Constructing the Constitution - AP Government and Politics

Based on the philosophy of John Locke, a social contract is an agreement between society and government about how subjects are to be ruled. The social contract according to Locke was that government ruled at the behest of the people and its primary purpose was to protect natural rights.

Article VI of the constitution outlines that the constitution, treaties made, and laws of congress shall be the supreme law of the land. This clause ensures that state and local governments recognize the supremacy of the constitution and national law.

The clear and present danger test first arose after World War I. Oliver Wendell Holmes Jr. authored this test. The clear and present danger test put limits on first amendment rights, such as freedoms of assembly, press, and speech.

As part of the checks and balances and separation of powers, the Founders, wanted war-making decision making to rest with Congress, the body that represents the people. That way, war would not be waged at the whim of an executive.

As part of the separation of powers, ultimate authority over the military was to be given to the president. That way, the military would always be subordinated to civilian authority.

The conflict between Federalists and Antifederalists was the major thread of late eighteenth century American politics. A major sticking point was the need for a Bill of Rights in the Constitution. Students should recall that Federalists like Alexander Hamilton did not see a need for a Bill of Rights to be added, while Antifederalists James Madison spearheaded the amendments.

Debates between the Anti-Federalists and the Federalists can be considered the first political party debates in America. Anti-Federalists disliked the creation of the constitution because they feared it was creating a too powerful central government. The Federalists favored the constitution due to issues with the Articles of Confederation and its lack of a strong central government. A compromise was reached with the formation of the Bill of Rights which was designed to protect civil liberties of all citizens.

The 4th amendment is more commonly known for its protection from unreasonable search and seizure, it is part of the Bill of Rights, which was designed for the protection of individual rights.

The center of the debate between the Anti-Federalists and the Federalist was the power that the central government would have. Anti-Federalists argued for the protection of states and individual rights. Anti-Federalists such as Mason were began to support the Constitution when the bill of rights was added to protect states and individual rights.

Fairly easy question as long as you know your amendments. The answer is the 10th amendment, as it reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In somewhat plainer English, this means that any governmental power that is neither (1) given to the federal government, nor (2) forbidden to the states is given to the states or the “people” (citizens). It is for this very reason that the 10th amendment is commonly referred to as the “states’ rights” amendment.

The First Amendment concerns five different liberties that are fairly similar, including the right of the people “to petition the government for a redress of grievances.” The Amendment does not mandate that the government need to address or address the “grievances,” but this ensures that people can still formally show their displeasure to the government.

The constitution as originally drafted, did not have any safeguard for individual liberties. Many objected to this, so as a condition of ratification, it was promised that a Bill of Rights would be drafted.

Surprisingly, the right to freedom of speech –one of the most famous individual freedoms– was not part of the initial Constitution. Freedom of speech and others of the most well-known rights (such as freedom of the press, the right to bear arms, and freedom of religion), as contained in the Bill of Rights, were all later additions to the Constitution. The Anti-Federalists were some of the most vociferous advocates of the Bill of Rights and many states refused to ratify the Constitution at all unless such personal freedoms were given explicit written protection. The ten Amendments that together comprise the Bill of Rights were therefore added to the Constitution in 1791, in order to allay these fears.

It is indeed true that originally, many Congressmen and federal judges had doubts as to exactly how far beyond the national government’s scope the Bill of Rights could legally reach. In fact, in 1833 the Supreme Court even ruled that the Bill of Rights only imposed limitations on the federal government, leaving the states and local administrations exempt. However, the Court quite clearly found this stance to be deficient, as did other sectors of government, and so in a further case (which proceeded in 1925), the Supreme Court first established the so-called incorporation doctrine. Citing the Fourteenth Amendment, the Court defined the incorporation doctrine as the principle by which the Bill of Rights could be applied beyond the national government, to the conduct of state and local governments as well. Especially relevant for the doctrine’s justification is the Due Process Clause, contained in the Fourteenth Amendment, which prevents either state or federal governments from infringing on any individual’s life, liberty, or property rights without due process of the law (meaning that special legal permission must be obtained, usually under severe circumstances).

Many state and local governments adopted the practice of initiative and referendum during the progressive era of American politics. This allows citizens to vote directly on propositions or initiate propositions of their own.

The Fifth Amendment says that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb", thus defining double jeopardy as being tried for the same crime. The Fifth Amendment provides people the right to remain silent instead of prohibiting it. Although the Bill of Rights does prohibit the use of cruel and unusual punishment, it's prohibition is under the Eighth Amendment. The Bill of Rights guarantees a jury of your peers, not prohibits it.

Shays’ Rebellion took place in 1786 and 1787 in the years between American independence and the adoption of the Constitution. The rebellion was lead in part by Daniel Shays, and the rebels were dissatisfied with the state of government and tried to overthrow the government in Massachusetts. The rebellion was important for demonstrating to the Founding Fathers the limitations of the Articles of Confederation and was one of the primary motivations behind drawing up a stronger national constitution and abolishing the Articles of Confederation.

The Establishment Clause appears in the Constitution as part of the First Amendment. It states that the Federal government will make no laws regarding the establishment of an official state religion.

The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay, in 1787 and 1788. Their purpose was to try to persuade the general public to support the ratification of the Constitution. If you did not know this, it is helpful to remember that the key is in the name—Federalist. The Federalists supported Constitutional ratification, whereas the Anti-Federalists opposed it.

The Kentucky and Virginia Resolutions argued that the states could deem a Federal law unconstitutional and then, having done so, declare the law null and void. They were immediately controversial with many politicians, including George Washington, stating that the principle was a recipe for disunion (something he would be proved at least partially right about). The nullification issue would continue throughout the first half of the nineteenth century, contributing directly to the outbreak of Civil War.