Exam 1

Chapter 1: Constitutionalism

What is a Constitution?

• Constitution: framework providing basic principles for political organization and operation
• A constitution is different from a law bc the constitution describes the process in which laws are made
• American exceptionalism
  • Oldest constitution and early endorsement of democracy
  • Rule of law
  • Not established by force

Constitutionalism

• Limited government
• Rule of law
  • Governed by higher law that everyone must abide by
• Individual rights and liberties
  • Negative rights: freedom from gov intrusion
    • Majority of laws in the US
  • Positive rights: entitled to certain freedoms
    • Ex: right to a lawyer

Federalist #1

• Author: Hamilton
• Articles of confederation not working, establish a new one, but is it possible?
• Purpose of government is to protect rights and many ambitious leaders use the veil of democracy to achieve personal gain
• Democracy and constitutionalism can conflict
  • Democracy calls for will of people
  • Constitutionalism calls for will of law
    • In democracy will of law will be sacrificed for will of people

Structure of Constitution

• Preamble: general statement of purpose and lays out the “end” of the gov
  • In US–establish union, justice, tranquility
• Organizational chart: blueprint for the use of public power
  • Separation of powers
    • Legislative: Article I
    • Executive: Article II
    • Judicial: Article III
  • Federal system
    • Limits on states: Article IV
      • Supremacy clause
  • Amendment process
    • 2 processes: ⅔ congress or ⅔ legislature and ¾ states must ratify
  • Rights
    • Bill of Rights
    • Post Civil War Amendments: 13, 14, 15

Defining Principles of American Constitution

• Separation of power, federalism, judicial review (enlightenment philosophy)
  • Separation of power comes from personnel more so than duty
  • Judicial review: power of the judicial branch to review and possibly invalidate the actions of the executive and legislative branches when inconsistent with constitution
    • Intended to check government
    • Controversial bc they are unelected officials and the interpretation of the constitution can change
    • Allow government to update
• Built on the concept of individual freedom and need to be in a community
  • Conflicting because personal desires often different from communal desires

Twin Pillars of American Politics

Individualist theory (democratic)

• Assumes that individuals take precedence over government
  • Gov should protect and promote rights of people and enable them to pursue self interest
  • Human interests create conflict thus gov necessary to mediate
• Justice for the individualist is procedural
  • Laws are legitimate as long as they are applied equally to all persons
  • Everyone gets the same treatment when applying to school–no affirmative action

Communitarian theory (republican)

• Assumes the community is essential to the formation and edification of the individual
  • Gov exists to protect individual interests AND bring individuals together to solve public problems making them better in the process
  • Public wins in case of public and private conflicts
    • Community can exist without an individual but individual cannot exist without community
• Justice for the communitarian is substantive
  • Outcomes are likely to be more important than procedure
  • Use gov action to achieve great justice
  • For affirmative action

The American Founding

A conservative revolution

• Americans trying to preserve basic liberties
  • GB had let colonists govern themselves
  • GB busy bc of war
  • American revolution not originally intended to separate
• Continental Congress sent petitions to king and parliament (Olive Branch Petition)
  • GB changed their perspective
  • Americans viewed themselves as combating GB growing corruption

British Tyranny

What caused change in British behavior?

• 7 years war was costly
  • GB ended laissez faire relationship with colonies
• Tried to recover the cost of this war by imposing upon their colonies
  • Sugar Act 1764, Currency Act 1964, Stamp Act 1765
  • Declaratory Act 1766, Townshend Act 1767, Intolerable Acts 1774

Deeply shaped American ideals about politics and influenced their constitution

• Fundamental rights
  • Some things the gov cannot do
• Distinction between constitutional and legal
  • Laws contradicted the constitution
• Emphasis on local government
  • Local government necessary to understand needs of people

Declaration of Independence

• Continental Congress effectually declared america’s independence before the declaration of independence had been signed or drafted
  • Transferred all gov power to american people (May 1766)
    • Already in war for 2 years
• What is the Declaration of Independence
  • Propaganda?
    • Thomas Paine Common Sense help convince american ppl to revolt
  • Justification of actions?

Declaration of Independence and Constitution

• Contains ideas about human nature and the proper foundation and goals of gov
  • First principles of america
  • Activists appeal to DOI when calling for change
• Declaration out to be read alongside constitution
  • DOI represents goals and constitution represents the means to achieve them
• Character of DOI is questionable- democratic,, aristocratic, monarchic, neutral?

Outline Declaration of Independence

• First paragraph: announces the intention of the doc
• Second: provides major premises for logical revolution
• Following list of grievances- minor premises
• Last paragraph: Draws conclusions from first and second premises

Paragraph 1

• When political community becomes two
• Meaning of “by powers of the earth” and “separate and equal station”?
  • Individualist - natural equality - john locke
• Is natural law and “nature’s God" related to christianity?
  • Later refers to a creator
  • Ambiguous relationship to christianity but not necessarily endorse christianity

Paragraph 2

• “We” -> self-evident
  • American people bc they hold those truths to be self evident
• What equality is meant by “all men are created equal”?
  • Pursuit of happiness vs right to property?
  • Equality of freedom, but unequal in talents and circumstance
    • No one has a divine/natural right to rule over anyone else
      • All governments are therefore artificial
    • Legitimate gov based on consent of governed but doesn’t require democracy
      • Constitution held to be oligarchic?
• John locke argued against the divine right of kings
• All ppl have complete freedom in the state of nature
  • Need to enter social contract which limits freedom
    • Good gov must be rooted in consent of people
• Aristotle’s definition of prudence in contrast to cleverness a
  • Cleverness is doing what is conducive to the target posited and so hitting upon it
  • Prudence is when the target is intentionally good/advantageous
  • Agrees with Jefferson caution:
  • DOI not overly cautious on stability like Hobbes (humans are more disposed to suffer)
  • Humans can always regain their rights to revolution but they must reclaim their natural right of freedom and independence
    • Humans need to be aware

Early state constitutions

• Struggle for the state founders: constitutional v legislative power
  • Constitutional higher law?
  • originally , state legislatures would write, interpret, and easily amend state constitutions
• Massachusetts first solved problem
  • Constitutional convention w/ delegates selected by the ppl
    • Important bc separate from legislature
  • Delegates draft the constitution
  • Ratification by the people

Separation of powers

• Did not effectively separate powers
• GB left disdain for executive power
  • No power given to executives of gov
• Emphasis on legislative power bc most democratic
  • Increased suffrage
  • Increase the number of representatives
  • Increased the frequency of elections

Checks for legislative power

• bicameral legislature
  • Failed bc not enough separation between qualifications
• Bill of rights
  • Failed bc too easy to amend constitutions and amen new laws
• Independent judiciary
  • Failed bc legislatures elected judges, paid salaries, passed new laws or amended constitutions
• >>>>legislative tyranny

Articles of Confederation

• Confederation: states give power to centralized gov
• Representation: strict separation between people and national gov
  • No national elections
• State equality: one vote each
  • 9/13 needed to pass a measure
  • 13/13 needed to amend
• Only one branch of gov at the national level - a congress
  • No executive branch = hard to enforce laws
  • No judiciary = states solved most disputes

Powers of National Gov

• Only powers expressly delegated
• No power to tax or to regulate the economy
• No power to raise an army
  • Need both money and troops from states

Interstate relations

• Firm league of friendship
• States retain sovereignty
• Steps to form cooperation
  • Full faith and credit
  • Privileges and immunities

