationers and the Compact on Juveniles. These two compacts enable States to share important law-enforcement data. Other agreements cover a widening range of subjects. They include pacts that coordinate the development and conservation of such resources as water, oil, wildlife, and fish; counter the effects of global climate change; and encourage the cooperative use of public universities.

ANALYZE INFORMATION For what purpose have all fifty States joined together in interstate compacts?

How the Law Crosses State Lines In Article IV, Section 1, the Constitution commands that: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The term public acts refers to the laws of a State. >> The Four Corners monument marks the legally Records refers to such documents as birth certificates, accepted intersection of Arizona, New Mexico, Utah and marriage licenses, deeds to property, car registrations, Colorado. The location was surveyed in 1868 and was upheld by the Supreme Court in 1925. and the like. The words judicial proceedings relate

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MAG16_SE12_NA_Topic3.indd 41 4/3/2015 2:51:19 PM to the outcome of court actions: damage awards, the probating of wills, divorce decrees, and so forth. The Full Faith and Credit Clause most often comes into play in court matters. Take this example: Allen sues Bill in Florida, and the Florida court awards Allen $50,000 in damages. Bill cannot escape payment of the damages by moving to Georgia, because Allen could simply ask the Georgia courts to enforce the damage award. Nor would the case have to be retried in Georgia. Instead, the Georgia courts would have to give full faith and credit to—recognize and respect the validity of—the judgment made by the Florida court. In a similar vein, a person can prove age, place of birth, marital status, title to property, and similar facts by securing the necessary documents from the State where the record was made. The validity of these documents will be recognized in each of the 50 States.

Exceptions The Full Faith and Credit Clause is regularly observed, and it usually operates routinely between the States. There are two notable exceptions to the rule, however. First, it applies only to civil, not >> When Richard and Mildred Loving were married in 1958, interracial marriage was illegal in some States. criminal, matters. One State cannot enforce another In 1967, the Supreme Court ruled that all States must State’s criminal law. Second, full faith and credit need recognize interracial marriage. not be given to certain divorces granted by one State to residents of another State. On the second exception, the key question is always this: Was the person who obtained the divorce in fact divorces. It ruled that the couple had not in fact a f resident o the State that granted it? If so, the divorce established bona fide—good faith, valid—residence will be accorded full faith and credit in other States. in Nevada. Rather, the Court held that the couple had If not, the State granting the divorce did not have the remained legal residents of North Carolina. In short, it authority to do so, and another State can refuse to found that Nevada lacked the authority to grant their recognize it. divorces. A divorce granted by a State court to a bona fide Marriage and Divorce The matter of interstate resident of that State must be given full faith and credit “quickie” divorces has been troublesome for decades, in all other States. To become a legal resident of a State, and especially since the Supreme Court’s decision a person must intend to reside there permanently, or in a 1945 case, Williams v. North Carolina. In that at least indefinitely. Clearly, the Williamses had not case, a man and a woman traveled to Nevada, where intended to do so. each wanted to obtain a divorce so they could marry The Williams case, and later ones like it, have cast one another. They lived in Las Vegas for six weeks, dark clouds of doubt over the validity of thousands of the minimum period of State residence required by other interstate divorces. The later marriages of people Nevada’s divorce law. The couple were granted their involved in these divorces, and the frequently tangled divorces, were married, and returned to North Carolina estate problems produced by their deaths, suggest the the next day. serious nature of the matter. Problems arose when that State’s authorities refused Even the legality of some marriages differs among to recognize their Nevada divorces. North Carolina the States. Today, most States and the District of brought the couple to trial and a jury convicted each of Columbia allow same-sex unions within their borders. them of the crime of bigamous cohabitation (marrying However, 14 States have constitutional or statutory and living together while a previous marriage is still provisions prohibiting such marriages. legally in effect). In 2003, Massachusetts’ Supreme Judicial Court On appeal, the Supreme Court upheld North held that the State’s constitutional equal rights Carolina’s denial of full faith and credit to the Nevada guarantees mean that same-sex couples have exactly

