GVPT 170

Necessary and Proper Clause

"The Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution he foregoing powers, and all other powers vested by this constitution in the government of the United States"

Jacobellis v. Ohio (1964)

- "I know it when I see it" - How do you apply such a standard?

Block Grants

- A pre-fixed sum that comes with more discretion on how the money can be spent by states

De Facto Equality

- Actual, social practices (most associated with the Civil Rights Movement) - Social, Economic, Cultural biases --> Discrimination

Webster v. Reproductive Services, 1989

- Court upheld a Missouri law that imposed restrictions on the use of state funds, facilities, and employees, in performing, assisting with, or counseling on abortions

Freedom of Speech (Clear and Present Danger test)

- Do the words (or speech) create "clear and present danger"? - Established by Justice Oliver Wendell Holmes in 1919 in Shank v. United States, 1919

Atkins v. Virginia, 2002

- Executing people with intellectual disabilities violates the 8th Amendment's ban on cruel and unusual punishment, but states can define who has intellectual disability

Match Grants

- For every dollar that the state spends for a program or service, the federal government vows to either match or exceed that amount

Intermediate Scrutiny

- Generally gender and sex - Semi-suspect classifications - Needs to be a really good reason, not as stringent as strict scrutiny - Upheld if substantially related to an important government objective

Implied Powers

- Granted through the Necessary and Proper Clause (Elastic Clause) - Powers not explicitly listed in the Constitution but are assumed to exist due to their being necessary to implement the expressed powers that are named in Article I - Many implied powers

Governmental Power v. People's Freedoms

- How much centralized authority while still protecting individual freedoms? - Checks on the national government so that it is less able to do things that infringe on our personal freedoms

Civil Rights Act of 1968

- Prohibits discrimination in housing (Fair Housing Act of 1968)

Civil Rights

- Protections THROUGH/BY government - i.e. anti-slavery, desegregation/equal services, voting rights, affirmative action

Libel

- Publishing material that falsely damages a person's reputation

5th Amendment

- Self-incrimination - Persons shall not be compelled to be witnesses against themselves - Miranda Warnings

Senate

- Term length: 6 years (staggered) - Constituency: states

Kennedy v. Louisiana, 2008

- The 8th Amendment bars the state from imposing the death penalty for the rape of a child where the the crime did not result, or did not intend to result, in the child's death.

Necessary and Proper Clause (Elastic Clause)

- The federal government has the power to do things not listed in the Constitution as long as it is consistent in making laws and is necessary and proper to carry into effect legislation

Judicial Checks and Balances

- The judicial branch interprets laws, but the President nominates Supreme Court justices, court of appeals judges, and district court judges. - The executive branch can declare executive orders, which are like proclamations that carry the force of law, but the judicial branch can declare those acts unconstitutional - The legislative branch makes laws but the judicial branch can declare those laws unconstitutional

"Presidential"

- The president is elected independently, serves as both head of government and state

"Separated"

- Three branches with distinct, but overlapping responsibilities (checks and balances)

"Federal"

- Two levels of government (federal and state)--dual sovereignty

Plessy v. Ferguson, 1896

- Upheld state segregation laws for public facilities under the doctrine "separate but equal"

Swann v. Charlotte-Mecklenburg County Board of Education, 1971

- only if intentional discrimination (i.e. De Jure) - Ratios: scrutiny of single race schools - Re-zoning permissible - Considerations for health or education - Can't outlaw bussing- equal protection

Direct Democracy

-Every single citizen in a nation has a direct, participatory role in government decision making -Causes too many collective action problems, making collective decisions and decision making very difficult

The Political Process

-Requires bargaining and compromise -The more people, the more diverse opinions, the harder the collective decision-making process is. -Reflects the need for political institutions,

Collective Action Solutions

1. Self-government (unrealistic) 2. Privatize (assign sections of Maryland's waters for private usage) 3. External force and regulation (taxes, fines, subsidies, etc)

3 standards of justifiable scrutiny

1. Strict Scrutiny 2. Intermediate Scrutiny 3. Rational Basis Test

Values

Attitudes on Gun Control, abortion, environmental protection, and the proper role of government

Cooperation Problems (Prisoner's Dilemma)

Free Riding Tragedy of the Commons

Transaction and conformity costs with delegation

We delegate authority in an effort to lower transaction costs. A direct democracy is not feasible because the transaction costs are much too high. On the other hand, higher conformity costs come with more delegation as we move away from direct democracy.

