Unit 1 exam study guide  

What is the function of constitution?

 Constitutions

1. What is it?

∙ Document or set of documents that hold basic rules for how society  should be governed

2. Well-structured constitution:

∙ Brief! Has a general framework

∙ Grants authority to specific institutions  

∙ Provides orderly change of power  

∙ Allows for change

∙ Fundamental revision: tossing whole and getting a new  

one

∙ Amendment: adding “P.S.” to clarify or revise some parts  

of constitution  

3. US constitutions  

∙ Articles of confederation  

∙ US constitution of 1787

∙ Amendments: 27

4. Texas constitutions  

∙ 7 constitutions  

∙ Current one from 1876

∙ Amendments: 498 (as of 2017)

Check timeline for DAFCB on Blackboard

 Articles of Confederation  

1. 1st constitutional agreement  

What is federalism?

∙ #1 goal was to unify the 13 colonies to make UNITED states ∙ States had all power

i. Revolutionary war was based on hatred of strong central government  therefore wanted more states’ rights and weaker national government  ii. The confederate alliance of sovereign states united due to common  objectives Don't forget about the age old question of bio 212 sdsu

2. Congress:  

∙ Delegates chosen states and could:

o Declare war

o post office  

o coin $$

o conduct of affairs

o maintain army or navy

o make treaties

∙ Virtually impossible to change rules of congress  

o Needed to be unanimous

∙ Central Government had no money to enforce any rules

3. IN 1887 gathered to fix articles and deemed UNFIXABLE

∙ Solution ideas:

o New jersey Plan: strong states, ONE house based on equal  

representation, and same taxes  

 votes no matter size of states population

Core postulates of cooperative federalism.

 Taxes the same no matter where someone lives

o Virginia Plan: strong central government, bicameral system  

(two houses), taxes and representation based on population

BE SURE TO CHECK HANDOUT provided by professor

∙ ACTUAL solution:

o Great Compromise (by Connecticut): bicameral (two houses senate and house of rep) If you want to learn more check out pcb 3043 fsu

 House based on population

 Senate given two votes  

o Direct taxes based on population but the U.S. couldn’t make  income tax

 Change in 16th amendment made equal tax (doesn’t vary  

by state or location)

∙ All legislation needs approval from both houses

∙ Slavery

o MD, VA, NC, SC, and GA  

 Wanted saves to be counted in representation

o Smaller northern states: said they aren’t free so, not citizens,  and cannot vote

o 3/5th compromise: slaves were counted as 3/5th of a person in  population of state

 mainly done to get south to agree to new document

∙ Executive branch selection: how to choose and how much voice o Solution: electoral college

 Every state has 1 electoral vote for senate (2 total) and  

representative (1 per rep)

o 270 to win

 most states have winner takes all system  

a. Exceptions: Maine and Nebraska If you want to learn more check out uno gmav

 can make electoral vote seem like a huge win

 can win popular vote and lose electoral  

a. happened in: 4 instances and one tie (look at  

power point for details)

b. during tie: house of rep. chooses usually b/n  

democrats and republicans, every state 1 vote=

50 votes, 26 to win and have to keep voting  

until a winner OR senate votes for vice president

who become president until tie is resolved

 US Constitution  

1. Republicanism (not the party)

∙ Form of government where power resides in representatives and we  hold them accountable for their actions

2. Federalism

∙ Division of power between national and state governments 3. Separation of powers

∙ Established branches of government: legislation- makes laws,  executive-enforces laws, and judicial-interprets the laws

∙ Prevents one branch from becoming too powerful

4. Checks and balances  

∙ Each branch checks the others: legislation-reviews nominations,  executive vetoes laws, and judiciary- reviews and invalidates laws  

5. Constitution

∙ Preamble- statement of power (why we need a strong central  government)

∙ Art 1- legislations power (bicameral system and selection of congress  and powers)

∙ Art 2- executive power (pres. Selection and electoral college) ∙ Art 3- judiciary power (supreme court and selection for courts) ∙ Art 4-states powers and limits (full faith and credit clause*) ∙ Art 5- amendments (2 step process, by 2/3rd )

