Chapter Two

Chapter Two 

The Constitution of the United States 

Chapter Outline

A. Historical Context 

B. Separation of Powers and Federalism

C. Checks and Balances

D. Beyond the Core Framework: Articles IV–VII

E. Bill of Rights

F.  Other Amendments

A.  Historical Context  

Before examining the Constitution, it is crucial to remember the historical context that helped shape its drafting as well as the intentions of its framers.  The Declaration of Independence was adopted by the Continental Congress in 1776, and one of its most famous quotes is, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This quote reflected the principles that supported the revolution that was already underway. The British were defeated in 1781, and the thirteen colonies officially became the United States in 1783 with the signing of the Treaty of Paris (National Park Service, 2022).

The Articles of Confederation were the nation’s first governing document.  They were drafted in 1777 and ratified in 1781.  During this time period, the Articles' framers sought to establish a sustainable form of government and safeguard civil liberties.  Most historians conclude they fell short on both counts. Those who wrote the Articles of Confederation feared concentrated power that resembled the British monarchy, so they created a weak Congress with limited responsibilities. The national government lacked the authority to tax, regulate commerce, or enforce laws, leaving it unable to pay debts, resolve disputes between states, or maintain a strong military.  The weaknesses of the Articles became obvious during Shays’ Rebellion in Massachusetts, when farmers protested outside county courthouses to stop foreclosures and debt proceedings caused by the national government’s inability to tax under the Articles. The federal government was initially powerless to respond and had to rely on a privately funded state militia to eventually suppress the rebellion. This demonstrated the need for a stronger national government (National Park Service, 2022).

Additionally, the Articles focused solely on the liberties of men who owned property. They failed to address the rights of the poor, enslaved people, Native Americans, and women. There is an emerging trend to dismiss this observation as Critical Race Theory. However, most historians contend that this observation is simply an accurate acknowledgment of the historical record (Duignan, 2025). Students of history and civil rights interested in competing interpretations of the founders motivations are encouraged to consult primary sources. One useful resource is the Founders Online database, which offers a searchable collection of over 184,000 documents, including correspondence, speeches, and public papers by George Washington, Benjamin Franklin, Thomas Jefferson, Alexander Hamilton, John Jay, James Madison, and John Adams (National Archives, n.d.).  

Another useful source is the Federalist Papers, a collection of essays written by key drafters of the Constitution that were published in newspapers and pamphlets to persuade the public to support the new Constitution. These essays clearly explained the benefits of the separation of powers and checks and balances.  They also emphasized that any new government must limit the influence of factions and promoted governance by socially and economically established elites, arguing that educated leadership, structural restraints on power, and a strong national government help prevent tyranny, maintain stability, and protect property (Federalist Nos. 10, 51, 35, 70, 78; Library of Congress, n.d.).

Regardless of their motivations, leaders Madison and Hamilton argued that the system established by the Articles was not sustainable and pushed for change.  In May 1787, delegates from twelve states met in Philadelphia at the Constitutional Convention to create a stronger government. Big states wanted representation based on population.  Small states wanted each state to have an equal voice. The states debated at length but finally reached a compromise by creating a bicameral legislature, which is a two-chamber lawmaking body.   The House of Representatives would be based on population, and the Senate would have two members per state (Gilder Lehrman Institute of American History, n.d.).

Further debates revealed deep divisions over slavery. The Constitution did not use the word "slavery", but it was built into the structure of the new government. The Three-Fifths Compromise counted enslaved persons as three-fifths of a person for the purposes of representation and taxation, and the Fugitive Slave Clause of Article IV  required the return of people who escaped bondage. Abolitionists, women’s rights advocates, Native Americans, and African Americans voiced their positions in various ways during this time period, often invoking the claim in the Declaration of Independence that all people possess natural rights. However, their arguments were not reflected in the Constitution (Gilder Lehrman Institute of American History, n.d.).

By the fall of 1787, the delegates had finished drafting the Constitution, and it was ratified the following year.  It gave the federal government the power to tax, regulate trade, raise armies, and enforce laws as the supreme law of the land.  The result was a stronger and more sustainable system.  Ratification succeeded only after the framers promised to add a Bill of Rights to address concerns about civil liberties. These first ten amendments, ratified in 1791, provided safeguards regarding religion, speech, the right to bear arms, criminal procedure, and states' rights, but they did not protect any of the groups previously mentioned (Gilder Lehrman Institute of American History, n.d.).

