American Gov Exam #2

Which amendment deals with unreasonable search and seizure?

4th Amendment

Which amendment contains the Due Process Clause, and protects against self-incrimination?

5th Amendment

Which amendment grants the individual the right to have counsel?

6th Amendment

Which right prevents against cruel and unusual punishment?

8th Amendment

"'Every law is a discovery, a gift of God, a precept of wise men

According to Demosthenes, how is natural law discovered?

Who said, "Men do not make laws. They do but discover them"?

Calvin Coolidge

What were the primary questions of McCulloch v. Maryland

Can Maryland tax the National Bank? Has Congress power to incorporate a bank?

Equality of opportunity is rooted in which philosophy?

Capitalism and Property

Give the facts of the case about McCulloch v. Maryland (1819)

Congress created the Second Bank of the US, but the Constitution never expressly said that it could create a bank. Maryland then passed a law that taxed the bank. This was problematic, given that to tax something is to assume control of it, and potentially destroy it.

Equality of No Distinction is rooted in which philosophy?

Radical Autonomy

Which is the first case that established men can't be favored or given preferential treatment over women?

Reed v. Reed

Which court case ruled that one cannot yell "fire" in a crowded movie theatre?

Schenck v US

Which amendment contains the equal protection clause?

14th Amendment

According to Patterson, what are Civil Rights?

"Equal rights, or civil rights, are a question of whether individual members of differing groups, such as racial, gender, or ethnic groups, are treated equally by government and, in some instances, by private parties."

According to Patterson, what is "Judicial Activism"?

"Judges should actively interpret the Constitution, statutes, and precedents in light pf fundamental principles and should intervene when elected officials fail to uphold these principles.

What were the two primary ruling of Roe v. Wade?

1. 14th Amendment's Due Process Clause declared abortions are protected under the right of privacy. 2. The Trimester Framework established when a women has control over her pregnancy. She has complete authority over body during the first trimester, and the State starts to increase control over her pregnancy during the second and third trimester.

What are the two underlying purposes behind free speech?

1. Creates a marketplace of ideas for truth to be pursued 2. It is an attribute of liberty- a free person should have the right to freely express herself

Which provisions did the Southern Delegates want to be included in the Constitution?

1. Property in People 2. Nationalize Slavery 3. Expand Representation in the House

3 prongs to the Lemon Test

1. Secular Legislative Purpose 2. Neither advances nor inhibits religion 3. Not excessive government entanglement with religion

What are two moments that began to solidify slavery?

1. The invention of the cotton gin 2. Dred Scott v. Sanford (slaves are property)

What are the upsides of a system of law rooted in conflict?

1. Truth is discovered through seeing all sides of an issue which are examined and tested 2. Conflict is handled through words, not violence

Which amendment gave women the right to vote?

19th amendment

Which amendment contains the free speech clause, establishment clause, and free exercise clause?

1st Amendment

Which amendment deals with the right to bear arms?

2nd Amendment

Equality of Conditions is rooted in which philosophy?

A mixture of Veil of Ignorance (Rawls) and Socialism (Marx)

Define Equality of No Distinctions

Any distinctions between us are artificial or human made.

How many Africans were sold into slavery and how many came to North America?

Around 12.5 million slaves. Around 400,000

What are civil rights?

Be treated equally by the government

What were the facts of the case of Brandenburg v. Ohio?

Brandenburg, a leader of the Ku Klux Klan, made a speech at a Klan rally. He was later convicted under an Ohio criminal syndicalism law

How did the majority interpret the Commerce Clause in Gibbons v. Ogden?

Broadly

What does clear and present danger mean?

Clear. the threat is unambiguous. Danger: the threat is immediate.

Gibbons v. Ogden is about which constitutional clause?

Commerce

What are the facts of the case in US v. Lopez?

Congress passed a law that prevented guns from being in a school zone. Congress rested its power on the Commerce clause

What is the philosophy of religious liberty in the founding period?

Conscience is not chosen, and therefore must be protected

What does the Latin word Foedus or Federalism mean?

