Articles 1-7 (25. Constitution)

44. Republic (24. Representative democracy):

A form of government in which sovereign power rests with the people, rather than with the king or monarch

Notes: republic form of government (indirect democracy, democratic republic):

a) Limited

b) Representational (legitimate only when represent the people)

c) People are sovereign (people create the power/authority of government)

Auxiliary precautions in Federalist Paper #51 created a republican form of government as one of the restraints on government

WS1: Democracy, liberty, equality, and property are concepts that lie at the core of American political culture. Government by consent is the idea that government and laws derive their legitimacy from the consent of the governed

45. Federalists/Anti-Federalists:

A) Federalists: the name given to one who was in favor of the adoption of the U.S. Constitution and the creation of federal union with a strong central government. They were mostly wealthy bankers, lawyers, and merchants living in urban area. Federalists attended the Constitutional Convention

B) Anti-federalist: and individual who opposed the ratification of the new Constitution and opposed strong central government

Notes: Anti-Federalist arguments:

1. The document was too revolutionary, rapid

2. Who gave them the authority to say “we are the people”

3. It would create a national government that would become too powerful:

a) It would obliterate state authority

b) It would threaten people’s rights and liberties

4. When you read the document, there was no mention of individual rights (no Bill of Rights): connected to 3d point

5. The new executive would become like the king

6. It created a dangerous federal court system: National government mainly creates the Court (President appoints Supreme and Federal Court nominees)

7. A government would be created that would have the power to tax people

WS2: Federalist was the name given to those who favored the adoption of the new constitution. The Anti-Federalist believed that the central government should be weakened

46. Federalist papers:

Notes: Federalist papers are written documents that were created to convince Ant-Federalists that the government under the Constitution is a good form of government as it creates a balance between the order and the freedom

Federalist paper No. 51:

Focuses on structure of the government, provides the frame line. How can you accommodate freedom and order? What’s the balance between tyranny (loss of freedom) and anarchy (loss of order)?

It’s not enough to depend on people as they can be apathetic and influenced by side party

Auxiliary precautions (restraints on government):

1. Create a republican form of government

2. Clear in the intent to establish institution by creating branches of government (separation of powers)

3. Advantages of checks and balances

4. Federal system resolved the national vs. state issue

5. Virtue of a large republic

WS2: the federalist papers are considered by many to be the best example of political theorizing in the United States. The federalist Papers were very significant as political theory

47. Supremacy clause:

The Constitutional provision that makes the Constitution and federal laws superior to all conflicting state and local laws. Article 6, Clause 2. Was clearly established in McCulloch v. Maryland case

WS3: Because of the supremacy clause the states cannot use their reserved or concurrent powers to thwart national policies

48. Writ of habeas corpus:

A demand by the judge to the reasons why the particular person is in custody. It is defendant’s pretrial right that is stated in Article 1, Section 9. Habeas corpus means, literally, “you have the body”. A writ of habeas corpus is an order that requires jailers to bring a prisoner before a court or a judge and explain why the person is being held

49. Unitary system:

A centralized governmental system in which ultimate governmental authority rests in the hands of the national, or central, government. In the unitary system, all questions of education, police, use of land, and welfare are handled by the national government which can overrule the decisions of lower governments

Notes:

The unitary system is easiest to define as there is no misunderstanding. Approximately 80% of world governments are unitary. The lower governments are called states/departments/regions

Examples:

France

· Great Britain

· Japan

· Israel

· UK (London is the central government)

· Scotland

· Wales

· Northern Ireland

WS3: If ultimate government authority rests in the hands of central government, that is a unitary system. The most popular way of ordering relations between the central government and local units is by a unitary system. A unitary system of government is the easiest system to define

50. Implied powers (11. Necessary and proper clause):

The implied powers of the national government are based on Article 1, Section 8, which contains elastic (necessary and proper) clause

Notes:

Implied powers are stated in Constitution (Necessary and proper clause as interpreted by the Supreme Court on McCulloch v. Maryland) and apply to only national government

Example: power to create national bank and institutions (IRS); they also help to carry out enumerated powers

WS3: the issue in the McCulloch v. Maryland case was whether the national government has implied powers

51. Concurrent powers:

Powers held jointly by the national and state governments. Most of them are not specifically mentioned in Constitution, but are implied

Notes: Concurrent powers originate in Constitution and are jointly held by national and state governments

Examples:

· Tax

· Spend money

· Establish laws

· Regulate commerce: inter/intra

52. Devolution:

The transfer of power from a national or central government to a state or local government

Notes: applies to unitary and federal systems

53. Civil liberties:

The Bill of Rights and other provisions of the U.S. Constitution are the ultimate protections of our civil rights and liberties. Supreme Court determines what our right are in certain circumstances with the help of judicial review. Civil liberties are restraints on the actions of government against individuals. Judicial interpretations shape the true nature of civil liberties. Civil liberties are applied to states through 14^th Amendment

Examples of civil liberties:

· Free speech and religion

· Right to abortion

Notes: civil liberties the freedoms that we as individuals have that are protected against government actions

Civil rights: the rights of each individual to certain kinds of protection:

a) Access to society’s resources and opportunities

b) Equal protection under the law

54. Free exercise clause:

The provision of the 1^st Amendment guaranteeing the free exercise of religion. The provision constrains the national government from prohibiting individuals from practicing the religion of their choice. When, however, religious practices work against public policy and welfare, the government can act (for example, government can require vaccinations)

55. Search and seizure:

The 4^th Amendment protects against unreasonable searches and seizures and provides that a judge may issue a search warrant to police only on probable cause (a demonstration of facts that permit a reasonable belief that a crime has been committed). Court determines what constitutes “unreasonable” search and seizure

Notes: 4^th Amendment provides a right to be secure. The Court interprets what constitutes unreasonable on a case by case basis. No warrant shall issue but upon probable cause (suspicious behavior; police officer has direct observation that the criminal activity in underway or about to happen)

56. Exclusionary rule:

A judicial policy prohibiting the admission at trial of illegally obtained evidence. This rule was first extended to states in Supreme Court decision, Mapp v. Ohio. Under the 4^th Amendment, the search warrants must describe the persons or things to be seized, but police can seize items that are not listed if they are in plain view. There is a “good faith” exception to this rule: if there is a mistake, but police officer acted in good faith, the evidence is admissible at trial. It also includes the “unreasonable” search and seizure protection

57. Escobedo v. Illinois:

Notes: at what point defendant had a right to have an attorney present during the interrogations

What happened?

Escobedo (defendant) was charged with murder, he was picked up twice by the police. The second time he asked for the lawyer, but police denied and charged him. The lower court judge stated that the evidence was legal and Escobedo was found guilt. The decision was appealed to the Supreme Court and it overturned the lower court decision stating that the evidence could not be used.

Resolution:

1. Exclusionary rule

2. You have to be clear when asking for lawyer

Date: 2016-04-22; view: 624