In two major Second Amendment cases in 2008 and 2010, the U.S. Supreme Court struck down a broad ban on handguns in the District of Columbia and found that states, as well as the federal government, were required to abide by Second Amendment protections of the right to bear arms.
This right is guaranteed in the Constitution. This brief document established an enduring system of government. However, debate over its meaning continues today. In this chapter we will learn much more about our Constitution.
In this chapter, we discuss our constitutionally arranged system of separation of powers and checks and balances, as well as how special-interest groups and political parties try to circumvent these protections.
We will see how the judiciary came to be widely accepted as the final interpreter of constitutional meaning and the way both the executive and the legislature have used the Constitution to pursue their own ends.
Finally, we examine the difficult process through which citizens can amend the Constitution. As the Framers intended, it is no small feat, and one that is an important factor in the stability of our Constitution.
The Constitution’s basic structure is straightforward. Despite its brevity, the Constitution firmly established the Framers’ experiment that each generation reinterprets and renews. That is why, after more than 225 years, we have not had another written Constitution.
Part of the reason is the public’s widespread acceptance of the Constitution. The Constitution has also endured because it’s a brilliant structure for limited government and one that the Framers designed to be both adaptable and flexible.
The Constitution stands for liberty, equality, and limited or expanded government—indeed, it stands for just about anything anyone wants to read into it. The Constitution has taken on the aura of natural law—law that defines right from wrong. This is higher than human law. The Constitution has become a symbol of national unity and loyalty, evoking both emotional and intellectual support from Americans, regardless of their differences. The Constitution is more than a symbol, however. It is the supreme and binding law that both grants and limits powers.
Even today, U.S. citizens generally revere the Constitution, even though many don’t know what’s in it.
You can view the original U.S. Constitution at the National Archives in Washington, D.C.
James Madison was the fourth president of the United States (1809–1817) and an author of The Federalist Papers. Madison’s view on a separated system of government, in which each branch checks and balances the power of the other branches, shaped our governmental structure.
Now, let’s have a review question based on what we’ve just gone over.
The Constitution was vague for a reason. The Framers knew that it had to be flexible enough to meet changing times, but also strong enough to endure.
The U.S. Constitution separates power vested in the three branches of our government. The legislature has the power to create law. The executive has the power to enforce the law. And the judiciary interprets the law. None of the branches depends on the others for its authority, and each branch has the power to limit the others.
Competing interests within this structure check and balance one another. Political parties may sometimes overcome the separation of powers, especially if the same party controls both houses of Congress and the presidency. Typically, this is not the case, however, and a divided government intensifies checks and balances. Presidential power, which has increased over time, has sometimes overcome restraints the Constitution imposes on it.
The separation of powers is the distribution of constitutional authority among the three branches of government. It is the first step against tyranny of the majority. Political philosophers read by the educated citizens of the era, including John Locke and Baron Montesquieu, wrote about the intrinsic value of the dispersion of power.
The colonists had avoided concentrating power in their colonial governments, and their bad experiences with this confirmed their belief in the separation of powers.
Activity: Ask your class to list specific examples of the concepts of separation of powers, and checks and balances among the legislative, executive, and judicial branches. Using modern presidencies as a reference, ask your students to evaluate whether the checks and balances designed by the Framers of the Constitution are adequate to prevent the abuse of executive power.
The Framers added a system of checks and balances to the separation of powers. Madison’s idea to avoid autocracy, one person with unlimited power, was to give each branch the constitutional power to check the others. For example, Congress enacts legislation, which the president can either sign into law or veto.
Each branch is also politically independent of the others. Voters in each local district choose members of the House. Voters in each state choose senators. And the president is elected by the voters in all the states, through the Electoral College. The president appoints federal judges with the consent of the Senate.
The Framers also ensured that a majority of the voters could win control over only part of the government at one time. In an off-year (nonpresidential) election where a new majority might take control of the House of Representatives, the president still has at least two more years, and senators hold office for six years.
Let’s look at this table about some checks. Does the relative infrequency of veto overrides surprise you? Why or why not? Are there other checks Congress can use against the president?
Let’s examine the checks and balances. The judiciary can check both Congress and the president by declaring laws unconstitutional.
The president can check the power of Congress by vetoing legislation. Congress can check the power of the president by overriding his veto.
What are some other examples of checks and balances?
Political parties can serve as unifying factors, but strong allegiance to one’s own political party, called partisanship, often leads to an unwillingness to compromise with members of the opposing party.
Partisanship is intensified in situations of divided government, when one party controls Congress and the other party controls the White House. But research seems to indicate that just as many are passed during this as during unified government, when one party controls both the legislature and the presidency.