Due Process Rights of Criminal Defendants

- 4th, 5th, 6th, and 8th Amendments

Roper v. Simmons, 2008

- It is unconstitutional to impose capital punishment for crimes committed WHILE under the age of 18

"Bicameral"

- Legislature with two chambers (House and Senate)

Slander

- Spoken words (not written)

Dictator v. Direct Democracy

- There will be higher conformity costs and lower transaction costs in a dictatorship - There will be lower conformity costs and higher transaction costs in a direct democracy

Two Constitutional Revolutions

1. Mid-19th Century: end of the Civil War and Reconstruction 2. Mid-20th Century: Civil Rights Movement

Problems in Achieving Collective Action

Coordination Cooperation - Free Rider Program -Tragedy of the Commons

Resources

Money, taxes, education, and governmental spending

Northern v. Southern States

SLAVERY

Federalism- Operationally

Tools for federal government to ensure state cooperation are grants, subsidies, taxes, fines etc.

Equal Protection Clause (In the 14th Amendment)

- "...no State shall deprive anyone of Life, Liberty, and Property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"

Freedom of Expression: The Press

- "Core restriction is no prior restraint" meaning the government cannot prevent you from publishing material before you do, they must let you freely publish whatever you would like, yet they can hold you reliable and accountable for the information that you publish.

Due Process and Equal Protection Clause (14th Amendment)

- "No State shall...deprive any person of Life, Liberty, or Property, without due process of law; nor deny to any person within its jurisdictions the equal protection of the laws."

Shelby County v. Holder, 2013

- "Pre-clearance" was being challenged as being outdated. The Supreme Court struck down the old formula of pre-clearance that was used and told Congress and the Department of Justice that if they wanted to continue to use pre-clearance, the had to update the formula

9th Amendment

- "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - There are other rights that may exist aside from the ones listed in the Constitution, and even thought they are not listed, it does not mean they can be violated.

15th 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 the account of race, color, or previous condition of servitude."

Selective Incorporation

- A constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights

Federation system of government

- A group of states with a central government but independence in internal affairs

Shared Federalism

- AKA Cooperative Federalism - How our modern day government operates today - National and state governments jointly supply services to citizens - Today, federal policies are often affected, influenced, and even carried out by state governments - Examples: Environmental protection--policies are set forth by the national government but it is usually the state governments that enforce and regulate these policies

Mapp v. Ohio, 1961

- Addressed the Exclusionary Rule - Mapp's house was being searched because it was suspected that a fugitive was hiding out there. Although the fugitive was not found there, pornographic material was found in the basement. Mapp was prosecuted as having obscene material that was illegal at the time, but it was ruled unconstitutional as a violation of the 4th Amendment because the feds had not come to look for obscene material, they had come to look for a fugitive

Federalist #51

- Addresses means in which a system of checks and balances can be created in government and also advocates for a separation of powers within the national government - Also authored by James Madison - Solution: separation of powers-pit ambition against ambition

Dangers of Delegation

- Agent does not act in your best interest - Hidden action, hidden information

Unfunded Mandates

- Americans with Disabilities Act (1990), Clean Air Act (1990), National Voter Registration Act (1990), No Child Left Behind (2002) - These are mandates that the federal government passes onto the states without federal funding that the states must implement and follow

Confederation system of government

- An organization that consists of a number of parties or groups united in an alliance or league

Grants

- Are a substantial part of state budgets, and consequently are one of the main reasons why the federal government has power over the state governments - If the federal government wants the states to do something, often times they will offer them money and often times the states will take that money and do what the federal government wants

Local Governments

- Are not separate governments - They receive their power from the states and indirectly from the federal government

Anti-Federalists

- Argued that only local democracy could approach true democracy - A country so large and so diverse cannot be ruled by a single set of laws or a single, distant body of government

Delegation

- Assigning decision-making authority to an "agent"

Federalism

- Balance of power between state and federal government

Regressive

- Benefiting the wealthier, taxing the poor. As income increases, one is taxes less - State taxes are more regressive than federal ones. Florida and Texas will not change their regressive tax practices like no income and corporate taxes, flat-rate property taxes, and sales taxes because it entices people and big businesses to come and live in that state

10th Amendment (Federalism and the Constitution)

- Bill of Rights promised as an incentive for ratification of the new Constitution to the Anti-Federalists - Any rights and powers not specifically listed in the Constitution are reserved for the people and the states

Application of the 14th Amendment

- By 1869, Southern Democrats (pro-slavery) had started to re-take control of state legislatures (namely Tennessee and Virginia) - By 1877, Reconstruction came to an end as a result of a deal struck by the Republicans and Southern Democrats that they would give up on Reconstruction as long as the Souther Democrats helped Rutherford B. Hayes win the presidential election of 1876

14th Amendment and the Incorporation of the Bill of Rights

- Civil liberties used to only apply to the federal government, yet over time it has grown to apply to state governments as well

"Constitutional"

- Codifies prescription and proscription of government authority

Affirmative Action

- Commonly involves hiring practices, government funding, or educational admissions - Special consideration to previously disadvantaged groups - Central Justification: benefits of a diverse environment and efforts to overcome present effects of past discrimination - Generally, the justification of making up for past discrimination does not hold up in court as does the reason of promoting diversity

