We are going to take a quick tour of the Constitution and highlight various parts that are both important in American history and in current events.


The Constitution is the DNA of our government, the instruction manual, the user agreement between the government and the people. It was consciously and carefully constructed to avoid many of the pitfalls the Founders had seen from government, like how the Articles created a federal government that was too weak and how their experience with the British showed them the problems associated with a strong central government that was too tyrannical.


The concept of popular sovereignty can be traced back to the democratic governments of ancient Greece. Limited government is a restatement of John Locke’s “consent of the governed”. Separation of powers is an idea popularized by the French philosopher Montesquieu during the mid-1700’s. Finally, “federalism” refers to the process by which power is shared between the states and the national government.


The Constitution contains a short Preamble that describes the scope and purpose of he federal government. Each Article gives the rules for setting up a various branch of government or for handling relationships between the states or the rules for changing (amending) the Constitution. Finally, at the end, there are the 27 amendments or changes made to the Constitution over the last 230 years.


The Preamble is the most-quoted part of the Constitution and is referenced often in popular culture, especially in an iconic “Schoolhouse Rock” episode. It outlines the purpose of our government. I see the “more perfect union” as a nod to empiricism and the Enlightenment. We’ll never create a perfect government, but our Constitution creates a system by which we can continually improve our nation – coming closer and closer to perfection.


The bicameral Congress gives us Representatives who are up for election every two years – they are basically always in election mode and are very responsive to the changing mood of the people. The Senators serve for six years – they are safe from the people for most of their term and only have to think about re-election by year 5. This compromise between a more direct (House) and less direct (Senate) version of representative democracy is typical of the Constitution. Note the enumerated powers on the right – these are the duties of Congress, the things the legislative branch is in charge of. Can they go outside those boundaries?


The Necessary and Proper clause can be interpreted in two different ways. First, some people would say “necessary and proper” only applies to the enumerated powers (taxes, war, trade etc.) listed in Article I. This strict interpretation says the federal government can only do exactly what the Constitution says it is allowed to do – and nothing more. A strict view is a conservative view. A more liberal viewpoint is a loose interpretation – we can do anything we think is “necessary and proper” as long as it isn’t unconstitutional. This loose view “stretches” the Necessary and Proper Clause to cover almost any government action. Hence, we sometimes call the Necessary and Proper clause the “elastic clause”.


One of the enumerated powers held by Congress is the ability to regulate commerce between the states. In 1789, this was the exception. In the 21st Century, it is the norm. Almost every economic transaction today is an interstate one. This expands the power of Congress. Beginning in the 1930’s and using this clause as their justification, Congress passed laws regulating the workplace (overtime, working conditions, etc.). The Supreme Court upheld the view that the enumerated power that gives Congress control over interstate trade allows them to regulate almost any area of the American economy.


Another change since 1789 is the relative size of the US military. A small home-based force in 1789 is now the world’s mightiest military. As Commander-in-Chief, our President today exerts far more power through the use and positioning of our military than George Washington ever could. This is another example of the contradictions between what is written in the Constitution and how it is interpreted and executed in the real world. As Commander-in-chief, the President can order our military into harm’s way. And if fired upon, they can fire back. He can order drone strikes. He can send the Fleet anywhere in the world – most of this can be done without the authorization of Congress. So in the 20th Century, we see situations like Vietnam, in which a war is being fought, but without a war being declared by Congress.


We will discuss the Electoral College more completely when we discuss political parties but it is fundamentally a brake put on direct democracy by the Framers of the Constitution. Each state gets a number of Electors equal to their representatives in Congress. For Wyoming, that is their two Senators plus their one Representative, totaling three electoral votes. As it is impossible to get fewer than three, the Electoral College is biased (slightly) in favor of smaller states. The winner of the state’s popular vote gets all their electoral votes. This system can result in situations as extreme as 2016 – where Clinton received 3 million more votes than Trump and still lost the Electoral College. The Electoral College was designed exactly to do this – to decrease the power of the people as expressed through direct democracy.


Judicial review is another example of the real world conflicting with the enumerated powers of the Constitution. A strict interpreter of the Constitution would not think the Supreme Court had the power to throw out any laws it deemed to be unconstitutional. But in 1803, Chief Justice John Marshall claimed that power in his ruling on Marbury v. Madison. In that the ruling helped sitting President Thomas Jefferson, he supported it and the precedent was set. Marshall used a loose interpretation of Article III Section 2 to justify judicial review but it should be noted that earlier Chief Justices never claimed the power.


Article IV deals with the relations between states. Section 1 makes state records valid in other states, which is why your North Carolina drivers license is recognized in any of the other 49 states. As for Section 2 – it is another example of slavery being built into the Constitution. It is the basis for every fugitive slave law – a Constitutional compulsion to return escaped slaves to their masters.


The Amendment process as delineated in Article V is another example of the Framers deliberately slowing the pace of democratically-driven change by requiring two super-majorities to create a new amendment to the Constitution. A 2/3rds super-majority is required to propose the Amendment and 3/4ths is required to ratify it and make it law. Article VI establishes federal law as supreme over the states and forbids religious tests for public office. Sadly, many states required voters themselves to profess a belief in Chritianity until the 1840’s (including North Carolina).


The Bill of Rights (the first Ten Amendments) create “negative” rights – they tell the government what it cannot do to you. By contrast, a positive right is something the government must provide for all its citizens. Here we are told the government can’t, for example, force you to follow a certain religion (#1) or punish you in a cruel or unusual manner (#8). These Amendments helped soothe the Anti-Federalists who were afraid the federal government under the Constitution would tend towards tyranny.


These amendments were passed after the Civil War. The 14th Amendment guarantees equal protection under the law and was used by the Supreme Court in the 20th Century as justification for removing “separate but equal” segregation and different requirements for voting in the Jim Crow South. Today, the 14th Amendment is used to justify gay marriage.


The 18th through 27th Amendments were all passed during the 20th Century. The 18th and 21st cancel each other out as one established Prohibition and the other repealed it. The 25th Amendment (not pictured) establishes procedures for removing a President who is incapacitated and cannot perform their duties.

 

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The Constitution: Resources Day 2


ActivityUnderstanding the Constitution

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