Professional Documents
Culture Documents
Merritt
Foundations
John Locke Purpose of government is to protect life, liberty and property
Federalist Papers Madison Federalist 10 and 51
o Control the effect of factions and control the power of the national
government
Separation of Power, Checks and Balances, and Bill of Rights
Implied Powers Powers not specifically enumerated
Derived from Supremacy Clause (Article VI) McCullough v. Maryland
Constitutional safeguards Delegates reflection of cynical view of government
Separation of Power
Checks and Balances
Bill of Rights added 1791 as part of a deal
Formal and informal ways to amend the Constitution
Formal
o 2/3 vote in each house of Congress or national convention called by
Congress at request of 2/3 of state legislatures
o Ratification of state legislatures or special state ratifying convention
o President has NO formal role in amending process
Informal
o Judicial interpretation Marbury v. Madison
o Political practice the growth and influence of political parties
o Presidential actions Executive order, Executive agreements
Federalism
Dual - ends approximately 1930
o McCullough v. Maryland implied powers
o Gibbons v. Ogden Elastic Clause use of Commerce Clause
o USe of Commerce Clause recently struck down @@@@@Case
Cooperative 1930-present
o Creative mainly in the area of civil rights and environmental areas
o Coercive unfunded mandates and preemption
Federal grant system Categorical v. Block
Unfunded mandates
Advantages and disadvantages of Federalism
1. Advantages
More opportunities for individual political participation
More access to government
2.
o Strengths
o Influence of political agenda
o Speak directly to the citizens
o Deploy troops for 60 days Gulf of Tonkin Resolution 1964 v. War
Powers Act 1973
o Make treaties
o Nominate ambassadors, judges, etc.
o Convene and adjourn Congress
o Veto Legislation
o Pardon power
o Weaknesses
o Cannot declare war
o No Presidential budget Must rely on legislature (House of
Representatives) for funding
o Impeachment
o Complex issues can not be informed on all issues
o Excessive media attention
o Impeachment House Draws up Articles of impeachment, Senate conducts trial
need 2/3 majority, Chief Justice is the Presiding judge
o Veto Power President can veto legislative actions, may be overridden with a 2/3
majority of both houses of Congress
o Line item veto President can line out sections of bills he does not like
Originally aimed at spending bills declared
Unconstitutional 1997 Clinton v. NYC
Bureaucracy all the governmental agencies
1. Independent Regulatory agencies
a. ICC, OSHA, NLRB, FTC, SEC
2. Cabinet
3. Independent executive agencies Serve a narrow scope and function than other
agencies, not regulation, more administrative
a. GSA, NASA, NSF
4. Government corporations
a. Amtrak, US Postal service
o Weber Characteristics of bureaucracy
o Hierarchical authority structure
o Task specialization
o Extensive rules
o Clear goals
o Merit principle
o Impersonal
o Unique American bureaucratic characteristics
o Divided supervision
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Judiciary
1. Dual court system National and State levels
Within each level 3 parts
National
- District
- Appellate
- Supreme Court
2. Cases start at the lowest level
a. Most settled at the District level
b. Cases may be appealed to the appellate level for only procedural issues or
challenges to Constitutional rulings no new evidence introduced
c. Supreme Court usually hears about 90 cases annually
1. Writ of Certiorari SC grants a case to be heard
2. Rule of 4 if 4 of the justices want to hear a case, the case is heard
3. Original jurisdiction Very few cases are OJ at the SC level
o Cases dealing with the President
o Conflicting rulings from district courts
o Cases between states
3. Marbury v. Madison Judicial review Unwritten amendment to Constitution
4. Judicial Precedent Stare Decisis Let the ruling stand: The practice of following `
previously decide case law
5. Judicial Activism v. Judicial Restraint
The belief that judges use their position to legislate
Warren Court 1953-1969 Brown v. Board Activism?