The Electoral College was another provision of the Constitution meant to buffer against the majority. The Framers wanted the Electoral College, a system in which electors chosen by state legislatures choose the president, rather than leaving the job to ordinary citizens. That system is undermined now by the fact that most states pledge their electoral votes to the candidate who wins the popular vote in that state.
The kind of people allowed to vote has expanded from free, white, property-owning males to include all citizens over the age of 18.
Since the ratification of the Seventeenth Amendment in 1913, senators are no longer elected by state legislatures but are chosen directly by the people.
Because of new technologies, today’s system of checks and balances operates differently from the way it did in 1789. We live in a time of instant electronic communication. Polls tell us what people are thinking about public issues almost from one day to the next.
These new technologies have added to the powers of presidents by permitting them to appeal directly to millions of people and giving them immediate access to public opinion.
New technologies have also given greater independence and influence to nongovernmental institutions such as special-interest groups and the press.
Voters now reflect the changing demographics of the United States. What effect might their increased participation have on elections?
In 2012, Linda McMahon, former CEO of World Wrestling Entertainment, used her personal fortune to outspend her primary challenger for an open Senate seat in Connecticut at a rate of nearly 12 to 1. What effect does money have on elections?
Today, problems elsewhere in the world—Afghanistan, Israel, Pakistan, Iran, and North Korea, for example—often create crises for the United States. The need to deal with perpetual emergencies has focused power in the hands of the chief executive. The president of the United States has emerged as the most significant player on the world stage.
Drawing on constitutional, political, and emergency powers, the president can sometimes overcome the restraints the Constitution imposes on the exercise of governmental power—to the applause of some and the alarm of others.
Here’s a quick question about the previous section.
The Framers feared tyranny, having fought a war against a king. They not only separated the powers of the three branches, but also created a system of checks and balances.
Judicial review is the power of the courts to strike down acts of Congress, the executive branch, and the states as unconstitutional. This authority provides the judiciary a powerful check on the other branches of government.
In deciding that it lacked the jurisdiction to order delivery of a judicial commission, the Supreme Court, in Marbury v. Madison, established its authority to rule an act of the federal legislature unconstitutional. The Court’s decision greatly enhanced the role of the judiciary in a separation-of-powers system.
Who has the authority to decide disputes over the meaning of the Constitution? The document itself does not say. Today, most scholars agree that the Framers intended for the Supreme Court to have this power. The Federalists agreed, but the Jeffersonian Republicans, descendants of the Anti-Federalists, thought that state legislatures should have this power.
The Jeffersonian Republicans won the presidency and both houses of Congress in 1800, but the justices on the Supreme Court, who were appointed for life, remained Federalists.
On his last day in office, president John Adams appointed a slate of federal judges, “packing” the courts with Federal judges. The commissions had been approved by Congress. When new president Thomas Jefferson saw that these commissions had not been delivered by the outgoing secretary of state, he decided to ignore them.
One of the newly appointed justices who never received his commission, William Marbury, appealed to the Supreme Court to issue a writ of mandamus, and order the secretary of state to deliver the commission.
Chief Justice John Marshall feared that if the Court issued the writ, Jefferson and Madison would ignore it. The Court would be powerless. If the Court refused to issue the writ, the judges would appear to support the Jeffersonian Republicans’ claim that the Court had no authority to interfere with the executive.
In a brilliant decision, Marshall declared that the Court had no authority to issue the writ because the law authorizing it to do so was unconstitutional.
Marbury did not receive his commission. Marshall and the Court gained an important power: to declare laws passed by Congress unconstitutional. The Court strengthened its position as the interpreter of what is constitutional.
Chief Justice John Marshall (1755–1835) is our most influential Supreme Court justice. Marshall did not say that the Court was the only interpreter of the Constitution, but his assertion for federal judicial power to interpret and apply the Constitution gave the Courts more power.
If you recall, we talked about gun ownership in the chapter opener. Interest groups can file lawsuits to challenge policies. They use the courts to bring about change, without having to get a bill passed in Congress.
In this photo, a man shops for his first handgun following the Supreme Court’s 2008 decision affirming individual citizens’ right to own handguns, and thus making it more difficult to restrict gun ownership.
Let’s test your comprehension of the most recent section.
This case gave the Court the power to determine whether laws passed by Congress were constitutional. This greatly expanded the power of the judiciary.
The Constitution is the framework of our governmental system. The constitutional system has been modified over time, adapting to new conditions through congressional elaboration, presidential practices, and judicial interpretation.
Some jurists believe the Constitution is a static document with a set meaning. They tend to interpret the Constitution according to a close reading of the text or what they think the Framers intended, filtered by their own ideology and policy preferences. Others consider the document’s meaning to evolve with time and changing circumstances.
Activity: Ask students to bring in a news story from the previous week to illustrate a point of contention over the U.S. Constitution. Use these clippings as the basis for class discussion, focusing on how the Founders left the Constitution flexible for future generations. Examples might include gun control (the Second Amendment), the rights of criminal procedure and due process, or the implied right to privacy.
