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Poli Sci 220 week 4 notes

by: Christina Roualet

Poli Sci 220 week 4 notes Poli Sci 220

Christina Roualet
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These notes are from the lectures of week 4
American Government and Politics
Brian Harris
Class Notes
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This 20 page Class Notes was uploaded by Christina Roualet on Sunday April 24, 2016. The Class Notes belongs to Poli Sci 220 at Northwestern University taught by Brian Harris in Winter 2016. Since its upload, it has received 8 views. For similar materials see American Government and Politics in Political Science at Northwestern University.

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Date Created: 04/24/16
4/18 Midterm exam Multiple choice Short answer – sentence or two (between article 1 and article 2 of the constitution) One essay Know general revolutionary timeline Know topic and context Supplemental essays: what is Mankew’s main themes in talking about Congress? Three things that he says motivates members of congress Reelection Three strategies: advertising, credit claiming, position taking Next week… Wednesday – civil rights and civil liberties plus big themes i.e. power, collective action Monday – documentary, question asking Federal Judiciary and Supreme Court Presidency Key points Requirements of the presidents Expectations vs roles Presidential powers Sources of presidential powers Article II/’s ambiguity Judiciary key points Nature of judicial powers Purpose and function of the courts Supreme court Politics of Justice and case selections How cases are heard Important historical cases Role of the judicial branch Interpreting and defining law (notice – NOT create) Hearing individual cases and deciding how the law should apply Remember federalism – there are federal courts for federal law, and state courts for state laws Where do courts come from? Article III of the constitution creates “one supreme court, and such inferior courts” that Congress creates Thus, Congress creates the system underneath the Supreme Court Types of legal disputes Criminal law Crimes against the public order Liberty is at state Right to government-provided attorneys Right to trial by jury Civil law Relations between individuals (not individuals and government), and their legal rights Typically monetary punishment Jurisdiction The authority of a court to hear (try and decide on) a case 4 types of jurisdiction: 1. Exclusive jurisdiction – only federal court has authority to hear, state court cannot a. i.e. Terrorism 2. concurrent jurisdiction – federal or state court could hear a. hate crimes 3. original jurisdiction – court is the first one to hear a case 4. appellate jurisdiction – court can only hear a case on appeal US (federal) District courts have original jurisdiction The court of appeals has appellate jurisdiction Supreme court has both Structure of the federal judiciary Supreme Court – highest court in the federal system 9 judges convene in Washington, DC (October-June) appeals jurisdiction through certiorari process limited original jurisdiction over some cases Court of Appeals – intermediate level in the federal system 12 regional circuit courts plus the federal circuit no original jurisdiction; strictly appellate District Courts – lowest level in the federal system 94 judicial districts in 50 states and territories no appellate jurisdiction original jurisdiction in most cases Basic Court Structure Minor trial courts Major trial courts Appellate courts Supreme courts Misc. courts Hierarchical Overlaid system (federal and states) Court of fact (substantive – either did it or you didn’t) vs. court of law (procedural – looks at how lower court messed up) principle Minor trial courts Usually called county courts. Roughly 90% of the criminal case workload is handled by minor court trials Initial appearances Preliminary headings Misdemeanor Traffic and parking Civil cases Local juvenile court Major trial courts Usually called district courts Arraignments Felony trails Civil cases (involving more $) Appeals from the minor courts Appellate courts Handles appeals from the lower courts No jury Adjudicate the law General more procedural court (court of law) not substantive (court of fact) Supreme courts Handles appeals from the lower courts No jury Procedural (court of law), NOT substantive (court of fact) Miscellaneous courts – courts over specific things Federal vs state The fed court system Constitution states that fed judges are to be nominated by the President and confirmed by senate Hold office during good behavior, typically, for life Through congressional impeachment, fed judges may be removed from office for misbehavior Cases that deal with the constitutionality of a law Cases involving the laws and treaties of the US Cases involving ambassadors and public ministers Disputes between two or more states Admiralty law Bankruptcy Habeas corpus issues The