McCulloch v. Maryland (1819)

- Considered the most important expression of national power in US history - In 1816, Congress passed a bill aimed at creating a second national bank. A branch of said bank was placed in Maryland but was viewed by the states as competition to state banks and it was hurting the business of their state banks. Maryland levied a tax on the national bank, claiming that if the national government wanted to put property on state land, they had to pay for it. Head of the bank refused to pay the tax. Maryland won in the state court but lost in the Supreme Court - John Marshall ruled that through implied powers, the national government has the right to set up a national bank where ever it pleases because it is necessary and proper to regulate commerce, a power that is granted to the federal government in the Constitution. - Marhsall ruled that Maryland did not have the right to tax the national bank --> National Supremacy, federal power > state power

Bill of Rights (Limiting Government)

- Consists of 10 amendments to the Constitution that protect individual freedoms

Problems with The Lemon Test

- Contradictory. Public school prayer was banned at the start of high school football games and events but was said at the beginning of congressional business - This was justified by the reasoning that younger people are more impressionable than older people, hence why restrictions are tougher in schools than in the workplace

Brown v. Board of Education Topeka, Kansas, 1954

- Court declared that state laws requiring separation of public schools for white and black students is unconstitutional

Gonzales v. Carhart, 2007

- Court ruled that the 2003 Partial-Birth Abortion Ban Act, prohibiting late-term abortions, was constitutional

Griswold v. Connecticut, 1965

- Court struck down a Connecticut law banning the use or distribution of contraceptives--first established right to privacy

The New Deal

- Created by FDR - Massive economic regulations and relief programs to combat the Great Depression - Before the New Deal, much of social welfare policy existed at the state level, including funding of said programs. When people started getting laid off and could not pay state taxes, the states could not continue funding welfare programs. - Since the states needed the federal funding, they had to agree to abide by the ways in which the federal government wanted to spend the money, consequently granting more power to the federal government - Program after program was justified under the Interstate Commerce Clause

The Great Society

- Created by Lyndon B. Johnson - Passed more than 100 categorical grant programs (categorical grans are more specific, identify a specific category of need that the money should go to whereas bloc grants give states more discretion on how to spend the money and pre-set a sum) - Subsidized state programs but with strings attached: federal government was granted more power in regulating school construction, public housing, and teacher training--previously state-controlled areas

8th Amendment

- Cruel and Unusual Punishment - No death penalty allowed if: 1. Arbitrary or racially biased 2. Mentally ill 3. Minors (age-wise) 4. Child rape without murder - There has been a steady decline in the use, and public support of the death penalty. The Court has even doled out restrictions on state's ability use the death penalty. The public has shown that they do not trust the government to conduct or rule an execution correctly. If a man is inherently innocent and later found not-guilty by the courts, and you kill him, you cannot reverse that decision - The death penalty has been found to be racially biased and thus is not as widely used anymore.

Problems with the Articles of Confederation

- Currency= the nation was in debt after the war, but the national government did not have the power to value currency, that power rested with the states - Public Order= Shays' Rebellion (1786)= farmers were owed money by the government for their work during the Revolutionary War. The farmers were never paid and eventually revolted against the newly formed government but were squashed. This revealed a simple problem with the Articles--it could not maintain peace and order--a primary objective of any government--the Articles made the government too decentralized - Plagued with Free Rider problems- there were virtually 13 separate governments after the Revolutionary War and a national government that had been rendered useless because its policies required the ratification of the states

Civil Rights Movement

- Desegregation, de facto voting rights (closer to equal facilities and participation) - More results as consequence of de facto practices - The Civil Rights Movement and its leaders would not stop putting pressure on the federal government until it agreed to not only pass legislation, but also make sure that they were enforced.

Conformity Costs

- Difference between an individual preference and the actual outcome - How closely does the collective decision match what you would have wanted to do on an individual basis?

Why Federalism?

- Distaste for England's unitary system - Failure of the Articles of Confederation - Pragmatic political compromise at the Constitutional Convention

Lemon v. Kurtzman, 1971

- Does providing government funding to Catholic schools for books and technology violate the Establishment Clause? - In this case, the Supreme Court ruled that Pennsylvania's Nonpublic Elementary and Secondary Education Act, which the superintendent provided government funding and teacher reimbursements to private and catholic schools, was unconstitutional

Brandenburg. Ohio, 1969

- Example of imminent and lawless action - There was a Ohio law that criminalized the inciting of others to overthrow government. This was done so in this case in a KKK rally at the height of the Civil Rights Movement. The Court ruled: KKK rally- teaching violence is not illegal because it does not incite people to engage in lawless action right away, it was not inciting others to engage in violent manners at the present moment