It is not necessary to amend the Constitution every time a change is needed. Congress can use the “necessary and proper clause” to create legislation to clarify vague points or expand upon powers. For example, the Constitution creates the Supreme Court and authorizes Congress to create whatever lower federal courts are needed. Congress did just that with the Judiciary Act of 1789.
The Constitution allows Congress to remove federal officials, such as the president and justices of the Supreme Court, for “treason and other high crimes and misdemeanors.” It is up to Congress to determine what offenses are impeachable. Congress has tried to impeach two presidents so far, both unsuccessfully.
Congress is also authorized by the Constitution to regulate interstate commerce. But what is commerce? And what makes a commercial transaction interstate? Interpretations have varied widely.
Although the formal constitutional powers of the president have not changed, the office is dramatically more important and more central today than it was in 1789. Vigorous presidents have stretched the powers of the office, especially in times of crisis.
A major practice of modern presidents is the issuance of executive orders. These are directives issued by the president that carry the full force of law. Presidents have long used these orders to achieve goals that may lack congressional support.
Other presidential practices include executive privilege. This is the right to confidential executive communications, especially those that relate to national security. Although controversial, the Supreme Court has sanctioned its use in certain circumstances.
Impoundment is the practice by a president of not using funds previously appropriated by Congress. Congress has taken steps to curb this practice.
In Marbury v. Madison, the Supreme Court established its responsibility to interpret the Constitution. In numerous cases since, the courts have made decisions that have settled, at least for a time, what some of the vague clauses of the document mean. But new justices make new interpretations, so individual decisions may be overturned at any time.
Some justices interpret the Constitution using what they call an “originalist” approach. This approach envisions the document as having a fixed meaning that might be determined by a strict reading of the text or the Framers’ intent.
A second, adaptive approach to interpreting the Constitution sees it as changing and evolving, and providing a basic framework for government but allowing new generations to interpret ideas in light of the needs of their time.
Activity: Divide your class into two groups to debate the “original intent” and “contemporary ratification” perspectives on the U.S. Constitution. Each team should be assigned to defend one the two positions.
In the opinion of the class, is the “original intent” or “contemporary ratification” philosophy toward the U.S. Constitution more valid? Which of these two theories is more likely to play itself out in today’s political culture? Which justices are most likely to favor original intent?
Now for another quick review question.
The president can bypass Congress by issuing executive orders.
Although adaptable, the Constitution itself needs to be altered from time to time, and the Framers provided formal amendment procedure. An amendment must be both proposed and ratified: proposed by either a two-thirds vote in the House and Senate, or by a national convention of the legislatures in two-thirds of the states; ratified either by the legislatures in three-fourths of the states or by special ratifying conventions in three-fourths of the states.
There are two methods of proposing amendments to the Constitution, but only one has been used. Out of 31 amendments formally voted upon in both houses of Congress, 27 have received the required two-thirds majority.
This graphic shows the amendment processes. Why do you think Congress has been reluctant to call for a national constitutional convention?
Why do we attempt to amend such a flexible document? Congress has sometimes attempted to pass popular laws that have subsequently been ruled unconstitutional by the Court. One example is flag burning.
The Court has ruled that flag burning is protected as form of expression under the First Amendment. But a Constitutional amendment to ban it has wide support in some areas of the country. And members of Congress have introduced it repeatedly to gain favor with their constituents.
What do you think? Is an amendment to the Constitution prohibiting flag burning needed?
Overall, have constitutional amendments resulted in a stronger or weaker federal government than was established in the Constitution?
After Congress has proposed an amendment, the states must ratify it before it takes effect. Again, the Constitution provides two methods, and Congress may choose approval by the legislatures in three-fourths of the states, or approval by special ratifying conventions in three-fourths of the states. Congress has submitted all amendments except one—the Twenty-First (to repeal the Eighteenth, the Prohibition Amendment)—to the state legislatures for ratification.
Congress stipulates that ratification must occur within seven years of the date it submits an amendment to the states.
Why did the 27th amendment take 203 years to ratify? Is there a good reason for limiting ratification to 7 years?
The Framers intended that amending the Constitution should be difficult, and the Equal Rights Amendment ratification battle demonstrates how well they planned.
The ERA simply stated that, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
At first, it seemed sure to pass, and 22 states approved it immediately. But after fierce opposition from conservative activists, despite extensions on the deadline, the amendment fell three states short of the 38 needed for ratification.
Although the Equal Rights Amendment failed to be ratified by the 1982 deadline, men and women continue to lobby for equal rights.
Here’s a question to test your comprehension about amendments.
There are twenty-seven amendments to the Constitution; ten of these amendments belong to the Bill of Rights.