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II. THE LIVING CONSTITUTION

II. THE LIVING CONSTITUTION. A. Articles of Confederation 1. The first federal constitution adopted in 1781 by 13 states to establish the POWERS of the new government. 2. Among numerous weaknesses, this did not provide for a PRESIDENT .

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II. THE LIVING CONSTITUTION

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  1. II. THE LIVING CONSTITUTION

  2. A. Articles of Confederation 1. The first federal constitution adopted in 1781 by 13 states to establish thePOWERS of the new government. 2. Among numerous weaknesses, this did not provide for aPRESIDENT. 3. The group most likely to approve of the Articles of Confederation would be those who feared aSTRONG CENTRALGOVERNMENT.

  3. Placed most power with STATE GOVERNMENTS. • To ratify (TO FORMALLY APPROVE AND ACCEPT) any amendments, required all 13 states endorsements. • 6. Each state had only a single vote in a UNICAMERAL (ONE-HOUSE) Congress. B.Constitutional Convention 1. Met in Philadelphia May 1787

  4. James Madison, of Virginiawas called the"FATHER OF THE CONSTITUTION. It was partly through his insistence that • the Bill of Rights, consisting of • the first ten amendments, was • adopted. 3. Great Compromise: a. A major compromise over representation of large and small states. b. Created a BI-CAMERAL (TWO-HOUSE) legislature

  5. 1) The Senate would be represented by allowing TWO SENATORS from each state, allowing small states to have equal voice with large states. 2) The House of Representatives would be represented according to POPULATION. c. THREE-FIFTHS COMPROMISE: counted each slave as three-fifths of a person. C. In 1789 the Constitution became the "SUPREME LAW OF THE LAND".

  6. 1. Created three (3) branches of government and duties of each branch: a. ARTICLE I: created two houses of Congress (LEGISLATIVE) to make laws Ex: The power of Congress to create an air force is not written in the Constitution. However, Congress had the authority to create one, as part of its EXPRESSEDPOWERS, the Necessary and Proper clause, to support armies.

  7. b. ARTICLE II: created office of PRESIDENT (EXECUTIVE) to carry out laws; the president can “check” Legislative actions by rejecting the legislation. The Constitution says that the President must be at least 35 YEARS OLD, and the 12thAmendment says that no person who is ineligible to be President may be Vice President. Therefore, the Vice President must be at least 35 years old.

  8. c. ARTICLE III: created federal JUDICIARY (JUDICIAL) to interpret laws 2. The ability to AMEND (TO CHANGE) the Constitution made it a “LIVINGCONSTITUTION” 3. Woodrow Wilson often referred to the Constitution as a "VEHICLE OF LIFE." 4. The first ten amendments of the U.S. Constitution are referred to as the BILL OFRIGHTS. First eight amendments spelled out personal liberties.

  9. a. 1st AMENDMENT: freedom of religion, speech, the press, peaceable assembly, and petition; b. 2nd AMENDMENT: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." c. 3rd AMENDMENT: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner...."

  10. d. 4th AMENDMENT: "The right of the people to be secure in their persons, houses, papers, and effects...." e. 5th through 8th AMENDMENT: guarantee fair treatment for individuals accused of crimes f. 9th and 10th AMENDMENT: placed general limits on the powers of federal government; any powers not given to the federal government are reserved for the states. g. While the Bill of Rights guarantees the rights of INDIVIDUALS AND STATES, it also reflects the fears of individuals having too many FREEDOMS.

  11. 5. Supreme Court Decisions relating to Constitution: a. Justice John Marshall in MCCULLOCH V. MARYLAND described the Constitution as "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." b. The court’s decision in MARBURY V. MADISON (1803) established the power of judicial review. The specific power of JUDICIAL REVIEW (doctrine under which the legislative and executive actions are subject to review) is not addressed in Article3 of the Constitution. Judicial review gives the courts the power to determine the constitutionality of laws.

  12. 6. Major principles that appear in the U.S. Constitution include: a. principles of FEDERALISM(power is divided between the national and state governments), b. SEPARATION OF POWERS (between the three branches of government) and c. CHECKS AND BALANCES (the ability of each of the three branches of government to regulate and monitor the power of the others) of each branch of government.

  13. 7. The Constitution gave Congress the power “to make all laws which shall be necessary and proper” to carry out its powers. It is also considered to be a FLEXIBLE DOCUMENT in that it contains an ELASTIC CLAUSE (Article I, section 8): also known as the "NECESSARY AND PROPER" clause. The elastic clause allowed the government to stretch its powers to meet new needs of the nation, by giving Congress the right to exercise powers notSPECIFICALLY LISTED IN THE CONSTITUTION. This clause was used by Alexander Hamilton in arguing for the creation of a national bank.

  14. 8.The Constitution is called a LIVING DOCUMENTor dynamic document; a document which may be continually edited and evolve through UPDATES, BEING EXPANDED AS NEEDED,and serving a different purpose over time. There are three ways in which the Constitution is a "living" document:

  15. a. FORMAL AMENDMENT PROCESS is how amendments are added to the Constitution. Article V details the two methods to propose an amendment and the two methods to RATIFY (formally approve and accept) an amendment. The amendment processmost directly allows for the safeguard of INDIVIDUAL LIBERTIES. It keeps them honest in that the states must approve of any amendments by a three-fourths vote.