Barron v. Baltimore (1833)

- Example of pre-incorporation - Notion of dual citizenship (one's citizenship to state and country) - Implied that there is a distinction between your citizenship to the state and to the country as a whole - Over-use of Barron's property caused a pile-up of sediment that prevented his big ships from coming into his wharf. - Claimed that the government had to compensate him for taking and using his property - Sued for monetary damages on the basis that his 5th Amendment rights of compensation for government taking of property (Taking Clause listed in the 5th) were being violated - Court claimed that the 5th Amendment and therefore the Takings Clause does not apply because Barron sued against a state entity, or the state government, and that the Bill of Rights (first 12 Amendments) only applies to the Federal government. This decision undermined the power of the Bill of Rights - As a result, for a majority of the 19th century, states could essentially do whatever they wanted

Roe v. Wade, 1973

- Extended privacy rights to protect abortion - "if the right to privacy means anything, it is the right of a woman to make personal decisions so fundamental like the decision to bear or beget a child..." - Although on a national scale abortion was legalized through Roe, since Roe, states have implemented significant restrictions on the access to abortion practices. Many cases have upheld state restrictions on abortion: - Webster v. Reproductive Services, 1989 - Planned Parenthood v. Casey, 1992 - Gonzales v. Carhart, 2007

Lawrence and Garner v. Texas, 2003

- Extended the right to privacy to protect sodomy - Ruled that what one does in the privacy of his or her own home is private and should not be subject to government intrusion

National Supremacy Clause (Federalism and the Constitution)

- Federal laws are always superior to state laws (narrow intent, but sweeping language)

Shank v. United States, 1919

- First case that expressed when and how far our freedom of speech extends - Your speech is not protected if it creates "clear and present danger"--we have the right to say whatever we want based on the 1st Amendment and the Constitution, but if that speech creates clear and present danger for the rest of society, your right is no longer protected - Example: yelling "fire" in a crowded movie theater when there is no fire - Criticisms: Not clear enough: "what constitutes "clear and present danger"?, vague standards

Trend toward Nationalization

- Following the 19th century, power has gradually shifted from states to the national government, from dual to shared federalism. Why? Problems often extend beyond state resources and require the assistance of the federal government. Examples include pollution, economic problems, food safety, monetary problems, unemployment rates - States cannot solve problems collectively

Dual Federalism

- Framer's intent and original conception - Authority is mutually exclusive with separate "spheres of sovereignty" - Rigid structure where the states would have the power to do one thing and the federal government would have the power to do another thing with little to no overlap. - This idea is still kind of present in today's government with military and foreign affairs (solely a federal government responsibility)

Reasonable Scrutiny (Rational Basis Test)

- Generally economic - All other classifications that do not impair a fundamental right generally fall under the reasonable scrutiny category - Upheld with a legitimate government objective - i.e. Economic and Tax Regulation (people ho make more money are taxed more--technically treating different groups of people differently but has a reasonable explanation, people who make more should have to pay more in taxes

Freedom of Expression: Obscenity

- Generally less 1st Amendment protection - Political speech is harder for the government to regulate, yet obscene speech (whatever that mat be) may be regulated if: - Appeals to prurient (i.e. excessive or unnatural) interest - Is patently offensive...AND - Has no serious literary, artistic, or scientific purpose - Usually, obscene speech cases will focus on the third aspect, whether it has serious literary, artistic, or scientific purposes

Strict Scrutiny

- Generally race and ethnicity (LGBT rights are uncertain as of now) - Upheld only if necessary to achieve a compelling government interest - Implementation: must be "narrowly tailored" meaning government treatment should only focus or be aimed at the group being scrutinized - Also covers fundamental rights of citizenship such as voting, court access, and moving between states - Biggest hurdle for the government to overcome in order to justifiably treat groups differently - When dealing with fundamental political rights, fundamental rights of citizenship, race, ethnicity, and national origin, the government has the most stringent requirements to justify scrutiny

Interstate Commerce Clause

- Gives the national government the power to regulate economic matters across states - Principle vehicle for dispute of federal over state authority - Under the Constitution, states have the right to regulate intrastate commerce, yet today the line is blurred between when intrastate commerce falls into the realm of interstate commerce regulated by the national government - A lot of laws have been passed in Congress based on reasoning justified by the Interstate Commerce Clause - Intrastate- within states

Unitary system of government

- Governed as a single entity - The central government is supreme and the administrative divisions exercise only powers that the central government has delegated to them

"Democratic"

- Governmental power comes from the people

Piecemeal Incorporation

- Gradual, one piece at a time, nationalization of Bill of Rights provisions into state governments--gradual, steady incorporation over time - Supreme Court as the catalyst through case decisions. There is no set law that implicitly stated that the Bill of Rights provisions were to apply to the states. Coupled with the 14th Amendment and its expression of a national citizenry, the Supreme Court in the 20th century came to use the 14th Amendment came to change the nature of civil liberties and how they protect us

