Constitution Day at Maryville College
Constitution Day (Sept. 17) falls on a Sunday this year, so Maryville College has chosen to celebrate it on Tuesday, Sept. 19. Join the campus community on the lawn of Pearsons Hall from 11:30 a.m. until 1:30 p.m. to take part in “Thirteen Challenging Questions About the Constitution,” a guided conversation that will feature an open-ended discussion of ongoing Constitutional issues. Note that the “Discussion” prompts and links below are not answers to these questions; they are conversation starters intended to stimulate evidence-based reflection about this foundational document of our republic.
Question #1: Between 1788 and 2019, there have been 11,848 attempts to amend the Constitution that had official Congressional or state sponsors. That number continues to grow every year. Why, given all of those initiatives, have there only been twenty-seven amendments passed? Is the amendment process too difficult to govern effectively? Why or why not?
Discussion: See Article V: “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”
Question #2: What processes or provisions in the U.S. Constitution exist for deciding whether or not a state may leave the Union? Should there be a way for one or more states to peacefully break away from the Union? Why or why not? If so, what might that kind of mechanism look like?
Discussion: There is no direct language that allows a state to secede legally. Abraham Lincoln claimed that by joining the United States via the Constitution that a state was permanently bound to this republic and its government. In his First Inaugural Address he made this argument by explaining that the Preamble of the Constitution states that the purpose of the Constitution was “in Order to form a more perfect Union” than did the Articles of Confederation. The Articles of Confederation explicitly described the Union as “perpetual.” (The Articles make this point, using the word “perpetual” five times.) On the other hand, the Articles of Confederation were superseded by the Constitution. In other words, they were not perpetual at all—having only lasted for five years—put into effect after the U.S. won the Revolutionary War in 1783, and overturned in 1788 after the Constitution had been adopted by nine states.
Question #3: Consider this scenario: The State of Tennessee passes a law that lowers the voting age to 16 years old. Other states keep their voting age at 18 years of age. What Constitutional Authority if any does Tennessee have to pass the law? How might the U.S. Federal Government respond? What does this discussion tell us about the relationship between the states and the Federal Government when it comes to elections?
Discussion: Amendment XXVI, ratified in 1971, gave the vote to 18-year-old citizens. “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Some states allow seventeen-year-olds to vote in primary elections if they will be eighteen by the time of the general election, and some town and city governments permit teens as young as sixteen to participate in municipal elections. Last year, some Knoxville politicians discussed this possibility as a way to get younger people more involved in school board elections and in politics in general. For a recent attempt to propose a constitutional amendment to lower the national voting age, see: Congresswoman Grace Meng’s press release.
Question #4: There are currently 435 members of Congress serving in the House of Representatives. That works out to about one Representative per 770,000 people, the largest ratio of population-to-representative in U.S. history, with a growing population and no plans to change the size of the House on the horizon. What are the implications of this ratio for the government of the United States?
Discussion: Article I, section 2 of the Constitution explains that the number of representatives in the House of Representatives is dependent on population, but it’s short on details. How many people should each member of congress represent? Since 1940, there have been a total of 435 seats in the House, but the total U.S. resident population has nearly tripled—from 132 million in 1940 to 332 million today. The only limit on that process mentioned in the Constitution states: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” That count means that we could in theory have a House with over 10,000 representatives in it. James Madison mentions in Federalist 10 that a balanced apportionment of representatives-to-population is critically important to the government’s success. A Congress that is too large will become obsessed with hyper-local issues and therefore unable to govern effectively; too few representatives will feel too remote from the people to represent them accurately. See these articles: Pew Research Center; The U.S. CensusBureau on apportionment counting; The U.S. Census Bureau – historical perspective.
Question #5: Only one in twenty adults in the United States know all five rights laid out in the First Amendment of the U.S. Constitution. What are they? Why do they matter? How—or should—we best educate the public about the Constitution?
Discussion: Education is crucial to the success of any system in which ordinary people play any significant role in government. What is our best way to improve civic education along these lines? See https://penntoday.upenn.edu/news/many-dont-know-key-facts-about-us-constitution-annenberg-civics-study-finds .
Question #6: What historical limits have U.S. laws and courts placed on the freedom of speech and freedom of the press as laid out in the First Amendment? By what consistent standards—if any—should we regulate the exercise of that speech and why?
Discussion: See freedom of speech and the pivotal Supreme Court case of New York Times v. Sullivan of 1964. Annenberg Classroom Archive Video (no captions) ; For the “Actual malice” legal standard that emerged from this case, see MTSU Frist Amendment Article . On U.S. government’s prosecution of ‘seditious’ and ‘unpatriotic’ speech, see https://theconversation.com .
Question #7: What historical limits have U.S. laws and courts placed on the right to keep and bear arms in the Second Amendment? By what consistent standards—if any—should we regulate the exercise of those rights and why?