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MAG16_SE12_NA_Topic3.indd 42 4/3/2015 2:51:21 PM the same marriage rights as those enjoyed by male- a State which does not recognize same-sex marriage. In female couples in Massachusetts. Soon after, nearby other words, anyone who is legally married in any State Connecticut (2005) and then New Jersey (2007) came will receive federal tax, health, and pension benefits. to the same position. The decision overturned part of the existing Defense The movement gradually gained momentum over of Marriage Act (DOMA), which had been enacted the following years, culminating in the legalization of in 1996. That law declared that only those marriages same-sex marriages by 17 States in 2014 alone. Today, that unite a man and a woman are legal in the United by court decision, legislation, or (in Maine) ballot States. It also provided that no State can be required initiative, 36 States and the District of Columbia have to give full faith and credit to any same-sex marriage legalized same-sex marriages within their borders. The performed in any other State. most recent State to do so was Florida, where a district State and National governments and agencies are judge ruled the State’s ban on same-sex unions to be still working to understand just what the 2013 ruling unconstitutional in early 2015. Shortly afterward, the really implies. There are implications for tax codes, Supreme Court agreed to hear a case that would decide health care, pensions, and many other issues that are the issue on the national level. That historic case will indirectly associated with laws surrounding marriage. be decided by the early summer of 2015. Meanwhile, many States are unhappy with the If a same-sex couple, legally married to one another Supreme Court decision and are discussing how best in one State, moves to a State where those unions to respond. are outlawed, does the Full Faith and Credit Clause require the second State to recognize the validity of APPLY CONCEPTS Barnaby stole a car in one State that couple’s marriage? That thorny question reached and fled to another. The State in which he stole the car the Supreme Court in 2013, in the case of United States demanded that the State in which he now resides must v. Windsor. In a 5–4 decision, the justices ruled that enforce its law against auto theft. Does the Full Faith States need not allow same-sex marriage, but same- and Credit Clause apply in this situation? sex couples who are legally married will be treated as marriedy b the Federal Government-even if they live in Extradition

Definition of Extradition The Constitution makes provisions for those who flee to another State to avoid punishment for a crime:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. —Article IV, Section 2, Clause 2

This clause refers to extradition, the legal process by which a fugitive from justice in one State can be returned to that State. Extradition is designed to prevent a person from escaping justice by fleeing a State.

>> Congresswoman Nita Lowey (D., NY) speaks to a Changes in Extradition Law The return of a fugitive reporter about DOMA. The Supreme Court’s decision from justice is usually a routine matter; governors in the case affected the way benefits and taxes were regularly approve the extradition requests they receive managed at State and federal levels. from other States’ chief executives. Some of those

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MAG16_SE12_NA_Topic3.indd 43 4/3/2015 2:51:22 PM requests, however, are contested. This is especially true in cases with strong racial or political overtones, and in cases of parental kidnapping of children involved in custody disputes. Until the 1980s, governors could, and on occasion did, refuse to return fugitives. In Kentucky v. Dennison (1861) the Supreme Court had held that the Constitution did not give the Federal Government any power with which to compel a governor to act in an extradition case. So, for more than a century, the Constitution’s word shall in the Extradition Clause had to be read as “may.” The Court overturned that ruling in 1987, however. In Puerto Rico v. Branstad, a unanimous Court held that the federal courts can indeed order an unwilling governor to extradite a fugitive.

SUPPORT IDEAS WITH EXAMPLES Provide an example of a situation in which the return of a fugitive from justice might be contested.