Problems

• Weak national government
  • No revenue
    • In dept and can’t pay back
  • No military support
• Difficult to change
  • Requires 9/13 to pass and unanimous to amend
    • Cannot correct itself
• Embarrassments abroad and home
  • Pirates
  • British troops
  • Congress stops showing up
  • Can’t pay debts
    • Rich ppl loaned gov money but gov couldn’t pay back
  • Misbehaving states tax each other
  • Shay’s rebellion

Shay’s Rebellion

• Ppl in massachusetts rebel and try to steal
• Led by daniel shay
• Weakness of national gov but also show weakness of state gov to allow such insurrection
• Conflict amongst working class and creditors bc of economic depression
  • Legislators more sympathetic to working class
    • Working class could vote and more working class
• With state legislatures virtually unchecked, they begin to become tyrannical
  • Confiscate property, suspend debt and cancel marriages
• Reform took place in some states (MA) which strengthened power to check legislature and limit suffrage
• Angered over their economic condition, section of the working class rebel
  • Close courts so creditors can’t sue (helps keep their property)
  • Attacked and almost confiscated arsenal

Creating a Constitution

• Fall 1786: Annapolis meeting of 5 states (NY, NJ, DE, PA, VA) - economic
• Shay’s rebellion in fall 1786 and ends in feb 1787
• Constitutional convention - summer 1787
  • Original plan was to revise the aoc but ended up rewriting it
    • South had large states focused on agriculture and north had small states based on manufacturing
  • Suspicion of central gov
  • Regional divisions

Virginia Plan

• Legislative branch with 2 chambers
  • Representation based on population in both houses
  • Give power to legislate in all cases to which the separate states are incompetent
  • Power to veto state laws

New Jersey Plan

• Legislature based on state equality with 1 chamber
  • Congress has power of commerce and taxing to congress
  • Benefits smaller states that can’t compete population wise

Connecticut Compromise

• Legislature would have 2 chambers
  • House based on population and senate based on state equality
    • House is elected by ppl and senate appointed by the state (though the 17th amendment changes it)
• ⅗ compromise to the south: counting slaves as part of population (bc more representation but not want it for taxes

Reform of other branches

• Debate over one or more executives
  • South wanted strong unitary exec, north wanted multiple
• Debate how president would be elected
  • Electoral college is compromise
• Establish that a supreme court is needed but little else
• Constitution draft sent to state ratifying conventions
  • Diff from aoc bc specific conventions with delegates directly chosen by ppl
  • Needed 9 states to ratify before it name official

Antifederalists

• Group eho opposed ratification
• Didn’t write under a unified pen name
  • Brutus, cato, federal farmer
• No alternative proposal

Problems with constitution

• National gov new structure and powers
  • Changes to aoc too radic and give national gov too much power
  • Anti-democratic bc unelected judiciary and powerful executive
  • No bill of rights
• Federal structure
  • Not adequately representative - power too distant from ppl
  • encroaches’ on states rights

federalists

• Advocated for constitution
• Shared pseudonym: Publius
  • Hamilton, madison, john jay
• 85 essays in NY newspapers
• Pieces of rhetoric responding to and anticipating criticisms

Response to anti fed

• Power and strength - not bad and need bc aoc fail
• Antidemocratic - judiciary and exec are unique, more democracy not always better bc not motivated by common good
• States rights- factions are dangerous and more powerful in smaller groups
• Bill of rights- superfluous all powers are enumerated

Federalist 10- factions

• Can we solve the problem of factions?
• Problem of factions to popular democratic styled gov
  • Democracy tends towards the vice of violent factional conflict
  • America already suffered at hands of democracy - shays rebellion
    • Led some americas to distrust popular gov in favor of individual rights
• American founders improved upon ancient and modern models but could not completely solve problems
• Faction: f citizens whether amounting to a majority or a minority of the whole who are united and actuated by some common impulse of passion or interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community
  • Us or them mentality

Two methods for curing factions:

• Remove the causes
  • Either destroy liberty or give everyone the same opinions, interests, and passions
    • Destroying liberty kills political community
    • Maybe give everyone the same opinions?
      • Not possible bc man is not reasonable and if allowed to exercise it then different opinions will be formed
        • Self love affects reason and choose what you want instead of what's best
        • Madison says first job of gov is to protect differences in interests which lead to differences in possessions
• Control the effects
  • Problem with factions: use diversity in a political community to create factions and rise to power by venting the interests of a majority at the cost of a minority
    • Usually rich at expense of poor
  • Tension between justice and common good and democracy?
  • Democracy bows to majority rather than common good but justice balances
  • There will not always be ppl in power that can handle situations
    • Need to have laws in order to control the effects

Republics and majority

• Popular gov is effective against tyranny of elites but
  • Majority overrules common good
• Two options for solving the threat that majorities pose to liberty
  • Make sure that the majority of people are not possessed with the same passion or interest at the same time
    • Individualism
  • Make the majority number and local situation prevents them from coming together

Republics and Democracy

• Pure democracy cannot be cured of factions
  • Solution: a republic
    • Promises to cure threat of tyranny of majority
• Democracy has large number of ppl participating but republics use representatives
• Strength of representation help majority discover what is actually good for whole
  • But may also allow men to use this power to gain office and corrupt ppl

Madison’s Extended Republic

• Make the republic large in order to draw larger body of fit characters for office
  • Too large a community makes it hard for representatives to understand ppl
• Extended republic solves problem
  • Same as federalist system
• Benefit: greater number of citizens renders factious combinations less dreadful bc diverse interests and prevents factious leaders from overtaking entire nation
• Limitations: didn’t account for technology allowing ppl to connect across greater distances and in different communities

Federalist 51 - Checks and Balances

• Don’t make justices elected by popular election bc most important role is to know constitution so ppl who know constitution should elect who knows the constitution
• Greatest security against a gradual concentration of powers in a single branch is checks and balances and the ambition of each branch will ensure the check and balance remains
• The primary control of gov is the people
  • But need each branch to derive power from different methods
    • Supreme court by congress
    • President by electoral college
    • Congress by popular vote
• Legislative branch is predominate power
• US constitution provides a double security for the rights of the ppl because
  • Separation between state and federal gov

Chapter 3 and 4: SCOTUS and Judicial Review

Judicial Review

• Judicial review: power of judicial branch to review and invalidate actions of other branches when inconsistent with the constitution
• Undemocratic judges answer our most important questions and power over popularly elected ppl
• Interpretation of constitution
  • One side that focuses the plain text, original intent, and historical context
    • Scalia: very literal and original intent; constitution unchanging and need consistent interpretation
  • Contemporary issues and constitution meaning today
    • Breyer: dynamic interpretation; sensitive to context of decisions
      • Purpose of constitutional provision
      • Consequences of decision
      • Promoting participatory, democratic self gov
  • Literalism: strict interpretation of actual words - same meaning across time
  • Intent of framers: interpreting by understanding what the founders meant
  • Balancing of interests: judges must be aware of the consequences beyond case and how ruling will affect individual’s relationship to community
  • Precedent (stare decisis): judges turn to past cases that resemble current case
• Judicial restraint v judicial activism: willingness to overturn actions
  • Activism: liberals tend to me more activists in civil rights and liberties and support
  • Restraint: conservatives tend to be activist with economic problems but restraint with civil rights and liberties
• Jurisdiction: court's authority to hear a case
  • Subject matter and parties involved
  • Original: authority to be the first to hear and decide a case
  • Appellate: power to review and correct errors of law
• Article 3 established SCOTUS, original jurisdiction, life tenure and congress determines the rest

Federalist 78 - Judicial Branch

• Needs to be a judiciary bc congress would abuse power if not limited
• Courts are intermediary between congress and the ppl- can prevent majority from overbearing
• Judiciary is weakest bc has no actual power over ppl
  • Congress can tax ppl
  • President holds power of sword (troops)
  • Has no force or will
• Judiciary only be feared if united with the other branches

