Midterm

Unit One: Constitutional Underpinnings

Democracy

• Rule of many

• 2 kinds:

1. Direct democracy- most citizens participate directly

2. Representative democracy- elected leader make decisions

Types of Representative democracy

• Participatory

  • Consistent and individual participation by majority of the population

  • Ex: The American government

• Elite

  • Power is centered around a narrow ruling class and the average person plays a passive role

• Pluralist

  • Power is relatively equally divided among multiple interest groups

  • Groups have equal access to influence policy

Fundamental Principles of Democracy

1. Natural Rights- everyone is born with certain rights like life, liberty, and property

2. Social contract- an agreement between the people and the government

3. Popular Sovereignty- the ultimate authority rests among the people, consent of the governed

4. Limited government- restricts government power

   • Separation of powers- decentralized power (has three branches)

   • Checks and balances- the ability to limit the power of another branch

   • Federalism- the balance of power between state and federal governments

   • Republicanism- the government is based on the will of the people

Origin of Democracy

• Enlightenment thinkers

  • Aristotle

    • tha fb

  • Thomas Hobbes

    • thgfd

  • John Locke

    • focused on:

      • Natural rights

      • Social contract

      • Popular sovereignty

      • republicanism

  • Rousseau

    • the fever

Founding the American government

Declaration of Independence

• Thomas Jefferson’s document that justified separation form England

• Used principles of:

  • “life, liberty, and the pursuit of happiness”

  • consent of the governed

  • social contract

·      Common Good – Belief in doing what’s best for the nation overall

·      Majority Rule – Belief that government is run based on the will of the majority The First Government – Articles of Confederation

·      Weak association of states (states very independent)

·      No central executive power

·      No federal power to tax citizens directly

·      Federal government could raise an army, (but not pay for it), print money, declare war, and run the post office

·      9 out of 13 states were required to vote to pass a law

·      With no strong central government supervision, states could get away with taxing and printing money, and making foreign treaties,

·      Shays’ Rebellion – Farmer rebellion in Massachusetts 1786-1787 protesting mortgage foreclosures and terrible economy. Rebellion represented how weak the central government was, and terrified many Americans

Constitutional Debate

·      Constitutional Convention meets in Philadelphia, 1787 to write new constitution

·      All delegates supported Representative Democracy (Republic) – democracy where people elect representatives who pass laws

·      Supported three branches – executive, legislative, and judicial

·      Serious debate between Federalists vs. Anti-Federalists, North vs. South, Big States vs. Small States over new government

·      North---South Compromises – 3/5 Compromise counted slaves as 3/5 of a person to give the south more representatives

·      Connecticut Compromise – (Bicameralism) – Established two equal bodies (House of Representatives and Senate) one based on population, one giving all states equal representation. This was a compromise between big states (Virginia Plan) and small states (New Jersey Plan) over the format of the Congress

·      Federalists (Hamilton, Madison) supported the Constitution because it gave power to a strong central government.

o   Federalist Papers – articles written by Madison, Hamilton, and Jay arguing for the constitution

•      Federalist Paper #10 – written by Madison, discusses importance of factions, factions are inevitable, but factions are best handled by a large republic.

•      Federalist Paper #51 – written by Madison, discusses importance of checks and balances and the separation of powers in the constitution

·       Anti-federalists opposed the constitution because they thought the national government would become tyrannical and take power away from the states

o   Brutus No. 1- feared a strong national government would become oppressive, echoing ancient republics that fell due to size and centralized power

The Constitution of the United States of America

·      Article I –Legislative Branch

·      Article II –Executive Branch

·      Article III –Judicial Branch

·      Article IV – Interstate relations

·      Article V – Amendment process

·      Separation of Powers – Each of the three branches has its own power and independence

1.     Legislative Branch – Passes laws

2.     Executive Branch – Executes laws

3.     Judicial Branch – Interprets laws (this power comes from Supreme Court Case

Marbury vs. Madison – set dogma of judicial review, where the Supreme Court may rule an act of the President or Congress unconstitutional)

·      Checks and Balances – Each branch has some power over the others, but retains independence:

·      Federalism – Separation between powers of the Federal, State, and Local governments

·      Confederacy – System of government in which the central government is very weak, and most of the true power lies in individual states

·      Unitary System – System of government in which the central government is extremely powerful, and individual states have few powers

·      Dual Federalism, aka “Layer Cake” Federalism (1789-1932) – Belief that the state and national governments are supreme within their own sphere of influence

·      Cooperative Federalism, aka “Marble Cake” Federalism – sharing powers between state and federal governments

·      Fiscal Federalism – government’s patterns of spending, taxing, and providing grants to influence state and local governments

o   Grants-in-aid – money given from the federal government to the states

o   Categorical grants – federal grants for specific purposes (building an airport)

o   Block grants – broad grants from the federal government that give local/state governments a lot of freedom to spend money as they please without many strings attached.

