AP Gov semester 1 final

standards in various courts

hunch - no value reasonable suspicion - low standard, you can frisk them preponderance of evidence/probable cause - arrest beyond a reasonable doubt - the prosecutor must prove the defendant's guilt "beyond a reasonable doubt." 100% certainty

discovery: Purpose and definition

- Discovery - Both sides will share their evidence with each other - there shouldn't be any surprises during a trial

5th amendment

"nor shall be compelled in any criminal case to be a witness against himself" applies only to testimony - not physical evidence like handwriting samples, voice samples, fingerprints, breath test, blood sample or police lineup

probation

(usually with a suspended sentence) - don't go to jail but have conditions that must be met to stay out of jail - if they fail conditions then they go to jail for the suspended sentence

misdemeanor

- (less than a year in jail) the police arrest when they want

gender discrimination

Gender Prior to 1971, court had traditional view of gender allowing women to be excluded from jury duty (1961) or blocked from being a bartender (1948) 1971 - Reed v Reed - court struck down state law that stated probate courts should give preference to men in determining who should administer estates. 1981 - Mississippi University for Women v Hogan - exclusion of men from nursing program was unconstitutional - heralds an end to publicly funded single-sex education 1996 - Sup. Court orders that women must be admitted to the Virginia Military Institute (a publicly funded military school) US v Virginia Rostker v. Goldberg (1981) - Congress may require men but not women to register for the draft Lehr v Robertson (1983) mothers, but not fathers, of children born out of wedlock required to be notified prior to adoption proceedings for their children

Free speech standards: preferred position

General principal is that free speech has a "preferred position" because it is fundamental importance in the democratic process. The speech that is most protected is political, the least is speech that has no relation to public affairs, no role in the search for the truth or is harmful.

Cases and Controversies - no advisory opinions

first established when Washington sent a letter to the Court asking if he could get advice from them on issues that might not quickly come before the Court. Chief Justice John Jay responded that the Court was constitutionally bound not to go beyond its role as an arbiter of judicial questions)

bail: Purpose and definition

• Assuming the defendant pled not guilty the matter of bail is discussed - Bail is a sum of money used to guarantee that the defendant returns for trial - Court will consider seriousness of charge, ties to the community, and history of "jumping" bail

civil procedure

• Civil -- Citizen (or government) vs Citizen (or government) • Preponderance of the evidence (51%) • Most common is either contract or tort • Contract -- "we had a deal" • Tort -- "You hurt me" • Penalty is $$$$ or court order (possibly an injunction - a court order stopping the enforcement of a law or rule) - Compensatory damages - Punitive damages Write letters - complain file complaint receive answer discovery/pre-trial hearings jury selection trial award (possible appeal)

philosophical

a theory about government that helps guide interpretation of the text legal positivism natural law

parole

- after jail/prison sentence the convict is usually on parole which is like probation - conditions that must be met to stay out of jail

civil rights definition

"Positive right"-government takes action to halt discrimination- any unreasonable or unjust criterion of exclusion even if done by public accommodations that are privately owned General Discrimination Law: Not all discrimination is illegal: allowed forms include discrimination based on academic skill, attractiveness, athletic ability, etc. .

Tu Quoque

"but you do it too"-- often an accusation of hypocrisy - challenging a speaker's argument because they do the behavior they are condemning - "You say that we should ban smoking in public places, but I know for a fact that you are a smoker."

competitive federalism

"competitive federalism" - states compete amongst each other to make themselves more attractive to business - can create a "rush to the bottom" - popular egs - 21 Right To Work states make unionization more difficult, Texas law environmental law attracts chemical companies, tax incentives offered to employers to locate businesses in states/county/city

Articles of Confederation - weaknesses - reasons for weaknesses - a few strengths maybe?

(1777) - Created during the Revolutionary War (began being used in 1777, ratified in 1781) - The states retained their sovereignty and operated independently of the federal government - A single-chamber Congress with each state getting one vote - Amendments had to be unanimous - No executive branch - Enforcement left to the states - No judicial branch - No agency for resolving disputes between the states - Just a unicameral legislature - one member selected by the state legislature (one vote per state) - Federal government could only request funds, no ability to directly tax its people. - No means of regulating interstate commerce States could tax each others goods - States and federal government printed their own money - No federal enforcement powers - As a result: foreign countries could play states against each other in trade deals -- radical elements control Pennsylvania and Rhode Island Leg - instituting currency inflation - frightens the elite but the federal gov is powerless to intervene

impact of McCulloch v Maryland and the Necessary and Proper Clause

(1819) - chief Justice Marshall (who suffered in the Valley Forge because of a decentralized taxing and spending system under the Articles of Confederation) argued that a central bank was necessary for national security (as a means of paying soldiers from Oregon to Boston). In addition, Congress can use the Necessary and Proper Clause to establish a national bank because Article 1, Section 8 includes the right to lay and collect taxes, borrow money and regulate commerce. Thus is born an expansion of Congressional power.

impact of Gibbons v Ogden and Interstate Commerce

(1824) - In a case over which layer of government can grant steamboat monopolies the court ruled that article I, section 8 means that in cases that involve commerce between the states (ie "interstate commerce") the federal power is supreme -- The feds thus have the power to improve commerce through subsidies, land grants, building roads, etc . . . But when the Congress wanted to regulate local economic conditions (minimum wages, right to organize unions, no child labor) it was restricted because the factories, workers and often the goods did not cross state lines

Washington DC v Heller

(2008): In a 5-4 ruling, a ban on handguns and a requirement that rifles and shotguns be disabled in Washington DC was an unconstitutional infringement of the Second Amendment. The court held that the second amendment protected an individual right to possess firearms for private use. Individuals did not need to be members of the militia (National Guard) for the right to exist. The ruling did not apply to state laws or regulations. Lower courts have upheld new rules that require firearms registration and a ban on assault rifles - guns are an individual right (but DC isn't a state)

Chicago v McDonald

(2010)-- Chicago had some of the most restrictive gun laws in the US amounting to a complete ban on firearms -- the question was whether the 2nd amendment applies to state laws as well. Court ruled that the 2nd amendment did apply to the states - guns are an official individual right within the states (full incorporation)

Constitutional Convention - rules/details

(May 1787) - 29 delegates selected by state governments - none from Rhode Island - Hot Philadelphia summer, windows shut to keep deliberations secret - Secrecy - all deliberations would be secret - Madison's notes published in 1840 - No issue was considered closed and could be revisited at any time - Each state got one vote and a majority of each state's delegation had to be present and in agreement in order to have vote counted - Each delegate could speak only twice until after everyone else had the opportunity- no one could speak more than twice on each issue without special permission of the convention members - All comments were made to the president of the convention (Washington) - Everyone was expected to pay strict attention to what was said

Standing - definition - three prong test, facial challenges, mootness

(person must be able to show injury) Comes from British common law Standards for determining standing: injury, causation, and redressability (environmental, establishment clause) - "Facial challenges" occur when a litigant challenges a law before it is implemented, usually arguing that the impact of the law is so dire that the law must not be implemented -- courts are generally less supportive of these claims as the case is "unripe" - Crawford v Marion County Election Board (2005) upholds an Indiana law requiring gov-issued id to vote 3. Mootness (problem must still exist) Exception: Roe v. Wade (capable of repetition, yet avoiding review)

Per curium rejections or opinions

(usually a rejection but can be reversal or uphold) - a brief, unsigned opinion (usually used to reject review)

Roe v. Wade

- 1973 - establishes trimester system for pregnancy and abortion regulation - 1st - can't regulate abortion - 2nd - can regulate, but can't ban - 3rd - you can ban - now abortion is a FEDERAL subject

Amending the Constitution - means of doing so and the most-used path, ERA, fear of a "runaway convention"

- 27 amendments so far - (we usually just reinterpret things because amending is hard) - 2/3 house and senate OR - 2/3 state legislatures vote for it, we have a new constitutional convention (never done - we fear for a runaway convention that will reset the entire government) AND - 3/4 state vote approval OR - 3/4 states call for immediate conventions (21) ERA - gender equality - states begin to resend their approval

What rights have not been incorporated

- 3rd - troops in your home - 5th - grand jury - 7th - trial for anything over 20 dollars - excessive bail and fines

Constitutional Convention - Bill of Rights - reasons for and against -- process

- Anti federalists think it's necessary - Federalists don't want it - don't need it - what if we leave something out? - The government has not been given the power to violate your rights so there in no reason for a bill of rights

Declaration of Independence - justification for revolution - role of Locke - complaints

- Calls for inalienable rights, equality, creates a polity through grievances against Britain - - Attempts to unify a disparate country by articulating a history and set of principles to forge a national unity ? - Whig ideology, Lockean philosophy and English history hold that power can be abused and so must carefully be watched Complaints of declaration: 1) impedes local government (interferes with local courts, legislatures, law enforcement) 2) inflicts bad government (deprives colonists of fair trial, representative government) 3) economic interference (taxes and trade) 4) inflicts violence (foment violence) So the causes of the revolution: - economic - taxes, monopolies challenge economic interests - political - the rights of the people are being taken away - Lockean The shift from salutary neglect sparks a powerful reaction because of Locke, Whig ideology and British history - intro about right to revolt - list of grievances

Certiorari and habeas corpus writs

- Certiorari: A discretionary writ ordering that a case be heard by the supreme court - HC: A discretionary writ says that the person must be brought before court (almost always for a person appealing a criminal conviction

classical republicanism

- Civic virtue - goal is collective good - Freedoms limited to those needed for democracy (right to vote, criticize gov, etc..) but not privacy, freedom of religion, etc . . . - Government is the source of rights - Moral education: designed to develop the right habits of citizenship and your position within the world, as well as admire heroes of antiquity, but not too much education. - Small, uniform communities (Aristotle said a state should never exceed 100,000 - classical Athens was about 140,000 - only 40,000 were citizens) -- Factions could tear a community apart so communites should be unified and homogenous in wealth, religion, moral beliefs The Golden Mean - "all things in moderation' -- the goal is to encourage the "well-rounded' student and not necessarily excellence in all topics

federal courts

-- Cases in federal courts involve federal law, treaties with other nations, or the US Constitution -- Civil cases involving the citizens of more than just one state and dealing with more than $50,000 may be heard in federal court If so few cases are heard on the federal level, why do we pay so much attention? 1 -- It is in federal courts where the laws and constitution that govern all Americans are interpreted 2 -- It is where the powers and limitations of the increasingly powerful federal government is tested 3-- By having the final authority to review state court decisions, it is where the final decision are made

Edmund Burke - critique of the French Revolution and Social Contract thinkers in general

- Reflections on the Revolution in France -- 1790 - Irish, member of Parliament - supporter of American and Irish Independence: both struggles were about restoring rights that had been violated - critical of the French Revolution as a movement that violated fundamental rights. Hesitant to praise the revolution until we know how the unleashed liberty of the revolution will be used - There was a value to the feudal system - restrained violence, honor, chastity, duty, nobility - Now the law is based on force and individual self interest - With revolution now justified - leaders will be quicker to crush dissent and subjects will rebel from principle instead of actual injury - We can't know what was lost by throwing away old systems - If society is indeed a contract it is not a simple contract that exchanges goods and services - partnership - Revolutions are the product of atheistic men of letters - "a literacy cabal" bent on the destruction of the church and privileged within the literary world - These men have been successful is channeling popular anger against wealth into anger against royalty

Congress - appellate jurisdiction (or "jurisdiction stripping"), pay, confirmation, political question

- Sometimes Congress establishes new paths for litigation by establishing a new standing category (Endangered Species Act's Citizen Suite Provision) or a new legal grievance (Americans with Disability Act) Congress has allowed for "fee shifting" - citizens who win a suit against officials for violation of their rights (or for violations of federal law) can collect their attorney's fees and costs Judges are appointed by the president and confirmed by the Senate - can change the makeup of the court Congress can change the size and appellate jurisdiction of the federal courts (most recent successful uses of "jurisdiction stripping" were three laws in 1996 which limited immigration reviews + tort and habeas claims from state prisoners) Appellate Jurisdiction: Ability to rule on appealed cases. Congress determines which cases are okay.

Lower Federal Courts

-- Federal District Courts are trial courts of jurisdiction -- Similar to state courts in procedure (but feds are stricter because they require a grand jury, a 12-member jury trial, and a unanimous jury verdict) -- US Court of Claims has jurisdiction over cases involving government compensation to private citizens -- US Tax Court handles income tax cases -- Customs Court handes tax cases involving tarriffs -- An administrative agency within the US Patent and Trademark Office handles patent infringement cases

Full Faith and Credit - Gay marriage and the Defense of Marriage Act - Hollingsworth v Perry, Windsor decision, Obergefell v Hodges

- States are allowed to be different - Can be wide variety in criminal statutes, punishments, etc . . . - States are required to give "full faith and credit" to honor the "public acts, records, and judicial proceedings" of other states 1993 - Hawaii - court considering gay marriage - voters will later amend the state constitution to ban 1996 - Defense of Marriage Act - a federal definition of marriage is created (man-woman) and states don't have to recognize same-sex marriage of other states 2008 - California voters pass Proposition 8 that amends the California Constitution to specifically ban gay marriage—28 other states have constitutional bans on gay marriage, 21 states ban it legislatively, one state has legal gay marriage (Massachusets) February 2011 -- President Obama concluded that DOMA was unconstitutional and directed the Justice Department to stop defending the law -- US House of Representatives announced that the House would defend DOMA -- 2013 -- The court rules 5-4 in Windsor v United States (2013) that DOMA violates the due process clause of the 5th amendment. States still have option of blocking gay marriage at the state level 2015 - Obergefell v Hodges - Gay marriage is a right for all under the Equal Protection Clause - states can no longer ban gay marriage Article 4, section 2 - privileges and immunities - known as the Comity clause -- Citizens from one state have the same rights and the citizens of another state, federal, state, federal

14th amendment

- appears to directly impose the Bill of Rights of the states - "Section. 1. 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." turning point from Barron (or supposed to be) - designed to protect freedmen from states - states are limited - strikes down Dredd Scott - people born in the US ARE citizens - privileges and immunities - due process - equal protection four parts - citizenship: born in US = automatic citizen - due process: use this to selectively incorporate rights, usually is just a procedural right, so they create substantive due process (if no process to take it away, taking it away violates due process) - equal protection: mostly applied to anti discrimination efforts - privileges and immunities: would have incorporated bill of rights to states (but doesn't because of slaughterhouse cases)

Privileges and Immunities - What is it?

