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AU / Political Science / POLI 1090 / Why do rights require positive action?

Why do rights require positive action?

Why do rights require positive action?


August 29-September 2, 2016 (Week 3)

Why do rights require positive action?

Dr. Soren Jordan

POLI 1090-004

Constitution, Civil Liberties and Civil Rights

- The Constitution guarantees a republican form of government  - Republican meaning indirect democracy run by representatives - This stemmed from the Founders’ fear of monarchy and from  their desire to balance tyranny and anarchy

National government powers:

- Expressed: explicitly listed (Example: Congress’s power to tax) - Implied: power to make laws “necessary and proper” to preform  expressed powers, known as the “elastic clause”

- Inherent: not explicitly stated, but fundamentally part of the other  powers. (Example: Commander in Chief is inherently the power to  conduct foreign affairs)

- Supremacy clause: Federal law prevails over state laws and  constitutions (Article 6)

Define disability.

- The Bill of Rights was an outline to the people’s protection - Yet, some people at the Continental Congress didn’t want to ratify the Bill of Rights Don't forget about the age old question of Why material of capacity doesn't matter?

- Although Anti-Federalists didn’t support the Constitution, they  supported the Bill of Rights because they wanted a limited government and that’s what the Bill of Rights gives.

- The Constitution was signed by 39 of the 55 delegates - Article 7 said that 9 out of the 13 colonies had to ratify the  Constitution (supermajority)

- Every state but Rhode Island elected delegates to state conventions  within a year

- The ratification battle begins in 1787

Federalists: Pro-Constitution

- Argued that because the Constitution guaranteed a federalist system, they were the true federalists defending states rights to share power  with the national government  

Why too much liberty is not good?

- The name itself is strategic

- Federalists included James Madison, Alexander Hamilton and John Jay

Anti-Federalists: Anti-Constitution

- More in favor of states’ rights

- Opposed ratification of the Constitution

- Anti-Federalists included Patrick Henry, James Monroe, Sam Adams  and George Mason


The Federalist Papers

- Series of essays published in newspapers

- The pseudonym “Publius” was used because it just meant “person”  and was very vague

- The Federalists wrote more than the Anti-Federalists, which might be  the reason they had an upper hand on them  

- The Federalist Papers helped ensure the ratification of the  Constitution We also discuss several other topics like Who are the earliest teachers of public speaking in ancient greece?

- Not only did they explain what it was but it also explained why it  would be better than any alternative options

- Federalists worried about tyranny of the majority and the threat of  mob rule oppression that could come from direct democracy like in  Athens, Greece

- Majority rule could turn into mob rule  

Madison’s Federalist 10

- “Liberty is to faction what air is to fire, without which it instantly  expires,” but it is essential for life as well

- Just because it can be dangerous, doesn’t mean that it isn’t essential - Federalist 10 is concerned with faction because sizable minorities like  interest groups could cause tyranny of the majority We also discuss several other topics like What are the five methods of discovery?

Madison argued that:

- A big country would make it impossible for any faction to be large  enough to dominate (collective action problem)

- Legislations are too unwieldy for huge majorities to be tyrannical - Politicians care the most about themselves and keeping their own  office

435 people don’t have 1 interest, they have 435 different interests –  themselves  

Federalist 51

- Checks and balances  

- “Ambition must be made to counteract ambition”

- The strongest branch is divided on itself  

- Interbranch checks (President can veto any legislation) - Set Congress against each other – split up the House and Senate

Anti-Federalist 3

- The “natural aristocracy” being rich people, will come together and  create legislation that protects their own interests  We also discuss several other topics like What is the most conflict-ridden regions in the world today?

- Small group of elites

- Worried about political dynasties (Kennedy, Bush, Clinton) - Problem is not with the system, it’s with the people  

- Congress is too small to accurately represent the population 2

- They’ll also ban together for their own, common interests Federalists won public debate and the Constitution was ratified in 1788


11th – Sovereign immunity (states can’t be sued)  

12th – President and VP

16th – Income tax Don't forget about the age old question of Why study the oceans?

17th – Vote for your senator

18th – No booze

20th – Term starting date

21th – Booze again

22nd – Term limits (FDR)

23rd – D.C. gets 3 electors in the Electoral College

25th – Presidential succession

27th – Congress pay raises (Anti-Federalist 3 in action)

The Bill of Rights

- The first ten amendments to the Constitution We also discuss several other topics like What are the 5 steps of marketing plan?

- Hesitant because the Founder’s thought if you told people what they  couldn’t do that they would just assume they could do everything else  (which isn’t the case)

- Was written in a way that is easy to understand  

- They are not defined, they are interpreted

1st Amendment:  

- Freedom of religion and speech

- Forbids the national government from creating a national religion (aka the establishment clause)

- Also prevents government from having a god-like status like “divine  right” gave the English monarchy

- But does it say separation of church and state? No – because as  stated before, the Bill of Rights are interpreted

- Strict separationist view: government must avoid all contacts with  religion, even if it’s something as simple as helping them out with  charity efforts

- Accomodationist view: establishment clause was meant to prevent  establishment of an official government-sanctioned national religion.  Congress can’t keep you from practicing your religion (aka free  exercise clause).  