state court system State court judges are selected in a variety of ways Election Appointment for a given number of years Appointment for life Combination of these methods, i.e. appointment followed by election Most criminal cases, probate (involving wills and estates) Most contract cases, tort cases (personal injuries), family law (marriages, divorces, adoptions) State courts are the final arbiters of state laws and constitutions. There interpretation of federal law or the US constitution may be appealed to the US Supreme court. The supreme court may choose to hear or not hear such cases. The scope of judicial power Framers’ intention: Judicial powers is passive and reactive Hamilton called it “the least dangerous branch” Power only to decide judicial disputes Cases must be ripe Cases cannot be moot Cases cannot be political Judicial federalism: state and Federal courts A dual court system Two court systems, state and federal exist and operate at the same time in the same geographic areas Understanding the federal judiciary Framers viewed the fed judiciary as an important check against Congress and the President But the judiciary has no influence over the “sword” or the “purse” Judicial power in ensured via Insulation and public opinion Insulation from the rest of government Judicial review The power of a court to refuse to enforce a law or government regulation that, in the opinion of the judges conflicts with the US Constitution or, in a state court, the state constitution Only a constitutional amendment or a later supreme court can modify the Court’s decision Marbury v Madison Supreme court Jurisdiction: Article III, Section 2 Foreign diplomats State v state State v US / US v state Foreign country v state / state v foreign country Foreign country v US / US v foreign country Original, non-exclusive, non-concurrent jurisdiction Supreme Court Justices Antonin Scalia (deceased) John Roberts Anthony Kennedy Clarence Thomas Ruth Bader Ginsburg Stephen Breyer Elena Kagan Samuel Alito Chief justice’s powers Presides in open court and in conferences Speaks first, speaks last, votes last Sets agenda Determines the order in which cases are heard Assigns the opinion writing duties (if voting with majority) Circulates a list of “cert denied” suggestions without conference discussion. Takes 4 votes to remove the case form the list and be heard The role of politics in selecting judges There are no constitutional requirements The process of judicial selection is a highly partisan and political process Because of the power wielded by the Supreme Court, presidents take a personal interest in selecting appointees The constitution stipulates that federal judges “shall hold their offices during good behavior” Cannot be removed The politics of selecting judges Number Job experience 33 Federal judges 22 Practicing lawyers 18 State court judges 15 Other 8 Cabinet members 7 Senators 6 Attorneys 3 Governors 1 president Policy litmus tests Rage, age, and gender Judicial diversity has increased More women and racial minorities Before Obama, 1 LGBT nominee, Obama nominated 11 Judicial philosophy and law degrees Do judges make law? Adherence to precedent – stare decisis Ideology and judicial experience Most presidents choose to appoint judges from the same party Problem: ideologies change over time 4/20 Civil liberties, civil rights, and public policy material from video on Monday will be on the midterm civil rights those protections secured by government or things government must secure on behalf of its citizens sometimes called positive freedoms political rights (right to vote) and safeguards against efforts by government or dominant groups (i.e. a majority) to subjugate another group civil liberties protections against government or restrictions on government coercion (i.e. freedom of speech, freedom of press, privacy) important questions to consider what characteristics are acceptable for discriminating among citizens? Who should be prohibited from discriminating (Congress, state legislatures, businesses, private citizens)? Public accommodation What remedial action must be taken to address discrimination? What types of policies must be in place to counter discrimination? While civil rights has developed in the United States as primarily concerned with race equality, what other identities have received protection by government policy and law (sex, age, disability status, national origin, religion, sexual orientation)? Balancing values Finding out what’s important for you and the nation Social and economic values Freedom of religion versus social order Practicing bigamy (as a religious conviction) versus right of state to limit marriage to one person Use of peyote by Native Americans versus state law Freedom of expression versus social order Anti-war and socialist sentiments in times of war Indecent material on the internet versus constraints on material to which minors and others are exposed Key freedoms Defendants’ rights Religion