Our Living Constitution UNIT II – Constitution and Rights

How do we know something is living? Given the items we listed above – can a document be living?

What is a “living document” Question Answer What is a “living document” How can the Constitution change over time? (3) What is the formal amendment process? What is the informal amendment process? What is custom, usage, and tradition?

Question Answer What are the two arguments that support the idea of a “living” Constitution? What is the pragmatist view? What is the original intent view? How are liberty and equal protection interpreted from the Constitution? How did the Founding Fathers expect the Constitution to be interpreted?

Formal Amendment process Proposal Ratification By 2/3 of Congress Or By 2/3 of State Legisltures By 3/4 of State Legislatures Or By 3/4 of State Conventions held by the people

Important Amendments that Show Change 10th Amendment – lets read it! In your own words – what does the 10th Amendment state? How does this show change in government?

Important Amendments that Show Change 16th Amendment – let’s read it! In your own words – what does the 10th Amendment state? How does this show change in government?

Important Amendments that Show Change 17th Amendment – let read it! In your own words – what does the 17th Amendment state? How does this show change in government?

Important Amendments that Show Change 18th Amendment – let read it! In your own words – what does the 18th Amendment state? How does this show change in government?

Important Amendments that Show Change 21st Amendment – let read it! In your own words – what does the 21st Amendment state? How does this show change in government?

Important Amendments that Show Change 27th Amendment – let read it! In your own words – what does the 27th Amendment state? How does this show change in government?

Informal Amending Laws – can be done due to the Necessary and Proper Clause in the Constitution – this give Congress the ability to make any laws they deem to be necessary Executive Orders/Agreements – gives the POTUS the ability to make decisions that have the force of law without Congress’ approval Court Decisions – the Supreme Court can make decisions that force us to change the way we run our government by declaring a current law unconstitutional or by interpreting the Constitution in a new way

Important Cases That show change in power of the government Marbury v. Madison Issue: The Supreme Court was deciding whether or not a law made by Congress was allowable under the Constitution. Outcome: They decided that the law was not constitutional and therefore not allowed to be enforced. How did this increase the power of the federal government?

Important Cases That show change in power of the government McCulloch v. Maryland Issue: The state of Maryland began taxing the National Bank which caused two questions to arise: Can the national government create a national bank – and – can the states tax it? Outcome: Government can create a national bank due to the necessary and proper clause, however the states cannot tax it due to national supremacy. How did this increase the power of the federal government?

Important Cases That show change in power of the government Gibbons v. Ogden Issue: Two men were competing about trading over waterways between NY and NJ. The question became who could control trade between the states – Federal or State Governments? Outcome: Congress (federal government) has the ability to control trade between the states as well as with other nations. How did this increase the power of the federal government?

Important Cases That show change in power of the government Dred Scott v. Sandford Issue: A slave was taken to a free state and then sued for his freedom because he believed he should no longer be enslaved. Outcome: Supreme Court decided that slaves were property, not people or citizens, so therefore they had no right to sue. How did this increase the power of the federal government?

Changing Times (Tradition and Custom) What are some examples of how change has occurred due to the views of the people changing over time?