2 The Preamble to the Constitution “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
3 POLITICS: the process by which groups make decisions POLITICS: the process by which groups make decisions. Although the term is generally applied to behavior within governments, politics is observed in all human group interactions. POWER: The ability of one person to get another person to do act in accordance with your wishes and intentions. AUTHORITY: The exclusive right to exercise supreme political power over a group of people or geographic region. LEGITIMACY: acceptance by the citizens that their state has the right to pass and enforce rules. GOVERNMENT: the organization that has the accepted authority to make laws, adjudicate disputes, and that has a monopoly of authorized force to enforce its decisions.
5 PURPOSES OF GOVERNMENT Maintain orderProvide public servicesRegulate the economy
6 TYPES OF GOVERNMENT Autocracy Oligarchy Republic Democracy Unitary FederalConfederalPresidentialParliamentary
7 Political Philosophy Thomas Hobbes – Leviathan Men are selfish and greedySocial contract is between government and peopleJohn Locke – Two TreatisesSocial contract is between the peopleGovernment is created by the peopleCharles Montesquieu – The Spirit of the LawsSeperation of powers: executive, judicial, legislativeJean Jacques Rousseau – The Social ContractRight and duty of revolutionAdam Smith – The Wealth of NationsPeople should be free to do as they wishGovernment should be small and limited
8 The Colonial Mind 1776Believed that men seek power because they are ambitious, greedy and easily corrupted.Feared a ‘tyranny of the majority’Believed in a higher law embodying inalienable natural rights:LifeLibertyProperty
10 CONSTITUTION The system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution
11 CONSTITUTION-statement of ideals -establishes basic structure of government -defines and limits governments powers and duties -supreme law of country
12 Strengths of the Articles of Confederation First written constitutionFirst National UnionNeutral negotiating forum for statesSuccesses:Land Ordinance 1785 standardized weights and measuresNorthwest Ordinance 1787 to survey new territories, define admission of new states, and allow for state sovereignty on issue of slaveryJay Treaty 1785 added Florida territory and opened up Mississippi to trade
13 Weaknesses of the Articles of Confederation ConfederalSovereignty, independence retained by statesParliamentaryNo Executive or JudicialUnicameralDelegates to Congress picked, paid for by state legislaturesOne vote in Congress for each stateNine of thirteen votes in Congress required for any measureAll thirteen states’ consent necessary for any amendmentsCongress did NOT have power to tax, print money, or regulate commerceArmy small and dependent on independent state militiasTerritorial disputes between states led to open hostilities
16 The Virginia Plan Council of Revision Replace Articles Unitary/Federal PresidentialExecutive and Judicial indirectly elected by legislatureBicameral?One house directly by the people based on population; one house chosen indirectly by first based on populationCouncil of RevisionIndirectly elected as a second House with veto power over state laws
17 The New Jersey Plan Amend Articles Federal/Confederal Parliamentary Executive indirectly elected by Legislature; Judicial chosen by ExecutiveUnicameralIndirectly elected by the state legislaturesCouncil of RevisionSelected by Executive, approved by Legislature veto power over Federal laws
18 The Connecticut Compromise FederalAll powers not explicitly given to the Federal government belong to the people and the statesPresidentialExecutive indirectly elected by electoral collegeStates set election lawsJudicial nominated by Executive; approved by SenateBicameralHouse of Representatives directly elected based on populationSenate two per state indirectly elected by state legislaturesThe Greatest Compromise?House of Representatives Apportionment: 3/5 CompromiseCongress could not prohibit slave trade before 1808Fugitive Slave Clause
19 Key Principles of US Government FEDERALISMpower divided between national and state governmentsREPUBLICPopular rule, but not direct democracyMajority ruleSEPARATION OF POWERSVeto, override, appointment/approval, judicial review?AMENDMENTProposed 2/3d in Congress; 2/3ds of State legislaturesApproved 3/4ths of states in legislatures or conventions
20 Four Categories of Powers Enumerated powers: given to national government exclusively; include power to print money, declare war, make treaties, conduct foreign affairsReserved powers: given to states exclusively; include power to issue licenses and to regulate commerce wholly within a stateConcurrent powers: shared by both national and state governments; include collecting taxes, building roads, borrowing money, having courtsImplied PowersThe ‘elastic’ clause was included into the Constitution to allow flexibility. Congress was granted the right to make all laws which they deemed necessary and proper to do their job.