Judiciary Act 1789

• Set up 3 levels of courts: US District court, court of appeals, Supreme court
• Give SCOTUS appellate jurisdiction
• Writs of mandamus to SCOTUS original jurisdiction
  • Power to command other branches to do their job (subject of Marbury v Madison - ruled unconstitutional)
• Size of SCOTUS determined by congress

Judiciary Act 1801

• Adams attempts to pack the court with federalists
• Federalists became unpopular
  • Adams passed alien and sedition act - can’t speak against national gov
• Creates office in which marbury was appointed

Marbury v madison

• Parties involved: marbury (petitioner), madison (respondent), Marshal
• Laws in question: judiciary act of 1789 and 1801 creates Marbury’s job
• Marybury’s commission signed, sealed, and not delivered
• Relevant parts of constitutions: presidential powers/appointment, judicial branch; jurisdiction; supremacy clause
  • Does court have jurisdiction to review case

1. Does marbury have a right to the commission? - YES

• Act of appointment and delivery of letter not necessary

2. Do laws provide a remedy? - YES

• Law protects civil liberties

3. Is the remedy a writ?

• Original v appellate jurisdiction
  • Must belong in original jurisdiction
  • Appellate jurisdiction revises proceedings already occurred and action cannot create a court case but appellate jurisdiction could

4. The supreme court and the judicial review

• Constitution is supreme law bc ppl created constitution but law is created by representatives of ppl

Supreme Court Processes

• Phase 1: selection of cases
  • Writ of certiorari: an impartial adviser, often voluntary, to a court of law in a particular case.
  • Appellate jurisdiction more often used
  • Rule four
• Phase 2: decision making
  • Amicus curia
  • Majority opinion in ruling of court
  • Concurring opinion: agree but disagree on reason and dissenting opinion: disagree
    • Important for future decisions

Legacy of Judicial Review

• Nationally accepted, even if some cases become vilified
  • Dred scott, plessy v ferguson
• Don’t undermine courts authority, use powers of constitution to overcome
  • Chisholm v GA
    • 11th amendment
      • Congress changes constitution bc of how supreme court interpreted it

Selection Process

• No formal requirements
  • Nominated by president and confirmed by senate
    • Senatorial courtesy:
• Past few decades very polarized
  • Starts with failed conformation of Bork and escalates with confirmation of Thomas
  • Death of justice antonin scalia leads to controversy
    • Obama in lame duck period and wants to fill seat but republican leader of senate doesn’t allow him to -> never hold the hearings

Chapter 7 and 8: Federalism

Sovereignty in Federal System

• Sovereignty: possessing supreme political authority within a geographic area
  • State power comes from people
  • Within borders of US national gov is sovereign but within borders to state state gov is sovereign
• Dual federalism v Shared/cooperative federalism
  • Ppl are sovereign and ppl place power on state and national gov

McCulloch v Maryland

• First National Bank (1791)
  • Hamilton's proposal to refinance revolutionary war debt
  • Formed by Congress - charter expired in 11
  • But tariffs on imported products drive up value of US, but affect agriculture in south
• Second National Bank (1816)
  • Congress renews bank charter
  • Continued opposition from several states - Maryland
    • Any bank not chartered by US is taxed???
• Supremacy Clause

Can Congress make a bank?

• 1. Argument over nature of sovereignty under the Constitution and ratification process
     1. MD said states were sovereign
  2. Nature of constitution
     1. MD thought strict interpretation of constitution - 10th amendment
  3. BUT constitution doesn’t say expressly - implies other powers
  4. Necessary and proper clause: gives congress power to do what is necessary to carry out enumerated powers
  5. Marshall argues it is necessary
     1. Location in text reads like an expansion of congress's power
     2. Enumerated powers: coin money, taxes, borrowing
        1. Implied powers that enable to carry out

Does power to tax extend to everything within the state’s borders?

• 1. Argument 1: power to create a bank = power to preserve it and taxing is hostile power
  2. Argument 2: supremacy clause of constitution
     1. By taxing bank MD taxes federal gov which essentially taxes all ppl
        1. Only have right to tax the ppl of MD
• Congress has implied powers - necessary and proper clause
• National supremacy over state laws when there is a conflict in their concurrent powers - supremacy clause

Commerce clause has led to most growth and expansion of federal government*****

Federalism and Commerce Clause

Gibbons v Ogden:

• Background: steamboat monopoly case, Ogden has permit from NY and Gibbons has license from federal government
• issue/controversy: may congress regulate navigation under article I .8 power to regulate commerce?
• Court rules: commerce includes buying and selling and also transport of goods
• Congress’ power is complete in itself and takes precedence over state pwr
• BUT congress’ power doesn’t extend to intrastate commerce
• Gibbons wins

20th century commerce

• Manufacturing jobs on the rise
  • Industrial revolution caused problems
    • Rise in populism and progressivism (stronger national gov need to mediate problems
      • W Wilson - wanted parliamentary and no separation of pwrs
• Dormant commerce clause: state gov can’t put in any laws that would affect interstate commerce

VS

• Selective exclusiveness: state can’t wait for fed gov to regulate so states can fill in

FDR, Great Depression, New Deal

• Great depression hits at end of 1920s anf FDR gains office
• FDR wants new kind of gov that puts experts in charge of focus on national planning
• New deal creates Social Security, FDIC, TVA, SEC, WPA, CCC
• More gov regulation = scotus controversy
• Carter v Carter Coal: regulation of prices, min wage, max hours, and fair practices exceed commerce clause?
  • Court rules: commerce is distinct from production and any regulation of production occurs in the state and cannot be regulated by national gov under commerce clause

FDR courts

• Court packing: add additional justices for each one over 70 yrs unless they retire
  • Make SCOTUS more likely to declare new deal constitutional
  • Congress denies him
• FDR popular and made use of radio
• NLRB v Jones and Laughlin Steel: national gov has domain bc disputes between states impeded flow of interstate commerce

Commerce Clause

• Wickard v Filburn: federal gov can fine a farmer who grew bushels of wheat for own consumption - bc impede interstate commerce
  • Commerce clause used as excuse for everything - SCOTUS cases
• US v Lopez: Commerce clause does not give federal gov power to punish for handguns in school
• US v Morrison: commerce clause does not give fed gov punish gender motivated crimes
• Lopez and morrison are good laws but important what justifies them bc otherwise tyranny

Separation of Powers and Checks and Balances

Legislative branch dominates republic and bicameral legislature was tool to slow down lawmaking

• Didn’t work in state gov bc two legislatures not diff enough\

Congress

House of representatives based on population

• 435 (apportionment act of 1911
• Elections are up to states
• Voted on by districts which are redrawn every 10 years after the Census (reapportionment)
• 2 year terms, min of 25 yrs and US Citizen for 7 years min and live in state
• What they do:
  • Choose own speaker
  • Sole power of impeachment - senate tries the impeachment
  • Revenue bills
  • Establish own rules - Rules Committee sets up strict rules for debate
    • Closed rule: severe limits on floor debate
    • Open rule: debate can be extensive
    • Modified rule: debate is restricted - depends on rule committee decision

Senate is based on state equality (2 seats each)

• Initially appointed by state but now by ppl bc political corruption
• States control elections with regulation from national gov
• 6 year terms (⅓ of seats up for election every 2 years), min 30 yrs old, US citizen 9 year min and live in state
• VP of US is President of Senate
• What they do: choose its officers, including president pro tempore, majority leaders= and
  • Filibuster: endless floor debate
    • Accident by Burr used minimally at first but now more normal

