Final Exam Review

Learning Objectives:

1. Identify the successes we have achieved and the obstacles we face in establishing a “more perfect union”

2. Analyze how the constitutional system balances liberty and order

3. Describe the political values and ideologies Americans share

4. Evaluate American democracy in terms of responsiveness and equality

5. List the responsibilities of individuals in a democracy

Gateways: Evaluating the American Political System

Successes:

• Stability

• Peaceful transitions of power through crisis

• Dissent is protected

• Substantial freedom

• Gateway for immigrants

• Civic Duty

• Tolerance

• Commitment to civil rights

Failures:

• Inconsistent response to public opinion

• Racial tensions

• Poverty rates increase

• Distrust in government

• Low voter turnout

• Cultural/religious/ethnic distrust

• Political polarization

• Growing national debt

Public Policy Stages

Public Policy: what government does or does not do about a problem that comes before them for consideration and possible action

• Identifying the problem

• Placing the problem on the agenda of policy makers

• Formulating a solution

• Enacting and implementing the solution

• Evaluating the effectiveness of the solution

How do We Determine What is A “Problem”

The Social and Political Contexts of Public Policy

The United States has great wealth, but many citizens face poverty and homelessness

Democracy And The American Constitutional System

Liberty and (or vs.?) Order

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” — Benjamin Franklin, 1706-1790

“Liberty must be limited in order to be possessed.” — Edmund Burke, 1729-1797

• Democracy: rule by the people - self government

  • “We the People of the United States, in order to form a more perfect Union…” — Preamble to the Constitution

• Is individual freedom compatible with the idea of “the people”?

  • What if you are not part of the “agreement” and do not share the “interests” of the majority? How much “freedom” is allowed?

    • Majority Rule - does the majority determine who is part of “the people”?

The Constitution As Gatekeeper

• Frames recognized need to limit government

• Founders followed the idea of British theorist John Locke (1632-1704)

  • Social contract: individuals (hypothetically) once lived in a pre-government, pre-law situation called a State of Nature

  • Individual freedoms became precarious, so individuals contracted together to leave the State of Nature and form Government. (Forms the basis of “liberalism” — very individualistic)

  • In the State of Nature, individuals have unalienable rights which come from Natural Law

    • God > Divine Law > Natural Law

• “We hold these truths to be self-evident...” — Preamble to the Declaration of Independence

  • What is a self-evident truth? Is it simply whatever “the people” say it is? What if it isn’t “self-evident” to you? How much “individualism” is allowed?

American Political Culture

• Political Parties - broad coalitions of interest organized to win elections in order to enact a commonly supported set of public policies

  • an organized group of people

  • have the same ideology [to what extent?]

  • share similar political positions [to what extent?]

  • field candidates in elections

  • attempt to implement the party’s agenda

    • How broad, and inclusive, can a coalition be and still constitute a “political party”?

• Party identification - a psychological attachment to a political party

  • Is this attachment a rational shortcut through complex policies

  • Does it sometimes represent the loss of rationality?

The Constitution as Gatekeeper

• Direct Democracy (everyone votes on every issue) was considered impractical for a large and growing nation

Created representative democracy:

• Our representatives were supposed to be an “elite” who would filter the views of the general population

Two aspects of Republicanism in American thought:

• Representative government

• A republic is “ an assemblage” of some size associated with one another through agreement on law and community of interest” Cicero— Roman Stateman (106 BC-43 BC)

A tension between republicanism and individualism

• Was the country founded to promote individual freedom or civic virtue?

• Founders believed that in a large nation, competing interests would check on each other, limiting the power of a single majority

• Factions - Founding Fathers feared the majority of the population (the poor) with little to no property would join together to take property from the wealthy.

• The “solution” was to create more cross-cutting factions, so that there would be no single, dominant majority who all shared the same interests

  • Federalist 10 - faction is “a number of citizens, whether amounting to a majority or minority, who are united and actuated by some common impulse or passion…adverse to the rights of other citizens…”

  • It was considered preferable to create more factions than to have a single public interest. (What about “we the people”?)

Majority Factions

• If a faction isn’t a majority, relief comes from the republican principle that enables the majority to defeat the sinister views by vote. When a faction is a majority, popular government enables it to sacrifice public good and the rights of other citizens to their passions and interests.

Divides power vertically and horizontally

• Power divided Horizontally:

  • Federalist 51 - “if men were angels, no government would be necessary” “Ambition must be made to counter ambition”

    • Three branches of government

      1. Legislative branch - makes laws

      2. Executive branch - executes laws

      3. Judicial branch - interprets laws

    • Separation of powers - each branch has separate and independent powers

    • Check and balances - each branch has some power over the other

  • Power divided Vertically:

    • Federalism - power is divided between national and state governments

American Political Ideology

The dominant view of ideology is a simplistic left/right dichotomy.

Does this dichotomy adequately capture the complexities of American thought or does it tend more to obscure?

Left (Liberal):

• Greater faith in a large and active government to promote equality

Right (Conservative):

• Greater preference for a small and limited government to encourage economic growth

Do labels denoting political ideology artificially group complex, differing views into overly simplistic categories?

• Political ideology - a set of coherent beliefs that offer a philosophy for thinking about the scope of government. Are political ideologies inevitable, or could we do away with them?

  • Liberals on the left - some liberals favor an expansion of social policies and some large for free market/limited government (both sides believe in individuals “being all they can be”)

  • Conservatives on the right - generally favor limited government, though it has been argued that Conservatism is a predisposition against large changes whatever the source

  • Moderates in the middle - where is the middle? If the political system as a whole moves to the left or the right, does “moderation” shift also

  • Libertarians - the government should refrain from acting to regulate either the economy or social values. Often associated with the author Ayn Rand. Very individualistic

  • Populists - a person, especially a politician, who strives to appeal to ordinary people who feel that their concerns are disregarded by established elite groups

• Americans favor individualism - a rational determination or the residue of our unique history (lots of available land - those who disagreed with the dominant policies of a city or town simply moved elsewhere)

• US favors capitalism over socialism - a system in which key industries are privately owned. Is this because capitalism is more in line with “unthought individualism”? Do most citizens know what socialism actually entails? (a system in which the government owns most major industries)

• Long-standing egalitarian tradition

  • Rejected kings in the Revolution and titles of nobility in the Constitution - but also favored the aristocratic elite (themselves) over the “rabble”

  • 1950s: power elite - C. Wright Mills - the nation is ruled by a coalition of corporations, government and military. Most individuals were disorganized and had little influence

  • 1960s: pluralist basis - Robert Dahl - a governmental system of competing interests. These interested argue over policy problems, though less attention is paid as to what comes to constitute a “problem”.

  • Majoritarian policy-making processes - those with a numerical majority hold power over governmental decisions (and, perhaps, the construction of social norm)

Bachrach & Baratz

“The two faces of power”

Responsiveness And Equality: Does American Democracy Work?

• Responsiveness: government should implement laws and policies that reflect the wishes of the public

  • 69% favor stricter gun control

  • 89% favor background checks

  • 70% favor sing-payer, universal health care

• Equality: idea that all individuals are equal in their moral worth

  • Political inequality: the idea that people should have equal amounts of influence in the political system; equal treatment under the law; equal access to the decision-making process

  • Equality of opportunity - every individual should have an equal chance to succeed in life regardless of race, gender, national background, etc.

    • individualistic, negative liberty = government should do less (govt hands off)

  • Equality of outcome - equality is achieved if results are comparable for all citizens regardless of race, gender, national origin, etc.

    • social contexts which restrict individual’s abilities to succeed; positive liberty - government should be more active (govt active)

• Democracy - rule of the people

• Monarchy - assigns power to a single individual who inherits that power

• Aristocracy - power is concentrated in the hands of a small, privileged class (Historically, meant “rule of the best”)

• Plutocracy - rule of the wealthy

• Oligarchy - power is concentrated in the hands of a few (usually wealthy) individuals

Governmental policy is often oriented toward the distribution of

• Public goods - goods or benefits provided by the government from which everyone benefits and from which no one can be excluded (eg. the benefits of cleaner air)

• Private goods - on the other hand, benefits can be extended to some individuals and not others (eg. government awards a contract to construct a particular building)

The Demands of Democratic Government

• Self-interest - you want government to serve your needs

• Civic interest - people get involved in the political process because they want to be part of the voluntary organizations that make up civil society

• Politics and the Public Sphere

  • Educational Opportunity - does government have an obligation to promote/provide educational opportunities?

  • Economic opportunity - is often linked to educational opportunity

Learning Objectives

1. Assess what drove the colonists to seek independence

2. Identify the major compromises at the Constitutional Convention

3. Explain how the structure of the Constitution protects liberty

4. Analyze why the Antifederalists opposed the Constitution

5. Illustrate how the Constitution has stayed responsive to changing needs

Before the Constitution

A Constitution is the fundamental law undergirding the structure of government. Sets forth the basic rules and procedures for how the people shall be governed.