21 Interpretations of the Constitution Strict interpretationThe strict interpretation of the constitution meant that it was to be followed exactly to the word, a philosophy adopted by Jefferson.Loose interpretation:Hamilton believed in a loose interpretation, or that powers implied within the Constitution should be included in the new government to fit changes over time.
22 The Anti-federalists Patrick Henry, Sam Adams, George Mason Liberty could be secure only in small republicsNation needed a loose confederation of states with most of the power wielded by the state legislatures where the citizens could physically abuse the legislatorsTyranny of the majority and minority rightsThere should be restrictions on a strong national governmentBill of Rights
23 The Federalists John Jay, Alexander Hamilton, James Madison Federalist Papers 10 and 51Coalitions were more likely to be moderate because they would represent a diversity of interestsGovernments should be somewhat distant from the passions of the peopleNo bill of rights was necessary as most rights were already guaranteed in Constitution or in State Bill of RightsHabeas corpusNo ex post factoTrial by juryFull faith and creditSeparation of church and state
24 The Federalist Papers James Madison Problem with Democracy is factionalism, tyranny of the majoritySolutionsEliminate democracy through monarchyEstablish a Republic or representative democracy with a strong national governmentFederalist Paper 51Problem with strong central government is again the problem of tyrannyFederalismSeparation of powers
26 Congress The intent of the Framers: To oppose the concentration of power in a single institutionTo balance large and small statesBicameralismHouse of Representatives and SenateTo avoid the tyranny of the majority, or populismThey expected Congress to be the dominant institution
27 Section 1:This section provides for a BICAMERAL legislature, consisting of aHOUSE OF REPRESENTATIVES and SENATE.
28 The House of Representatives: Elected for 2 year terms from districts with equal populations25 years old, resident of state, citizen for 7 yearsAll revenue bills (taxes and spending) must originate in the HouseSole power of impeachmentOverride presidential veto with 2/3rds vote
29 The Senate2 Senators per state, one vote eachSenate is elected by state for a 6 year term.Rotating elections, 1/3 of senate elected every 2 yearsMust be 30, resident of state, and US citizen for 9 yearsVice President presides over the senateSits as jury in impeachment casesAdvises and consents to treaties and Presidential appointments
30 Enumerated powers of congress: TAXBORROW MONEYREGULATE COMMERCECOIN MONEYGIVE PATENTSDEFINE AND PUNISH CRIMES ON HIGH SEASDECLARE WARMAINTAIN NAVY AND ARMYCALL UP MILITIA
31 What clause allows Congress to go beyond its enumerated powers? NECESSARY AND PROPER CLAUSE
32 What are powers explicitly denied to Congress? Restrict slave trade until 1808Suspend Habeas Corpus unless Public EmergencyNo Bill of AttainderNo Ex-Post Facto LawNo Interstate TariffsNo preferential treatment of any StateNo titles of nobility
33 EXPLICIT LIMITATIONS OF THE POWERS OF THE STATES Cannot make treatiesCannot declare warCannot coin Money;Cannot pass any Bill of Attaindercannot pass ex post facto LawCannot grant any Title of Nobility.