This resulted in a government that was far more stable than before, but it also exposed deep contradictions between the nation’s ideals of liberty and the rights of the majority of people who lived under it. This OER will examine how the system that was created has evolved and whether it has truly succeeded in meeting the needs of all people who live in the United States.

B. Separation of Powers and Federalism

Students of civil rights and liberties should do two things before examining the Separation of Powers:

• The first is read the United States Constitution to become familiar with its structure and language.  It is under twenty pages long, and you can click here to read it in its entirety.  You will notice that it is written in a somewhat archaic style, and its language can be confusing even for dedicated students. However, the context provided by doing so is helpful, and all parts of the Constitution will be explained further in this chapter and those that follow. Having the full text of the Constitution in mind will help students understand the principles that guide the system. It is difficult to succeed in a course on civil rights and liberties without reading the Constitution first. 

• The second important step is to understand the significance of federalism.  Federalism refers to the division of power between the national government and the state governments. Powers granted only to the federal government are called enumerated powers. Those held only by the states are reserved powers.  And those shared by both are concurrent powers. The Constitution called for a strong federal government, but each state still had its own system of government and its own constitution.  Additionally, federal supremacy was limited because all federal laws passed by Congress had to abide by the Constitution, and states retained reserved powers under the Tenth Amendment. (Constitution Annotated, n.d.)  Please refer to Image 2.1 for more details.

Federalism: Federal Powers vs. State Powers 

Federal Powers vs. State Powers - Image 2.1  

(OpenStax, 2021, Figure 3.3)

B. Separation of Powers and Federalism- continued

Just like federalism divides power between the federal government and state governments, the Constitution divides power into three different branches within the federal government itself, which is called the Separation of Powers.   Image 2.2 below provides a brief overview about the powers each branch holds.  

B. Separation of Powers - continued

Article I of the Constitution established the Legislative Branch, which consists of the House of Representatives and the Senate, collectively known as Congress. Congress holds the power to make laws, declare war, approve presidential appointments, ratify treaties, and conduct investigations (U.S. Congress, n.d.)

At the time of the nation’s founding, the House of Representatives was composed of 65 members, apportioned among the states by population, but it has since grown to 435 members, plus non-voting delegates from Washington D.C. and U.S. territories. Members of the House serve two-year terms, must be at least 25 years old, and need to be U.S. citizens for at least seven years. Besides voting on legislation, the House of Representatives can also vote on whether to bring charges to remove federal officials, such as the President, from office. This first step of bringing charges is called impeachment (U.S. Congress, n.d.).

The Senate consists of two members from each state. Senators were originally chosen by state legislatures until the 17th Amendment changed this practice to direct election by voters in each state. Senators serve staggered six-year terms, must be at least 30 years old, and must have been U.S. citizens for at least nine years.  When voting on legislation, the Vice President casts tie-breaking votes. 

In the past, senators who wanted to block a vote on a bill had to speak on the Senate floor for as long as they could, a practice known as a talking filibuster or a traditional filibuster. Today, under what is often called the silent filibuster, a senator can simply signal an objection, which prevents a vote unless 60 senators agree to end debate under the Senate’s cloture rule. In practice, this means most filibusters no longer require long speeches and instead operate as a procedural barrier to moving legislation forward. Most legislation can be blocked unless 60 senators vote to end debate, but other actions, such as routine motions and some nominations, can move forward with a simple majority.

In addition to voting on laws, senators confirm presidential appointments and ratify treaties. They also conduct presidential impeachment trials after the House of Representatives votes on articles of impeachment, with the Chief Justice of the Supreme Court presiding over the proceedings if the President is on trial. When the President is not involved, the Senate conducts impeachment trials under its own rules for removing federal officials, and the Vice President or a designated senator presides.

For a bill to become law, both chambers must pass the same version of a bill and send it to the President for signature.  Congress can override a veto with a two-thirds vote in each chamber. Beyond lawmaking, Congress also holds the “power of the purse,” giving it the power to levy taxes, approve spending, and authorize borrowing when necessary.

Article II of the Constitution established the Executive Branch, vesting power in the President of the United States, who serves as both head of state and head of government. As head of state, the President represents the nation in official ceremonies and in relations with other countries. As head of government, the President oversees the executive branch and federal agencies and serves as Commander-in-Chief of the armed forces. The President is also responsible for enforcing laws passed by Congress and for appointing federal judges, ambassadors, and senior officials, with Senate approval. The Constitution sets three qualifications for the presidency: the individual must be a natural-born citizen, at least 35 years old, and a resident of the United States for at least 14 years.