6th Amendment

- Guarantees a citizen a speedy trial, a fair jury, an attorney if the accused person wants one/cannot afford one, and a chance to confront the witnesses who are accusing the defendant of a crime - The court ruled that states must provide an attorney to indigent defendants in felony cases (Gideon v. Wainwright, 1963). In 1973, the Court broadened this interpretation to include misdemeanors as well. - Right to a jury trial for a "serious offense", or an offense that can result in an incarceration lasting more than 6 months

National v. State Power

- How much centralized power while still retaining power for the state governments?

Takings Clause (Listed in the 5th Amendment)

- If the government takes your property, they have to compensate you for it

Libel: Private citizens v. Public Figures

- If you are a oublic figure, you should naturally expect that you will be subject to more criticism and damages. - i.e. politicians- they assume that role knowing that they will receive more libel and slander but that it will be harder to prove in court

Freedom of Expression: Libel and Slander

- Important distinction: we can publish material without the government restraining us, yet we can be held accountable for libel and slander - It is difficult for one to demonstrate that they have been subject to libel and slander. Courts have shown that in order to establish libel, you must prove that one had intent to purposely damage your reputation rather than by accident

Craig v. Boren, 1976

- Involved a local, Ohio law that applied different drinking ages to men and women. If you were a woman, you could drink and buy low-alcohol beer at 18, yet men could not do it until they were 21. Justified it under personal safety. If we make it harder for men to get alcohol, driving accidents will go down. An 18 year old male and a group of men challenged the law. Court struck down the law saying it was unconstitutional. Court ruled that Ohio did not have a good enough reason to favor one gender over another in terms of buying and consuming alcohol (i.e. did not have firm enough statistics to prove that men get in more accidents due to alcohol than women)

Flag Burning

- Is flag burning a symbolic form of speech? - Texas v. Johnson (1989)- "...if there is a bedrock principle underlying the 1st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." - Justice William Brennan

Original Senate (Federalism and the Constitution)

- Lasted until 1913 when the 17th Amendment was passed - For a long period of time, state legislatures got to dictate what went through to the Senate - People saw that the Senate was just acting as an extension of the state legislatures

Miranda v. Arizona, 1966

- Miranda was not informed of his rights before the police interrogation and therefore incriminated himself - Court ruled that criminal suspects must be informed of their rights before a police interrogation

Enumerated Powers (Federalism and the Constitution) (Article I Section 8)

- Necessary and Proper Clause (Elastic Clause) - Interstate Commerce Clause - General Welfare Clause

Articles of Confederation

- No Executive Branch - Each state had one vote - To pass major laws, 9 out of 13 states had to vote in favor of - A Constitutional Amendment required anonymity (such as direct taxation- under the Articles, the national government did not have the power to directly tax the citizens. The states held this power and once they taxed their citizens, they could then decide if they wanted to send money to the federal level for a problem. During the Revolutionary War, the states were willing to commit resources to the collective war effort, but only if other states were willing to do the same (Cooperation/Prisoner's Dilemma) - States held the power=decentralized government

The Right of Privacy

- Not explicitly stated in the Constitution or the Bill of Rights - Implied by the existence of other, explicitly stated, rights (i.e. Freedom of Speech, Free Press) - The Court has recognized the right to privacy (through the 9th Amendment)

Freedom of Speech (Imminent and Lawless Action)

- Our speech is protected unless it is aimed at inciting imminent and lawless action

Voting Rights Act of 1965

- Outlawed discriminatory voter registration tests and taxes (which also disadvantaged poor, working class white Americans) - Authorized federal administration of voting where discrimination took place (generally in the south but was also prevalent in the north) - Resulted in massive voter registration drives of African-Americans in the south

Full Faith and Credit Clause (Federalism and the Constitution)

- Outlines the principle that states are supposed to abide by the judicial board of other states - If you commit a crime in Maryland, you cannot move to Virginia to escape the consequences of committing that crime. - Has been discussed in modern day about same-sex marriage laws

Pluralism

- Policies and laws varying from state to state rather than determined officially by a federal law or act

Still not Incorporated

- Prohibition against quartering soldiers (3rd Amendment) - Grand jury hearings (5th Amendment) - Right to a jury trial in civil cases (7th Amendment) - Right against excessive bail and fines (8th Amendment)

Civil Rights Act of 1964

- Prohibits discrimination based on race, color, religion, gender, and national origin in public accommodations such as voter registration, public schools, and employment - Although there was De Jure equality, did not mean that there was De Facto equality and public schools were not fully integrated until much later. - Women took grasp of the "gender" provision and launched the Women's Suffrage movement, gaining the right to vote in 1920 (19th Amendment)