• The British Constitution

  • Not a single document but a series of documents

    • Magna Carta (1215) - defined the rights of the people and Parliament and limited the power of the king

    • AFter the Glorious Revolution (1688-1689) - Parliament asserted the power to suspend the law, levy taxes, and maintain a standing army

• Toward American Independence

  • Direct taxation by Britain upset colonists

    • Sugar Act, Stamp Act, Townshend Acts

  • Britain limited colonists’ representation

    • Britain claimed that all English citizens were represented by all members of Parliament who acted in the common good

    • Colonists rejected this view

      • Samuel Adams - “no taxation without representation”

Key Events:

• 1764, Sugar Act - Required colonists to export certain items only to Britain

• 1765, Stamp Act - Imposed taxes on almost all paper item; boycotts and riots followed

• 1766, Townshend Act - Imposed new taxes on imports; led to “no taxation without representation”

• 1770, Boston Massacre - Five colonists killed by British soldiers; led Parliament to repeal all Townshend Act taxes except for tea tex

• 1773, Boston Tea Party - Colonists dump taxed tea into Boston Harbor

• 1774, Coercive Acts - Response to Boston Tea Party - Restricted political freedoms in Massachusetts

• 1774, Quartering Act - Required colonial governments to provide shelter to British troops

• 1774, 1st Continental Congress - Rejected Reconciliation with Britain and sent grievances to King George III

• 1774, 2nd Continental Congress - Acted as the national government of states, 1775-1781; approved Declaration of Independence and appointed George Washington as commander of the army; adopted Articles of Confederation (ratified in 1781)

Before the Constitution

• The Declaration of Independence (Second Continental Congress - 1776)

  • Thomas Jefferson relied on writings of John Locke

    • People had certain natural rights (self-evident truths) that the government could not take away

    • Locke asserted that people had a natural right to “life, liberty, and property”

    • In the Declaration of Independence, this became “life, liberty, and the pursuit of happiness“

  • Listed grievances against King George III

    • Suspended popularly elected colonial legislatures

    • Taxation without representation

    • Conducting trials without juries

  • Declared the thirteen colonies to be “free and independent states”

  • A radical document?

    • Some have argued that the French Revolution was radical in that it changed the existing social order. The American Revolution, on the other hand, was a conservative revolution in that it wished to retain many freedoms the colonists already enjoyed, and to which they felt entitled

Members of the Second Continental Congress voted to approve the Declaration of Independence on July 4, 1776, though only John Hancock, president of the Congress, signed it that day

• The Articles of Confederation (1781-1788) - created a loose confederation of the states. Many colonists feared a strong central government

  • Required unanimous consent of the states for ratification

    • Adopted by Second Continental Congress in 1777. Wasn’t fully ratified until 1781.

  • Formally established “the United States of America”

    • Declaration had referred to the “thirteen united States of America”

  • Limited power of the national government - the states retained a great deal of power

    • Congress had authority over foreign, military, and Indian affairs. Could decide boundary disputes between the states, coin money, and establish post offices.

    • Congress had no authority to regulate commerce; could not tax citizens or products (such as imports) directly, did not have any authority directly over citizens of the United States

      • With insufficient funds raised by taxes, the national debt went unpaid

    • Did not establish Judicial or Executive branches

    • Weak national government led to revolt

      • Founding fathers believed the Articles led o too much freedom and not enough order (concern over the poor revolting against the wealthy for property)

      • Daniel Shays and several thousand distressed farmers facing foreclosure forced courts to close and threatened federal arsenals

The Constitutional Convention (1787)

• The Delegates

  • Fifty-five delegates representing large and small states

  • Represented slave and free states

  • No all delegates were rich, but none were poor. All were white males

• Constitutional Convention

  • Each state had one vote, Compromises had to be reached to secure agreement

  • Large versus Small States

    • Virginia Plan: advanced the interests of the larger states

      • Legislative branch would consist of two chambers

        • Lower chamber elected by the people; upper chamber elected by the lower chamber; each chamber would have the number of representatives proportional to the population of the state

    • New Jersey Plan: meant to protect the interests of the smaller states from being trampled by the larger states. Each state would have equal representation

    • Connecticut Compromise: lower chamber (House of Representative) would be proportional to population; upper chamber (the Senate) would represent each state equally

  • National versus State Power

    • Congress was not granted general legislative power but rather a specific list of enumerated powers

      • Authority to tax for the “general welfare”; to regulate commerce among the states, to borrow money; declare war; to make all laws “necessary and proper” to carry out the enumerated powers.

    • National law would be supreme over state laws

    • Convention approved a National Executive (the President); and a Judiciary

The Constitutional Convention

• North Versus South

  • Slavery - 95% of all slaves were in the South. Northern states wanted only free citizens to be counted; Southern states wanted slaves to be fully counted

  • Three-fifths compromise - each slave was counted as 3/5 of a person for representation and imposed taxes

• Gates against Popular Influence

  • Electoral College - the President is not elected by direct vote but rather citizens of each state vote for electors

    • Each state has electors equal to the number of members of House plus two Senators

    • Each state chose the manner of selecting their electors (originally through state legislature - now by popular vote)

    • Gives small states a power beyond their actual populations

  • Election of the Senate - originally state legislatures selected Senators. Seventeenth Amendment established the popular election of Senators.

• The Ratification Process

  • Bill of Rights - originally there was no Bill of Rights. Many felt that there was no need to prohibit Congress from exercising powers beyond those enumerated.

  • None of thirteen states had to approve the Constitution

“An Economic Interpretation of the Constitution”

Written by Charles A. Beard in 1913

• Federalist 10:

  • “The most common and durable source of factions has been the various and unequal distribution of property”

  • “From the protection of different and unequal faculties of acquiring property…ensues a division of society into different interests and parties”

• Beard’s view on Federalist 10: “Here we have a masterly statement of the theory of economic determinism in politics”

• All economic groups had an interest in the details of the Constitution

  • The disenfranchised - slaves and indentured servants

  • Real property owners - small farmers

  • Personal property owners - bonds, cash deposits, etc. (the wealth of the farmers)

• The Framers design the Constitution to protect and possibly improve their personal economic interests

  • Delegates to the constitutional convention were chosen by state legislatures. Property requirements for voting mean that much of the population was excluded from the convention.

  • The Constitution was essentially an economic document based on the concept that property exists before government (Locke) and morally beyond the reach of the majority

  • The movement for a Constitution was based on the economic interests of money, public securities, manufacturers, and trade and shipping

  • Federalism was created because of economic tensions among the various economic interests

  • The line of cleavage for and against the Constitution was between monied interests vs the small farming and debtor interest

Government Under the Constitution

• The Structure of Government

  • The Legislative Branch (Article I of US Constitution)

    Makes the Laws

    • Bi-cameral — 2 chambers

      • House of Representatives - proportioned by population; elected for two-year terms; must be at least 25 years old; 435 members

      • Senate - two senators from each state; designed as a check on the popular will (state legislators chose Senators until 1913 - 17th Amendment); six-year term, must be at least 30 years old; 100 members

    • To become law, a bill has to pass each chamber in identical form and is then presented to the president for their signature

      • Veto - if the president disapproves of the bill, they can veto it. Congress can override the veto by a 2/3 majority in each chamber

    • The House has the authority to impeach (bring charges against) the president and other federal officials. The Senate has the sole authority to try cases of impeachment with 2/3 required for removal from office

  • The Executive Branch (Article II of US Constitution)

    Executes and enforcement of laws

    • includes the president, vice president, the Cabinet, executive departments, independent agencies, and other boards, commissions, and committees.

      • Headed by a unitary (singular) president, chosen for a four year term by the Electoral College (which is chosen in a manner set by state legislatures)

        • Must be at least 35 years of age

        • Commander-in-chief of the armed forces

  • The Judicial Branch (Article III of US Constitution)

    Interprets the laws

    • Constituion vests judicial authority in one Supreme Court and other lower courts Congress chooses

    • President appoints federal judges with the advice and consent of the Senate

      • Judicial Review - established through the case of Marbury v Madison; Supreme Court has the authority to strike down any law passed by Congress which the Court believes violates the Constitution

The Amendment Process - (Article V) An amendment can be proposed by two-thirds of each chamber of Congress or by a constitution convention called by two-thirds of state legislatures. Either way, ratification required three-quarters of the states (either legislatures or state conventions) to approve the amendment. Both paths are complex and difficult.

• The Partition of Power

  • Federalism - system of government in which sovereignty is constitutionally divided between national and state governments.

    • 10th Amendment - all powers not granted to Congress remain with the states

  • Separation of Powers - government structure in which authority is divided among branch (executive, legislative, judicial), with each holding separate and independent powers and areas of responsibility

    • Legislative power is further separated into the House of Representatives and the Senate

  • Checks and Balances - government structure that authorizes each branch of government (executive, legislative, and judicial) to share powers with the other branches, thereby each branch holds some scrutiny and control over the other branches

    • The president has the authority to propose legislation to Congress and to veto bills passed by Congress

    • Congress can override that veto by a two-thirds majority of each chamber

    • The Courts can decide the constitutionality of laws by Congress

  • Limits on Powers

    • Constitution limits state authority by making federal law supreme over state law

    • Constitution expressly puts limits on the authority of Congress

      • EX) cannot pass ex facto laws, cannot suspend the writ of habeus corpus

The Ratification Debates

• Antifederalists and Federalists

  • Anti-federalists - those who opposed the Constitution during the ratification process; feared a strong centralized national government

  • Federalists - those who supported the Constitution during the ratification process; argued that Congress’ power was limited to the enumerated powers

    • Consolidated of Federal Authority

      • Anti-federalists - argued that the constitutional convention exceeded its authority; felt sovereignty could not be split and the national government would inevitably consolidate its authority over state governments

      • Federalists - sovereignty rested not in the national legislature but in the people (“we the people”), therefore the people could propose any new form of government they wished (including granting authority to both national and state governments)