Covenant or League

Which legal institution codified the differences between men and women?

Coverture

Which Court case established intermediate scrutiny?

Craig v. Boren

According to the class discussion, What is judicial activism?

Decisions made for the court that remove decision making for the people.

What is the key question of intermediate scrutiny?

Did the state pursue an important governmental interest in a way that is substantially related to that end?

According to the Accommodations and exchange strategy, how did the government promote religion?

Direct funding of certain religious groups Teach religion in schools Public pronouncement which support religion

Define De lure Discrimination.

Discrimination based on the law.

Define "De Facto Discrimination"

Discrimination based on tradition and habit

Which case declared that an individual has the right to keep arms?

District of Columbia v. Heller

Describe a. hypocrite in a modern sense

Doing one thing and saying another

Which Supreme Court decision justified slavery?

Dred Scott v. Sandford

What do the Anti-Federalist predict how judges will interpret the law?

Equity or the Spirit of the Law. Words will lose their power and therefore the people and their representatives will be subjugated to judicial tyranny

What rule came about from Mapp v Ohio?

Exclusionary rule

What were the facts of the case regarding Wickard v. Filburn?

Farmer Filburn grew 12 acres of wheat, instead of the 11 allocated to him. He argued that the excess he grew was unrelated to commerce since he grew it for his own use.

To better understand federalism, describe the marbled cake metaphor?

Federal and state power is mixed, just like a marble cake that blends together chocolate and vanilla. In other words, it is characterized by concurrent powers.

To better understand federalism, describe the layer cake metaphor?

Federal and state powers are separate and distinct, just like a layer cake. In other words, it is characterized by exclusive powers.

What are specific civil liberties?

Freedom of speech, of the press, of religion, the right to bear arms, to have a fair trial, to be judged by a trial of our peers, and not to self-incriminate

What were the facts of the case of Gaines v. Canada?

Gaines wanted to go to law school in Missouri, but the state did not have a law school for African Americans.

What were the facts of the case for Griswold v. Connecticut?

Griswold, head of planned parenthood, was convicted under the Connecticut law that criminalized the provision of counseling to married persons for the purpose of preventing conception.

In Gideon v. Wainwright, why was the defendant's case taken tot he Supreme Court?

He prepared a hand-written note to Chief Justice Earl Warren, and the supreme Court took the case.

For Antigone, natural law is unwritten and steadfast customs of God... An unjust law is not a law.

How does natural law allow people to disobey positive law?

What was the central question in Reed v. Reed?

Idaho created a law that mandated men govern the administration of estates over women if there is a conflict.

What is the Bad tendency test?

If speech interrupts the public welfare, it can be regulated

What were the facts of the case of McCreary County v ACLU?

In McCreary County, public officials constructed three different Ten commandment displays

What are civil liberties?

Individual rights

According to textualism, how should words be interpreted?

Interpretation of words should be done on the principle of reasonableness, not strictly or loosely

How did Lincoln understand the power of the Declaration of Independence?

It created a Spirit of Equality, helping move the country away from slavery.

In Duren v. Missouri, the Court said the state of Missouri was guilty of sex stereotyping. What did the state do wrong?

It created a law that allowed women to receive an automatic exemption from jury duty since they are the primary caregivers of the home.

Describe a hypocrite in a classical sense

It is actor, or someone who takes on a role without really believing in the contents of that role. In essence, it is espousing a set of viewpoints to advance one's own interest without actually believing in those ideals.

What is the strict interpretation of the Necessary and proper Clause in McCulloch v. Maryland?

It must be absolutely physically necessary. In other words necessity is so strong that one thing to which another may be termed necessary cannot exist without that other. Under this interpretation, Congress could not create a bank

What did Planned Parenthood v. Casey establish?

It no longer declared abortion as a fundamental right It replaced the trimester framework with the Undue Standard test

What is procedural due process?

It permits the government to take action that may have grave consequences, provided it follows due process.

What is Substantive Due Process?

It prevents government from taking some actions against an individual regardless of the procedural protections provided.

