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Landmark Cases of the U.S. Supreme Court

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The Amendment Process

Introduction

In 1984, Gregory Lee Johnson was arrested for burning the U.S. flag at the Republican National Convention in Texas. He was charged with violating a Texas law that banned the desecration of the flag in an offensive manner. In the 1989 case of Texas v. Johnson, the Supreme Court of the United States said that Johnson's burning of the flag was a form of symbolic speech that is protected by the First Amendment. The Court mentioned the importance of protecting free speech, especially speech that is unpopular or offensive to others. It said, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

People who felt strongly about protecting the flag convinced Congress to pass the Flag Protection Act of 1989. This law made it a crime to knowingly mutilate, deface, physically defile, burn, or trample a U.S. flag. In 1990, the Supreme Court of the United States declared this law unconstitutional in the case of United States v. Eichman.

Questions to Consider
  1. On what grounds did the Supreme Court of the United States rule in Johnson's favor?

  2. When the Supreme Court of the United States declares a law unconstitutional, is there anything citizens or other branches of government can do? If so, what?

Checks and Balances

In the United States, we have a system of checks and balances. This system allows various branches of government to "check" one another's actions. For instance, when Congress passes a law, the president can veto it or the Supreme Court of the United States can declare the law unconstitutional. If the Supreme Court of the United States finds a law unconstitutional, but people agree with the law, the Constitution can be amended or changed so that the law becomes constitutional. However, this does not occur often. The Constitution has been amended to overturn a Supreme Court ruling only four times in history.

After the Supreme Court of the United States declared the law banning flag burning unconstitutional, Congress proposed a Constitutional amendment. A version of this proposed amendment that was before Congress in 2001 reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Questions for Discussion
  1. Define the term "amend."

  2. Why would the framers have wanted people to be able to change the Constitution?

  3. Do you think the process of adding amendments to the Constitution is a difficult or easy process? Explain your opinion.

  4. How could you determine the actual process for amending the Constitution?

The Amendment Process

  1. Read Article 5 of the United States Constitution.

  2. Diagram the process using the Blank Diagram: Amending the United States Constitution. Check your answers by comparing them to your teacher's completed diagram.

  3. Note that there are two methods of initiating amendments and two methods of ratifying them, for a total of four possible routes. Why would one method be preferable to others?

Evaluating the Amendment Process

  • Work with your group to generate a list of ways in which citizens can be involved in the process. Share responses with other groups and take notes.

  • Identify the advantages and disadvantages of the amendment process. Use the Blank Chart: Advantages and Disadvantages of the Amendment Process. Your teacher will guide you through the process. 

 

Closure

Discuss the following questions
  1. Which process is easiest? Which is the most difficult?

  2. At which level are there the greatest opportunities for citizen involvement? Explain.


For Extension

Complete one of the following activities
  1. Evaluate the amendment process. Should there be changes to the process that make it easier or more difficult to amend the Constitution? Why or why not?

  2. Write an amendment that you would like added to the Constitution and choose the process you would use. Explain the reasons for your amendment and choice of process.

  3. Like the United States as a whole, your state has a Constitution. At times, this document has also needed to be changed. The process for doing so is similar to that which occurs at the federal level. Examine your state's constitution to find out specifics of this process. Identify how the system of checks and balances is at work. Make note of opportunities for citizen involvement, as well as the similarities and differences in the process at the federal and state levels.

Note: This activity has been adapted from a lesson called "The Amendment Process" that appeared in a national, state, and local government curriculum guide created by the Montgomery County, Maryland, Public Schools in 1998.

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