hatton w. sumners institutes on the …...hatton w. sumners institutes on the founding documents who...

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© State Bar of Texas

Walk Through the Constitution

HATTON W. SUMNERS INSTITUTES ON THE FOUNDING DOCUMENTS

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The inspiration of all Law-Related Education projects: Dr. Isidore Starr. Special thanks to the Scholar Staff, past and present: Dr. Mel Hailey, Dr. Harold Hyman, Dr. Frances Nesmith, Professor Jerry Perry, Dr. Jerry Polinard, Dr. Jim Calvi The American Bar Association Special Committee on Youth Education for Citizenship Constitutional Rights Foundation Hatton W. Sumners Foundation Law Focused Education, Inc. Center for Civic Education Association of Trial Lawyers of America

Special thanks to the State Bar of Texas Law-Related Education Department for their support and skills in making this activity guide come to life. The staff includes:

Jan L. Miller, Director Linda DeLeon, Office Manager Jerry Perry, LRE Scholar Rachael Vanhoutte, Administrative Assistant

Developed in 1995 and revised in 2013 by Law Focused Education, Inc., a project of the State Bar of Texas. All rights reserved. Permission is granted for these materials to be reproduced for classroom use. No part of these materials may be reproduced in any other form or for any other purpose without the written consent of the Department of Member Services / Law-Related Education, State Bar of Texas.

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Hatton W. Sumners Institutes on the Founding Documents Who was Hatton W. Sumners? First elected to Congress in 1912, Hatton W. Sumners represented the people of Texas and the Fifth Congressional District until his voluntary retirement in 1947. From his “ring-side” seat in Washington, Hatton Sumners participated in the unfolding drama of American Democracy during the first half of the Twentieth Century, a period which encompassed the Great Depression, two World Wars and dramatic changes in the scope and role of government in American life. His role was not that of a spectator, but as a decision-maker, policy-formulator, and House leader through the crucial period from the first administration of President Woodrow Wilson to the end of his congressional service 34 years later. A man of great moral courage and a sincere and deep spiritual conviction, Congressman Sumners was no ordinary public servant. During his sixteen-year tenure as chairman of the powerful House Committee on the Judiciary, he acquired a justly deserved reputation as the greatest constitutional lawyer in Congress. It was common knowledge that he was in line for the next appointment to the Supreme Court until his deeply-rooted beliefs in the Constitution and the separation of powers caused him to lead the successful opposition to President Roosevelt’s plan to pack the Supreme Court in 1937. Although best known for his role in the court fight, Congressman Sumners’ enduring legacy is found in his life-long belief in the threat to liberty posed by a too powerful Washington bureaucracy, and in the critical importance to American constitutional government of an informed citizenry that actively participates in the affairs of State. The institute’s objective is to train teachers in the Founding Documents so that they may instill in their students an appreciation of the importance of a good government and a renewal of democratic ideas and an understanding of how these ideals can be put into practice.

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Section Five Table of Contents

Walk Through the Constitution Questions for Discussion .......................................7 The Government of the United States Graphic .......................................................13 An Overview of the Content of the U. S. Constitution .............................................14 Five Major Principles of American Government Found in the U.S. Constitution .....................................................................................................17 Systems of Government Graphic ............................................................................20 Three Provisions in the Original Constitution Relative to Slaves .................................................................................................................21 Comparison of the Two Houses of the U. S. Congress ...........................................22 Constitutional Powers of the U. S. Congress ..........................................................23 113th U. S. Congress ...............................................................................................26 Presidential Quotations ...........................................................................................32 So You Want to be President? ................................................................................42 Presidential Elections (The Electoral College) ........................................................43 The Electoral College Dilemma ...............................................................................50 Roles and Powers of the President .........................................................................51 Diagram of the U. S. Court System .........................................................................56 United States Courts ...............................................................................................57 U. S. Supreme Court ...............................................................................................59 Supreme Court Quote .............................................................................................64 Supreme Court Cartoon ..........................................................................................65 Progression of Cases to the U. S. Supreme Court ..................................................66

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How It Works (Getting a Case to the U. S. Supreme Court) ...................................67 Current U. S. Supreme Court ..................................................................................69 Chief Justices of the United States .........................................................................70 Article IV Outline .....................................................................................................71 Article V: Amending the Constitution .......................................................................72 Amending the U. S. Constitution .............................................................................73 Of the First Twelve Proposed Amendments—The Only One Not Yet Ratified ..............................................................................................................75 Amendments Proposed by Congress but Rejected by the States ..........................76 Four Amendments That Overturned Supreme Court Decisions ..............................77 Article VI and Article VII Outlines ............................................................................78 Walk Through the Constitution Answers to Questions ............................................79

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WALK THROUGH THE CONSTITUTION Questions for Discussion

The Preamble 1. What is a preamble? 2. Why start the Constitution with a preamble? 3. What does the Preamble have to do with the Social Contract Theory? 4. Originally, the first draft of the Preamble read:

We, the People of the States of New York, New Jersey, etc. (thirteen states)...

If we had accepted this version, how might it have affected the history of our country?

Article I 1. Section 1. Under the Articles of Confederation, we had one branch

of government. The legislature consisted of one branch. Why did the Framers of the Constitution divide the legislative power between two branches?

2. Section 2, Clause 1: What is the significance of this Clause? 3. Section 2, Clause 2: What are the qualifications for membership in the House

of Representatives? 4. Would you favor a Texas law limiting the terms of members of the U.S. House of

Representatives and Senate? 5. Section 2, Clause 3: Why is this clause obsolete today? 6. Section 2, Clause 5: What is meant by impeachment? 7. Section 3, Clause 1: Why and how was this clause changed? 8. Section 3, Clause 3: Why not have the same qualifications as for members of the House of Representatives? 9. Section 3, Clause 4: What position does the vice president hold in the legislative branch? 10. Section 3, Clause 6: Describe an impeachment trial.

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11. Has any U.S. president been impeached? 12. Section 3, Clause 7: What is the punishment in cases of impeachment? 13. Section 5, Clause 2: Have any elected Congressmen been punished for

disorderly behavior? 14. Section 6, Clause 1: Why should members of Congress be given

Congressional Immunity from certain types of lawsuits? 15. Section 7, Clause 1: Why was this provision included in the Constitution? 16. Section 7, Clauses 2-3: Which important principle of government does this

incorporate? 17. Section 8: Which powers has Congress used to pass the following

laws:

Social Security Regulation of Airlines Civil Rights Laws The Stock Market

18. Section 9: How many rights of individuals can you find listed in this

section?

Section 9, Clause 1: What was the purpose of this clause? 19. Section 10: How many rights of individuals can you find listed in this

section: 20. Does the Congress have too much power today? Can you think of any proposals

relating to Congress that you would like to incorporate into the Constitution? Article II—Section 1 1. Who can be President of the United States? 2. Each state is entitled to how many electors? 3. Can an elector vote both for presidential candidate and vice-presidential candidate

from his/her home state? 4. Can a U.S. Senator be an elector? 5. If the Electoral College fails to elect the president, who selects the president?

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6. If the Electoral College fails to elect a vice-president, who selects the vice-president?

7. Can the president receive a pay raise during his/her term? 8. Who administers the presidential oath of office? 9. What words have been informally added to the oath of office? 10. What body sets the date of a president election? Article II—Section 2 11. Is the president the commander-in-chief of the Air Force? 12. Is the cabinet specifically mentioned in the Constitution? 13. Was the pardon of Richard Nixon by President Gerald Ford constitutional? 14. Who chooses the U.S. Ambassador to Japan? 15. Who nominates U.S. Supreme Court justices? 16. What body (or group) must consent to major presidential appointments? Article II—Section 3 17. Must the president deliver the State of the Union message in person? 18. Can the president adjourn Congress? 19. Must the president receive a foreign ambassador? 20. Can the president introduce a bill in the House of Representatives? Article II—Section 4 21. Must the president violate a criminal law to be impeached? 22 Can a United States Senator be impeached? 23. Has any president ever been impeached? 24. Has any president ever been impeached and removed from office? Article III 1. How are members of the Supreme Court and all other federal courts chosen?

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2. What is the term of office of members of the Supreme Court? 3. What qualifications does Article III say one must have to be a federal judge? 4. How many members of the Supreme Court are there? 5. What is the power of the Supreme Court? 6. What cases begin at the Supreme Court? 7. Besides creating the judicial branch, Article III speaks of what important right of the

people? 8. What is needed to convict a person of treason? 9. Who is given power to regulate the Supreme Court's appellate jurisdiction? 10. What is the title of the person who presides over the Supreme Court? The Federal Article or Interstate Relations Article IV—Section 1—Full Faith and Credit Clause 1. Joe and Jane marry in Texas. They move to California. Are they married under

California law? 2. Joe and Jane marry in Texas. Jane then goes to Reno, Nevada, and obtains a

divorce. Will Texas recognize the divorce? 3. Joe sues Bob in the State of Texas for breach of a business contract and wins a

judgment of $1,000,000. To avoid paying the judgment, Bob leaves Texas and settles in New York State. Does Joe have to initiate a new lawsuit in New York and obtain another judgment?

Section 2—Interstate Citizenship Clause 1—Privilege and Immunity Clause 1. Can Alaska require private employers in the oil and gas exploration and transportation

business to use only Alaska residents to alleviate its unemployment problem? 2. Can a state require that state police officers be citizens of that state? 3. Montana charged nonresident elk hunters a higher fee than its own residents. Is it

constitutional?

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Clause 2 1. In 1976, Governor of California Jerry Brown refused to extradite Dennis Banks, an

American Indian activist to South Dakota from which he had fled, after being convicted of "felony riot." Is that constitutional?

2. In 1984, Utah Governor Scott M. Matheson rejected an extradition request from

Illinois for a business official wanted for trial for murder because of an industrial accident in one of his company's plants. Is that constitutional?

Clause 3 1. What is the historic significance of this clause? 2. What is the status of the clause today? Section 3—Admitting New States Clause 1 1. In admitting a new state, can Congress require:

a) That the State of Oklahoma keeps its capitol at Guthrie for seven years?

b) That Arizona removes from its proposed Constitution provisions permitting the voters to recall state judges?

2. Which states have been formed from other states? 3. When Texas was admitted into the Union, Congress agreed that the state could be

divided into ___ states, if the Texas legislature agreed. Clause 2 1. Which territories does the Congress control today? 2. Does the Constitution follow the flag? Section 4—Guarantee of a Republican Form of Government. 1. Where in the Constitution do we find a definition of a republican form of government? 2. Senator Charles Sumner once referred to the Guarantee Clause "as a sleeping

giant." Do you agree? 3. In 1842, the people of Rhode Island elected two governments, each of which

claimed to be the legitimate government of the state. Under our Constitution, how is a crisis of this nature resolved.

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Article V 1. Is there a part of the Constitution that cannot be amended? 2. What two groups may propose amendments to the Constitution? 3. What is the only group that has proposed an amendment to the Constitution since

1789? 4. What percentage of the states must agree to ratify an amendment to the

Constitution? 5. When was the last constitutional convention? 6. Are there any proposed amendments by the Congress that the states refused to

ratify? 7. Has any amendment ever been ratified by conventions in the states? Article VI 1. What three things make up the supreme law of the land? 2. What important religious guarantee is found in Article VI? Article VII 1. By whom or what was the Constitution to be ratified? 2. The ratification of the Constitution by how many states was required for it to take

effect?

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AN OVERVIEW OF THE CONTENT OF THE U.S.

CONSTITUTION Article 1. Establishment of the legislative Branch (the U.S. Congress)

description of the House of Representatives and Senate-members' qualifications, terms of office, how chosen, officers (Speaker, Vice President, President, Pro Tempore); impeachment power; meetings and procedure, bills for raising revenue must begin in the House; President's veto power; Section 8—long list of congressional powers including paragraph 18's necessary and proper clause; Section 9 -- restrictions on Congress' power; Section 10—restrictions on the states.

Article 2. Establishment of the executive branch; term of president and vice

president; qualifications to be president; vice president's succession to the presidency; powers or duties of the president.

Article 3. Establishment of the judicial branch; creation of the Supreme Court

and Congress' power to create lower courts; jurisdiction of the Supreme Court and other federal courts; original versus appellate jurisdiction; right to trial by jury; definition of treason.

Article 4. Obligations of each state to every other state; admission of new

states by Congress; obligations of the national government to the states.

Article 5. Proposing and ratifying amendments to the Constitution. Article 6. Guarantee of debts contracted before the adoption of the

Constitution; supremacy clause-the supreme law of the land shall be (a) the U.S. Constitution, (b) laws made in pursuance thereof, (c) treaties; oath of all officials to support the Constitution; no religious test for national office.

Article 7. Ratification of the Constitution Amendment I: (1791) No law respecting the establishment of religion or

prohibiting free exercise of religion or abridging freedom of speech, press, assembly, or right to petition government for redress of grievances.

Amendment II: (1791) A well regulated militia being necessary, right of the people

to keep and bear arms shall not be infringed.

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Amendment III: (1791) No quartering of soldiers in private homes in time of peace

without the consent of the owner. Amendment IV: (1791) Right of the people to be secure in their persons, houses,

papers, and the effects against unreasonable searches and seizures; issuance of and description of warrants.