→ nuclear option: override with simple majority as a result of filibusters impeding progress of congress

• Don’t get rid of filibuster bc it provides opportunity to combat majority party
  • Cloture (rule 22): motion, closing off debate if 60% vote to end and vote on bill
    • 60% is supermajority

Federalist 58 and Representation in the House

• Starts with 65 seats and increases every year until 1911. Now each census seats are reapportioned to reflect population to reflect population changes
• How representative is in house now
  • Beginning: 1/11,000
  • 19th cent: 1/30,000
  • Now: 1/700,000
• Can’t add more seats bc
  • large bodies fall prey to ignorance and passion
  • more representatives = more ppl unqualified
  • too large a body will make it impossible to have collective deliberation which would lead to factions within house

How a bill becomes a law

• Bills are proposed by congress members and sent to standing committees
  • Committee structure decided by respective chamber rules
  • Membership proportional to partisan makeup
  • Majority party chairs committees
    • Ranking member is senior member of minority party
  • A bill must be passed by both chambers
    • Conference committee: irons out differences in bill in house and senate

Congressional investigations

• Not an enumerated power, implied power
  • Necessary and proper fro congress to inform themselves to create laws
    • Part of this is executive oversight
  • Politically and historical partisan uses
    • Mccarthyism
      • Used investigations to accuse ppl of communism and achieve political agenda
  • Issue: are investigations being used for political ends?
    • Trump faced multiple investigations
    • Biden family faced investigations
    • Biden’s cabinet is facing investigations
• Must be for legislative ends
• Purpose of investigations must be clearly defined
• Congress may compel witnesses to appear and hold witnesses in contempt of Congress if they refuse
• Individuals may be charged with perjury if they lie before Congress

Treason, Bribes, Misconduct

• Under English common law: refers to abuse of power
  • Not necessarily a criminal offense but a criminal offense is sufficient
• Federalist 65: misconduct is abuse of public trust
• Under Constitution - ultimately, whatever a majority of the members of the House define it to be
  • No set rules of what qualifies as cause for impeachment

Presidency

Impeachment

• House has sole power of impeachment
• Step 1: inquiry: gathering evidence
  • Possible to have multiple committees investigating
• Step 2: House judiciary committee
  • Has official hearings
  • Votes on articles of impeachment
• Step 3: full house votes on articles of impeachment
  • Any article with majority vote can be impeached
  • These chargers are sent to the senate for hearing
  • 3 presidents have been impeached - Andrew Johnson, Bill Clinton, Donald Trump
• Senate has power to try all impeachments
  • Must attain ⅔ vote to convict public official
    • Penalties: remove from office, and/or bar from holding other offices
  • If its POTUS the chief justice of scotus presides
  • Separate from criminal punishment

Federalist 65-66 - Impeachment

• Why not entrust the entire process to popularly elected body?
  • Worry about civil factions, cunning leaders and tyranny of majority
    • Impeachment might become corrupted and used for political ends rather than for justice
    • Issue: 17th amendment (senate popularly elected)
• Why not entrust impeachment to the courts?
  • Too small of a body and worry of democratic acceptability
  • Potential issue between distinguishing political from criminal
    • Scotus influence on ruling of other courts
      • Scotus find them guilty of political and then other courts likely to find them guilty of criminal charge bc of previous ruling so then line between political and criminal is blurred

Nixon v Courts and Congress

• Committee to re-elect the president took place at watergate hotel
  • Break in and find the room bugged
• Congressional investigation
• Special prosecutor wants Nixon to hand over tapes to see what he knew but he refuses

US v Nixon

• Nixon’s two arguments for refusing to turn over tapes
  • Court has no jurisdiction bc intra branch battle
  • Executive privilege is absolute
    • Protect communication and separation of powers
• SCOTUS response:
  • not just intrabranch; part of federal trial
  • Executive privilege isn’t absolute
    • Must demonstrate necessity (military secrets)
  • Nixon loses
• Nixon’s fate: resigns to avoid impeachment
  • President Ford pardoned Nixon to avoid prison

Qualification for the office

• Natural born citizen
  • Born on us base still counts
• 35 years
• —-

Electoral College

• Electors = number of house + number of senate
  • Each state has a min of 3 votes
  • 23rd amendment: DC has 3
  • 538 votes; 270 needed to win
  • Congress sets date for general election and electoral college
• States determine how electors are chosen
  • All states operate on a “winner-take-all” model except Nebraska and Maine
    • Congressional District method
• Separate ballots for President and VP after 1800 tie between jefferson and burr

Controversies

• It is possible to win presidency without winning popular vote
  • Rutherford hays, ben harrison, george bush, trump
• Faithless elector: one who doesn’t vote in accordance with the way the ppl actually wanted
  • Rare but 7 in 2016
  • SCOTUS said states can compel elector to vote for pledged candidate
    • Chiafolo v WA in unanimous decision
    • State can punish elector and replace them - federal gov cannot
  • Hasn’t ever influenced results

Federalist 68 - Electoral College

• Superior to popular election bc
  • Electors more informed
  • Electors insulate process from tumult and disorder
    • Popular election could become violent bc they are too close to election and ppl get angry when they lose
• Superior to parliamentary model bc
  • Insulate process from cabal, intrigue, and corruption from foreign powers
  • Makes executive independent from legislature

Presidential Power

• National security - STRONGEST POWER
  • Commander in chief of armed forces and negotiate treaties
• Legislative
  • Give info to Congress on the State of a Union
  • Veto/Sign bills
• Administrative
  • Faithfully execute law
  • Nominate officials
• Judicial
  • Nominate judges
  • Pardon
• Expressed powers: explicit powers articulated either in constitution or by statute
• Inherent powers: powers that some have argued flow necessarily from the powers granted by the constitution
  • Constitutional sources
    • Vesting clause:
    • Take care clause:
  • Executive orders and executive agreements: formal documents executing power

Federalist 70- Presidential Power

• Issue: powerful executive seems to conflict with idea of popular gov
  • BUT good gov demands presidential energy
    • Bc international relations, oversee the laws, and protect from ambition, factions, and anarchy
• Argument for one executive: celebrated statesman and politicians prefer a strong unitary executive and large legislature
  • Bc politics sometimes demands decision making, secrecy, and dispatch which is easier with one person
  • Also potential for internal divisions with multiple executives
  • National security demands fast decision which can’t happen in congress
  • Easier to monitor one executive

Where should executive pwr stop and how should it be used?

• John locke:
  • Prerogative: power to act according to discretion for public good without the prescription of law and sometimes against it
    • Impossible for the legislative to foresee all the accidents and necessities that may arise in the course of government
    • One leader may work for public good and ppl give more power then subsequent leader will use the same power for evil
  • Hamilton v Jefferson: different sources for president’s usage of executive power
    • Jefferson: popular/public support - stewardship
    • Hamilton: implied powers of the Constitution - whig

Popular/Rhetorical Presidency

• Until 1900 president took backseat to Congress
• W Wilson, unlocks more presidential power by going public
  • Gave state of union address in person
  • Goal: use popularity to put indirect pressure on Congress to support his agenda
    • Imperial president: accomplish stuff thru popularity
    • Emphasis on the ability to sell something to the American people
  • Pushed further: FDR and fireside chats and televised speeches
• Agenda setting power tied to popularity
• Two sets of presidential powers: constitutional and rhetorical
  • Most presidents use rhetorical means to reinforce constitutional powers
    • Trump simply uses rhetorical presidency