37 Structure of the HouseSpeaker of the House is leader of majority party and presides over HouseMajority leader and minority leader: leaders on the floorParty whips keep leaders informed, round up votes, and ensure a quorum100 Reps for debate217 for vote2/3ds to choose President or Vice President
38 Speaker of the House Leader of majority party Decides who may speak during debatesHas the power to discipline membersRuns the Steering Committee which assigns representatives to committees and selects Committee ChairsRuns Policy Committee which controls introduction of bills and determines which committees they are sent to for considerationRuns the Rules Committee which sets the legislative agenda and the rules on voting and floor debateAssigns office space
39 2 Independent Senators, caucusing with Democrats 111th CongressParty standings in the Senate57 Democratic Senators2 Independent Senators, caucusing with Democrats41 Republican Senators
41 Party Structure in the Senate Majority leader and Minority leader, elected by their respective party membersParty whips: keep leaders informed, round up votes for quorum51 senatorsPolicy committee: schedules Senate businessCommittee assignments are handled by each party usually based on seniority
42 How a Bill Becomes a LawBill must be introduced by a member of CongressBill is referred to a committee for consideration by either Speaker or presiding officer of the SenateRevenue bills must originate in the HouseMost bills die in committee
43 CommitteesCommittees are the most important organizational feature of CongressConsider bills or legislative proposalsMaintain oversight of executive agenciesConduct investigationsMajority party has majority of seats on the committees and names the chair
44 Types of CommitteesStanding committees: basically permanent bodies with specified legislative responsibilitiesSelect committees: groups appointed for a limited purpose and limited durationJoint committees: those on which both representatives and senators serveConference committee: a special temporary joint committee appointed to resolve differences in Senate and House versions of the same piece of legislation before final passage
45 How a Bill Becomes a Law in the House Speaker assigns a bill to a committeeAfter hearings and mark-up sessions, the committee reports out a bill to the HouseMost bills are not reported out and die in committeeBill must be placed on a calendar by the House Rules Committee to come to the floor for debate and a voteHouse Rules Committee sets rules for debate, amendments, and voting
46 How a Bill Becomes a Law in the Senate Bill are placed on calendar by the Majority and Minority LeadersBills may be sent to committee for hearings and mark-up sessionsBills may be directly introduced to floorHouse bills are automaticallyNo restrictions on debate: the filibusterrestricted by Rule 22 (1917), which allows a vote of clotureSupermajority needed for cloture, 60 votes
47 How a Bill Becomes a LawBills are debated on the floor of the House or SenateIf there are major differences in the bill as passed by the House and Senate, a conference committee is appointedThe bill goes to the presidentPresident can sign or vetoIf President vetoes bill, congress can override his veto with a 2/3ds vote of BOTH houses.
49 The President The intent of the Framers: Delegates feared both anarchy and monarchyneeded a strong, independent executive without the excessive powers of a monarch.Principal concern was to balance power of legislative and executive branchesExpected Congress to be the dominant institutionbut indirect election by congress would give too much power to legislaturedirect election would lead to mob rule
50 The Electoral CollegeThe Electoral College is equal to the total membership of both Houses of Congress (435 Representatives and 100 Senators) plus the three electors allocated to Washington, D.C., totaling 538 electors.Almost all states use a winner-take-all systemA candidate must receive an absolute majority of electoral votes (currently 270) to win the Presidency.A faithless elector is one who casts an electoral vote for someone other than whom they have pledged to elect.There are laws to punish faithless electors in 24 states.If no candidate receives a majority in the election for President, or Vice President, that election is determined by Congress.
52 The Person having the majority of Electoral Votes is President, the person with the second most votes is vice-president.If no one has a Majority, then The House of Representatives chooses with each State having one Vote.A quorum for this purpose is two thirds of the States.A Majority of all the States is necessary to select the president.If there is a tie for second, the Senate chooses the Vice President.
53 12th Amendment, 1804Section 3. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for eachThe person having the greatest Number of votes for President, shall be the President.The person having the greatest number of votes as Vice-President, shall be the Vice-President.
54 Qualifications to be President CHAPTER 14 Article IIQualifications to be President
55 The President:A natural born citizen (born in the US or US territories, or born to US Citizens), must be thirty five years old, and a resident of the US for 14 years.
56 22nd Amendment, 1951Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.
58 The original wording of the Constitution: In Case of the Death, Resignation, Removal, or Inability to discharge the Powers and Duties of the President, these powers shall devolve on the Vice President Congress decides what Officer shall act as President in the Case of Removal, Death, Resignation, or Inability of both the President and Vice President.