Amendment V: (1791) Right to indictment by grand jury in capital or otherwise

infamous crimes; No double jeopardy; no self-incrimination; no denial of life, liberty, or property without due process of law; no taking of private property for public use without just compensation.

Amendment VI: (1791) In criminal cases, right to speedy and public trial by an

impartial jury)right to be informed of nature of charge; to be confronted by witnesses against him; to compulsory process for obtaining favorable witnesses; assistance of counsel.

Amendment VII: (1791) Right to a trial by jury in civil cases. Amendment VIII: (1791) No excessive bail or fines and no cruel and unusual

punishment. Amendment IX: (1791) Enumeration in the Constitution of certain rights not to be

interpreted to deny other rights retained by the people.

Amendment X: (1791) Powers not delegated to the U.S. by the Constitution and not denied by it to the states are reserved to the states or to the people.

Amendment XI: (1791) U.S. courts have no jurisdiction over cases brought

against a state by citizens of another state or by citizens of another nation.

Amendment XII: (1804) Amending Article II's description of election of the

president and vice president; separate voting by electors for president and vice president.

Amendment XIII: (1865) Abolition of slavery and Congress' power to enforce this

amendment by appropriate legislation. Amendment XIV: (1868) Definition of U.S. and state citizenship; limitations on

states; no abridging privileges and immunities of U.S. citizens; no denial of life, liberty or property without due process of law; no denial of equal protection of the law. Congress' power to enforce

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this amendment by appropriate legislation. Amendment XV: (1870) No denial of right to vote by U.S. or states because of

race, color, or previous condition of servitude; Congress' power to enforce this amendment by appropriate legislation.

Amendment XVI: (1913) Congress’ power to levy and collect an income tax. Amendment XVII: (1913) Direct, popular election of U.S. Senators. Amendment XVIII: (1919) Manufacture, sale, or transportation of intoxicating liquor

prohibited. Amendment XIX: (1920) Right of citizens to vote cannot be denied by U.S. or

states because of sex. Amendment XX: (1933) Terms of president and vice president begin on January

20 and terms of Senators and Representatives begin on January 3 (instead of March as previously provided).

Amendment XXI: (1933) Repeal of the Eighteenth Amendment and thus of

prohibition. Amendment XXII: (1951) Limiting a person to two terms or a maximum of ten

years as President of the U.S. Amendment XXIII: (1961) Right to vote for president and vice president for citizens

of the District of Columbia (three electoral votes). Amendment XXIV: (1964) No denial of citizens' right to vote in national elections

because of a failure to pay a poll tax or other tax. Amendment XXV: (1967) In case of a vacancy in the office of vice president, the

president shall choose a new vice president with approval of a majority vote of both houses of Congress; presidential disability— how and when the vice president may become acting president.

Amendment XXVI: (1971) Right of citizens of U.S. who are eighteen years of age

or older to vote shall not be denied because of age. Amendment XXVII: (1992) No law, varying the compensation for the services of

Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

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FIVE MAJOR PRINCIPLES OF AMERICAN GOVERNMENT FOUND IN THE U.S. CONSTITUTION

I. Representative Form of Government—an indirect democracy or republican form of government.

1. Not really representative when created at Philadelphia but not unrepresentative either. More representative of the people than the governments of nearly any other nation at that time.

2. Only allowed the people directly to choose members of the U.S.

House of Representatives.

3. System has been made more representative or democratic through the use of the formal amendment process and through political change and custom.

The other four major principles have in common the desire of the framers to prevent any one government, any one part of government, any one group, or any one person from having too much power. The Framers' solution: divide up the power, and this they did in four different ways. II. Federal System of Government

1. A geographical or vertical division of power.

2. Power is divided between a national government with control over all the nation's territory and a series of local governments (states), each of which controls part of the nation's territory. Neither created the other and neither can destroy the other.

3. Contrast with a unitary system of government, which is what Great Britain

and most nations have. All power is in the hands of the national (central) government. There may be a series of local (state) governments, but they are created by, get their power from, and can be destroyed by the national government.

4. Contrast also with a confederation system of government which the U.S. had

under the Articles of Confederation.

III. Separation of Powers

1. A functional or horizontal division of power within the national government. 2. Three branches—legislative, executive, and judicial—separate from and

independent of each other are created, each with certain powers, different terms of office, different methods of selection, and different constituencies.

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3. Idea borrowed from the French philosopher, Baron de Montesquieu and his The Spirit of the Laws (1748); not borrowed from the British who did not have separation of powers. Britain has a parliamentary system where the executive and the highest court are drawn from the Parliament.

4. The U.S. Constitution does not specifically say there will be "separation of

powers,” but the way it is written clearly indicates such a principle:

Article I—" . . . all legislative power . . . ." Article II—" . . . all executive power . . . ." Article III—" . . . all judicial power . . . ."

5. Because of the fourth principle cited next, a more accurate description of this

third principle is separate institutions sharing power. IV. Checks and Balances

1. Allow each branch to intrude in the business of the other two branches. 2. Each branch has certain checks over the other two branches. Examples

follow:

Executive Branch Over One or Both of the Other Branches (a) veto power over Congress. (b) enforcement power over Congress and the judiciary. (c) executive over the judiciary: the President appoints all U.S. judges with

the approval by a majority vote of the U.S. Senate.

Congress Over One or Both of the Other Branches (a) Congress' appropriations power (control of the purse or treasury) over

both the executive and judicial branches. (b) the U.S. Senate must approve most appointments made the executive

by a majority vote. (c) the U.S. Senate must ratify treaties negotiated by the executive by a

two-thirds vote. (d) Congress can impeach, convict, and remove from office executive and

judicial officers. (1) the House of Representatives brings charges by a majority vote. (2) the Senate tries, convicts, and removes from office by a two-thirds vote.

(e) Congress creates and thus can alter or destroy all U.S. courts below the Supreme Court.

(f) Congress sets the number of members of the U.S. Supreme Court. (g) Congress can regulate the U.S. Supreme Court's appellate jurisdiction. (h) Congress by a two-thirds vote of both houses can propose

amendments to the U.S. Constitution to overrule a Supreme Court decision (the required number of states must then, of course, ratify the

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proposed amendment, but this usually follows). The Eleventh, Fourteenth, Sixteenth, and Twenty-Sixth Amendments are examples.

Judicial Branch Over Both Congress and the Executive

(a) Judicial review: power to declare acts of Congress or the executive unconstitutional.

(b) Power not specifically mentioned in the Constitution but established by Chief Justice Marshall and the Court in Marbury v. Madison (1803).

V. Limited Government

1. Division of power between government and the people. 2. Original Constitution contained some limits (mainly economic or property

ones). (a) no ex post facto laws (national and state) (b) no bill of attainder (national and state) (c) no titles of nobility (national and state) (d) no impairment of contracts (state only) (e) no religious test for national office (national only) (f) trial by jury (national only) (g) no suspension of right of writ of habeas corpus except in cases of

rebellion or invasion (national only). (h) other limits on states mainly economic or foreign affairs (no coining

money, etc.). 3. Greatest number of, and most fundamental, limits on government found in

the Bill of Rights, the first nine amendments added to the U.S. Constitution in 1791. (a) Barron v. Baltimore (1833)—John Marshall and Supreme Court ruled

that the Bill of Rights only limited the power of the national government, not the power of the state governments.

(b) 1920's - present: the Supreme Court, using the due process of law clause of the Fourteenth Amendment, has incorporated most of the Bill of Rights, thus largely overruling Barron v. Baltimore.

(c) Today, most of the Bill of Rights limit the power of both the national and state governments. Only amendments which have not been incorporated and thus do not limit the states:

(1) Third Amendment (2) grand jury clause of the Fifth Amendment (3) Seventh Amendment (4) no excessive fines or bail clause of the Eighth Amendment

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THREE PROVISIONS IN THE ORIGINAL U.S. CONSTITUTION RELATIVE TO SLAVES, SLAVERY, OR THE SLAVE TRADE

WITHOUT ACTUALLY USING THOSE WORDS 1. Article, Section 2: “Representatives and direct taxes shall be apportioned among the several states

which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to serve for a term of years, and excluding Indians not taxed, three-fifths of all other persons.”

2. Article 1, Section 9, Clause 1: “The migration or importation of such persons as any of the States now existing

shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808…”

3. Article IV, Section 2, Clause 3: “No person held to service or labour in one state, under the laws thereof, escaping

into another, shall in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

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COMPARISON BETWEEN THE UNITED STATES HOUSE OF REPRESENTATIVES AND SENATE

United States House of Representatives:

United States Senate:

Members chosen from local districts

Members chosen by an entire state

Two-year term Six-year term Always elected by the voters Originally (until 1913)

elected by state legislatures; now elected by voters

Brings impeachment charges against federal officials

Tries impeached federal officials

Larger (435 voting members) Smaller (100 members) More formal rules Fewer rules and

restrictions Limited debate (may not filibuster)

Unlimited debate (may filibuster)

Less prestige and less individual notice

More prestige and more media attention

Originates revenue and appropriations bills

Must approve presidential appointments and ratify treaties

More committees Fewer committees Presiding officer is a voting member chosen by the House (the Speaker)

Presiding officer is designated by the Constitution and is not a senator (the Vice President of the U.S.

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CONSTITUTIONAL POWERS OF THE U. S. CONGRESS I. Congress has never used all of its powers and has in fact given away some to the

executive. II. The framers of the Constitution intended Congress to be the most powerful of the

three branches. Five of the seven articles of the original Constitution and several of the 27 amendments give Congress power. The same cannot be said about the other two branches.

III. Article I, Section 8, Paragraphs 1-17: Delegated or enumerated powers of the

U. S. Congress ( the longest part of the entire Constitution and the longest list of the powers of Congress) A. Several powers given Congress by Article I, Section 8 are particularly

significant: 1. “Congress shall have the power to coin money and regulate the value

thereof” (Congress thus controls the currency of the U. S.) 2. “Congress shall have the power to lay and collect taxes, duties,

imposts, and excises” (This is supplemented by the Sixteenth Amendment, which gives Congress specifically the power to levy and collect an income tax.)

3. “Congress shall have the power to pay the debts and provide for the common defense and general welfare of the United States” (appropriations or spending power). No money can be spent from the Treasury of the United States until Congress passes an appropriations bill authorizing the expenditure.

4. “Congress shall have the power to regulate commerce with foreign nations and among the states” (called the commerce clause or the interstate and foreign commerce clause). a. The U. S. Supreme Court first examined the Congress’ power

under the commerce clause in the case of Gibbons v Ogden (1824). In this landmark decision the Court, speaking unanimously through Chief Justice John Marshall, gave the broadest possible interpretation to Congress’ power under the commerce clause. Marshall wrote, “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”

b. Congress can and has passed many different kinds of laws using the commerce clause as its authority to do so, and the U. S. Supreme Court has generally, though not always, upheld Congress’ laws. Some examples: (1) Fair Labor Standards Act (F. L. S. A.)—minimum wage

and maximum work hours for most jobs The Supreme Court upheld Congress’ power to pass the F. L. S. A.

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based on the commerce clause in U. S. v Darby (1941). (2) Agricultural Adjustment Act 0f 1938 (AAA) The modern

Supreme Court gave Congress’ power under the commerce clause one of its broadest interpretations since Gibbons v Ogden in Wickard v Filburn (1942).

(3) Gun Free School Zones Act of 1990 The Rehnquist Court for the first time since the 1930's declared an act of Congress based on the authority of the commerce clause unconstitutional in U. S. v Lopez (1995).

(4) Mann Act (criminal law)—it is a federal criminal offense to transport persons across state lines for “immoral purposes.”

(5) Civil Rights Act of 1964 (a) Outlaws racial discrimination in public

accommodations such as hotels, restaurants, theaters, etc.

(b) The U. S. Supreme Court upheld Congress’ power to pass this law in two cases decided together: Katzenbach v McClung and Heart of Atlanta Motel v U. S. (1964).

IV. Article I, Section 8, Paragraph 18

A. “Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This is sometimes called the necessary and proper clause, the elastic clause, or the implied powers clause.

B. In McCulloch v Maryland (1819) the U. S. Supreme Court broadly interpreted Congress’ powers under paragraph 18 and in the process made it clear that Congress does have implied powers.

V. Some other significant constitutional powers of Congress

A. Article II—The Senate by a 2/3 vote must ratify treaties negotiated by the executive and by a majority vote must approve all of the President’s judicial appointments as well as his appointments to high level executive branch positions (such as members of his Cabinet—the Secretary of State, etc).

B. Article III—By a majority vote of both houses Congress creates all federal courts below the U. S. Supreme Court, sets the number of members of the Supreme Court, and can pass laws regulating the Supreme Court’s appellate jurisdiction.

C. Article IV—Both houses decide on the admission of new states into the union and can impose certain conditions for admission.

D. Article V—By a 2/3 vote of both houses, Congress proposes amendments to the U. S. Constitution.

E. Amendment 12—If no candidate for president gets a majority of the electoral votes for president, the House chooses the president with each state getting one vote and a majority of the votes necessary to win this election in the

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House. If no candidate for vice president gets a majority of the electoral votes for vice president, the Senate chooses the vice president with each senator getting one vote and a majority of the votes necessary to win this election in the Senate.