Presidency and War Powers

• Civilian control of military - not a general
• Constitution gives Congress the power to declare war
• Only 5 wars officially declared
  • War of 1812
  • War with Mexico 1846
  • War with Spain 1898
  • WW 1 1917
  • WW2 1941 (japan, germany, italy) and 1942 (

War without Declaration

• Lincoln and The prize cases
  • Lincoln issues a blockade on southern ports but some profiteers try to run them
  • Issue: congress and power to declare war vs president and power to respond to aggression
  • Ruling: war can exist in fact, even if not formally declared

Presidents and limits to war

• War powers resolution: intended to limit the president’s use of military
  • Replaces Gulf of Tknkin Resolution which allowed any means necessary
  • limits/provisions:
    • 48 hrs to notify congress of committing troops
    • 60 day development without congressional approval
    • 30 day withdrawal period
  • Not always effective
    • Reagan, clinton, and —-- broke it
  • Constitutionality?
    • Never ruled - why?
      • Constrains presidents for the most part
      • President likes it not being fully enforced

Presidential legislative power

• Presidential veto power
  • Has 10 days to approve/veto law not including sundays
  • Pocket veto: president takes no formal action when congress is not in session
    • Requirement to send communication to congress but if congress not there then don’t really have to
      • Not really common anymore
• Congress may override
• Line item veto: allows presidents to remove certain parts of bill
  • Use in budget laws in state gov
  • Declared unconstitutional bc give powers to president not declared

Executive orders are implied powers

• Vesting clause and take care clause
• Ordinary day to day gov operations or enforcing congressional legislation
• Sometimes act without reference to legislation or against congress’s wishes
• SCOTUS cases include considerations
  • Statutory interpretation
  • Constitutional interpretation
• US v Curtiss-Wright Export
  • Congress pases law giving FDR power to deal with south american war
    • Gives president power of executive orders
  • Issue: has congress delegated its lawmaking powers to the president unconstitutionally?
    • ruling: rules for president
      • Inherent powers: difference between international and domestic
        • Didn’t need to pass the law bc president is only one in charge of international affairs (sole organ)
• Youngstown Sheet and Tube v. Sawyer
  • background/issue:
    • Congress passes taft harley act - mediation for strikes
    • Truman: issues EO to seize steel mills to avoid strike during Korean War
  • Supreme court overrules EO
    • Not valid under chief executive powers bc no law to execute
    • Not valid under commander in chief powers bc private property

Jackson’s Concurring Opinion

• Theory: branches separate but interdependent
• Application: 3 sources of legitimacy for president power
  • Highest: expressed or implied congressional authorization
  • Zone of twilight: concurrent or uncertain authority
    • Pres could probably get away with it but not certain
  • Lowest: against congressional wishes
    • Pres needs own constitutional powers to be legitimate

Unit 1 Quizzes

1. The lower federal courts were established by — The Judiciary act of 1789
2. The authority to be the first to hear and decide a case — Original Jurisdiction
3. Courts that posses appellate jurisdiction — US Court of Appeal and SCOTUS
4. Concurring opinion is —- An opinion that expresses agreement with the decision of the majority, but differs in some of the rationale
5. Last presidential nominee to fail to be confirmed to the Supreme Court —- Merrick Garland
6. Interpretation involving strict adherence to the actual words of the constitution —- literalism
7. True or false, judicial restraint is characteristically conservative; whereas judicial activism is characteristically liberal. —- false
8. Judicial review is specifically mentioned in which part of the Constitution? —- nowhere
9. Federalist Papers contains and supports the idea of judicial review? —- 78
10. As affirmed in the ruling of Marbury v. Madison, what is not within Congress' power to regulate? — Supreme Court's original jurisdiction
11. True or false, the Federalist can best be described as embodying the communitarian ideology. —- False
12. Served as a "catalyst" for convincing the American colonists of their need to separate from the British? — Thomas Paine’s “Common Sense”
13. According to the Declaration of Independence, from where do governments legitimately derive their power from? —- Consent of the people
14. Rule of law supposes that.. —- Rule should rest with a "higher law," not simply with transient leaders or ruling majorities
15. What style of government did the early Americans try before adopting the Constitution? —- Confederacy
16. True or false, the American Revolution was not all that revolutionary in nature. —- True
17. The language of the Declaration of Independence closely resembles the arguments of which of the following political philosophers? — John Locke
18. Who wrote the draft that would become our Declaration of Independence? —- Thomas Jefferson
19. What branch of government dominated in the states during and following the American Revolution? —- legislative
20. What “device” did states adopt in an attempt to weaken or slow down legislative power? — bicameralism
21. How many votes does each state get in Congress under the Articles of Confederation? — One
22. Which of the following was a primary weakness of the Articles of Confederation? —- Under the Articles, central government was too weak to provide adequate national security
23. Who were the primary opponents of the Constitution? —- Anti-federalist
24. According to James Wilson, which group is sovereign in the United States? — people
25. Advocates for states rights generally have argued for which kind of interpretation of the Constitution? —- strict construction
26. Chief Justice Marshall's ruling on McCulloch v. Maryland involved both the Supremacy clause and which of the following clauses? —-- necessary and proper clause
27. True or false, the theory "interposition" posits that states have a duty to place themselves between invalid federal laws and their citizens. — True
28. The Alien and Sedition Acts was overturned by which Supreme Court cases? —- none
29. True or false, preemption occurs when and act of state legislation removes Congress' ability to pass a federal law regarding a particular policy area —-- false
30. Over the course of American history, which of the following clauses has contributed most to the growth of the federal government? — the commerce clause
31. Which Chief Justice is responsible for developing the philosophy of dual federalism? —-- justice taney
32. Which of the following Supreme Court cases denied Congress the ability to regulate firearms under the Commerce clause? —-- us v lopez
33. The doctrine of selective exclusiveness maintains that states can regulate interstate commerce in which of the following cases? —-- when federal laws are absent
34. Initially, the House of Representatives consisted of how many seats? — 65
35. Of the following, which president was NOT impeached? —- richard nixon
    1. Bill clinton, andrew johnson, and trump were impeached
36. In order to override a presidential veto, Congress must do which of the following? — ⅔ vote in both house and senate
37. Revenue bills must originate in which governmental body —- the house
38. True or false, a bill must be passed in identical form in both the House and the Senate before it can be presented to the president for consideration. —-- true
39. Which of the following powers of Congress is not specifically listed in the Constitution and is often controversial in nature? —-- investigative powers
40. In United States V. Nixon, president Nixon claimed which of the following? —- executive privilege
41. Which of the following bodies is responsible for convicting impeached persons? —-- the senate
42. True or false, article I of the Constitution specifies that the power of advice and consent rests with the House of Representatives. —- false
43. How many senators must vote for "cloture" in order to end a filibuster? —- at least 60
44. According to the textbook, John Locke favored which of the following kinds of government – a division of government between a representative assembly and monarchy
45. Which president became a chief justice in SCOTUS: william taft
46. The 12th amendment requires: the members of the electoral college to cast two votes, one for the president and one for the vice president
47. The Whig theory of presidential power is best described by which of the following claims? – the president is limited to powers expressly mentioned in the constitution
48. True or false, presidential vetoes have historically been overridden more than they have been sustained. – false
49. Where in the Constitution does the president’s appointment power come from? – article 2.2
50. Powers not explicitly given to president — levy taxes, declare war, and line item veto
51. If no presidential candidate receives a majority of electoral college votes (270), who next gets to decide the election of the presidency? – house of representatives - then vp senate
52. Which of the following statements about the president’s power to veto a bill is correct? – the bill can still become a law if ⅔ majority in each chamber of congress votes to override the veto
53. How many votes does a presidential candidate need in the electoral college (currently) to win the presidency? — 270

