AP GOV Midterm

Writ of Habeas Corpus

Writ of Habeas Corpus

Court order requiring someone in custody to be informed of the charges against them.

No Bills of Attainder

attempts to punish an individual without benefit of a trial

Ex Post Facto Laws

makes illegal an act that was legal when it was committed (making someone that was not a criminal, now a criminal)

Engel v. Vitale (1962)

• Background: Parents sued NY public school for having their students recite a Regents Board sponsored voluntary morning prayer that started with the words “Almighty God”.

• Issue: Whether the 1^st Amendment’s Establishment Clause was violated by making students recite the prayer (14th amendment’s due process clause allowed this state challenge)

• Majority: By encouraging students to recite the prayer, NY has adopted a practice wholly inconsistent with  the Establishment Clause

Effects:Began precedent of striking down religious practices by state officials in certain contexts (Lemon Test)

The origins of Selective Incorporation

1868- 14^th Amendment “due-process” clause opens Bill of Rights to state restrictions

• “…nor shall any State deprive any person of life, liberty, or property, without due process of law.”

1925- Gitlow v. NY- Court relied on 14^th amendment’s due process clause to find states must respect some 1^st amendment rights 

Began “Selective Incorporation”(many of the Bill of Rights protections apply to states)

Wisconsin v. Yoder (1972)

• Wisconsin law mandated school attendance through age 16.  Three Amish families did not believe it was necessary for their lifestyle and removed their children after 8th grade.

• Issue: Did the state law violate the 1^st Amendment’s Free Exercise Clause?(the 14th amendment’s due process clause allowed this state challenge)

• Unanimous: Court found that the values and programs of secondary school were in sharp conflict with the fundamental mode of life mandated by the Amish religion (free exercise violated by law) 

Effects: Established precedent to consider religious exemptions to state policies  (laws must have compelling state interests)

Schenck v. U.S. (1919)

• Schenck, a member of Socialist Party, printed and mailed 15,000 fliers urging young men against draft in WWI. Convicted of violating the Espionage Act of 1917

• Issue: Did Schenck’s conviction under the Espionage Act for criticizing the draft violate with 1^st Amendment free speech right?

• Unanimous: Justice Holmes ruled that Schenck did not have the right to print, speak, and distribute material against U.S. war efforts because a “clear and present danger” existed. 

• Lasting Effects: Rights are not absolute (if they incite a violent action).

Tinker v. Des Moines School District(1969)

• Students were suspended after being warned not

to wear black armbands as a symbol of protest against the Vietnam War. Parents tried to prevent suspension.

• CI: Were the student’s 1^st Amendment 

free-speech rights violated by the school district for protesting while using symbolic speech?(14th amendment’s due process clause allowed this state challenge)

• Majority: Armbands were protected as symbolic speech, students were not disruptive. Rights could be suppressed if affected school operations.

• LE: Students do not give up their rights when they enter the school

Balancing Social Order & Individual Freedom

Efforts to balance social order & individual freedom are reflected in interpretations of the 1st Amendment that limit speech, including

• Time, place, and manner regulations                            (must be narrowly tailored, have specific gov’t interest,          can it be expressed another way?)

• Defamatory, offensive, and obscene statements and gestures (not protected, hard to define)

• That which creates a “clear and present danger” (Schenck v. U.S.)

New York Times v. U.S.(1971)

• NY Times printed the “Pentagon Papers”, a secret study of the Vietnam War, and the Nixon administration attempted to halt the publication (prior restraint), claiming that it would injure the national security of the U.S.

• C.I.: Was the NY Times protected by the 1^st Amendment’s free press clause even in a case where the government declares the material to be essential to national security?

• Majority: Court struck down Nixon’s actions for violating the 1st Amendment using prior restraint without heavy justification of national security. 

• LE: Established a “heavy presumption against prior restraint even in cases involving national security.