    • The Scope of Executive Authority

      • Anti-federalists feared that the president would turn into an elected monarch

      • Federalists argued that the greatest threat to America was not centralized power but too much democracy

• The Lack of a Bill of Rights

  • Federalists argued that a Bill of Rights was not necessary

    • Congress had only those powers enumerated by the Constitution

    • Bill of Rights was dangerous because listing some rights and not others could imply that those not listed could be abridged

  • Anti-federalists claimed that the General Welfare and Necessary and Proper clauses would ultimately give unlimited power to Congress

  • Bill of Rights was ratified in 1791

    • First 10 Amendments to the US Constitution

    • Originally applied only to the federal governments. Most were incorporated (applied to) the states through the 14th Amendment

The Responsive Constitution

• The Bill of Rights (the first 10 amendments to the Constitution)

  • 1st Amendment - guarantees freedom of speech, press, assembly and free exercise of religion; prohibits establishing a national religion

  • 2nd Amendment - protects the right to bear arms

  • 3rd Amendment - prohibits the quartering of soldiers in one’s home during times of peace

    • Response to the Quartering Act

  • 4th, 5th, 6th Amendments - protect rights relating to criminal procedure including the right to have an attorney in federal court and trial by jury; prohibits double-jeopardy (being tried twice for the same crime)

    • Expands to include right to an attorney in state criminal cases through Gideon v. Wainwright (1963)

  • 7th Amendment - right to trial in civil cases over $20

  • 8th Amendment - prohibits cruel and unusual punishments

  • 9th Amendment - provides that the enumeration of certain rights in the Constitution does not deny or disparage other unenumerated rights retained by the people

  • 10th Amendment - the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people

• The Civil War Amendments (1865-1870)

  • 13th Amendment - prohibits slavery

  • 14th Amendment - protected emancipated slaves

  • 15th Amendment - prohibits denying rights to vote

• Amendments that Expand Public Participation

  • 19th Amendment (1920) - gave women the right to vote

The Responsive Constitution

• Constitutional Interpretation

  • Marbury v Madison - judicial review

    • The Supreme Court has exercised the authority to determine what the Constitution means

      • Under that authority, the powers have Congress have grown exponentially (what the anti-federalists feared)

        • The power to tax for the general welfare has grown past the enumerated powers. Congress can tax and spend for virtually any purpose which is not expressly prohibited

        • Congress’ authority to regulate commerce between the states (Article I) now covers virtually all commercial activity

        • McCulloch v Maryland (1819) - Court interpreted the Necessary and Proper to give Congres the authority to charter a national bank

• Future Amendments

  • Allow District of Columbia to become a state?

    • Washington DC voters favors the Democratic Party. Thus Democrats support such an amendment while Republicans oppose.

  • Overturn Citizens United v Federal Elections Commission?

    • 2010 Supreme Court decision - viewed campaign spending as “speech” allowing corporations and other outside groups to spend unlimited money on election

• Institutional Changes

  • Political Parties

    • Emerged during Washington’s first term as president

      • President and Vice President run together as members of a political party

      • Representatives and Senators organize themselves by political party

        • Political parties allow for greater responsiveness by politicians to national interests

        • The checks and balances that Madison envisioned really only exists when the President and Congress are from different parties.

The Constitution And Democracy

• 1787 Constitution is outdated

  • The government allowed mostly white males with property to choose one chamber of the legislature (House of Representatives) but did not grant the people direct vote for the Senate or the Chief Executive

  • States regulated the right to vote - slaves were not allowed to vote, but states differed as to whether women, free blacks, and men without property could vote.

• More pubic participation today

  • Though the Electoral College continues to choose the President, each state allows the people to choose their electors

  • 17th Amendment - people direct choose their senators

  • Poll taxes are illegal (24th Amendment); voting rights are now given to 18 year olds (26th Amendment); voting may not be abridged by race (15th Amendment); or sex (19th Amendment)

• Do people have more control over the government today?

Learning Objectives

• Explain why the Framers chose a federal system

• Summarize how the Constitution institutes the federal system

• Outline how US federalism has changed over time

• Compare and Contrast national and state governments

Why Federalism?

• Why Unify?

  • Smaller political entities pool resources to fight a common enemy

    • A sense of commonality remained after the French and Indian war

    • Colonists would not have won the Revolutionary War without banding together

  • Many colonists considered themselves to be part of a common nation

    • “A nation is said to exist when people in a country have a sense of shared identity due to a common origin, history or ancestry.” (Geer. p68)

      • Remember from Chapter 1 - A republic is “an assemblage of some size associated with one another through agreement on law and community of interest” Cicero - Roman Statesman (105 BC - 43 BC)

• State Loyalty made people wary of giving too much power to the national government

Confederal, Unitary, and Federalism

• A confederal system was too weak, but the Framers of the Constitution feared that too much power to the national government would lead to tyranny.

  • Confederal - authority rests with state government

    • Had existed under the Article of Confederation

    • Independent states grant powers to a national government to rule for the common good in limited areas

    • Independent states usually have equal votes

    • The confederal organization usually operates through the states not directly on the people

  • Unitary - virtually every power rests with national government

  • Federalism - mixes features of confederal and unitary system

    • authority divided between national and state governments

    • powers not granted to the national government, the state is sovereign

    • Within areas of authority, granted to the national government, or areas of shared authority, the national government is supreme

    • Self-government is enhanced when, at least to some degree, decisions are made locally

Constitutional Framework

• How the Constitution Institutes the Federal System

  • Grants of Power

    • Enumerated Powers - Powers expressly granted to Congress by the Constitution (Article I, Section 8)

      • Raising armies, declaring war, rules for citizenship, power to tax for the general welfare, borrow money, regulate interstate and foreign commerce

    • Implied Powers - gives Congress the power to pass all laws necessary to carry out the powers enumerated in Article I, Section 8

    • Concurrent Powers - powers held by both the national and state governments in a federal system

      • Taxing, borrowing and spending money, making and enforcing laws, establishing court systems, regulating elections

    • Reserve Powers - (10th Amendment) Powers retained by the states under the Constitution

      • “police powers”: Powers to protect the safety, health, and welfare of their citizens (though the federal government now regulates many of these activities); marriage and divorce laws; insurance regulations; define and prosecute most crimes (though the federal government may also do so)

    • Bill of Rights - first 10 amendments to the Constitution: limits Congress (most applied to the states through 14th Amendment)

    • Congress - cannot pass bills of attainder or ex post facto laws or suspend the writ of habeus corpus

    • No authoritarian state governments - the guarantee clause of the Constitution (Article IV, Section 4) guarantees that states shall have a “republican form of government” (electing representatives).

    • Congress and Supreme Court - have used the 14th and 15th amendments to protect civil and voting rights in states

Constitutional Framework

• Groundwork for Relationships

  • Relationships between the Nation and States

    • Supremacy clause (Article VI) - Makes federal law supreme over state laws

    • 10th Amendment - did not use the term “expressly granted”; national government retains implied powers (e.g. necessary and proper clause)

    • 11th Amendment - prohibits the federal courts from hearing certain lawsuits against states

      • Doctrine of sovereign immunity - the government cannot be sued without its consent

      • 11th Amendment has been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law

The Changing Nature of American Federalism

• Dual Federalism (approx. 1865-1932)

  • Doctrine that state governments and the federal government have almost completely separate functions

    • Layer Cake

      • the national government is supreme in some sphered, the state government in others

      • reduced Congress’ range of authority

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• Cooperative Federalism: The New Deal and Civil Rights (approx 1932-69)

  • Roosevelt’s New Deal

    • With the onset of the Great Depression in 1929, people wanted national action

    • Strengthened the nation-centered federalism signaled by the 16th and 17th Amendments

    • Many of Roosevelt’s programs were declared unconstitutional by the Supreme Court

      • Court-packing plan: one proposed solution was that Roosevelt expand the number of justices on the Court allowing him to make additional appointments

    • Supreme Court eventually accepted the view that virtually any taxing or spending plan that Congress believed supported the general welfare would be acceptable

  • Marble Cake

    • Federal government intervened in many areas traditionally governed by the states. Roosevelt’s cooperative federalism was said to resemble a “marble cake” with specific powers under both federal and state authority.