- can't target people from different states - (out of state tuition isn't considered to apply to this)

14th amendment -- citizenship -- Jus Soli and Jus Sanguines

- citizenship - born in US - automatic citizen - strikes down Dredd Scott - people born in the US ARE citizens

trial courts

- determines guilt/innocence - determines the facts of the case - a judge explains the law to the jury, and they apply the law

Brandenberg v Ohio

- emergence of "imminent unlawful act" or "imminent danger" standard - the speech must create an "imminent" threat with the likelihood that the listeners will take action -- Imminent unlawful acts

British actions that angered colonial factions

- end of salutary neglect - British debt motivates parliament to start taxing the colonies - stamp - sugar - Townsend - Declaratory - Proclamation - quartering - tea - intolerable acts - Stamp Act and other taxes in the 1760s threaten the interests of the merchants and the planters ---- The act is eventually repealed and the alliance disbands with the traditional elite supporting the soldiers during the Boston Massacre - 1773 - British grant a monopoly on the export of tea from Britain and the company works to sell directly to the colonies instead of through merchants ---- An unpopular monopoly on tea, leads to the Boston Tea Party in December 1773 ---- Britain responds with the intolerable acts, aimed at punishing Boston by closing the port with 3,000 troops and putting Massachusetts government under direct control of the Crown ---- Colonists around Boston begin amassing food, ammunition and weapons.

complaint: Purpose and definition

- how you commence a civil case - file a complaint - any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought

Exclusionary Rule --Weeks v US, Mapp v. Ohio

- if you're gathering evidence illegally, you have to exclude it from the trial (the problem is that guilty people can get away with it BUT thats all) - applies to feds: Weeks - applies to states: Mapp exceptions: Good faith: US v Leon inevitable discovery: Nix v Williams

impact of philosophy thinkers on modern American values and institutions

- locke brings a justification for revolution to the table - locke brings legislative and executive 1789 - US Constitution: explicit rights of the individual, apply to all (radical) Individual rights: Magna Carta - 1216 - limits on gov - written protection - rights only for lesser nobility Reformation - 1500s - 1600s - changes the idea that people must be guided - empowered individuals toward their own salvation 1564 - Galileo 1643 - 1727 - Newton 1650 - Enlightenment - forces that apply to everyone equally (like gravity) - no more superiority 1689 - English Bill of Rights - mostly only benefits parliament - writing - Parliamentary Supremacy - 1800s - anti slavery, enslaving people is morally wrong - 1945-46 - Nuremberg/Tokyo tribunals - people arrested and jailed for human rights violations 1948 - UN declaration of rights 2002 - international criminal court

felony

- more than one year in prison - in a criminal trial, if the arrest is for a felony, the prosecutor must go to a Grand Jury to get an indictment (formal accusation)

civil liberties

- negative right - restricts government ONLY, not private enterprises - "I am free because my government is not" - apply to all people in the US - no right is absolute - compelling state interest can limit it (but it depends on how compelling)

violation

- no jail time, fine

Constitutional basis for Privacy rights

- nowhere explicitly in the constitution, but Griswold v Connecticut establishes it as a "penumbral right" - emanates from the spirit of the constitution (blend together 1, 3, 4, 5, and 9th amendments together)

5th amendment -- self incrimination

- originally designed to ban torture - now it's designed to help the problem of false confessions - the cases are designed to create specific procedures

Structure of the Supreme Court: number of justices, function of chief justice

-- Made up of a chief justice and eight associate judges -- Chief justice presides over sessions but has the same number of votes (1) as the other eight justices. -- Constitution does not specify the # of judges -- In the early 1800s there were 6 -- Then 7 -- In 1869 Congress sets the size at 9 -- In 1937, FDR asks to expand the size of the court so he can place some judges sympathetic to his policies -- Congress balked but the Court got the message and became much more supportive of the New Deal

Locke - the differing states of nature, the role of the individual, where rights come from, the purpose of the state, the purpose of education, the social contract, in what ways are we NOT a social contract state, how to handle factions, differing views on revolution, the general will

- pro-parliament family - tabula rasa - concerned about the majority - you don't own property if you don't work on it - doesn't like concentrations of wealth - supporter of Glorious Revolution (1688) - Two Treatises of Government published in 1689 - state of nature - more relaxed than Hobbes, there is a natural law of right and wrong - natural law - all men live under a natural law that is universally understood (self preservation) - BUT individuals interpret it, which makes our rights insecure -- SO people permanently join together to create a social compact to protect their lives, liberty and property -- when they join they give up the ability to interpret natural law and enforce it (explicitly join or maybe tacit consent) -- 2 parts: - legislative: creates law - executive: enforces law -- government is limited to the consent of the majority -- Revolution: if government consistently no longer is proficient/serves the consent of the majority then it has rebelled against the people and the people can rebel against the gov. Domestics revolution -- The individual does not have the right to revolt, only the majority

due process (know the difference between procedural and substantive)

- rather than privileges and immunities, this is used to selectively incorporate rights to apply to the states - BUT this seems weird, because due PROCESS implies a PROCEDURAL right - procedural right: how the government is supposed to act, specific actions - SO they create SUBSTANTIVE due process - substantive: what government cannot do. If there is no process to take a specific right away, then taking it away violates due process

Limited relief - dicta, case specific, "massive resistance" - school prayer and desegregation

- relief goes to an individual and not a group Dicta - while a general no-no, some judges will opine on a question (legal or political) that is outside the scope of a case (examples: Dredd Scott, Newdow)

enlightenment

- response to medieval era - embrace of science - factually based conclusions - asks why we created the gov and how we justify gov without divine right

Student rights

- special because school is coercive and students are malleable - you still have rights, but not as many

Aristotle/Plato - where the state comes from, the role of the individual, where rights come from, civic virtue, the purpose of education, in what ways are we NOT a classical republican state, how to handle factions, the animating spirit

- state has always existed, state precedes the citizens - rights come from the state - individuals have roles depending upon their place in society, all should be dedicated to the common good (civic virtue) - Education: teachs people to be good citizens, but is limited through the Golden Mean - Golden Mean: everything in moderation, appreciate art but not everyone is an artist - Factions should't be a problem, keep the number of the people in a place small and maintain a MASSIVE middle class (not so desperate as to mislead by despots, ignorant, immoral, and don't know how to obey as the poor but not so enervated by wealth, ambitious and scheming, and refuse to obey as the rich) - MAN IS A POLITICAL ANIMAL INCAPABLE OF ACTING OUTSIDE THE POLITICAL ORDER - to be outside the political world indicates you are not human- -- The opposite of nature is apolitical -- the opposite of apolitical is citizen -- that whole has an animating spirit that gives its government life -- the collective wisdom of the polity - The constitution is a manifestation of the animating spirit -- The best would be a middle or "mixed type" form of constitution

Swann v. Charlotte-Mecklenberg Board of Education (1971)

- state-imposed desegregation could be brought about by busing children across school districts

how rights are incorporated

- takings clause is first - 1st amendment rights - criminal rights - 2nd

textualism

- the meaning of the constitution is in the plain words of the document. Dictionaries and other tools can be used to help decipher the text but the meaning is found within the words themselves forms: clause-bound: each clause should be read as an independent entity whose meaning is bound within itself structuralism: the whole document (including the preamble) should be read to get a global feel for what the document says purposive: the intent of the text is what is crucial

Miranda v Arizona

- the police have to tell you their rights if you're in custody

criminal rights - 4th amendment

- the reasonableness clause - "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" (emphasis added) - But who does this apply to ?? - federal government, state government (incorporated in Wolf v. Colorado in 1949) but not employers or private citizens acting on their own - it also applied to all PEOPLE in the US, not just the citizens - General tendency is to ask: is there an expectation of privacy? - Home has more protection than car, garbage at curb, open field, or barn

arraignment: Purpose and definition

- within 24 hours of their arrest a defendant must be told why they are in jail

state courts

-- 99 percent of all cases are heard in state courts (criminal and civil) -- Cases are tried in the state where the crime occurred or where the alleged contract or tort dispute occurred -- State law and state precedent applies (unless there is a question of federal law) -- Laws are similar from state to state (murder is illegal) but not exact (only some states have the death penalty) -- Most states have adopted the Uniform Commercial Code to create a unified set of rules for contract disputes -- State laws can vary greatly in family law

French and Indian War - impact

1754-1763 - the French-Indian War costs about a million pounds - French threat is removed and allows colonists to look inward - British quarter soldiers in people's homes and colonists told they don't have same rights as the English - Rise in colonial patriotism - British debt motivates parliament to start taxing the colonies - G-Wash is a celebrity

Federal Appellate Courts

-- There are 12 federal Appellate Court Districts -- There are as few as 6 judges in the first district and as many as 29 in the 9th circuit -- about 12-16 in other districts -- There are a total of 181 judges at this level (and about 20 vacancies at this time) -- The 9th circuit covers most of the west coast and has 29 appeals court judges -- decisions here are final unless heard by the US Supreme Court -- More than one judge hears every case (usually three) -- If a three-judge decision is particularly controversial the decision can be reviewed by all the appeals judges in the district (called an 'en banc') In the 9th district it is 11 of the 29 appeals judges. -- Primary duty is to review appeals in the circuit -- It also reviews requests for stays of execution if the Supremes are not in session

RAV v City of St Paul, Virginia v Black

-- neutrality 1992- Struck down Cross burning ban that criminalized such actions or placing objects or symbols that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender" -- In R.A.V v City of St Paul justices rule that the ordinance is content based and thus unconstitutional 2003 -- Virginia v Black -- cross burning can be banned if done to intimidate

Amicus briefs - what are they and when do they have the most impact

-Amicus curiae brief (friend of the court) written by groups who don't have direct standing but still have an interest - Supreme Court gets about 200 a year, most from Solicitor General

Federalist 78: main arguments, why the judiciary is not a threat, why the judiciary is needed

-The judiciary has the least power to be tyrannical It has no power over the sword (force) nor the purse (money) It only offers judgment (and requires the executive to enforce its judgment) -The judiciary is the weakest of the branches because it cannot attack the other two and needs to be careful when defending itself. -While the judiciary will not be the source of tyranny an independent judiciary is needed to guarantee liberty -The life-term nature of the Supreme Court gives the court independence from the other branches and is thus vital -The independence of the courts are essential -There are certain limits to legislative power no bills of attainder no ex post facto laws etc... -These limitations can be preserved only through the courts "whose duty it must be to declare all acts contrary to the manifest of the Constitution void." -Some questions have arisen over whether the courts are superior to the other branches; after all, can't the court void legislative and executive acts? But: 1) No act can be valid if it is in violation of the constitution (i.e. the social contract) 2) To say otherwise would mean the Congress is the law of the land, not the Constitution 3) That would mean that the representatives have more power than the people -But can't the legislature be its own judge of constitutionality? -That would allow the legislature to substitute its will for the people's -The courts were designed to be an intermediary of the people to ensure that the legislature does not exceed its authority -Only the courts are qualified to interpret the law - so it is the Supreme Court's job to discern the Constitution's meaning, discern a law's meaning, decide if there is a conflict, and then invalidate a law if it conflicts with the constitution (so the peoples will exceeds their representatives) -This does not mean that the judiciary is superior to the legislature - just that the people's will (as expressed in the Constitution) is superior to the legislature's will (as expressed in statute) -If the court is to act as an effective bulwark against legislative encroachment then lifetime tenure is a must -The judiciary also acts to temper the temporary excesses of the majority (and the endangerment of minority rights) -Of course, the people have the right to write a new constitution if it is inconsistent with their happiness" -But if the people, on a whim, act against the constitution - then the judiciary should defend the document, even though it may be difficult to oppose popular legislation -The judiciary will act as a protector of minority interests -The court will mitigate laws that arise -The legislature will modify unjust laws even before passing them because they will want to avoid judicial action - this helps create a better character of the government -The integrity and moderation of the courts should be encouraged because you never know when you could be the victim of injustice

Judicial review -- Where does it come from? Acts of Congress (know you Marbury v Madison), Acts of the states

-The power of the courts to judge the legality/constitutionality of the actions and laws of the elected bodies. -Not in the body of the Constitution (though most political scientists would say the framers thought about it and assumed it would exist in some form, see fed #78). -Inferred from Article III: "The judicial power of the United States, shall be vested in one Supreme court, and in such inferior courts as the Congress may...establish...The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United Sates, and treaties made, or which shall be made, under their authority. -Power derived (or clarified) (or taken) from series of cases in the 1700s. Power to review acts of President, Congress: Marbury v Madison (which invalidates part of the Judiciary Act of 1789) Power to review acts of states: Supremacy clause, judiciary act of 1789, Fletcher v Peck Power to review acts of lower courts: Supremacy clause (if state courts), Logic of a hierarchical court system (if federal)

principles of government

1 - all political outcomes have a reason - assume rationality 2 - politics is collective: informal bargaining and formal bargaining, but nonetheless a collective action 3 - institutions matter: problems result in standardized responses 1 - jurisdiction: who handles the problem 2 - decisiveness: who makes the decisions 3 - agenda: how things pan out 4 - delegation: giving authorities to others 4 - outcomes are the result of individual preferences and institutional procedures 5 - history matter and plays a role in how you think about things

why federal cases are important

1 -- It is in federal courts where the laws and constitution that govern all Americans are interpreted 2 -- It is where the powers and limitations of the increasingly powerful federal government is tested 3-- By having the final authority to review state court decisions, it is where the final decision are made

Barron v Baltimore and dual citizenship

1833 - Barron loses because Bill of Rights only applies to the federal government - dual citizenship - clear violation of the "takings clause" under the 5th amendment - but the federal bill of rights does not protect against state actions so Barron loses - Civil war answers question of whether states can secede (no) but not how much states must follow the federal constitution

Slaughterhouse cases and the Privileges and Immunities Clause

1873 - guts the the privileges and immunities clause - 5-4 decision -Purpose of the 14th was to protect African Americans as a class and that the 14th amendment only constrains the federal government, not the states (noting that the citizenship clause recognizes a federal and state citizenship - due process is also viewed as a limitation on procedures of government and the question in Slaughterhouse is substantive

Gitlow v New York

1925 -- Free speech incorporated in Gitlow v New York

brown v Mississippi (5th amendment)

1936 - Brown v Mississippi -Sup Court begins to look at state interrogations -- Court establishes the "totality of circumstances" in determining if a confession is voluntary or did not have the power to resist - police conduct becomes the crucial element in determining if testimony was voluntary To be considered under "totality of circumstances": youth of defendant, use of psychological techniques, mental illness, intelligence and education of defendant - court finds this standard too vague to give police clear guidelines.