>> James Earl Ray assassinated Martin Luther King, Privileges and Immunities Jr., in June of 1968. Less than two months later, he was The Constitution also protects citizens who move caught in England with a fake Canadian passport and between the States. extradited to the United States.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. —Article IV, Section 2, Clause 1

This clause, known as the Privileges and Immunities Clause, means that no State can draw unreasonable distinctions between its own residents and those persons who happen to live in another State. Each State must recognize the right of any American to travel in or become a resident of that State. It must also allow any citizen, no matter where he or she lives, to use its courts and make contracts; buy, own, rent, or sell property; or marry within its borders.

Unreasonable Distinctions However, a State cannot do such things as try to relieve its unemployment problems by requiring employers to hire in-State residents first. Thus, the Supreme Court struck down an Alaskan law requiring employers to prefer Alaskan workers to construct that State’s oil and gas pipelines (Hicklin v. Orbeck, 1978). The Court overturned a >> Convicted murderer Chadrick Fulks being escorted California law that set the welfare benefits for newly from Indiana to West Virginia by U.S. Marshals in 2013, in arrived residents from States with lower welfare benefit order to assist the FBI in their search for the body of one of levels at a lower level than those paid to long-term his victims. residents (Saenz v. Roe, 1999).

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MAG16_SE12_NA_Topic3.indd 44 4/3/2015 2:51:23 PM of that State. So, a State can require nonresidents to pay higher fees for fishing or hunting licenses than those paid by residents—who pay taxes to provide fish hatcheries, enforce game laws, and so on. By the same token, State colleges and universities regularly set higher tuition rates for out-of-State students.

APPLY CONCEPTS Describe an example of reasonable distinction under the Privileges and Immunities Clause.

ASSESSMENT

1. Generate Explanations The Constitution requires the National Government to “guarantee to every State in this Union a Republican Form of Government,” but the Supreme Court has refused to define the term “Republican Form of Government.” Why is this the case?

2. Infer Would it be legal for Congress to allow a territory of the United States to become a full State >> In the three years it took to complete the Trans- Alaska pipeline, workers on the project from Alaska and on the condition that it choose a new governor? other States earned high salaries and endured brutal Why or why not? conditions. 3. Identify Cause and Effect While federal grants of land were common during the 19th century, cash grants-in-aid were not made until the mid-20th Reasonable Distinctions However, the Privileges century. What was the reason for this change? and Immunities Clause does allow States to draw 4. Infer What might keep a State from accepting a reasonable distinctions between its own residents and categorical grant-in-aid? those of other States. Thus, any State can require that a person live within the State for some time before he 5. Apply Concepts When Wilma moved from or she can vote or hold public office. It also can require Tennessee to Michigan, she expected no legal some period of residence before one can be licensed to obstacles to buying or renting a home in Michigan. practice law, medicine, dentistry, and so on. Was Wilma correct? Why? In another example, the wild fish and game in a State are considered the common property of the people

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1. Create a Visual Presentation Create a visual 4. Analyze the Functions of the Executive presentation describing how the painting above of James Branch Write a paragraph in which you analyze the Madison delivering the final draft of the U.S. Constitution constitutional powers of the President. Consider the to George Washington serves as propaganda for the following: the powers granted by the Constitution; why new United States of America. Consider the following the Framers established each of these as presidential information in the presentation: What was involved in powers in the Constitution; and how these powers differ the process of creating the Constitution? Who are the from those of a despot or monarch. individuals shown in the painting and what were their 5. Create a Presentation Evaluating How the stances on the issues surrounding the Constitution? How Government Fulfills the Preamble Create an oral are the Founders and delegates presented in the painting? presentation evaluating how the federal government How does the painting serve as a piece of propaganda? serves the purposes set forth in the Preamble to the 2. Identify the Contributions Write a paragraph U.S. Constitution. When creating the presentation, describing the contributions of Alexander Hamilton’s answer the following questions: Are each of the ideas about judicial review. Include the following principles as relevant to our government today as when information in your paragraph: an explanation of the they were written? Why or why not? What are some of power of judicial review as established by Marbury v. the specific ways in which the principles are upheld by Madison; a description of Hamilton’s beliefs about the our government? How are these principles meaningful in Constitution as expressed in The Federalist No. 78 and your own life? how those beliefs relate to the power of judicial review; an explanation of the importance of judicial review to the “We the People of the United States, in Order workings of the U.S. government. to form a more perfect Union, establish Justice, insure domestic Tranquility, provide 3. Analyze Legislative Branch Write a paragraph that explains the role committees play in the for the common defence, promote the general amendment process. Consider such questions as: Welfare, and secure the Blessings of Liberty What are legislative committees? How are committees to ourselves and our Posterity, do ordain and structured? What are the functions of committees? How establish this Constitution for the United are committees involved with the amendment process? States of America.” —Preamble to the Constitution

