Introduction 1
About This Book 1
Conventions Used in This Book 2
Icons Used in This Book 2
Beyond the Book 3
Where to Go from Here 3
Part 1: Getting Started with the U.S. Constitution 5
Chapter 1: Identifying the Main Principles and Controversies of the Constitution 7
Defining "Constitution" 8
Knowing When and Why the Constitution Was Created 8
Summarizing the Main Principles of the Constitution 10
Identifying Some Areas of Controversy 13
Chapter 2: Probing Underlying Concepts: Big Thinkers, Big Thoughts 17
Building on Magna Carta 18
Respecting the Rule of Law (or the Rule of Lawyers?) 20
Analyzing the Concepts Underlying the Declaration of Independence 21
Invoking the law of nature 24
Securing "unalienable Rights" 24
"Deriving their just powers from the consent of the governed" 26
Establishing a Republic 27
Getting rid of the king 28
Leaving democracy out of the US Constitution 28
Chapter 3: Untangling Some Confusion and Ambiguities 31
Listing Some Sources of Confusion 32
Discarding Out-of-Date Ideas? 33
Clarifying Uncertainties 35
Giving Some Important Principles the Silent Treatment 35
Interpreting the Constitution 38
Changing the Constitution 38
Identifying methods of interpretation 39
Chapter 4: Catching a Bird's-Eye View of the Constitution 43
Presenting the Preamble: "We the People " 44
Article I: Setting Up the Congress 45
Magnifying the commerce power 45
(Mis)interpreting the "necessary and proper" clause 46
Article II: Hailing the Chief 46
Listing presidential powers and duties 48
Identifying the real issues 48
Article III: Understating Judicial Power 49
Article IV: Getting Along with the Neighbors - and Uncle Sam 50
Article V: Changing versus Amending the Constitution 51
Article VI: Fudging Federalism 52
Article VII: Ratifying the Constitution 52
Chapter 5: Changing the Constitution by Amendment and Interpretation 53
Noting the Four Paths to an Amendment 54
Explaining What Happens in Practice 55
Listing the Amendments 58
Debating the Need for Judge-Made Law 59
Dissenting views to restricting change 59
Maintaining proper amendment procedure 60
Sampling judge-made amendments 61
Part 2: We The People: How the United States is Governed 65
Chapter 6: Scrutinizing Sovereignty: Who Rules America? 67
Introducing "We the People" 68
Ordaining and establishing a Constitution 68
Resolving to preserve democracy 69
Defining democracy 71
Testing for democracy today 72
Hailing the Chief 73
Congress: Flexing Its Lawmaking Muscle 74
Giving the States Their Due 75
The High Court: Saying What the Law Is 76
Uncovering Conspiracies 77
Chapter 7: Defining Federalism 79
Tracing the Origins of US Federalism 79
Analyzing the founding documents 80
Forming "a more perfect Union" 81
Defining sovereignty 82
Can a state secede from the union? 83
Testing State Sovereignty: Some Recent Supreme Court Decisions 84
Foreign Affairs: Looking at the Influence of Treaties 88
Chapter 8: Separation of Powers: Checking and Balancing 89
No Moonlighting for the President 90
Keeping the Branches Apart 92
Membership 93
Functions 94
Checking and Balancing 97
Keeping each branch in line 97
Considering the judiciary's special position 99
Pondering the legality of executive orders 101
Examples of executive orders 101
Reviewing administrative regulations 103
Trumping the President 103
Chapter 9: Doing Business: The Commerce Clause 107
How the Commerce Clause Was Born 108
Interpreting the Commerce Clause 108
Hunting Down the Dormant Commerce Clause 109
Looking at double taxation and the Dormant Commerce Clause 109
Passing judgment 110
Tracing the Changing Meaning of the Commerce Clause 111
Protecting freedom of contract 112
Introducing the Four Horsemen and the Three Musketeers 112
Signaling the feds' control of the economy 113
Using the Commerce Clause to advance civil rights 114
Turning back the federal tide? 115
"Appropriating state police powers under the guise of regulating commerce" 115
Taking a step backward 115
Missing an opportunity? 116
Part 3: Assessing the Three Engines of Government: The President, Congress, and the Judiciary 117
Chapter 10: Examining the Role of the President 119
Being "eligible to the Office of President" 119
Interpreting "natural born Citizen" 120
Looking at the two-term rule 122
Picking a President 123
Examining the modern electoral system 124
Exploding some myths about the Electoral College 125
Canning the President 128
Signing, Vetoing, and Pocketing Legislation 129
Appointing Key Positions 130
Hailing the Chief: The President's Administration 131
Uncovering the secrets of Cabinet secretaries 132
Unmasking the imperial presidency 133
Unlocking the Executive Office of the President 134
Selling the President's legislative program 135