F. Amendments 13, 14, 15, 19, 23, 24, and 26 all contain enforcement clauses which give Congress the power to pass any laws needed to carry out the amendments. 1. An example of Congress using the enforcement clause of the

Fifteenth Amendment as its authority to pass a very important law is the Voting Rights Act of 1965. The constitutionality of the Voting Rights Act of 1965 was upheld by the U. S. Supreme Court in South Carolina v Katzenbach (1966).

2. An example of Congress using the enforcement clause of the Fourteenth Amendment as its authority to pass a very important law was the Religious Freedom Restoration Act of 1993 (RFRA). The U.S. Supreme Court in a Texas case called City of Boerne v Flores (1997) declared RFRA unconstitutional.

3. Another example of Congress using the enforcement clause of the

Fourteenth Amendment as its authority to pass an important law was the Violence Against Women Act of 1994 (VAWA). The U. S. Supreme Court in U. S. v Morrison (2000) declared VAWA unconstitutional.

G. Amendment 25—Both houses by a majority vote must approve a new vice president appointed by the president to fill a vacancy in the office of vice president. In addition, when a dispute arises between the president and the vice president over the president resuming his office after a period of disability, it takes a 2/3 vote of both houses for the vice president to win the dispute and thus continue as acting president.

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113th U.S. CONGRESS, JANUARY 2013—JANUARY 2015 Salary: Members of both houses—$174,000; the Speaker—$223,500; the Majority and Minority Leaders of both houses—$193,400; Vice President—$230,500 Constitutional Qualifications: There are only three constitutional qualifications one must possess to be eligible to be a member of either house of the Congress. They are very misleading and tell us very little about the members of either house. Senate House 1. Age 30 1. Age 25 2. U. S. citizen nine years 2. U. S. citizen seven years 3. Inhabitant of state 3. Inhabitant of state

Selected Characteristics of Members: Members of the two houses of the U. S. Congress are not typical or representative of the American population as a whole. Some groups are over represented, and others are underrepresented. 1. A majority of members of both chambers are in their 50s or 60s (64%, House and

67%, Senate). Relatively few members are in their 30s or 40s (26%, House and 12%, Senate). Relatively few members are in their 70s or 80s (9%, House and 21%, Senate). The oldest Representative is Ralph Hall (R, TX) who is 89, and the youngest is Patrick Murphy (D, FL) who is 29. The oldest Senator is Frank Lautenberg (D, N.J.) who is 89, and the youngest is Chris Murphy (D, Conn.) who is 39.

2. There are 80 men and 20 women in the Senate and 351 men and 81 women in the House. This is a record number of women in both chambers. Three states – California, New Hampshire, and Washington – have two women U.S. Senators. For the first time in U.S, History, all of the members of both chambers from one state – New Hampshire – are women.

3. There are 42 African Americans in the House and two in the Senate. There are 31 Hispanic/Latino Americans in the House and three in the Senate. There are 10 Asian/Pacific Americans in the House and one in the Senate.

4. A large majority of the members of both houses are Protestants (Baptists and Methodists the two largest groups). Approximately one-third of the members are Catholic, and less than ten percent are Jewish.

5. Approximately one-fourth of Americans over twenty five years of age have one or more university degrees, but at least 98% of the members of both houses of Congress have one or more university degrees.

6. Less than 1 percent of Americans are millionaires. It is estimated that about one-third of the members of Congress are millionaires.

7. The overwhelming majority of senators and representatives come from one of three fields: law, business/banking, or public service. Lawyers remain the largest occupational group.

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Term of Office: Senate—Six year staggered terms (one-third elected every two years) House—Two years (all elected at the same time)

Note: There is at present no constitutional limit on length of service in either house (no term limits). Number of Members: Senate—100 (two from each state as guaranteed by Article I of the U. S. Constitution) the two U. S. Senators from Texas Senator John Cornyn whose service began in 2003 and Ted Cruz whose service began in 2013. House—435 as fixed by a law passed by the U. S. Congress in 1911which took effect in 1913 1. There is a minimum of one Representative from each state. Seven states today

(Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) have only one Representative who is thus elected by and therefore represents the entire state.

2. The number of additional Representatives from each state is determined by the state’s population which is determined by the census every ten years.

3. As a result of the 2010 census, the Census Bureau predicts that eight states will gain twelve seats in the House. Except for Texas, these states are in the Southeast (Florida, Georgia, and South Carolina) or the Far West (Utah, Arizona, Nevada, and Washington). Texas will gain four seats, Florida two seats, and the other six states will each gain one seat.

4. As a result of the 2010 census, the Census Bureau predicts that ten states will lose twelve seats in the House. Except for Louisiana, these states are in the Northeast (New York, Pennsylvania, New Jersey, and Massachusetts) or the Midwest (Iowa, Missouri, Illinois, Michigan, and Ohio). New York and Ohio will each lose two seats, and the other eight states will each lose one seat.

5. As a result of the 2010 census, the states with the largest number of Representatives will be: California (53), Texas (36), New York (27), Florida (27), Pennsylvania (18), Illinois (18), Ohio (16), Michigan (14), Georgia (14), North Carolina (13), and New Jersey (12).

Election: Senate—U. S. Senators have only been popularly elected by the voters of a state since the Seventeenth Amendment was added to the U. S. Constitution in 1913. As provided by the original U. S. Constitution, before 1913 Senators were chosen by the state legislatures. House—U. S. Representatives have always been popularly elected. 1. If a state has more than one representative, the state must be divided into districts.

From each district one representative is chosen by the voters of that district.

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2. The state legislature of each state draws the U. S. House districts for that state and usually does so in the first year after the census, or every ten years.

3. In 1964 the U. S. Supreme Court ruled in Wesberry v Sanders that districts from which U. S. Representatives are chosen must be approximately equal in population.

4. Gerrymandering (drawing legislative districts so as to benefit the majority party and/or incumbents) is still allowed.

Party Division (113th Congress): The party affiliation of a member remains today the most important source of influence on the behavior of members of the two houses of Congress. There is a high degree of partisan unity among members on both sides of the aisle in both houses particularly on the most important issues which come before the Congress. Senate House D—53 R—232 R—45 D—200 Independents—2 (Senator Barney Sanders from Vermont and Senator Angus King from Maine caucus with the Democrats, thus giving the Democrats a 55-45 majority.) NOTE: In January, 1995, the Republicans won a majority in both houses at the same time for the first time since 1954. For most of the years since 1932 and the presidency of Franklin D. Roosevelt the Democrats have enjoyed a majority in both houses. Leadership: Although the leaders of the two houses of the Congress, particularly the Majority Leader in the Senate and the Speaker in the House, are not as powerful today as they were in the past when, for example, the Speaker was sometimes referred to as “Czar,” they retain great influence over what does or does not happen in their respective houses.

Senate President—Vice President Joe Biden President Pro Tem—Patrick Leahy (D, Vermont) Majority Leader—Harry Reid (D-Nevada) Majority Whip—Dick Durbin (D-Illinois) Minority Leader—Mitch McConnell (R-Kentucky) Minority Whip—John Corntn (R-Texas)

House Speaker—John Boehner (R-Ohio) Majority Leader—Eric Cantor (R-Virginia)

Majority Whip—Kevin McCarthy (R-California) Minority Leader—Nancy Pelosi (D-California)

Minority Whip—Steny Hoyer (D-Maryland)

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Note: When Nancy Pelosi was chosen Minority Leader of the House in January, 2003, and then Speaker in January, 2007, she became the first female in U. S. history to hold one of the top leadership positions for either party in either house. Incumbency Effect: The most important advantage an individual seeking election to the two houses of Congress, particularly the House of Representatives, can have is being an incumbent (an individual who is already a member of the House or the Senate and is seeking reelection). As the following statistics attest, incumbents running for reelection are rarely defeated. In the House especially a large majority of the seats are “safe seats.” Percentages of Incumbent Members Running for Reelection Who Were Reelected:

Year Senate House 1972 80 95 1974 92 89 1976 64 96 1978 68 95 1980 56 93 1982 93 92 1984 90 96 1986 75 97 1988 85 98.5 1990 96.9 96 1992 82 88 1994 92 91 1996 95 95 1998 90 98 2000 80 97 2004 96 98.5 2006 79 94.5 2008 84 95 2010 84 85 2012 91 94

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Seniority in the U.S. Congress: While seniority is not as important today in both houses of Congress as it was in the past, it remains one of the two most important factors, along with party affiliation (majority or minority), in determining a member’s power or influence in each chamber of the Congress. Below are the names of the most senior members of both houses in the 112th Congress. Only those members who have been in the Senate or the House for 25 years or more are listed.

SENATE 1. Patrick Leahy (D, Vermont) 1975 2. Orinn Hatch (R, Utah) 1977 3. Max Baucus (D, Montana) 1978 4. Thad Cochran (R, Mississppi) 1978 5. Carl Levin (D, Michigan) 1979 6. Chuck Grassley (R, Iowa 7. Tom Harkin (D, Iowa) 1985 8. Mitch McConnell (R, Kentucky) 1985 9. Jay Rockefeller (D, West Virginia) 1985 10. Frank Lautenberg (D, New Jersey) 1982-

2000/2002-2014 11. Barbara Mikulski (D, Maryland) 1987 12. Richard Shelby (R, Alabama) 1987 13. John McCain (R, Arizona) 1987 14. Harry Reid (D, Nevada) 1987

HOUSE 1. John Dingell (D, Michigan) 1955 2. John Conyers (D, Michigan) 1965 3. C. W. “Bill” Young (R, Florida) 1971 4. Charles Rangel (D, New York) 1971 5. Don Young (R, Alaska) 1973 6. Henry Waxman (D, California) 1974 7. George Miller (D, California) 1975 8. Ed Markey (D, Massachusetts) 1976 9. Nick Rahall (D, West Virginia) 1977 10. James Sensenbrenner (R, Wisconsin)

1979 11. Tom Petri (R, Wisconsin) 1979 12. Chris Smith (R, New Jersey) 1981 13. Frank Wolf (R, Virginia) 1981 14. Ralph Hall (R, Texas) 15. Harold Rogers (R, Kentucky) 1981 16. Steny Hoyer (D, Maryland) 1981 17. Marcy Kaptur (D, Ohio) 1983 18. Sander Levin (D, Michigan) 1983 19. Joe Barton (R, Texas) 1985 20. Howard Coble (R, N. Carolina) 1985 21. Peter Visclosky (D, Indiana) 1985 22. Peter DeFazio (D, Oregon) 1987 23. John Lewis (D, Georgia) 1987 24. Louise Slaughter (D, New York) 1987 25. Lamar Smith (R, Texas) 1987 26. Fred Upton (R, Michigan) 1987 27. Nancy Pelosi (D, California) 1987 28. Frank Pallone (D, New Jersey) 1988 29. John Duncan (R, Tennessee) 1988

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Standing Committees and their Chairs: Government by Congress is largely government by committees. This is where much of the power is and where most of the real decisions are made in both houses. The standing committees have the final say on most legislation and are sometimes called “little legislatures.” In the past there was an automatic seniority rule which determined who chaired each standing committee in each house. Under that rule, the member of the majority party in each house who had been on a particular standing committee the longest automatically became the chair of that committee. Today, in both houses seniority remains the primary factor determining who chairs each standing committee, but it is no longer automatic. Although the chairs of the standing committees in both houses today are not as powerful as they were in the past, they remain very important figures. Below are the most important standing committees in the two houses and their chairs in the 112th Congress.

Senate—All Democrats Appropriations: Barbara Mikulski (D, Maryland) Armed Services: Carl Levin (D, Michigan) Budget: Patty Murray (D, Washington) Banking: Tim Johnson (D, South Dakota) Foreign Relations: Bob Menendez (D, New Jersey) Health, Education, Labor, and Pensions: Tom Harkin (D, Iowa) Judiciary: Patrick Leahy (D, Vermont) Agriculture: Debbie Stabenow (D, Michigan) Finance: Max Baucus (D, Montana) Commerce, Science, and Transportation: John D. Rockefeller (D, W. Virginia) Energy and Natural Resources: Ron Wyden (D, Oregon)

House—All Republicans Armed Services: Buck McKeon (R, California) Appropriations: Harold Rogers (R, Kentucky) Budget: Paul Ryan (R, Wisconsin) Foreign Affairs: Ed Royce (R-California) Ways and Means: Dave Camp (R, Michigan) Agriculture: Frank Lucas (R, Oklahoma) Judiciary: Lamar Smith (R, Texas) Rules: Pete Sessions (R, Texas) Education and Labor (John Kline (R, Minnesota) Energy and Commerce: Fred Upton (R, Michigan)

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33


34


35


36


37


38


39


40


41


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The Constitutional Qualifications: 1. Age—35 2. Residency—14 Years 3. Citizenship—“Natural Born Citizen” Unofficial Qualifications: 1. Race (?) 2. Gender (?) 3. Sexual Orientation 4. $$$$$$$$ 5. No Criminal Past 6. No Past Mental Problems 7. Religion?? 8. $$$$$$$$$ 9. Physical Problems (FDR) 10. Education 11. ???? 12. $$$$$$$

SO YOU WANT TO BE PRESIDENT

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PRESIDENTIAL ELECTIONS I. ARTICLE II AND THE TWELFTH AMENDMENT II. NO MENTION ANYWHERE IN THE CONSTITUTION OF POPULAR VOTE IN

PRESIDENTIAL ELECTIONS Article II, Section 2

Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

A. Presidential elections from 1788-1820—no popular vote results: electors

chosen by state legislatures in most states B. Election of 1824—first nationwide popular vote results: electors chosen by

popular vote in most states III. ELECTORAL COLLEGE AND ELECTORAL VOTES

A. Total Number of Electoral Votes = 538 One electoral vote for each United States Senator (100) One electoral vote for each United States Representative (435) Three electoral votes for the District of Columbia (3)—Twenty-third Amendment (ratified in 1961)

B. Since each state is constitutionally guaranteed two United States Senators regardless of population and at least one United States Representative, the minimum number of electoral votes for each state is three. At the present time, there are seven states which have only a minimum of three electoral votes.