  16. INFORMAL AMENDMENT PROCESSinclude all of the following: • 1) basic legislation passed byCONGRESS,EXECUTIVE AGREEMENTS, AND COURT DECISIONS. Congress has the power to pass whatever legislation it can within its restraints. This includes any and all acts such as the JUDICIARY ACT OF 1789 AND THE CIVIL RIGHTS ACT OF 1964.

  17. 2) The President can use EXECUTIVE AGREEMENTS in dealing with foreign affairs and powers. An executive agreement is a contract made by the President with the HEAD OF A FOREIGN STATE. They are not subject to Congress' approval. Throughout the nation's history, court decisions have had a great influence over the emergence of new LAWS, PRACTICES, OR INTERPRETATIONS. Informal amendments have played decisive roles in the evolution of the government.

  18. CUSTOM, USAGE, AND TRADITION:the ways in which various parts of the government react to new circumstances. Past customs of previous administrations have limited today's administrations. • For example, delivering the State of the Union Address every year at approximately the same time is derived from custom. Article II, Section 3 merely states that: "he shall from time to time give to the Congress Information of the State of the Union." Nowhere is it mentioned that this must do this at a certain time. This is a custom.

  19. Usage of certain pieces of legislation has also changed the Constitution. For example, the WAR POWERS RESOLUTION OF 1973 has never truly been enforced. Parts of it have been used before but no President has ever been strictly held to the resolutions provisions.

  20. Tradition is another tool for expanding the Constitution. For example, there is the one involving the relationship between the PRESIDENT AND THE SENATE. When George Washington became President, at first, he asked the Senate for advice in the preparation of some treaties. The Senate basically laughed in his face and no President has ever since asked the Senate for advice with regards to treaties.

  21. 9. U.S. Constitution granted the federal government certain powers: a. ENUMERATED: (LIMITED POWERS) (Article I, Section 8) enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch. b.RESERVED: (10th Amendment) powers not allowed to either state or federal governments. c. IMPLIED POWERS – Powers inferred from the express powers that allow Congress to carry out its functions.

  22. D.In his farewell address George Washington warned the fledgling America to stay clear of “ENTANGLING ALLIANCES” with the Europeans, but to continue economic ties with the continent. E. SUPREME COURT CASES: • TROP V. DULLES was a • U. S. federal court case filed in • 1955, and finally decided by the • Supreme Court in 1958. The Court decided that it was unconstitutional for the government to cancel the citizenship of a U.S. citizen as a punishment.

  23. b. The BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 9, NEW HYDE PARK, NEW YORK, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: "Almighty God, We Acknowledge Our Dependence Upon Thee, And We Beg Thy Blessings Upon Us, Our Parents, Our Teachers And Our Country."

  24. This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system. Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. -- Engel v. Vitale, 1962.

  25. In the landmark case of ENGEL V. VITALE the US Supreme Court ruled that SCHOOL PRAYER WAS UNCONSTITUTIONAL because it violated the establishment clause of the First Amendment (Congress shall make no law respecting an establishment of religion").

  26. c. In December 1965, Des Moines, Iowa residents John F. Tinker (15 years old), John's younger sister Mary Beth Tinker (13 years old), and their friend Christopher Eckhardt (16 years old) decided to wear black armbands to their schools (high school for John and Christopher, junior high for Mary Beth) in protest of the Vietnam War and supporting the Christmas Truce called for by Senator Robert F. Kennedy. The principals of the Des Moines schools adopted a policy banning the wearing of armbands to school. Violating students would be suspended and allowed to return to school after agreeing to comply with the policy. (TINKER v DES MOINES [1969])

  27. MARY BETH and JOHN TINKER CHRISTOPHER ECKHARDT

  28. BETHEL SCHOOL DISTRICT v. FRASER, 478 U.S. 675 (1986), was a Supreme Court decision involving free speech and public schools. Matthew Fraser was suspended from school for making a speech full of sexual double entendres (a spoken phrase is devised to be understood in either of two ways). The Supreme Court held that his suspension did not violate the First Amendment.

  29. Tinker remains a viable and frequently-cited Court precedent, though subsequent Court decisions have determined limitations on the scope of student free speech rights. In Bethel School District v. Fraser, a 1986 case, the Supreme Court held that a high school student's sexual innuendo–laden speech during a student assembly was not constitutionally protected. Fraserqualified Tinker in making an exception for "indecent" speech.

  30. NEW JERSEY v. T.L.O.: • T.L.O. was a fourteen-year- • old; she was accused of • smoking in the girls' bath- • room of her high school. A • principal at the school • questioned her and searched • her purse, yielding a bag of • marijuana and other drug • paraphernalia.

  31. Question: Did the search violate the Fourth and Fourteenth Amendments? Conclusion: No. Citing the peculiarities associated with searches on school grounds, the Court abandoned its requirement that searches be conducted only when a "PROBABLECAUSE" exists that an individual has violated the law. The Court used a less strict standard of "REASONABLENESS" to conclude that the search did not violate the Constitution. The presence of rolling papers in the purse gave rise to a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, thus, justifying a more thorough search of the purse.

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