  • State centered federalism grew in opposition

The Changing Nature of American Federalism

• The New Federalism (approx 1969-1993)

  • Presidents, Congress, and the New Federalism

    • Nixon (1968-1974): began trend of shifting power back to the states

      • “revenue sharing” which gave more power to the states about how funds from the national government could be spent

        • Argument was that states could spend more efficiently

    • Reagan (1981-1989): reduce the power of government (“government is the problem”)

      • Cut back on “categorical grants” (federal government determining how federal money was to be spent by the states)

      • Favored “block grants” which set fewer restrictions on how the money was to be spent

  • The Modern Era (1993-2017)

    • Clinton (1992-1999): devolution of power from national government to state governments

      • Declared “the era of big government is over”

      • Congress limited “unfunded mandates” (legal requirements the federal government placed on the states without funding them)

      • Clinton and Congress ended federal guarantee of welfare to poor families, leaving welfare spending to the states

    • G.W. Bush (2000-2008): strengthened national authority

      • “no child left behind” - increased federal involvement in public education

      • Added prescription drug plan for Medicare

      • Expanded federal powers following 9/11

    • Obama (2008-2016): state-centered federalism in some cases, national in others

      • Obama Administration used the term Progressive Federalism

      • Allowed states to set higher standards than federal government on fuel economy

      • Also furthered national-centered federalism with the Affordable Care Act

    • The Supreme Court and the New Federalism

      • Reagan appointed Rehnquist to Chief Justice of the Supreme Court in 1986 in order to move to more state-centered federalism

      • For the first time since 1937, Court rejected national authority to regulate under the commerce clause

        • Court struck down congressional legislation banning the possession of guns near a school declaring it was not an economic activity (United States v Lopez, 1995)

        • Court struck down a central provision of the Violence Against Women Act which gave victims the right to sue their attackers in federal court (US v Morrison, 2000)

      • Most questions of federal authority are still decided in favor of the national governments

    • Federal Aid to States in the New Federalism

      • Influenced by equal representation in the Senate

        • Since small states have an equal number of Senators, they receive a disproportionate amount of federal aid

      • States that heavily supported the President in election or whose governors are of the same party get more federal aid

    • Selective Federalism

      • The Politics of Expediency

        • Trump: a lack of ideological consistency

          • Federalism used politically and strategically

          • National/state relations shift depending on political issue

            • COVID-19: responsibility for dealing with the pandemic displaced onto states - onto governors and mayors

            • Protests: federal troops and agents sent into cities to “stamp out” protests despite the objections of governors and mayors

              • “I don’t need invitations by the state, state mayors or state governors to do our job.” “We’re going to do that, whether they like us there or not.” (Chad Wolf, acting Secretary, Department Homeland Security)

        • Biden: big problems requiring big solutions

          • Build Back Better plan grants money to states for infrastructures

      • Federalism in Context

        • Presidents’ views on national/state relations often depend on political goals

  • Were the Antifederalists correct?

    • Believed that the Constitution gave virtually unlimited powers to the national government

      • Constitutional Interpretation has increased power of Congress

        • Congress can spend money on virtually anything as long as it is not specifically prohibited by the Constitution

        • “necessary and proper” has come to mean “ordinary and appropriate”

    • People can vote to limit that power

      • If people believe the national government has too much power they can vote for candidates who represent their viewpoint

State Governments

• State Executive Branches

  • All fifty states choose the head of the executive branch by direct election

  • All governors have the authority to veto laws subject to override by state legislatures

    • Most states grant their governors the “line-item veto” — the ability to veto certain part of a spending bill without vetoing the entire bill

  • Every state except Vermont requires a balanced budget

• State Legislative Branches

  • 49 states have bicameral system (two chambers)

  • Nebraska has a single chamber

• State Judicial Branches

  • States have various procedures for selecting judges

    • Nearly half the states appoint, the other half use elections

  • Missouri Plan - widely used

    • “merit plan” - a board of experts recommends candidates to the governor who chooses from that list. The selected judges are then subject to retention elections

State and Local Governments

• Local Governments - far more diverse than state governments

  • Different layers

    • Villages, cities, towns, townships at the most local level, counties above that

    • Some local governments run all local services, including police, and sanitation

    • Many states delegate specialized activities to special jurisdictional governments such as school boards, water districts, fire districts, library districts, and sewer districts

    • Some local governments elect leaders (mayors, etc), while in others the legislative branch appoints a professional administrator (city manager)

    • New England town meeting - in which the adult population of the town meets at least once a year to adopt the budget and vote on legislation. Works only in small towns.

• Direct Democracy

  • Recall - 18 states enables citizens who gather enough petition signatures to force a special vote to remove state or local officials

  • Initiative - allows citizens who collect the required number of signatures to place proposed laws directly on the ballot (costly to gather signatures)

  • Referendum - allows legislatures to put certain issues on the ballot for citizen approval

Federalism and Democracy

• Federalism creates multiple gateways

  • In confederal systems, citizens can influence local governments, but there is limited value in influencing national governments since the latter is so limited in its scope

  • In unitary systems, national government has a great deal of authority but it is difficult for citizens to exert influence. However, no doubt who is responsible

  • A federal system increases citizen participation and government responsiveness by keeping government closer to the people while electing representatives to the national government

• Federalism enhances democracy by enabling more people to live under laws that are made locally

  • Citizens in conservative and liberal states can have politics more attuned to their preferences

  • In some states citizens can also use initiative and referendum

• Keep in mind: Madison feared direct democracy believing that citizens were prone to self-interested factions

  • Framers preferred large-scale Republic over local democracies fearing citizens would follow their own interests rather than the common good

Tribal Sovereignty

• Tribal sovereignty is the inherent authority of Native American tribes to govern themselves.

  • Tribal Sovereignty is “recognized”, not “granted”

  • Sovereignty for tribes includes the right to establish their own form of government, determine membership requirements, enact legislation and establish law enforcement and court systems

  • There are 574 federally-recognized American Indian and Alaska Native nations in the US, according to the federal Bureau of Indian Affairs. Each is a government entity with its own policies, processes and system of governance

• The United States consists of three sovereign entities: the federal government, state governments, and tribal governments

  • As US citizens, American Indians and Alaska Natives are generally subject to federal, state, and local laws. On federal Indian reservations, however, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise

Inequalities

• Californian Mexicans (Californios) were gradually marginalized and impoverished following California becoming a state

• By 1850, the Chinese had become the population that the political class found to be a threat to their interests

  • Arrived in large numbers, particularly after 1851

  • By the 1870s, composed nearly 10% of California’s population

  • Remained important segments of many mining, agriculture, and urban communities into the early 20th Century

  • Many were brought to California to build the railroads during the 1880s, during which they were targets of serious forms of racism, including lynchings

  • The second California constitution (1879) was loaded with anti-immigrant provisions (aimed at Asian immigrants), which were later declared invalid as violations of the US Constitution.

  • The first official apology from the State Legislature to California’s Chinese American community came in 2009

• California’s large gaps between wealth and poverty continue to create vast inequality among individuals.

  • Wage gaps clearly divide whites and Asians from African Americans and Latinos

• In 1849, before becoming a state and without the assistance of the federal government, California politicians quickly put together a constitution

  • Language taken from other states, primarily Wyoming

• In 1879, the first state constitution was replaced by the one now in effect

  • Similar to US Constitution:

    • The California Constitution provides the traditional three branches— legislative, executive, judicial

  • Different from the US Constitution

    • the California legislature shares lawmaking authority with the people through the initiative process

    • the governor’s power is diminished by the popular election of seven other executive officials

    • California judges must be approved by voters

The California Constitution

• The California Constitution guarantees additional freedoms than those in the US Constitution

  • enjoying and defending life and liberty

  • acquiring, possessing, and protecting property

  • pursuing and obtaining safety, happiness, and privacy

  • Similar refences to property acquisition, safety, and privacy do not explicitly exist in the US Constitution

Campaigns and Elections

• Beginning in June 2012, Californians no longer have partisan primaries for state offices, but instead now use the “voter-nominated” or “top-two” system, which allows for the two highest vote-getters to go into the general election even if both are from the same political party

• In general elections for state offices, the ballot includes the top two primary vote-getters for each office

Direct Democracy

• Created by the Progressives of the early 1900s as part of their strategy to bring political power back to the people

• Three forms of direct democracy:

  • Initiative

    • Permits registered voters to place a proposed law, or statute, on the ballot through petition signatures equal to 5% of the votes cast in the last election for governor

    • Voters may propose amendments to the state constitution which requires 8% of the votes cast in the last election for governor to get onto the ballot

  • Referendum (2 types)

    • One type allows voters to repeal a law passed by the legislature

      • Signatures must be gathered within 90 days of the legislation’s passage

    • Second type is one submitted to the voters by the legislature rather than by petition

      • This is most frequently used for bond measures

  • Recall

    • a device by which voters can petition for a special election to remove an official from office before their term has expired

Problems with Direct Democracy

• Progressives intended that the initiative, referendum, and recall would help citizens make policy directly or remove incompetent officials

  • Intended to counteract the corruption of state or local officials who might be too dependent on powerful special interest

  • Instead, those same special interests have grown sophisticated in their use of mechanisms to achieve their goals

    • Because of the high costs of qualifying an initiative and promoting its passage, the large majority of initiatives on the ballot are written and promoted by organized special-interest groups, which usually pay professional signature gatherers to qualify propositions to appear on the ballot

  • Critics suggest that the recall can be used unfairly against a competent but unpopular official

California Legislature

• The California legislative branch is a bicameral body consisting of two houses

1. 40-member Senate elected for a 4-year term

2. 80-member Assembly elected for a 2-year term

• Half of the Senate and the entire Assembly are elected in November of even-numbered years

• Each Senate district must be equal in population to all other Senate districts, with the same rule holding for all Assembly districts

California Elections

• Despite the periodic voter-approved campaign reforms, money is still the major factor in most elections

• California campaigns are now so expensive that one of the greatest dangers to democratice politics is that races are often won by the biggest spenders, not necessarily the best candidates

• Both incumbents and challengers channel many of their campaign dollars to highly paid consultants, who push their clients to raise even more money in order to pay other campaign costs.

