Lecture 0-3

Adaptability

• Most changes in the Constitution have occurred because the Constitution is adaptable.

• More on this later

Powers of the Government

• Delegated

– Expressed (Enumerated)

– Implied

• Reserved

• Concurrent

• Denied

“Formal” Amendment

• Formal change of the Constitution has occurred 27 times, including the 10 changes in the bill of rights (1791).

• Each amendment has become part of the constitution thought the first of the two amendment procedures the constitution provides.

“Informal” Amendment

• Reinterpreting the Constitution

• Possible because:

– The constitution does not say much

– What it does say is vague

• Most changes have been “Informal” Amendments

The “Second Constitution”: the Civil War Amendments

• Changes federalism

• Increased the power of the national government

• Gives the national government power to regulate the states in the area of Civil Liberties and Civil Rights

The “Second Constitution”: the Civil War Amendments

• Civil Liberties

– Takings Clause of the 5th Chicago, Burlington & Quincy Railway Co. v. Chicago 1897

– Freedom of Speech and Press Gitlow v. New York 1925 (Textbook answer)

• Civil Rights (Equal Protection)

– Brown v. Board of Education 1954 (Race)

– Craig v. Boren 1976 (Sex)

The “Third Constitution”: the Welfare State

• Loose interpretation of the power to tax and spend to “promote the general welfare.”

• 16^th Amendment Income Tax – Source of Revenue

Judicial Review Comes to the Supreme Court

Marbury v. Madison (1803)

• The decision was the first time in which the Supreme Court invalidated and act of Congress as being in conflict with the Constitution

• Even though the Constitution does not mention judicial review, many of the framers assumed the Court would exercise the power

• But the framers and Marshall most probably viewed Judicial Review as a modest check

Review of State Actions

• Fletcher v. Peck (1810)

– Federal Judicial Review of State Legislative acts

• Martin v. Hunter’s Lessee (1816)

– Federal Judicial Review of state court decisions

Comparative point of view

• UK – No Judicial Review except for EU

• France – Constitutional Council

– Limited Judicial Review