Engel v Vitale

1962 -- violation to start school day with a recited prayer (Engel v. Vitale) -- major political backlash ensues (E) - prayer in school

Escobedo vs Illinois (5th amendment)

1964 - Escobedo v Illinois - when a particular suspect has emerged they have a right to an attorney during interrogation

Griswold v. Connecticut

1965 - privacy established - penumbral right - emanates from the "spirit" of the constitution, rather than the words of it

miranda v Arizona (5th amendment)

1966 - Miranda v Arizona - rejected "totality of circumstances" with an objective procedural safeguard: The Miranda warning "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed" Miranda warnings are not required for: non-custodial interrogations (where a reasonable person would feel they have a right to leave) or comments made during a traffic stop

Lemon test

1971 - Lemon v Kurtzman -- To help guide lower courts the court established the Lemon Test: "1- it has a secular purpose, 2- its primary effect neither advances nor inhibits religion, 3 - it does not foster an excessive government entanglement with religion" -- case looked whether public money could be used to pay parochial teacher's salaries, textbooks and instructional materials -- 8-0 court said no

title IX

1972 amendment to the Civil Rights Act of 1964 - introduces the controversial title IX which bans sex discrimination in any educational program that received federal funds How to comply? • Prong one - Providing athletic participation opportunities that are substantially proportionate to the student enrollment, OR • Prong two - Demonstrate a continual expansion of athletic opportunities for the underrepresented sex, OR • Prong three - Full and effective accommodation of the interest and ability of underrepresented sex. Issues under Title IX: Practice times, Field quality, Facility quality, Travel, Equipment, Coaches, Cheerleaders Supreme Court follows up with Franklin v. Gwinnett County Public Schools (1992) - monetary damages could be awarded for gender discrimination (like for Title IX) - leads to an increase in complaints

Brewer v Williams (5th amendment)

1977 - Brewer v Williams - "Christian Burial Speech" to defendant amounted to interrogation

Rhode Island v Innis (5th amendment)

1980 - Rhode Island v Innis - conversation between officers about dangers of shotgun lying around is not interrogation

Edwards v Arizona (5th amendment)

1981 - Edwards v Arizona - when a lawyer is requested the interrogation must stop and not resume until a lawyer is present

Oregon Employment Division v Smith

1990 FE -- neutrality standard Court shifts from state having to show a compelling interest, to just having to show a law is neutral (ie not created to target a religion) -- thus adherents of Native American religions who use peyote can be fired as drug and alcohol counselors and not get unemployment benefits

PP v Casey

1992 - replaces trimesters with "undue burden" - you can't ban/create regulations to strict that they become a de facto ban

Lee v Weisman and Santa Fe v Doe

1992 -- local clergy cannot be invited to deliver invocations and prayers at graduation ceremonies (Lee v Weisman) -- court considers the "coercive" element of the school environment 2000 -- student-led prayer before football games not allowed (Santa Fe Independent School District v Doe)-

Church of Lukumi v City of Hialeah

1993 (FE)-- laws banning animal sacrifice overturned because the law targeted Santerians

impact of US v Lopez and Interstate Commerce

1995 -- U.S. V Lopez - strikes down the Gun Free Schools Act - part of Rehnquist court push to enhance power of the states The Rehnquist Court begins to limit use of the Commerce Clause

Lawrence v Texas

2003 - sodomy statues are struck down

impact of Raich v Gonzalez and interstate commerce

2005 - Gonzalez v Raich - medical marijuana can be prosecuted by the federal government even if legalized by the states (based on Wickard v Filburn) expands commerce clause

Morse v Frederick

2007 Morse v Frederick -- student can be suspended for holding up banner saying "Bong Hits for Jesus" -- "It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge,"

impact of National Federation of Independent Businesses v Sebelius

2012 upholds the individual mandate to buy insurance under the general welfare clause but in separate opinions a majority also argue that law is NOT legal under the commerce clause as was argued by the administration Majority of justices (7!) block an expansion of medicare because it required the states to agree to the expansion or lose all federal money coming from the program - now states can either join the expansion or not and not risk losing their entire Medicare budgets limits general welfare

cell phones and GPS cases

2012 - United States v. Jones - The defendant's conviction for drug trafficking must be reversed when some of the evidence to convict him was obtained through a GPS tracking device on his car, because the attachment of the GPS tracking device and then the use of that device to monitor the car's whereabouts is a "search" for purposes of the Fourth Amendment. 2014 - Riley v. California - The police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

Salinas v. Texas (5th amendment)

2013 - Salinas v. Texas - if someone remains silent and does not explicitly plead the 5th, this can be used against them in court

levels of police interaction

3 layers 1. interactions - no burden - no legal responsibilities/authority - no coercion 2. Terry Stop - Terry v Ohio: not probable cause, but reasonable suspicion - reasonable suspicion: police can detain you for a limited duration (20ish minutes) to investigate a crime - limited duration - can't open bags, just a pat-down outside of clothing (stop-and-frisk) 3. arrest - probable cause: "you probably did it"

False Dilemma or the Missing Middle

A limited number of options (usually two) are given, while in realist there are more option. "If you're not part of the solution, you're part of the problem"

"Dual federalism" - layer cake and the 10th amendment

A political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers accorded to them without interference from the federal government. Plenary authority of the states McCulloch v Maryland: US federal bank - elastic clause and necessary and proper clause stretch federal power 10th amendment - "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

original jurisdiction

Ability to rule on something the lower courts haven't touched (a case that isn't on appeal). Federal courts are granted original jurisdiction in cases involving interpretations of United States laws, maritime law, cases involving citizens of different states, cases between ambassadors and representatives of foreign nations, cases between state governments, and cases in which the United States is a party

Adarand Constructors v Pena (1995)

Adarand Constructors v Pena (1995) - race-based policies (such as preferring to give federal contacts to minority-owned businesses) must be examined under a strict scrutiny standard (ie must be a compelling state interest)

Constitutional Convention - reasons why it was called

Annapolis Conventions (1786) - Calls for Congress to send delegates to a convention in Philadelphia to revise the articles - Shay's Rebellion - attempts to stop foreclosure by keeping courts in Mass. from sitting -- Shay tries to capture the federal arsenal at Springfield -- Appeal made to federal gov gets no response -- State militia is able to disperse mob within a few days -- Insurrection is embarrassing and worrisome - G-Wash is a national celeb, and he come back - legacy - experiences during the war - traveling to his property

Ad Populum

Appeals only to popular opinion as a justification of a claim. Especially tricky in a democratic system where the people are the final arbiters of policy. "Most Americans believe in UFOs. UFOs are real."

Ad Verecundiam

Appeals to an unqualified, unidentified, or biased source to support a claim. "Michael Stipe, the lead singer of REM, supports gun control. So that means I do too."

Ad Hominem

Attacking the person making the argument instead of the arguments they are making. "People who vote against school levies are just greedy and hate children."

Straw man

Author attacks an argument, which is different from (and usually weaker than) the opposition's best argument. "We should bring back the draft. People don't want to enter the military because they find it an inconvenience. But they should realize that there are more important things than convenience."

Charles Beard's thesis of the Constitution and Roche's criticism of Beard

Beard: class-based analysis the makers were all - -- Emphasis on strength, efficiency, and social control in government - Generally rich with significant assets in securities BUT not Hamilton -- Opponents of the Articles included a large number of former royalists who supported the class system of England (BUT Everyone was a royalist before the revolution) -- Traders, financiers, manufacturers who didn't like the Articles and wanted a system that would better serve their interests. Specific complaints: - Holders of government securities didn't like that they weren't getting interest - Owners of western lands wanted greater order on the frontier - Traders wanted to stop interference with interstate commerce - Creditors made about the intentional inflation pursued by some states Hamilton - proposed at the Annapolis convention in 1786 that there be a meeting to revise the Articles - but his real goal was to throw them out - constitutionalists feared that majority rule within the states would lead to oppression of minority interests (especially their property interests) - They sought to balance the fear of despotism with their fear of the "onslaught of the majority" - The delegates were chosen by the state legislatures - they were generally the representatives of elite interests and radicals were not invited In the constitution itself: - There was a great deal of discussion of property requirements for voting - it never made it in only because there was not agreement on the details and the understanding that it would never be ratified (teacher's note - most discussion on property requirements focused on requirements for elected officials, not the voters) Instead other methods were invented to foil the popular will: - Checks and balances - Senate was seen as a bastion of elite rights - The judiciary was not elected - coining money The Federalist papers contain much language that complains of a fickle and foolish public Roche - the only conspiracy was their genuine desire to redesign the government

Bethel v Frasier

Bethel v Fraser - student speeches at school can be restricted (because the speech is profane also)

Brown vs. Board

Brown vs. Board- 1954- court focuses strictly on the impacts of segregation and declares separate facilities are inherently unequal because it "generates a feeling of inferiority in the community that may affect their hearts and minds in a way unlikely ever to be undone." RESULT 1.Race can no longer be criterion for discrimination 2.Federal government would have the power to intervene with strict regulatory policies against discriminate practices- government or private Response to Brown v. Board: instead of the states falling into line - most states refused to cooperate until they were sued and then invented schemes to avoid desegregation (like paying the tuition for white students to attend "private" academies)

Novelties of the US Constitution - Centinel - Fed #14, #15

Centinel's complaints - There is no bill of rights - The constitution should best exemplify the lessons of the past, History produces the options that we have for government - Liberty is too fine a thing to trust to experiments - New federal government would have power to tax and maintain a standing army - next stop despotism - - Federal courts would rapidly supersede the authority of state courts - This is too large a country to rule democratically - House ruled by elites - Senate is undemocratic - "advice and consent" means president has to follow Senate Fed #14 Democracy - people meet and exercise gov in person -- Can be done only in a small area Republic - Representatives meet and exercise gov -- Can be done over a wide area - Republics are what we are talking about with this government, It's what Europe has done as well - We can do a Republic fine because Europe is not too large for Republics to function The federal government is not the only law making body - Communications and roads will improve - States on the borders (farthest from the center) need a strong federal gov Fed#15 Why we need a new government: - We are near impending anarchy, nationally humiliated - "We have neither troops, nor treasury, nor government" - Commerce is falling apart - Our ambassadors are jokes - The value of land is falling indicating a lack of faith in government - Our opponents want to do the impossible: expand federal power while maintaining state power States and individuals can now ignore federal directives - We are in danger of becoming like the bickering nations of Europe making deals with each other and breaking them just as quickly - The federal government must have authority over individuals - Laws need to be enforced either by the courts - Our opponents have said that a sense of common interest will keep such breaches from occurring - But the passions of men will not conform to reason and justice - Factions will help corrupt those passions in deliberative bodies - Plus people want power and won't voluntarily yield it - Local gov may be ignorant of larger gov. goals and aspirations - If this continues the states will eventually leave the union "till the frail and tottering edifice seems ready to fall upon our heads and to crush us beneath its ruins."

Beliefs of the Federalists - importance of civic virtue, power of government, necessary and proper clause, innovation, checks and balances, importance of simplicity

Civic Virtue - We are citizens of both the national and state governments - A good citizen is self interested but will concern himself with the public good out of self interest (to either get his way with the polity or because his interests just happen to coincide) Power of Government - Government should be dynamic: Energy in government is liberty and will allow for grand things necessary and proper clause - increases federal power innovation - valuable and significant checks and balances - new idea, innovative, will prevent domination within the government importance of simplicity? - The government should be complicated as a means of pitting factions and interests against each other (state v federal, branches against each other, house v senate) - The government should be complicated and works fine when people pursue their own self interests - The interests of rich and poor will clash within the system and that will help give it vitality Other Bill of Rights - no need - The government has not been given the power to violate your rights so there in no reason for a bill of rights - Words cannot communicate the meaning of our natural rights - Often rights are so vague that they can be interpreted away ("what does freedom of speech really mean?") - A bill of rights actually enhances the power of government ("The gov. can't do A, B, or C so that means they can do D, E, and F") - The people can take back their authority at any minute and so the mechanisms of popular representation themselves guarantee that rights will not be violated

Beliefs of the Anti-Federalists - importance of civic virtue, power of government, necessary and proper clause, innovation, checks and balances, importance of simplicity

Civic Virtue - A good citizen is virtuous and that is needed for self government - Wealth and poverty should be moderated to create a stabilizing middle class -- believe in the redistribution of property power of the government - The sovereignty of the people is transferred into the government when it is created and there it resides until we see a Lockean-style revolution - The constitution gives the government form - The constitution provides the rules for the government - To interpret the document you must look at the rules that the constitution contains necessary and proper clause - too much federal power, not well defined innovation - The constitution should best exemplify the lessons of the "perfect past" - Liberty is too fine a thing to trust to experiments checks and balances - never done before: dangerous experimentation importance of simplicity - The government should be simple and rely upon representatives that are imbued with civic virtue - A simple government is knowable and is easily made accountable - A confederacy is best where power is retained by smaller state governments that are more accountable and homogenous governments should be stable and static (energy) other Bill of Rights - When the people transfer their authority to the government they hand over all powers BUT those that they specifically note that they are retaining The people can be fooled into sacrificing their liberty, they will come back to their senses but by that point it will be too late Popular will is not always reliable on constitutional-level questions (though usually fine at the statutory level)

Civil Rights Act of 1964

Civil Rights Act of 1964 - Voting - made it more difficult to block African Americans from voting using literacy tests and other devices Public accommodations - barred discrimination based on race, religion or national origin in restaurants, theaters, gas stations, stadiums, and hotels Schools - authorized the attorney general to sue to desegregate schools Employment - Outlawed discrimination in hiring, firing, or pay based on race, religion, national origin, and sex Federal Funds - Barred discrimination in any activity that receives federal assistance

Class action - what is and Walmart case

Class action - groups of litigants join together - in 2011 the Supreme Court blocked a class action of up to 1.5 million women against Walmart saying the class was too big absent a general policy encouraging discrimination - Walmart Stores v Dukes

False Analogy

Comparing two things that are not alike enough or have critical differences - especially prevalent when people claim historical linkages "The war in Vietnam was a horrible waste of life and resources; we should get out of Afghanistan before we lose more lives and resources."