59 20th Amendment, 1933Section 3. If the President elect shall have died, the Vice President elect shall become President.If the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified;and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President.
60 Presidential Succession Act of 1947 President Truman requested that Congress return the Speaker and President Pro Tempore to the list of Presidential successors as they were elected and so the President could not appoint his own successor:Vice PresidentSpeaker of the HousePresident Pro TemporeSecretary of StateSecretary of the TreasurySecretary of War (Defense)Attorney General
61 25th Amendment, 1967Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.
62 Powers of the President CHAPTER 14 Article IIPowers of the President
63 The President Only five specific powers: the Veto power Congress can over-ride vetoPower of AppointmentSenate must confirm appointmentsTreaty-making powerSenate must ratify treatiesCommander in chief of the armed forcesCongress has power to declare warPower to PardonExcept in cases of Impeachment
65 The Veto PowerPresident does not hold line-item veto power, he can eitherSign the legislation; the bill then becomes law.Veto the legislation; the bill does not become law, unless both Houses of Congress vote to override the veto by a two-thirds vote.Take no action. In this instance, the president neither signs nor vetoes the legislation. After 10 days, not counting Sundays:If Congress is still convened, the bill becomes law.If Congress has adjourned the bill does not become law. This latter outcome is known as the pocket veto.
67 Section III:Require advice and reports from heads of executive departments (cabinet)Give a State of the Union to Congress recommending to Congress Measures he judges necessaryConvene either or both Houses in times of emergencyDismiss Congress in Case of Disagreement between the Houses about the time of adjournmentReceive Ambassadors and other public MinistersFaithfully execute and enforce the Laws of the United StatesCommission all the Officers of the United States military
68 The Cabinet Not explicitly mentioned in Constitution Presidents have many appointments to make:CabinetFederal JudiciaryAmbassadorsMilitary Officers
69 White House OfficeRule of propinquity: power is wielded by people who are in the room when a decision is madePolitical Power is held by those closest to the President
70 White House OfficePyramid structure: assistants report through hierarchy to Chief of Staff, who then reports to PresidentEisenhower, Nixon, Reagan, BushCircular structure: cabinet secretaries and assistants report directly to the PresidentCarter, Kennedy, ClintonAd hoc structure: task forces, committees, and informal groups deal directly with presidentClinton (early in his administration)
71 Powers of the President Potential for power found in ambiguous clauses of the Constitution—e.g., power as commander in chief, duty to “take care that laws be faithfully executed” (executive power)Greatest source of power lies in politics and public opinion
72 ANDREW JACKSON APPOINTMENT POWER VETO POWER COMMANDER-IN-CHIEF PARTY PATRONAGESPOILS SYSTEMVETO POWERPOLICY VETOSCOMMANDER-IN-CHIEFNULLIFICATION CRISISINDIAN REMOVALPOWER TO PERSUADEPOPULAR TRIBUNEPRESIDENTIAL PROGRAM
73 The President’s Program Presidents use the ‘Bully Pulpit’ to create popular support for their agenda.Presidents try to transform that popularity into congressional support for their programsPopularity is affected by factors beyond anyone’s control.Constraints include public and congressional reactions, media coverage and attitude, limited time and attention, and unexpected crises.
75 ImpeachmentThe President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and MisdemeanorsIndictment by the House, conviction by the SenateChief Justice of the Supreme Court presides as judge
76 Chapter 16 The JudiciarySeated, from left are: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin Scalia, and Associate Justice Clarence Thomas. Standing, from left are: Associate Justice Samuel Alito Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor.