C. Needed to Win = 270 (A majority of 538) D. States with the largest number of electoral votes (2001-2011):

1. California -- 55 7. Ohio -- 18 2. Texas -- 38 8. Michigan -- 16 3. New York -- 29 9. New Jersey -- 14 4. Florida -- 29 10. Georgia -- 16 5. Pennsylvania -- 20 11. North Carolina-- 15 6. Illinois -- 20 TOTAL: 270

E. Eleven states today have enough electoral votes (271) to elect a president. F. Importance of the census every ten years

1. Remember: The number of members of the United States House of Representatives (435) is a fixed number which does not change even though the population of the nation grows.

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2. Some states significantly decline in population in the ten-year period covered by a census and thus must lose seats in the House. Other states significantly increase in population and thus gain new seats in the House. This change in turn, using the formula noted above, results in either an increase or a decrease in the number of electors and electoral votes to which a state is entitled.

3. The following table shows what has happened with regard to the number of electoral votes for some of the fifty states as a result of several censuses:

1940

1950

1960

1970

1980

1990

2000

2010

Alaska

--

3

3

3

3

3

3

3

Arizona

4

4

5

6

7

8

10

11

California

25

32

40

45

47

54

55

55

Florida

8

10

14

17

21

25

27

29

Idaho

4

4

4

4

4

4

4

4

Illinois

28

27

26

26

24

22

21

20

New York

47

45

43

41

36

33

31

29

Rhode Island

4

4

4

4

4

4

4

4

Texas

23

24

25

26

29

32

34

38

Vermont

3

3

3

3

3

3

3

3

IV. PRESIDENTIAL ELECTIONS PRIOR TO 1804 AND THE TWELFTH

AMENDMENT A. Electors elected by state legislatures. B. Each elector voted two times but was not required to designate for whom he

was voting for president and for whom he was voting for vice president. C. The person who received the most electoral votes became President if this was a

majority of the total number of electoral votes. If no candidate had a majority or there was a tie, then the House of Representatives, voting by states (each state one vote) selected the president.

D. The candidate with the second highest number of electoral votes automatically became vice president.

E. In the nation’s first two presidential elections—1788 and 1792—when there was only one political party (the Federalist), there was no problem. George Washington was unanimously elected president and John Adams, the winner of the second largest number of electoral vote, automatically became vice president.

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F. In the election of 1796, problems began to appear. 1. For the first time, two political parties competed—the Federalists

and the newly formed party of Thomas Jefferson and James Madison, the Democratic-Republican Party.

2. The framers of the Constitution had provided no role for political parties and, in fact, had not even mentioned parties in the Constitution.

3. The Federalist Party nominated John Adams for president and Thomas Pinckney of South Carolina for vice president. The Republicans nominated Thomas Jefferson for president and Aaron Burr for vice president.

4. John Adams received 71 electoral votes (a majority) and thus was elected president. Thomas Jefferson received the second greatest number of electoral votes—68—and became vice president. Thus, for the only time in United States history, the nation had a president from one party and a vice president from another party.

G. In the election of 1800, with two fully developed parties competing in what some have called “the dirtiest campaign in history,” the system failed. 1. The Federalist Party nominated John Adams for a second term with

Charles C. Pinckney of South Carolina as his vice presidential running mate. Adams received 65 electoral votes and Pinckney, 64.

2. The Democratic-Republican Party nominated Thomas Jefferson for president and Aaron Burr of New York for vice president. (a) Each of the Democratic-Republican electors voted once for

Jefferson and once for Burr, but recall that at this time they were not required to designate for whom they were voting for president and for whom they were voting for vice president.

(b) As a result, the two men tied with 73 electoral votes each. 3. Adams thus became the first incumbent president seeking a second

term to be defeated. However, since Jefferson and Burr, the two Republicans, had the same number of electoral votes, the Federalist-controlled House of Representatives now had to choose between the two.

4. The Federalists did not want to vote for either man, and thus the choice was a difficult one. Finally, on the thirty-sixth ballot, the House chose Jefferson over Burr, who then automatically became vice president. (This was partly due, some scholars believe, to Alexander Hamilton who lobbied against Burr.)

V. THE TWELFTH AMENDMENT (PROPOSED BY CONGRESS IN DECEMBER,

1803; RATIFIED BY ENOUGH STATES AND PROCLAIMED PART OF THE CONSTITUTION IN SEPTEMBER, 1804) A. A direct result of what happened in the election of 1800 B. One very important provision: Each elector has one vote for president

and one vote for vice president. Voting by the electors for president and for vice president must be separate and distinct. Whoever wins a majority of the electoral votes for president becomes president.

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Whoever wins a majority of the electoral votes for vice president becomes vice president.

C. Another very important provision: The contingency election procedure 1. What happens if no candidate for president wins a majority of the

electoral votes for president? a. The House of Representatives is called upon to choose the

president. b. The House chooses from among the three candidates with the

greatest number of electoral votes. c. Each state gets one vote, and a majority of the votes is

necessary to win. 2. What happens if no candidate for vice president wins a majority of

the electoral votes for vice president? a. The Senate is called upon to choose the vice president. b. The Senate chooses from between the two candidates with

the greatest number of electoral votes. c. Each Senator gets one vote, and a majority of the votes is

necessary to win. VI. FOUR DISPUTED ELECTIONS

A. Election of 1800—previously discussed—first of only two times the House of Representatives had to choose the president.

B. Election of 1824—second and last time the House of Representatives has been called on to choose the president. 1. First nationwide popular vote results 2. Nation was in the midst of what has been called “the Era of Good

Feelings” and had reverted to a one-party system dominated by the party of Thomas Jefferson: the Democratic-Republican Party.

3. There were four major, well-known candidates, all of whom were members of the Democratic-Republican Party. a. Andrew Jackson (Tennessee) b. John Quincy Adams (Massachusetts) c. Henry Clay (Kentucky) d. William Henry Crawford (Georgia)

4. The results were as follows:

Popular Vote

Electoral Vote

Jackson

152,933

99

Adams

115,696

84

Clay

47,136

37

Crawford

46,979

41

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5. Although Jackson thus won more popular votes and more electoral votes, he did not win a majority of the electoral votes. Therefore, under the Twelfth Amendment, the House of Representatives had to choose from among Jackson, Adams and Crawford.

6. Henry Clay threw his support to Adams, and largely as a consequence, the House chose Adams.

C. Election of 1876 1. Took place during Reconstruction after the Civil War, a time of great

confusion and chaos in the southern states. 2. The two candidates were Governor Samuel Tilden of New York for the

Democratic Party and Governor Rutherford B. Hayes of Ohio for the Republican Party.

3. The results were as follows:

Popular Votes

Electoral Votes

Tilden (D)

4,287,670

184

Hayes (R)

4,035,170

170

4. At that time, a majority of the electoral votes was 185. 5. Fifteen electoral votes from Florida, Louisiana, South Carolina and

Oregon were in dispute. 6. Although Tilden won more popular votes and more undisputed electoral

votes, because of the fifteen disputed electoral votes no one knew for certain whether Tilden or Hayes had won a majority of the electoral votes.

7. The United States Congress for the only time in history set up a special fifteen-member Electoral Commission whose sole function was to decide who had won the fifteen disputed electoral votes and thus who would be the new president.

8. This Electoral Commission had eight Republican members and seven Democratic members. By a vote of eight-to-seven the Commission awarded all fifteen disputed electoral votes to Hayes, thus giving him a majority of 185 and consequently making him president. Many presidential election scholars regard Tilden as the one man from whom the presidency was most definitely stolen.

D. Election of 2000 1. There were two major candidates: Al Gore for the Democratic Party and

George W. Bush for the Republican Party. 2. The final results were as follows:

Popular Votes

Electoral Votes

Gore

50,996,116

266

Bush

50,456,169

271

Undeclared

1

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3. While there were several states where the popular vote between Gore and Bush was very close, it was the vote in the State of Florida (where Bush’s brother, Jeb, happened to be governor) which became the decisive and controversial aspect of the election. a. Whoever won Florida would be the president. b. In several Florida counties, there was much dispute over the

form of the ballot. c. The final popular vote results in Florida were:

Bush—2,912,790 Gore—2,912,253

d. After much arguing back and forth, recounting of the ballots in some counties, and a Florida Supreme Court decision allowing a recount, the United States Supreme Court (in Bush v. Gore), by a five-to-four vote, ended the controversy by forbidding further recounts. This decision, in essence, meant that George W. Bush became President of the United States.

VII. FOUR ELECTIONS WHERE THE INDIVIDUAL WHO BECAME PRESIDENT

ACTUALLY LOST THE NATIONWIDE POPULAR VOTE A. Election of 1824—Andrew Jackson won more popular votes, but John

Quincy Adams became president. B. Election of 1876—Samuel Tilden won more popular votes, but Rutherford B.

Hayes became president. C. Election of 1888—Grover Cleveland won more popular votes, but Benjamin

Harrison became president. D. Election of 2000—Al Gore won more popular votes, but George W. Bush

became president. VIII. TWO IMPORTANT DATES

A. Congress by law has set the date on which the people vote for a group of presidential electors in their individual states: The first Tuesday after the first Monday in November every fourth year (beginning in 1788).

B. Congress by law has set the date on which the winning group of electors (the group which wins the most popular votes in that state) gathers in the state capitol to cast the state’s electoral votes: The first Monday after the second Wednesday in December.

IX. HOW ARE THE PEOPLE WHO SERVE AS ELECTORS CHOSEN, AND WHO

ARE THEY? A. The Constitution says nothing about how individuals who serve as electors

are to be selected. B. In presidential election years, each of the two major political parties in each

state holds a state party convention. At this convention one thing each party does is to choose the individuals who will serve as the party’s electors for the state for that election.

C. The individuals chosen are not typical, average citizens. On the contrary, they are usually long time party activists and loyalists who can thus be trusted to be “faithful electors” and not “faithless electors.” In other

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words, they can be trusted to vote for the party’s candidates if given the chance. 1. This is important because electors are not legally bound to vote for the

presidential candidate for whom the greatest number of the people of their state voted.

2. This helps explain why throughout the history of presidential elections in the United States there have been so few “faithless electors.”

X. AN IMPORTANT PROCEDURAL PART OF THE PRESIDENTIAL ELECTION

PROCESS THAT IS NOT FOUND IN THE CONSTITUTION: THE SO-CALLED WINNER-TAKE-ALL PROCEDURE A. Forty-eight states and the District of Columbia have by their own decisions—

not because the Constitution requires it—decided to award all of the state’s electoral votes to the set of electors which wins the most (a plurality is sufficient) popular votes in that state. This is called winner-take-all.

B. Although any state could decide not to follow this winner-take-all procedure, thus far only two states—Maine and Nebraska—have chosen not to do so. 1. In Maine and Nebraska, whoever wins the most popular votes in each

United States House district wins the electoral vote for that district. 2. Whoever wins the most popular votes in the entire state wins the two

electoral votes for that state representing the state’s two United States Senators.

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ROLES AND POWERS OF THE PRESIDENT I. Seven roles of the President—five constitutional and two extra-constitutional: (1)

Chief of State; (2) Chief Politician; (3) Commander In Chief; (4) Chief Foreign Policy Maker or Chief Diplomat; (5) Chief Legislator; (6) Chief Economist; (7) Chief Executive or Chief Administrator

II. CHIEF OF STATE

A. Symbolic or ceremonial role as head of nation or representative of the American people. Our “king.” Remember in many nations one person performs this role and another person performs the role of Head of Government

B. Lots of pomp and ceremony associated with this role—“Hail To The Chief” C. Examples of things a president does in his role as Chief of State:

Declaring National Codfish Week or Grandparents’ Week Lighting the national Christmas tree Throwing out the first baseball to start the baseball season Buying the first box of Girl Scout cookies Greeting foreign visitors

D. One very substantive (non-symbolic) thing the president does in this role: pardoning power

1. restores person to all civil rights 2. power is absolute: the president can pardon before trial (Ford’s

pardon of Nixon), during trial, or after trial 3. presidents often do this at end of term 4. two limitations:

(a) can only pardon for offenses against the U. S., not for offenses against a state

(b) cannot pardon someone who has been impeached, convicted, and removed from office

III. CHIEF POLITICIAN A. Leader of his party B. Cannot be elected without party and cannot do job without support of

members of party in House. Senate, governors, etc. C. National Chairman of Party is usually president’s man D. Party convention dominated by president. Party platform usually says what

he wishes E. Campaigns for party’s candidates F. Patronage—appoints party members to government positions IV. COMMANDER IN CHIEF A. Appoints with Senate approval all officers of all branches of the armed

forces. Determines who will boss and plan strategy. B. Can also dismiss (fire) top military commanders—famous example:

Truman—MacArthur

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C. Constitutionally, Congress is given the power to declare war, but the president as Commander in Chief can apparently involve the nation in war without a declaration of war by Congress. For example, Korea, Vietnam, or Iraq.