Arguments for activism
o Courts can fix a pressing need left unmet by the political process
o Constitutional issues arise not addressed by the Constitution
o Constitution is too vague, must have room for interpretation
Arguments for restraint
o Justices should rule on existing law
6. Executive and Judiciary appointments
Must have a 60 member majority or get a nominee to a vote
Justices that are too far right or left usually are not confirmed
Presidential considerations in nominee selection
o Experience
o Political leanings
o Judicial record
Political parties Serve as linkage from citizens to the government
1. Grown weaker since 1970
o More voters identify themselves as independents
o Less direct control of Congress
o Reform more restriction on funding
o More diverse voters with cross cutting allegiances
rd
3 Parties
Name recognition difficult
State laws make it difficult for 3rd parties to get on ballot
Often denied debates with other major party candidates
Lack strong organizational/cohesive party backing
Very grass roots organized
Often times issues co-opted by major party
Elections and Campaigns
1. Political participation
The primary way most citizens participate is through voting
Other ways: protests, civil disobedience, letter writing, contacting legislators,
special interest groups
Party dealignment gradual moving away from a specific political party
Party realignment majority of electorate switch party affiliation rare
occurrence, most typically associated with a crisis, 1860, 1932
Party dominance
o Federalists 1810
US well known for low voter turnout usually in the mid 40% to 50% range
73% of Americans say they voted in 2000 Pres election yet only 50% did
Who participates
Religious involvement as religious involvement increases so does participation
Race and Ethnicity Whites vote in higher % than blacks and Latinos
Age 18-24 year least likely to vote; the 45 year old and above vote in largest %
Gender since 1992 women vote in larger # than men, but PSs say rate is =
2 Party system Lower competition lower voter turnout; rates increase greatly
during Presidential elections
Since all people fit in various demographics, cross cutting cleavages form :
Would a 45 year old black female, regular church goer, with a PhD be more or
less likely
to vote than a white male, with a high school dropout, heathen, 23 year
old
Expanding Suffrage
15th Amendment
Jim Crow Laws attempts to limit black voters: in place through the
1960s; Plessey v. Ferguson Separate but = IS Constitutional
Civil Rights Act 1964 and Voting Rights Act 1965 Kills Jim Crow
Commerce clause
Measured 2 ways
Proportion of registered voters that vote v. % of eligible voters that vote
States determine voter eligibility, no state allowed to impose more than a 30 day
waiting period
1.
Why would over 70% of US citizens say they voted in the last Presidential
election, when in reality it was only approximately 50%
2.
Is low voter turnout a Bad thing?
3.
Why do younger citizens vote in smaller numbers than older citizens? How do
you propose to increase voter turnout for the 18-24 year old demographic?
4.
Do you believe 527s increased the vote or did citizens recognize the significance
of voting?
Elections and Campaigns
Functions of elections
Candidate who wins the most votes wins: In most elections a plurality is all that
is required not a majority
Closed Primary Only party members are allowed to vote in their partys primary
(most)
Blanket Primary Can select different candidates for each office from both
parties
More people vote in General elections than in primaries 50% of eligible v. 25%
eligible
Congressional v. Presidential elections
1976 Buckley v. Valeo: No limit on personal spending for your own campaign
- Ross Perot 1992 and 1996
Soft Money - $ not specified for a candidate but given to party for Party
building
Not a special interest or PAC: Independent but partisan groups raised significant
amounts of $ for both parties; ran negative campaign ads - can not say do not vote for
or vote for candidate X
Realignment Significant shift in the way a large group of voters from 1 party to
another
Running candidates for office: Parties help fund and organize candidates
Informing the public: Provide voters information on policy and candidates issues
Organize government: Coordinate governmental policy; provides cohesion among
50 disparate states
History
Winner take all system single member district, pluralist electoral system; no
proportion
North south tension: Emergence of Republican Party will dominate through 1932
- End of Democratic dominance
- Characterized by Laissez Faire economic policy
2004
- Red v. Blue, West, Midwest, and Northeast v. Rest of nation
- Stronger party identification
- Breakup of the Solid South Republicans gain control of Southern states
- National security and religion play significant role; creation of new religious
alliance
Questions:
1.
Is the dominance of a 2 party system antithetical to the true essence of democracy
2.
What is the most significant factor causing party realignment/dealignment? Do
you agree that the 2004 election was a realignment?
Interest Groups
Interest group Organization of people who enter the political process to achieve a goal
Parties work through the electoral process; Parties run candidates IGs and PACS
support candidates
Parties generate and support a broad spectrum of policies IGs and PACS very
specific policy issues
PACS and 527s
PACS are the political arm of interest groups, legally entitled to raise voluntary
funds to candidates or parties
K Street
Lobbyists
General interest groups v. specific
Types of membership
Individual v. Organizational
Ralph Nader
Lobbying
- contacting Government officials
- Meeting and socializing
- Lunches
- Testifying at Congressional hearings
- Lobbyists can provide expert testimony and information to Congressman
which sometimes Congressman do not have time to get on their own
Electioneering
- Supporting candidates via $
- PACs help pay costs of candidates sympathetic to their issue
Litigation
- IGs will sue to bring their issue to the fore
- Successful in Civil Rights legislation of 1950s and 60s
- Brown v. Board I and II
- Amicus Curiae briefs Friends of the court: Written arguments to courts
supporting a particular cause, issue or case
- Class Action suits similar plaintiffs file as one large group: Brown v. Board
Foundation grants Ford Foundation, Bill and Melinda Gates Foundation, EDF
Size AARP
- Free Rider The larger the group - more likely members will think others will
do work
Intensity Single issues groups are most intense: Gun control, Pro choice/life
Government officials often times end up working for IGs that once lobbied them
Questions:
1.
