American Government and the Constitution Lecture Eight

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12


We will have a midterm exam in two weeks. This is a good time for review.

There are seven Articles in the Constitution, and 27 Amendments. The Articles are these:

Article I - legislative branch
Article II - executive branch
Article III - judicial branch
Article IV - relationship of the States
Article V - amendment process
Article VI - Supremacy Clause, requirement of oaths but no religious test for office
Article VII - ratification procedure

Articles I, II, and III are obviously the most important Articles. Article VI is much shorter, but contains the immensely powerful "Supremacy Clause" in its clause 2, which establishes that federal law is "supreme" over state law. Here is the entire Article VI:

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Current Event: Amnesty by Executive Order?

One of the biggest issues of the past year has been whether the federal government should grant amnesty to illegal aliens (people who move to our Nation illegally). The amnesty would provide the illegal aliens a way to become American citizens despite entering our Nation unlawfully.

The media and the Democratic Party strongly favor granting amnesty to illegal aliens, partly because more than 80% of illegal aliens are expected to vote for Democrats if they become citizens. (Federal law prohibits non-citizens from voting in federal elections, but some non-citizens are allowed to vote for state or local candidates in some areas of the country.)

The House of Representatives is currently controlled by the Republican Party, which is opposed to illegal immigration and opposed to amnesty. The House therefore has not passed any laws to grant amnesty to people who are in the United States illegally.

President Barack Obama, a Democrat, has promised to grant amnesty by "executive order" (an action by the Executive Branch without congressional approval) if Congress fails to pass a law giving amnesty.

The question is this: to whom does the Constitution give authority over immigration and illegal aliens? The answer is in Article I. Does the President have any authority under the Constitution to grant citizenship to illegal aliens?

Against Whom Does the Constitution Apply?

The Constitution applies to government, not to private organizations. For example, there is no "right to free speech" on someone else's private property. The Bill of Rights does not give any rights to someone who is on someone else's property. Instead, the Bill of Rights limits what government may do.

Many people fail to recognize this basic structure of the Constitution, and mistakenly think they have rights under the Constitution with respect to the property of other people.

In Shelley v. Kraemer (1948), the U.S. Supreme Court ruled that court enforcement of a private contract prohibiting a plot of real estate from being occupied by non-White persons constitutes state action governed by the Equal Protection Clause of the 14th Amendment. Because the state action (court enforcement) was racial discrimination, it was a violation of the Constitution (the Equal Protection Clause of the 14th Amendment). But that case was unusual. The general rule is that the Constitution prohibits discrimination (and other conduct) only by government, not by private organizations or individuals.

As another example, suppose, that a television network punishes an actor for speaking out against same-sex marriage in a magazine interview, as a star on Duck Dynasty did. Does that infringement on free speech by the television network violate the First Amendment? The infringement on free speech is wrong, but it does not violate the First Amendment because a television network is not the government.

Amending the Constitution

Article V sets forth the processes for amending the Constitution:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

All of the amendments in history have been based on the first method: two-thirds of the House of Representatives and Senate initially pass the proposed amendment, then it is sent to the States for three-quarters of them to ratify it.

History of Unsuccessful Amendments

Congress has passed proposed amendments to the Constitution which have failed to attain approval by three-quarters of the States, and thus never became part of the Constitution. Here are some examples:

Article 1 of the original Bill of Rights

The very first proposed amendment, Article I to the original Bill of Rights, was never ratified by three-quarters of the States. This first proposed amendment passed Congress in 1789 but was ratified by only ten states as of 1791. (Why wasn't that enough?) This proposed amendment specified how many people a member of the House of Representatives would represent, and said that once the number of members in the House of Representatives grew to 100, then the total would not be reduced below 100; once the House attained 200 members, then it could not go below 200. There are 435 members of the House of Representatives today, so the amendment would have no significance now anyway. Perhaps people had trouble understanding what the purpose of the amendment is, and maybe that is why it did not pass.

Here is the text of the proposed amendment:

After the first 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 be not 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.