What is the wall between church and state?

It says that there must be little to no contact between state and religion

Key figure to the Textualist/originalist approach to interpreting the law?

Justice Scalia

What type of law os the Declaration of Independence rooted in?

Jefferson says, Laws of Nature and Nature's God

Who were the key Founders of the loose constructionist approach to interpreting the law and the constitution?

John Marshall and Alexander Hamilton

3 Critiques of a purpose based approach?

Judges usurp the role of legislator and illegitamently become lawmakers Law becomes subjective, allowing judges to determine what is? The People often have no recourse to make changes, which hurt democratic sensibility

What act did Marbury v Madison overturn?

Judiciary Act of 1789

Key figure to the Purpose Based/Living Constitution approach to interpreting the law?

Justice Breyer and Justice Brennan

4 Problems with law?

Law can be inefficient it does not cover all situations it does not allow for drastic changes it restricts the will of the people

Define "Stare Decisis"

Legal Precedent, or rulings based on previous decisions.

2 key rulings Lynch v. Donnelly

Lemon test can be used to protect religious speech in a government sphere The beginnings of a new test: religious speech can be protected as long as it is passive and has tradition

What is the definition of modern freedom?

Liberty as license (free to act) and negative (no one can tell you what to do)

Which case established Judicial Review?

Marbury v. Madison

What are the four types of judicial opinion in the Supreme Court?

Majority Opinion Concurring Concurring in Judgement Dissenting Opinion

What is the mean and end of the judicial test of intermediate scrutiny?

Mean: Substantially related - End: Important Government Interest

Which arguments did Views of Minority; the Committee on Privileges and elections present to show that women should vote?

Men also have no experience when they first start to vote Women and Men are both dependent Some Men cannot fight and they are not stripped of their voting rights

How did the Founders understand the role of man and women?

Men and Women had different roles. They were split between the public and private sphere

Which Supreme Court case declared that women do not have a right to vote?

Minor v. Happersett (1874)

What is the philosophy of religious liberty found in the 20th Century?

Neutrality; People should be given a choice to choose their beliefs, and so the government must steer clear of promoting one belief over another.

Does the Right of Privacy explicitly appear in the Constitution?

No

Under Craig v. Boren, can the state of Oklahoma treat women differently concerning the drinking age?

No

What were some of the key problems with the Article of Confederation?

No ability to regulate economic activities between the states and no ability to conscript citizens to fight

Does the Bill of Rights originally apply to the states?

No. They only applied to the federal government

How is one made a Supreme Court Justice?

One is appointed by the president and confirmed by the Senate.

According to the purpose based approach, how should words be interpreted?

One should look at the purpose of the law, legislative history, and the consequences of the law

What is a Covenant?

One understanding is that it is an agreement that forms a people or community

Which Supreme Court case established the bad tendency test?

Patterson v. Colorado

What happened in Lynch v. Donnelly

Pawtucket set up a Christmas display

What case did the Brown V. Board of education decision overturn?

Plessy v. Ferguson

What are exclusive powers?

Powers are not shared between two actors - one has the power and the other does not. For example, the federal government has exclusive power over currency and immigration

What was the ruling for Schenck v. US?

Presented clear and present danger; Schenck was convicted

What are the facts of Roe v Wade?

Roe, a Texas resident, sought to terminate her pregnancy. Texas law prohibited such abortions.

Equality under the law is rooted in which philosophy?

Rule of Law

To ensure that words are interpreted in a reasonable manner, what tools do textualists use to interpret text?

Rules of Interpretation or Canons of Construction (Noscitur a sociis words are known by their companions) Rules of Construction - Innocent until proven guilty

What were the facts of the case for Schenck v. United States?

Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment

What are six purposes of law?

Security Predictability Conflict Resolution All cases are treated alike 'Protection from officials Binding to the past

What is the incorporation doctrine?

Selected rights are applied to state governments

What principle did Brown v. Board of Education establish?

Separate but equal is unconstitutional. Segregation confers a sense of inequality and a sense of inferiority

What principle did Plessy v Ferguson establish?