D. In an effort to limit the president’s war-making ability in 1973, Congress passed over President Nixon’s veto the War Powers Resolution. It says:

1. The president can only commit troops abroad if there has been a declaration of war by Congress, if Congress passes legislation which authorizes sending troops abroad, or if there is an emergency created by an attack on the U. S., its property or its troops.

2. The president must report to Congress within 48 hours any emergency commitment of forces abroad.

3. Must remove forces after 60 days or 90 days unless Congress authorizes their continued presence abroad.

4. Law has been largely ignored. Some have argued that instead of limiting the president it actually authorizes 60-day wars.

E. Three examples of presidential actions as Commander In Chief which were challenged in the courts

1. The Prize Cases (1863) (A) After southern forces attacked Ft. Sumter, President Lincoln

unilaterally ordered a naval blockade of Southern ports (B) The Supreme Court upheld Lincoln’s action in a broad

interpretation of the president’s war powers in the absence of a congressional declaration of war.

2. Korematsu v U. S. (1944) (A) FDR orders the military evacuation of all persons of Japanese

descent living on the West Coast for fear of Japan’s invasion of the U. S. even though they were U. S citizens and had not been charged with violation of any laws

(B) The U. S. Supreme Court upheld the president’s power 3. Youngstown Sheet and Tube Co. v Sawyer (1952) (A) Because of a threatened strike by the nation’s steel worker

unions which would have shut down all steel production in the U.S. in the midst of American troop involvement in Korea, President Harry Truman ordered the military seizure of all the nation’s steel factories

(B) The U. S. Supreme Court ruled that Truman had exceeded his power and ordered Truman to return the steel mills to their owners.

F. The president can use his role and powers as Commander In Chief to help in the performance of his other roles such as Chief Executive.

1. For example, the president can send troops to help put down domestic disturbances or enforce the law here at home.

2. Examples: Eisenhower and Little Rock, Arkansas, 1957; Kennedy and University of Alabama, 1961-62

G. During war or threat of war, the president can impose martial law and replace civilian law and courts with military law and courts and suspend certain rights.

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V. CHIEF FOREIGN-POLICY MAKER OR CHIEF DIPLOMAT A. The president is the director of the nation’s foreign policy and has been such

since the days of George Washington. Most of the major foreign policy documents in U. S. history bear the names of presidents: Washington’s Farewell Address—“beware of entangling alliances”; the Monroe Doctrine—no European or foreign presence in the Americas; Wilson’s Fourteen Points; FDR’s Good Neighbor Policy; the Truman Doctrine; the Eisenhower Doctrine; Carter and Salt II and the Panama Canal Treaty; Carter and the Arab-Israeli conflict; Bush and Saddam Hussein; Reagan and the German-Russian Wall; Clinton and the Arab-Israeli conflict

B. President appoints all U. S. Ambassadors with Senate approval C. An exclusive power of the president: recognition of foreign

governments by receiving ambassadors from those governments D. Negotiates treaties with other nations which then require

ratification by a 2/3 vote of the Senate E. May also enter into executive agreements with other nations 1. No mention of these in the Constitution 2. More numerous now than treaties 3. Do not require Senate approval 4. Some famous examples: Gentlemen’s Agreement between U. S. and Japan

limiting Japanese immigration to U. S.; Destroyers for Bases agreement with Great Britain in World War II; Yalta and Potsdam agreements after World War II

F. Presidential power in foreign affairs as addressed by the U. S. Supreme Court in U. S. v Curtiss Wright Export Corporation (1936)

1. Bolivia and Paraguay were involved in the Chaco Wars—a battle over who owned a piece of land called the Chaco

2. President Roosevelt, without Congressional approval, ordered an embargo on the sale by anyone in the U. S. of weapons to either country

3. When the president’s action was challenged in the U. S. Supreme Court, the Court upheld the president’s act and ruled that in foreign affairs the president has certain inherent powers

4. The Supreme Court noted that in the external realm “the President alone has the power to speak or listen as a representative of the nation.” The Court went on to speak of the president as “the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.”

VI. CHIEF LEGISLATOR A. Constitution requires the president to present State of the Union message to

Congress. He also sends other messages. B. Most major legislation initiated by the White House and

Congress then responds to it

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C. President’s veto power: not used that much by most presidents but usually successful when used.

1. usually the president gets what he wants simply by threatening a veto 2. president has no item veto—must either veto the entire bill or sign the

entire bill (a) In 1996 Congress passed the Line Item Veto Act giving the

president an item veto (b) In 1998 in Clinton v City of New York the Supreme Court

ruled that this act of Congress was unconstitutional. Only a constitutional amendment can give the president an item veto.

3. 1789-2010 Washington-George W. Bush, 1,494 vetoes (a) Washington-2; Adams-Jefferson-0; Madison-5; Reagan-39;

George H. W. Bush-29; Clinton-36; George W. Bush-10 (b) Most Vetoes-Franklin D. Roosevelt-372 (c) Only two other presidents with over 100 vetoes: Cleveland-

346; Truman-180 4. Congress can try to override a presidential veto but this requires a two thirds vote of both houses and is rarely successful. (a) Total # of presidential vetoes overridden 1789-2010-109 (b) Washington thru W.H. Harrison-0 vetoes overridden First president to have a veto overridden-John Tyler (c) President with most vetoes overridden-Andrew Johnson-15 (d) Recent presidents: Reagan-9 overridden; George H. W. Bush-

1 overridden; Clinton-2 overridden; George W. Bush-3 overridden

5. The president has ten days to sign or veto a bill. (a) If he does neither and Congress is still in session the bill

automatically becomes law without his signature. (b) If he does neither and Congress has adjourned within the

ten days, the president can kill the bill by taking no action. This is called a pocket veto.

VII. CHIEF ECONOMIST A. No specific economic powers given him by the Constitution. Most economic

powers are given to Congress but Congress has frequently delegated economic powers to the executive.

B. Some presidents throughout history have imposed wage and price controls C. President, with aid of the Office of Management and Budget, prepares a

proposed Budget of the U. S. to which Congress then reacts. The president has tended to dominate budget making process.

D. Council of Economic Advisors and Annual Economic Report To Congress E. Budget and Impoundment Control Act of 1974—Congress attempted to

prevent the president from impounding funds (refusing to spend money appropriated by Congress). President who is not going to spend appropriated funds must report this to Congress and only if Congress agrees within 45 days can the president continue the impoundment.

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VIII. CHIEF EXECUTIVE OR CHIEF ADMINISTRATOR A. Constitution says in Article II: “executive power shall be vested in a President

of the U. S.” and “he shall take care that the laws be faithfully executed.” B. General view is that this constitutional language gives the president powers

never fully defined. C. President relies on subordinates in the executive branch to enforce laws

Congress passes. They interpret laws passed by Congress and decide how or whether to enforce them.

D. Remember the president does not hire and thus cannot fire or give orders to most of those who work in the executive branch. They are hired through civil service.

E. Executive Orders: President and other executive officers can issue these and they have the force of law. They implement and give administrative effect to parts of the Constitution, treaties, or acts of Congress.

1. They have been used to do many things but may be undone by a later president.

2. The use of executive orders has greatly increased in recent years. 3. Some examples of executive orders: (A) Truman’s desegregating the armed forces (B) Kennedy’s instituting an affirmative action program in federal

employment (C) Clinton’s returning abortion counseling to federally funded

clinics and allowing the use of fetal tissue from abortions in federally funded research

(D) George W. Bush’s order repealing Clinton’s order concerning abortion counseling

F. Executive Privilege: Right of executive officers such as the president and his advisers to refuse to appear before or to withhold information from Congress or the courts

1. Limits on executive privilege went untested until the Watergate scandal in 1974 involving President Nixon and some of his subordinates

2. U. S. Supreme Court in 1974 in U. S. v Nixon unanimously ordered Nixon to turn over tapes from the Oval Office for use in a pending criminal case. The Court did also, however, rule for the first time ever that the president does have the right of executive privilege and that it must be given great respect even though it is not absolute and must yield to the demonstrated need for evidence in a pending criminal case.

G. Presidential immunity from lawsuits involving alleged acts committed prior to becoming President: the U. S. Supreme Court, in Clinton v Jones, (1997) ruled that no such immunity exists.

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UNITED STATES COURTS U.S. DISTRICT COURTS: This is the main federal court with original jurisdiction only, where most federal cases begin. It is the only United States Court of general jurisdiction where trials are held, juries used, and witnesses called. Both criminal and civil cases arising under federal law are heard. Each state has at least one United States District Court. A few states, including Texas, have as many as four, for a total of 94 U.S. District Courts. Each court has from one to twenty-seven judges depending on the volume of business, but each judge holds court alone. There are at present 576 U.S. District Court judges. The President appoints all these judges for life terms with approval by a majority vote of the United States Senate. Because of a tradition known as senatorial courtesy, the United States Senator (or Senators) from the state where a U.S. District Court is located actually chooses the person whom the President will nominate if the Senator (Senators) is a member of the President’s party. U.S. COURTS OF APPEALS: These are purely appellate courts below the Supreme Court. There are twelve Courts of Appeals, each with four to twenty-six judges. The United States is divided into twelve geographical circuits, including the District of Columbia. Each Court of appeals hears appeals from cases decided by United States District Courts in the three to nine states, which each Court of Appeals has jurisdiction over (except for the Twelfth Court of Appeals in the District of Columbia which has jurisdiction only over the District of Columbia). Each Court of Appeals normally hears cases in panels of three judges each, but on occasion all judges assigned to the Court will sit together to hear and decide a case. The latter is called an en banc proceeding. The President appoints all the judges of these Courts of Appeals for life with approval by a majority vote of the U.S. Senate. Review of decisions of independent regulatory commissions such as the Federal Trade Commission and the Interstate Commerce Commission by the Twelfth U.S. Court of Appeals in the District of Columbia gives that court in particular an important role in the development of administrative law. U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT: This is the thirteenth Court of Appeals created by Congress in 1982 to be on an equal footing with the other twelve Courts of Appeals, but this special Court of Appeals is different from the other twelve because it has nationwide jurisdiction based on subject matter and not geographic area. Its jurisdiction includes: 1) patent, trademark, and copyright cases; 2) appeals from U.S. District Courts in contract and internal revenue cases in which the U.S. is a defendant; 3) appeals from the Claims Court and the Court of International Trade; and 4) review of administrative rulings by the Patent and Trademark Office, the International Trade Commission, the Secretary of Commerce, etc. The Court has twelve judges appointed for life by the President with Senate approval. Cases are heard by panels of three judges each but occasionally by all twelve judges in an en banc proceeding. It holds court in Washington, D.C.

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U.S. CLAIMS COURT: This court hears claims brought by private individuals or businesses against the U.S. government for breach of contract, for injuries caused by negligent behavior of U.S. government employees, or for recovery of other claims such as back pay. It has sixteen judges appointed for fifteen-year terms by the President with Senate approval. Each judge holds court alone in Washington, D.C., or anywhere in the U.S. as needed. U.S. COURT OF INTERNATIONAL TRADE: This is a special court created by Congress in 1980 to decide disputes that arise over tariff laws and duties levied by U.S. custom officers on imported goods. The Court has nine judges appointed for life terms by the President with Senate approval. It sits in divisions at principal ports of entry, with its main office in New York City. U.S. COURT OF APPEALS FOR THE ARMED FORCES: Congress created this court in 1950 to review court-martial decisions. It is composed of three civilian judges appointed for fifteen-year terms by the President with Senate approval. The Court must review decisions affecting top military personnel and those imposing the death penalty. It has discretion to review certain other cases upon petition. The Court applies military law, a special body of rules developed by Congress. U.S. TAX COURT: This Court hears cases brought by U.S. taxpayers against the Commissioner of the Internal Revenue Service who is always the defendant. The Court has nineteen judges appointed by the President with Senate approval for twelve-year terms. Each judge heads a division, and although the Court is located in Washington, D.C., trial sessions are held throughout the nation. *Prepared by Professor Jerry Perry.

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U. S. SUPREME COURT I. The Supreme Court of the U. S. is created by Article III of the U. S. Constitution and

is the only federal court specifically created by the Constitution. All other federal courts below the Supreme Court are created by law of Congress.

II. Number of members

A. Article III does not specify the number of members . B. Congress by law determines the number of members.

1. The first U. S. Supreme Court in 1789 had six members 2. Before 1869, when Congress set the number at nine, the number

fluctuated. It has not always been nine and it has not always been an odd number.

