Amendment process – proposal/ratification

Notes:

Informal away: interpretation by Court

Formal way:

a) Proposal: 2/3 votes each chamber of Congress

convention at request of 2/3 of states (never been used)

b) Ratification: ¾ votes of state legislatures

¾ votes of states on a special convention

WS2: the two stages that are involved while amending the Constitution are proposal and ratification. Article 5 of the Constitution deals with the Amendment process

9. Marbury v. Madison; judicial review:

Notes: Supreme Court has 2 types of jurisdiction (Article 3 of Constitution): original (directly) and appellate. Judiciary Act of 1789 was unconstitutional as it expanded the jurisdiction of the Supreme Court without following the amendment process; it also established the federal court on the national level

WS2:the power of Judicial Review comes from it

HO: “Judicial review” is the power of the courts to declare an act of a legislature constitutional or unconstitutional.

“Writ of mandamus”: an order to a government official to carry out a duty of his or her office. Judiciary Act of 1789 (Section 13) empowered the Supreme Court to issue such writs as an act of original jurisdiction.

Article 3, Section 2 of the Constitution specifies the circumstances under which the court possesses original jurisdiction:

a) In cases affecting ambassadors or foreign ministers

b) In cases in which the state was a party

John Marshall created for the court the power of judicial review – to be the final umpire of what the constitution means

What happened?

John Adams before leaving the presidential office, appointed Supreme Court judges. In haste, his administration failed to deliver the commissions of 4 newly appointed justices for DC. On orders of new President Jefferson, Madison (the nee secretary of State) refused to deliver the commissions and William Marbury sued to the Supreme Court.

Questions:

a) Does Marbury have a right to his commission? YES

b) Are there laws that give Marbury remedy? YES (Judiciary Act of 1789)

c) Does the Supreme Court have the authority to give Marbury his commission? NO (jurisdiction given by Judiciary Act was unconstitutional)

10. Ex post facto law:

Makes an act illegal only after it has already happened. The original Constitution bars it

11. Necessary and proper clause/elastic clause:

The clause in Article 1, Section 8, that grants Congress the power to do whatever is necessary to execute its specifically delegated powers. It is called elastic clause because it provides flexibility to our constitutional system. It was first used in the Supreme Court decision of McCulloch vs. Maryland

Notes: Implied powers are based on this clause. It gives the national government power to create national bank and institutions (IRS)

WS3: The elastic clause is also known as the necessary and proper clause

12. Confederal system:

A system consisting of a league of independent states, in which the central government created by the league has only limited powers over the states. The central government has no ability to make laws directly applicable to member states unless members explicitly support such laws

WS1,3: confederation: a voluntary association of independent states; a league of independent states, where the central government has only those matters expressly delegated to it

Notes: Confederal system (1%)

Examples: Switzerland, European Union (28 countries)

European union:

a) 19 countries use euro

b) Central government is the Senate

European Unions institutions:

· Commission

· Court of Justice

· Central Bank

· Parliament

· Council of Ministers

13. Inherent powers:

These powers derive from the fact that the United States is a sovereign power among nations, and so its national government must be the only government that deals with other nations

Notes: originated in Constitution, case law, Supreme Court decisions and applied to the national government. In the very concept of a nation every country must have these to ensure its integrity and survival in the international system.

Examples: to wage war, to trade, to regulate immigration, to make, to enter into treaties, to acquire lands

WS3: inherent powers are those powers that are derived from the fact that the United States is a sovereign power among nations

14. Denied/prohibited powers:

Any power not granted expressly or implicitly to the federal government by the Constitution is prohibited to it

Example: the national government cannot impose taxes on goods sold to other countries (exports)

WS3: the denial of power to state or national government is referred to as prohibited

Notes: applies to national government through

a) Article 1, Section 9: habeas corpus, ex post facto laws, bills of attainder

b) Bill of Rights

to states through:

a) Article 1, Section 10: can’t coin money, enter into treaties, regulate commerce between themselves

b) Article 4 (full faith and credit, immunities and privileges): can’t refuse to treat citizens of other states equally

c) Bill of Rights: through incorporation process on a case by case basis by the Supreme Court