District Boundaries

Redistricting and Gerrymandering

• District boundaries are redrawn every ten years (after each US census), in a process known as redistricting

• For many decades, district lines for the state Assembly and Senate were decided by the legislators themselves, which involved a manipulation of the boundaries known as gerrymandering to protect the majority party’s continued dominance

Citizen’s Commission on Redistricting (CCR)

• Proposition 11 (2008) - created an independent citizen commission to redistrict the legislative boundaries

• Proposition 20 (2010) - extended Proposition 11 giving the CCR the authority to draw boundaries for California’s congressional districts

Legislative Functions and Procedures

• The legislature meets 2-year sections

• Every bill must:

  • go through at least committee in the house in which it originated

  • be passed by the house of the legislature in which the bill originated

  • move through the second house committee and be passed by that chamber

  • be sent to the governor

• During this process, most bill are amended, in part owing to the extensive lobbying by special interests affected by the legislation’s intent

• A majority of the entire membership of both houses is needed to pass most legislation

• Two-thirds majority is required for budget bills, proposed constitutional amendments, overrides of a veto, and urgency measures

  • unlike most laws, urgency measures take effect immediately rather than on January 1 of the following year

  • urgency measures, unlike regular laws, cannot be overturned by public referendums

• Unlike the US congress, which has complete legislative power in the national government, the California legislature must share lawmaking authority with the voters through the initiative and referendum processes.

Legislative Role of the Governor

• Within 12 days after receiving a bill, the governor can sign it into law, allow it to become law without his signature, or veto it

  • a vetoed bill returns to the house (chamber) of origin for a possible vote on overriding the veto (requires a two-thirds majority of both houses)

  • Urgency measures become effective immediately after signing. Others usually take effect the following January 1st

• Every January 10th, the governor presents a budget proposal to the legislature for the fiscal year starting July 1sst

• Although the bill may be much amended before it is passed and returned to the governor in June, he or she may then use the line-item veto, but still approve the bill as a whole

  • Authority to reduce or eliminate a single item of appropriation from any bill, without vetoing the entire bill (including the budget bill)

  • Gives the governor major control over state spending

    • Items reduced or eliminated are subject to a veto override by the legislature

Powers of the Governor

• The governor’s powers include sending messages to suggest new legislation and the authority to call special sessions

  • Ideas for new laws are often announced in the annual State of the State speech, which is usually given along with the budget proposal

• Executive clemency, which consists of pardons, commutations (reductions of sentences), and reprieves (postponements of sentences) granted to convicts.

  • Governors may grant a life sentence instead of execution to those already handed a death sentence by a jury and court, but such actions rarely occur

• The governor, as commander-in-chief of the California National Guard, may call the guard into active duty for in-state emergencies

• Members of the governor’s cabinet are appointed by the governor, subject to Senate confirmation (see page 80 for a detailed listing of the make up of the cabinet)

The Plural Executive

In addition to the governor, 7 other executive officials are elected directly by the voters.

Like the governor, they are chosen for 4-year terms (with a limit of two terms) and hold the following positions, often known as constitutional offices.

1. The lieutenant governor in addition to being nominal president of the state Senate, succeeds to the governorship if that office becomes vacant between elections

2. The attorney general, the chief legal adviser to all state agencies, is also head of the state Justice Department, which provides assistance to local law enforcement agencies, represents the state in lawsuits, and exercises supervision over the country district attorneys in their prosecution of state criminal defendants.

3. The controller is concerned with government finance. They audit state expenditures, supervise financial restrictions on local governments, and influences state tax collections

4. The California secretary of state maintains official custody over state legal documents, grants charters to business corporations, and administers state election procedures. The secretary of state verifies the signatures on petitions for ballot initiatives, referendums, and recalls, and administers state election laws

5. The state treasurer maintains custody over tax money collected by various state agencies, deposits it in private banks until appropriated by the legislature, sells government bonds, and influences stock investments by the public-employee pension funds

6. The insurance commissioner’s job is to monitor the corporations that sell various types of insures: life, health, automobile, homeowner, earthquake, and any other forms of insurance sold in the state

7. The superintendent of public instruction directs the state Department of Education and is charged with the responsibility for dispensing financial aid to local school districts, granting teaching credentials, and enforcing policies determined by the state Board of Education. In addition, the superintendent is an ex-officio member of the UC Board of Regents and the California State University Board of Trustees.

California Courts

• Superior Courts (Trial courts)

  • handle the first round of both civil and criminal cases

  • there are 58 trial courts - one in each country

  • a judge, and sometimes a jury, hears testimony and evidence and decides a case by applying the law to the facts of the case

• Courts of Appeal

  • the role of the Courts of Appeal is not to give new trials, but to review the Superior Court record (court files and transcripts) to decide if legal errors were made

  • Six districts

  • in each Court of Appeal, a panel of three judges called “justices”, decides appeals from Superior Courts

• State Supreme Court

  • the state’s highest court. It can review cases decided by the Courts of Appeal

  • There are 7 justices on the Supreme Court, and at least 4 must agree on the final decision

  • Certain kinds of cases go directly to the Supreme Court and are not heard first in the Courts of Appeal

    • Death penalty appeals

    • Disciplinary cases involving judges or lawyers

  • If an individual involved in a case at this level is still not satisfied, he or she may choose to appeal to the US Supreme Court

    • However, cases that raise constitutional questions appropriate to the US Supreme Court are rare

Judicial Council

• The Judicial Council plans and adopts policies and rules that say how the Courts of Appeal and the Superior Courts must work

  • The Chief Justice is the leader of the Judicial Council

  • The Judicial Council has 27 members

  • Together with the Council, the Chief Justice ensures the consistent, independent, fair, and accessible administration of justice

  • The Administration Office of the Courts

Selection of Judges

• Every California judge must have passed the Bar exam to become an attorney and paid dues to the California Bar Association for at least ten years

• Superior Court vacancies: The judges of the California Superior Courts compete in nonpartisan races in even-numbered years. If a candidate receives more than 50% of the vote in the June primary election, he or she is declared the winner; if no candidate receives more than 50% of the vote, a runoff between the top two candidates is held during the November general election

• Appeals Court judges and Supreme Court justices are chosen through a three-step process

1. Appointment by the governor based on guidance from their judicial appointments secretary

2. Approval by a majority of the Commission on Judicial Appointments, which consists of the chief justice of the State Supreme Court, the senior presiding justice of the district Court of Appeals, and the state’s elected attorney general

3. Election (confirmation) in the next general election for a 12-year term, with no opposing candidate permitted to run and voters limited to a choice between yes and no

Most attorneys who want to serve as judges also have some form of political connection that puts them on the governor’s “short list” for appointment

Selection of Judges

• There are no term limits for any California judges

• The governor’s political views can have an enormous impact on the types of judges appointed

• Judicial appointments generally tend to represent the more privileged groups in society

• Once appointed and confirmed, few justices have trouble winning confirmation from the voters

• Commission on Judicial Performance can force a judge out even when elected by the voters

  • includes both judges and nonlawyers appointed by the governor and legislature

  • primary task its to investigate complains about judicial misconduct and, if circumstances indicate, to recommend that the state Supreme Court remove a judge from office

Criminal Justice and Civil Law

• Civil matters involve any disputes between parties which cannot be resolved without legal assistance

  • range of civil legal matters includes such cases as dissolution of marriage, child custody, personal injury (including automobile accidents), malpractice, workers’ compensation, breach of contract, bankruptcy, and many more

  • the court’s role frequently is to determine liability and to assess damages, often amounting to millions of dollars

  • Most civil lawsuits never reach a court but rather are settled outside the courtroom by the attorneys

• Criminal law deals with an individual’s offenses against the state or federal government

  • Depending on the severity of the act, crimes are normally defined as infractions, misdemeanor, or felonies

  • Infractions are most often violations of traffic laws

  • Misdemeanors encompass “less serious” crimes such as shoplifting and public drunkenness

  • Felonies are the most serious crimes and potentially punishable by a year or more in state prison, including both violent and nonviolent crimes

Criminal Justice and Civil Law

• California has two types of juries

  • trial jury

    • created for the length of a particular trial

    • for felony trials, the jury consists of 12 citizens, while as few as 9 jurors may try a misdemeanor case or a civil trial

    • jurors are found through both voter registration and motor vehicle license lists

  • grand jury

    • jurors serve a one-year term

    • purpose is to investigate possible criminal activity and bring indictments against either public officials or private parties

What are Civil Liberties

• Civil Liberties - those rights, such as freedom of speech and religion, that are so fundamental that they cannot be regulated by the government

  • Written into the Constitution as the Bill of Rights (first ten amendments)

  • Place into law some of the natural (unalienable) rights Jefferson wrote about in the Declaration of Independence

• Balancing Liberty and Order

  • Complete liberty could lead to breakdown of order

    • Supreme Court Justice Oliver Wendelf Holmes - “clear and present danger” test

      • “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”

      • Holmes later argued for the “marketplace of ideas”

  • Too much order can lead to tyranny where individuals are not free to make decisions about the private parts of their lives

• Civil liberties provide a gate or barrier that protects people against interference by the government in fundamental liberties, such as freedom of speech or religion. Civil Rights often require active involvement of the government in opening gateways to full civic participation by all, regardless of race, gender, or religion

Distinction Between Civil Liberties and Civil Rights

• Civil Liberties are basic rights and freedoms that are guaranteed - either explicitly identified in the Bill of Rights and the Constitution or interpreted or inferred through the years by legislation or the courts

  • Protections against government actions undermining basic rights/freedoms

• Civil Rights are rights that government is obliged to protect. They concern the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc) in settings such as employment, education, housing, and access to public facilities. Most civil rights laws are established through the federal government via federal legislation or case law

  • Positive actions government should take to create equal conditions for all Americans

Constitutional Amendments that Pertain to Civil Liberties

The Bill of Rights and the States

• As originally written, the Bill of Rights limited activities of the national government, not the state government

  • Incorporation - at the end of the 19th century the Supreme Court began to slowly use the protection of “life, liberty, or property” in the 14th Amendment’s due process clause to apply, or incorporate, some of the provisions of the Bill of Rights to the states

    • Fourteenth Amendment (1868) - “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law

• Selective Incorporation

  • The Supreme Court never agree to total incorporation but settled on using the due process clause to bind the states to those provisions of the Bill of Rights the Court deems to be fundamental rights

  • Compelling interest test - Standard frequently used by the Supreme Court in civil liberties cases to determine whether a state has a compelling interest for infringing on a right (eg. the law is necessary for the functioning of government) and whether the law is narrowly drawn to meet the interest.