Defendants’ rights interpreting Defendant’s rights Criminal justice personnel are limited by Bill of Rights Failure to follow the rules usually invalidated a conviction Courts continually rule on what is constitutional and what is not TABLE 4.3 IN BOOK WILL BE ON MIDTERM 1. Searcher and seizures Probable cause : the situation occurring when the police have reason to believe that a person should be arrested Unreasonable searches and seizures: evidence is obtained in a haphazard or random matter Exclusionary rule – evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained 2. Self-incrimination Definition: the situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court Fifth amendment Miranda warnings Entrapments may be overturned 3. The right to counsel The state must provide lawyers in most criminal cases Sixth amendment 4. Trials Plea bargaining: an actual bargain between prosecution and defense Juries generally 12 people, for criminal cases, most states require unanimity 5. Cruel and unusual punishment 8 amendment forbids cruel and unusual punishment death penalty varies from state to state cannot be mandatory first amendment rights congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or of abridging the freedom of speech, or of the press, or the right of the people to peacefully assemble and to petition the government for a redress of grievances. Freedom of religion “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” Establishment clause: prohibits the establishment of religion; interpreted as separation of church and state; can’t support of prefer one religion over another Everson v board of education (1947) - government must maintain wall of separation between church and state NJ allowed reimbursement for school transportation to from a religious institution – neither handicap nor favor religion; state reimbursement of transportation costs didn’t violate Constitution Free exercise clause: prohibits government from interfering in religious beliefs Reynolds v US (1879) doesn’t protext polygamy pratcied by Mormons WVA state board of Ed v Barnette (1943) Allows jehovah’s witnesses to refrain from saluting the flag based on free expression Freedom of expression Ideas are essential to democracy; “truth” is derived from the marketplace of ideas Holmes: democracy is an experiment, as all of life is Create state to obtain order; prevents harm to others; prevents destruction of the state Supreme court has held different positions: Absolutist approach: first Amendment to be interpreted literally – “Congress shall make no law” means there are no circumstances when speech should be constrained (but even Hugo Black distinguished between speech and action) Preferred-freedoms doctrine: speech privileged over any other freedom (Holmes) Balancing test: speech must be weighed against other democratic values (Frankfurter) Political speech must meet clear and present danger test Opposing recruitment for WWI violated Espionage Act in Scheck v US; socialist distributed anti-war leaflets; standard may be higher in times of war Gotlow v NY distributing left wing manifesto during workers’ strikes is unconstitutional Symbolic expression (nonverbal) Des Moines - students may wear black arm bands Texas v Johnson – flag burning is constitutional, relies on substantive theory of democracy not to ban unpopular speech Unprotected speech Obscenity - difficult to define but unconstitutional if you can Roth v US and Alberts v Cali – found obscenity not to be protected by constitution Rule involved “average person” applying “community standards” Miller v Cali – 3 pronged test Defamation - libel (written) and slander (spoken) Several criteria Third parties must be able to observe (not private) Aggrieved party must be clearly specified Aggrieved party must actually be harmed Different standard for public figures, public officials NY times v. Sullivan (1964) alleged libel or defamation of character against public official but Supreme Court approved as long as not knowingly false or reckless & no malicious intent Freedom of assembly Right to assemble Generally permissible, but must meet reasonable local standards Balance between freedom to assemble and order in society Right to associate Freedom to join groups/associations without government interference Freedom of the press Role of press has been central to democracy; the press has been the pivotal intermediary between government and the people Protections are not absolute: does not protect reporters from revealing info in drug and other criminal trials May be sued for investigating under false pretenses Sunshine laws can complicate government Right to privacy Is there a right to privacy? Definition: right to a private personal live free from the intrusion of government Not explicitly stated in Constitution Implied rom 4 amendment Very debatable The Bill of Rights: The Right to Privacy Probably the most important source of new freedoms for most citizens in the last 50 years The right of