Separate, but equal. Segregation (1) does not confer inequality nor (2) does it confer a sense of inferiority.

What are two ways this philosophy was translated to public policy?

Separation of Church and State Accommodation and Exchange strategy

What was the ruling of Griswold v. Connecticut?

Several amendments cobbled together created a new constitutional right to privacy

Where does judicial review originally emerge?

Sir Edward Coke in England declared that judges can use natural law to revoke earthly or positive law.

How was slavery upheld under Dred Scott v. Sanford?

Slaves were property and had no right to access court. Congress couldn't outlaw it on these grounds.

What is the two prong test of the Incitement test or the Imminent Lawless Test?

Speech can be prohibited if: 1. if it is "directed at inciting or producing imminent lawless action" 2. if it is "likely to incite or produce such action"

Terminiello v. City of Chicago reaffirmed which principles of speech?

Speech invites dispute, conflict and even unrest

What were the facts of Sweatt v. Painter?

Sweatt applied to University of Texas Law School. They denied him admission. But, Texas had built a law school in Houston for African Americans.

What was the ruling of Sweatt v. Painter?

Texas violated separate but equal. The facility in Houston was not equal to UT Austin's law school on tangible and intangible grounds.

Which amendment banned slavery and involuntary servitude?

The 13th Amendment

What was the ruling of Eisenstadt v. Baird?

The 14th Amendment's Equal Protection clause extended the right to privacy to individuals

Which amendment was used int he 1970's and beyond to treat women and men equally?

The 14th amendment

What were the rulings of McCulloch v. Maryland?

The Court established the "Necessary and Proper Clause" which gave Congress the power to create a bank. It did so on the notion of INFERRED POWERS that flowed from the explicit powers to lay and collect taxes, borrow money, and regulate commerce in the form of a bank

What was the ruling of Gideon v. Wainwright?

The Court incorporated the right of counsel to the states. In other words, the state had to provide Gideon a lawyer.

What was ruling in Miranda v. Arizona?

The Court specifically outlined the necessary aspects of police warnings to suspects concerning their constitutional protections.

Critiques against Roe v. Wade?

The Doctrine of Due Process was not followed - due to lack of history, no right can be created from it. The Trimester framework is unworkable

Which three important points came about from the Constitution related to slavery?

The Fugitive Clause 3/5 Clause The Slave Trade

What were the facts of the case in Heart of Atlanta v. United States?

The Hotel refused to serve black customers

What test came about from Brandenburg v. Ohio?

The Incitement Test or the Imminent Lawless Action Test

What principle did Everson v Board of Education establish?

The Neutrality Doctrine, or "Government may not favor one religion over another or support religion over no religion.

What standard was reached by the ruling of Heart of Atlanta Hotel v. US?

The Public Accommodation Standard, preventing places like Hotels, from discriminating on the basis of race.

What did Article VI accomplish and what was it named?

The Supremacy Clause established that federal laws, "shall be the supreme law of the land".

What was the ruling of Wickard v. Filburn?

The Supreme Court held that the commerce clause empowered Congress to regulate how much Filburn could grow.

5 Anti-Federalist critiques of the Supreme Court

The Supreme Court is undemocratic It will decide cases based on Equity The Supreme Court will subordinate the other branches of power The Supreme Court is just another body of aristocrats It will weaken the power of juries, or the power of the power to determine what is just.

What is appellate jurisdiction?

The authority to review a case already heard by another court.

What is the broad interpretation of the Necessary and proper Clause in McCulloch v. Maryland?

The constitution does not "exclude incidental or implied powers" so them the Constitution creates "inferred" powers. Necessary could then be described as "convenient, or useful, or essential to another." Under this interpretation, Congress can create a bank.

What was the ruling in Gibbons v. Ogden

The court interpreted the commerce clause broadly, saying the licenses issued by Congress overrule those by the state of New York.

What was the ruling of McCreary County v. ACLU

The displays were deemed unconstitutional. They did not have a legitimate secular purpose and were actively having a primary effect of advancing religion.