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6. Identify Major Intellectual, Philosophical, Political, 12. Describe the Constitutionally Prescribed and Religious Traditions Write a paragraph identifying Procedures Write a paragraph describing the methods how English common law and constitutionalism by which an amendment may be proposed and ratified informed the founding of America and form the basis as described in Article V of the U.S. Constitution. Why of American government. Consider the following do you think the amendment process was created to be questions: What is constitutionalism? How are so complicated? constitutionalism and limited government connected? 13. Recall the Conditions Write a paragraph describing How do constitutionalism and English common law the conditions that led to the 14th Amendment. form the basis of the concepts of liberty, rights, and Consider the following questions: Why was the 14th responsibilities of individuals? Amendment needed? What did the 14th Amendment 7. Understand the Rule of Law Analyze the rule of law guarantee? What was the significance of the 14th created by the Framers of the U.S. Constitution. Then Amendment? write a paragraph and answer the following questions: 14. Evaluate Constitutional Provisions Use the What is the rule of law? How does the rule of law protect political cartoon below to write a paragraph analyzing individual rights? How does the rule of law uphold the the cartoonist’s viewpoint about popular sovereignty. principle of limited government? Consider the following questions: What is popular 8. Create a Visual Presentation Create a visual sovereignty? What is the cartoonist suggesting about presentation that categorizes government powers how popular sovereignty affects government? How as national, state, or shared. Answer the following would you describe the bias shown, if any, by the questions: What powers does the national government cartoonist? Is the information expressed in the cartoon have in the United States? What powers do the valid? individual states have in the United States? What powers are shared by the national and state governments? 9. Understand the Limits on the National Government Write a paragraph about the limits on United States government at the national and state levels. Consider the following questions: How does the U.S. Constitution limit the powers of both the national and state governments? Why is limited government a fundamental idea of the U.S. Constitution? 10. Compare the Functions and Processes Write a paragraph describing the functions and processes of federal, state, and local governments. Consider the following questions: What are some functions and processes of the federal government as laid out in the Constitution? What are some of the functions and processes reserved for state and local governments as laid out in the Constitution? In general, how do the functions and processes of the federal government compare to the functions and processes of state and local governments? 11. Explain the Major Responsibilities Write a paragraph describing the federal government’s responsibilities in regard to the states. Consider the following in the paragraph: insurrection, riots, and other internal disorder; natural disasters; why the national government has these responsibilities.