3. Since 1869, the only serious effort to change the number occurred in the 1930's when President Franklin D. Roosevelt became angry at what he called “the nine old men” for striking down numerous New Deal acts passed by the U. S. Congress at his urging. (a) Under FDR’s so-called “Court packing” plan, for each member of the Court who reached the age of 70 and did not retire, the president could appoint another justice. Under FDR’s plan, the Court could have reached a maximum size of fifteen members. (b) Congress rejected FDR’s proposal, but FDR eventually won

the battle with the Court. Although he did not get to appoint any members in his first term, in his second term members began to retire and die. As a result, by the time he himself died in 1945 he had appointed all nine members of the Court. (George Washington is the only other president who had this opportunity.)

III. Selection, Qualifications, Term of Office, and Removal of members

A. Selection of members 1. Article II, Section 2 vests the power to nominate judges of the

Supreme Court and other federal courts in the President with the advice and consent of the U. S. Senate by a majority vote required.

2. In the 18th and 19th centuries presidents often had difficulty getting individuals to accept appointments, and it was not unusual for the Senate to reject appointments.

3. In the 20th century, the U. S. Senate by a majority vote of the Senate has only rejected four presidential appointments. (Other presidential nominations either never came up for a vote or were withdrawn before the Senate could vote.)

B. Qualifications 1. Article III says nothing at all about any qualifications an individual must

possess in order to be eligible for appointment.

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2. In reality, of course, there are qualifications. (a) lawyer—Judging by most appointees, one must not only be a

lawyer but a graduate of an elite law school. Of the nine members of the present Court, five are Harvard graduates, three are Yale graduates and one is a Columbia graduate. This is the first time in history that a majority of the members have been from one law school. Most members in U. S. history have, in fact, been graduates of either Harvard or Yale Law School.

(b) age—Most members have been in their 50s when they were appointed. The youngest member of the present Court, Elena Kagan, was 50 when she was appointed in 2010.

(c) party affiliation—Most have been members of the political party of the president who appointed them. On the present Court, five members are Republicans appointed by Republican presidents (Roberts, Scalia, Kennedy, Thomas, and Alito), and four are Democrats appointed by Democratic Presidents (Ginsburg, Breyer, Sotomayor, and Kagan).

(d) ideological compatibility with the president—“Conservative” presidents generally appoint “conservatives,” and “Liberal” presidents generally appoint “liberals.” Occasionally, the individual appointed will not vote as the president expected, but as a general rule the appointee will behave precisely as the appointing president predicted.

(e) prior judicial experience—Of the nine members of the present Court, eight had prior judicial experience before being appointed to the U. S. Supreme Court, all eight having served as a judge on a U. S. Court of Appeals prior to their appointment to the Supreme Court. This is the first time in U. S. history that this has been true. In recent years this has clearly been the stepping stone to the Supreme Court. In the past, prior judicial experience was not as common among appointees. Instead, prior political experience of an elective variety was fairly common (governor or U. S. Senate, for example). It should be noted, in fact, that some of the greatest Supreme Court justices had no prior judicial experience (John Marshall, Hugo Black, Felix Frankfurter, Earl Warren).

C. Term of Office and Removal of Members 1. Article III states that Supreme Court justices shall hold their offices

“during good behavior.” In effect, this means for life unless impeached, convicted, and removed from office by Congress. The record for length of service on the Supreme Court is held by the late Justice William O. Douglas who served from 1939-1975.

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2. Any member of the Supreme Court is subject to the same impeachment process to which the President of the U. S. is subject: (a) the House of Representatives may bring impeachment charges against a justice by a majority vote of the House; (b) the Senate may convict and remove from office on the charges brought by the House by a two-thirds vote of the Senate.

3. In the history of the U. S., the House has voted impeachment charges against only one Supreme Court justice—Samuel Chase in 1804. However, he was not convicted or removed from office by the Senate.

IV. Jurisdiction

A. Article III gives the Supreme Court judicial power over all cases arising under the Constitution, laws of the U. S., or treaties

B. In two kinds of cases the Supreme Court has original jurisdiction 1. cases between two or more states

2. cases involving foreign ambassadors or other foreign diplomatic personnel: no cases have ever come to the Court of this nature

C. In all other cases the Supreme Court has appellate jurisdiction subject to such exceptions as Congress may make

V. Where do cases come from to the Supreme Court?

A. Original jurisdiction: cases which begin at the Supreme Court 1. As noted above, Article III of the Constitution defines the Court’s very limited original jurisdiction. 2. On the average, the Court only hears one or two cases per year under its original jurisdiction, and all are between two or more states. A recent example was the case of New York v New Jersey where the two states battled over who owned Ellis Island.

B. Appellate jurisdiction: cases which come to the Supreme Court only after having been heard and decided by one or more other courts. As noted above, the Court’s appellate jurisdiction is subject to regulation by Congress.

1. U. S. Courts of Appeals 2. Highest state courts 3. Special federal courts

VI. How do cases reach the Supreme Court on appeal?

A. Since 1925 the Court has largely controlled its own docket. In other words, it is largely free to pick and choose the cases it wishes to hear from among those which are appealed to it. There are only a few cases which the Court has no choice but to hear.

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B. Today the party losing a case in a lower federal court or in a state court who wishes the Supreme Court to hear a case must usually ask the Court for a writ of certiorari: an order issued by the Supreme Court to the last court that heard a case directing that court to send up all the records of the case so that the Supreme Court can review it. For the Supreme Court to agree to hear a case by issuing a writ of certiorari four justices must vote in favor of the Court doing so. This referred to as the rule of four.

C. The Court is highly selective in choosing which cases it wishes to review. In recent years the Court has only agreed to review and given full treatment to less than 100 cases. This is an important change from past years when the Court annually reviewed and gave full treatment to approximately 200-250 cases.

VII. The Chief Justice of the United States

A. The President of the U. S. appoints a Chief Justice when there is a vacancy in that office due to retirement, death, or impeachment. The appointment is subject to approval by a majority vote of the U. S. Senate.

B. Counting the present chief justice, John Roberts, who assumed the position in 2005, there have been only seventeen chief justices of the U. S. The first chief justice was John Jay of New York who served from 1789-1795. The longest serving chief justice was John Marshall of Virginia who served from 1801-1835.

C. When a president gets an opportunity to appoint a chief justice, he has an important choice to make: either appoint someone who is not already on the Court to be the new chief justice or appoint someone who is already on the Court as an associate justice to be the new chief justice. Most presidents have chosen as their chief justice nominees individuals who were not already on the Court.

D. The chief justice has been described as “first among equals.” This means that when the Court is deciding whether or not to hear a case and when the Court is actually debating and deciding the outcome of a case, the chief justice has only one vote. However, because he is the chief justice, he automatically has certain powers: 1. He presides when the Court is in conference behind closed doors and

when the Court is hearing oral argument in public sessions. 2. He speaks and votes first on each case when the Court is in

conference discussing and deciding cases. 3. With the help of his law clerks, he prepares the Discuss List for

presentation to the other members of the Court. This list contains the names of the cases which he and his law clerks deem worthy of being reviewed by the Court. This goes a long way in determining the Court’s docket.

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4. If he is in the majority in the decision of a given case, he chooses who writes the opinion of the Court, and he may choose himself. If he is in the minority, the most senior justice in the majority chooses who writes the opinion of the Court.

VIII. Supreme Court Procedure

A. Once the Court has agreed to review a case each side files written legal briefs with the Court.

B. With the Court’s permission, the Court may also at this time receive written legal briefs from third parties who are not directly involved as parties in the case but may be affected by the Court’s decision and thus they wish the Court to know their views on the legal question involved. This is called an amicus curiae brief.

C. In most cases which the Court has agreed to review, the Court then sets a time for the lawyers for both sides to appear before the Court in public session to present oral arguments. Except on rare occasions, oral argument for each side is strictly limited to thirty minutes.

D. After the Court has heard oral argument in a case, the nine members retire to conference to discuss and vote on the case. Only members of the Court are allowed to be present.

E. As noted previously, the chief justice presides at conference and always speaks and votes first on each case. After the chief justice, each associate justice then has the opportunity to speak and vote in order of seniority with the most senior associate justice speaking and voting first and the least senior associate justice speaking and voting last.

F. As noted previously, once it is clear how a majority of the justices are voting in a case, if he is in the majority, the chief justice chooses who will write the opinion of the Court, but if not, then the most senior justice in the majority decides.

G. In any case any justice is free to decide to write what is called a concurring opinion wherein the justice notes agreement with the Court’s judgment but for different reasons than those outlined in the opinion of the Court.

H. In any case any justice is also free to write what is called a dissenting opinion wherein the justice notes disagreement with the Court’s judgment and outlines his/her reasons.

I. Once all the opinions written in any given case are finished and circulated among all the justices the Court meets again in conference to take a final vote.

J. In public session the Court announces its judgment in those cases which it has reviewed. All opinions written in any case are then published in the official U. S. Reports.

IX. After the Court’s Work Is Done As Alexander Hamilton noted many years ago in The Federalist, #78, the Supreme Court has no army or police force at its command to enforce its decisions. Instead the Court must depend on others to carry out any decision which it renders.

*Prepared by Professor Jerry Perry

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HOW IT WORKS Getting a Case to the United States Supreme Court More than 7,000 individuals and companies generally take cases “all the way to the Supreme Court" each term, seeking to overturn a decision by a lower court. But the justices in recent years have agreed to consider only around eighty of these. In the rest of the cases, the lower court decisions are allowed to stand and become final. Here is how cases come to the Court and are handled by the nine justices:

1. Most cases come to the Supreme Court from the thirteen federal appeals courts around the country or from the highest court in each of the fifty states. The losing party in cases decided by those courts asks the Supreme Court to reverse those decisions.

2.

The Court has almost complete discretion to accept or deny these appeals for consideration. The Court usually looks for cases that pose issues on which lower courts disagree or that raise major constitutional questions. The vote of four of the nine justices, taken at a private conference, is needed before the Court will accept a case.

3. If the Court declines to hear a case, a decision usually made without comment, the lower court ruling becomes final, and there is no further appeal.

4.

If the Court agrees to consider the case, both sides are required to file briefs and to prepare for oral argument, usually set for several months hence. At this point, other national organizations and interest groups become interested and file written “friend-of-the-court” (amicus curiae) briefs.

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5. At the oral argument, lawyers for both sides are given a half-hour to state their case and answer often tough questions from the justices.

6. Once a case is argued, the justices take it under advisement, and no immediate decision is announced. The justices actually take a vote on the case later in the week at an ultra secret conference. Five votes are needed to form a majority.

7.

For the ensuing weeks and months, drafts of the ruling are written, circulated and revised in secrecy. On rare occasions, justices will change their minds during the writing process.

8. When the opinion is finished and it commands a majority, it is printed and announced by the Court without advance warning to anyone that it is about to come down.

9.

Once the Supreme Court ruling is announced, it is carried out by lower court judges and by government agencies or other entities affected. Adapted from The Dallas Morning News

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CHIEF JUSTICES OF THE UNITED STATES Chief Justice

Home State

President Appointing

Party

Years of Service

1. John Jay

New York

Washington

Federalist

1789-1795

John Rutledge

South Carolina

Washington

Federalist

1795*

2. Oliver Ellsworth

Connecticut

Washington

Federalist

1796-1800

3. John Marshall

Virginia

Adams

Federalist

1801-1835

4. Roger Taney

Maryland

Jackson

Democrat

1836-1864

5. Salmon Chase

Ohio

Lincoln

Republican

1864-1873

6. Morrison Waite

Ohio

Grant

Republican

1874-1888

7. Melville Fuller

Illinois

Cleveland

Democrat

1888-1910

8. Edward White

Louisiana

Taft

Democrat

1910-1921

9. William H. Taft

Ohio

Harding

Republican

1921-1930

10. Charles E. Hughes

New York

Hoover

Republican

1930-1941

11. Harlan F. Stone

New York

F.D.Roosevelt

Republican

1941-1946

12. Fred Vinson

Kentucky

Truman

Democrat

1946-1953

13. Earl Warren

California

Eisenhower

Republican

1953-1969

14. Warren Burger

Minnesota

Nixon

Republican

1969-1986

15. William Rehnquist

Arizona

Reagan

Republican

1986-2005

16. John Roberts Indiana George W. Bush

Republican 2005-

*Served for four months while Congress was in recess. The Senate rejected the nomination when it returned to session. NOTE: John Rutledge, Edward White, Charles Evans Hughes, Harlan Fiske Stone, and William Rehnquist had earlier served as Associate Justices before being appointed Chief Justice.

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ARTICLE IV I. ADMISSION OF NEW STATES TO THE UNION

A. Congress Is Given Full Power Over the Admissions Process B. Congress Cannot Create A New State Out Of An Existing State Without

the Existing State’s Approval II. NATIONAL GOVERNMENT’S OBLIGATIONS TO THE STATES

A. Guarantee Each State A “Republican” Form of Government

B. Protect Against Invasion and, When Asked By The State Legislature or Governor, Against Domestic Violence

III. INTERSTATE RELATIONS: OBLIGATIONS OF EACH STATE TO OTHER

STATES (earlier found in Article IV of the Articles of Confederation)

A. Each State Shall Give Full Faith and Credit (meaning recognize and enforce): (1) The Public Acts, (2) Official Records, and (3) Judicial Proceedings of Other States (Examples: wills, marriages, divorces, deeds, etc.)