Civil Liberties

- Protections FROM federal (and eventually state) governments - Outline and guaranteed in the Bill of Rights - Speech, religion, search and seizures, criminal procedure, privacy, etc. - Incorporated by the 14th Amendment into protections from state governments - Congress, not Supreme Court, was the catalyst for incorporation (meaning court cases incorporated civil liberties to state governments as well as federal government rather than Congressional legislation)

Planned Parenthood v. Casey, 1992

- Reaffirmed Roe, but upheld most provisions of a Pennsylvania abortion law. - Established for the first time a new standard to determine the validity of laws restricting abortion. The new standard asked whether a state abortion regulation has the purpose or effect of imposing an "undue burden." Under this test, the only provision to fail the "undue-burden" test was the husband notification requirement.

Content-Based Restriction

- Regulating subject matter or political speech - Much more difficult to regulate content - Standard- "strict scrutiny" (most stringent)- government must present a compelling state interest and must be narrowly tailored in order for the government to have the right to regulate the content of a political expression - Value of the speech is balanced against the social interest in prohibiting the speech

Content-Neutral Restrictions

- Regulating the time, place, and manner in a public forum for which one can freely speak or protest. When is a regulation valid? - Standard- "intermediate scrutiny"- government must achieve a significant state interest and leave ample space for alternative channels of communication - Much easier to regulate than actual content - Example: We have the right to go out and protest in the middle of Route 1, but the state and local government can tell us no you can't because you are protesting in the middle of Route 1 and causing traffic and endangering personal safety - In other words, the government can regulate the manner in which we voice our opinions - Regulating HOW we go about publicly speaking and protesting is much different than regulating the content of WHAT we say

Electoral College

- Representation (apportionment) depends on a combination of state population and state-based representation - States choose method of selecting electors - When no candidate receives a majority in the Electoral College, the House gets to elect the president - When no candidate receives a majority in the Electoral College, the Senate gets to elect the vice-president

"Republican"

- Representation provided indirectly through elections (unlike Direct Democracy)

Judicial Review

- Review by the Supreme Court of the constitutional validity of a legislative or executive act - Judicial review is not established in the Constitution but was established as a doctrine in Marbury v. Madison (1803)

2nd Amendment

- Right to gun ownership for the purpose of self-defense - For decades, the Court has stayed away from 2nd Amendment issues - Right officially recognized in District of Colombia v. Heller, 2008 Incorporated to the states by McDonald v. Chicago, 2010 - Federal and state government may regulate, but not fully prohibit, gun ownership for self-defense

4th Amendment

- Search and Seizure - No unreasonable search and seizures - Exclusionary Rule- evidence in some sort of criminal prosecution that is collected unlawfully should be excluded automatically from trial - Search and seizures are deemed unlawful when there is no search warrant or probably cause - The government cannot collect evidence against us that is in a unlawful or unconstitutional way

The US Constitution

- Short, brief, underspecified, vague - Intentionally ambiguous- so that future governments could adapt and amend it - Imperfect- 27 Amendments (thus far) - Proscriptive- restricts government power (against power of states, against inalienable power of people, against itself) - Undemocratic- slavery, suffrage - Slow-to-change= super-majority needed to amend

Technology and Civil Liberties

- Significant civil liberties issues with the development of technology and what the government can and cannot regulate I.e., domestic wire-tapping, GPS tracking, DNA - Usually these intrusions are justified under the interest of national security, which bring into question a grey area into how far can the government go in the interest of national security? - Ex. DNA- government argues that your DNA is similar to your fingerprint, which people seem to have no problem giving, and therefore does not violate one's Right to Privacy. The counter-argument is that DNA gives more information than a simple fingerprint

The New Jersey Plan

- Single-house chamber with equal representation no matter size of state population - Legislature has some power as under the Articles of Confederation, with added authority to levy taxes and regulate commerce. Can exercise supremacy clause over state legislation - Plural executive can be removed by legislature (on petition of a majority of states) - Courts appointed by executive - Supreme Court hears appeals in a limited number of cases

Slavery: North-South Compromise (Three-Fifths Compromise)

- South wanted slaves to count in their population count because it would mean more representatives in the House. Yet the North argued that since the saves had no basic rights in the states, how could they be considered citizens. - Compromise: no taxing of slavery, return runaway slaves, no restrictions on slavery until 1808, a slave counts as 3/5ths of a regular, white citizen

Pre-clearance

- States must approach the Department of Justice in order to change voting laws= federal authorization to make sure equal voting was happening as well as other rights outlined in federal legislation - Reform was more effective during the Civil Rights Era because a.) social reform was not done by legislation (that was eventually abandoned when the Republicans agreed to give up on Reconstruction so that they could elect Hayes), but rather through lobbying and protest and b.) because the citizens forced the government to enforce their legislation

