What is most teachable about the Constitution?

Teachable Points about the Constitution. An exciting way to teach the Constitution can begin with one centrral idea - the Founding Fathers were not a unified bunch of policymakers. Indeed, as the map shows, there were huge pockets in the early Republic that did not favor ratifying the Constitution. So, how did it come to be passed despite such disagreement. Here comes our course theme - Controversy, conflict and compromise shaped and continues to shape both historical dialog and debate. As we have already learned, there were plenty of controversies, there was a great deal of conflict, and the only way the Constitution became a reality was because the Founders agreed to compromise.

One of the ways to really get our students to think about what the Constitution says after they understand the controversy, conflict, and compromise that made it possible is to have them analyze it in regard to its five main principals: popular sovereignty, limited government. federalism, separation of powers, checks and balances.

• Popular Sovereignty. The principal of popular sovereignty is based upon the idea that the people hold the power under the constitutional government. However, debate has surrounded this principal before and during the signing of the Constitution and has contributed to over two centuries of partisan debate about sovereignty. The question for debate is - who has the power? Jack Racove, a Constitutional historian from Stanford, argues that the real issue is not what the Founders actually signed in Philadelphia - but instead, what some Founders thought they had signed. This is the heart of the historical and contemporary debate about sovereignty.
  • To most southern state legislators the states were sovereign and that ratification of the Constitution was a contract between the sovereign states and the new federal government. Because they freely entered into that contract, most southerners felt they had the right to break that contract at any time they felt the government had violated the rights of the states.
  • Most northern delegates to the Constitutional Convention, however argued that the people were sovereign and that ratification of the Constitution was a contract between the people and the new federal government. They felt the contract was binding and represented a permanent union between the 13 states and any others that would eventually be incorporated into the new nation.

• Limited Government. This principal of limited government holds that if the liberty of individuals were to be safeguarded, government must be limited in power. Thus, the self-governing people organized their own government and then granted to that government only the limited and few powers with which the people think the particular government may sensibly be entrusted without endangering their liberties or freedoms. These powers constitute the "just powers" of government, as the Declaration of Independence phrases it. And "limited" means limited by a written Constitution adopted by the sovereign people as their basic law.
  • The contemporary debate over limited government is complicated by the question about what the Founders actually meant by the "Necessary and proper" clause in Article I, Section 8, Clause 18: "The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (It was not known as such until 1926.)
  • The debate over what the Founders meant began in 1791 when Alexander Hamilton used the clause to argue that creating thet nation's first federal bank was constitutional under the clause. James Madison, who strongly opposed this argument, feared that monied Northern aristocrats would take advantage of the bank to exploit the South and thus argued that Congress lacked the constitutional authority to charter such a bank.
  • The Bank was chartered, but the arguments lingered for almost three decades before the U.S. Supreme Court weighed in with a decision.
    • Loose Constructionist Interpretation - In 1819 the U.S. Supreme Court in McCulloch v. Maryland was asked if Congress had the power to create a national bank – a power that had not been specifically enumerated in the Constitution. Chief Justice John Marshall wrote for a unanimous court that because the word “expressly” had not been included in the 10th Amendment, Congress - through implied powers - had the right to create the bank.  Further, he wrote:  “This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs" Thus, Congress had the right to change constitutional law whenever it was "necessary and proper."
    • Strict Constructionist Interpretation - The other side of the debate was well-articulated in 2003 by Supreme Court Justice Antonin Scalia who said in a speech to the university of Mississippi:  “If you have a living Constitution, the only kind of Constitution that you’ll have is the kind of Constitution the society of that time wants." Thus, what the Constitution said when written was what it meant - and it could only be changed by the people only by amendments when they may see fit. The Constittion was not a document to be interpreted by Congress, the President, or the U.S. Supreme Court. It could only be re-interpreted or changed by the people through the amendment process

• Federalism. The principle of federalism is a type of governmental organization that combines the central or federal government with regional or state governments into a single political system in which the two levels share a division of power. This is perhaps the most important and controversial principal upon which the Contitution was built. Remember, the Constitution replaced the Articles of Confederation - which gave all major power to the individual states - and instead, gave the vast majority of the limited powers to the federal government. Throughout the entire Constitutional Convention, the Founders debated this shift - and as the map above indicates, the Constitution was ratified by only a small majority - many southerners who came to be known as anti-federalists did not favor the new constitution.
  • The debate today is just as heated. Let's take the contoversy over gay marriage and place it within the context of Federalism.
    • One side of the debate argued that prohibiting gay marriage in any state violated the civil rights of Americans. In a federal system, proponents of gay marriage argued - and the U.S. Supreme Court upheld on July 26, 2015 - that marriage must be legal everywhere in the United States so that the rights of all Americans are guaranteed and protected.
    • The other side of the debate - which also used the limited powers argument - argued that nowhere in the Constitution does it guarantee the rights of gay people to marry. Thus, according to both the limited powers granted by the Founders and the 10th Amendment which leaves all powers not specifically enumerated in the Constitution to the states, only the states had the right to allow or prohibit gay marriage.

• Separation of Powers. The principle of separation of powers holds that government is best organized by separating the powers between three different branches - the Legislative which essentially writes and enacts laws, the Executive which may veto or pass laws, and the Judicial which determines the constitutionality of laws. While the philsophy behind this principal was not new, putting it into practice and into a body of law was unique to the world with the ratification of the United States Constitution.

• Checks and Balances. The principle of checks and balances allows each of the three branches of government to limit the powers of the others. This way, no one branch becomes too powerful. Each branch "checks" the power of the other branches to make sure that the power is balanced between them. The best way to understand how the process of checks and balances functions is to understand how a bill becomes a law.
  • Both houses of Congress get a chance to check and balance an act that is introduced. It must be heard in several committees in both chambers of the house and it must be passed by both houses of Congress.
  • The President checks Congress by either signing the act into law or vetoing it.
  • Then, Congress gets another check if the Senate wishes to override the presidential veto.
  • Once a law is in place, the people can test it through the court system, which is under the control of the judicial branch.
    • If someone believes a law is unfair, they can file a lawsuit.
    • Lawyers then make arguments for and against the case, and a judge decides which side has presented the most convincing arguments.
    • The side that loses can appeal to a higher court, and the case may eventually reach the U.S. Supreme Court.
  • If the legislative branch does not agree with the way in which the judicial branch has interpreted the law, they can introduce a new piece of legislation, and the process starts all over again.