Incorporated and Not Incorporated Provisions of the First Through Eight Amendments

Civil Liberties in Times of Crisis

• From Revolution to Civil War

  • The Sedition Act

    • After the French Revolution in 1789, US engaged in a limited and undeclared war with France

    • In 1798, the Federalist-dominated Congress passed the Sedition Act

      • Made it illegal to “write, print, utter or publish” any “false, scandalous, and malicious writing” against the federal government

  • Civil War

    • Lincoln suspended habeus corpus, allowing southern sympathizers in border states (slave states between the North and South — which did not secede) to be tried by military tribunals

• World War I

  • The Espionage Act of 1917, during World War I

    • Made it a crime to obstruct military recruiting

  • The Sedition Act of 1918 - amendments to the Espionage Act which banned “disloyal, profane, scurrilous or abusive language” about the Constitution or the US government

  • Justice Oliver Wendell Holmes initially upheld convictions under the Acts, but dissented in a later case claiming that there was insufficient “clear and present danger”

• The Cold War

  • US worried about communism

    • “McCarthyism” aka “The Red Scare” - Senator Joseph McCarthy (R-WI) began indiscriminately accusing Americans of being “card-carrying” members of Communist organizations or sympathetic “fellow-travelers”

    • Hollywood studios blacklisted

• Vietnam WAr

  • In the mid-1960s, COINTELPRO, the counterintelligence program of the FBI, infiltrated and disrupted groups that expressed opposition to American policies, particularly Civil Rights and Black Liberation Groups

    • Congress reacted by putting restrictions on surveillance of political organizations

• The War on Terror

  • The USA Patriot Act - passed after “9/11” - overturned many of the COINTELPRO restrictions

    • Enhanced law enforcement’s ability to tap telephone and email

    • Allowed President Bush to detain alleged enemy combatants indefinitely, including US citizens

      • Supreme Court has ruled that Congress must authorize hearings to determine the legality of the detention, consistent with the 1949 Geneva Conventions

    • Bush and Obama have ordered warrantless wiretapping of conversation and interception of emails between American citizens and suspected foreign terrorists

• Civil Liberties During Times of Crisis

  • In wartime or times of crisis, concern about order is at it highest and protections for civil liberties by national and state governments typically decline

• The Church Committee

  • Cha Sen Church put restrictions on FBI surveillance & infiltration

The First Amendment and Freedom of Expression

• Freedom of Speech

  • though the First Amendment declares that “Congress shall make no law…abridging the freedom of speech,” the Court has never taken the phrase “no law” as an absolute

  • Advocacy of Unlawful Activities - words spoken in wartime may have a different impact than they would in peacetime

    • Clear and present danger test - Oliver Wendell Holmes the question in every case is whether the words spoken create a “clear and present danger” to bring about substantive evils that Congress has a right to protect.

• Fighting Words - written or spoken words intended to incite hatred or violence from their target

  • Words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” Chaplinsky v New Hampshire (1942)

• Hate Speech - speech or expression which attacks or demeans a group rather than a particular individual

  • the First Amendment protects speech if it causes only emotional injury, no matter how offensive it is

    • College Speech codes - in the last thirty years, many colleges and universities have attempted to provide non-hostile educational environmental through speech codes that tell students what they are or are not allowed to say

    • Federal Courts have indicated that State Universities may encourage equality but not by limiting First Amendment rights

• Should universities ban speakers who many students believe will present views which are “offensive”?

• Symbolic Speech - non-verbal activities that convey a political message

  • In Iowa, students wearing armbands (no verbal speech or disruption) to school to protest the Vietnam War were suspended

    • In 1969 the Supreme Court ruled in favor of the students (Tinker v. Des Moines Independent Community School District)

  • Court has overturned laws requiring flag-saluting or prohibiting the burning of the flag

  • Limiting Symbolic Speech

    • Court allowed a Congressional ban on burning draft cards because the ban was not politically biased since the cards were necessary for the smooth operation of the draft

    • Court upheld a student’s suspension for unfurling a banner at a parade which declared “Bong Hits 4 Jesus” because the banner promoted drug uses (Morse v Frederick)

  • States have more authority in determining their own speech than their citizens

    • Court ruled that states do not have to be content-neutral when deciding which license plates to accept (rejected a design that featured the Confederate flag)

• Mary Beth and John Tinker were teenagers in 1965 when they wore black armbands to school to protest the Vietnam War, and they were suspended. Arguing that students have free speech rights, the Iowa Civil Liberties Union sued the school district on their behalf and appealed the suspension in a series of cases that were finally appealed to the Supreme Court. In 1969, the Court ruled in the Tinker’s favor in Tinker v. Des Moines Independent Community School District.

• Time, Place, and Manner Regulations

  • Regulation of when or where protests can take place are generally valid as long as they are neutral or equal

    • The regulation must be content neutral

      • States can prohibit protest near school grounds that would interfere with school activities since all groups would be affected equally

    • It must be narrowly tailored to serve a significant governmental interest

    • It must leave open ample alternative channels for communicating the speaker’s message

• Freedom of the Press

  • Like freedom of speech, freedom of the press is not absolute

  • Prior Restraint - Government restrictions on freedom of the press that prevent material from being published

    • In the colonies and in the early days of the US “freedom fo the press” meant freedom from prior censorship

    • An extraordinary burden of proof of immanent harm before the Court will shut down a news story before it is published

    • First Amendment law protects the internet nad blogs from government censorship, bu the technology of the internet makes censorship far more difficult

The Right to Privacy

• Although a number of constitutional provisions bear on privacy, such as the prohibition on search and seizure, self-incrimination, and First Amendment freedoms, the Constitution does not explicitly grant a general right to privacy

• Since 1965, the Supreme Court has used the 9th Amendment (the listing of certain right in the Bill of Rights does not invalidate other non-listed rights) the due process clause of the 14th Amendment, and the 1st, 3rd, and 4th amendments to establish a general right to privacy

• The Court has faced decisions about whether to expand this right to protect unlisted rights such as sexual privacy and reproductive rights, plus the right to end life-sustaining medical treatment

• Teh current Supreme Court will be hearing a number of cases dealing with the right to privacy. Previously held rights such as contraception and gay marriage may be overturned as the Court did with Roe v. Wade.

• Birth Control and Abortion

  • 1800s Comstock Laws

    • IN 1873, Anthony Comstock, a crusader for “traditional morality” lobbied Congress to pass a law prohibiting the interstate transportation of both pornography and birth control

    • The primary legislation was passed on March 3, 1873, as the Act for the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.”

    • Many states passed their own Comstock Laws

  • Griswold v. Connecticut (1965)

    • Estelle Griswold opened a birth control clinic in Connecticut. She was fined $100 (upheld by the Connecticut Supreme Court) and appeald to the US Supreme Court

    • Court voided “an umcommonly silly law”. The Court soon expanded its ruling to include unmarried couples

    • The case established a right to privacy

  • Roe v. Wade (1973)

    • By the 1950s, every state had banned abortion except to save the mother’s life (Alabama included the mother’s health)

    • Roe v. Wade establisheod national right to abortion

  • Dobbs v. Jackson Women’s Health Organization (2022), the Court overturned Roe. The majority held that abortion is not a constitutional right as the Constitution does not mention it and its substantive right was not “deeply rooted” in the country’s history, and that individual states have the authority to regulate access to abortion

• Homosexual Behavior

  • As of 1961, every state had laws prohibiting sodomy; laws wer broad enough to cover virtually all sexual conduct between people of the same sex

  • Bowers v. Hardwick (1986)

    • Supreme Court ruled that the Constitution does not protect the right of same-sex adults to engage in private, consensual sodomy

  • Lawrence v. Texas (2003)

    • Supreme Court reversed Bowers v. Hardwick extended the right to privacy to include sexual relations between same-sex individuals

• The Right to Die

  • People who make their wishes clearly known have a constitutional right to terminate life-sustaining care

  • Does not include assisted suicide

Civil Liberties and Democracy

• Congress, president and the people have ways to hold Supreme Court accountable

  • Nomination, and approving, different justices in case of vacancy

  • Court cannot stand alone in protecting civil liberties without public support

• Unlimited liberties can be perceived as harming social order, particularly in times of crisis

• Political tolerance in essential to democratic stability

  • The willingness of people to put up with ideas with which they disagree is essential to the marketplace of ideas and democratic stability

  • If the people are tolerant, politicians are likely to also be more tolerant

“If there is no struggle, there is no progress.” - Frederick Douglass

What are Civil Rights?