persona to engage in family planning Griswold v Connecticut (1963) Involved a Connecticut law that prohibited the sale of contraception, Yale doctors set up a clinic in order to get arrested to bring the case Court rules that the explicitly guaranteed rights from penumbras, or implicit zones of privacy rights, on which the existence of the rights depend (14 amendment and right to “protect from government intrusion”) Later extended to unmarried couples in Eisenstadt v Baird (1972) – “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision to have a child” Roe v Wade Planned Parenthood v Casey – states cannot place substantial obstacles in the path of women seeking abortion before viability What counts as an undue burden? Spousal notification? Parental notification? Waiting period? Consensual sec between 2 consenting adults Lawrence v Texas A Texas bands same sex sodomy but does not ban heterosexual sodomy Court overrules Bowers v Hardwick and saythcriminalization of sodomy violated the due process clauses of the 14 amendment (violates privacy doctrine) BIG PICTURE (find these notes) 5 principles power and participation how has the presidency been perceived in terms of power what did framers want president to do COLLECTIVE ACTION What is collective action? Acting together to achieve some end… but theres a problem Much of what we want is a public good A public good is a How does government get around collective action problems Why do we have government in the first place Government action can be collective or coercive Designing political institutions to maximize the benefits and minimize the costs of collective action Political institutions How do the framers get around collective action problems? Articles of confederation LOGIC OF THE ARTICLES OF CONFEDERATION (FIND THIS SLIDE) Sources of conflict at the convention Solutions provided by the US Constitution Framers wanted separation of powers and checks and balances Know concepts, why they had them, how they did it So not any one faction had too much power Congress, presidency, the judiciary Institutions, power, rules Why are rules created? THREE MAIN QUESTIONS SLIDE TODAYS KEY POINTS (PRESIDENCY SLIDE) JUDICIARY KEY POINTS Nature of judicial powers Purpose and function of the courts Supreme court Politics of justice and case selection Important historical cases Discussion (4/21) Major themes Week 1 5 general principles of political science 1. All political behavior has a purpose a. Either sincere or strategic 2. Democratic politics is about the two “P’s” power and participation a. How is power distributed? Who participates? Why? b. Democracy involves power and participation 3. Politics is a collective action and government is established to solve collective action problems 4. Institutions matter (structure of behavior) 5. History matters (know what happened to know what will happen) Collective action Hard because might not be incentive – need incentives to eradicate the free rider problem High cost, little incentives Free-rider – letting other take on the burden while reaping the benefits Groups are difficult to form because of the free-riding problem, easier to form with smaller groups Government creates incentives Week 2 Constitution Federalist 10 Constitution = ambiguous Founders had trouble deciding between state or federally focused government Federalist vs. antifederalist Debates about how to count the population in states Big states v small states Slavery – representation and morals about slavery VA plan – based on population, two chamber system, representatives were elected popularly, opposed by NJ plan – essentially the articles, just a little different Arrived at compromise – bicameral 2 chamber legislature Senate (2 per state) 6 year terms House of reps (pop) 2 year terms Gave government enumerated powers Federalist 10 – by Madison, factions are inevitable, sees them as a threat, can’t actually stop them, but can try to control their effects How to best control? Establish a strong republic. Separation of powers Week 3 Why does history matter? So we don’t make the same mistakes as we did in the past, so we don’t repeat what went wrong Sets precedence Tells us something about our present situation Gives us hints about where we’re going Institutions – congress, presidency and judiciary Three powers of congress enumerated explicitly written in constitution; i.e. power to tax, set up system of courts implied things that the constitution suggests that the Congress can do Congress can try i.e. eminent domain, necessary and proper enabling enables Congress to pass legislature gives congress power to do what it was set up to do i.e. advise and consent power, oversight, declare war, impeach the president necessary and proper congress has power to make all laws that are necessary and proper senate can filibuster things primary goal of Congress is to get re-elected (advertising, position taking, credit claiming) Fenno’s paradox People generally like their own