Exam 2

Chapter —-: Civil Liberties

Constitution and Slavery

• Two fundamental principles of american regime
  • Liberty and equality - inherent conflict with slavery
• Words slave or slavery never mentioned in constitution (other/such persons)
• How the constitution condoned and created a space for slavery
  • ⅗ clause
  • 1808 compromise: limits congress’s power but doesn’t say no
  • Fugitive slave clause: regulating how states interact with each other
    • Had to return runaway slaves
• Founders have complicated relationship with slavery —- federalist 54
  • Slaves treated as both property and person
  • Jefferson, madison, washington did not support but couldn’t find plan to end slavery —- allow future generations to deal with it

Missouri Compromise

Background

• Size of america expanded by louisiana purchase
• Equal number of slave and free states in senate
• MO applies to become a state
• Missouri compromise (1820)
  • Entrance of ME and MO maintains balance
  • Sets 36/30 latitude boundary for slave states

John Calhoun on Slavery

• Prepares south to remove themselves from nation if laws begin to limit slavery
• Thinks slaves are inferior

F douglass on slavery

• oppo

Undoing Missouri Compromise

• 1850 - compromise - utah and NM territory open to slavery
• 1854- slavery excluded by more than half of state constitutions and in most of the territories
• Kansas Nebraska Act (1854): S Douglass
  • Congress repeals mo compromise
    • Popular sovereignty
    • Also leads to “bleeding kansas”
  • Shifts democratic part (north/south) and helps create republican party

Dred Scott v Sanford

• Facts: Dred Scott was a slave and resided in both IL a free state and WI a territory declared free by MO compromise
  • Sued for freedom in MO in 1846
    • Once free always free doctrine - freedom suit
• SCOTUS rules:
  • The scotts, like all salves, have no standing to sue in courts
    • Don’t have political right granted by citizenship
    • Even if a state grants citizenship slave can’t be citizen under fed gov bc constitution
      • Taney: constitution never intended for sales to be citizens
  • Slave states no longer had to honor the once free always free doctrine
• Outcome:
  • Congress ban on slavery in certain states violates property rights
  • Dred scott not free by virtue of having lived in free state
  • Major catalyst for Civil War

Abraham Lincoln

• Born in 1809 in kentucky and self educated
• 1854 Kansas Nebraska Act pulls Lincoln back into politics -> Peoria
• 1858 Lincoln runs for Senate
  • Lincoln-douglas debates: lincoln’s argument become well known across country
• 1860 Lincoln wins presidency
• 1861-1864 civil war
• 1863 emancipation proclamation

Lincoln’s Importance

• A great statesmen
• Civil war began with his presidency and lasted during it
• Moderate and radical but not abolitionist

Kansas-Nebraska Act and Popular Sovereignty

• Renders Missouri Compromise void
• Lincoln argues that it is not a continuation of same back and forth tension on slavery issue
  • Something new and alarming
  • Responds to stephen douglas who argues that act is based on popular sovereignty
• Kansas Nebraska bill is morally wrong bc neutral on slavery
• Salvery must be a national issue
• Lincoln separates touching slavery in the south from stopping its expansion
• The south is not truly neutral on slavery
  • Slaves are human beings so therefore it is wrong
• Kansas-Nebraska act is not a pro-union measure
• Principle of kansas-nebraska act is directly opposed to declaration of independence

Post-Civil War Amendments

13th amendment

• Section 1: expand congress’s power to outlaw slavery
• Section 2: congress shall have power to enforce this article by appropriate legislation
• Significant bc outlaw slavery, give congress power to enforce and response of south
• Black codes: to limit legal rights of african americans
  • Example: prohibit gun ownership, jury service, ownership of property
  • 1866 Civil Rights Act: congress’ attempt to prevent black codes
    • Not enough, south tries to make freed slaves unequal under law

14th amendment

• Section 1: all persons born and naturalized in us are citizens
• Thee important clauses provide rights for citizens
  • No state shall make or enforce any law which shall abridge the privileges and immunities of citizens in us
    • Same as fifth but for states
  • Each state can’t deprive natural rights (life, liberty, pursuit of happiness) without due process of law
• nor shall states deny to any person within its jurisdiction equal protection of the laws
  • Law was treating ppl differently

15th amendment

• Voting rights for african american men
• Includes same enforcement clause in 13 and 14

Civil Rights Act of 1875

• Rise in non-state discrimination
  • 13 and 14 amendments only apply to states not the people
• Congress prohibited discrimination in public accommodation
  • Inns, theaters, public amusement
  • Also prohibited limiting jury service on basis of race

Reconstruction fails

• Death of lincoln left johnson in charge of reconstruction
  • Tried to veto civil rights act 1866
• Rise of KK
• Economic downturn of 1873
• Election of 1876
  • Contentious election between hayes and tilden
    • No clear winner
  • Compromise of 1877: backroom deal that ended reconstruction and gave presidency to hayes

The civil rights cases (1883)

• Issue: property owners sue, arguing 1875 Civil Rights Act violates Constitution
  • Court responds
    • Interprets: narrowly interprets “state” in 14th amendment
    • Applies: CRA of 1875 doesn’t touch on state action rather affects privately owned businesses
    • Rules: congress exceeds authority under 14th amendment and court overturns part of CRA of 1875
  • Harlan’s dissent
    • 13th adn 14th amendment should be read more broadly
    • Lines between private action and state action are sometimes blurry
    • Discrimination in public space constitute badges of slavery and servitude

Plessy v Ferguson

• issue/background: louisiana law required racial segregation in street cars
  • Question: is state mandated segregation legal?
• Court rules:
  • 13th amendment applies to slavery/involuntary servitude not its badges
    • Unless the person is actually enslaved, can’t use this part of constitution to overturn law
    • 13th amendment only applies to actual slaves so it doesn’t apply to the case
  • 14th amendment isn’t violated
    • Interprets = protection as separate but equal
      • Separation does not mean inferiority
      • Social inequalities aren’t under 14th amendment
        • Relies on existences of segregation in free states
    • Harlan’s dissent is colorlind constitution meaning race is irrelevant
• Significance:
  • Legal: strict emphasis on state action but goes further and permits states to segregate
  • Political: proliferation of jim crow laws

Sweatt v Painter

• Rather than admit heman sweatt to UT law school, the state set up separate school
• SCOTUS rules that Sweatt had to be admitted to UT law school
  • Rules separate law school facilities at UT were not equal
    • Not in resources or in intangibles such as social life
      • Intangible goods calls into question whether separate can ever be equal

Brown v Board of Education

• Issue: racially segregated school
• Court ruling: history of 14th amendment inconclusive
  • Acknowledges limits of historical analysis - times have changed education is different
  • Thurgood finds a school that is = in tangibles but not in intangibles
    • SCOTUS agreed that segregation promoted a feeling of inferiority which is detrimental to success of education - especially state sanctioned
• Problem: no one size fits all solution - brown v board 2

Two-tier Approach

• 1800s - one tier: rational basis test
  • Deference given to government
    • Acts of state legislatures seen as the sentiment of the majority
    • Burden of proof put on the challengers
      • Need to show that the law is unreasonable
  • Ex: plessy - gov had a rational basis to segregate races
• US v Carolene Products = otherwise inconsequential but Congress didn’t have a rational basis for discriminating against filtered milk in economic regulation - SCOTUS disagrees
  • But in footnote - introduces a new more exacting scrutiny
    • Law appears on its face to violate constitution
    • Law restricts political processes
    • Law discriminates against a minority
  • Importance of 5th and 14th amendment
    • Basis of new judicial activism where court gains power by protecting rights of individual citizens
• Skinner v Oklahamoa
  • Alleged CR violation triggers strict scrutiny