Affirmative action - definition, University of California v Bakke, Gratz v Bollinger, Grutter v Bollinge

Compensatory action to overcome the consequences of past discrimination and to encourage greater diversity (possible practices have included different admission or hiring standards and quotas) preference to underrepresented minorities who have been historically discriminated against 1965 - President Johnson implements affirmative action by a series of executive orders directing federal agencies to pursue a policy of minority employment in federal civil service and in companies doing business with the federal government - becomes a goal in the 1970s for colleges and some private employers (especially if looking for federal and state contracts) Regents of the University of California v. Bakke (1978) - a rigid quota system is a violation but the goal of having "a diverse student body" is a compelling purpose (so race can be taken into account but not as part of a rigid formula) Court in 1979 and 1980 upholds Affirmative Action plans Adarand Constructors v Pena (1995) - race-based policies (such as preferring to give federal contacts to minority-owned businesses) must be examined under a strict scrutiny standard (ie must be a compelling state interest) Hopwood v. State of Texas (1996) - the fifth circuit finds that race could never be used in the admissions process - Sup. Court refuses to hear the case so only applies to Texas, Louisiana, and Mississippi - Texas responds by saying that top 10 percent of classes automatically get admission Proposition 209 in 1996 - Californians ban race and gender preferences in state programs and university admissions - 54 percent passage rate, including 27 percent of the black vote, 30 percent of the Latino vote, 45 percent of the Asian American vote - Sup. Court refuses to hear challenge of the law 1998 the supreme court agrees to hear a case of a white teacher who claims she was laid off because of race, a black colleague hired on the same day was not laid off - before the court could issue a ruling a collation of civil rights groups arranged to pay for a settlement, fearing a sweeping negative decision Grutter v. Bollinger (2003) - 5-4 - The affirmative action policy at the University of Michigan's law school is upheld that takes race into account. The justices ruled that a diverse student body is a compelling state interest. The law school took race into account in considering admissions, looking for a "critical mass" of minority members, but looked at applicants at a case-by-case basis. This case did not affect California and Washington initiatives that banned affirmative action at the state level. The majority opinion (written by O'Connor) noted that some day affirmative action may not be necessary. Gratz v Bollinger (2003) - 6-3 - The court struck down the affirmative action policy for undergraduate admissions for the University of Michigan, which awards 20 points for blacks, Hispanics and Native Americans on an admissions rating scale. This system was seen as too mechanized, with race often the only distinction that determined admission or rejection. Parents v. Seattle (2006) -- 5 - 4, rejected diversity plan from Seattle and in which minority transfer students were given a greater likelihood to get into high-demand schools in their race was underrepresented. The court rejected the policy because failed to meet the "heavy burden" of justifying "the extreme means they have chosen — discriminating among individual students based on race by relying upon racial classifications in making school assignments. " Fisher v University of Texas (2013) - 7-1 ruling that reiterated the reasoning of Grutter - the court reversed a 5th circuit ruling that upheld a University of Texas Affirmative Action program because the lower court was not rigorous enough in determining if the University proved "that its admissions program is narrowly tailored to obtain the educational benefits of diversity."The Majority opinion noted that the burden lies on the University to prove it has satisfied the "strict scrutiny" standard

Guilty by Association

Condemning a speaker because of someone they are associated with while not addressing the arguments they are making "Obama's father was an anti-colonial socialist so we know that we cannot trust him to protect the American economy."

Free Exercise

Congress shall make no law prohibiting "the free exercise of religion" - the courts have held that to mean that while belief cannot be regulated, conduct of adherents can be - belief and action are different

Establishment

Congress shall pass no law "respecting an establishment of religion." -forbids government from setting up a state religion (initially will just apply to the federal government, most of the states did have official religions when the first amendment was ratified (Massachusetts will be the last to remove theirs in 1833) -The clause itself was seen as a reaction to the Church of England, established as the official church of England and some of the colonies, during the colonial era. -Two basic interpretations of the establishment clause -separationist/no-aid approach -relies heavily on argument that Framers intended the clause to erect a "wall of separation" between church and state. -Phrase credited to Thomas Jefferson in a letter to the Danbury Baptist Association in 1802. -nonpreferentialism/accommodationist -holds that the Framers intended only to prohibit Congress from creating a national religion or preferring one religion over another. -more accommodationist stance public support for religion, unlikely to vote to invalidate programs challenged under establishment clause.

civil rights act of 1964 (history and what it does), Title IX, Romer v Evans, voting rights act of 1965 and Shelby County v Holder

Congressional action on Civil Rights Civil rights legislation begins to pickup as Congress and the courts join forces. Both are confronted with "massive resistance" in the South - to further dramatize the point Civil Rights leaders stage protests starting in the late 1950s - the Southern response is so violent and well publicized that sympathy begins to shift slowly -- Civil Rights Act of 1957 - makes it a federal crime to try to prevent someone from voting in a federal election 1963 - police and police dogs attack a demonstration in Birmingham (photo of a dog attacking an unarmed black man have a national impact, Kennedy killed in Dallas, Texas (a southern city), Johnson (who has more leg. Experience) becomes president - 1964 - Democrats take control of House and Senate allowing for the passage of the: -- but not before 19 southern senators filibuster for 8 weeks - eventually a cloture petition was passed and we have the: Civil Rights Act of 1964 - Voting - made it more difficult to block African Americans from voting using literacy tests and other devices Public accommodations - barred discrimination based on race, religion or national origin in restaurants, theaters, gas stations, stadiums, and hotels Schools - authorized the attorney general to sue to desegregate schools Employment - Outlawed discrimination in hiring, firing, or pay based on race, religion, national origin, and sex Federal Funds - Barred discrimination in any activity that receives federal assistance (at roughly the same time the federal government begins to require school desegregation for schools to receive federal funds) Voting Rights Act of 1965 - suspends use of literacy tests and other devices to prevent African Americans from voting by authorizing the intervention of a Civil Service Commission to oversee state voting procedures - states or municipalities with a history of voter suppression had to get any new voting policies of procedures approved an advance (a process known as "preclearance") 2013 - Shelby County v Holder - nine (mostly Southern) states (and a variety of other municipalities including Brooklyn, the Bronx and Manhattan) no longer need to follow the preclearance requirement of the Voting Rights Act - the 5-4 ruling states that punishing states for behavior that happened in 1965 which violates the 10th amendment protection of state's rights. "History did not end in 1965," noted Roberts in his plurality opinion. New discrimination would still be illegal under the act but could not be blocked under "preclearance" Civil Rights Act of 1968 - Banned discrimination in housing Gender Congress Civil Rights Act of 1964 (yes, that same Civil Rights Act of 1964 ) - prohibits sex discrimination in hiring, firing, and compensation of employees 1972 amendment to the Civil Rights Act of 1964 - introduces the controversial title IX which bans sex discrimination in any educational program that received federal funds How to comply? • Prong one - Providing athletic participation opportunities that are substantially proportionate to the student enrollment, OR • Prong two - Demonstrate a continual expansion of athletic opportunities for the underrepresented sex, OR • Prong three - Full and effective accommodation of the interest and ability of underrepresented sex. Issues under Title IX: Practice times, Field quality, Facility quality, Travel, Equipment, Coaches, Cheerleaders Supreme Court follows up with Franklin v. Gwinnett County Public Schools (1992) - monetary damages could be awarded for gender discrimination (like for Title IX) - leads to an increase in complaints Sexual harassment - based on gender discrimination law (specifically the Civil Rights Act of 1964) - is a tort claim that can be filed by the government (usually the EEOC) and injured parties Two forms of sexual harassment: quid pro quo - illegal to request sexual favors in return for promotion or as a condition of employment - strict liability: employer can be found liable even if they didn't hear about it Hostile work place - pattern of offensive sexual teasing, jokes, or obscenity - Negligence: they knew about the hostile environment but did nothing about it

exceptions to warrant requirement (also drug testing)

Consent: subject agrees to search - police do not need to inform suspect of right to refuse Incident to arrest: search of person or areas within their area of control - including the inside of cars and any containers within Exigent circumstances: if the police are in "hot pursuit" they don't necessarily need a warrant Loss of evidence: if there is a danger of evidence being destroyed - scraping of fingernails, blood tests Motor vehicles (have a lesser expectation of privacy): if probable cause to believe car (including trunk) contains contraband, evidence, been used to commit a crime, or it occupants have committed a crime (including a traffic violation). Safety: see Terry stop Plain view: inadvertently seeing contraband or evidence as part of an otherwise legal search Drug testing - federal employees involved in drug enforcement, carrying weapons, or access to classified information (National Treasury Employees Union v Non Raab) or involved in railway accidents (Skinner v Railway Labor Executives' Association) may be subjected to urinalysis—as can high school athletes (Vernonia School District v Acton) or students who participate in extracurricular activities (Pottawatomie Counry v Earls)

Constitutional Convention - 3/5th compromise, importation ban, fugitive slave clause

Constitution as a Racial Document: 3/5th compromise (Article I, Section I, Clause 3) - rewards the Southern states for slavery by expanding their number of representatives in the House (teacher's note - the 3/5 compromise was intended more as an incentive for the Carolinas and Georgia to support Madison's vision of a non-state-based Senate) it was proposed by a slavery opponent from Pennsylvania. The 3/5th number came from a failed proposal (in 1783) under the Articles of Confederation that a state's wealth be taxed is such a way that slaves be counted for 3/5th their value Importation clause - (Article 1, Section 9, Clause 1) "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person" - Originally this was set at 1800 with the blessing of large slave states like Virgina, but smaller states like S. Carloina, N. Carolina, and Georgia objected and pushed to make it 1808. Madison notes that "twenty years will produce all the mischief that can be apprehended from the liberty to import slaves" The matter passes 7-4 on August 25, 1787 Eli Whitney patents cotton gin in 1794 - many more slaves come as a result of this and the extension Fugitive Slave Clause (Article 4, Section 2, Clause 3) "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be dues" Obligates the Northern states to extradite escaped slaves back to the South. The laws of one state, the clause says, cannot excuse a person from "Service or Labour" in another state. The clause requires that the state in which an escaped slave is found has to deliver them to the state he or she escaped from "on Claim of the Party." Ambiguities: slavery is never expressly mentioned in the Constitution. - Virginians Jefferson and Washington both expressed repugnance at the practice of slavery and Washington freed his slaves on his death. Jefferson's original draft of the Declaration of Independence condemned the King for introducing slavery into the colonies, but the language was removed by the Continental Congress. - Slave importation was banned January 1, 1808.

"Cooperative federalism" - general welfare clause, categorical grants in aid, block grants, welfare reform, US v Butler, South Dakota v Dole, FAIR v Rumsfeld, National Federation of Independent Businesses v Sebelius

Cooperative Federalism -- General Welfare Clause (Article 1, Section 8, Clause 1) Fed makes demands BUT uses an incentive (money) with strings (after the new deal, when the Feds were giving a lot of money to the states) Categorical Grants in Aid - money that the feds give to the states WITH STRINGS block grants - federal gov allocates money without strings welfare reform - aid to families with dependent children In US v Butler (1937) the Supreme Court held that the only limit to this clause was that the strings attached to the money somehow satisfy the "general welfare" requirement of the clause. Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. The court then ruled in Helvering v Davis (1937) that it is up to Congress to determine what "general welfare" means. Thus when the states (and other institutions) would subsequently object to strings on federal money, the Supreme Court has repeatedly said that if the states (or institutions) take the money, they take the strings. Example: You want federal highway construction and maintenance money? You need a 55-mile-per-hour speed limit (until it was later repealed) - National Maximum Speed Limit Law (1974) You need a 21 drinking age - South Dakota v Dole (1987) Need to accept military recruiters on your campus - FAIR v Rumsfeld (2006)

Hasty Generalization

Drawing a conclusion based on too few or atypical examples "My friends and I didn't learn anything in driver's education class. That class is just a waste of everyone's time."

Second Amendment

English Bill of Rights: That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law (1689). "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. " The core question is whether this is a collective right or individual right. The collective rights argument holds that the amendment only applies to the national guard. The amendment's function is to protect the federal government from disarming the national guard. It does not protect an individual right to keep and bear arms. Pros: the phrase "well-regulated militia" seems to imply a formal institution like the national guard, would function to limit federal power (which is consistent with the overall purpose of the Bill of Rights), gun violence is a large problem in the United Sttates The Individual rights argument holds that the amendment applies to an individual right to own a weapon. The amendment's function is to protect the individual from seizing their weapons.

exclusionary rule (2 court cases)

Exclusionary rule (applied to federal law enforcement in 1914 Weeks v United States and applied to states in 1961 Mapp v. Ohio)- evidence gathered illegally not be admitted into court - applies usually to improper search and seizure (4th amendment) and the right not to be compelled to give evidence against oneself (5th amendment) Relaxing the exclusionary rule: Good-faith exception - police believed they were following the law (US v Leon 1984) Inevitable discovery - the police would have inevitably found the evidence some other way

Separation of powers -- Membership, function, constituency, when does Madison start talking about it?

Federalist 51 - Madison wants the separation of powers after the Conn Compromise Section #1 - separation of powers is essential to the preservation of liberty. - Each branch should have a will of its own and government should be designed so members of each branch have as little input as possible in the appointment of members of the others. If this principle [separation of powers] was rigorously adhered to, all appointments would have to be made from the same fountain of authority: the people. (Not included: masses may be not qualified to determine the best sort of judge) Each branch should be as little dependent as possible on a different branch for their compensation. Were the executive or the judicial not independent of the legislature on this point, their independence in every other area would be insignificant. (compensation for executive and judicial cannot change while in office) Section #2 Each branch has the necessary constitutional tools and personal motives to resist encroachments. "ambition must be made to counteract ambition" The personal interests of members must be linked to constitutional rights of the office. This doesn't say great things about human nature—"But what is government itself but the greatest of all reflections on human nature?" But politicians are not angels so there is a problem: you must first enable the government to control the governed, and in the next place, force it to control itself. Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that auxiliary precautions are necessary. Section #3 Not possible to give each branch equal power -- In republican government, the legislative authority necessarily predominates.—so we break up the Congress into two pieces - And those two pieces have different constituencies and powers But we may need to do more: presidential veto may be used too rarely or used too much - further checks on the legislature may be necessary Section #4 In a traditional republic, power goes into one government- that is broken into branches - we are a "compound republic" because power is first broken into state and federal levels - and then broken into branches - so we have a "double security" Section #5 Equally important to guard against the injustice which may be inflicted by majorities against minorities. Two possible solutions: Create a will outside of the majority (ie a king or other nonelected leader) - Problem: could back the majority anyway, or turn against the majority and minority Or create such a diverse society that no permanent majority emerges Section #6 under the Constitution, our society is large enough that it is divided into many groups of people who hold different views and have different interests. This makes it very difficult for one group to dominate or threaten the minority groups. -- but if we rely on smaller state governments (like under the Articles) there is the possibility that a majority could emerge to oppress - so big government (like the federal government under the constitution) is best at maintaining liberty.