77 Civil Law and Criminal Law A private party files the lawsuit as the plaintiff.Burden of Plaintiff, but can be shifted to Defendant‘For the Plaintiff’ or ‘For the Defendant’ by a preponderance of the evidenceRemedy is CompensationThe state, representing the people, prosecutes the case.Presumption of Innocence; burden of proof is on the state‘Guilty or Not Guilty’ beyond a reasonable doubtRemedy is Punishment
78 Article III, Section 1 The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office
80 Selecting JudgesPresidents seek judicial appointees who share their political ideologies‘Litmus test’Tradition of Senatorial CourtesyPotential Nominees for federal courts are first recommended by the National Bar AssociationThey are then reviewed by senators from the stateSenators ‘blue slip’ the nomineeSenators have the power to filibuster any nominee, and ‘bork’ them in public hearings
81 Constitutional Interpretation Strict Construction: judges are bound by the wording of the Constitutionmost strict constructionists tend to be conservative RepublicansActivist: judges should look to the underlying principles and intentions of the foundersmost activists tend to be liberal Democrats
82 Article III, Section 2Cases that fall under the judicial power of the Federal Courts.Federal QuestionsThe Constitution or Federal lawsTreatiesAmbassadors, other public ministers and consulsAdmiralty and maritime jurisdictionThe United States governmentDiversity CasesTwo or more statesA state and citizens of another stateCitizens of different statescitizens of the same state over property in a different statea state or citizen and foreign states or citizens
83 Article III, Section 2What is “Original Jurisdiction”?The ability and authority to hear and decide cases for the first time based on hearing testimony and viewing evidenceIn contrast to hearing a case “on appeal” after a verdict has been rendered.
84 Article III, Section 2 The Supreme Court has “original jurisdiction” In all cases dealing withambassadors, other public ministers and consulsa state governmentIn all the other casesthe Supreme Court shall have appellate jurisdiction
87 Procedure The Supreme Court Term begins the first Monday in October The Court divides its time into sessions of approximately four weeks.“Sittings," two-week periods during which the Justices hear arguments“Recesses," the alternating two weeks where they hold conferences and write opinions.The Justices may hear as many as 24 cases each sitting.The Justices actively hear arguments from October until the end of April or early May using this rotating scheduleDuring May and June, the Justices announce decisionsFrom July through September, they read petitions for writs of certiorari and discuss cases for the next term.
88 Procedure Standing Writ of cert Expenses Political Questions 7000 petitions100 grantedExpensesIn forma pauperisFee shiftingPolitical Questions
93 Adversarial SystemsIn the ADVERSARIAL SYSTEM, two or more opposing parties gather evidenceThe parties then present the evidence, and their arguments, to a judge or jury.The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker.The judge acts as a referee on points of law.The judge or jury determine both the verdict and the remedy.
94 The Inquisitorial System In the INQUISITORIAL system, the presiding judge is not a passive recipient of information.The judge actively steers the search for evidence and questions the witnessesAttorneys play a more defensive role, suggesting arguments and precedents and answering the judge’s questions.The judge determines the verdict and the remedy.
95 Kinds of Court Opinions Per curiam: brief and unsignedOpinion of the court: majority opinionConcurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoningDissenting opinion: minority opinion
96 Development of the Federal Courts Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-makingBut the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces
97 Judicial ReviewJudicial review: the right of the federal courts to rule on the constitutionality of laws and executive actionsIt is the chief judicial weapon in the checks and balances system
98 Judicial Review Marbury v. Madison (1803) The Supreme Court has the power to declare an act of congress unconstitutional.