•      The Welfare Reform Act of 1996 began transferring more authority back to the states through block grants

o   Revenue sharing – federal sharing of a fixed percentage of its revenue with the states

o   Mandates – terms set by the federal government that states must meet if they accept federal grants

·      Devolution – process of returning power to the states, this began during New Federalism under presidents Nixon, Reagan, and Bush

·      Federal Powers – Express, Implied, and Inherent powers:

1.     Express powers – powers listed (enumerated) in the constitution for the Federal government: go to war, raise an army, regulate interstate and foreign commerce, establish post offices

2.     Implied powers – Based on necessary and proper clause (elastic clause) – gives congress flexibility to make laws necessary and proper for carrying out express powers, upheld in McCulloch v. Maryland

3.     Inherent powers – powers dealing with foreign policy not in constitution, but given to federal government

·      Denied Powers – Powers explicitly denied to government:

o   suspending writ of habeas corpus (being imprisoned without formal accusation)

o   passing bills of attainder: laws that declare a person to be guilty

o   ex post facto laws: “after the fact,” laws that make an act illegal after it was performed

·      Concurrent Powers (shared by Federal and State governments) – power to tax and spend, establish courts, make laws

·      Reserved to States (10th amendment) – any power not denied nor given to federal government is reserved for state governments (create local governments)

·      Supremacy Clause – Federal law is superior to state law.

o   This came out of the court case McCulloch vs. Maryland, in which there was debate as to whether or not the Bank of the United States had to pay Maryland state taxes. The Supreme Court ruled that because the Bank of the US was NATIONAL it did not have to follow Maryland STATE law. This ruling overturned the idea of nullification by which states could override federal law

·      Interstate Commerce Clause – Gives Federal Government authority to regulate all of interstate commerce. This clause gives the federal government authority to regulate businesses that go between state lines, and justifies many federal laws (Civil Rights Act)

·      Take Care Clause – president must enforce ALL laws passed by congress

·      Full Faith and Credit – states must honor laws and court rulings of other states

·      Privileges and Immunities – requires states to extend same privileges and immunities to all citizens (even of other states)

·      Bill of Rights – First 10 amendments to the Constitution that guarantees individual and states’ rights. This was a concession the federalists made to the anti---federalists to ensure constitution would be ratified

o   Amendment 1 – freedom of speech, assembly, petition, religion, press

o   Amendment 2 – right to bear arms

o   Amendment 4 – no unreasonable searches and seizures

o   Amendment 5 – right to a trial, no double jeopardy, individuals are not required to testify against themselves

o   Amendment 6 – right to a speedy, public, and impartial trial with lawyer

o   Amendment 8 – no excessive bails or fines, no cruel and unusual policies

o   Amendment 10 – powers not given to the federal government or denied of the states are reserved to the states (states rights)

·      How to Amend the Constitution

1.     2/3 of congress propose amendmentà3/4 of states ratify it

2.     State convention called by 2/3 of states propose amendments, 3/4 of states ratify (this method has only been used once, 21st amendment)

Unit Two: Interactions Among Branches of Government

Legislative Branch (Congress)

·      Congress has two bodies (bicameral), the House and the Senate, in order for a bill to pass it must be passed by both houses

·      After a congressmen proposes a bill, the Speaker (in the house) or the Majority leader (Senate) gives that bill to a committee, which gives it to a subcommittee

·      Congress holds hearings to oversee the executive

·      Incumbents have great chances of wining reelection

·      Has power to create executive agencies (for example the clean air and water act established the EPA)

·      Authorizes and appropriates money for the executive

·      Approves the budget

How they Vote

·      Sometimes politicians “trade” votes, a process known as logrolling

·      Politicians like to add on extra, unrelated programs to bills that will benefit their constituents, these additions are known as pork barrel spending