15. Cooperative federalism:

A model of federalism in which the states and the national government cooperate in solving problems. A marble cake as the two types of cake are intermingled, and any bite contains cake of both flavors

WS3: the concept of cooperative federalism was coined by political scientists after the administration of Roosevelt

16. Interposition:

Notes: one level of government between citizens and other levels of government

Kentucky and Virginia resolutions: if the national government does something unconstitutional, the states have the right to come between the national government and citizens to protect citizens:

a) States have sovereignty

b) States want the literal interpretation of Constitution

c) States have the last say if the national government does something unconstitutional

Resolution: new government repealed laws

17. Process of incorporation/incorporation theory:

The view that most of the protections of the Bill of Rights apply to state governments through the Fourteen Amendment’s due process clause

Notes:

Incorporation:

1. Total: all Amendments in Bill of Rights applicable to states

2. Selective: case by case basis

Incorporation is a long process and there are still Amendments that are still not incorporated partially or wholly:

a) 3d Amendment: whole

b) 5^th Amendment: section (right to an indictment by a grand jury)

c) 7^th Amendment: whole

d) 8^th Amendment: section (protection against excessive fines)

18. Due process:

14^th Amendment: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Individuals may not be jailed without due process of law. The 14^th Amendment specifies that all persons (as opposed to all citizens) shall enjoy “due process of law”. Government cannot deport someone without due process

19. Clear and present danger test:

Expression may be restricted if evidence exists that such expression would cause a dangerous condition, actual or imminent, that Congress has the power to prevent

20. Right to privacy:

Women’s constitutionally protected right to privacy includes the right to have an abortion; states cannot restrict right to abortion during first 3 months (Roe v. Wade). No explicit reference is made anywhere in the Constitution to a person’s right to privacy. 9^th Amendment: if right is not specifically mentioned in Constitution, it does not mean that this right is denied to people

21. Undue burden:

22. Miranda v. Arizona:

Miranda was charged with kidnapping and rape of a young woman. He confessed and as convicted, but his lawyer appealed arguing that the police had never informed Miranda that he had a right to remain silent and a right to be represented by counsel. Conclusion: Miranda rights: right to remain silent (anything you say will be used in a court), right to speak to attorney (if you do not have enough money, government will provide one), if you understand the rights.

Notes: this case established procedural restraints designed to protect people’s subject to police interrogations.

1. Police have to read your rights, right to remain silent: 5^th Amendment

2. Right to attorney, if you understand your rights: 6^th Amendment

It played a significant role: shift from individual knowing of rights to governmental obligation to explain them; protection against self-incrimination

23. Patriot Act – arguments of both supporters/critics:

A major goal of the Patriot Act was to lift interagency barriers to cooperation, it also eased restrictions on government’s authority to investigate and arrest suspected terrorists

+) necessary safety measure to prevent future terrorist attacks

-) the Act endangers long-established civil liberties guaranteed by the Constitution

-) this provision contradicts the 1^st Amendment by making free speech a crime

-) no one would be allowed to blow the whistle on abuses of the government’s powers

-) potential breach of the 8^th Amendment – the terrorist suspect can be summarily denied bail

24. Representative democracy:

A form of government in which representatives elected by the people make and enforce laws and policies; may retain the monarchy in a ceremonial role. Is also known as democratic republic.

Main principles:

a) Universal suffrage: the right of all adults to vote for their government representatives

b) Majority rule: basic principle of democracy asserting that the greatest number of citizens in any political unit should select officials and determine policies

c) Guarantees of minority rights

d) Free, competitive elections

WS1: the US Constitution creates a form of republican government known as democratic republic/representative/indirect democracy

In democratic nations, most citizens comply with the law because they accept the authority of the government and its officials. In a representative democracy, the people hold the ultimate power over the government through the election process. To ensure that majority rule does not become oppressive, modern democracies provide guarantees for minority rights

25. Constitution:

The US Constitution sets down the fundamental structure of the government and the limits to its activities. Constitutional Convention: convention at Philadelphia in May 14, 1787

Notes: US Constitution is the shortest one in the world. Constitution is a written document that serves as a benchmark and through which we define and measure the government’s actions

What does Constitution illustrate?