Are IGs dangerous to a democratic society or is it simply as Madison predicted in
Federalist 10?
2.
Is there too much $$$ in Washington? Do lobbyists have too much influence?
3.
Does an IG need all 3 parts to be effective? Consider the AARP v. NRA
Public Opinion
Measuring public opinion Relatively new science
Today CNN, Fox, CBS, USA Today, NYT all sponsor polls
Representative Sample
- Random Sampling Usually 1000 1500 respondents = a +/- 3% error rate
Cost v. Accuracy Call in polls are not reliable but are cheap
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Push polling Polls intentionally designed to make voters think a specific way
Results are not generally recorded, really have no meaning, poll is only intended
to make voters react
John McCain 2000 SC primary; 2002 Ga. Senate election Max Cleeland
Questions:
1.
Do politicians place too much emphasis on polling?
2.
In what ways may polls be misleading? What is critical for polls to be effective?
Civil Liberties
Personal rights and freedoms that the government cannot abridge, either by law,
constitution, or judicial interpretation
Limits power of government over the individual
Incorporation Doctrine
The protections of the 14th Amendment extend also to the citizens within
the state
Barron v. Baltimore 1833 National power limited
14th Amendment 1868
Gitlow v. NY 1925 Free speech extends to citizens within the state
Near v. Minnesota 1931 - Free press and Due Process extends to states
1st Amendment
Freedom of Religion
Free Exercise
When secular law conflicts with religious practice Free exercise is often denied
Free Speech
Obscenity, libel, lewdness, and fighting words are NOT protected
Alien and Sedition Acts sunset prior to Constitutional ruling
War times Extraordinary circumstances
Civil War Lincoln arrests newspaper editors
Sedition prosecutions common through 1910s
Schenk v. US 1919 Clear and Present Danger NOT protected
1969 Direct incitement Government prove a likelihood of imminent harm
to be limited
NYT v. Sullivan 1964 public figures must prove actual malice to prove
libel and slander
New Problems for SC Internet speech and pornography
Symbolic speech Tinker v. Des Moines 1969
Prior Restraint NYT v. US 1971 NYT could not be stopped from printing secret
documents
2nd Amendment
US v. Miller 1939 limitations placed on Automatic weapons and sawed off
shotguns
Last time SC directly ruled on 2nd Amendment
Recently ruled provisions of Brady Bill waiting periods and background checks as
unconstitutional
Violates State Sovereignty
Rights of criminal defendants 4th, 5th , 6th , and 8th
4th Search and seizure
Unreasonable search and seizure
Warrantless Searches
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Plain view
areas of immediate control
airports
hot pursuit
exigent circumstance
open fields
consent
stop and frisk Terry law
Weeks v. US 1914 Exclusionary rule Fruit of the forbidden tree illegally obtained
evidence is inadmissible
Good Faith exceptions
Mapp v. Ohio Incorporation Doctrine for illegal searches
5th amendment Miranda v. Arizona 1966
6th Amendment Gideon v. Wainwright 1963 Lawyer necessity not luxury - Incorp Doc
8th Amendment Furman v. Georgia 1972 DP uncon if arbitrary and capricious
Gregg v. Georgia 1976 Georgia DP is Constitutional
Court reluctant to overrule state decisions
Exceptions
1. Age
2. Mental ability
Privacy rights
Abortion Roe v. Wade 1973 States cannot outlaw, can limit and restrict
Right to Die
Homosexuality Bowers v. Hardwick and Lawrence/Gardner v. Texas
Humphrey's Executor v. United States 1935
Did section 1 of the Federal Trade Commission Act unconstitutionally
interfere with the executive power of the President?
United States v. Nixon 1974
Is the President's right to safeguard certain information, using his
"executive privilege" confidentiality power, entirely immune from
judicial review?
U.S. Term Limits v. Thornton - 1995
Can states alter those qualifications for the U.S. Congress that are
specifically enumerated in the Constitution? Are states qualified to
set term limits on members of the United States Congress?
Clinton v. Jones - 1997
Is a serving President, for separation of powers reasons, entitled to
absolute immunity from civil litigation arising out of events which
transpired prior to his taking office?
Printz v. United States - 1997
Using the Necessary and Proper Clause of Article I as justification, can
Congress temporarily require state law enforcement officials to
regulate handgun purchases by performing those duties called for
by the Brady Bill's handgun applicant background-checks?
Japanese descent?
Discrimination Based on Gender
Craig v. Boren 1976
Did an Oklahoma statute violate the Fourteenth Amendment's Equal
Protection Clause by establishing different drinking ages for men
and women?
