POLI 1090, Week Three Notes
POLI 1090, Week Three Notes POLI 1090
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This 7 page Class Notes was uploaded by Liv Taylor on Friday September 2, 2016. The Class Notes belongs to POLI 1090 at Auburn University taught by Dr. Soren Jordan in Fall 2016. Since its upload, it has received 35 views. For similar materials see American Government in Multicultural World in Social Science at Auburn University.
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Date Created: 09/02/16
August 29-September 2, 2016 (Week 3) 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) - 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 - 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 - 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 1 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 - 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 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 - 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 Amethments: 11 – Sovereign immunity (states can’t be sued) 12 – President and VP 16 – Income tax th 17 – Vote for your senator 18 – No booze 20 – Term starting date 21tnd– Booze again 22 – Term limits (FDR) 23 – D.C. gets 3 electors in the Electoral College 25 – Presidential succession th 27 – Congress pay raises (Anti-Federalist 3 in action) The Bill of Rights - The first ten amendments to the Constitution - 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 1 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. nd 2 Amendment: - Key words: a well-regulated militia 3 - 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 3 Amendment: - No holding troops in your house in time of peace without consent of owner - Seems obsolete but not necessarily true (Mitchell case) th 4 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 5 Amendment: - Can’t be tried twice for the same crime (trial by jury) - Can’t self incriminate - Eminent domain (still highly controversial) 6 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 th 7 Amendment: - Trial by jury in civil suits 8 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? th 9 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 10 Amendment: - Powers not delegated to the federal government and not illegal by the Constitutionthre reserved for states or the people - Before the 14 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: 26 Amendment Civil liberties: Freedom of action without government intrusions - Civil liberties are negative rights - “Freedom from…” - Example: 4 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 5 - Example: Barron v. Baltimore did not implicate the Bill of Rights onto states but reversed under the 14 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 rd th - Not all Bill of Rights have been incorporated (3 and 7 ) - Equal protection helped to further the cause of civil rights as well as a critical ending in poll taxes (24 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 unconstitutional - 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 6 Scrutiny - 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) 7
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