1. It establishes authority (central/national/federal government)

2. It establishes authority that is nationally scope and it also retains state authority (Great compromise)

3. Legitimizes government by consent: republic – sovereignty lies with people

4. It illustrates how government will be organized: separation of powers, checks and balances

5. It articulates the specific limitations on government

Why a Constitution?

1. It establishes the rules of the game:

a) Politics is the game – authoritative allocation of values

b) Virtue – there’s nothing hidden

2. It can provide a symbol for the very concept of a nation: it provides continuity and tradition that transcends politicians

3. It allows society to state where it goals are (preamble of Constitution, Civil War Amendments: 13^th, 14^th, 15^th

There are 7 Articles and 27 Amendments

Articles:

1. Legislative branch represents people and is directly elected (Congress: House of representative and Senate)

2. Executive branch is elected by electoral college

3. Judicial branch: Federal Court is established by Congress

4. Relations among states:

a) Full faith and credit clause: respect laws of the other states; legalization of same sex marriage in Hawaii

b) Privileges and immunities clause

c) Extradition

d) Fugitive slaves

e) Admission of territories: creation of new states is decided by Congress

f) Republican form of government: you are guaranteed to have a right to elect

5. Amendment process

6. National Supremacy:

a) Debts + obligations

b) Supremacy clause: federal law over the state

c) Oath of office

7. Ratification: 9 out of 13 states have to ratify Constitution

The Constitution:

1. Legislative branch

Section 8: The powers of Congress

Section 9: The powers denied to Congress

Section 10: The powers denied to states

2. Executive branch

3. Judicial branch

Section 2: Jurisdiction

4. Relationship among the states:

Section 1: Full faith and credit

Section 2: Treatment of citizens

Section 3: Admission of states

Section 4: Republican form of government

5. Methods of Amendment

6. National Supremacy:

Clause 1: debts

Clause 2: national law over the state law

Clause 3: Oath of office

7. Ratification

26. Articles of Confederation:

According to Articles of Confederation, people derived authority from the states. The second Continental Congress established the government of the states – the Congress of the Confederation which was a unicameral assembly with one vote from each state.

Notes:

(–) of Articles of confederation:

1.Weak central government

2.Stated could do whatever they wanted

3.Congress could declare war, but needed consent of states to pay for it

4.No system of national courts

5.Lack of a government to raise money for the militia (*)

WS2: The most fundamental weakness of the Articles of Confederation as the inability of the Congress to raise money for the militia. The government under the Articles of Confederation included a weak central government

27. Amendments 1-10, 14, judicial review (6. Bill of Rights + 9. Marbury v. Madison):

Fourteenth Amendment guarantee the civil liberties. Incorporation process happens through the use of due process of law clause. First incorporated clause was freedom of speech of 1^st Amendment in Gitlow v New York

28. McCulloch v. Maryland:

Marshall ruled that no state could use its taxing power to tax a part of the national government

Notes: McCulloch v. Maryland case defined implied powers and federalism

a) If the federal government has powers except the enumerated powers (Article 1, Section8)

b) What meaning will be given to National Supremacy

Conclusion:

1. National government prevails

2. Courts are recognizing implied powers and are umpires of the federal system

3. Every implied power has to be related to enumerated one

WS3: The case McCulloch v. Maryland (1819) set a precedent for a broad interpretation of the implied powers of Congress

HO: What happened?

Congress incorporated a national bank of the US. State of Maryland taxed it, but McCulloch, the cashier of federal bank, refused to pay. Maryland took McCulloch to Court.

a) Has Congress the power to create and incorporate a bank of the United States?