• Civil Rights

  • Those rights, such as freedom of speech and religion, that are so fundamental that they cannot be regulated by the government

  • Protections against government actions undermining basic rights/freedoms

• Civil Rights

  • set of rights centered around the concept of equal treatment that government is obliged to protect

  • Positive actions government should take to create equal conditions for all Americans

  • Voting is one of the most important of these rights

• Three government approach to civil rights

  • Public discrimination - prevent discrimination by national, state, or local governments

  • Private discrimination - government treats people equally but allow individuals or businesses to discriminate

  • Prevent discrimination - government treats people equally and prevents individuals or businesses to discriminate

• The Constitution and Civil Rights

  • Ensuring equality not included in Constitution

    • The Declaration of Independence declared that “all men are created equal” but the role of government to ensure equality was not written into the Constitution

    • Many of the Founders owned slaves

    • Most states restricted the right to vote to “free males” (non-slaves) who owned a sufficient amount of property

    • During the natin’s first century (and beyond) state laws and the national government actively discriminated against people on the basis of race, gender, and ethnic background

• In the past half-century the meaning of “all men are created equal” has expanded, but the meaning of equality is still debated

  • Equality of opportunity: Expectation that citizens may not be discriminated against on account of race, gender, or national background and that every citizens should have an equal chance to succeed in life

    • Differences in outcome aren’t necessarily unjust (they could reflect harder or better work)

  • Equality of outcom: Expectation that equality is achieved if results are comparable for all citizens regardless of race, gender, or national background or that such gruops are proportionally represented in measures of success in life

    • Focues on who traditionally has power and privilege (ie. even without overt discrimination we don’t all start in the same position)

    • When most jobs are obtained through “who you know”, the people whose networks contain more people with the ability to hire win

Legal Restrictions on Civil Rights

• Citizenship

  • is the states of a person recognized under the law as being a legal member of a sovereign state or belonging to a nation

  • the capacity of individuals to defend their rights in front of the governmental authority

• Restrictions on Citizenships

  • Native Americans

    • In 1823, the Supreme Court declared that Native Americans were “an inferior race of people, without the privilege of citizenship”

    • Native Americans were merelly “inhabitants”

    • Indian Citizenship Act of 1924 provided natural-born citizenship to Native Americans born on reservations

• Congress had decided in the Missouri Compromise (1820) that all states north of Missouri would be free states

• Dred Scott v. Sandford (1857) - one of the most notorious decisions in Supreme Court history

  • Dred Scott was a slave who moved with his “master” from the slave state of Missouri to the Wisconsin territory (what is now Minnesota) in which slavery was prohibited by the Missouri Compromise

  • Scott sued in federal court for his freedom because of his extended stay in a free territory

  • Supreme Court decision declared that black could not be citizens and Congress could not ban slavery in the territories

    • No black (free or slave) could be an American citizen, and thus no black could sue in federal court

    • Blacks were “beings of an inferior order: who had “no rights whihc the white man was due to respect”

    • “all men are created equal: did not include men of African heritage

    • Congress did not have the right to prohibit slavery in the territories

    • Slaves were the property of their owners

• Lincoln’s Emancipation Proclamation (January 1, 1863)

  • Made slavery illegal in the southern states which had seceded

  • Did not apply to slave border states which had remained in the Union

• Relationships on Citizenships

  • Latinos

    • Latinos in the Southwestern US arrived before American settlers

    • After the US annexed Texas, many Tejanos (Mexian/American inhabitants of southern Texas) were forcibly expelled

    • Those who remained were granted citizenship but were treated as “second-class” with few recognized rights

    • In the late 1920s and early 1930s approximately 2 million people of Mexican descent were deported to Mexico

      • Similar roundups occurred in the 1950s and the 1970s

    • Trump enunciated very controversial, often demeaning, rhetoric concerning Mexican immigrations and attempted to build a border wall between Mexico and the US

  • Asian Americans

    • Even after Congress granted citizenship to “persons of African descent” Asians still could not become naturalized citizens

    • Chinese Exclusion Act of 1882 - Fear of Chinese immigrants led to a prohibition on the immigration of Chinese people to America

    • Congress ended this restriction in 1952 but kept strict limits on immigration until 1965

    • After Pearl Harbor Roosevelt ordered all 110,000 people of Japanese Ancestry who resided west of the Rocky Mountains to be placed into relocation camps

      • Supreme Court decision of Korematsu vs United States (1944) endorsed this policy

• Immigration Limits

  • Congress has used immigration laws to keep out certain ethnic groups as well as “undesirables”

    • “insane”, paupers, anarchists and those people coming to America for “immoral purposes”

    • immigration officials used the morality clause to keep homosexuals from entering the country until 1979

  • After World War I the Ku Klux Klan joined with other supremacist grups to pressure Congress to limit immigration

    • Immigration Act of 1924 established immigration quotas which limited those considered to be of a “lower race” - primarily those from southern and eastern Europe

      • This reduced the number of Jewish immigrants during the years before World War II and the Holocaust

    • The Immigration and Nationality Act of 1965 rescinded the quota system

  • Trump limited the overall number of immigrants, instituted a Muslim ban, and attempted to exclude poorer immigrants and the less educated

Constitutional Amendments That Pertain to Civil Rights

Legal Restrictions on Civil Rights

• Racial Segregation and Discrimination

  • The end of slavery did not make former slaves equal citizens. “Black codes” prevented freed blacks from voting, owning land, and leaving their plantations

  • After the end of the Civil War (April 9, 1865), southern states wrote new Constitutions that severely limited the political and civil rights of freed slaves

• The Reconstruction Era

  • The period from 1865 to 1877 in which the former Confederate states gained readmission to the Union and the federal government passed laws to help the emancipated saves

  • The Republican Congress enacted laws and 13th, 14th, and 15th Constitutional amendments that empowered the federal govenrment to enforced the principle of equal rights, and gave black Southerners the right to vote and hold office

    • Civil Rights Act of 1866: Freed blacks could make and enforce contracts, sue, and be sued, give evidence in court, and inherit, purchase, lease, sell , hold, and convey real and personal property

  • Violent opposition from the Ku Klux Klan and similar groups undermiend the Civil Rights Act

    • Supreme Court ruled that the 14th Amednment gave Congress the authority to act against states that vilated civil rights (public discrimination), not against individuals who did so (private discrimination)

  • In time, the North abandoned its commitment to protect the rights of the former slaves, Reconstruction came to an end, and white supremacy was restored throughout the South

  • 14th Amendment

    • Equal Protection Clause prevents states from denying any person the equal protection of the laws

    • All people born in the US are citizens, overturning Dred Scott decision

  • 15th Amendment

    • the right to vote could not be abridged on account of race

      • Poll Taxes: taxes on voting still disenfranchised most blacks (and poor people)

        • Prohibited by the 24th Amendment (1964)

  • Jim Crow Laws - Southern laws that established strict segregation of the races in all public places

    • Plessy v Ferguson (1896) Separate-but-equal doctrine

      • Supreme Court decision that upheld segregation as long as there was equal facilities for blacks

      • Facilities were almost never equal

  • African Americans in northern states often experienced discrimination in housing, hiring, hotels and restaurants even though this segregation was not enforced by law

  • Ethnic Segregation and Discrimination

    • Separate-but-equal doctrine applied to Latinos and other minorities

    • End of segregation practices aimed at African Americans did not necessarily end them for Latinos

      • Cisneros v. Corpus Christi Independent School District (1970) extended Brown v. Board of Education to Latinos

• Women’s Suffrage - movement to grant women the right to vote

  • By law and custom women were excluded from public life from the earliest history of America

    • In John Locke’s State of Nature, individuals in the public sphere were men. Women were confined to the private sphere of the household.

  • Women’s Suffrage Movement begin in 1848, Seneca Falls, New York

    • Organized for the right to vote

    • Declaration of Sentiments - used the language of the Declaration of Independence to assert that “all men and women are created equal”

      • Important founding moment, but few tangible results

    • In 1869, Susan B. Anthony and Elizabeth Cady Stanton formed the National Woman Suffrage Associate (NWSA) which focused on gaining women’s right to vote through a Constitutionall Amendment

    • 19th Amendment (1920) gave women the right to vote

  • Continued Gender Discrimination

    • Coverture laws (a woman’s legal rights were subsumed by her husband’s when she got married. Legally, a husband and wife were one person; the husband) still existed in eleven states in 1972.

The Expansion of Equal Protection

“nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws” (14th Amendment) Court has indicated that through the “due process clause” of the 5th Amendment, equal protection also applies to the federal government

• Footnote four of United States v. Carolene Productss Company (1938) foreshadows a shift in the Supreme Court form predominately protecting property rights to protecting other individual rights

  • Court would apply a form of heightened scrutiny in situations in which a law or statute conflicts with Bill of Rights protections, where the political process has closed or is malfunctioning, and when regulations adversely affect “discrete and insular minorities”

• Court has established three different levels as to how strongly under the 14th Amendment’s equal protection clause it will scrutinize laws aimed at different “discrete and insular minorites”

  • Strict scrutiny - most rigid level of scrutiny, applies to race, ethnicity, religion

  • Intermediate scrutiny - applies to laws based on a person’s sex

    • Court has at times indicated it will apply “a heightened intermediate scrutiny” for laws based on sex

  • Rational basis - lowest level of scrutiny, still applies formally to laws aimed at sexual orientation: though the Court has not declared sexual orientation to be a suspect class, it appears to be treating sexual orientation as suspect

Supreme Court Levels of Scrutiny in Equal Protection Cases

Dismantling public discrimination based on race

• Segregated schools: one of the moist consequential forms of segregations from the Jim Crow era was the mandatory separation of schools for whites and blacks

  • Schools for white children receive more public money, many schools buildings for african americans have leaking roofs, sagging floors and windows without glasses, no books teachers did not receive as much training the salary was so low it was hard to do fully qualified ones. 