Additionally, the President signs or vetoes legislation, negotiates treaties, receives foreign diplomats, issues pardons, and delivers the State of the Union Address.  The President can issue executive orders, which are formal directives to federal agencies that provide guidance for how laws should be carried out. Executive orders are not new laws; rather, they are meant to enforce or administer existing laws passed by Congress or powers already granted to the President by the Constitution. 

Americans do not vote directly for the President. Instead, they vote for electors in their state, and those electors make up the Electoral College, which casts the official votes for President. The Electoral College is a group of representatives chosen by each state, based on the number of senators and representatives it has in Congress. These electors meet after the election to formally cast the votes that determine the President and Vice President. 

Originally, the person with the second-highest number of electoral votes became Vice President. The Twelfth Amendment changed this process so that presidential candidates now choose their own running mates for Vice President, and voters cast a single ballot for the President and Vice President together. Although not mentioned in the Constitution, the Cabinet developed under President George Washington as an advisory body and today includes the heads of 15 executive departments, such as State, Defense, Treasury, and Justice. The modern Executive Office of the President, created in 1939, along with numerous federal agencies, like the EPA and Department of Homeland Security, also support the President in administering and enforcing federal laws.

Article III of the Constitution established the Judicial Branch by creating the Supreme Court and giving Congress the power to establish the lower federal courts. It did not specify how many Supreme Court justices there should be or exactly how the federal court system should be structured.  Article III only said that Congress should decide these issues.  In 1869 Congress set the number of Supreme Court justices at nine, where it remains today.  Over time, Congress shaped the federal court system by creating district courts and courts of appeals.  Practices that now define the Court, such as how they decide which cases to take and the development of judicial review, were not spelled out in the original Constitution, but these practices emerged later.  They are explained in Chapter 3. 

Article III specified that federal judges would be nominated by the President, confirmed by the Senate, and serve for life unless removed through impeachment.  The framers included life tenure and protection from elections to shield justices from political pressures, allowing them to base their decisions on the law rather than on popular opinion (U.S. Congress, n.d.).

C.  Checks and Balances

Articles I, II, and III of the Constitution do more than spell out a framework of government.  They also include language that establishes a system of checks and balances that is designed to keep any one branch of government from gaining excessive power.  The framers intentionally included language in the Constitution to keep each branch in check  (National Constitution Center, n.d.).

The Legislative Branch can override a presidential veto with a two-thirds vote, reject presidential appointments and treaties through the Senate, and remove a president from office through impeachment and conviction. Congress also checks the Judicial Branch by confirming or rejecting judicial appointments, impeaching and removing judges, and initiating the constitutional amendment process.  Additionally, Congress can reorganize the lower federal courts.

The President, who leads the Executive Branch, also has checks on the other branches. The President can veto bills passed by Congress, call special sessions of Congress in extraordinary circumstances, and recommend legislation through formal addresses and policy proposals. The President also influences the judiciary by nominating federal judges and Supreme Court justices and by granting pardons and reprieves to individuals convicted of federal crimes (National Constitution Center, n.d.).

The Judicial Branch, headed by the Supreme Court, checks the other two branches through the power of judicial review. It can declare acts of Congress unconstitutional, invalidating laws that conflict with the Constitution. Likewise, it can strike down executive orders that exceed presidential authority and issue injunctive relief to stop the enforcement of unconstitutional actions (National Constitution Center, n.d.).  Image 2.3 below summarizes these checks and balances. 

Checks and Balances - Image 2.3 

(Original Work, Getchell-Bastien)

D.  Beyond the Core Framework: Articles IV–VII

Surveys show many Americans are not familiar with Articles IV through VII of the Constitution (Annenberg Public Policy Center, 2023). This section of the chapter explains these Articles and serves as a roadmap for the cases discussed in later chapters. The original constitutional text appears in bold below, followed by a plain-English explanation of its meaning.

Article IV

• Article IV - Section 1 states, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."   This means that states have to recognize the laws, official documents, records, and court orders of other states and is known as the Full Faith and Credit Clause.  

• For example, if someone was divorced in Massachusetts and moved to New Hampshire, then New Hampshire would have to recognize the divorce decree, even though the person was divorced in another state. If there was a court order that pertained to the divorce, like a child custody order, New Hampshire would have to recognize that too.  There are some narrow exceptions to the Full Faith and Credit clause, which we will address later in this course (National Constitution Center, n.d.).