Native Americans/early America

First Human Immigration First wave - reach as far as South America - Leads to extinction of many large mammals • Second wave - Apache and Navajo • Third wave - Alaska and Canada Agriculture - The growing of maize, beans, and squash allows for permanent cities • The largest in North America (in today's Illinois) had a population of 10,000 and a central Pyramid that covered 16 acres Pacific Northwest Native Americans • Never developed agriculture • Relied upon fishing, hunting, and gathering • Permanent settlements in the Willamette Valley and Coast By the time of contact • Native tribes spoke 375 different languages with distinct economies, politics and cultures • Significant trade networks • No domesticated animals (other than dogs) • No metal tools • No written language • Wheel not developed • No immunity to European diseases European diseases - The first Europeans introduced a host of deadly diseases • The most deadly was smallpox • Some estimates put the Native American mortality rate at 90 percent • Later European settlers find the America's "untouched"

Fletcher v Peck (1810)

First time the Supreme court invalidated a state law. 1795: Georgia state legislature sold land to private speculators for bribes. New legislature repealed law and voided all transactions. Peck purchased land that had been bought under 1795 Act. Fletcher bought land from Peck and sued, claiming Peck didn't have clear title to the land. Supreme Court ruled that state legislature's repeal was unconstitutional since it violated right of contract (I,X,I). Important case for judicial review and contracts clause. Contracts clause - article I, Section X, clause I "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

Fisher v University of Texas

Fisher v University of Texas (2013) - 7-1 ruling that reiterated the reasoning of Grutter - the court reversed a 5th circuit ruling that upheld a University of Texas Affirmative Action program because the lower court was not rigorous enough in determining if the University proved "that its admissions program is narrowly tailored to obtain the educational benefits of diversity."The Majority opinion noted that the burden lies on the University to prove it has satisfied the "strict scrutiny" standard

criteria for review (formal and informal)/reasons for rejecting

Formal 1. Cases or controversies (no advisory opinions) (first established when Washington sent a letter to the Court asking if he could get advice from them on issues that might not quickly come before the Court. Chief Justice John Jay responded that the Court was constitutionally bound not to go beyond its role as an arbiter of judicial questions) 2. Standing (person must be able to show injury) Comes from British common law Standards for determining standing: injury, causation, and redressability (environmental, establishment clause) -Amicus curiae brief (friend of the court) written by groups who don't have direct standing but still have an interest - Supreme Court gets about 200 a year, most from Solicitor General - "Facial challenges" occur when a litigant challenges a law before it is implemented, usually arguing that the impact of the law is so dire that the law must not be implemented -- courts are generally less supportive of these claims as the case is "unripe" - Crawford v Marion County Election Board (2005) upholds an Indiana law requiring gov-issued id to vote Class action - groups of litigants join together - in 2011 the Supreme Court blocked a class action of up to 1.5 million women against Walmart saying the class was too big absent a general policy encouraging discrimination - Walmart Stores v Dukes 3. Mootness (problem must still exist) Exception: Roe v. Wade (capable of repetition, yet avoiding review) Informal Criteria 1. absurd - 10% 2. frivolous - not important for the court - fact specific - will lead to limited new law 3. clear denies - some cases that the court will not address -- Republican Guarantees Clause— "The United States shall guarantee to every State in this Union a Republican Form of Government" Article IV, Section IV Pacific States Telephone and Telegraph Company v. Oregon (1912) and Luther v Borden (1849) -the decision of whether a state is "republican" may be decided only by Congress and the President and is thus nonjusticiable Political Question Doctrine State Secrets Privilege - when the federal government (ie the executive) claims that release of information will reveal state secrets the courts (usually without examining the evidence) will suppress the evidence - established in US v Reynolds (1953) when widows of three crew members died in a bomber crash - they sued Air Force and the gov. was able to block access to records of the flight and aircraft - Seen expanded use following 9/11 As Commander in Chief courts are reluctant to intervene against the President in foreign affairs - Lower courts declined to intervene in the targeted killing of American citizen Anwar Al-Awlaqi (Al-Awlaqi v Panetta in 2010) labeling the matter a political question - Al-Awlaqi was killed in 2011 The court has insisted though that prisoners in Guantanamo Bay are entitled to habeas corpus rights, can appeal their detentions to federal civilian courts and have some due process protections (Boumediene v Bush in 2008) Courts have no enforcement power of their own -- Jackson in 1832 (Worcester v Georgia) Other areas of Political question doctrine - impeachment of judges (Nixon v United States - 1993) and presidential termination of treaties (Goldwater v Carter - 1979) and whether Congress has the ability to set deadlines on ratifications for amending the constitution (Coleman v Miller - 1939) 4. lack of percolation - enough lower courts have dealt with this issue that we know it needs to be addressed 5. bad facts = bad vehicle it's easy to get to the core issue without a whole lot of trouble 6. pipeline = if they know a good case is coming they will wait till its there 7. intractability - they can't see a way out of the problem - so they don't want to get into it Criteria for judging a case certworthy -- it takes a combination of these for the court to grant certiorari 1. circuit conflict - court is interested in uniformity on issues - between fed. circuits, state supreme court cases

Gratz v Bollinger

Gratz v Bollinger (2003) - 6-3 - The court struck down the affirmative action policy for undergraduate admissions for the University of Michigan, which awards 20 points for blacks, Hispanics and Native Americans on an admissions rating scale. This system was seen as too mechanized, with race often the only distinction that determined admission or rejection.

Grutter v. Bollinger

Grutter v. Bollinger (2003) - 5-4 - The affirmative action policy at the University of Michigan's law school is upheld that takes race into account. The justices ruled that a diverse student body is a compelling state interest. The law school took race into account in considering admissions, looking for a "critical mass" of minority members, but looked at applicants at a case-by-case basis. This case did not affect California and Washington initiatives that banned affirmative action at the state level. The majority opinion (written by O'Connor) noted that some day affirmative action may not be necessary.

Hazelwood v Kuhlmeier

Hazelwood School District v. Kuhlmeier - student newspapers can be censored by the principal.

Hopwood v. State of Texas (1996)

Hopwood v. State of Texas (1996) - the fifth circuit finds that race could never be used in the admissions process - Sup. Court refuses to hear the case so only applies to Texas, Louisiana, and Mississippi - Texas responds by saying that top 10 percent of classes automatically get admission

Stare decisis - or the impact of precedent -- Common law

In legal systems based on common law, a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Slippery Slope

In order to show that a proposition is unacceptable, a sequence of increasingly unacceptable events is shown to follow. A slippery slope is a flawed "if-then" argument. "If we pass laws against fully-automatic weapons, then it won't be long before we pass laws on all weapons, and then we will begin to restrict other rights, and finally we will end up living in a communist state. Thus, we should not ban fully-automatic weapons."

colonial life/government slavery immigration political power voting economics attitudes Europe at this time five sectors to colonial society

Introduction of Slavery • Rising wages in Europe diminish attractiveness of American settlement • Tobacco planters shift to African slaves (300 in 1650 to 150,000 in 1750) • As the number of slaves grows the fear of slave uprisings lead to bans on firearm ownership, voting, holding public office and restrictions on travel and education Voluntary Immigration • Fewer English immigrants • From 1707 to 1775 • 80,000 English (down from 350,000 in the 1600s) • 145,000 Scots • 100,000 Germans Political Power England didn't invest significant resources into developing the North American colonies - salutary neglect • Local elected assemblies would control taxes and spending • Colonial legislation had to be approved by a royal governor and then the King • Trade between England and the colonies grows Voting • The thirteen colonies required voters to own a certain amount of land or to pay a specified amount in taxes. • Many colonies imposed religious tests for voting. Catholics were barred from voting in five colonies and Jews in four. • In frontier areas, seventy to eighty percent of white men could vote. But in some cities, the percentage was just forty to fifty percent. (in England, by contrast, about 10 percent of men could vote) Economics • French Aristocrat Alexis de Tocqueville travelled post-revolution Americas and marveled at the social equality (no rigid social classes) and economic mobility • Reasons? - Riches were won and lost at an astounding rate - America filled with people who failed in Europe (very humbling) - Estates were divided amongst children (so large estates became smaller within one generation) - Soil too poor (at least in New England) to support a laborer and a lord Attitudes • The colonies were 13 different peoples who looked to Europe for their rights and protection - Most colonists considered themselves English (with English rights) • Considered their loyalties: 1) Europe (primarily England) 2)Colonial Europe at this time • Aristocracy and primogeniture meant that economic mobility was highly unlikely for those not well born. • Long history of violent internal and external clashes between religious sects • High levels of distrust of those not of your class, religion and national bigotry There were five sectors in colonial society 1) New England Merchants 2) Southern planters 3) Holders of royal lands, patents, and officers 4) Shopkeepers, artisans, laborers 5) Small farmers

Judicial Restraint vs Judicial Activism

JA: a philosophy of judicial decision-making whereby judges allow, mainly, their personal views about public policy to guide their decisions JR: judicial deference to the views of legislatures and adherence to strict jurisdictional standards (looking strictly into the words of the Constitution in interpreting its meaning)

judiciary act of 1789

Judiciary Act of 1789: Statute that established federal courts. During the writing, judicial review was discussed. Federal court jurisdiction on federal matters established over the states to make sure the states followed federal law. Created the office of Attorney General. Gave the Supreme Court ability to issue Writs of Mandamus (the ability of the court to force governmental bodies to fulfill their "ministerial" (as opposed to political duties) as a court of original jurisdiction (supreme court invalidated that in Marbury). In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. —U.S. Constitution, Article III, Section 2, Clause 2 The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts [...] and writs of mandamus [...] to any courts appointed, or persons holding office, under the authority of the United States. —Judiciary Act of 1789, § 13

Constitutional Convention - Connecticut Compromise - you call that a compromise? What is Sherman trying to do? Madison's reaction - what is it?

June 11 - Madison wins a key vote on the Virginia plan in which the House and the Senate seats will both be based on population as elected by local people BUT The Roger Sherman proposal ( make the Senate elected by the state legislatures, with each state having the same # of votes) comes up repeatedly in the next five weeks July 16 -Madison loses key vote (when NY is gone one day) and SHERMAN GETS A SECOND - Senate becomes elected by the state legislatures (plus each state will have an equal number of votes) - Congress is now an agent of popular sovereignty (House) and state sovereignty (Senate) - North Carolina's swing vote is crucial - This is known as the Conn Compromise (in that Madison lets the matter rest) -- Madison begins working on expanding checks and balances as he no longer trusts a Congress that is so heavily influenced by the states (in the Senate)

sources of law

Legislatures (statutory): state and federal legislatures that craft criminal and tort statutes City-County Council (ordinance) Bureaucracy (administrative): state and federal bureaucrats who help "fill in the blanks" to create regulations for vague legislation Courts (common): judges draft rules on how statutes are to be interpreted and those rules are to be followed under "precedent" The people (Constitutional): state and federal constitutions are the highest law in their respective lands

Lehr v Robertson

Lehr v Robertson (1983) mothers, but not fathers, of children born out of wedlock required to be notified prior to adoption proceedings for their children

Hobbes - the differing states of nature, the role of the individual, where rights come from, the purpose of the state, the purpose of education, the social contract, in what ways are we NOT a social contract state, how to handle factions, differing views on revolution, the general will

Leviathin - 1651 - "adopted" by Devanshires as their "house philosopher" - royalist and believer in monarchy, against the English Civil War - State of nature - time before gov, "nasty, brutish, and short," equality (aka universal stealing and killing ruthlessly) in a state of constant war (States are in a state of nature between each other, Native Americans, countries that descend into Civil Wars) - social contract - we bound ourselves together to avoid killing each other, looking out for OURSELVES. Individualistic. - the social contract is between you and your neighbors, not the government, but it isn't about helping others either - social contract is permanant (once you have consented to be governed you can never leave) - Leviathan - mortal god, power, unlimited, created through the social contract but NOT the social contract. We can't control it BUT its better than the state of nature(hobbes thinks best is monarchical) Citizens have no rights to defy the state as the contract was between citizens and not citizens between the state: 1- collectivity - we agree to be part of a common community but can't yet make decisions about what the collective can do 2- Unity (sovereignty) - the single face of all is generated by the creation of a commonwealth - that face decides what is in the best interests of the community -- Government is there to regulate those who deviate and is entitled to do so -- Because you joined to protect your life you are not required to cooperate in your own execution-- of course the gov is still within its rights to execute you, but you can resist -- this is important because the individual is retaining those rights that they sought to ensure by the creation of the polity/government - revolution: absurd, state of nature is bad

Majority, plurality, concurrent, dissent opinions

Majority opinion -- five or more votes - sets law Plurality (the most popular concurring opinion is called a plurality opinion) - five or more judges agree who wins, but not why (so there are more than one concurring) - the most popular (joined by the most judges) concurring opinion sets law (but generally held to be not particularly strong law) Concurring - agrees with the majority or plurality on who wins, but doesn't agree on why that side wins - doesn't make law Dissent - disagrees with the majority or plurality on who wins - doesn't make law

Writ of Mandamus

Mandamus means "we command" in Latin. The court tells someone (a lower court, public official) to do their job in compliance with the law. A mandamus is normally issued when an officer or an authority is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus be issued unless it is to quash an illegal order. Modern Supreme Court doesn't really use it—struck down part of Judiciary Act of 1789 that gave the court the ability in Marbury. Appellate courts can use it, but only in special situations when the lower court abused its discretion.

marbury vs madison

Marbury v Madison: Adams signs the Judiciary Act of 1801 (Midnight Judges) just before leaving office. Tried to fill circuit judgeships with Federalists (anti-Jeffersonian Republicans). Marbury appointed by Adams but commission wasn't delivered. Madison (under orders from Jefferson) didn't give Marbury his commission. Marbury asked Supreme Court for his commission - using the power to issue Writs of Mandamus as a court of original jurisdiction. Supreme Court denied because the court felt it should not have the power to issue Writs and Mandamus as part of its original jurisdiction (the constitution describes the sup court as having original jurisdiction on matters involving ambassadors and where states are parties to a suit, while the appellate jurisdiction is up to Congress) - by invalidating the Judiciary Act of 1789 it allows the court claim judicial review of presidential and congressional actions It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty]. This doctrine would subvert the very foundation of all written constitutions. Excerpt from Marbury v Madison Supremacy Clause: Article VI, Clause II "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Mississippi University for Women v Hogan

Mississippi University for Women v Hogan - exclusion of men from nursing program was unconstitutional - heralds an end to publicly funded single-sex education

impact of NLRB v Jones and Laughlin Steel Corporation and Interstate Commerce

NLRB v. Jones and Laughlin Steel Corporation (1937) in conjunction with Wickard v Filburn (the wheat case) and US v Darby - The Court decides that "among the several states" now means that the federal government can regulate "interstate commerce" so broadly that essentially all commercial activity (including the ease of unionizing a factory) is now under the purview of Congress. Some read these decisions to reflect the increasingly fluid flow of goods across state lines, others see it as an attempt by the court to avoid the court packing that FDR was threatening. Whatever the reason, it is a major shift in reading the Commerce Clause.