Discussion: Some limits on college student carry and possession of guns date back to at least 1824 at the University of Virginia when Thomas Jefferson and James Madison—who helped compile and edit the Second Amendment’s language—created the rules for students on UVA’s campus. These rules also included immediate expulsion for duel challenges, tobacco possession. The weapons section includes the language: “No Student shall, within the precincts of the University, introduce, keep or use any spirituous or vinous liquors, keep or use weapons or arms of any kind, or gunpowder, keep a servant, horse or dog, appear in school with a stick, or any weapon, nor, while in school, be covered without permission of the Professor, nor use tobacco by smoking or chewing, on pain of any of the minor punishments at the discretion of the Faculty, or of the board of Censors, approved by the Faculty.” There were many early examples of legal restrictions on firearms use—but many fewer on possession—at the state levels. That said, as one historian writes: “…[T]he presentist assertion that ‘gun control legislation’ made a common appearance on colonial and early national statute books, if taken alone, offers a distorted understanding of the nature and extent of gun regulation in early America.” See, e.g., Robert H. Churchill, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment” at https://www.jstor.org . For the 1824 University of Virginia meeting minutes, see Virginia.edu.
Question #8: Article IV, Section 4 says: “The United States shall guarantee to every State in this Union a Republican Form of Government…” What exactly does a “Republican Form of Government” mean in this context? What models did the Framers use when using this term?
Discussion: The word republic comes from the Latin word meaning ‘thing of the people,” or “concern of the populace.” In its simplest form, having a republican government was a simple rejection of monarchy and therefore means that no U.S. state may legally choose to be led by a king, queen, hereditary emperor, or other kind of monarch. It also indicates that states must allow for some variety of popularly chosen self-government; that is, a representative democratic system. Madison’s Federalist 10 outlines his vision in much clearer detail, distinguishing his understanding of a republic from his understanding of a democracy. He writes that a republic is “…a government in which the scheme of representation takes place…” and contrasts it to “…a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person.” All that said, the Roman Republic, from where the term ultimately came, was quirky and not at all like any U.S. government. It included a Senate made up of hereditary nobles, an established religious institution, and tribal assemblies, and it definitely did not include a single, written constitution.
Question #9: Where do international treaties signed by the United States fit into U.S. law? Can states override parts of them they don’t like? Can a new presidential administration choose to disregard the treaties signed by prior administrations of different political parties?
Discussion: Article II, Sect. 2 of the Constitution states that the President works with the Senate to make treaties between the United States and other countries. Two-thirds of all Senators must an agree before a treaty can be made official. Once a treaty is passed by that process, Article VI of the Constitution, the so-called “supremacy clause,” holds it as a fundamental piece of the U.S. legal framework, stating “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.” John Jay in Federalist 64 contends that the importance of this provision on treaties assures that this structure assures that the process of negotiating treaties “…will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.” Part of his reasoning comes from the fact that senators would not be elected but appointed by the wise, politically experienced individuals who make up state legislatures. (See next question.)
Question #10: The composition of the U.S. Senate has changed a great deal since 1787. Does the Senate still serve the stabilizing and enlightened role conceived of by the Framers of the Constitution? What has changed and does it matter?
Discussion: U.S. citizens choose the U.S. Senate differently today than in the early years of the United States. As it states in Article I, Sect., 3, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature there- of, for six Years; and each Senator shall have one Vote. Amendment XVII, created and ratified in 1913, altered that language: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.” To what extent—if any—does the direct election of Senators alter the nature of the Senate as conceived by the Framers of the Constitution, especially considering John Jay’s above point in Federalist 64?
Question #11: When was the most recent conflict in which the United States made an official declaration of War? To what extend has the increased power of the President and the Executive Branch expanded when it comes to war powers? What should—or could—be done to change those circumstances?
Discussion: The United States last made an official declaration of war in 1942 as part of WWII, but has been engaged in many conflicts since that year. “To declare war” is one of the powers specifically reserved for Congress under Article I., Sect., 8 of the Constitution. Presidents have claimed, though, that the ability to use their role as Commander-In-Chief of the military is not limited to an official state of war. Moreover, since the end of the Second World War and the start of the Cold War, the Executive Branch of the United States Government has had in place multiple agencies that work internationally and which have been known to exercise force in overseas contexts. Are those bodies in any way regulated under the Constitution? Should they be?
Question #12: Amendment IV, part of the Bill of Rights, states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” How does modern technology affect this right? Does remotely hacking into someone’s computer or their private files stored in the cloud, equate to a “search” or “seizure” of their “papers and effects?” Is real-time thermal imaging of someone’s home the same as a search?
Discussion: Technological questions like these amount to largely uncharted territory and seem to require a great deal of interpretation on the part of the U.S. legal system. The rapid-changing nature of this debate can be seen in the 2018 Supreme Court case of Carpenter v. United States in which the Court asserted that cell phone location data and other overt tracking information came under the umbrella of the Fourth Amendment. To circumvent these restrictions, just a few years after the Carpeter decision, Federal agencies began buying data sold by so-called data brokers who gobble up massive quantities of aggregate location and other information and offer it for sale. See, e.g., This WashingtonPost Article, accessed 17 Sept., 2023, . For thermal imaging questions, see this National Institute of Justice article.
Question #13: Consider this scenario: the US President is severely wounded in a domestic terrorist attack. The President remains alive, but is sadly diagnosed as brain dead. The Vice President, also wounded in the attack, is in a coma but may recover in time. Who becomes the US President? What if that person if from the opposing political party? Who decides who becomes US President, and what Constitutional authority is used to make this decision?
Discussion: Amendment XXV describes the current hierarchy of presidential succession. Ceding the job to the next person in line, though, requires a “written declaration.” In the case of coma or brain death, the path of succession is therefore much less clear under current constitutional guidelines.