Battling Executive Privilege 137
Making War versus Declaring War 138
Controlling the President through the War Powers Act of 1973 140
Preventing presidential precedents? 141
Chapter 11: Giving Everyone a Voice: The House of Representatives and the Senate 143
Making the Laws That Govern the Land 144
One function, two houses 144
Keeping the President in the loop 145
Visiting the People's House 146
Representing the US population 146
Respecting the power of the Speaker 146
Controlling the nation's purse strings 151
Deciding disputed presidential elections 152
Impeaching the President and other civil officers 153
Declaring war 153
Getting to Know the Senate 154
Electing a senator 155
Presiding over the Senate 156
Advising and consenting 157
Passing Legislation 157
Tracking a bill's progress 158
Examining congressional committees 160
Chapter 12: "Saying What the Law Is": The Judicial System 163
Examining the Courts' Function 164
Defining jurisdiction 164
Applying the law 165
Appointments and Elections: Becoming a Judge 165
Judging the election process 166
Considering whether elections taint the judiciary 167
Understanding Judicial Independence without Accountability 168
Bypassing term limits and salary concerns 169
Grappling with issues the Constitution doesn't address 170
Making the Judiciary Paramount: Judicial Review 171
Understanding the nature of judicial review 172
Tracing the origins of judicial review 173
Noting Jefferson's response to Marbury v Madison 174
Considering alternatives for solving constitutional conflicts 174
Watching the Supreme Court's power seep into politics 175
Casting the Swing Vote 176
Labeling Supreme Court Justices 178
Stare decisis/free exercise of power 178
Judicial activism/judicial restraint 179
Chapter 13: You're Fired! Investigating the Impeachment Process 181
There's Nothing Peachy about Impeachment 182
"High Crimes and Misdemeanors": What Impeachment Is and Isn't 182
Defining impeachment 183
Can you be impeached for something that isn't a crime at all? 183
Explaining the Impeachment Process 185
Playing grand jury and prosecutor: The role of the House 185
Trying the articles of impeachment: The role of the Senate 186
Understanding the Implications of Impeachment 187
Impeaching isn't the same as convicting 187
Keeping Congress out of the fray 187
Impeaching for poor private conduct 188
Ducking impeachment with a pardon? 189
Tracking Impeachment in Action 190
A look at Johnson, Nixon, and Clinton 190
Judging the judges 192
Removing State Officials from Office 192
Impeaching governors 193
Total recall, or terminating a governor 193
Part 4: Guaranteeing Important Rights: The Bill of Rights 195
Chapter 14: The First Amendment: Freedom of Religion, Speech, and Assembly 197
Considering the Amendment's Wording 198
Prohibiting Congress from taking away rights 198
Applying the amendment to the states 198
Separating Church and State 199
Assuring the Free Exercise of Religion 201
Looking at belief and practice 201
Adopting a strict scrutiny test 202
Guaranteeing Freedom of Expression 203
Denying protection to speech creating a "clear and present danger" 204
Allowing obscenity to be seen? 205
Using and abusing the right to freedom of the press 206
Letting money talk 207
Leaking Classified Information 208
Having Your Cake 209
Protecting the Right to Assemble and Petition 209
Chapter 15: The Second Amendment: Bearing Arms 211
Debating Interpretation: Individual versus State Rights 212
Breaking Down the Amendment's Clauses 213
Understanding the states' rights interpretation 214
Explaining "the right of the people" 216
Upholding Individual Rights: DC v Heller 217
Considering the Continuation of the Debate 219
Clarifying the results 220
Continuing debate 221
Chapter 16: The Third and Fourth Amendments: Protecting Citizens from Government Forces 223
Keeping the Feds Out of Your House 223
Keeping the Government Off Your Back 226
Prohibiting "unreasonable searches and seizures" 227
Excluding evidence 230
Rewriting the Fourth Amendment 233
Defining "probable cause" 235
Forbidding police fishing expeditions 236
Searching people or premises without a warrant? 237
Chapter 17: Taking the Fifth - and a Bit of the Fourteenth 239
Invoking the "Great Right" against Self-Incrimination 240
Peeking Behind the Closed Doors of the Grand Jury 241
Deciding whether to indict 242
Victimizing suspects or protecting victims? 243
Avoiding Double Jeopardy 244
Applying the principle 244
Allowing for an end to litigation 244
Jeopardizing "life or limb" 245
Agonizing over Due Process 246
Trying to define the term 246
Triggering due process 247
Wrestling with substantive due process 248
Opening Up the Incorporation Debate 251
