As a lawyer who consults with various U.S. firms on constitutional issues and as author of a text on British constitutional law, Dr. Michael Arnheim is uniquely qualified to present an unbiased view of the U.S. Constitution, what it says, what it means, and how it's been interpreted in a variety of situations.

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Discarding Out-of-Date Ideas? 33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

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