Tier 1: low scrutiny and rational basis

• 19th century - test applies to all cases
• Today applies to most gov classifications but not all
• For law to be valid gov must have a legitimate gov interest and law must be related to that interest
• Burden of proof on individual - need evidence of purposeful discrimination
  • If rational basis test applied gov usually wins

Tier 2: strict scrutiny

• Applied under laws involving suspect classification and fundamental rights
  • Fundamental rights usually include press, speech, religion, voting
• For law to be valid gov must show
  • They have compelling gov interest
    • Compelling means it must be necessary
  • Law must be narrowly tailored to achieve this interest
  • Burden of proof on gov
    • Individual usually wins
• Main difference from tier 1 is that burden of proof on gov and need compelling not legitimate reason

Strict scrutiny and suspect classification

• Not set standard for suspect classification
• Typical considerations - if answer yes then possibly strict scrutiny
  • History of legal discrimination?
  • Is trait unalterable?
  • Is trait legally significant?
  • Position of political vulnerability
• Result: only race has consistently been considered suspect

Strict scrutiny and affirmative action

• Definition: policies that aim foe equality of opportunity by attempting to overcome past discrimination to advocate for more equal outcomes for racial minorities and sometimes women in hiring or admission to educational programs
• Legal justification: what counts as a compelling governmental interest???
  • Overcome de jure discrimination and set more level playing field
  • Prompt diversity to enhance or increase perspectives
    • Improves the quality of education by adding people of different backgrounds and experiences
• Regens to uc davis v Bakke
  • Admit 100, 16 of which are for people of minority groups and Bakke applies twice but is rejected both times even though gpa and mcat better than those in 16 seat
  • Issue: does the use of quota system violate the equal protection clause of 14th amendment and title 6 of the cra of the 1964
  • Court rules:
    • Quotas = violate the 15th amendment equal protection clause
    • Epc protects
    • Quota violates strict scrutiny bc overly broad
      • Race can be used as a plus factor but cannot be sole determinant
      • Plurality decision = uncertain precedential weight
  • Precedent isn’t established until city of richmond v ja croson
    • A solution that aggravates racism is no solution at all
    • Strict scrutiny always applied to race - but at first only for states not federal
      • Metro broadcasting v FCC it wasn’t applied
• Grutter v Bollinger
  • Wishing to comply with bakke U mich law school admissions process consider using holistic and individual approach
    • Diversity considered alongside gpa, lsat, and letters of rec
    • Inside diversity category race considered alongside ses, work history, and other traits
  • Court ruling: diversity is a compelling interest justifying affirmative action in higher education
    • Policy is narrowly tailored
      • Consider students case by case
      • Race isn’t the only factor - rather a plus factor
      • Affirmative action will not always be necessary
• Fisher v UT austin
  • Court rules in favor of UT
    • Diversity is compelling interest
    • UT’s process is narrowly tailored
      • Demonstrated race neutral process were insufficient on their own for achieving diversity
      • This the least restrictive means
• Sffa v harvard
  • 3 problems
    • Compelling gov interest - unclear how courts are supposed to measure the goals
    • Narrowly tailored - lack of distinction (what defines an ethnic or racial group) and inclusion (no middle eastern option)
    • No sunset date provided - affirmative action is not an indefinite policy

Issue for Courts: Is sex suspect?

• Why some say yes
  • Unalterable trait and history of discrimination
• Why some say no
  • Not a political minority and there are biological differences that are legally significant
• SCOTUS in past used rational basis and strict scrutiny
• SCOTUS today: quasi suspect
  • Intermediate scrutiny

Heightened scrutiny (intermediate scrutiny test)

• Applies to discrimination based on quasi-suspect classification - only consistent applied to sex
• For law to be valid:
  • Important gov interest
    • Exceedingly persuasive justification
  • Regulation is substantial relation to that interest
• Burden of proof on government
• Fronteiero v Richardson:
  • Strict scrutiny – but plurarlity decision
  • Only women qualify for military benefits not men
• Craig v. Boren dealt with discrimination against men.
  • Women could buy alcohol at 18 but men only at 21
  • Intermediate scrutiny
• MS Uni for Women v Hogan
  • Only females can be accepted into nursing school
    • Based on stereotype that women should be nurses and men not
• US v VMI
  • Virginia military institute – state school only admits males
  • State argued its methods were too physically and emotionally rigorous for women
  • US gov sues, lower federal court tells VMI
    • Privatize, make alternate school for women, or let women in
  • VMI chooses 2^nd option and creates women’s college – not enough and goes back to court
  • SCOTUS ules against VA appling intermediate scrutiny
    • VA says suitable for men only
      • RBG says burden of proof on states to show why VMI only suitable for me
      • Can’t based on stereotypes
    • VA offers women’s college as alternative
      • Not substantively comparable quality
    • VMI admits women

Does the BoR apply to both levels of gov

• Madison’s proposal at the constitutional convention apply rules to states - denied
  • Madison wished to add a specific amendment protecting freedoms
  • Counter: states had their own bill of rights
• Barron v Baltimore
  • SCOTUS rules that the bill of rights doesn’t apply to states
    • BoR specifically intended to limit the powers of the national gov not states

14th amendment changes things

• 14th: Repeat of 5th amendment but applies to states
• Not initially interpreted as applying BoR to states
  • Bill of rights eventually applied to states via 14th
    • But not total incorporation (case by case)
  • Selective incorporation = gradual application
    • Incorporation up to the courts
      • SCOTUS decides which sections will be incorporative
• Substantive due process: major vehicle for expansion of judicial power which weakens state gov

Which Rights are Fundamental and Why?

• Palko v Connecticut: distinguishes between types of rights, arguing that only fundamental right and others
  • Case about double jeopardy and the 5th amendment
  • Distinction between rights - some fundamental some not
    • Speech, press, religion
  • Fundamental rights are the very essence of a scheme of ordered liberty
• Fundamental right: of the very essence of a scheme of ordered liberty
  • Freedom to preserve oneself
• Just about all BoR have been incorporated - court case must trigger the incorporation
• Nature and source of fundamental rights?
  • Come from explicit text of the constitution
  • Come from principles behind constitution
  • Come from evolving standards of our society

2nd Amendment

• Prefatory clause: militia
  • “A well regulated militia being necessary to the security of a free state”
• Operative clause: bear arms
  • “The right of the people to keep and bear arms shall not be infringed”
• Individual right?
• Before 21st century Court doesn’t
  • Incorporate 2nd amendment
  • Emphasize an individual right to own guns
• Collective component
  • —-----
  • —-----
• DC v Heller- first major case about 2nd amendment
  • Background: challenged law - handgun ban and trigger lock for rifles in DC
  • Court rules:
    • Prefatory clause: militia doesn’t limit the
    • Operative clause: right to bear arms
    • Acts as a preface and announces purpose - what needed to be protected by law
    • Court argues personal ownership is assumed by founders - self defense in one’s home is taken for granted
    • Different interpretation of history than previously
  • If right to own guns is rooted in self-defense, what does this mean for DC?
    • An outright handgun ban - struck down - most commonly owned weapon
    • Requiring trigger locks - struck down
  • BUT not an unlimited right
    • Gov has a compelling interest to limit
      • Who may carry, where guns may be carried, and can impose conditions and qualifications for the sale of guns
• Incorporated to states: McDonald v Chicago

Right to Privacy

• Summed up as right to be left alone - louis brandeis dissenting A(olmstead v US
  • In olmstead v US Court upholds warrantless wire-tapping under - it does not violate 4th and 5th amendment
    • Self incrimination - not forced
    • Search and seizure - not physical
  • Katz v US shifts to reasonable expectation of privacy for 4th amendment
    • Right to privacy if you close door to a telephone booth

9th amendment

• Enumeration of some rights should not deny other unenumerated rights
• Madison concerned that BoR will be seen as precluding those not listed
  • Results in 9th amendment
• Issue: how do we discover other fundamental rights?