99 Judicial Review Marbury v. Madison “It is emphatically the province and duty of the judiciary to say what the law is, and a law repugnant to the Constitution is void.”-John MarshallChief Justice of the Supreme Court,
100 Judicial Review McCulloch v. Maryland (1819) Federal law is supreme over state lawThe power granted to the federal government should be interpreted broadly under the necessary and proper clause
101 Checks on Judicial Power Judges have no enforcement mechanismsConfirmation and impeachment proceedingsChanging the number of judgesRevising legislationAmending the ConstitutionAltering jurisdictionRestricting remedies
102 Civil Liberties: Incorporation Chapter Five Section 1Civil Liberties:Incorporation
103 Civil Liberties versus Civil Rights Negative RightsBill of RightsAmendments 1 - 9Civil RightsPositive RightsDue Process, Equal Protection, and Privileges and Immunities Clause14th and 15th AmendmentsArticle IV, Section 2
104 The Bill of Rights The first ten amendments to the US Constitution Adopted December 15, 1791Draws influence from the Magna Carta (1215), the English Bill of Rights (1689), and the Virginia Declaration of Rights by George Mason (1776)
105 Guarantee of freedom of association Amendment IGuarantee against establishment of religionGuarantee of free exercise of religionGuarantee of freedom of speechGuarantee of freedom of the pressGuarantee of freedom of assemblyRight to petition for redress of grievancesGuarantee of freedom of association
106 Right to keep and bear arms Freedom from quartering of soldiers Amendment IIRight to keep and bear armsAmendment IIIFreedom from quartering of soldiersAmendment IVNo Unreasonable search and seizureRequirement for a Warrant
107 Amendment V Right to indictment by a grand jury Protection against double jeopardyPrivilege against self-incriminationProtection against taking of private property without due process and just compensation
108 Amendment VI Right to a speedy trial Right to a public trial Right to trial by impartial juryRight to notice of accusationsRight to confront adverse witnessesRight to compulsory process (subpoenas) to obtain witness testimonyRight to assistance of counsel
109 Amendment VII Amendment VIII Right to jury trial in civil cases Protections against excessive bail and excessive finesProtection against cruel and unusual punishments
110 Amendment IXThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
111 Amendment XAny powers not specifically given to the federal government is retained by the states and the people.
112 Original Interpretation Restrictions on Federal Government, not State GovernmentsBarron v Baltimore, 1833Based on 10th Amendment
113 The Fourteenth Amendment All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.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;nor deny to any person within its jurisdiction the equal protection of the laws.Ratification July 9, 1868
114 The Fifteenth Amendment The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation. Ratification completed on February 17, 1870
115 Selective Incorporation Burlington Railway v Chicago, 18975TH AmendmentNo one is to “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Justice Black versus Justice Cardozo
116 Interpreting and applying the First Amendment First amendment is composed of freedom ofRELIGION“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;SPEECHor abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
117 Selective Incorporation First AmendmentEstablishment of ReligionEverson v. Board of Education, 1947Lemon v Kurtzman,Free Exercise of ReligionCantwell v. Connecticut, 1940Freedom of SpeechGitlow v. New York, 1925Freedom of AssociationNAACP v. Alabama 1958Although the First Amendment lists no "right of association”, the Court implied this from “freedoms of speech and assembly"
118 Legal Restrictions on Freedom of Speech Supreme Court generally upholds these acts (particularly in times of war)FIVE EXCEPTIONS TO FIRST AMENDMENT FREEDOM OF SPEECH:-CLEAR AND PRESENT DANGER-LIBEL/SLANDER-OBSCENITY-SYMBOLIC SPEECH-FALSE ADVERTISING
119 CLEAR AND PRESENT DANGER Gitlow v New York (1925)Applied First Amendment protections to states through Selective IncorporationBut First Amendment NOT absoluteJustice Oliver Wendell Holmes: “No one has the right to yell ‘fire!’ in a crowded theater where there is no fire.”“Clear and Present Danger” testCLEAR = specific and statutory and calculated to incitePRESENT = speech calling for illegal acts is protected, if the acts are not “imminent” and there is no fear of any direct physical harmIntent, Imminence, Likelihood, and Actual Harm
120 LIBEL Libel: written statement defaming another by false statement Slander: defamatory oral statementNY Times v Sullivan, 1964Public figures must also show the words were written with “actual malice”—with reckless disregard for the truth or with knowledge that the words were falseBecause of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases — when they involve public figures — rarely prevail.
121 OBSCENITY Miller v California, 1973 Reno v ACLU, 1997 applying contemporary community standards as defined by applicable state lawlacking any serious literary, artistic, political, or scientific valueLocalities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate itReno v ACLU, 1997Internet regulation ruled unconstitutional by the Supreme Court.