Federal bank had the power of “necessary and proper clause” of Article 1, Section 8 while the 10^th Amendment does not limit Congress’s power to those expressly delegated

b) Has Maryland a right to levy a tax against the bank chartered by Congress?

Result:

1. A statement about the meaning of federalism, the national government prevails. Article 6: supreme law of the land (supremacy clause)

2. The Court expressly adopted the implied powers theory by Hamilton and rejected the Jeffersonian theory that the powers of Congress were to be interpreted strictly. Congress has explicit (enumerated) + implied powers

3. Supreme Court as umpire of the federal system

29. Bill of attainder:

Laws that impose punishment on named individuals without trial. Constitution prohibits it

30. Federalism:

In a federal system, authority is divided between a central government and regional, or subivisional, governments (often called constituent governments). Both governments act directly on people through laws and actions of elected and appointed officials. Federalism retains state traditions and local powers while establishing a strong national government

Notes: federalism is a system of government in which two or more units (levels) govern over the same people and territory

Example of US levels:

1. National (1): flight rules (baggage)

2. State (50): driven license

3. Local (89,000+): party

Federal governments constitute 18-20%

Examples:

· Mexico

· Germany

· Canada

· Brasil

· Russia

National government powers are mentioned in Articles 1,2,3 and 6 while states’ powers in 10^th Amendment. Supreme Court decides the allocation of powers

Arguments in favor of Federalism:

1. Promotes diversity: those who’re closer to people can better resolve the issue concerning citizens

2. Allows for more levels of government: more opportunities to participate

3. Power is diffused: several branches of government allow for better protection of individual rights and liberties; people are double protected by federal and state law

4. Allows for more experimentation

5. Better serves for heterogeneous society

Arguments against federalism:

1. Overshadow the minorities: majority votes which leads to racial inequality, discriminations

2. Local/special interest groups frustrate the national government

3. Closer government (local/state) may not serve equally/treat people equally

4. Might be difficult to achieve unity as US have large territories and diverse population

WS3: to the framers of the Constitution, the appeal of Federalism was that it retained state traditions and local power while it established a strong national government

31. Enumerated powers:

Powers specifically granted to the national government by the constitution. The first seventeen clauses of Article 1, Section 8, specify most of the enumerated powers of the national government. Enumerated powers are also called expressed powers as these are powers expressly delegated to the national government

Notes:

Enumerated powers (explicit) originate in Constitution

1. National:

a) Article 1, Sec 8 (Powers of Congress): power to coin money, declare war, levy and collect taxes, regulate interstate commerce

b) Article 2, Section 2: treaties and appointments

c) Article 3, Section 2: jurisdiction: original and appellate (rule of 4)

2. States:

a) Article 1, Section 4: times, manners, places of holding elections

b) Article 2, Section 1: power to choose electors (members of electoral college)

c) Article 5: ratifies constitutional Amendments:

Proposal: national Ratification: state

state state

WS3: Powers that are specifically delegated to the national government by the Constitution are known as enumerated powers

32. Reserved powers:

Rights and powers are reserved to states by 10^th Amendment. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, or to the people. It includes police power: the authority to legislate to the protection of the health, morals, safety, and welfare of the people. In the United States, most police power is reserved to states

Notes: reserved powers are not delegated to the national government. They apply only to states and originate in 10^th Amendment

Example: police power: states have the authority to legislate for health, morals, safety, well-being of its citizens. As such, they control education, marriage contracts, commerce

WS3: The 10^th Amendment establishes the reserved powers to the states. The constitutional concept of police powers is created by the 10^th Amendment

33. Dual federalism:

A model of federalism in which the states and the national government each remain supreme within their own spheres. The doctrine looks on nation and state as co-equal sovereign powers. Neither the state government nor the national government should interfere in the other’s sphere. It is a layer cake as state and national government are viewed as separate entities