∙ Art 6- federal powers (supremacy clause* and treaties0

∙ Art 7- ratification (process for adoption of new constitution)

 Constitution-Bill of Rights

1. First set of amendments  If you want to learn more check out • How much information can the mind absorb?

∙ Federalist (for national government) antifederalist (for state power believed national government doesn’t give enough liberty)  

∙ This threatened the chance to ratify articles of confederation  ∙ Compromise was that bill of rights in exchange for antifederalists vote  for new constitution- bill of rights were added to protected rights from  government

2. Structure  

Art I- free establish of religion and exercise. Freedom of speech, press,  assembly,  

Art II- right to keep and bear arms

Art III- prohibits quartering of soldiers without consent of home,  forbidding practice in peacetime  We also discuss several other topics like aut 140 class notes

Art IV- guards against unreasonable search and seizure

Art V- protects against abuse of government authority in proceedings  (due process…etc)

Art VI- rights related to criminal proceeding in federal courts (speedy,  public trials, know what accused of, impartial jury…etc.)

Art VII-right to jury in CIVIL trials  

Art VIII- prohibits cruel and unusual punishment

Art IX- unremunerated rights retained by people  

Art X- any power not given to government belongs to states or people

 Texas constitution (7 constitution in 50 years)

1. Basic values, ideas, and norms through all constitution

∙ Republicanism

∙ Separate of power

∙ Spanish traditions

2. Difference based on political, social, economic time period

∙ The state of Coahuila and Texas, United States Mexicans (1827) ∙ The Republic of Texas (1836)

∙ State Constitution of (1845)

∙ The Confederate Constitution of 1866

∙ Radical Republican Constitution of 1869

∙ Current: The Constitution of 1876

Check blackboard for US versus Texas constitution***

(US- brief, not a lot of amendments, and flexible AND TX- not brief, many  amendments, not very flexible)

3. Current Constitution:

∙ The constitution of 1876

∙ Drafted at end of Reconstruction at the Constitutional Convention of  1875

o Written as extreme reaction to last constitution

o Most were Democrats (at the time Democrats and  

Republicans had flipped- therefore in this case, it would be

Republican)

o Goal: undo Republican (“democrat”) government If you want to learn more check out csc exam 2

o Antigovernment charter

 Local government  

 Reduce taxes

o Very popular

o Remains foundation which is weak, decentralized,  

underfunded, uncoordinated set of public institutions  

(which was the goal)

o Overall: long, detailed, restrictive, unorganized, confusing

∙ Current constitution has a Texas Bill of Rights:

o In beginning of article I

o Many similar to U.S. Bill of Rights  

o Protects Texans from all levels of government

o Legislative branch: bicameral, nonprofessional, limited  

(ARTICLE 3)

o Executive branch: governor is chief executive  

o Judiciary branch: dispersed powers and 6 types and levels

of courts and all elected for 4 to 6 year terms

o Amendments:

 4th most amended constitution

 Federalism: system of government in which sovereignty is constitutionally  between national and state governments

1. Federalism versus antifederalist

∙ Federalist: strong national government with branches  

∙ Antifederalists: feared strong central government  

2. Confederalism: subnational government gives power to national  government

∙ Example: Articles of confederation

3. Unitary system: National government gives power to states ∙ Examples: Japan, Great Britain

4. FEDERALISM: Nation and state governments share power and give it to  each other  

∙ Both have some power

∙ It is a trade off

5. Sovereignty

∙ Fund government authority (who has authority over said topic?)  ∙ Federalism is about dull sovereignty- both subnational and national  government have final say

 Federalism and Constitution  

1. Grants power: to national or states

∙ National government  

o Article I, section 8

 Federal government authority to wage war,  

foreign affairs, raise armies, control trade, and  

coin money, necessary and proper clause  

(proper to make to execute current laws)

∙ State power

o 10th amendment  

 anything not mentioned for federal power goes  

to states  

 education, health, transportation, economic  

development, and criminal justice (anything to  

protect welfare, safety, and health of public)