122 SYMBOLIC SPEECH Texas v Johnson, 1989 Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (example: burning a draft card)However, statutes cannot make certain types of symbolic speech illegal: e.g., flag burning is protected speech
123 Under 18? Tinker v. Des Moines School District, 1969 Administrators in public schools must demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom.Hazelwood v. Kuhlmeier, 1988school publications can be restricted, and school-sponsored activities can be controlled if controls are related to educational concernsOverall the Supreme Court has determined that minors are not a discriminated group and therefore have less freedom of expression than adults when balanced against public welfare and safety.
124 Constitutional Tests for Restricting Free Speech PREFERRED POSITIONThe Right of Free Expression is not unlimited, but occupies the top spot over all the other rights in the Bill of RightsPRIOR RESTRAINTCensorship will not be tolerated, only subsequent punishment for improper expressionSTRICT GUIDELINESRestrictions on the exercise of free speech will only be tolerated where there is falsehood, clear and present danger, or offensive speech with no redeeming value or purposeCLARITYStates must clearly define the speech to be restricted and the reasonsNEUTRALITYRestrictions may not favor one form of expression over another for those restrictionsLEAST RESTRICTIONSRestrictions must address the harm rather than prevent the exercise of free speech: zoning ordinances for adult theaters and bookstores have been upheld as it regulates use of property rather than expression
125 Establishment of a Secular State in the United States A secular state is a state or country that is officially neutral in matters of religion, with no official or unofficial state religion and neither supporting nor opposing any particular religious beliefs or practices. A secular state treats all its citizens equally regardless of religion, and does not give preferential treatment for a citizen from a particular religion.
126 Selective Incorporation First AmendmentEstablishment of ReligionLemon v Kurtzman, 1971“There should be a ‘wall of separation’ between church and state.”-Thomas Jeffersonletter to the Danbury Baptist Association,1802
127 The Lemon TestGovernment involvement in religious activities is constitutional if it meets the following tests:It has a secular purposeThe primary effect neither advances nor inhibits religionIt involves no excessive government entanglement with religion
128 Selective Incorporation First AmendmentFreedom of Assemby and AssociationLoving v Viriginia, 1967Implied right to Marry?
129 Selective Incorporation Second AmendmentRight to bear armsHas not been incorporated. Court has purposely avoided any explicit incorporation.District of Columbia v Heller (2008)Right to bear arms is an individual right and not dependent on any membership in a ‘militia’McDonald v. Chicago (2010)Case Pending before the Supreme Court
130 Selective Incorporation Third AmendmentFreedom from quartering of soldiersHas not been explicitly incorporated, due to lack of cases.Griswold v. Connecticut, 1965mentions this right indirectly: ". . . specific guarantees in the Bill of Rights create implicit rights The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of the right to privacy."
131 Selective Incorporation Fourth AmendmentUnreasonable search and seizureMapp v Ohio, 1961Warrant requirementsRight to PrivacyGriswold v. Connecticut, 1965Implied right derived from 3rd and 4th Amendments“Good Faith exception”US v Leon, 1984
132 Search and Seizure Inclusionary Exclusionary Most legal systems currently use an inclusionary search and seizure rule: all evidence is presented at trial, and police are punished later for evidence which was obtained improperlyExclusionaryExclude improperly gathered evidence from the trial even if it is relevant to determining guilt or innocence of the accused.In US, Evidence gathered in violation of the Constitution cannot be used in a trial in Federal CourtStems from the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination)
133 Search and Seizure Explicit Permission Search warrant a properly obtained order from a judge authorizing the search of a place based on probable cause and describing what is to be searched and seized“Bigger than a Breadbox” RuleIncident to a lawful arrest (warrant, probable cause, in the presence)Search limited to:The individual being arrestedThings in plain viewThings or places under the immediate control of the individual“Good Faith” ExceptionThis exemption allows evidence collected in violation of privacy rights as interpreted from the Fourth Amendment to be admitted at trial if police officers acting in good faith (bona fides)—that is, they had reason to believe their actions are legal as measured under the reasonable person test.