Neutrality Test

- Still relevant today - More commonly used than the Lemon Test - We want the government to be neutral in religious activities

Bowers v. Hardwick, 1986

- Struck down by Lawrence and Garner v. Texas, 2003

Regents of the University of California v. Bakke, 1978

- Supreme Court ruled that using race as the sole criterion for admission into a university is improper...this was an opinion that did not receive uniform agreement, plurality opinion

The Establishment Clause

- Targets the idea that the U.S. government under the Constitution cannot favor one religion over others - Prevailing principles: government may not favor one religion over another, government may not favor religion over no religion - Commonly interpreted as a "wall of separation between church and state" - Incorporated in 1947

House of Representatives

- Term length: 2 years - Constituency: districts (smaller than a state)

Presidency

- Term length: 4 years - Constituency: Nation

Limits on the People

- The Constitution: responsible to, yet insulated from, popular will - Only US House members selected directly by the people (until passing of the 17th Amendment in 1913, which stated that the Senate shall be composed of two senators from each state, elected directly by the people, for a term of six years, and each senator will have one vote. - Staggered terms for senators - Electoral College - Voting rights left to states - Appointment of judges (not elected by the people)

Foreign Policy

- The Framers placed foreign policy under the administration of the President and the rest of the Executive Branch - Common defense was placed in the hands of the national government - The Constitution forbids any state from entering into a foreign alliance or treaty, maintaining a p=military during peacetime, or engaging in war unless individually invaded. - The President has the authority to make treaties which the Senate is then authorized to advise and consent

Georgia v. Furman, 1972

- The Supreme Court ruled that unless a uniform policy for determining who is eligible for capital punishment exists, the death penalty will be regarded as "cruel and unusual punishment. - Death penalty shall not be used for its racial bias tendencies

Commerce Clause

- The U.S. Congress shall have the power to "regulate commerce with foreign nations, and among the several states, and within the Indian Tribes"

General Welfare Clause

- The ability to tax citizens so that the government can use the money to promote general welfare

Separation of Powers

- The act of vesting the legislative, executive, and judicial powers of government in separate bodies

Free Exercise Clause

- The government is prohibited from interfering with the practice of religion unless it becomes "abhorrent to most members of society." Meaning, you cannot practice your religion without penalty if it places other members of society in danger - Government may not prohibit free exercise of religion unless it has a "compelling interest." The government needs to have a really good reason to interfere with your right to freely practice a religion Incorporated in 1940

Legislative Checks and Balances

- The legislative branch has the power to approve Presidential nominations, control the budget, and impeach the president - the legislative branch can override the president's veto with a two-thirds vote in Congress - The judicial branch interprets laws, but the Senate in the legislative branch confirms the President's nominations for judicial positions, an Congress can impeach any one of those judges and remove them from office

Texas v. Johnson, 1989

- There was a Texas law at the time that made it illegal to burn a US flag - Burning a flag is an expression of a political idea that does not incite imminent, lawless action, and thus is constitutionally sanctioned (protected) - Just because you are offended personally by someone burning a flag does not mean you have the right to prevent them from doing it--its a form of free speech

De Jure Equality

- Through the law. There is some legal basis for establishing equality (14th and 15th Amendments most associated with Reconstruction- granted citizenship to former slaves, and the fifteenth prohibited states from denying one's right to vote based on race, color, or previous condition of servitude) - Specific law --> discrimination

Transaction Cost

- Time, effort, resources used to produce a collective decision or agreement - Increases as the number of participants increase

Scrutiny

- Treating different groups of people differently

The Virginia Plan

- Two chamber legislature with representation based on state population - Lower chamber of the legislature elected by the citizenry; upper chamber, executive, and courts elected by the lower house - Legislature can make any law and veto any state legislation - Council of Revision (composed of Executive and Court) can veto legislation, but legislature can override with majority vote - Power laid in the House of Representatives Was going to centralize all power in a single assembly completely based on population--small states would've lost almost all voting power

Great Compromise

- Two-chamber legislature with lower chamber (House of Representatives) representation based on state population and upper chamber (Senate) representation equal for every state - House of Representatives reserves the right to levy taxes - The Senate confirms all federal judges, top executive branch appointments, and ratifies treaties

Grutter v. Bollinger & Gratz v. Bollinger, 2003

- Upholds racial distinctions for universities - Claims that diversity is compelling state interest - Race cannot be an override consideration- i.e. quotas are unconstitutional