• Section 2 of Article IV states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  Essentially, this means that if you are a citizen of one state, you should be able to travel to another state and enjoy the same rights as its residents. For instance, a state could not pass a law that says only people who got their driver’s license in that state could drive on its roads. Likewise, a state cannot deny someone the ability to work in their state simply because they are from another state.

• Section 2 continues with,  "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."  Put simply, this means that if someone is accused of a crime in one state and flees to another, the governor of the state where the crime happened can request that the person be returned, and the second state must hand them over for trial. This process is called extradition, which is the legal procedure for returning someone accused or convicted of a crime from one state to another.

• The final part of Section 2 was known as the Fugitive Slave Clause, and it has been rendered unenforceable and obsolete by the Thirteenth Amendment, which banned slavery.  It stated, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." 

• Section 3 of Article IV starts with, "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."  At first glance, this section seems to have only historical significance, but modern-day debates over granting statehood to Puerto Rico or Washington, D.C. show that this clause remains highly relevant today (National Constitution Center, n.d.).

• The next part of Section 3 states, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."  This clause gives Congress the power to manage U.S. territories and federal land, from places like Puerto Rico to Yellowstone National Park, and to make rules about how those lands are used or governed. This clause has special relevance today due to controversies about several executive orders that have cut funding and resources to national parks and other federally owned properties (New York Times, 2025)

• Section 4 of Article IV states that, "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." This means that the federal government promises to ensure that each and every state will stay a republic, and that the federal government will protect states from foreign attacks. It also means that the federal government can step in to help stop major internal unrest if a state requests it (National Constitution Center, n.d.).  

During the summer of 2025, experts in constitutional law publicly wondered how President Trump could send National Guard troops into California over Governor Gavin Newsom's objections.  Trump claimed authority to deploy the National Guard to Los Angeles under 10 U.S.C. §§ 251–254, which is part of the Insurrection Act framework.  However, Federal District Judge Charles Breyer of the Northern District of California ruled this was unlawful because the Guard was actually used for domestic law enforcement activities, which the Posse Comitatus Act prohibits. (AP, 2025).  This ruling only applies to California, but courts around the country will continue to define the parameters of executive authority under this clause in the future. 

Article V

Article V states, "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."  

In simple terms, there are four ways to amend the Constitution:

1. Proposal by Congress with a two-thirds vote in both the House and Senate, then ratified by three-fourths of state legislatures.

2. Proposal by Congress with a two-thirds vote in both the House and Senate, then ratified by conventions in three-fourths of state conventions. 

3. Proposal by a national convention called by two-thirds of the states, then ratified by three-fourths of state legislatures.

4. Proposal by a national convention called by two-thirds of the states, then ratified by conventions in three-fourths of the states.

For further clarification, please see Image 2.4 below.

Amending the Constitution - Image 2.4 

(BillTrack50, 2014)

Article V - Continued 

Amending the Constitution is no easy task. Ten amendments were added soon after its ratification in the form of the Bill of Rights, but only seventeen more have been adopted since the late 1700s. One example of a failed effort is the Equal Rights Amendment (ERA), a proposed amendment to the United States Constitution that would guarantee equal rights under the law for all people, regardless of sex. The ERA was first proposed in 1923, but it did not gain real traction until 1972, when both chambers of Congress approved it by the required two-thirds vote and sent it to the state legislatures for ratification by three-fourths of the states.  Congress had set a seven-year deadline for the necessary states to ratify, later extending that deadline to 1982, but the ERA ultimately fell short with only 35 state legislatures voting in favor of it (Associated Press, 2025, Timeline).

During this time period, Congress enacted laws such as Title IX (1972) and the Pregnancy Discrimination Act (1978), which some historians believe reduced pressure for a constitutional amendment. In recent years, Nevada (2017), Illinois (2018), and Virginia (2020) ratified the ERA in an attempt to push the total to 38, but because these ratifications occurred decades after the deadline, their validity is legally contested.  Efforts in Congress to remove or extend the ratification deadline have been introduced, and several lawsuits have been filed, yet none have succeeded.  Today, some argue that ratifying the ERA would be mostly symbolic because many protections already exist in federal law, while others believe it would provide stronger safeguards against laws that negatively affect women solely because of their sex (Associated Press, 2025, Timeline).