United States v. Virginia - 1996
Does Virginia's creation of a women's-only academy, as a comparable
program to a male-only academy, satisfy the Fourteenth
Amendment's Equal Protection Clause?
Frontiero v. Richardson - 1973
Did a federal law, requiring different qualification criteria for male and
female military spousal dependency, unconstitutionally discriminate
against women thereby violating the Fifth Amendment's Due Process
Clause?
Affirmative Action
Regents of the University of California v. Bakke - 1978
Did the University of California violate the Fourteenth Amendment's
equal protection clause, and the Civil Rights Act of 1964, by
practicing an affirmative action policy that resulted in the repeated
rejection of Bakke's application for admission to its medical school?
Adarand Constructors v. Pena - 1995
Is the presumption of disadvantage based on race alone, and
consequent allocation of favored treatment, a discriminatory
practice that violates the Fifth Amendment's Equal Protection
Clause?
Grutter v. Bollinger - 2003
Did the University of Michigan Law School's use of racial preferences
in student admissions violate the Equal Protection Clause of the
Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?
Discrimination Based On Sexual Orientation
Bowers v. Hardwick - 1986
Does the Constitution confer a fundamental right upon homosexuals
to engage in consensual sodomy, thereby invalidating the laws of
many states which make such conduct illegal?
Romer v. Evans - 1996
Did Amendment 2 of Colorado's State Constitution, forbidding the
extension of official protections to those who suffer discrimination
due to their sexual orientation, violate the Fourteenth Amendment's
Equal Protection Clause?
Lawrence v. Texas - 2003
Did the criminal convictions of John Lawrence and Tyron Garner under
the Texas "Homosexual Conduct" law, which criminalizes sexual
them of their right to counsel and their protection against selfincrimination violate the Fifth Amendment?
Capital Punishment
Furman v. Georgia - 1972
Does the imposition and carrying out of the death penalty in these
cases Furman v. Georgia, Jackson v. Georgia and Branch v. Texas constitute cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments?
Gregg v. Georgia - 1976
Is the imposition of the death sentence prohibited under the Eighth and
Fourteenth Amendments as "cruel and unusual" punishment?
Penry v. Johnson - 2001
Was a Texas trial court's supplemental instruction on mitigating
evidence of mental retardation under the state's "special
circumstances" for sentencing in capital murder cases to a jury
constitutionally adequate? Does the admission into evidence of
statements from a psychiatric report based on an uncounseled
interview with the defendant violate the Fifth Amendment's privilege
against self-incrimination?
Roper v. Simmons - 2005
Does the execution of minors violate the prohibition of "cruel and
unusual punishment" found in the Eighth Amendment and applied to
the states through the incorporation doctrine of the 14th
Amendment?
Cruel and Unusual Punishment in Non-Capital Cases
Harmelin v. Michigan - 1991
Is a statutorily mandated sentence that does not allow for
consideration of mitigating factors a violation of the Eighth
Amendment's protection against cruel and unusual punishments?
Extra-Legal Jury Influences, Pretrial Publicity
Sheppard v. Maxwell - 1966
What threshold must be crossed before a trial is said to be so
prejudicial, due to context and publicity, as to interfere with a
defendant's Fifth Amendment due process right to a fair trial?
Criminal Procedure
Powell v. Alabama (1932)
The Supreme Court ruled that the indigent of society, when charged
with a capital crime, must be given competent counsel, at the
expense of the citizens.
Betts v. Brady (1942)
Betts was indicted for robbery and detained in a Maryland jail. Prior to
his trial, he asked for counsel to represent him. This request was
8. 14th Amendment Civil War Amendment 1868: extends the many of the
provisions of the Bill of Rights to the states
9. Gramm-Rudman-Hollings Act First binding constraint on federal spending,
placed caps on federal spending, created the first balanced budget
10. Civil Rights Act 1964 Made racial discrimination in public places, theatres,
restaurants, hotels, illegal Employers must provide equal employment
opportunities; Federal funding for projects could be cut if discrimination was
evident; extension of commerce clause, example of Cooperative Federalism
11. Voting Rights Act Removed all state barriers to voting: End of literacy tests,
grandfather clause, poll taxes
12. Equal Pay Act Prohibits wage discrimination between men and women doing an
equal job, in substantially same establishment
13. Equal Rights Act Was proposed but not ratified, that would guarantee equal
rights regardless of sex
14. Title IX 1973 Prohibits sex discrimination in education; normally extends to
athletics
15. Americans with Disabilities Act (ADA) 1990 Federal law that requires public
places to be handicap accessible, including schools, has been defined as physical
and mental disability