14th Amendment

- Vehicle of incorporation - Initially set out to establish a national citizenry and grant former slaves citizenship while protecting them - Went against the notion of dual citizenship as established in Barron v. Baltimore (1833)- right of citizenship should not be subject to state control - It was a political strategy by the Republican party during Reconstruction to grant blacks the right to citizenry so that they could be counted in the population for state-based representation counts in the House, to maintain Republican control of the government, and to prevent southern Democrats (Dixiecrats) who were pro- slavery, to control of the national and even state governments - Includes the Due Process and Equal Protection Clauses

Marbury v. Madison (1803)

- William Marbury and three other judges were appointed circuit court judges in the final hours of the Adams' administration, however when James Madison, Jefferson's secretary at the time, refused to grant Marbury and the three other judges their commission, they petitioned for a write of mandamus - Chief Justice John Marhsall denied the petition and refused to grant the writ. Although he recognized that the judges were entitled to their commissions, he ruled that the Constitution did not give the Supreme Court the power to issue writs of mandamus because section 13 of the Judiciary Act of 1789 though says the Court may issue writs of mandamus, is inconsistent with the Constitution - Although the immediate effect of the ruling was to deny power to the courts, it's long-term effect has been to grant power to the courts with the rule that "it is emphatically the province and duty of the judicial department to say what the law is."

Federalist #10

- Written by James Madison and defends the republic form of government - This paper dealt with tyranny of the majority and ways in which factions can be dealt with - Solution: a large, diverse, populated republic (the more diverse, the less factions and majority opinion)

Executive Checks and Balances

- executive branch can veto laws made by congress

Costs of Collective Action

-Transaction Costs -Conformity Costs

Principles

-What we want the agents (reps.) to do after we elect them

Categorical Grant

-federal government directs states on how to spend money (education, public roads)

Imminent Lawless Action Test

1. Does it incite others to engage in immediate, lawless action? 2. A danger is present only when it is likely to be carried out 3. Still a prevailing precedent today

The Lemon Test

1. Purpose: a statute must not be to advocate religion 2. Effect: the statute must not advance religion 3. the statute must not foster an excessive government entanglement with religion

Why Nationalization?

1. Solve Collective Action problems= Tragedy of the Commons (pollution, natural resources, and the EPA) 2. Coordination problems - Commercial Motor Vehicle Safety Act (1986)- centralized state drivers' licenses - A big problem was truck drivers having a bad record in a certain state, moving to another state, and simply getting a new license. This act gave permanent records 3. Strategic Political Concerns - Easier to lobby 1 Congress than 50 individual state governments - National Government may be more "politically friendly" i.e. Civil Rights

The U.S. Constitution (two basic goals)

1. Solve a set of collective action problems= solution- more centralized authority. Delegate power from states to national, centralized government. 2. Minimize the dangers from delegation= solution- place limits on government

Recent S.C. Restrictions on Commerce Clause Authority (Recent Restriction on Nationalization)

1. United States v. Lopez (1995)- Involved the Gun Free School Zone Act of 1995. A high school student carried a concealed weapon into a school zone. Federally prosecuted and indicted for violating the Gun-Free School Zones Act of 1990. Is the 1990 federal act unconstitutional because it exceeds to power of Congress to legislate under the Commerce Clause? Court ruled that yes, the possession of a gun in a school zone is not an economic activity...that might have a substantial effect on interstate commerce, therefore Congress overstepped its authority. 2. United States v. Morrison (2000)- rape case, in which the Court ruled that Congress lacked the authority to enact a statute under the Commerce Clause or the 14th Amendment since the statute did not regulate and activity that substantially affected interstate commerce nor did it redress harm caused by the state. 3. National Federation of Independent Business v. Sebelius (2012)- In recent times, the supreme court has ruled in favor of smaller, local government and has put the breaks on continuing to extend on how broad they are going to interpret the Commerce Clause

Collective Action Solution Common Features

All solutions require government to make sure everybody is following the rules, identify who is not following the rules, and then to dole out punishments for not following the rules

Coordination problem

Even with collective agreement and a collective willingness to contribute to a group goal, how do you coordinate efforts with those of other individuals

Federalists' Response

Federalist Papers: written by Alexander Hamilton, James Madison, John Jay under the script name Publius

Free Riding

If citizens think that their contributions to a collective goal are: small, will not affect success of failure, think they can enjoy a collective benefit without cost--> leads to collective goal failure

Large v. Small States

Representation- Under the Articles, each state had one, equal vote that smaller states now did not want to give up and this created tension.

Tragedy of the Commons

Self-interest trumps the collective goal a collective good is in danger of being squandered ex.) Maryland fishing industry. without government, people would act out of self-interest and therefore destroy the crab and fish populations and ruin many people's livelihoods

Coordination problems (causes)

Uncertainty- what is the best plan of action, and what are the consequences of your actions? insufficient information

Challenges of political and social choices

With a large, diverse nation, how does one go about determining which opinion, expressed by our representatives in Congress, is the opinion that should prevail. Then, how do we determine which course of action is best