- Limits: if they harm others, slaughtering animals, illegal drugs, etc. - Limitations because of interpretation.

2nd Amendment:  

- Key words: a well-regulated militia


- Not just the right to bear arms.  

- Militias were groups of armed citizens who where of critical  importance to winning the Revolutionary War.  

- Madison views America bearing guns as:  

- A force that will prevent national government tyranny - A unique advantage to the United States (that Europe didn’t  have)

- And civil liberty

3rd Amendment:  

- No holding troops in your house in time of peace without consent of  owner

- Seems obsolete but not necessarily true (Mitchell case)

4th Amendment:  

- “Privacy” – probable cause, unreasonable search and seizures

1, 2 and 4 comprise the core of civil liberties and are all about  interpretation of the Supreme Court  

5th Amendment:  

- Can’t be tried twice for the same crime (trial by jury) - Can’t self incriminate

- Eminent domain (still highly controversial)  

6th Amendment: (criminal)  

- Speedy and public trial

- Right to trial by jury

- Can’t be charged with secret crimes or on the testimony of secret  witnesses

7th Amendment:  

- Trial by jury in civil suits  

8th Amendment:  

- No cruel and unusual punishment (example: capital punishment) - Perfect example of simple words that are hard to interpret - Who decides what “cruel and unusual” is?  

9th Amendment:  

- Just because certain rights aren’t listed here, doesn’t mean the  government can deny them

- Implied rights

- Spirit of liberty, natural rights

- The burden of proof lies on he government, not the individual 4

10th Amendment:  

- Powers not delegated to the federal government and not illegal by  the Constitution are reserved for states or the people

- Before the 14th amendment, this allowed the states a lot of policy  freedom

Civil rights: A positive act of government to guarantee that something  is protected and treated as equal.  

- Civil rights are positive rights

- “Freedom to…”  

- Example: 26th Amendment

Civil liberties: Freedom of action without government intrusions - Civil liberties are negative rights

- “Freedom from…”  

- Example: 4th amendment  

- Too much liberty is not good (opposed to beliefs of libertarians) and  would affect two main principles:  

- Order: would undermine safety and order (Shay’s Rebellion) - Equality: risks inequality

- The standard used is just as important as the words themselves to  determine Constitutionality

- The Supreme Court creates these tests:

- Obscenity: Miller test

- Appeals to “prurient” interest which means encouraging an  excessive interest in sexual matters

- But lacks serious literary, artistic, political and scientific value

- Establishment: Lemon test

- The statute must not result in an “excessive government  entanglement” with religious affairs

- Neither can it advance or inhibit religious practice and it must  have a secular legislative purpose

- Example: Lee v. Weisman (you don’t have to participate in  prayer at school)

- Fourth amendment explicitly protects you from unreasonable search  and seizures and requires a warrant to search you

- But what is “unreasonable” ???

- Example: Griswold v. Connecticut (right to privacy)

- Not all of these rights apply equally at all levels


- Example: Barron v. Baltimore did not implicate the Bill of Rights  onto states but reversed under the 14th amendment with selective  incorporation

- Meaning, states could not infringe on anyone’s privileges and  immunities listed in the Constitution

- The Fourteenth Amendment  

- “Due process” clause = state governments must act fairly,  according the established legal procedures, with regard to a person’s  right to life, liberty and property

- “Equal protection” clause = cannot be arbitrarily discriminated  against by state governments  

- Not all Bill of Rights have been incorporated (3rd and 7th)  - Equal protection helped to further the cause of civil rights as well as a critical ending in poll taxes (24th amendment)

- Also ending “separate but equal” doctrine

- Why do rights require positive action? Because people are selfish i.e.  Brown v. Board of Education “all deliberate speed” can be too slow - Civil rights for minority groups:

- Ending slavery

- Ending segregation

- Civil Rights Act

- Voting Rights Act

- Civil rights for women:

- Suffrage

- Equal Pay Act and Civil Rights Act

- Equal Rights Amendment fell three states short and was not  implemented

- Pros: Constitutional guarantee of equality

- Cons: Court was already doing it  

- Gay rights:

- SCOTUS determined state constitutional bans are  


- Right or liberty?

- Rights of the disabled:

- Americans with Disabilities Act

- “Reasonable accommodations” that “substantially limit a major  life activity”

- What is a disability? Interpretation!

- Since the government has to actively protest rights, it developed a  scale for whether discrimination is permissible

- Government must have a compelling interest



- Unprotected categories: low (burden of proof on individual) - Sex discrimination: heightened (must be substantially related to  important government objective)

- Race, ethnic, religious discrimination: strict (must be precisely  tailored)  


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