McDonald v. Chicago (2010)

• Following the “D.C. v. Heller” Court decision upholding individual gun rights at the federal level, Chicago regulated access to new firearms and required registering of guns bought before 1982.  Otis McDonald refused to give up his handgun which he used for self-defense in his “dangerous” neighborhood.

• C.I.: Did Chicago violate the 2nd Amendment’s right to bear arms and the 14^th Amendment’s due process clause?

• Majority:  Court selectively incorporated right to gun ownership.  Firearm possession for self-defense is a “deep-rooted” American tradition.

L.E.: States cannot ban handguns outright but can still regulate them under certain conditions.

4^th Amendment

• Search allowed:probable cause, plain view, on person

• Search unreasonable: if evidence is obtained in a haphazard or random manner.

• Exclusionary Rule: evidence cannot be introduced into trial if illegally obtained (incorporated through Mapp v. Ohio case)

• USA Patriot Act- Broader SEARCH powers allowed

Metadata- cell phone data collection used

5th Amendment

• Self Incrimination: the right to remain silent (Miranda v. Arizona case.)  You do not have to be a witness against yourself

Gideon v. Wainwright (1963)

• Gideon was arrested and charged with robbing a pool hall.  He requested an a lawyer and was denied one. Florida law did not require giving an attorney for petty theft cases. He appealed from jail.

• C.I.: Was Gideon denied his 6^th Amendment right to have an attorney represent him? (through 14th amendment’s due process clause)

• Unanimous:  The assistance of counsel is a fundamental right essential to a fair trial (even if one cannot afford an attorney)

L.E.: States are required to set up public defender systems

8th Amendment

Prevents cruel and unusual punishments and excessive bail or fines. (Death Penalty- circumstances matter)

9th Amendment

“Substantive Due Process”.  If the “substance” of the law (very point of the law) violates some basic right (even if NOT in Constitution), then a Court can declare it unconstitutional. (Major Issue: Right to Privacy)

• Griswold v. Connecticut (1965)-protected “zones of privacy”. 

Roe v. Wade (1973)-privacy right extended to abortion               (overturned in 2022

Civil Rights

Protects individuals from discrimination based on characteristics such as race, sex, national origin & religion.

These rights are guaranteed to all citizens under the EQUAL PROTECTION CLAUSE OF THE 14th AMENDMENT, as well as acts of Congress.

Brown v. Board of Education (1954)

• Linda Brown was forced to attend segregated schools that the state claimed were “separate but equal”

• Issue: Do state school segregation laws violate the EQUAL PROTECTION clause of the 14^th AMENDMENT?

• Unanimous: school segregation deprives children of the minority group of equal educational opportunities and gives them a feeling of being inferior.  “There is no place in education for separate but equal”

• Problem: no timeline given for when it takes effect

Brown II case: “integrate with all deliberate speed”

LETTER FROM A BIRMINGHAM JAIL (1963)

After a civil rights march in Birmingham Alabama left Martin Luther King, Jr in jail, white clergymen urge local African Americans to withdraw from demonstrations (“A call to unity”)

While in jail, King read the clergymen’s plea and decided to write an open letter in response.

The Letter defends the strategy of civil disobedience to racism.

It says people have a moral responsibility to break UNJUST LAWS and to take action

Dr. King outlines his argument for using direct action to seek policy change that advances civil rights.

• Nonviolent direct action- creates a community tension

• Nonviolent Tension- leads to negotiation

• Negotiation- to seek civil rights policy change

• Policy change- will advance civil rights

Direct (Pure) Democracy

allows citizens to meet and make decisions about public policy issues (direct voting)

Representative Democracy

allows citizens to choose officials who make decisions about public policy (U.S.)