WS3: The doctrine that emphasizes a distinction between federal and state spheres of governmental authority is referred to as dual federalism. Dual federalism emphasizes a distinction between federal and state spheres of authority

34. States’ rights:

Critics of federalism also argue that too many Americans suffer as a result of the inequalities across the states. Individual states differ markedly in educational spending and achievement, crime and crime prevention, and even the safety of their buildings

Notes: this conflict is still going on

1) States have to resist federal encroachments

2) All civil liberties are equal in every state

35. Nullification:

Notes: nullification: justification for the confederacy (strongest challenge)

John C. Calhoun

1832: Tariff Acts: tax on imports

a) States remain sovereign entities: they have authority and power, can declare war and void laws within borders

b) If the national government persists, states can leave

Resolution: Civil War Outcome that showed that states cannot secede

36. Establishment clause:

The part of the first Amendment prohibiting the establishment of a church officially supported by the national government. It determines the legality of given state and local government aid to religious organizations and schools, allowing or requiring school prayers, and teaching evolution versus creationism. Thomas Jefferson said that it was created to separate church and state.

In 1971, in Lemon v. Kurtzman, the Court ruled that direct state aid could not be used to subsidize religious instruction. The Court in the Lemon case gave its most general pronouncement on the constitutionality of government aid to religious schools, stating that:

· the aid had to be secular (nonreligious) in aim,

· it could not have the primary effect of advancing or inhibiting religion, and

· the government must avoid “an excessive government entanglement with religion.”

37. Right to counsel:

6^th Amendment provides right to counsel: any accused person has the right to a lawyer

38. Gideon v. Wainwright:

In Gideon v. Wainwright the Court held that if the person is accused of a felony and cannot afford an attorney, an attorney must be made available to the accused person at the government’s expense. Before, only criminal defendants in capital (death penalty) cases automatically had a right to free legal counsel

Notes:

a) Incorporated 6^th Amendment of criminal felony cases to states

b) Actions of one individual are protected

c) Supreme Courts held that counsel should be provided to everyone

39. Roe v. Wade:

In Roe v. Wade, the United States Supreme Court accepted the argument that the laws against abortion violated right to privacy under the Constitution. The Court held that during the first trimester (three months) of pregnancy, abortion was an issue solely between a woman and her physician. The state could not limit abortions except to require that they be performed by licensed physicians. During the second trimester, to protect the health of the mother, the state was allowed to specify the conditions under which an abortion could be performed. During the final trimester, the state could regulate or even outlaw abortions except when they were necessary to preserve the life or health of the mother

40. Public safety exception:

Notes: public safety exception comes from the case New York v. Quarles. Police officer askes the suspect where is the gun without reading his rights. The lawyer appealed to Supreme Court, but Supreme Court upheld the lower court decision stating that consideration of public safety under certain circumstances outstands the defendant rights (balance between order and freedom: order prevailed)

41. Direct/indirect democracy (24. Representative democracy):

1. Direct democracy is the system of government in which political decisions are made by the people directly, rather than by their elected representatives; probably attained most easily in small political communities. Legislature is composed of all of the citizens. Madison feared that pure, or direct, democracy would deteriorate in mob rule

2. Indirect democracy/representative democracy/democratic republic (discussed earlier)

Notes: direct democracy suits smaller communities, while indirect democracy is better for the national level

WS1: The ancient Greek city-state of Athens is often considered to be the historical model for direct democracy

42. Conservatism:

A set of beliefs that includes the limited role for the national government in helping individuals, support for traditional ideals and life choices, and a cautious response to change. Conservatism is as old as politics itself. Conservatives strongly endorse liberty, but they generally define it as freedom from government support of nontraditional ideas. They believe that private sector probably can outperform the government. Therefore, they usually oppose government’s interventions in economy. The put low value on equality. They favor tax-rates cuts and oppose antipoverty spending

WS1: Within the American electorate, one of the two ideological viewpoints that is most commonly held

Date: 2016-04-22; view: 550