"New federalism" - Lopez and Gingrich

New Federalism -Republican's pass the Unfunded Mandates Reform Act of 1995 - Congress must estimate the cost of unfounded mandates, must vote to approve the regulations -Welfare and other federal programs are replaced by block grants - Anti terrorism and Effective Death Penalty Act - limits federal appeals of state death penalties

colonial factions New Spain French Chesapeake Colonies (and slavery) New England West Indies Carolinas Georgia Southern States Middle States Pennsylvania

New Spain - 1500s -- Conquistadors Cortes and Pizarro defeat Aztec and Inca empires - Mines in Mexico and Peru enrich Spain - Demanded labor and crops from conquered tribes - Small outposts in Florida, New Mexico where soldiers and priests attempted to pacify and convert Native Americans French • Initially attracted by trade in furs - introduce firearms and disease into N. America • With few troops and settlers (fewer than 3,000 in 1660) in N. America, relied upon alliances and trade with Native Americans Chesapeake Colonies (and slavery) • Initial settlements (starting in 1607) fail (brackish water, malaria, violent encounters with local tribes) • Emergence of tobacco as cash crop • 3⁄4 of immigrants are indentured servants • There were 15,000 indentured servants between 1625 and 1640 • Rising wages in Europe diminish attractiveness of American settlement • Tobacco planters shift to African slaves (300 in 1650 to 150,000 in 1750) • As the number of slaves grows the fear of slave uprisings lead to bans on firearm ownership, voting, holding public office and restrictions on travel and education New England • At the same time as the Chesapeake Colonies are being created, New England is being established • Puritan movement aims to create a "pure" church - Belief in self examination, humility, hard work, elected ministers - Immigrants had varied skills, more women (rapid reproduction) • Small farms (100-200 acres), rocky soil, short growing cycle • No malaria or tropical diseases (adult life expectancy 70, Chesapeake maybe 50) • Fishing, shipbuilding, trade • Demographic balance meant that New England's population growth was primarily natural • N. England - 21,000 emigrants in 1600s, population of 91,000 in 1700 West Indies • Sugar was incredibly profitable but plantations were expensive to establish • Labor will transition from indentured servants to slavery • The heart of the Slave Trade (in 1660 there were 27,000 slaves in Barbados and 900 in Chesapeake) Carolinas • Virginia and Spanish Florida• Settlement begins in 1670 by 200 poor men from West Indies - Each settler received 150 acres, including 150 acres for every slave brought over - 1690s - rice becomes a major export and demand for slave labor grows - 1700 - 16,000 Native Americans, - 15,000 colonists and slaves - 1730 - 37,000 white colonists, - 27,000 African Americas, 4,000 Native Americans Georgia • Created as a buffer between Spanish Florida and the Carolinas in 1730s • British philanthropists established the colony to send imprisoned debtors - ban on slavery • By 1751, the philanthropists abandon their experiment and slavery is allowed • By 1775, 18,000 whites, 15,000 African Americans Southern States • Primarily export crops (tobacco, rice, indigo then later cotton) • Large plantations (who wielded most of the political power) and smaller (though more numerous) yeoman farms • Few public schools meant lower literacy rates than the rest of the colonies • Most early immigrants in 1600s and 1700s are male Middle States • Dutch colony of New Netherlands • Religious tolerance attracted Catholics, Jews • Immigrants from across Europe (non- Dutch were 3/5 of colonists) • In 1674, the Dutch lose a war with Britain and New Netherlands becomes New York • Religious tolerance and electoral assemblies attract settlers to West and East Jersey including Quakers, Puritans, and Presbyterians Pennsylvania • Founded by William Penn in 1682 as a home for Quakers (believed in pacifism, equality) • Rich soil - wheat and livestock • Religious toleration • Good relations with Native Americans

John Stewart Mill - the role of the individual, where rights come from, the purpose of the state, the purpose of education, in what ways are we NOT a libertarian state, how to handle factions, Smith's vision of capitalism and Mill's vision of ethics, role of Enlightenment, Whigs, English Bill of Rights in overcoming divine right

On Liberty - 1859 A utilitarian who based his support of individual rights on the good they do for the largest number of people - not reliant on textual constitutionalism On free speech Why we should not silence free speech 1) the silenced speech may be a correct opinion 2) the silenced speech may contain an element of truth 3) even if the perceived truth is correct it can only be understood if it is challenged and debated 4) if only the perceived truth is allowed then that belief will lose vitality and energy Social vices - hurting someone else - putting someone else at a definite risk of harm - not pairing fair share in society - therefore, it is appropriate to punish by law Self Regarding vices - just harming yourself - drinking gambling, drugs, speeding - victimless crimes - people know themselves best, so we shouldn't punish these by law -- how we punish: - vice itself is punishment - opinion: people will think less of you Solution: Education Also shouldn't punish social vices because: - A "free" society makes a "vibrant" society that will be innovative, even with small freedoms - every restriction you impose limits society - ALSO if law enforcement goes beyond what we understand as appropriate, we will resist authority

Milliken vs. Bradley- 1974

Only schools guilty of de jure segregation could be legally forced to desegregate - exempted most northern cities because segregation there is generally de facto

civil rights state action doctrine (court case)

Other forms of discrimination are illegal either under the 14th amendment's equal protection clause or Congressional law - State-action requirement (established in US v Cruikshank in 1876) Despite the 14th amendment's equal protection clause - the Supreme Court overturns Civil Rights Act of 1875 (which prohibited discrimination in privately owned, public accommodations) in the Civil Rights Cases of 1883 by arguing that the 14th amendment only applied to actions of state government 14th amendment only applies to states and the gov (not private entities). So civil rights questions in private respects have to come from somewhere else As a result all-white primaries are allowed, restrictive covenants, and segregated restaurants, theaters and hotels (until congress and state acts ban them)

Time, place, manner restrictions -- Skokie

Other standards include the "neutrality" or "content-neutral standard" or "time, place, manner restrictions," which means laws restricting speech are only constitutional if they apply to every parade, demonstration in the same way, regardless of message (egs Skokie) - this also means that laws need clarity and are not "overly broad"

Parents v. Seattle

Parents v. Seattle (2006) -- 5 - 4, rejected diversity plan from Seattle and in which minority transfer students were given a greater likelihood to get into high-demand schools in their race was underrepresented. The court rejected the policy because failed to meet the "heavy burden" of justifying "the extreme means they have chosen — discriminating among individual students based on race by relying upon racial classifications in making school assignments. "

civil rights - equal protection, race (timeline)

Plessy v Ferguson -1896- Separate but equal Following WWII- 1954 1. Court begins to insist that equal education facilities be present (rejected Texas claims that its black law school was equal to its all-white law school, rejected Missouri practice of paying for out-of-state law school tuition for blacks instead of admitting them to University of Missouri Law School) NAACP debates whether to attack separate but equal or just insist on the equal part - Thurgood Marshall, the lead litigator for the NAACP, decides to attack Plessy head on - files cases in S. Carolina, Virginia, Kansas, Delaware, and the District of Columbia (attempt for circuit conflict) - eventually Oliver Brown's case is accepted for Certiorari (wanted to enroll daughter in all-white school closer to home) Brown vs. Board- 1954- court focuses strictly on the impacts of segregation and declares separate facilities are inherently unequal because it "generates a feeling of inferiority in the community that may affect their hearts and minds in a way unlikely ever to be undone." RESULT 1.Race can no longer be criterion for discrimination 2.Federal government would have the power to intervene with strict regulatory policies against discriminate practices- government or private Response to Brown v. Board: instead of the states falling into line - most states refused to cooperate until they were sued and then invented schemes to avoid desegregation (like paying the tuition for white students to attend "private" academies) Segregation shifted from De jure (legally enforced) to de facto (actual) as a result of racially segregated housing, preferred living patterns, and administrative practices as well as "massive resistance" to supreme court decisions from the states that closed schools and cut funding to schools that integrated - 1957 Governor Orval Faubus mobilizes the national guard to halt enforcement of a federal court order in Little Rock Arkansas, Eisenhower deploys US troops and places city under martial law 10 years after Brown, less than 1% of black students in the deep south were in classes with whites -- Swann v. Charlotte-Mecklenberg Board of Education (1971) - state-imposed desegregation could be brought about by busing children across school districts Boston schools are forced to bus by Judge Arthur Garrity - creates violent clashes Milliken vs. Bradley- 1974 -Only schools guilty of de jure segregation could be legally forced to desegregate - exempted most northern cities because segregation there is generally de facto Busing is still unpopular- In 1992 a poll found that 48 percent of whites in the NE and 53 percent of whites in the South felt it was "not the business" of the fed. Gov. to ensure that black and white children went to the same school

civil rights brown v board, Plessey v Ferguson, equalization lawsuits

Plessy v Ferguson -1896- Separate but equal Following WWII- 1954 1. Court begins to insist that equal education facilities be present (rejected Texas claims that its black law school was equal to its all-white law school, rejected Missouri practice of paying for out-of-state law school tuition for blacks instead of admitting them to University of Missouri Law School) NAACP debates whether to attack separate but equal or just insist on the equal part - but Congressional refusal to consider fair employment legislation convinces Thurgood Marshall, the lead litigator for the NAACP, decides to attack Plessy head on - files cases in S. Carolina, Virginia, Kansas, Delaware, and the District of Columbia (attempt to get inconsistent results) - eventually Oliver Brown's case is accepted for Certiorari (wanted to enroll daughter in all-white school closer to home) Brown vs. Board- 1954- court focuses strictly on the impacts of segregation and declares separate facilities are inherently unequal because it "generates a feeling of inferiority in the community that may affect their hearts and minds in a way unlikely ever to be undone." 1.Race can no longer be criterion for discrimination 2.Federal government would have the power to intervene with strict regulatory policies against discriminate practices- government or private Response to Brown v. Board: instead of the states falling into line - most states refused to cooperate until they were sued and then invented schemes to avoid desegregation (like paying the tuition for white students to attend "private" academies) Segregation shifted from De jure (legally enforced) to de facto (actual) as a result of racially segregated housing, preferred living patterns, and administrative practices as well as "massive resistance" to supreme court decisions from the states that closed schools and cut funding to schools that integrated - 1957 Governor Orval Faubus mobilizes the national guard to halt enforcement of a federal court order in Little Rock Arkansas, Eisenhower deploys US troops and places city under martial law 10 years after Brown, less than 1% of black students in the deep south were in classes with whites -- Swann v. Charlotte-Mecklenberg Board of Education (1971) - state-imposed desegregation could be brought about by busing children across school districts Boston schools are forced to bus by Judge Arthur Garrity - creates violent clashes Milliken vs. Bradley- 1974 -Only schools guilty of de jure segregation could be legally forced to desegregate - exempted most northern cities because segregation there is generally de facto Busing is still unpopular- In 1992 a poll found that 48 percent of whites in the NE and 53 percent of whites in the South felt it was "not the business" of the fed. Gov. to ensure that black and white children went to the same school Affirmative Action: Compensatory action to overcome the consequences of past discrimination and to encourage greater diversity (possible practices have included different admission or hiring standards and quotas) 1965 - President Johnson implements affirmative action by a series of executive orders directing federal agencies to pursue a policy of minority employment in federal civil service and in companies doing business with the federal government - becomes a goal in the 1970s for colleges and some private employers (especially if looking for federal and state contracts)

President --state secrets, enforcement, nomination, political question

Political Question Doctrine Enforcement Political Question Doctrine State Secrets Privilege - when the federal government (ie the executive) claims that release of information will reveal state secrets the courts (usually without examining the evidence) will suppress the evidence - established in US v Reynolds (1953) when widows of three crew members died in a bomber crash - they sued Air Force and the gov. was able to block access to records of the flight and aircraft - Seen expanded use following 9/11 As Commander in Chief courts are reluctant to intervene against the President in foreign affairs - Lower courts declined to intervene in the targeted killing of American citizen Anwar Al-Awlaqi (Al-Awlaqi v Panetta in 2010) labeling the matter a political question - Al-Awlaqi was killed in 2011 The court has insisted though that prisoners in Guantanamo Bay are entitled to habeas corpus rights, can appeal their detentions to federal civilian courts and have some due process protections (Boumediene v Bush in 2008) Courts have no enforcement power of their own -- Jackson in 1832 (Worcester v Georgia) Other areas of Political question doctrine - impeachment of judges (Nixon v United States - 1993) and presidential termination of treaties (Goldwater v Carter - 1979) and whether Congress has the ability to set deadlines on ratifications for amending the constitution (Coleman v Miller - 1939)

procedures in supreme court case

Procedures Court Conference (to determine what cases to consider) - no one else in the room Discussion goes in order of seniority Voting goes in order of reverse seniority Four votes are needed to review a case Oral arguments - now down to about a half hour each position - Solicitor General takes ten minutes of the side he or she joins Opinion writing assigned - Chief justice assigns if he is in the majority Senior associate justice assigns if in the majority Dissenters agree among themselves who will write Opinions circulate - some justices join other decisions, while others can defect Dissent can become majority opinion Five votes is a win Opinions are announced and summaries read

what if there is private discrimination (a private college for example?)

Question: what if there is private discrimination (a private college for example?) Is there indicia of state action? State money? Are the establishments entwined with the government? Did the government encourage the discrimination? 1944 - Smith v Allwright - white's only primaries, though run by non-state political parties, are a crucial component of government and thus a state function 1946—Marsh v Alabama - just starting a business is not indicia of state action 1948 -- Shelley vs. Kraemer- restrictive covenants cannot be enforced by a court of law (which would be an action of the state), but can still be written

Reed v Reed

Reed v Reed - court struck down state law that stated probate courts should give preference to men in determining who should administer estates.