member of Congress, but hate Congress in general Your member of Congress is the only one that you have some degree of domain over To solve collective action problems within a party/Congress: Committee system Subgroups in congress that organize around an idea Different kinds of committees 1. Standing committees (always existing) a. Judiciary b. Foreign relations 2. Special or select committees (deal with a specific issue) 3. Joint committees (both chambers oversee the Library of Congress for example) 4. Ad hoc committees (handle sensitive issues, usually about security) 5. Conference committees (resolves differences between the two chambers on a bill) Political party membership 1. Speaker of the house a. Voted by members – leader of the majority party in the house b. Agenda setter – controls what bills come to the floor c. Strongest when the majority party is unified i. Strong leader can impose fairly high conformity costs to achieve a common agenda but when the party is unified, these costs are less noticeable 2. Whip system a. Increases communication among the party membership, tries to drum up votes i. The whip manages their representative part’s legislative program on the House floor 1. Speaker of the house 2. Majority leader in the house 3. Minority leader in the house 4. House majority whip 5. House minority 6. Senate majority leader 7. Senate minority leader 8. Senate majority whip 9. Senate minority whip 3. Caucuses a. Democratic party caucus, republican party caucus, congressional block caucus, caucus for women’s issues regional coalitions President Roles of the president (memorize) Chief executive Chief diplomat Chief legislator Chief citizen Commander in chief Chief of state Chief administrator Chief of party 1.Chief of state Performs ceremonial duties Stands as symbol of US Represents the nation to the rest of the world Receiving foreign leaders 2.Chief diplomat Directs foreign policy Us representative in relations with other nations Writes treaties, grants recognition to new governments 3.Chief executive Carries out and enforces laws of the US Administers government programs Supervises government employees Names top-ranking officers Grants reprieves, pardons, and amnesty 4.Commander in chief explicitly mentioned in constitution Heads all armed forces Determines military strategies Makes treaties 5.Chief politician (head of the party) Heads political party Executes party’s platform Provides “coattail advantage” 6.Chief legislator Informs Congress about the condition of the country (state of the union) Proposes Legislation Reports to Congress Urges passage of needed bills 1.Executive powers Those powers the president has and uses to make sure that federal law is carried out Executing the law, appointing power, ordinance power, removal power 2.Legislative power POTUS possesses the power to SUBMIT or RECOMMEND ideas to congress Gives state of union address each year, presents ideas for new legislation Calls special congress Veto power Veto power When a bill comes to President, can do 4 things 1. Sign and pass 2. Veto 3. Congress in session - Not touch the bill, will pass in 10 days 4. Congress not in session – not touch bill, will NOT pass 3.Diplomatic Power The president’s diplomatic powers are among the most powerful Power to make treaties Formal agreements between two or more sovereign states President usually negotiates treaties through secretary of state Senate must give approval for these international agreements with 2/3 vote 4.Military power During war time, can make critical decisions necessary as commander and chief Can send troops into combat without approval from Congress for up to 60 days War Powers Act of 1973 Can use troops for domestic peace within US Overtime, the President has taken more power over the military, Congress has not stepped up 5.Judicial powers According to article II, section 2, clause 1, president has power to Pardon – legal forgiveness for a crime Amnesty – political forgiveness, bringing citizens into compliance with a law is more important than punishing them for past offenses Reprieve – postponing a sentence (temporary) (usually death penalty) Commutation – reduction of a sentence Presidency itself is like clerkship Need persuasive leader Reputation + prestige = power Power = persuasion Why does the presidency matter? Can execute executive orders Supposed to be a strong leader, should use his power to persuade to overcome collective action problems Represents the US to other countries Has a hand in solving global collective action problems week 4 Scalia reading – interpretations of constitutional law different kinds of interpretation original intent of the framers, textualism, literal interpretation of the text, living constitutionalism Scalia believes in textualism Roberts, Ginsburg – more living constitutionalism Original intent – Thomas Scalia – living is dumb, original makes no sense, textualism is the way to go


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