∙ … Local governments:  

o Dillon’s Rule-local governments derive power from state

 Cannot exist without state

 At any point state legislation can alter boundaries, expand,  narrow, or abolish the local governments power

o Home Rule- power given by state to local area as long as does not  violate state and national constitution

o IN Texas: city with more than 5,000 people can decide to use home  rule to adopt a charter.

o Counties cannot adopt home rule

 EXAMPLE: Denton is a home rule city

∙ Limits on power (more in depth)

o No bills of attainder  

 Acts that declare person guilty of crime and punishing them  without trial

o No ex post facto laws

 Law that is passed and applied to acts committed before law  was passed

o States cannot pass tax on imports or exports

o States must provide republican government  

o Cannot suspend the writ of habeas corpus

**Bill of rights is full of limits on states.  

**14th amendment and 15th amendment gave national government  more power  

∙ Nation-state Relation

o Supremacy clause- law of nation is supreme

 Enforced in courts

 Federal level can opt out of enforcing it but can change this  

at anytime

o National governments obligations are to the state

 Territory intelligence- boundaries cannot be redrawn without  state

 States have a representation in congress

∙ State-state relations

o Commerce clause-congress power to regulate trade (cannot choose  which state to trade with and it cannot put taxes on interactions  with other states)

o Full faith and credit clause-other states must recognize and respect  public accounts, judicial proceedings, and records from another  state

o The privileges and immunities clause- prevents discrimination of  persons from another state  

o BONUS: exception for same-sex marriage (but excluding kinship  marriage)  

 Full faith doesn’t always apply (same-sex marriage avoided  

because it became a law which stated marriage any human  

besides kinship

Week 5

 The Marshall Court and national security  

1. McCulloch v. Maryland (1817)

∙ Decided: Necessary- not indispensable but conventional.

∙ Necessary and Proper clause- Implied power in creating a national bank

2. Gibbons v. Ogden (1824)

∙ Decided that intrastate commerce regulated by state  

∙ Interstate commerce regulated by federal government

 Taney Courts and States’ Rights

1. Dred Scott v. Sanford (1857)

∙ Invalidated the Missouri Compromise

∙ Court said state citizenship is different from national citizenship which was reserved for only those around when constitution was founded

∙ Dred Scott was declared a slave and NOT a citizen (they were offended he  even questioned his status)

∙ AND said congress cannot regulate the slave trade So Missouri  compromise was incorrect  

∙ AND said it stated that status was based on where he come from so, he  still is a slave

 Defining Interstate Commerce

1. The Sherman AntiTrust Act (1890)

∙ U.S. Congress first attempt to stop monopolies

∙ Outlawed all contracts to ensure all competitions with companies ∙ Included manufacturing  

o Although decisions in court said states have full control of  

manufacturing

∙ U.S. v E.C. Knight (1895)

o Ruled Sherman act cannot apply to manufacturing within a  

state

o Can only regulate if has direct effect on interstate commerce o Lead to the stream of commerce doctrine  

 Allowed regulation of interstate commerce from point  

of origin to point of termination

 Interruption doesn’t change this

2. The Packer and Stockyard Act  

∙ Regulated meat packing industry’s control over stockyard (an  interstate matter) in order to correct a violation of the Sherman act  (a federal law)

 The Great Depression and New Deal  

1929: NYSE crashes Great Depression begins

1932 Democrats win presidency and majority of both houses and thus I’m Lamented the new deal and republican was Supreme Court majority  1935-1937: Supreme Court strikes down 8/10 new deal programs -because federal  government overreacted in terms of power

1. U.S. v Darby Lumber (1941)

∙ Disagreed on whether congress could regulate wages…etc

∙ U.S. court adopts cooperative federalism- ruled that congress COULD  regulate wages

∙ Fair Labor and Standard Act- set minimum wage and maximum time  (plus overtime) to all companies within interstate commerce  

∙ Could do this because intrastate business commerce regulates  minimum wage and maximum hours because it is going towards state

∙ Court has addressed questions about what constitutes commerce  under commerce clause

o Transportation is commerce

o Manufacturing is commerce

o Does not require a tangible product

o Congress can prohibit the sale of goods that are production of  child labor, spoiled and contaminated products…etc