The House of Representatives

·      The house is regarded as the “lower house”

·      States are given representatives based on population

·      Impeaches members of executive, judicial

·      Representatives serve two year terms

·      Each rep. represents a certain congressional district

·      The House has a Rules Committee – determines whether bills have closed rule (no amendments, time limit on debate) or open rule (open to relevant, germane amendments, no time limit)

·      The Leader of the House is the Speaker of the House who assigns people to a committee that assigns people to committees, directs floor debate, and gives bills to appropriate committee

·      The Census – Every 10 years a count of the total population, different ethnic groups, religions, and how people vote

·      Redistricting – after every census the congressional districts are redrawn based on population

·      Reapportionment – state legislatures reapportion (resize) state congressional districts after every census

·      Gerrymandering – The practice of redistricting in order to benefit a specific party by drawing districts based on the demo of their residents (Baker v. Carr and Shaw v. Reno were court cases in which the supreme court ruled that gerrymandering was unconstitutional)

Senate

·      Senate is considered the “upper house” – older and wiser

·      Each state has two senators (equal representation)

·      Tries impeached members of executive, judicial

·      Senators serve six year terms

·      The senate has the responsibility of confirming presidential appointments and nominees, ratifying treaties, and confirming the budget

·      There is no rules committee, debate is always unlimited

·      Because debate is unlimited, the minority party can filibuster – kill a bill by continuing to talk

·      To end debate and a filibuster, cloture (a vote by 3/5 of the senate) is required

Congress and Foreign Policy

·      Congress’s most powerful tool is its power of the purse, Congress is responsible for authorizing and appropriating the funds needed for foreign policy missions

·      War Powers Act of 1973 – All commitments of troops in hostile situations must be reported within 48 hours. Troops may only be deployed for 60 days without a formal congressional declaration of war or statutory authorization

·      In reality the War Powers Act is relatively weak, because Congressmen are typically very unwilling to end an operation after troops have been deployed

Committees

·      Most work is done in committees (especially in house)

·      Most bills DIE in committee

Executive Branch

·      Federalist #70- is a defense of a powerful, unified presidency as crucial for a stable and functional republic, balancing efficiency with public accountability.

·      Requirements for office:

1.     Natural born citizen

2.     At least 35 years old

3.     Resident of America for at least 14 years

·      Powers as Commander in Chief (civilian power over military)

1.     Head of Army and Navy

2.     Head of National Guard

·      Powers as Chief Executive of Government

1.     “Faithfully execute” the laws

2.     require opinions of heads of agencies

3.     grant pardons except in cases of impeachment

4.     nominate judges to federal courts and nominate cabinet (confirmed by senate)

5.     call for special session of congress

·      Powers in Foreign Affairs

1.     appoint ambassadors

2.     make treaties (to be confirmed by senate)

3.     send troops anywhere in the world if Congress authorizes it or during national emergency (War Powers Act) The president has 48 hours to justify in writing to congress why troops were sent, and 60 days before he must withdraw troops (unless congress extends time)

·      Legislative Powers

1.     Give State of the Union address to Congress to push his agenda

2.     recommend and suggest bills for congress

3.     call special sessions of congress

4.     veto bill (can be overturned by 2/3 of congress)

5.     pocket veto – not signing a bill within 10 days and having Congress adjourn

·      Cabinet - president picks (senate confirms) the heads of the 15 most important agencies, these agencies help execute the law

1.     Department of Defense, Department of State, Department of Treasury…

2.     Office of Management and Budget – writes budget (must be confirmed by the senate)

·      Council of economic advisers - part of executive office, help advise the president on economic issues

·      Informal Powers of the President

1.     Executive orders – orders written by president or agency that have the weight of law. There are several ways to undo executive orders: president can rescind it, next president can rescind it, the supreme court can rule it unconstitutional

2.     Executive privilege – right of president to keep certain documents private if pertaining to national security (in USA vs. Nixon the supreme court ruled that executive privilege is NOT unlimited)