Article VI

 Article VI begins with,  "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 meant that the U.S. government still had to pay all debts and keep all agreements it made before the Constitution was adopted. Switching to the new Constitution did not erase old obligations, and this clause has mainly historical significance.

The most well-known part of Article VI comes next . "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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. " The compelling words “supreme law of the land” have been brought up in countless Supreme Court cases, leading Article VI to be known as the Supremacy Clause. Essentially, this means that when federal and state law conflict, federal law prevails, though states may still act independently in some areas. For instance, a state can provide its citizens with greater civil rights and liberties than those guaranteed in the Bill of Rights. Massachusetts legalized same-sex marriage before any other state and twelve years before it was recognized nationwide (GLAD, n.d.).  Native Americans also relied on this part of the Constitution when asserting land rights. Their treaties with the federal government were intended to be the “supreme law of the land,” yet state governments and even the federal government often failed to honor them (Justia, n.d.).  

Article VI ends with, "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."  In essence, this means that government officials must promise to uphold the Constitution, but the government cannot require someone to follow a certain religion, or any religion at all, in order to serve in public office. Courts have struck down attempts by states to impose such requirements, as well as attempts to require lawmakers to put their hand on a Bible when swearing in and taking their oath of office (Freedom Forum, 2025).

Article VII

The last Article in the Constitution says, "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."  This requirement that at least nine states needed to ratify the Constitution was met in just over six months. Delaware ratified first, followed by Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and finally New Hampshire, which officially put the Constitution into effect in June of 1788.  Soon after, two of the most influential states ratified as well, Virginia in June 1788 and New York in July 1788. North Carolina and Rhode Island held out longer, with North Carolina ratifying in November 1789 and Rhode Island in May 1790, completing the union of all thirteen original states (National Archives). 

E. Bill of Rights

The following chapters in this resource will examine most of the amendments in the Bill of Rights, the first ten amendments to the Constitution.  This resource does not cover the Third Amendment, which holds primarily historical significance, nor the Seventh Amendment, which has limited impact on civil rights and liberties.  Image 2.5. below can serve as a roadmap for the amendments in the Bill of Rights that will be analyzed in this OER.            

Image 2.5

(National Constitution Center, n.d.)

F.  Other Amendments 

Other amendments will be discussed thematically, in keeping with the topics outlined in the table of contents, rather than in strict chronological order. Future chapters will analyze the Twelfth Amendment and the advantages and disadvantages of the Electoral College, including ongoing debates about whether the amendment should be repealed. The Thirteenth through Fifteenth Amendments, known as the Reconstruction Amendments, along with the Nineteenth Amendment and the struggle for women’s suffrage, will be examined in chapters focused on civil rights. The Twenty-Fourth Amendment and its ban on poll taxes will also be analyzed in those chapters, including an exploration of why its ratification was so delayed. The Twentieth and Twenty-Second Amendments, which address presidential terms and term limits, will be considered in the broader context of voting rights and emerging controversies. The Twenty-Fifth Amendment, which governs presidential succession, will be evaluated in light of the advanced age of recent presidents and ongoing disputes over mental acuity. This OER will also review the Twenty-Seventh Amendment, which pertains to congressional pay.

This resource will not provide coverage of certain other amendments. The Eleventh Amendment is not analyzed because lawsuits against states have rarely affected individual civil liberties. The Sixteenth Amendment, which addresses taxation, is also excluded because it has not produced significant case law on individual rights. The Seventeenth Amendment, establishing direct election of senators, has definitely reshaped democratic processes, but it lies outside this resource's focus on civil liberties. The Eighteenth and Twenty-First Amendments, which created and repealed Prohibition, are historically important but not central to this field of study. The Twenty-Third Amendment, which granted presidential voting rights to Washington, D.C. residents, and the Twenty-Sixth Amendment, which lowered the voting age to eighteen, certainly expanded democratic participation, but these amendments have generated limited constitutional interpretation compared to other amendments covered here.  

Image 2.6. below provides an overview of Amendments 11-27.  

Image 2.6

(National Constitution Center, n.d.)

Conclusion

Understanding the structure and content of the Constitution gives students the necessary foundation for further analysis of civil rights and liberties. After reading this chapter, students should be prepared to examine the principles, institutions, and amendments that shape constitutional law.

Sources

• Please note that the URLs listed below are presented as plain text rather than active hyperlinks in order to avoid triggering automated security filters.

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