The Anti-Nobility Amendment

This proposed amendment in the early 1800s, which passed Congress by more than a two-thirds vote, shows how opposed early Americans were to nobility and other official titles of honor:

If any citizen of the United States 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, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

This never became part of the Constitution.

The Slavery Amendment

This proposed amendment in 1861 attempted to avert the Civil War. Abraham Lincoln supported it:

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 laws of said State.

The ratification of the 13th, 14th and 15th Amendments may not have been possible if this proposed amendment had been ratified.

The Child Labor Amendment

The progressive movement sought to outlaw child labor, and its following attempt to give Congress the power to prohibit all work by anyone under 18 years old was passed by Congress in 1926 and then ratified by 28 of the States. (Question: how many more States were needed to ratify it in order for it to become part of the Constitution?) This unsuccessful amendment stated that:

Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

The Equal Rights Amendment (ERA)

The so-called Equal Rights Amendment (not an official title) was passed by Congress in March 1972 with a seven-year deadline for ratification. Then, in 1979, Congress extended the deadline for ratification by another three years.

This amendment was quickly ratified by 35 States, only three short of the 38 States needed for it to become part of the Constitution. Then a massive grassroots movement called "STOP ERA," led by Phyllis Schlafly from the small town of Alton, Illinois, defeated the amendment by preventing it from passing in any additional States. Several States that had passed it later rescinded their approval of it. The proposed amendment stated:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

The Washington, D.C. Voting Rights Amendment

This amendment would have given the residents of Washington, D.C., the same representation in the House and Senate that States have. Currently D.C. has no representation in Congress but, due to the 23rd Amendment, D.C. does have votes in the Electoral College.

This proposed amendment was passed by Congress in 1978, but expired in 1985 without ratification by three-quarters of the States:

Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.

Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The 17th Amendment

Recall that the Framers never wanted to establish a democracy. The original Constitution did not allow the U.S. Senate to be elected by the people. Instead, each state legislature selected the two senators who would represent the State. In 1858, the people of Illinois preferred Abraham Lincoln rather than Stephen Douglas to be their U.S. Senator from Illinois in that year's election, but the Illinois legislature preferred Stephen Douglas. So Douglas rather than Lincoln was chosen as the Illinois U.S. Senator that year.

Look again at Article I, Section 3, clause 1:

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years; and each Senator shall have one Vote.

The State legislatures, not the people, selected the U.S. Senators under the original Constitution.

The Framers, as delegates to the Constitutional Convention, were not themselves elected by the people, and the Framers preferred a system of legislatures picking national representatives. Also, the Framers thought that, by giving this power of choosing senators to the state legislatures, this would increase the likelihood that the Constitution itself would be ratified by the state legislatures. The House of Representatives would be elected by the people, and there was no need for the Senate to be elected by the people also. Instead, that power was deliberately granted to state legislatures by the Framers.

Decades later, as slavery began to cause intense divisions with our Nation, and within individual States, the filling of vacant U.S. Senate seats became contentious by the mid-1850s. Indiana, for example, became divided between the pro-slavery (Democrat) faction in its south and the anti-slavery (Republican) faction in its north, and for two years the Indiana legislature was unable to fill its vacant Senate seat. Even after the slavery issue was resolved, bitter disputes arose in state legislatures such that there were long delays in filling their vacant U.S. Senate seats. In 1899, the Delaware state legislature failed for four years to fill a vacancy in the U.S. Senate. Elections, in contrast, guarantee that someone will win. Leaving something to a legislature could (and did) result in a failure to approve anything.

The rise of the progressive movement in the late 1800s and early 1900s caused the transfer in the power to select senators from state legislatures to the people. The progressive movement sought to increase the control of the average American over government. The progressive movement did not seek "less government," as conservatives do, but "better government." Part of that dream of "better government" was to have more input and control by the people themselves, directly, over government.

Both the U.S. Senate and some state legislators resisted the demands by the progressive movement to enable the people to elect directly the senators. Beginning in the 1890s, the House of Representatives passed resolutions proposing to amend the Constitution in order to have the direct election of senators, but every time the Senate refused even to hold a vote on the proposed amendment. It was obvious that the Senate itself did not want to approve an amendment that would change how senators were to be elected.