Natural Rights

right to life, liberty, and property which gov’t can’t take away

Social Contract

people allow their gov’t to rule over them to ensure a safe/functioning society

Popular Sovereignty

right to rule comes from the people

Republicanism

It stresses liberty and inalienable individual rights; recognizes the sovereignty of the people, and rejects monarchy

Declaration of Independence

Mainly written by Jefferson, it:

• Provides a foundation for popular sovereignty

  THREE PARTS:

  1. Philosophical Basis- unalienable rights, consent of the governed

  2. Grievances- unjust trials, unjust taxes, many others

  3. Statement of Separation- “the right and duty to revolt”

Participatory Democracy

broad, direct participation in gov’t. (Protests, initiatives)

Pluralist Democracy

group-based activism to influence policymaking (interest groups will have to bargain & compromise)

Elitist Democracy

people with most resources dominate (inequity in power)

Federalists

Supported the Constitution

Supported strong national government

Concerned with tyranny of the majority

Made up of more wealthy merchants & southern plantation owners

Antifederalists

Opposed the Constitution

Supported strong state governments

 Concerned with oppression of the rights of the states and the people

Made up of more rural farmers and shopkeepers

Federalist #10 Madison

• Factions (unequal wealth)-are interest groups that could be dangerous to others but are necessary in a democracy 

• Can’t remove causes (destroys liberty, all same views)

• Can control effects

1. Minority Factions will be voted down

Large Diverse Republic (not a “pure” democracy)will control majority factions (creates more diverse factions to water-down power)

Antiferealists-Brutus I

• National Gov’t- leaders won’t give up power once they have it (be careful agreeing to Constitution)

• N & P (elastic) & Supremacy Clauses-  give too much power to national gov’t (“absolute & uncontrollable  powers”, “taxation=oppression”)

• Country too large to be a Republic won’t control factions, leaders not “local” enough (reserved powers will be lost, smaller republics work best)

Bill of Rights -needed to protect liberties

Articles of Confederation

First U.S. constitution (1781-weak alliance or “friendship”)

States had most power (impose tariffs, create currency)

Flaws in Articles:

a)   Congress, the only branch with limited powers (no court rulings or executive enforcement of laws)

i) Congress had no power to tax, obtain money, or regulate commerce

b) 9/13 states to make a law, all states needed to amend it

c) No centralized military power (Shays’ Rebellion could not be addressed, showed a stronger central government was needed)

Federalist Paper #51 (James Madison)

• Republic must be created to account for self-interests (“if men were angels no gov’t would be necessary”)

• Key to preventing tyranny was a separation of powers with checks and balances of powers (vetoes, impeachment)

• Bicameral legislature will also prevent Congress from tyranny

Federal system also is broken into national and state powers (an additional check on tyranny)

Constitutional Convention Compromises

A. ISSUE #1- REPRESENTATION-

Size of States (Virginia Plan) v.  Equality of States (N.J. Plan)

Connecticut(Great) Compromise- bicameral legislation

B. ISSUE #2- COUNTING SLAVES- 3/5ths compromise                                            Slaves count as “3/5ths” for representation 

C. ISSUE #3- IMPORTING SLAVES- South agrees to end it by 1808, North agrees to return fugitive slaves

d. ISSUE #4- SELECTING PRESIDENT- Electoral College created as compromise between popular vote or a vote by Congress. Winner-take-all set up.

The U.S. Constitution

Includes: Preamble, 7 Articles, 27 Amendments

• Preamble- The opening. Lists 6 goals for American government, explains reason for document (popular sovereignty, limited gov’t)

7 Articles- Powers of Congress (I),Powers of President (II),Powers of Courts (III), State to State Relations (IV), Amendment Process (V), Supremacy Clause (VI), Ratification Process (VII)

Federalism

the sharing of power between the national government and state governments 

Constitutional Provisions that guide federalism

Article I (powers of Congress, including commerce & elastic clauses) Article IV (relationship of the states to each other) Article VI (supremacy clause), 10th Amendment (reserved powers for the states)

Expressed

enumerated or delegated powers given to national government

Implied

not expressly stated in Constitution (“elastic clause” for national government)

Reserved

powers for the state governments (through the 10^th amendment)