What is the difference between the national government and state governments?

The federal government has limited powers and enumerated powers while state governments have general powers and police powers

According to Patterson, what was the purpose of federalism?

The founder wanted to erode state power and have the federal government grow in prominence

According to Patterson, what is "Judicial Restraint"?

The idea that policy decisions in nearly every instance should be decided by elected lawmakers and not be by appointed judges

Define Equality Before the Law

The law treats everyone in an impartial and fair manner. It should not be designed to hurt people due to their race, gender, ethnicity, or religion.

Define the Exclusionary rule?

The legal principle that evidence gathered by unconstitutional means cannot ordinarily be used in trial.

What is judicial review?

The power of judges to declare a law to be unjust and or unconstitutional

How did Lincoln understand the fate of the power of the Declaration of Independence?

The spirit of equality started to erode in the South, helping move the country towards Slavery

What was the ruling in Gaines v. Canada

The state of Missouri's action of treating Gaines differently was unconstitutional.

What are the facts of the case in Gibbons v. Ogden?

The state of New York gave a monopoly to Livingston and Fulton to navigate the waterways between New York and New Jersey. They then allowed Ogden to issue license on these waters. Gibbons did not go to Ogden for license. Instead, he went to Congress

According to Brutus, what are the problems of Federalism?

The taxing power of the Federal Government will destroy the states.

How do judges apply precedence in their particular cases?

They rely on the distinguishing principle, or determining if the facts of their case align with a previously established principles that shown to work.

Key Founder of the strict constructionist approach?

Thomas Jefferson

What is the philosophy behind privacy?

To be free from unchosen responsibility

What two principles were established in Van Orden v. Perry that justify the use of religious symbols in public?

Tradition and Passive

What was the central ruling in Schlesinger v. Ballard?

Treating men and women differently in terms of promotions are constitutional

In what case was the commerce clause found to be unconstitutional in justifying a Congressional law?

US v. Lopez

What was the question of the case in Van Orden v Perry?

Was a Ten Commandments display permissible to have on Texas's state capitol grounds?

Define Equality in the State of Nature.

We are free to act, or free from being acted upon; we are our own rulers

Define equality of opportunity

We are given an equal chance to excel in life. Labor is the biggest source that distinguishes us.

What is an "Adversarial System"?

We resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law.

Define Equality of Conditions

We should share in a more equitable fashion material and economic blessings, even though we each are born with different gifts and talents. Marx: From each according to his ability, to each according to his need.

From the Latin "rex", it means right

What does the title "king" mean?

Cicero says, "True law is right reason, harmonious with nature, diffused among all, constant, eternal."

What is natural law?

Human created law that is authorized and empowered by an authorized human source.

What is positive law?

What is a concurring in judgement opinion?

When judges agree on the outcome, but disagree on the reasons.

What is a concurring opinion?

When judges agree on the reasons and outcomes of a case, but also want to add an additional reason for the outcome.

What is a dissenting opinion?

When judges disagree on the reasons and outcomes of a case

What were the goals set forth in the Seneca Falls Convention of 1848?

Women have a right to vote, have access to higher education, and receive custody of children after divorce

Which arguments did the committee on Privileges and Elections present to show that women should not vote?

Women have no experience Women are dependent They are unable to fight

Under Riley v. CA, does searching someone's cell phone require a warrant?

Yes

What was the ruling of Brandenburg v. Ohio?

You can't punish abstract speech, even if it is vile

Define jurisdiction in the judicial system?

a court's authority to hear certain cases

What is a majority opinion?

a judicial opinion agreed to by more than half of the members of a court

Why is precedence or state decisis so powerful and persuasive?

it establishes time tested principles and practices that work It makes the law predictable, preventing government from becoming arbitrary and capricious

3 Critiques of Textualism

it is too rigid law is often imprecise Times change and therefore makes the law dated

What are concurrent powers?

powers are shared between two actors. For example, the federal governemnt and state government can both tax

What is Habeas Corpus?

the right of a person to hear charges against him/her, leads to right to a trial