134 Selective Incorporation Fifth AmendmentIndictment by Grand JuryHas not been incorporated where there are ‘reasonable alternatives”Hurtado v. California, 1884Double JeopardyBenton v. Maryland, 1969Self-incriminationMalloy v. Hogan, 1964Taking of private propertyBurlington Railway Co. v Chicago, 1897
135 Selective Incorporation Sixth AmendmentSpeedy trialKlopfer v. North Carolina, 1967Public trialIn re Oliver, 1948Trial by impartial juryDuncan v. Louisiana, 1968Unanimous jury verdictBurch v. Louisiana, 441 U.S. 130 (1979): implicit guarantee of unanimous juries in criminal casesNotice of accusationRabe v. Washington, 1972Confrontation of adverse witnessesPointer v. Texas, 1965Compulsory process to obtain witness testimonyWashington v. Texas, 1967Assistance of counselGideon v. Wainwright, 1963Miranda warningMiranda v. Arizona, 1966ACCUSED MUST BE INFORMED OF ALL RIGHTS in FIFTH AND SIXTH AMENDMENTS
136 Selective Incorporation Seventh AmendmentJury trial in civil casesHas not been incorporated where there are ‘reasonable’ alternativesCurtis v Loether, 1974
137 Selective Incorporation Eighth AmendmentExcessive bailRoper v. Simmons, 2005Excessive finesCooper Industries v. Leatherman Tool Group, Inc., 2001Cruel and unusual punishmentRobinson v. California,1962.
138 What are civil rights? Positive Rights 13th, 14th, and 15th Amendments Protect certain groups--Suspect Classifications--against discriminationClaims are raised when a group is denied access to facilities, opportunities, or services available to other groupsThe issue is whether differences in treatment are reasonable and whether there is a compelling state interest under Strict Scrutiny
139 Plessy v Ferguson, 1896 Question Is racial segregation an unconstitutional infringement on the privileges and immunities and equal protection clauses of the Fourteenth Amendment?ConclusionNo, the state law is within constitutional boundaries as long as the separate facilities for blacks and whites were equal.The justices noted that while the 14th amendment intended to establish absolute political equality, it could not have been intended to abolish distinctions based upon color, or to enforce social equality.In short, segregation does not in itself constitute unlawful discrimination.
140 “Separate but Equal”A phrase denoting a system of segregation that justifies giving different groups of people separate facilities or services with the declaration that the quality of each group's public facilities remain equal.
142 Brown v. Board of Education, 1954 QuestionDoes the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?ConclusionYes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality.Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority.The long-held doctrine that separate facilities were permissible provided they were equal was rejected.Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all forms of state-maintained racial separation.
143 Brown v. Board of Education Unanimous Supreme Court opinion overturned PlessySegregation is detrimental; creates sense of inferiority in African American studentsThe Court relied on social science, because the Fourteenth Amendment was not necessarily intended to abolish segregated schools, and the Court sought a unanimous opinion
144 Equal OutcomeAffirmative action: preferential hiring and admission practices to remedy past and present discriminationGoal of diversity, multiculturalism, inclusionSet targets for equal outcome
145 Regents v Bakke, 1978 Question Conclusion Did the University of California violate the Fourteenth Amendment's equal protection clause by practicing reverse discrimination?ConclusionYes, the rigid use of racial quotas violates the equal protection clause of the Fourteenth Amendment,The use of race is permissible as one of several admission criteria, but it the intention of the 14th and 15th amendment was to create a ‘color-blind’ society
146 Equal OpportunityReverse Discrimination: preferential hiring and admission based on race are unconstitutionalFollowed Brown “color blind” interpretation of 13th, 14th, and 15th amendmentsGoal of compensatory action to create diversity is allowedExplicit Quotas are unconstitutional
147 Court Rules for Affirmative Action Favors Federal over state preferencesFavors voluntary over legal preferencesFavors beneficial over harmful preferencesFavors individual over group preferences