Brown v the board of education 1954

• Supreme occur decision striking down schools segregated by law conta plessy v ferguson “separate educational facilities are inherently not equal” private schools desegregated in 1976 through Runyon v McCrary

• Schools were desegregated “with deliberate speed” this vagueness allowed for states to delay and resist desegregation southern white legislators and school boards enacted laws and policies to evade or defy the brown desiotion (in the late 1960s the court ended with all deliberate speed” and required an immediate end to segregated schools

• the southern manifesto 1956 : signer by 1010 souther members of congress, urged southerners to exhaust all “lawful means:” to resist the “chaos and confusion” that would result from school desegregation

• De Facto segregation: the separation of horus that happens even though it is not required to sanctioned by law still persists

  • Milliken v bradley (1974) the supreme court struck down detroit's plan to desegregate inner city schools by busing students between the city and the suburbs

Montgomery [AL] bus boycott

• December 1, 1955 Rosa parks arrested for refusing to sit in the back of the city bus (required fro all black citizens by law)

• Boycott of the city busses led toby Martin luther king jr

• 1956 the US supreme court affirmed Browder v Gayle and struck down laws requiring segregated seating in public places.

Loving v Louisiana (1967)

• The Supreme Court struck down all miscegenation laws (forbidding marriage between people of different races) finding no compelling interest for the laws.

Dismantling private discrimination based on race

• Decisions of businesses to refuse to serve customers on hire workers based on their race or sex was beyond governmental authority since the 14th amendment equal protection clause only applies to public (state) discrimination private

• Efforts to dismantle probate segregation rested on two tracks: protests to pressure business. And lobbying congress to pass  legislation that would make private discrimination in commercial matters illegal

Woolworth's lunch counter sit in (1960)

• Foru african american freshman at north carolina agricultural and technical college in greensboro sat down at a whites only counter at woolworths and refuse to leave until they were served

• Sit in spread to other cities

In 1961 martin luther king jr: les protest in birmingham alabama for the integration of downtown businesses

• In 1963, protestors were met with fire hoses and police dogs, reachins which many Americans witnessed on TV.

Civil rights act of 1964

• Prohibited employment discrimination on account or race color religion sex or national origin 

• 14t amendment equal protection clause only applies to state action so court upheld congress authority to ban private discrimination under the interstate commerce law of the constitution (article 1, section 8)

  • Broad interpretation of the interstate commerce clause which rules that even small hotels and restaurants had to abide by the civil rights act

  • Remember the anti federalist concern that broad powers would be given to the national government through the commerce and “necessary and proper” clauses in the constitution 

CH.5: Civil rights- dismantling voting barriers based in race

The end of reconstruction left black men in the south with a constitutional right to vote but a  hostile social and legal environment made it extremely difficult to do so. 

Voting rights act of 1965: gave the federal government the power to prevent discrimination in voting rights

• During the summer of 1964 voting rights supporters from all over the country most of them college students mover south yo help with voter registration drives

  • Klansmen murdered three of the supporters in june 1964

Voting rights act limited barriers to voting

• Requires states with lowest voter registration to receive preclearance form the justice department for money changed to their voting laws

  • In 2013, supreme court (shelby county v, holder) struck down the provision and currently no states need to maintain preclearance

Despite the civil rights and voting rights acts, discrimination still exists by public officials

• Black lives matter movement grew out of a number of incidents between young male african americans and the police, supporters argue that black lives have been devalued by police and juries.

Dismantling private discrimination based on ethnicity

• Ceasar chavez and dolores huerta organized the united farm workers (UFW) union to secure save working conditions an increased wages for farm laborers

• UFW also registered latinos to vote and encourages them to become active politically.

Dismantling discrimination based on gender

• The success of the civil rights movement inspired women to put pressure on the political system to obtain equal rights under the law. 

• Equal pay act: passed by congress in 1963 prohibits employers from paying different wages for the same job based on sex. 

  • Loopholes buried in the EPA significantly reduce its effectiveness and are easily exploited by employers (women earn approximately .79 cents for every dollar a man earns).

• The national organization for women (NOW) (1966) supported abortions right the proposed  equal rights amendment (ERA)

  • Constitution. Amendment would have prohibited the federal government and the states from discriminating based on sex.

  • Passed by congress and sent to the states ratification 

  • Despite an extension of the deadline to 1982, the ERA fell three states short of the three-quarters majority needed for passage. Nevada, Illinois and Virginia ratified after the deadline had passed.

    • ERA achieved the needed number of states in 2020; the House of Representatives voted to extend the deadline, but was not taken up by the state. 

In 1960, when Columbia law student Ruth Bader Ginsburg applied for a supreme clerkship, Justice Felix Frankfurter  chose not to interview her. Ginsburg went on to a distinguished career as a professor of law for the ACLU. She joined the court in 1993 as the second female associate justice. 

Frontiers in civil rights

Congress and the courts have sought  to define the meaning and limits of rights and new groups have argued for their rights.

Sexual orientation

• Stonewall riots: in 1969 police raided a gay bar known as the stonewall inn. Gay people fought back against the police and subsequent “riots” was a galvanizing point in the fight for gay rights.

• Pre-Stonewall: Though stonewall riots are seen by my past as the starting point of the modern gay rights movement, there were many organizations and demonstrations that preceded it in LA.

  • The Mattachine society:  founded in 1950 in Los Angeles, Silver lake. One of the earliest gay movement organizations, published one magazine

  • Black cat tavern was raised by the police in 1967. Several weeks later, demonstrations picketed airside of the tavern decrying police harassment. 

  • In 1968, “homophile” groups organized “gay in” Griffith park.

• In 1986, supreme court in bowers v hardwick declared that gay sexual relations were not a fundamental rights an states could criminalize it. In 2003, in Lawrence v. Texas, court reversed bowers.

• Same sex marriage: in 1993 hawaii supremem court allowed gay marriage

  • In response, congress passed and president bill clinton signed

    • The act defined marriage on the federal level as between a man and a woman. States could legalize gay marriage, but other states and the federal governent did not have to recognize it. (remember: the full faith and credit clause of article IV, section I of the US Constitution).

• In 2015, the court decided Obergefell v. Hodges. By a 5-4 margin, court declared that bans on same sex marriage violates the equal protection clause of the 14th amendment.

  • The owner of the Masterpiece cakeshop in Lakewood Colorado claims that making a wedding cake for a same sex couple violated his christian beliefs. The Colorado courts ruled against him, saying that no one should be turned away from a public business because of whom they love, the supreme court overturned , indicating the baker's free exercise of religion had been violated.

  • A number of states have passed, or are considering religious freedom restoration acts aimed at creating exemptions undermining the LGBT rights and protections.

Transgender rights

• In 2016, the city of charlotte NC passed a local ordinance allowing transgender individuals to use bathrooms that matched their gender identity

• The NC state legislature responded by passing HB2 (The bathroom bills) that prohibited cities such as charlotte dorm expanding on NC existing discrimination laws

• Many businesses and musicians boycotted the state

• NC subsequently rescinded the bill as it pertains to public bathrooms

• The US equal employment opportunity commision (EEOC) rules that denying a person access to bathrooms based on their gender identity is violated. Title VII of the civil rights act

• The Trump administration is considering defying gender as an immutable condition defined at birth. 

John stuart mill “on liberty” published in 1859

Harm principle:

• Self regarding affect only the individual

• Other regarding affect other people

Disability rights

• The American disabilities act (ADA) passed in the 1990 requires public and private employers to make “reasonable accommodations” to disabled individuals and, if possible, modify performance standards to accommodate an employee's disability.

• The individuals with disabilities act (IDEA) passed in 1990 updates in 2004 required states to provide education to all children with disabilities in the least restrictive environment possible

• The ADA covers any disability that substantially limits a major life activity

  • Jerry Lewis

Racial and religious profiling is very controversial

• Profiling refers to the use by police of racials, ethnic or religious characteristics in determining whom to investigate for particular kinds of crime

• Driving while black signifies the feeling among African Americans that they risk being treated as criminals on the roads because of their color, latino drivers are also often profiled.

• Following the attacks of 9/11, profiling of Arabs and muslims increased particularly in matters of airline security.

Voting rights for incarcerated individuals

• Each state makes its own determination

• (formerly) incarcerated individuals are more likely to vote democratic, so the issue has become highly political

Undocumented immigrants

• The 14th amendment's equal protection clause prohibits states from denying to any person, not just citizens, the equal protection of the law. But the level of that protection is politically controversial.

• Prescient Obama issues two executive orders

• Deferred action for parents of Americans (DAPA) to protect from deportation of undocumented residents whose children are citizens and the deferred action for childhood arrivals (DACA) to cover young children who came to the US prior to June 2015.

  • The trump administration rescinded DAPA and attempted to do the same to DACA

• Supreme court reviews laws that discriminate against documented immigrants under the strict scrutiny, but applies to rational basis to undocumented immigrants

  • States may not deny education to undocumented immigrants, and hospitals must provide emergency care through medicaid.

Who are “we the people”?  A nation is said to exist when people in a country have a sense of shared identity due to a common origin, history or ancestry (geer, pg.68).