B. Each State Shall Extend the Same Privileges and Immunities to Citizens

of Other States That The State Extends To Its Own Citizens.

C. Each State Shall Return Fugitives From Justice To The State From Which They Fled (called extradition or interstate rendition).

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AMENDING THE UNITED STATES CONSTITUTION I. ARTICLE V OF THE U. S. CONSTITUTION OUTLINES THE AMENDING

PROCESS. THERE ARE TWO STEPS: A. Proposing An Amendment: Two Ways

1. By a two-thirds vote of both houses of the U. S. Congress 2. By a national convention called by Congress when two-thirds of the

states petition Congress to do so. Notes: a) The first method above is the only one ever used to propose

amendments. The second method noted (national convention method) has never been used, largely because there are too many unanswered questions concerning it. b) There have been many, many ideas for proposed amendments suggested and even introduced in one or both Houses of Congress. However, in the entire history of the United States the United States Congress has only proposed thirty-three amendments.

B. Ratifying a Proposed Amendment: Two Ways 1. By the state legislatures of three-fourths of the states (38 states) 2. By special state conventions in three-fourths of the states (38 states)

Notes: a) The states are not free to use whichever of the two methods

they wish in deciding whether or not to ratify a proposed amendment. The United States Congress directs the states in which method to use when it sends a proposed amendment to the states. b) Of the thirty-three proposed amendments which Congress has sent to the states for ratification, twenty-seven have been ratified by the required number of states and thus added to the Constitution. c) Of the twenty-seven amendments thus far added to the Constitution, all but one have been ratified through use of the first method stated above: by the state legislatures of three-fourths of the states. d) The only proposed amendment ever ratified using the second method stated above (by special state conventions in three-fourths of the states) was the Twenty-First Amendment. This is the only time Congress ever directed the states to use this method. e) The Twenty-First Amendment is thus unique among all the amendments ever added to the United States Constitution. It is unique for two reasons:

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1. It is the only amendment ever ratified by special state conventions in three-fourths of the states.

2. It repeals prohibition and therefore repeals the Eighteenth Amendment, which had provided for prohibition. It is the only amendment ever added to repeal a prior amendment.

f) The Constitution does not say anything about how much time the states have in which to make up their minds about whether or not to ratify a proposed amendment after Congress sends it to them for ratification. Congress, however, can set a time limit. g) For all recent proposed amendments, which Congress has sent to the states for ratification, Congress has set a seven-year time limit. If the required number of states has not ratified by the end of seven years, the proposed amendment fails. If Congress fails to set a time limit, then states have forever to ratify. For example, in 1789, when Congress proposed twelve amendments and sent them to the states for ratification, it set no time limit. Ten of the amendments were ratified by the required number of state legislatures and added to the Constitution in 1791. In 1992, Michigan became the thirty-eighth state to ratify another of the twelve—203 years after Congress proposed it. It thus became the Twenty-Seventh Amendment. h) Which is more difficult—proposing an amendment or ratifying a proposed amendment? Several thousand ideas for proposed amendments have been introduced in Congress, but Congress has proposed only thirty-three. On the other hand, of these thirty-three proposed amendments, the states have ratified twenty-seven.

II. AMENDING THE UNITED STATES CONSTITUTION TO OVERRULE THE

UNITED STATES SUPREME COURT: FOUR TIMES THIS HAS BEEN DONE. A. Eleventh Amendment B. Fourteenth Amendment C. Sixteenth Amendment D. Twenty-Sixth Amendment

III. SOME RECENT IDEAS FOR PROPOSED AMENDMENTS INTRODUCED IN

CONGRESS BUT NOT YET PROPOSED A. Item veto for the President B. Banning Abortion C. Term Limits for Members of Congress D. Prayer Allowed in the Public Schools E. Balanced United States Budget Required

F. Flag Burning Is Not Freedom of Speech Protected by the First amendment G. Defining marriage as being between a man and a woman H. Changing the language of Article II, which now says “a natural born citizen of the

United States” to read simply, “a citizen of the United States”

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OF THE FIRST TWELVE PROPOSED AMENDMENTS— THE ONLY ONE NOT YET RATIFIED The first United States Congress proposed twelve Amendments to the Constitution. Ten of these (Article the Third through Article the Twelfth) were ratified in 1791 by the required number of votes. Two (Article the First and Article the Second which appear below) were not ratified by the required number of states. However, it should be noted that in 1992 enough states ratified the original Article the Second and thus made it part of the Constitution as the Twenty-Seventh Amendment. Article the first...Not Ratified

After the enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall no be less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second...Ratified

No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.

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AMENDMENTS PROPOSED BY CONGRESS BUT REJECTED BY THE STATES 1. The first would have empowered Congress to regulate the proportion of members of the

House of Representatives once the proportion went beyond 100,000 persons per Representative.

2. The second might properly have been termed the "You-vote-yourself-a-raise, you-better -be-ready-to- face-the-voters-before-you-receive-it" Amendment. It provided that "No law varying the compensation for the services of Senators and Representatives shall take effect until an election of Representatives shall have intervened." Sounds great! But what Congressman would ever vote for it?

Note: Finally Ratified in 1992. 3. This amendment, proposed in the second session of the Eleventh Congress, reflected a

suspicion of all things royal dating back to Plymouth Rock. It would have stripped citizenship from anyone who "shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power . . .

4. On March 2, 1861, two days before Abraham Lincoln's inauguration, proslavery forces gathered the votes to propose an amendment that would have "settled" the issue of slavery. It read: "No Amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any state, with the domestic institutions thereof, including that of persons held to labor or service by the law of said States." Five weeks later, Union forces at Fort Sumter were fired upon, and a Civil War was under way over slavery, a domestic institution concerning persons held to labor or service by the laws of certain states.

5. The Child Labor Amendment was proposed June 2, 1924. It would have given Congress power to "limit, regulate, and prohibit the labor of persons under eighteen years of age." Section 2 would have suspended any state laws that might contravene regulations established by Congress. Subsequent federal controls accepted by the Supreme Court, such as the Fair Labor Standards Act of 1938, have pretty much obviated the need for such an amendment. However, a retired top-ranking labor leader said in 1986 that President Ronald Reagan's proposal to establish a lowered minimum wage to help unskilled teenagers obtain summer employment was "proof that a Child Labor Amendment is still needed."

6. The Equal Rights Amendment (ERA), stating 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," was proposed in March 1972. A seven-year deadline was given an unprecedented three-year extension. The deadline expired in 1982.

7. An amendment to give the District of Columbia representation in Congress was proposed by Congress in 1978. It read: "For purposes of representation in the Congress, election of the President and Vice President, and Article V of this Constitution, the District (of Columbia)... shall be treated as though it were a State." The amendment also would have obviated the Twenty-Third Amendment, which gave D.C. residents the right to vote in presidential elections. The measure expired August 22, 1985

Source: The Constitution of the United States: An Unfolding Story, 2d ed., by T.J. Keenan, 45-46 Copyright 1988 by The Dorsey Press.

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FOUR AMENDMENTS THAT OVERTURNED SUPREME COURT DECISIONS

The Eleventh When Chisholm sued Georgia in 1793 and the Supreme Court dropped a bombshell on states righters by agreeing to hear the case, Anti-Federalists ere outraged. Congress responded swiftly by proposing the Eleventh Amendment, which was ratified by the requisite three-fourths of the states within a year, though not declared ratified until 1798. The amendment protects states against suits by citizens of another state or of another country. The Fourteenth Congress and the High Court tangled again after the Dred Scott v. Sandford (sometime spelled “Dread” Scott by abolitionists) case of 1857. Nine separate decisions were rendered on this case, but Chief Justice Roger B. Taney spoke for the "majority" in declaring that slaves could not be citizens and that Congress had exceeded its purview in prohibiting slavery in the territories. A Civil War and a few years of Reconstruction intervened before the Fourteenth Amendment, which conferred citizenship on all persons born or naturalized in the United States, could correct the Scott ruling. The Sixteenth

Congress next "got around the Supreme Court" through passage of the Sixteenth Amendment, which legalized the income tax. In 1895, the Court turned down a federal income tax law on grounds that the Constitution requires taxes to be apportioned among the states proportionately according to population. But, in a spirit of cooperation, the Court invited Congress to overthrow the objection by means of an amendment. Congress proposed the Sixteenth Amendment in 1909, and the states ratified it in 1915.

The Twenty-Sixth

President Richard Nixon, although signing a change in the Voting Rights Act that allowed eighteen-year-olds to vote in federal, state, and local elections, expressed doubt that the law was constitutional. Suit was speedily arranged, and the Court confirmed the president's misgivings in 5-4 rejection that said, in effect: "The Congress does not have jurisdiction over state and local elections." At a time when eighteen-year-olds were losing their lives in Vietnam, the Twenty-sixth Amendment had wide popular approval. In record time it was proposed by Congress in March 1971 and ratified in June, giving eighteen-year-olds the right to vote in national, state and local elections. Source: From The Constitution of the United States: An Unfolding Story, 2d ed., by J. T. Keenan, 42-43. Copyright 1988.

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ARTICLE VI

I. AN IMPORTANT PROPERTY PROTECTION: DEBTS CONTRACTED BEFORE THE ADOPTION OF THE CONSTITUTION ARE STILL VALID.

II. ONE OF THE MOST IMPORTANT PARTS OF THE ENTIRE CONSTITUTION:

THE SUPREMACY CLAUSE, OR SUPREME LAW OF THE LAND CLAUSE. A. The United States Constitution, Laws of the United States Made in

Pursuance of the Constitution, and Treaties Are the Highest Law. B. Judges in All States Are Bound By the Supreme Law of the Land, Which

Overrides Anything to the Contrary in State Laws or State Constitutions. C. United States Senators, United States Representatives, Members of State

Legislatures, and All Executive and Judicial Officers of the United States and of the States Are Bound By Oath (or Affirmation) To Support the United States Constitution.

III. THE ONLY SPECIFIC MENTION OF RELIGION IN THE ORIGINAL

CONSTITUTION: NO RELIGIOUS TEST SHALL EVER BE REQUIRED FOR HOLDING OFFICE UNDER THE UNITED STATES.

ARTICLE VII TWO IMPORTANT DECISIONS CONCERNING THE RATIFICATION OF THE UNITED STATES CONSTITUTION WRITTEN AT PHILADELPHIA:

1. RATIFICATION WOULD BE BY SPECIAL STATE CONVENTIONS IN THE THIRTEEN STATES (NOT BY THE STATE LEGISLATURES).

2. THE CONSTITUTION WOULD BE ADOPTED WHEN RATIFIED BY THE

CONVENTIONS OF NINE OF THE THIRTEEN STATES (UNANIMITY WAS NOT REQUIRED).

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WALK THROUGH THE CONSTITUTION Answers to Questions for Discussion

NOTE: The teacher is encouraged to work through these questions in advance of using them in class. However, because of the many requests to provide suggested answers, we are including the following. BE AWARE THAT THE ANSWERS TO MANY QUESTIONS WILL VARY AND THAT DISCUSSION SHOULD BE ENCOURAGED. The Preamble 1. What is a preamble? (The Preamble is the prologue of the Constitution, which proclaims the

Constitution’s authority and ends to be accomplished.) 2. Why start the Constitution with a preamble? (It tells the reader the purposes of the Constitution.) 3. What does the Preamble have to do with the Social Contract Theory? (The Preamble clearly states

that governments are formed by the consent of the people – “We the People ....” This is complementary to the Declaration statement, “... governments are instituted among men, deriving their just powers from the consent of the governed....“)

4. Originally, the first draft of the Preamble read:

We, the People of the States of New York, New Jersey, etc. (thirteen states)...

If we had accepted this version, how might it have affected the history of our country? (This is how the Articles of Confederation begins. The history of the nation could have been affected by vesting full sovereignty in the independent states rather than in the people of the United States.)

Article I 1. Section 1: Under the Articles of Confederation, we had one branch of government. The Legislature

consisted of one branch. Why did the Framers of the Constitution divide the legislative power between two branches? (Only Benjamin Franklin supported a unicameral [one-house] legislature. The framers opted for a bicameral legislature where one house [the House of Representatives] would reflect the popular or democratic elements in society and the other house [the Senate] would represent the states [and more aristocratic elements].)

2. Section 2, Clause 1: What is the significance of this Clause? (It gives terms of office* for the U.S.

House of Representatives. It also tells the qualifications of voters to select members of the House.) 3. Section 2, Clause 2: What are the qualifications for the House of Representatives? (*25 years of

age; 7 years a U.S. citizen; resident of the state in which he or she shall be chosen.) 4. Would you favor a Texas law limiting the terms of members of the U.S. House of Representatives and

Senate? (This is an opinion question. No answer should be considered incorrect.) 5. Section 2, Clause 3: Why is this clause obsolete today? (It was changed by Amendment XIV, Sec.

2.)

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6. Section 2, Clause 5: What is meant by impeachment? (Impeachment means bringing charges against “the President, Vice President and all civil officers of the U.S.,” which can lead to removal from office.)