Griswold v Connecticut

• Background: connecticut making it illegal to use or even advise birth control
  • Planned parenthood (griswold) found guilty of dispensing birth control
    • Griswold argued that law violates her 14th amendment
• SC says that Connecticut law is unconstitutional, mix precedent and many concurring opinions
• Questions involves relationship with a “zone of privacy created by several fundamental constitutional guarantees”
• Subjected to strict scrutiny

Origins of Privacy Rights

• Right to privacy - natural right
• Rights which create “penumbras” of privacy
  • Association (first)
  • Quartering soldiers (3rd)
  • Search and seizure (4th)
  • Self-incrimination (5th)
  • Rights retained by the people (9th)
• Concurring opinions focus on 9th and 14th amendment
• Dissenting opinion focused on fact that there is no specific constitutional provision

Eisenstadt v Baird

• MA law makes it a felony for nonMD to distribute contraceptives and can’t be given to unmarried couples
• Ruling:
  • Case deals with a constitutional right to privacy
  • Different than griswold - court ties this to righ to the person not the place
    • Griswold tied it to bedroom bc gov had no place in marital bed
    • Belongs to the individual not the relationship or place
      • Law violates 14th amendment - equal protection clause
        • Distinguishing between married and single = not equal
• Violates right to privacy but also equal protection clause

Roe v Wade

• Case involves law that criminalized abortion except when the mother’s life was in jeopardy
  • Roe argues it violates right to privacy
• 7-2 Scotus decision: law did violate right to privacy
  • Ties privacy to personal liberty which is found in the 14th amendment - fundamental
  • Right to privacy broad enough to cover a women’s right to abortion
  • Not an absolute right - laws must pass strict scrutiny
• TX argues that is has 2 compelling interests
  • Mother’s health
  • Life of the unborn - protected by 14th
• SC rules that the unborn is not recognized as a person in the constitution
  • Unborn do not have 14th amendment rights
  • Doesn’t argue when life begins
• States have legitimate interest in both maternal health and potential human life and these interests grow as pregnancy progresses
  • States of gestation are therefore used to balance between women’s rights and states’ interest
• First trimester:
  • Women’s right unrestricted
  • States have no compelling interest bc fetus not a person and no risk to mom
• Second trimester
  • State interest increases - justify minor health regulations BUT
  • Women’s right still more important
• Third trimester:
  • State interest becomes compelling - tied to possibility of fetus
  • State’s interests win
• Harris mcrae: upholds Hyde amendment prohibiting federal funding of abortion
  • Rational scrutiny: deal with poor people access
    • Wealth not suspect and abortion not a positive right
• Planned parenthood v casey: abandons trimester scheme and introduces undue burden
  • Scotus overturn any law placing substantial obstacle in the way of a woman seeking abortion
  • Substantial obstacle
    • 24 hr waiting period, mandatory counseling
• Dobbs v Jackson
  • Background: gestational age act outlaws abortion after 15 weeks
  • Ruling:
    • Constitution does not secure a right to an abortion
    • Not a part of history or tradition not implicit in concept of liberty
    • Returns questions to states
    • Not the court’s intention to overturn other rights

Marriage and the Constitution

• Not a right explicitly mentioned in constitution
  • Liberty in 4th amendment allows marriage
• Loving v VA - case striking down a law banning inter-racial marriage
  • Case bridging equal protection and due process
• Marriage = fundamental right - precedent relied upon Obergefell v hodges
• Federal lawa claiming that marriage = one mane and one woman
  • Struck down by US v Windsor - violates equal protection clause
    • Law targets same sex couples
    • Federal/state disagreement = confusion regarding legal status

Obgerfell v Hodges

• SCOTUS rules
  • Marriage is a timeless institution but it has changed over time
    • Therefore can’t simply rely on history as a defense - evolving standards
  • Denying the right to marriage to same-sex couples denies Due process and equal protection
    • Undermines individual autonomy
    • Denies a group of ppl access to a social institution protected by law
    • Safeguarding children and families from stigma
    • Denies material benefits when there is no difference under law
    • Can’t leave it up to states to sort it out when it denies a fundamental right

Voting

• 15th - race
• 19th- sex
• 24th- poverty
• 26th - age

Leading up to 1965

• 12, 14, 15 amendments
  • Reconstruction is a failure
    • Election of new president
  • Jim crow
    • Grandfather clause - couldn’t vote unless your grandfather couldn’t
    • Literacy tests: impossible to pass
    • White primaries
• Plassy v Ferguson, Brown v Board of education, CR act of 1964
• Civil rights movement begins to gain national visibility
  • Jimmie lee jackson killed by police
  • Dr king jailed

Bloody Sunday

• March from selma to montgomery with about 600 marchers broken up by state troopers
• New march with 25000 ppl
• Voting rights act was signed august 6, 1965

Voting Rights Act of 1965

• Voting rights act of 1965: suspended the use of literacy tets
  • Sent in federal registrars to register voters and monitor elections
• Law has been renewed several times but in 2013 the supreme court overturned one of its key provisions
  • Shelby county v holder
    • Invalidated section that set up formula for preclearance
      • If you have less than 50% of voters then federal gov has oversight
        • Can redraw district lines, voter registration
    • Argues that preclearance relies on a formula that is dated - congress needs to set up new one
      • Rbg dissent
    • Allowed southern states to set up new rules for voting
      • 2016 presidential election first election in 50 yrs w/o provisions
    • Doesn’t overturn the voting rights act but makes its key provision unimplementable

Women’s suffrage

• Women’s suffrage conventions results in declaration of rights and sentiments
• Initial women rights group splits before the passage of 15th
  • One focus on the national level (national women’s suffrage association)
  • Other on state level (american women’s suffrage association)
  • Split up because of race but join back together in 1900s
• Alice paul brings publicity to movement
  • 19th amendment: gave women right to vote

Voting, redirecting, gerrymandering

• Reapportionment: important for congressional districts
• Baker v carr and reynolds v sims
  • Rural v metropolitan
  • Census and reapportionment to create equal districts - emphasis placed on population not land
  • Counting total population - states must count total population not just voting
• Gerrymandering: manipulating districts to favor a party or disfavor another
• Vra 1965 and majority minority districts
  • In response vra some preclearance states created districts of minority voters, in order to give a voice to minority groups
    • Issue: grouping minority voters together weakens their influence over all by concentrating it - minority influence
  • Racial gerrymandering - shaw v reno and shaw v hunt
    • Scotus ruled against nc for using race as dominant factor in district creation
• Partisan gerrymandering? - hunt b cromartie (1999, 2001)
  • Same nc district 12 - same district but claim to be organized by party not race
    • Burden of proof on those claiming racist intention
  • Recent developments
    • Georgi v ashcraft (2003)
      • States free to pursue minority influence over majority-minority districts
    • Cooper v harris (2017)
      • Scotus voids nc attempt to pack 2 districts with additional african american voters
  • Rucho v common cause
    • Nc draws districts so that there are 10 rep and 3 dem and md attempts to draw districts to benefit dems
    • Scotus rules:
      • These are political questions better resolved by legislature
      • No limited and precise standard for evaluating partisan gerrymandering
    • Dissenting opinion: crucial to function of us - judiciary should have power
  • Currently constitutional