States then turned the second method for amending the Constitution: hold a constitutional convention. When 2/3rds of the States apply to Congress for it to call a new constitutional convention, then Article V requires Congress to call one. State-by-state, resolutions were passed to require Congress to call a constitutional convention, and by early 1911 the necessary total of 2/3rds of the States had nearly been attained.

A close vote in the U.S. Senate in May 1911 approved the proposed 17th Amendment in order to avert a constitutional convention. The delay was then in the House, which took more than a year to approve the Senate's amendment. Subsequently, three-quarters of the States ratified the 17th Amendment. Some state legislatures even passed it unanimously, despite how many legislators opposed it. That reflects how strong the media pressure was to pass it.

Some today consider the ratification of the 17th Amendment to be one of the biggest mistakes our Nation made in changing the original Constitution. The 17th Amendment weakened the power of state legislatures and undermined federalism by strengthening the power of the national government. U.S. Senator Mike Lee, who represents Utah, has called for the repeal of the 17th Amendment. But most Senators like the 17th Amendment because it is easier for them to be reelected in an election by the people, than to be reappointed by a state legislature opposed to the policies of the federal government.

Article V Convention

Article V of the Constitution states, in relevant part, that “Congress, ... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which … shall be valid … as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” For very good reasons, this method for changing the Constitution has never occurred.

Congress, and only Congress, holds all the power to "call" the Convention – i.e., set the rules, pick the location, and choose the delegates or define the process by which delegates will be chosen. As a practical matter, this means two people in Washington, D.C. -- the Speaker of the House and the Senate Majority Leader—would decide the who, when, where, etc., for any Article V Convention. No such convention has occurred since the original Constitutional Convention, which wrote and approved the U.S. Constitution.

There have been constitutional conventions in States, which are not "Article V Conventions." The result of those conventions has always been a long-winded, tedious document. There was the New Jersey Constitutional Convention of 1947 which convened at Rutgers, for which the official record is available online.[1]

Calls today for an Article V Convention

Today a few "talk radio"[2] types are trying to persuade two-thirds of the state legislatures to pass a resolution requiring an "Article V Convention" to amend the Constitution. Most conservatives oppose this idea because a new constitutional convention could change or remove much that is good about the Constitution. For example, a new constitutional convention could put a right to abortion in the Constitution, it could repeal the Second Amendment protection of the right to bear arms, and it could place a right to same-sex marriage in the Constitution. The powerful, liberal media would have enormous influence over a new constitutional convention.

James Madison stated on November 2, 1788, shortly after ratification of the original Constitution by 11 out of the 13 states:

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America, and under all the disadvantages I have mentioned.

Benjamin Franklin expressed a similar view in a speech he made at the Constitutional Convention, on the day before the original Constitution was signed on Sept. 18, 1787:

I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats.


Begin to review for a midterm exam in two weeks. Also answer four out of the following five questions:

1. Explain, in your own words, how the 17th Amendment changed the Constitution and the process by which that happened. What is your view of the 17th Amendment?

2. What is an "Article V Convention," and what steps are necessary before it can occur? Would you support holding an Article V Convention today? Explain.

3. In your opinion, which of the proposed, unsuccessful amendments was the worst, and which was the best?

4. Answer any of the questions in the lecture, or explain whether Article VI prohibits a town from establishing a religious test before someone can become its mayor.

5. If a private club limits what people can say at the club, does that violate the Constitution? Explain your answer.


Begin to study for a midterm exam in two weeks. Also answer two out of the following three questions:

6. Can you think of good reasons for not ratifying the Equal Rights Amendment (ERA)?

7. The Constitutional Convention was held in complete secrecy. Would that be possible for an Article V Convention today? What impact would the media have on an Article V Convention today?

8. Answer any question in the lecture (but do not duplicate your answer, if any, to question 4).


  1. NJ Constitutional Convention of 1947
  2. The term "talk radio" refers to entertainers who have talk shows on radio, usually from a conservative perspective but often self-promoting and not part of any grassroots conservative movement.