2. Wickard v Filburn (1942) -courts broad definition of commerce ∙ Small farmer said federal government in local and not commerce but if  makes  

 Core postulates of cooperative federalism  

∙ Characterized by sharing amongst federal, state, and local levels ∙ Impossible to divide (like marble cake)

∙ Colleagues instead of adversaries (one Government serving one  people)

 New Federalism Stronger National Government

∙ 1970’s happened organically-after big problems don’t happen at state  level

∙ national leaders can create national solutions to national problems o each time with more power and resources

o a lot of this is because of money

1. federal level good at getting states to pass laws that federal government  suggests with money (congress provide money for “general welfare”)

∙ Grant in Aid – 20% state money comes from grants

o Categorical grants—under narrow program guidelines that spell out  eligibility time frame (base cooperative government) Example: head  start, food stamp, SNAP

o Blocks grants- government response to categorical grants (government money to states with broad directions) example: 1944 welfare grant o Republicans support block grants more so federal level doesn’t have  too much power

Mandates

o George w. Bush used categorical grants and made them more used  more by republicans but for republican ideas and programs  

o An order to comply with federal pull (blackmail)- not Texas  Preemption

Regulatory power to fund government  

Laws states that federal level have power in government control o Total preemption-  

 Thinks states have all power but they don’t  

o Partial preemption-states can make laws – as long as same as federals  EX:  

o Standard preemption- states can regulate where federal is not as long  as state laws are at least as strict

 Advantages and disadvantages of federalism

∙ Avoid tyranny and check biasness and divides power

∙ Preserves diversity allowing states to keep ideology

∙ Foster competition  

o Let’s states experiment with taxes and resources for people support  except can affect poor (low taxes less money for welfare and  

assistance) and low taxes can cause people to move to different city all money power leaves states

 Civil Liberties

∙ Civil liberties- fundamental freedoms as a set presence our right to a free  society

o Protection from government to limit your ability

o Protection from government power

o To be fully realized government needs to do nothing 

∙ Origins: shaped by supreme court rulings, outcomes of election, debates… etc. (can be seen as basics in colonial times)

∙ Bill of Rights and states

1. Barron v Baltimore

∙ Question: Does 5th Amendment (say government court take property) deny  right to take privacy for public use without compensating apply to states?

o Answer: NO. Intended for national government  

o 14th amendment- due process clause- cant deprive life, liberty, or  property and applies to states

2. Gitlow v. New York (1925)

∙ Law against anarchist or communist

∙ Known for 1st major amendment case where ACLU was involved ∙ Question: Does 1st amendment apply to states as well as or national  government  

o Yes, could not without due process of law and he had the freedom by  virtue of 14th amendments

o Incorporation: apply provisions of Bill of Rights

o Court adopts select incorporation  

***check table on powerpoint***

 How Courts protect fundamental freedoms  

Fundamental Freedom Doctrine: freedom of speech, press, assembly, and  religion- ON THE TEST

Only passes laws to ensure protect of national security and public order

To test fundamental freedoms needs to pass Compelling Interest Test: 1. Must serve compelling government interest- prevent vote buying,  going against groups that have been discriminated…etc.

2. Must be narrowly tailored to meet that interest  

3. Must be least restrictive

Remember: “phone sex”- could have all been banned but wasn’t to have the least  restrictive law

 Speech

∙ Tinker v Des Moines  

o Pure speech

∙ Texas v Johnson

o Just because public doesn’t like something doesn’t make  

it illegal. Burning of flag is expression and okay

∙ Buckley v Valeo  

o Set limits to amount person can contribute to campaign

∙ Obscenity- not of good morality by public standard of average person, lacks  literary art, political, or scientific value, must be going to specific group that  deems it okay.  

o Miller Test

∙ Libel and Slander: New York Times Test

o Libel- published created with malice

o Fighting words- can breech peace

o Imminent threats

o Commercial speech- limited FAA to regulate to protected consumers

 Religion

∙ Congress cannot make laws to establish or promote a religion or any  religion at all

∙ Free exercise- can’t get in way of how people practice

∙ “In God We Trust”- used so much loses religious meaning and does not  specify a religion