Concurrent

powers for both national and state governments

McCulloch V. Maryland (1819)

• Maryland tried to tax a federal bank located in that state

1. Did Necessary/Proper Clause allow federal gov’t to create a bank?

YES. Although creating a bank is not in Constitution it is “necessary” to carry out expressed powers (“implied powers”)

2. Did Maryland have the right to tax the bank?

NO. Maryland could NOT tax bank (Supremacy clause means Federal law overrides State laws)

U.S. V. Lopez

• 12th grader Lopez brought gun to school. Congress passed Gun-Free School Zone Safety Act (gun near school a federal crime)

• Did Congress overstep its Commerce Authority creating a law around a school ?(a reserved power) Majority: Congress may NOT use the commerce clause to make possession of a gun near a school a federal crime.

New phase of federalism:importance of state controls

Devolution

has brought back some control to states (Block grants, Lopez v. U.S.)

Revenue sharing

when federal gov’t has a surplus, gives tax money to states with no strings

Mandates

conditions on aid (unfunded mandates make it harder for states)

Categorical Grants V. Block Grants

(PROJECT, FORMULA, more strings) 

(Broader with more state discretion, less strings)

Fiscal Federalism (2 types)

the relationship today

Dual (Layer Cake) V. Cooperative (Marble Cake)

separate control (up until New Deal

today powers are shared 

The Senate

Represent states equally (2 each)

Qualifications:

a) 30 years old

b) Citizen 9 years

      c) Live in state represented 

Now directly elected to a      six-year term* 

(*17^th Amendment, originally selected by state legislatures)

More constituents            (represent whole state)   100 members

The House of Rep.

Represent the population

Qualifications:

a) 25 years old

b) Citizen 7 years

c) Live in state represented 

Directly elected to a  two-year term

Less constituents (represent district only)

435 members

The Senate Constitutional Powers

a) Runs impeachment trial

b) Approves presidential nominations & treaties (influences foreign policy)

Not as strong leadership, party based

Procedures: 

a. No rules committee.

b. Unlimited debate(filibuster) to delay/prevent legislation voting.         

c. Can end debate (cloture*)                   (*need 60 votes, rarely used)

The House of Rep. Constitutional Powers

a) Initiates all revenue bills (influences BUDGET)

b) Brings impeachment charges 

 Strong Leadership and             Party Based 

Procedures:                                House Rules Committee- most powerful (set debate time limits, what amendments allowed)

Discretionary Spending

done through legislation. (⅓ of budget)

Mandatory Spending

done automatically (2/3rds of budget “entitlements”-Social Security, Medicaid, Medicare)

Revenues

a) Income Tax (personal & corporate)-16th Amendment permitted Congress to levy a Progressive Income tax. (IRS created)  b) Social Insurance Taxes-Social Security and Medicare

Bill

a proposed law

Party Leaders

play a vital role steering bills 

Most bill work done in committees  (divide work, bills introduced, hearings held, first votes on proposed laws taken)

Standing

Permanent broad area committees

Joint

Made up of members from both houses to work on different subject areas.

Select

Temporary committees set up for a specific purpose 

Conference

Reconciles differences between bills passed in the House and the Senate

Holds

Senator objects to a bill and wants to delay it

Unanimous Consent

• When ALL in Senate agree to suspend rules (speeds up process)

Discharge Petition

forces a bill out of a HOUSE committee and to the floor for consideration (Rarely used)

Committee of the Whole

• Includes ALL members of the House. Relaxes the usual limits on debate, allowing a more open exchange of views  

Closed Rule

• House rule that prevents amendments to a bill during floor debate

Legislative Oversight

• nvolves hearings, audits, monitoring, fund withholdings, and other methods of checking the actions of  the executive branch agencies.