Regents of the University of California v. Bakke (1978)

Regents of the University of California v. Bakke (1978) - a rigid quota system is a violation but the goal of having "a diverse student body" is a compelling purpose (so race can be taken into account but not as part of a rigid formula)

"Regulated federalism" - commerce clause, federal or "unfunded" mandates NLRB v Jones, Wickard v Fillburn, Heart of Atlanta Motel, US V Lopez, Raich v Gonzalez, National Federation of Independent Businesses v Sebelius

Regulatory Federalism -- Commerce Clause (Article 1, Section 8, Clause 3)states that Congress has the ability to regulate commerce "among the several states" Federal/unfunded mandates: Feds don't give an incentive, they just say "change it" NLRB v. Jones and Laughlin Steel Corporation (1937) in conjunction with Wickard v Filburn (the wheat case) and US v Darby - The Court decides that "among the several states" now means that the federal government can regulate "interstate commerce" so broadly that essentially all commercial activity (including the ease of unionizing a factory) is now under the purview of Congress. Some read these decisions to reflect the increasingly fluid flow of goods across state lines, others see it as an attempt by the court to avoid the court packing that FDR was threatening. Whatever the reason, it is a major shift in reading the Commerce Clause. Heart of Atlanta Motel v US (1964) - The court held that Congress could ban racial discrimination in a privately owned motel under the commerce clause because many of its clients were from out of state and the hotel was near two major interstate highways. 1995 -- U.S. V Lopez - strikes down the Gun Free Schools Act - part of Rehnquist court push to enhance power of the states - The Rehnquist Court begins to limit use of the Commerce Clause 2005 - Gonzalez v Raich - medical marijuana can be prosecuted by the federal government even if legalized by the states (based on Wickard v Filburn) - expands commerce clause 2012 - National Federation of Independent Businesses v Sebelius - Majority of justices (5-4) join a Roberts opinion that upholds the individual mandate to buy insurance under the general welfare clause but in separate opinions a majority also argue that law is NOT legal under the commerce clause as was argued by the administration (4+1=not under commerce, 4=law good under commerce and general welfare) Majority of justices (7!) block an expansion of medicare because it required the states to agree to the expansion or lose all federal money coming from the program - now states can either join the expansion or not and not risk losing their entire Medicare budgets

limitations on the court

Relief goes to an individual and not a group Structural relief - court keeps jurisdiction on case until approved outcome Dicta - while a general no-no, some judges will opine on a question (legal or political) that is outside the scope of a case (examples: Dredd Scott, Newdow) Courts have no enforcement power of their own -- Jackson in 1832 (Worcester v Georgia)

how often is review granted/likelihood

Request for review filed • About 8,000-9,000 applications for review (about 80 or 90 are granted review) • 5,000 of these are filed "in forma pauperus" - IFPs are 10 times less likely to be granted (During Warren and Burger years the court clerks were told to be "the people's lawyer" i.e. look for IFPs of merit - in the last few years IFPs are much less likely to be granted) Judges and clerks review cases and select some to be reviewed in conference (about 30%) Court Conference (to determine what cases to consider) - no one else in the room Discussion goes in order of seniority Voting goes in order of reverse seniority Four votes are needed to review a case The court will issue either a: Writ of Certiorari (to make more certain) rhymes with "rare eye" - A discretionary writ ordering that a case be heard by the supreme court Writ of habeaHabeus corpus (you have the body) - A discretionary writ says that the person must be brought before court (almost always for a person appealing a criminal conviction Per Curiam (usually a rejection but can be reversal or uphold) - a brief, unsigned opinion (usually used to reject review)

procedures of the supreme court: granting review -

Requests for review (appellant, respondent) Clerks read requests conference Review announced on-merit briefs (appellant, respondent, appellant rebuttal)(don't forget the amicus) oral arguments conference and opinion assignments opinion circulation decision announcement.

Rostker v. Goldberg

Rostker v. Goldberg (1981) - Congress may require men but not women to register for the draft

Karl Popper

Scientific philosopher Karl Popper posited the theory of falsifiablity which states that any scientific assertion (ie a theory asserting that something is reality) must have a measure or standard by which it can be disproven - if it does not then it is not scientific (and thus not a "testable" assertion of reality) if someone is asserting a causal argument it is thus appropriate to ask them what evidence would they concede that would make their position untrue. If they cannot then Popper would argue that their argument is not scientific but a simple matter of unproveable belief or preference. "This is a beautiful sunset."

Federalist #51 - Main arguments, threats to liberty, solutions

Section #1 - separation of powers is essential to the preservation of liberty. - Each branch should have a will of its own and government should be designed so members of each branch have as little input as possible in the appointment of members of the others. - If this principle [separation of powers] was rigorously adhered to, all appointments to the executive, legislative, and judiciary branches would have to be made from the same fountain of authority: the people (Not included: masses may be not qualified to determine the best sort of judge) - Each branch should be as little dependent as possible on a different branch for their compensation. Were the executive or the judicial not independent of the legislature on this point, their independence in every other area would be insignificant. (compensation for executive and judicial cannot change while in office) Section #2 - Each branch has the necessary constitutional tools and personal motives to resist encroachments. "ambition must be made to counteract ambition" The personal interests of members must be linked to constitutional rights of the office. This doesn't say great things about human nature—"But what is government itself but the greatest of all reflections on human nature?" But politicians are not angels so there is a problem: you must first enable the government to control the governed, and in the next place, force it to control itself. Dependency on the people is, no doubt, the primary control on the government. But experience has taught mankind that auxiliary precautions are necessary. Section #3 Not possible to give each branch equal power -- In republican government, the legislative authority necessarily predominates.—so we break up the Congress into two pieces - And those two pieces have different constituencies and powers But we may need to do more: presidential veto may be used too rarely or used too much - further checks on the legislature may be necessary Section #4 In a traditional republic, power goes into one government- that is broken into branches - we are a "compound republic" because power is first broken into state and federal levels - and then broken into branches - so we have a "double security" Section #5 Equally important to guard against the injustice which may be inflicted by majorities against minorities. Two possible solutions: Create a will outside of the majority (ie a king or other nonelected leader) - Problem: could back the majority anyway, or turn against the majority and minority Or create such a diverse society that no permanent majority emerges Section #6 under the Constitution, our society is large enough that it is divided into many groups of people who hold different views and have different interests. This makes it very difficult for one group to dominate or threaten the minority groups. -- but if we rely on smaller state governments (like under the Articles) there is the possibility that a majority could emerge to oppress - so big government (like the federal government under the constitution) is best at maintaining liberty.

sentencing: Purpose and definition

Sentencing • Government and defense attorneys will recommend sentences to the judge • Judge will announce sentence - Death - must be decided by the jury and agreed to by the judge - Incarceration - jail if less than a year and prison if more than a year (after jail/prison sentence the convict is usually on parole which is like probation) - Probation (usually with a suspended sentence) - don't go to jail but have conditions that must be met to stay out of jail - if they fail conditions then they go to jail for the suspended sentence • (common conditions - no contact with victim, no drugs)

Plessy v Ferguson -1896

Separate but equal

sexual harassment

Sexual harassment - based on gender discrimination law (specifically the Civil Rights Act of 1964) - is a tort claim that can be filed by the government (usually the EEOC) and injured parties Two forms of sexual harassment: quid pro quo - illegal to request sexual favors in return for promotion or as a condition of employment - strict liability: employer can be found liable even if they didn't hear about it Hostile work place - pattern of offensive sexual teasing, jokes, or obscenity - Negligence: they knew about the hostile environment but did nothing about it

sexual orientation

Sexual orientation - not a suspect classification or quasi suspect classification under the 14th - government still needs to provide "rational basis" protection for acts of governmental discrimination 1996 - Romer v Evans - blocked a Colorado state constitutional amendment that repealed any state or local policies that blocked discrimination for sexual orientation (basically giving permission to discriminate) - the court ruled it a violation of the equal protection clause to specifically target a group for discrimination because the state could not provide rational basis, but did not extend suspect or quasi suspect classification status for gays and lesbians 1996 - Defense of Marriage Act - Congress states that gay marriage will not be recognized by the federal government, states don't have to recognize other state's gay marriages if they don't want to - Court will decide on Constitutionality in 2013 2003 - Lawrence v Texas - Sodomy statutes struck as a violation of privacy rights 2008 -- Oregon Equality Act - flat-out ban (because it statutory law and not common law) on discrimination of employment/housing for gays and lesbians-- Oregon was joining 20 other states, DC and more than 100 cities have similar laws on employment discrimination -- 13 other states regarding housing discrimination 2013 - US v Windsor - 5-4 ruling strikes down DOMA as a violation of due process under the 5th amendment - does not make sexual orientation protected under equal protection clause 2013—Hollingsworth v Perry - Supreme Court rules that the defenders of the Prop 8 (which blocked gay marriage in California) lack standing because the calif. Gov refused to defend the law - this ruling thus "upheld" a 9th-circuit ruling that said sexual orientation is protected under the 14th amendment's equal protection clause

Solicitor General - who is and what is impact

Solicitor General - Donald Verrilli (was Elena Kagan) - Top government lawyer in appellant cases in which the government is involved - More than half the Supremes work load are cases under the direct charge of the solicitor general - More likely to grant cert if federal gov urges review - Court gives special attention to the way he or she characterizes the issue (writes roughly 50 amicus briefs out of roughly 200 submitted to the court a year

Rousseau - the differing states of nature, the role of the individual, where rights come from, the purpose of the state, the purpose of education, the social contract, in what ways are we NOT a social contract state, how to handle factions, differing views on revolution, the general will

The Social Contract - 1762 - Major influence in French Revolution - State of Nature: was great, driven by cooperation to survive UNTIL rationality ruins it all - Curse of rationality: we don't need science we need to be in touch with our emotions - The "fall" into rationality: -- agriculture makes land valuable, private property -- economic inerdependence and competition -- thievery, which the rich fears -- the rich tricks the poor into assisting the development of the government, which protects private property - Solution: revolt - Social contract - citizens have to give up everything for the gov. Law must come from everyone and apply to everyone -- everyone submits to the law (that they helped create) confident they will be protected from violence and exploitation of others - The lawgiver will initially have to convince people to do this - General Will - state is driven by collective sublimation of individual interest. Substitutes natural freedom with civic freedom. Always right and just, can never be wrong. Because the general will is universal any forces that promote factionalism should be eliminated - dissenters can be "forced to be free"

Begging the question

The assumption that an unproven central point is already proven and uses this assumption in support of itself. "The system is corrupt and because of that we need campaign finance reform."

civil rights footnote 4

The court established "suspect classifications" in (footnote four of Carolene Products v US noted the court would become more active in protecting "discrete and insular minorities") that are protected under the standard of strict scrutiny. The suspect classifications that the court has established are race, national origin and religion. These standards are more a sliding scale than a clear bright line (example: Plyler v Doe) The burden of proof is on the defendant with that court looking at whether their is a "compelling interest" that is "narrowly tailored" to achieve that purpose.

strict scrutiny

The court established "suspect classifications" in (footnote four of Carolene Products v US noted the court would become more active in protecting "discrete and insular minorities") that are protected under the standard of strict scrutiny. The suspect classifications that the court has established are race, national origin and religion. These standards are more a sliding scale than a clear bright line (example: Plyler v Doe) The burden of proof is on the defendant with that court looking at whether their is a "compelling interest" that is "narrowly tailored" to achieve that purpose. - the government has to prove that it's not discriminating - hard for the gov to prove that it is justified in its discriminating applies to: - racial/ethnic - national origin - religion - has to show a "COMPELLING STATE INTEREST" that is "NARROWLY TAILORED" in its policy

civil rights suspect and quasi suspect classification

The court established "suspect classifications" in (footnote four of Carolene Products v US noted the court would become more active in protecting "discrete and insular minorities") that are protected under the standard of strict scrutiny. The suspect classifications that the court has established are race, national origin and religion. These standards are more a sliding scale than a clear bright line (example: Plyler v Doe) The burden of proof is on the defendant with that court looking at whether their is a "compelling interest" that is "narrowly tailored" to achieve that purpose. The newest standard is for "quasi-suspect classifications" and operates under "intermediate scrutiny" (Clark v Jeter in 1988) that usually is applied to gender. The court will look at whether the policy is "substantially related" to a "genuine and important" governmental interest.

Nationalization or incorporation of the bill of rights and why the court used due process

The court only slowly begins to "incorporate" or nationalize the bill of rights to apply to state actions after the Slaughterhouse Cases destroy the Privileges and Immunities clause. . . and then only does so using the "due process" clause, developing substantive due process to do it

civil rights rational basis

The lowest standard is for all other discrimination (disability, age, wealth, business licensing for example) is "rational basis" and is much easier for the government to meet. To meet this standard the government needs only to show a "legitimate" interest that the policy is "rationally related" to. In Romer v Evans in 1996 the court struck down a law targeting gays and lesbians under rational basis because the targeting of a group is not a legitimate governmental interest.

Tinker v Des Moines

Tinker v Des Moines School District -- 1968 - students wearing black armbands can't be suspended for that speech.

Aristotle's true forms and deviations of government

True Forms: Monarchy (one person striving for common good) Aristocracy - probably the most likely of the true forms (rule by small group for common good) Constitutional Republic or "polity" -collective citizenry that is motivated by the common good Deviations: Tyranny (one person - self interest) "Corruption of the best is worst" Oligarchy - small group (likely property owners, self interested) Democracy - majority (likely non-property owners self interested - if there is a stable middle class this is the most stable and likely) Most common are oligarchies and democracies

private discrimination - protected classes, disparate treatment and disparate impact,

Using the Commerce Clause, Congress has used legislation to create "protected classes" that are protected from private discrimination (possibly including hiring, firing, pay, housing, education) ranging from race (Civil Rights Act of 1964) to veteran status (Vietnam Era Veterans Readjustment Act of 1974). In the Civil Rights Act of 1964 the Congress said that prohibited discrimination can take the form for of either "disparate treatment" or "disparate impact." (egs Ricci v New Haven) States can also prohibit private discrimination through state law (egs Oregon Equality Act of 2007) protected classes • Race -Civil Rights Act of 1964 • Religion -Civil Rights Act of 1964 • National origin -Civil Rights Act of 1964 • Age (40 and over) -Age Discrimination in Employment Act of 1967 • Sex -Equal Pay Act of 1963 & Civil Rights Act of 1964 • Familial status - Civil Rights Act of 1968 Title VIII (Housing, cannot discriminate for having children, exception for senior housing) • Disability status - Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990 • Veteran status -Vietnam Era Veterans Readjustment Assistance Act of 1974 • Genetic information -Genetic Information Nondiscrimination Act Under the Civil Rights Act of 1964 the court looks at two questions: - Is there disparate treatment? Is there intentional action that creates discrimination? - Is there disparate impact? Is there a policy that does not appear discriminatory on its face, but end up being discriminatory in its impact?