Does the Bill of Rights apply to the states? 251
Watching selective incorporation in action 252
Taking Private Property 254
Recognizing eminent domain 254
Losing protection 255
Chapter 18: Regulating Crime and Punishment: The Sixth through Eighth Amendments 257
Outlining Defendants' Rights in Criminal Prosecutions: The Sixth Amendment 258
Having the same rights in a state and federal trial 259
How speedy is a speedy trial? 259
Appreciating the need for a public trial 260
Guaranteeing trial by jury 261
Being "informed of the nature and cause of the accusation" 263
Confronting adverse witnesses 263
Compelling witnesses to attend 264
Demanding the right to counsel 264
Guaranteeing Jury Trials in Civil Suits: The Seventh Amendment 265
Prohibiting "Cruel and Unusual Punishments": The Eighth Amendment 266
Banning excessive bail 267
Removing excessive fines 268
Barring "cruel and unusual punishments" 268
Debating the death penalty 271
Chapter 19: Analyzing an "Inkblot" and a "Truism": The Ninth and Tenth Amendments 275
Reading the Constitution: The Ninth Amendment 276
Considering the Tenth Amendment 279
Analyzing the wording 279
Balancing power between federal and state governments 280
Determining the limits of federal power 281
Puzzling over "prohibited" powers 282
Disentangling states' rights from individual rights 284
Giving the Tenth Amendment its due 286
Part 5: Addressing Liberties and Modifying the Government: More Amendments 287
Chapter 20: States' Rights, Elections, and Slavery: The Eleventh through Thirteenth Amendments 289
The Eleventh Amendment: Asserting State Sovereign Immunity? 290
Overruling the Supreme Court 290
Interpreting the Eleventh Amendment 290
Cleaning Up the Framers' Political Mess: The Twelfth Amendment 292
Electing the President: The original rules 292
Understanding politics 1796 style 293
Tying and vying with your running mate: The 1800 election 293
Preventing future chaos 294
Removing the Blot of Slavery: The Thirteenth Amendment 294
Tracking the debate on slavery 295
Sliding into secession 296
Considering the Corwin amendment 297
Graduating from emancipation to abolition 298
Introducing an entirely different thirteenth amendment 299
Chapter 21: The Fourteenth Amendment: Ensuring Equal Protection 303
Defining Citizenship 304
Understanding States' Obligations 306
Disentangling state citizenship 307
Analyzing "privileges or immunities" 307
Achieving "Equal Justice Under Law" - Or Not 309
Age discrimination 310
Capital punishment 310
Racial segregation 311
School busing 311
Affirmative action 312
Gerrymandering 314
Disqualifying Confederates from Office 316
Repudiating Confederate Debts 316
Empowering Congress 316
Chapter 22: Starts, Stops, and Clarifications: Amendments since 1870 319
Removing Race Qualifications for Voting: The Fifteenth Amendment 320
Letting Uncle Sam Raid Your Piggy Bank: The Sixteenth Amendment 322
Electing the Senate: The Seventeenth Amendment 322
Outlawing Liquor: The Eighteenth Amendment 324
Giving Women the Vote: The Nineteenth Amendment 324
Moving Out of the Horse and Buggy Age: The Twentieth Amendment 325
Repealing Prohibition: The Twenty-First Amendment 326
Taking George Washington's Lead: The Twenty-Second Amendment 327
Enfranchising the Nation's Capital: The Twenty-Third Amendment 328
Banning Tax Barriers to Voting: The Twenty-Fourth Amendment 330
Succeeding to the Presidency: The Twenty-Fifth Amendment 331
Succeeding as President or Acting President? 331
Replacing the Veep 332
Acting as President 333
Lowering the Voting Age: The Twenty-Sixth Amendment 333
Limiting Congressional Pay Raises: The Twenty-Seventh Amendment 334
Part 6: The Part of Tens 337
Chapter 23: Ten Landmark Constitutional Cases 339
Marbury v. Madison (1803) 339
Brown v. Board of Education (1954) 341
Grutter v. Bollinger and Gratz v Bollinger (2003) 342
Kelo v. City of New London (2005) 344
Clinton v. Jones (1997) 345
Roe v. Wade (1973) 345
Citizens United v. Federal Election Commission (FEC) (2010) 346
Obergefell v. Hodges (2015) 348
Glossip v. Gross (2015) 348
Riley v. California (2014) 350
Chapter 24: Ten Influential Supreme Court Justices 353
John Marshall 354
Oliver Wendell Holmes, Jr 355
Hugo Black 355
Earl Warren 356
Thurgood Marshall 357
John Paul Stevens 358
Sandra Day O'Connor 359
Antonin Scalia 360
Anthony Kennedy 361
John Roberts 362
Chapter 25: Two Sides of Five Constitutional Conundrums 365
Is the Constitution Outdated? 366
Should the Electoral College Be Abolished? 367
Does the US Supreme Court Have Too Much Power? 370
Is the United States a Democracy? 373
Does the President Have Too Much Power? 374
Appendix: Constitution of the United States of America 379
Index 403