3.     Agenda Setting – president sets out the legislation he wants passed (he uses his bully pulpit)

4.     Impoundment – ability to refuse to spend money appropriated by congress (this was ruled unconstitutional)

The President and Foreign Policy

·      The President is considered the leader in developing foreign policy

·      President is the commander and chief, and has the power to negotiate treaties and executive agreements, appoint ambassadors, and set the nation’s tone on foreign policy issues

·      National Security Council – chaired by the president, includes vice president, Secretary of State, Secretary of Defense, Joint Chiefs of Staff, head of CIA, Attorney General. It is designed to present various perspectives, facilitate presidential decision making discussions, and implement presidential decisions

The Bureaucracy

·      Bureaucracy – administrative system that divides work into specific departments carried out by non-elected officials

·      The bureaucracy remains politically neutral through the Hatch Act, which bats bureaucrats from running for public office, making political speeches, or soliciting campaign funds from subordinates

·      The bureaucracy has grown tremendously over the past 100 years, taking on more and more responsibilities

·      Currently it employs 4 million people, 2.8 are civil servants, the rest are military

·      Many other people are indirectly employed by the federal government

·      The biggest department is the Department of Defense

·      Over time, the bureaucracy has increased its discretionary authority – its power to choose course of action and make policies not explicitly spelled out by laws

·      Many federal officials belong to the competitive civil service – government offices to which people are appointed on the basis of merit (by taking an exam); this ended the “spoils system” where government jobs were given in exchange for political support; managed by the Office of Personnel Management (OPM)

·      It is very difficult to fire a bureaucrat

·      At the higher levels there are more whites than African Americans, and there are more men than women

·      Often many departments are responsible for similar tasks, there are many procedures bureaucrats must go through to do anything

·      Red Tape – complex rules and procedures that must be followed to get stuff done

·      Many people are critical of the large amounts of waste (pork) in the bureaucracy

·      Iron Triangle: informal alliances that work together to formulate and implement policy in their area of interest; they are made up of:

1) particular industry and its lobbyists

2) the congressional committee dealing with that industry

3) the agency that is actually affected

·      Alliance (or issue) network: coalitions of interest groups, members of Congress, and bureaucrats form a close working relationship (more complicated than a simple iron triangle)

·      Deregulation: removing government restrictions and regulations; deregulation has occurred recently in the telecommunications and transportation industries

·      The bureaucracy has 3 main roles:

1.     Implementation – carry out laws, executive orders (homeland security enforces airport security laws)

2.     Administration – routine administrative work (social security administration sends out social security checks, postal service delivers mail)

3.     Regulation – issue rules and regulations that impact the public (EPA sets out standards for clean air and water)

The Structure of the Bureaucracy

Oversight

The Judicial Branch

·      The judicial branch was never expected to grow as powerful as other branches

·      Federalist #78- explains why an independent judiciary with the power of judicial review is essential for a balanced government, serving as a vital check on legislative and executive power.

·      1787-1865 – Court asserts federal supremacy

·      1865-1937 – Court puts restrictions on government

·      1937-2010 – Court deals primarily with individual freedoms

·      Criminal Law – type of law dealing with crimes and their punishments

o   Protects interests of state (state vs. individual)

o   Between prosecutor (government) and defendant

o   Defendant must be guilty “beyond reasonable doubt” to be convicted

o   Conviction results in removal of “life, liberty, or property”

·      Civil Law – type of law dealing with the rights and relationships of citizens

o   Protects interests of individual (individual vs. individual)

o   Between plaintiff and defendant

o   A preponderance of evidence (above 50%) is necessary

o   If convicted, there are monetary penalties

·      Based on principle of judicial review – allows judges to interpret the Constitution and deem something unconstitutional

·      Stare Decisis – the rule of precedent, whereby a rule or law contained in a judicial decision is viewed as binding on judges whenever the same question is raised “let the decision stand”

·      Strict-constructionist approach – the view that judges should decide cases strictly on the basis of the language of the laws and the constitution

·      Loose-constructionist approach- the view that judges should decide cases based on interpreting the Constitution loosely, typically reading between the lines, to extract a meaning based on modern times.

·      Judicial Restraint – principle that courts will not overturn previous decisions

·      Activist approach – the view that judges should discern the general principles underlying the constitution, and apply them to modern circumstances. These justices typically try to overturn precedent

Structure of the Federal Courts

·      Each state has at least one district court

·      94 district courts in the 50 states, the District of Columbia and the Commonwealth of Puerto Rico.