House Leadership Roles

Speaker of the House

Control over which bills and who gets assigned to which committee

Majority Leader- Schedules bills for floor consideration

Minority Leader- Organizes opposition strategy to majority party

Majority/Minority Whips- Keep count on important votes, pressures members to vote with their party

Senate Leadership Roles

Vice President

President, Breaks a tie on votes

Pro Tempore (ceremonial)

Senior majority party member

Majority Leader- Influences committee assignments/floor action. (True leader of Senate)

Minority Leader- Organizes opposition legislative strategy

Majority/Minority Whips- Keep count/pressure on important votes,

Incumbency Advantage

1)“Franking” Privilege:                        (free mail usage)

2)Credit Claiming: (casework, pork barrel)

3)Campaign Spending: (PACs money)

How members vote

• Trustee: listens to constituent’s and then use their best judgment 

• Delegate: only votes the way their constituents want 

• Politico: acts as either depending on the issue

• Caucus: informal relations in Congress (creates bonds)

Logrolling: “you vote for me, I’ll vote for you”

Reapportionment

• after a Census, if reapportionment of House seats occurs, state district lines must be redrawn by state legislatures

Gerrymandering

• the deliberate manipulation of district lines for political gain.

• “Packing”- putting opponent into fewer districts

• “Cracking”- spreading opponent over many districts

Baker V. Carr 1962

• Background: Court had never spoke on apportionment (political matter)

• Facts: In the 1950s, Tennessee was still using electoral district boundaries draw after the 1900 census.

• Charles Baker believed that being from a heavy-populated area, his vote was not receiving “equal protection” under the 14^th amendment (devalued)

• Issue: Do federal courts have the power to decide this?

Majority (6-2 for Baker): Court can intervene when states do not follow constitutional principles (equal protection of 14^th). All states began to redraw districts (one person, one vote)

Shaw V. Reno 1993

• Background: N.C. required “pre-clearance” of reapportionment

• Facts: After 1990 census, North Carolina submitted map of congressional districts to Justice Department for review.

• U.S. Attorney General Reno called for TWO “majority-minority districts though the map submitted had only one

• Issue: Did N.C.’s residents’ (Shaw) claim that the redistricting plan discriminated raise a valid constitutional issue under the Equal Protection Clause?

Majority (5-4 for Shaw): Drawing “bizarrely”-shaped lines to advance the interests of one group is wrong. No racial gerrymandering.

Federalist #70

1. Unitary (one) President-Some wanted a council (to prevent tyranny).  Hamilton argues for One.  One can be decisive and secretive (energetic) as needed. Congress doesn’t need to be this.

2. Competent Powers-President needs to be strong enough to fight legislative power and get job done (veto power given)

3. Duration- needs a term of office to gain trust (4 years)

4. Support- need to pay (less likely to be bribed)

20th Amendment

moved up change of leadership (Congress to January 3rd, Pres/Vice to January 20th). Those voted out remained in office but were powerless. Amendment (“lame duck”)

22nd Amendment

Presidents can only be elected to TWO terms of office (limits presidential power)

25th Amendment

Vice president becomes president if presidential vacancy occurs (resigns, disabled). New President then selects new VP (with Congress approval)

Chief Executive

Presides over: Cabinet, Federal agencies,White House

Executive orders: Used to control the Bureaucracy (“CLARIFY” a law) 

Executive Privilege-President does not have to be shared all info other branches (U.S. v. Nixon case limited this)

Chief Legislator

FORMAL POWERS:

State of Union Address- Yearly to Congress

Veto: Reject a bill of Congress. Can be overridden by 2/3 Congress.

Pocket Veto: Letting a bill die by not signing it – only works when Congress is adjourned within 10 days of giving it to President.

INFORMAL POWERS:

Bargaining/Persuasion

Signing Statements 

Chief Diplomat

FORMAL POWERS:

• Appoints: ambassadors and other U.S. diplomats,

• Negotiates: treaties

• Meets/Recognizes: foreign leaders/governments

  INFORMAL POWER:

Executive agreements- take care of routine matters with other countries (easier than treaties, DO NOT REQUIRE Senate confirmation)

Commander in Chief

• Framers: wanted civilian control of the military.