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MAG16_SE_NA_T03_TRAS.indd Page 122 2/7/19 2:41 AM f-0242new /143/PE02971_HM/Backlist_Reprint_Requests/NA/SE/HUMANITIES/XXXXXXXXXX/Layout/Inte ... 15. Create a Project Create an annotated timeline, Web “The judicial Power of the United States shall site, poster, or other type of project on the role of the be vested in one supreme Court, and in such amendment process in a constitutional government. inferior Courts as the Congress may from time Choose an amendment that has been proposed in the to time ordain and establish.” twenty-first century and research why the amendment —Article III, Section 1 was proposed, who proposed it, and the process of the amendment. Use the following process: Ask 20. Explain Why the Founding Fathers Adopted a questions about the circumstances that led to the Federal System Write a paragraph explaining why amendment proposal and explore the issues. Plan the the Founders chose a federal system of government. project by outlining goals and objectives. Research the Consider the following questions: What is a federal amendment proposal using primary and secondary system of government? What is a unitary system of sources. Create the project. Improve the project by government? What factors played a role in influencing editing and reevaluating the goals and objectives. Draw the Founders’ choice of system? Why did the Founders a conclusion about the role of the amendment process choose a federal system over a unitary system? in a constitutional government. Present the project. 21. Explain Certain Provisions of the U.S. 16. Explain the Importance Write a paragraph explaining Constitution Review the checks-and-balances system why having a written constitution is important. Consider established by the U.S. Constitution. Then write a the following questions: Why is a written constitution paragraph that answers the following question: How important for individuals? Why is a written constitution does the system of checks and balances established by important for the government? Can a country function the U.S. Constitution make compromise necessary? without a written constitution? Why or why not? Consider documents such as the U.S. Constitution and 22. Analyze the Functions of the Judicial Branch the Bill of Rights when writing your response. Write a paragraph analyzing the structure and functions of the federal court system. Consider the following 17. Identify American Beliefs and Principles Write a questions: What are the two types of courts that make paragraph describing how the U.S. Constitution reflects up the inferior courts? How are they structured within American beliefs and principles and establishes a both a the judicial branch of the federal government? List one national and a federal identity. Consider such things as: example of each type of inferior court and describe its what American beliefs and principles are; the details in function. Why is a federal court system necessary? the Constitution that relate to the nation as a whole; and the details in the Constitution regarding the relationship 23. Analyze the Federal System of between the national government and the states. Government Analyze advantages and disadvantages of a federal system of government. Write a paragraph 18. Explain How Political Divisions Are Crafted Write expressing your opinion on the effectiveness of the a paragraph explaining how political divisions formed United States’ federal system as a form of government. through the process of admitting states into the Union. Consider such things as: division of power; how each Make sure to: describe the political division crafted level operates; conflicts between national and state in this process; explain the role of the Northwest governments. Ordinance of 1787 in establishing the process; and describe the relationship between the existing states 24. Create a Written Presentation Create a written and a newly admitted state. presentation about the conflict between the national and state governments on the issue of same-sex marriage. 19. Analyze Information Use the following quote to write a Consider the following questions: What is the legality of paragraph to describe the circumstances leading to the same-sex marriage among the states? What is DOMA? formation of a national judiciary. Consider the following: How did the case of United States v. Windsor influence the provisions for a federal court system in the Articles of the recognition of same-sex marriage? Which level of Confederation; the reasons why a federal court system government do you think should have jurisdiction over was necessary; and the effect of filling that need. this issue?

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25. Create a Written or Oral Presentation Select forces, or in the Militia, when in actual service one of the Federalist Papers (No. 10, 39, or 51) and in time of War or public danger; nor shall analyze it and its Anti-Federalists’ counterargument on any person be subject for the same offence to the governmental principle it addresses. Also identify be twice put in jeopardy of life or limb; nor elements within the essays that could be viewed as shall be compelled in any criminal case to be propaganda. Consider the following: the views of a witness against himself, nor be deprived of the Federalists and Anti-Federalists; the Federalist life, liberty, or property, without due process Papers No. 10, No. 39, or No. 51; Anti-Federalist of law; nor shall private property be taken for counterarguments made in Centinel No. 1 or Brutus No. 1; the ratification process of the U.S. Constitution; and public use, without just compensation.” how these arguments were used as propaganda during —Amendment V, Bill of Rights the ratification process. 26. Identify Freedoms and Rights Use the Amendment 27. Write About the Essential Question Write an below to write a paragraph describing the freedoms essay on the Essential Question: What is the protected by the 5th Amendment. Make sure to: identify right balance of power in good government? Use the five protections guaranteed by the 5th Amendment; evidence from your study of this Topic to support your explain how these protections place limits on the answer. government.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval

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