·      District judges are bound by the precedents of higher courts

·      Federal judges are appointed by the president, and confirmed by the senate

·      If for whatever reason the supreme court is tied, then the precedent set forth by the previous court is maintained WITHIN THAT DISTRICT

·      District Courts – the lowest federal courts, where federal trials usually go first, use jury

·      Courts of Appeals (circuit courts) – Federal courts that hear appeals from district courts, no juries, decisions made by panels of appointed judges. To get here someone must claim that their constitutional rights have been violated

·      Supreme Court – Hears appeals of appeal court rulings (somebody appeals the decision of the circuit court). 4 of 9 justices must agree to hear case (writ of certiorari). Supreme Court has original jurisdiction in cases between states or with foreign ambassadors

Appointing Judges

1.     The president’s staff presents him with possible nominees (typically other judges), FBI does background check, president looks at previous record of the individuals, conducts litmus test (determines political views), uses senatorial courtesy (uses preferences of senators from the district where the judge will serve) and finally selects nominee

2.     The Senate Judiciary committee members and staff review candidates, interest groups campaign for/against nominees, senate judiciary committee holds hearing, asking nominee questions, finally votes up/down on whether to send recommendation to the full senate

3.     The full senate has open floor debate on nominee, votes on confirmation

4.     If confirmed, the judge is given an oath of office by the Chief Justice

·      Because judges serve life terms, there is no political pressure on them to rule a certain way, and they are allowed to act independently

The Court

·      Sovereign Immunity – rule that citizens cannot sue the government without the government’s consent

·      Class action Suit – a case brought by someone to help him or her and all others who are similarly situated

·      Brief – a written statement by an attorney that summarizes a case and the laws and rulings that support it

·      Amicus Curiae – brief submitted by a third party “friend of the court” (typically an interest group)

·      Majority Opinion– a signed opinion by the majority that decided the ruling in a case

·      Concurring Opinion – a signed opinion that agrees with majority for other reasons

·      Dissenting Opinion – a signed opinion from the justices on the losing side

Unit Three: Civil Liberties and Civil Rights

Civil Liberties –individual freedoms protected from government interference (Bill of Rights)

·      Protect us from the government and their immense power.

·       

Civil Rights- protections from discrimination, ensuring equal treatment by the government and others (14th Amendment)

·      Due Process Clause – denies government the right to deny people of life, liberty, or property without due process of law (trial)

·      Selective Incorporation – the process by which individual liberties originally only applied to the federal government are applied to the states (through the due process clause of the 14th amendment)

·      Equal Protection of the Law – a standard of equal treatment for all Americans

·      Freedom of Expression – right of people to speak, punish, assemble, and petition

·      Symbolic Speech- nonverbal action that communicates an idea or belief. (Tinker v. Des Moines, armband)

·      Freedom of Speech Limits- Non-protected Speech that does not receive 1st amendment protections:

o   Time, manner, place- restrict when, where, and how. people conduct expressive activities.

o   Defamation: language that harms the reputation of another.

§  Libel- written communication

§  Slander- oral communication

o   Obscenity a specific legal category of unprotected, sexually-focused material

o   Offensive Communication is a broader description that may or may not be illegal depending on the context, intent, and specific nature of the communication. 

o   Clear and present danger: whether speech is so dangerous, so immediately, that it's like throwing a punch, not just talking about punching.

§  The danger must be clear (obvious) and present (happening now or very soon), not just a possibility in the future

·      Freedom of Religion – people shall be free to exercise their own religion (free exercise clause) and government cannot establish an official religion (establishment clause)

·      Prior Restraint- government action that prohibits speech or other expression before the speech happens.

·      Exclusionary Rule – evidence that is obtained through illegal means cannot be used. This means that police can only conduct searches if they have search warrants and there is probable cause (4th amendment)

·      No self-incrimination, right to a trial (5th amendment)

·    Cruel and Unusual Punishment- that forbids punishments considered inhumane, degrading, barbaric, or grossly disproportionate to the crime committed (8th amendment)

o   Ex: death penalty

Notable Cases: (* indicates a required case)

 Tinker v. Des Moines. Protects symbolic speech (1st amendment), Equal protection (14th amendment)

CItizens United v. FEC. freedom of speech also applies to corporations (1st amendment)