Chapter 13 - The Remaining Amendments and a Return to the Constitution

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 13The Remaining

Amendments and a Return to the

Constution


The Constitution affects every American’s life. There will continue to be constitutional cases,

analysis and research. The most well-known amendments have been

discussed thus far. There are four remaining amendments of the

Bill of Rights that will be looked at in this chapter.o 3rd, 7th, 9th, and 10th


3rd Amendmento Prohibits housing soldiers in private

homes during peacetime without the owner’s consent and during the wartime without legal process.

o This amendment has never been subjected to Supreme Court review. It holds historical relevance and stands for the general principle that government is to leave people alone without compelling cause.


7th Amendmento This amendment establishes the right to a federal jury

trial for all suits at common law if the value is more than $20.• Legal controversies arising out of civil law rather than criminal law.

o Extends the right to a jury trial to civil proceedings.o To determine whether this amendment is a right to a

federal jury trial is based on whether a suit involves legal issues similar to issues raised in cases for which federal jury trial were granted by common law.


9th Amendmento Established that the rights of U.S. citizens

extend beyond those listed in the Constitution.o This amendment is largely historical.o Rights not specifically listed in the Bill of Rights

were known as unenumerated rights.• Right to privacy, right to interstate and international

travel, right to vote and freedom of association• The right to privacy has been referred to by the

Supreme Court and has been used to infer such a right, but the 9th Amendment does not guarantee this right.


Facts: Connecticut law prohibited the use of contraceptives.

Issues: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?

Holding: Yes. Rationale: Considered to be the first case in which the

Supreme Court addressed the 9th Amendment, which “shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the lists of rights… not be exhaustive.” There are certain zones of privacy into which the government may not intrude.


10th Amendmento This amendment embodies the principle of

federalism.• A principle whereby power is shared by the

national government and the states.• The powers not delegated to the United States

by the Constitution, nor prohibited by the States, are reserved to the States respectively, or to the people.• Seeks to ensure to all people that the federal

government will not get too powerful.


Delegated powerso Powers of the national government, both

enumerated and implied by legal authority.o They were delegated or entrusted to the

national government by the states and the people.

Reserve powerso Powers retained by the states.

• Primary reserve power is police power.


Issues: Does Congress have the power to incorporate a bank and does the State of Maryland have the power to tax it?

Holding: Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8). o The State of Maryland does not have the

power to tax an institution created by Congress pursuant to its powers under the Constitution.


Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested.

Issues: Does the GFSZA exceed Congress’ authority under the Commerce Clause?

Holding: The Supreme Court struck down the GFSZA. Rationale: The possession of a gun in a local school

zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce.


Facts: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers.

Issues: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks?

Holding: Supreme Court ruled that the federal government was not empowered to require state or local law enforcement agencies to run background checks on prospective gun buyers.

Rationale: According to the Court, the background check provision violated the principle of separate state sovereignty.


Additional amendments have come and gone. Proof that the Constitution possesses the

ability to respond to America’s needs. 11th Amendment (1795)

o This amendment is the only one that deals with the judicial power of the federal government and is actually more an administrative directive.

o It was introduced the day after the high court ruled that a citizen of one state had the right to sue another.


Facts: Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man.

Issues: Was Dred Scott free or slave? Holding: He was a slave. Rationale: Under Articles III and IV, the Court ruled no one

but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes.


13th Amendment (1865)o Abolished slavery. o This amendment overturned the Supreme

Court’s Dred Scott decision.o Using an amendment to overturn a specific

Supreme Court decision is rare, dramatic and a good illustration of the checks and balances in the U.S. government.


14th Amendment (1868)o Due process.o Equal protection of the law.o The Supreme Court has chosen, through case

law and common law, to selectively apply certain amendments to both federal and state governments through selective incorporation.

Selective incorporation- provision of the Bill of Rights are applied to the states through the due process clause.


Not all amendments and other portions of the Constitution deal directly with specific rights and liberties.

Seven amendments deal in detail with numerous matters related to how the federal government is to be structured and its officials elected.


12th Amendment (1804)o Established the electoral system.

14th Amendment (1868)o Established how representatives are

apportioned and what their qualification are. 17th Amendment (1913)

o Describes how the U.S. Senate is to be composed, the qualifications required, and how vacancies are to be filled.


Facts: The Florida Supreme Court ordered hand counting of contested ballots in Miami-Dade County during the 2000 Presidential Election. Then-Governor Bush requested a stay of the Florida Supreme Court’s decision.

Issues: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law?

Holding: Yes, in a 5-4 decision. Rationale: Different standards were applied from ballot

to ballot, precinct to precinct, and county to county so the recount was arbitrary and disparate. Dissent argued the Constitution requires that every vote counted and the Court should defer to the Florida’s fundamentally right decision.


20th Amendment (1933)o Established the term of the president and

vice-president end at noon on the 20th day of January, and the terms of senator and representatives end at noon on the 3rd day of January.

o Also established how often Congress meets and the chain of succession if the president is no longer able to carry out the responsibilities of the office.


22nd Amendment (1951)o Restricted the term of presidency to two terms.

23rd Amendment (1961)o Gave representation to the district that constitutes

the seat of government of the United States; that is to the District of Columbia.

25th Amendment (1967)o Established procedures for filling vacancies and

for actions to take should the president be unable to discharge the powers and duties of the office.


27th Amendment (1992)o To prevent Congress from setting its

own salary because of the apparent conflict of interest.

o Congress has continued to give itself cost-of-living raises which has not been considered the same as an actual raise.


15th Amendment (1870)o Required that the right to vote shall not be denied

because of race, color or previous condition of servitude.

o Black males were given to the right to vote.

19th Amendment (1920)o Required that the right to vote should not be denied on

account of sex.o Women get the right to vote 50 years after black

males.o They exist because of officials’ deliberate indifference.


24th Amendment (1964)o Requires that the right to vote should

not be denied by reason of failure to pay any poll tax or other tax.

26th Amendment (1971)o Lowered voting age, giving the vote to

U.S. citizens 18 years of age and older.


16th Amendment (1913)o Established the federal income tax.o Congress has the power to lay and

collect taxes on incomes.


18th Amendment (1919)o Prohibited the sale and purchase of

intoxicating liquors.• Enforcement was seen as hopeless because

it is not what the people wanted.

21st Amendment (1933)o Repealing the 18th amendment to the

Constitution.


Various amendments have been proposed. Congress has considered amendments

prohibiting the burning of the American flag and amendments establishing victim’s rights.

In 2003, a Senate subcommittee approved a proposal to amend the Constitution to guarantee rights to crime victims.

Overall, Congress is reluctant to make significant changes by adding amendments.

Education

Chapter 13 - The Remaining Amendments and a Return to the Constitution