7. Section 3, Clause 1: Why and how was this clause changed? (The people now directly elect

Senators. See Amendment XVII.) 8. Section 3, Clause 3: Why not have the same qualifications as for members of the House of

Representatives? (Senators were originally selected to represent the interests of the states. The staggered terms allows for continuity of government. A senator must be older but not necessarily smarter or wiser.)

9. Section 3, Clause 4: What position does the vice president hold in the legislative branch? (The vice

president is President of the U.S. Senate.) 10. Section 3, Clause 6: Describe an impeachment trial. (*The Senate has the sole power to try all

impeachments. They sit under oath. In the case of a presidential impeachment trial, the chief justice shall preside. Conviction takes a two-thirds vote of members present.

11. Was any U.S. President impeached? (Yes, two. Andrew Johnson and William Jefferson Clinton were

impeached.) 12. Section 3, Clause 7: What is the punishment in cases of impeachment? (Impeachment could lead to

removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.)

13. Section 5, Clause 2: Have any elected Congressmen been punished for disorderly behavior?(Yes.) 14. Section 6, Clause 1: Why should members of Congress be given Congressional Immunity from

certain types of lawsuits? (So that they will not be distracted from their congressional duties and harassed by their political enemies.)

15. Section 7, Clause 1: Why was this provision included in the Constitution? (The House of

Representatives is the people’s house. All tax bills start with the representatives elected by the people. “No taxation without representation.”)

16. Section 7, Clauses 2-3: Which important principle of government does this incorporate? (The

principle is how a bill becomes a law in a system of representative government with separation of powers and checks and balances. Both houses must pass each bill in identical language in our bicameral system.)

17. Section 8: Which power did Congress use to pass each of the following laws?

Social Security (Clause 1—general welfare) Regulation of Airlines (Clause 3—commerce) Civil Rights Laws (Clause 3—commerce) The Stock Market (Clause 3—commerce [all above coupled with Clause 18 -- necessary and proper])

18. Section 9: How many rights of individuals can you find listed in this section? (Number will vary.)

Section 9, Clause 1: What was the purpose of this clause? (Deals with the slave trade.) 19. Section 10: How many rights of individuals can you find listed in this section? (Number will vary.)

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20. Does the Congress have too much power today? Can you think of any proposals relating to Congress which you would like to incorporate into the Constitution? (Answers will vary; there are no incorrect answers.)

Article II—Section 1 1. Who can be President of the United States? (Qualifications for president include natural born citizen;

35 years of age; 14 years resident of the United States.) 2. Each state is entitled to how many electors? (Each state is entitled to the number of electors equal to

the whole number of Senators and Representatives to which the state may be entitled in Congress.) 3. Can an elector vote both for presidential candidate and vice-presidential candidate from his/her home

state? (No—see Article II, Section 1, Clause 3, which has been superseded by Amendment XII.) 4. Can a U.S. Senator be an elector? (No.) 5. If the Electoral College fails to elect the president, who selects the president? (The House of

Representatives—see Article II, Section 1, Clause 3, which has been superseded by Amendment XII.) 6. If the Electoral College fails to elect a vice-president, who selects the vice-president? (The Senate—

see Article II, Section 1, Clause 3, which has been superseded by Amendment XII.) 7. Can the president receive a pay raise during his/her term? (No—see Article II, Section 1, Clause 7.) 8. Who administers the presidential oath of office? (The Constitution states the oath of office but is

silent on who must administer the oath. The chief justice, by tradition, administers the oath under normal circumstances.)

9. What words have been informally added to the oath of office? (This clause contains the presidential

oath. George Washington began the tradition of adding the words, “ ... so help me God.”) 10. What body sets the date of a presidential election? (The Congress—see Article II, Section 1, Clause

4.) Article II—Section 2 11. Is the president the commander-in-chief of the Air Force? (The president shall be commander-in-

chief of the Army and Navy of the United States. By tradition and interpretation, this is taken to also include the air force.)

12. Is the cabinet specifically mentioned in the Constitution? (The closest the cabinet comes to being

mentioned in the Constitution is in Article II, Section 2, Clause 1, where “principal officer in each of the Executive Departments” is found.)

13. Was the pardon of Richard Nixon by President Gerald Ford constitutional? (Yes—Article II, Section 2,

Clause 1.) 14. Who chooses the U.S. Ambassador to Japan? (The president with the advice and consent of the

Senate chooses ambassadors—see Article II, Section 2, Clause 2.) 15. Who nominates U.S. Supreme Court justices? (The president with advice and consent of the Senate

nominates Supreme Court justices—see Article II, Section 2, Clause 2.)

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16. What body (or group) must consent to major presidential appointments? (The Senate—see Amendment XXV [in the case of a vacancy filled in the vice-presidency, approval is by Congress.)

Article II—Section 3 17. Must the president deliver the State of the Union message in person? (No. Jefferson and Taft

delivered the State of the Union in writing. Wilson started [revived] the tradition of giving the State of the Union in person.)

18. Can the president adjourn Congress? (Yes, but only in the case of disagreement between the two

houses [House of Representatives/Senate] as to the time of adjournment --.) 19. Must the president receive a foreign ambassador? (No. He “shall receive ambassadors,” but he is

not required to do so.) 20. Can the president introduce a bill in the House of Representatives? (No. Article I, Section 7 deals

with how a bill becomes a law. A bill may be introduced in the House only by a representative and in the Senate only by a senator— Article II is silent on the matter.)

Article II—Section 4 21. Must the president violate a criminal law to be impeached? (Most constitutional scholars say no.) 22 Can a United States Senator be impeached? (No. Members of the House and the Senate are not

civil officers of the United States. Senator William Blount of Tennessee was impeached in 1797, but the Senate, which decided that members of Congress are not civil officers, dismissed the proceedings against him. [The Senate did expel Senator Blount, however.])

23. Has any president ever been impeached? (Yes. Andrew Johnson and William Jefferson Clinton.) 24. Has any president ever been impeached and removed from office? (No.) Article III 1. How are members of the Supreme Court and all other federal courts chosen? (The president

appoints members of the U.S. Supreme Court and all other federal courts with approval by the U.S. Senate. Note: This is not found in Article III but in Article II, the executive article.)

2. What is the term of office of members of the Supreme Court? (Article III provides that “judges, both

of the supreme and inferior courts, shall hold their officers during good behavior. This has been interpreted to mean for life .” S om impeachable offenses for U.S. judges differ from those for other officers, such as the president, who is chosen for a fixed term. In other words, in addition to “treason, bribery, or other High Crimes and Misdemeanors,” for which the president and other officers may be impeached, the argument is that federal judges may be impeached for “willful misconduct in office, failure to perform their duties, habitual intemperance, or other conduct that brings the judicial office into disrepute.”)

3. What qualifications does Article III say one must have to be a federal judge? (Article III is silent

regarding any qualifications one must have to be a federal judge. Note: An examination of those who have been appointed with reveal that in reality there are certain qualifications.)

4. How many members of the Supreme Court are there? (Article III is silent on the number of members

of the U.S. Supreme Court. Congress by law sets the number. The first U.S. Supreme Court in 1789 had six members. Congress set the number at nine in 1869.)

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5. What is the power of the Supreme Court? (The judicial power extends to all cases, in law and equity, involving certain federal questions [such as cases arising under the Constitution, a federal law, or a treaty] and certain parties [such as cases in which the U.S. is a party, a state is a party, or citizens of different states are parties]. Note: Article III does not specifically mention the Supreme Court’s power of judicial review.)

6. What cases begin at the Supreme Court? (Article III states that “in all cases affecting ambassadors,

other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.” This means that such cases would begin [first be heard] at the Supreme Court. In reality, the Supreme Court rarely takes cases under its original jurisdiction because the Court feels it is not equipped at fact-finding. Most original jurisdiction cases have involved disputes between two or more states over water rights or land. [A recent example was the case of New York v. New Jersey over ownership of Ellis Island.] As Professor Henry Abraham has noted in his The Judicial Process, “These cases are a very minor factor in the work of the Court; there have only been approximately 165 such cases in its entire history.”)

7. Besides creating the Judicial Branch, Article III speaks of what important right of the people? (Article

III also guarantees the right to a trial by jury to persons accused of crimes by the national government.)

8. What is needed to convict a person of treason? (Article III defines treason as levying war against the

U.S. or “in adhering to their enemies, giving them aid and comfort.” It then provides that no person can be convicted of treason without the testimony of two witnesses to the same overt act “or on confession in open court.”)

9. Who is given power to regulate the Supreme Court's appellate jurisdiction? (The U.S. Congress is

given the power to make exceptions to and regulate the U.S. Supreme Court’s appellate jurisdiction. Congress’ power is illustrated by the U.S. Supreme Court’s decision in the 1869 case of Ex Parte McCardle.)

10. What is the title of the person who presides over the Supreme Court? (The title of the person who

presides over the U.S. Supreme Court is Chief Justice of the United States. This title is not conferred, however, in Article III but in Article I, Section 3, Clause 6.)

The Federal Article or Interstate Relations Article IV—Section 1—Full Faith and Credit Clause 1. Joe and Jane marry in Texas. They move to California. Are they married under California law?

(Yes.) 2. Joe and Jane marry in Texas. Jane then goes to Reno, Nevada, and obtains a divorce. Will Texas

recognize the divorce? (Not necessarily.) 3. Joe sues Bob in the State of Texas for breach of a business contract and wins a judgment of

$1,000,000. To avoid paying the judgment, Bob leaves Texas and settles in New York State. Does Joe have to initiate a new lawsuit in New York and obtain another judgment? (No.)

Section 2—Interstate Citizenship Clause 1—Privilege and Immunity Clause 1. Can Alaska require private employers in the oil and gas exploration and transportation business to

use only Alaska residents to alleviate its unemployment problem? (No.)

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2. Can a state require that state police officers be citizens of that state? 3. Montana charged nonresident elk hunters a higher fee than its own residents. Is it constitutional?

(Yes.) Clause 2 1. In 1976, Governor of California Jerry Brown refused to extradite Dennis Banks, an American Indian

activist to South Dakota from which he had fled, after being convicted of "felony riot." Is that constitutional? (Not really.)

2. In 1984, Utah Governor Scott M. Matheson rejected an extradition request from Illinois for a business

official wanted for trial for murder because of an industrial accident in one of his company's plants. Is that constitutional?

Clause 3 1. What is the historic significance of this clause? (Fugitive slaves) 2. What is the status of the clause today? (It is obsolete—changed by the Thirteenth Amendment.)

Section 3—Admitting New States Clause 1 1. In admitting a new state, can Congress require:

a) That the State of Oklahoma keeps its capitol at Guthrie for seven years? (Yes.)

b) That Arizona removes from its proposed Constitution provisions permitting the voters to recall state judges? (Yes.)

2. Which states have been formed from other states? (Vermont from New York, 1792; Tennessee from

North Carolina, 1796; Maine from Massachusetts, 1820; West Virginia from Virginia, 1863) 3. When Texas was admitted into the Union, Congress agreed that the state could be divided into ___

states, if the Texas legislature agreed. (Five) Clause 2 1. Which territories does the Congress control today? (Guam, Northern Marinas, American Samoa,

Virgin Islands) 2. Does the Constitution follow the flag? (In fundamental provisions) Section 4—Guarantee of a Republican Form of Government. 1. Where in the Constitution do we find a definition of a republican form of government? (It is not in the

Constitution.) 2. Senator Charles Sumner once referred to the Guarantee Clause "as a sleeping giant." Do you agree?

(Answers may vary.)

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1. In 1842, the people of Rhode Island elected two governments, each of which claimed to be the legitimate government of the state. Under our Constitution, how is a crisis of this nature resolved. (The Supreme Court called the question political.)

Article V 1. Is there a part of the Constitution that cannot be amended? (Yes. “No state, without its consent, shall

be deprived of its equal suffrage in the Senate.”) 2. What two groups may propose amendments to the Constitution? (Congress and a convention [on the

application of the legislatures of two-thirds of the states] may propose amendments.) 3. What is the only group that has proposed an amendment to the Constitution since 1789? (Congress) 4. What percentage of the states must agree to ratify an amendment to the Constitution? (Three-fourths

of the states must agree.) 5. When was the last constitutional convention? (1787 in Philadelphia was the year of the last

constitutional convention. This is the convention that wrote the Constitution.) 6. Are there any proposed amendments by the Congress that the states refused to ratify? (Yes, there

are six. See the General Session Notebook.) 7. Has any amendment ever been ratified by conventions in the states? (Yes, Amendment XXI, which

was ratified in 1933.) Article VI 1. What three things make up the supreme law of the land? (The U.S. Constitution, laws of the U.S.

made in pursuance of the Constitution, and treaties are the supreme law of the land. In other words, Article VI provides for national government supremacy within the scope of its powers.

2. What important religious guarantee is found in Article VI? (Article VI provides that no religious test

shall ever be required for holding any office under the government of the U.S.) Article VII 1. By whom or what was the Constitution to be ratified? (The U.S. Constitution, written at the convention

at Philadelphia, was to be ratified by special state conventions in the thirteen states.) 2. The ratification of the Constitution by how many states was required for it to take effect? (Ratification

of the U.S. Constitution by special state conventions in only nine of the thirteen states was required for the Constitution to take effect. Note: In reality, everyone realized that ratification by the conventions in Virginia and New York was essential.)