christmas displays/10 commandments

Variety of cases on religious displays -- 10 commandments (and other religious symbols) focus on context of message -- Historical ? fine Holiday? fine Religious? no 1984 -- Lynch vs. Donnelly - holiday display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene is fine as recognition of holiday - O'connor coins the "endorsement test" which asks if the government display creates "a message to non-adherents that they are outsiders" 1989 -- Allegheny v. ACLU - a creche in isolation that prominently displaying the words "Glory to God for the birth of Jesus Christ ? no Display was a large Chanukah menorah next to a Christmas tree outside the City-County building? Simply an acknowledgment that Christmas and Hanukkah are part of the same holiday season. Kennedy in his dissent notes that the display is not coercive 10 commandments 2005 -- McCreary County v ACLU -- displays were placed in a courthouse in this order 1) : A copy of the 10 commandments is placed on the wall of the courthouse and a lawsuit was filed arguing violation of the establishment clause. The court ruled that the single display was overtly religious, 2) In response the courthouse placed smaller historical documents around the commandments that all had some Christian content "endowed by their creator with . . . " etc. . . the court ruled the second display lacked a secular purpose 2005 -- Van Orden v. Perry: Another 10 commandment case (this time on the capitol grounds in Austin Texas), A donated 10 commandment monument that includes various symbols of law placed in a park with a collection of other donated monuments Court holds that the display is appropriate because it recognizes the historical context of the commandment and there is no clear nonsecular purpose. 2010 - Salazar v Buono - A memorial cross on federal land does not automatically violate the establishment clause - court refused to block the transfer of land so the cross could be displayed

Constitutional Convention - Virginia Plan ---- what is Madison trying to do, the proposed Congress, Council of Revision, incompetent laws, president, judiciary and terms - New Jersey Plan ---- something new, a whole lot old

Virginia Plan: - removed the state legislatures both structurally, and in terms of powers: - The National Legislature should consist of two branches. - The people of each State should elect the First Branch of the National Legislature. The Second Branch of the National Legislature should be elected by the first. - The National Legislature shall have power "to legislate in all cases to which the separate States are incompetent," and "to negative all laws passed by the States, contravening in the opinion of the National Legislature the articles of Union." - The National Legislature shall elect a National Executive. - The Executive and a number of National Judiciary will form a Council of Revision. This Council will review laws passed by the National Legislature and have the power to reject the laws, unless the National Legislature can pass the act again. - The National Legislature will create the National Judiciary. The structure will consist of one or more supreme tribunals and inferior tribunals. Judges will be appointed for life, during good behavior. - State Legislatures, Executives, and Judges are to be bound by oath to support the Articles. - The new plan for government should be ratified by the people, through assemblies of representatives chosen by the people. New Jersey Plan - restored the single chamber structure with one vote per state - union has power to tax and regulate interstate commerce - states retained their sovereignty - the executive would be elected to a one year term and could be removed at any time by the legislature, members of Congress would be elected to one year term and subject to immediate withdrawal, supreme court primarily limited to border disputes between states

Martin v Hunter's Lessee (1816)

Virginia state courts held that the confiscation of loyalist property was legal under existing federal treaties while the federal courts did not. Virginia argues that since federal power comes from the states, the states can opt to ignore federal rulings. The Supreme Court said the authority of the court came from the people and that because the court has open-ended appellate jurisdiction (Article III, Sec. 2, Cl. 2, -- "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction") it can consider state rulings. In addition, the supremacy clause means that US Supreme Court rulings trump state rulings.

Constitutional Convention - Ratification - process, challenges, last state to join

Voting is wider in a lot of states (property rights and some racial and gender-related restrictions decreases in some states) Sept 17, 1787 - 41 of the original 55 delegates sign the new constitution Five states ratify in the fall - Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, February 1788 Massachusetts -- starts 177 yes - 178 no - ends: 187 yes 168 no June 1788 New Hampshire -- starts 52-52, ends 57-47 June 1788 Virginia - starts 84-84, ends 89-79 June 1788 New York - 19-46, end 30-27 (thanks to Hamilton, moderate antifederalists, the federalist papers March 1789 - Congress meets June 1789 - Madison submits 12 amendments to Congress - 10 will be ratified, creating bill of rights Nov 1789 - North Carolina ratifies Constitution 194-77 May 1790 - Rhode Island ratifies Constitution 34-32

Adam Smith - the role of the individual, where rights come from, the purpose of the state, the purpose of education, in what ways are we NOT a libertarian state, how to handle factions, Smith's vision of capitalism and Mill's vision of ethics, role of Enlightenment, Whigs, English Bill of Rights in overcoming divine right

Wealth of Nations -- 1776 - novelist with economics - looks at question: how stupid is the individual? - Smith's system assumes that everyone is rational, and that economics will be regulated by an "invisible hand" - if humans are not rational, democracy doesn't make sense - Each individual applies their capital, labor and consumption in the most profitable way possible for them. The motive is self interest but the result can be beneficial to society 1)Each individual employs his investment capital where they can make the most money and so the most desired goods are produced 2)The investment to make the good creates jobs (and perhaps higher wages) and so it attracts labor and so labor is allocated to produce the most desired goods 3)The consumer purchases the goods they most want which generates profits for the investor Conclusion -- We can trust the individual -- Free and unfettered markets will enrich the society as if the markets were guided by an invisible hand

Appeal to tradition

When someone claims we must continue to do things because that is the way they have always been done. "We can't change to the metric system. We've always measured things in inches, miles, etc..."

natural law

a positive and just law rests upon a "higher law" which is attested to by the common sense of the people and a widespread belief in justice and basic, inalienable rights

False Cause

also known as the "post hoc" fallacy This common fallacy usually occurs when someone confuses correlation with causation "The Columbine shooters played violent video games, so the games must have made them do it."

Ad Ignorantiam

argument from ignorance -because a conclusion has not been disproven, it must be correct You can't prove that genetically modified food is not unsafe. So we should ban genetically modified food.

Ad Misericordium

argument from pity - appeal is made to sympathy as a means of gaining support I have this horrible disease. We should fund research in curing this disease.

animating spirit: who and what

aristotle - the nature of people creates the government there, which is why some governments are different in different areas - reflects and almost spiritual nature

developmentalism

as the polity changes so does the meaning of the constitution. For instance, "cruel and unusual punishment" has changed from when the founders wrote the document

paradoxes of American democracy

delegated authority vs democratic control freedom vs order majority rule vs minority rights

Decision writing - who assigns?

dissent: all assign opinion together majority: if the chief is in it, they assign the opinion. If no chief, the most senior person assigns

Schenck v US

emergence of the clear and present danger standard - the speech would create a "clear and present danger that that they will bring about the substantive evils that Congress has a right to prevent" Clear and present danger

Wall of Separation vs nonpreferentialism

establishment clause -separationist/no-aid approach -relies heavily on argument that Framers intended the clause to erect a "wall of separation" between church and state. -Phrase credited to Thomas Jefferson in a letter to the Danbury Baptist Association in 1802. -nonpreferentialism/accommodationist -holds that the Framers intended only to prohibit Congress from creating a national religion or preferring one religion over another. -more accommodationist stance public support for religion, unlikely to vote to invalidate programs challenged under establishment clause.

oligarchy

few are sovereign

Symbolic Speech

generally considered to have less protection - Government can ban the burning of draft cards to protest the Vietnam War (US v O'Brien) - the National Park Service can ban people sleeping on the Mall to protest homelessness (Clark v Community for Creative Nonviolence) because the regulations are intended not to suppress speech but serve a larger governmental goal - Tinker v Des Moines School District -- 1968 - students wearing black armbands can't be suspended for that speech. - Texas v Johnson - 1989 - flag burning is a protected form of speech

Necessary components (extraction and coercion) and purposes of government

government - institutions and processes used to control a people in a territory coercion and extraction coercion - government has a monopoly on violence, can kill without consequence extraction - we must extract from citizens to pay for coercion (military, police, etc. ) purpose of state - maintain order within society - protect property/documenting who owns what - public goods - provide certain things for free (roads, libraries, etc.). This is why we pay taxes

constitutional (written or unwritten, procedural or substantive)

limits to state. Can be unwritten or written Limits: 1. procedural - gov can do things, but they have to do it in a specific way 2. substantive - things that the government can't do

Autocracy

king/dictator one is sovereign

jail

less than a year

"Liberal" decisions vs "Conservative" decisions

liberal Expansion in the rights of privacy, abortion, birth control, free speech and other decisions that expand personal liberty Expansion of rights for those accused or convicted of crimes Expansion of the government's role in regulating the economy A belief in an "evolving constitution" (Tend to be appointed by Democrats) conservative More comfortable with government intervention in areas such as birth control, free speech, abortion and other areas of personal liberty. Limiting rights of those accused or convicted of crimes Less government intervention in the economy A stricter interpretation of the constitution (Tend to be appointed by Republicans) "Evolving standard" -- The Constitution can evolve as the country does - new rights can emerge as the society begins to feel that those rights need to be protected "Strict construction"- The Constitution means what it says and what the founders intended - new rights can only emerge through the amendment process

democracy

many are sovereign

prison

more than a year

authoritarian

no legal limits on government, but informal limitations

totalitarian

no limits on government (NK)

the problem of the free rider

people who want to benefit from free resources but don't want to pay taxes - want others to pay taxes

legal positivism

philosophical - issues of legal interpretation must be separated from questions of morality. The law is the expression of the will of whatever authority created it. It is an embodiment of that authority's power and does not attempt to realize any loftier moral or social goals

Differences between criminal and civil law - plaintiff and defendant, damages, role of grand jury

plaintiff criminal - always the state civil - person or entity claims that another person or entity has failed to carry out an owed legal duty defendant criminal - the person who allegedly committed the crime civil - person or entity accused by another person or entity damages criminal - jail time is potential punishment civil - usually monetary awards due to a winning plaintiff by a losing defendant in a court of law role of grand jury criminal - bring criminal indictments against individuals accused of committing crimes civil - investigate and report on local governmental agencies how you with criminal - beyond a reasonable doubt civil - preponderance of evidence (51%)

civil rights

positive rights, right that empowers the government, usually to bring about a condition of equality - not absolute - if gov is discriminating - comes from equal protection (14th) - if private/public places are discriminating - comes from congressional acts

arrest legal burden

probable cause

structure of the court systems

state system: - state trial courts: determines the facts of the case, guilt or innocence, judge explains law to jury - state appellate court THEN State supreme court: don't care if you did it, care about if the law was correctly applied Federal system: - US district courts: facts, guilt/innocence - US court of appeals: was the law correctly applied? both end in requests for review and the SUPREME COURT the loser will also always appeal UNLESS the prosecutor is the loser

Madisonian pluralism

the US is so big that we never have to worry about a permanent majority

doctrinalism

the consistent acceptance of some interpretations have made some doctrines constitutional even though their aren't actually mentioned (Ex: liberty of contract, freedom to travel, right to privacy)

Obscenity Miller v California

the court has held that obscene material can be restricted because it has no redeeming social value and appeals to one's sexual interests and not to their political and literary tastes But what is obscene???? The courts have so far maintained that nudity and sex are protected so long as there is political, literary, or artistic merit -- "hard-core pornography" can be limited, but what does that mean? ("I know it when I see it" - Stewart) - - Most recent definition (Miller v. California - 1973) is that it must be judged by the - "contemporary community standards" to - appeal to the "prurient interests" in - a "patently offensive way" and - lack "serious literary, artistic, political, or scientific value."

originalism

the meaning of the document can be found within the intent of the founders. The letters, speeches, and notes of the founders are culled to discern the meaning of their creation

Dickerson v US

upheld the requirement that the Miranda warning be read to criminal suspects and struck down a federal statute that purported to overrule Miranda v. Arizona. 2000

Occam's Razor

when confronted with multiple explanations you should chose the solution that is the simplest because it is the most likely to be correct. "Either position A is true or position A and B must be true. I know that position B is very likely. So it must be position A and B."

balancing

when constitutional rights or compelling state interests clash then judges must balance these legitimate demands as a means of resolving the conflict (Roe v Wade was weighted between a state's interest in the health of its citizens and the privacy rights of pregnant women)

criminal procedure process, pre-trial

• Criminal -- State vs Citizen • State is always the prosecutor • Beyond a reasonable doubt is the burden • Jury determines facts (through the trial) and then applies that law (as explained by judge) to determine verdict • Penalty is jail, prison, fines, restitution, community service, death process • Crime reported, investigation • arrest (probable cause) • grand jury (if felony) • Arraignment/indictment (from grand jury)/plea/bail • Pre-trial hearings (evidentiary) • Jury selection • trial • Jury deliberation • Verdict • Sentencing pre trial • Discovery - Both sides will share their evidence with each other - there shouldn't be any surprises during a trial • Evidentiary hearings - The trial judge will determine what evidence will be allowed in court (illegally gathered evidence will be excluded from trial)

appeals courts

• If there was an error by the trial judge that led to a guilty verdict then the defendant can appeal - Evidence admitted incorrectly - Law is incorrectly explained to jury - Jury was improperly composed - Appeals courts do not consider guilt only whether the trial was fair - If there was an error then the matter goes back to the prosecutor's office for possible retrial - Prosecutors cannot appeal trials that ended in acquittals (not guilty verdicts) - All appeals courts have the ability to nullify a law if that law conflicts with either the state or federal constitutions.

judge deliberation and verdict

• Jury meets (deliberates) over whether the defendant did it - Guilty - did it - Not guilty - did not do it and cannot be tried again - Not guilty by reason of insanity - not responsible for crime because of mental illness (will got to mental institution instead of jail) - Hung Jury - the jury cannot reach agreement - defendant can be retried • Oregon requires 10 out of 12 jurors to agree for their to be a verdict, federal courts require 12 out of 12

possible appeals

• Jury meets (deliberates) over whether the defendant did it - Guilty - did it - Not guilty - did not do it and cannot be tried again - Not guilty by reason of insanity - not responsible for crime because of mental illness (will got to mental institution instead of jail) - Hung Jury - the jury cannot reach agreement - defendant can be retried • Oregon requires 10 out of 12 jurors to agree for their to be a verdict, federal courts require 12 out of 12

criminal procedure: investigation (direct evidence/circumstantial evidence)

• Police investigate a reported crime - Direct evidence - interrogations/interviews attempt to gain confession from suspect and/or eyewitness testimony from witnesses who saw the crime - Circumstantial evidence (requires inferential reasoning) - searches can find evidence that ties suspect to crime + witnesses that did not see the crime but can testify to corroborating details

plea (options): Purpose and definition

• The defendant enters a plea to the charges - Guilty - moves to sentencing - No contest - moves to sentencing - Not Guilty - moves to trial - Most criminal matters are resolved by "plea bargains" in which the defendant pleads guilty to a lesser charge or sentence (97 percent of federal cases, 94 percent of state cases)

viore dire (for cause, preemptory): Purpose and definition

• The jury will be selected by asking them questions that looks for problems - Judge will excuse for problems with schedules or intelligence • Attorneys can excuse jurors - For-cause challenges - in cases of obvious bias - judge needs to agree - Preemptory challenges - each attorney can use certain number of challenges that do not need to be explained - (Federal trials - 20 for death penalty cases, Defendant has 10 and Government six in felony cases) • Batson v Kentucky -- Preemptory challenges cannot be