• Foreign Policy “Problem”: Congress declares war BUT usually defer to the President on matters of national security (foreign affairs)

• War Powers Resolution (1973)- Congress wants to be more involved in war, Presidents generally ignore it

Party Leader

The Bonds of Party-starts strong between Congressmen and presidents of same party

• Presidential coattails – When voters cast their ballots for congressional candidates from president’s party because they support the president.

Congressional Seats- Usually lost after first few years in office

Head of State

• Functions: Mainly Ceremonial which have press coverage. Designed to help approval ratings.

• Bully Pulpit- presidents may use the media to promote programs, influence Congress, quickly respond to issues

Federal Bureaucracy

departments and agencies within the executive branch that CARRY OUT laws (rules impact all of us)

Work at direction of President but are created and funded by acts of Congress

Bureaucratic Functions

rule-making, issuing fines, testifying before Congress, forming relationships with interest groups

History of Bureaucracy

Andrew Jackson- filled positions in the bureaucracy using POLITICAL PATRONAGE (jobs granted as a reward for support). Consequence of Patronage-                                                     little expertise, people shuffling in and out of jobs. 

Pendleton Civil Service Act 1883- created a Commission to draw up and enforce rules on hiring, promoting, and tenure of office within the bureaucracy.  Jobs based on a MERIT SYSTEM

Merit System- a system of hiring and promotion based on competitive qualifications rather than politics

Checks on the President

Appoints agency heads, issue executive orders, tinker with the agency’s budget (to get their attention). reorganize an agency

Checks on Congress

a) Creates agencies and approves appointments,         b) alter an agency’s budget (“power of the purse”), hold committee hearings, or monitor agencies (examples of oversight), c) rewrite the legislation (change rules), use influence as part of a iron triangle/issue network

Checks of the Courts

decisions may restrict and constrain how much they can do (judicial review)

Federalist #78 Alexander Hamilton

• Judicial will be weakest branch and not a threat because they have no power of “purse” (Congress has that) and no power of the “sword” (President has that). Just judgment and need executive to enforce it.

• Judges serve for life to assure no political pressure from outside forces, can make impartial rulings (independent)

• Created to maintain checks and balances

Even hints at judicial review   

Article III of the Constitution

• Establishes the Supreme Court

• Gives Congress the power to create lower (inferior) courts

• Judicial salaries can never be lowered, life tenure

• Provides jurisdiction of the courts                                                                Two types of jurisdiction (authority to hear certain cases)

 1. Original Jurisdiction hears the facts of a case

 2. Appellate Jurisdictionhears appeals to a court decision (no facts)

Marbury V. Madison 1803

Facts of the Case: Adams (a Federalist) loses the election of 1800 to Jefferson and tries to appoint new federalist judges before he leaves.  Sec. of State failed to deliver some of them, one of which was going to William Marbury.

Jefferson takes over and instructs his Sec. of State (Madison) not to deliver the 3 appointments.  Marbury sues and asks Court for a “WRIT OF MANDAMUS” (ordering public official to do something). A power given to Court by Congress in Judiciary Acts of 1789

Constitutional Issue: Does the Court have the power to order the delivery of these judge commissions?

Court Decision: Chief Justice John Marshall rules that parts of the Judiciary Acts of 1789 are unconstitutional (writ of mandamus). Congress couldn’t give that power only the Constitution could and it did not.                                                                                                                                                Lasting Significance: The case established the principle of JUDICIAL REVIEW-(Court has the power to overturn laws and presidential actions it determines to be unconstitutional)

Presidential Appointments

to the Court lead to ideological changes and can establish new or rejecting existing precedents

Judicial Outlooks

Judicial restraint: judges should play a minimal policymaking role - leave the policies to the elected branches (strict)

Judicial activism: judges likely to strike down laws and policies as unconstitutional (loose).

Stare Decisis

 relying on precedent