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What is the Elastic Clause?
- Also called Necessary and Proper Clause
- Also called Implied Powers Clause
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
What is the Commerce Clause?
To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.
What is the Full Faith and Credit Clause?
All public acts, records, and judicial proceedings are recognized in other states
What is the Supremacy Clause?
State does not have power over Federal Law
If the Fed. makes a law, state cannot overthrow them.
What are the Enumerated/Delegated Powers?
Article 1, Section 8
States what Congress can do.
- Power to lay and collect taxes, duties, imposts, and excises.
- Power to pay debts.
- Power to provide for the common Defense and general Welfare of the US.
- Power to borrow money on credit of US.
- Power to regulate commerce with foreign nations.
- Power to coin money.
- Power to provide punishment for counterfeiting.
- Power to establish Post Offices and post roads.
- Power to define and punish piracies and Felonies on the high seas.
- Power to declare war.
What is another name for Enumerated Powers?
The Delegated Powers
What is another name for the Delegate Powers?
The Enumerated Powers
What are the Reserved Powers?
"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."
The states can choose whether they accept your marriage, education, etc.
Example: Gay marriage - A lot of states don't recognize it.
What are the Prohibited Powers?
Article 1, Section 9
States what the Federal Government cannot do.
- No Bill of Attainder or ex post facto law shall be passed.
- Habeas Corpus shall not be suspended, unless in cases of rebellion or invasion.
What are the Denied Powers?
Article 1, Section 10
States what states cannot do.
- No treaties
- No alliances
- No confederations
- No titles of nobility
- No ex post facto laws
- No engaging in war, unless invaded
- No charging state tax on imports
- No coining money
- No making people pirates
What were the compromises to the south in the Constitution?
- 3/5 Compromise: Slaves have a 3/5 vote
- Removed by Section 2 of 14th Amendment
Slave Trade Ban Compromise: Congress cannot try to ban slavery until 1808
Commerce Compromise: No tax on exports (state to state)
Fugitive Slave Act: If a slave escapes to a free state, he/she must be returned to owner.
What were the weaknesses in the Articles of Confederation?
How did the Constitution remedy these weaknesses?
- No Executive Branch
- No Real President
- No National Judiciary
- No one to settle state vs state disputes
- 9/13 states to pass law
- 13/13 to create Amendment
- With Constitution:
- Checks and Balances
- 2/3 to pass a law
- 2/3 & 3/4 to create an Amendment
What is the political spectrum?
- (Left to Right)
- Social Values: Rep/Economy: Dem
- Social Values: Dem/ Economy: Rep
- Christian Democrats
- Divine Right Monarchy
Conservative vs Liberal
- Right - Moderate
- Traditional Values
- Cutback on govt. regulations
- anti-drug/long prison terms
- Against civil rights in 60s
- Fend for yourself (jobs)
- Contain communism at all costs
- No taxes/law taxes
- Strong moral codes
- Fiscal Conservatives
- Left - Moderate
- Higher Taxes
- Unemployment Benefits
- Dove - War not worth it
- Equal Rights
- Protects individual rights
Effects of the Protestant Reformation: Martin Luther
Martin Luther said: "You don't need a priest to talk to God"
This lead to idea that a King was not needed.
What does the term "popular sovereignty" mean?
- The idea that people should have ultimate authority over their government, and
- that laws and leaders are fundamentally servants of the people.
Its central concept is that the legitimacy of a country's laws and its ruler is based on the consent of those being governed.
Popular sovereignty has its roots in the 1600s and 1700s with the writings of Thomas Hobbes and John Locke.
Most democracies are based on popular sovereignty, which was a guiding principle behind the American Revolution.
What does the term "popular consent" mean?
Says that we consent to being governed, rather than having our governing forced upon us.
Popular consent = a people who give their permission (consent) to be led by a certain person, or government, or type of government.
What does the term "individualism" mean?
What is the majority rule?
What is laissez-faire?
Americans like this to some degree.
A policy of minimum governmental interference in the economic affairs of individuals and society.
Is hate speech protected? If so, when? If not, when?
Yes, hate speech is protected, unless it directly incites violence.
What are the standards for slander and libel?
- In order to sue for slander/libel there must be proven attempt for actual malice and reckless disregard for the truth.What is symbolic speech?
- Symbolic speech is conduct that expresses an idea.
Sit-ins, flag waving, demonstrations, and wearing . . . protest buttons are examples of symbolic speech.
To convince a court that symbolic conduct should be punished and not protected as speech, the government must how it has an important reason.
However, the reason cannot be that the government disapproves of the message conveyed by the symbolic conduct.
Near vs. MN
Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters.
Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals.
The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.
The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied.
The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment.
Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
Chaplinsky vs. NH
Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place.
He was arrested and convicted under a state law for violating a breach of the peace.
Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection.
In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."
What is the Alien and Sedition Acts?
Signed into law by President John Adams in 1798, the Alien and Sedition Acts consisted of four laws passed by the Federalist-controlled Congress as America prepared for war with France.
These acts increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" and restricted speech critical of the government.
These laws were designed to silence and weaken the Democratic-Republican Party.
Negative reaction to the Alien and Sedition Acts helped contribute to the Democratic-Republican victory in the 1800 elections.
Congress repealed the Naturalization Act in 1802, while the other acts were allowed to expire.
Schenck vs. US
During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act.
Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation.
The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
During wartime, utterances tolerable in peacetime can be punished.
Brandenberg vs. OH
Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law.
The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.
"The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech.
The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
- The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action.
- The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
Hustler vs. Falwell
- A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader,
- had a drunken incestuous relationship with his mother in an outhouse.
Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress.
Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages.
Hustler Magazine appealed.
In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice."
The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.
NYT vs. Sullivan
Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote.
L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally.
Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors.
Sullivan won a $500,000 judgment.
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).
Under this new standard, Sullivan's case collapsed.
NYT vs. US
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam.
The President argued that prior restraint was necessary to protect national security.
In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case.
Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment."
Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.
Tinker vs. Des Moines
John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season.
Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension.
When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day.
The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment.
School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.
The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.
TX vs. Johnson
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies.
Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine.
After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
The Court held that Johnson's burning of a flag was protected expression under the First Amendment.
The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature.
The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech.
The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
What is/was the Federal Flag Protection Act?
The Flag Protection Act of 1989 was the GOP's first attempt to overturn Texas V. Johnson. (This was the 1989 Supreme Court decision that upheld flag burning as protected symbolic political expression.)
Two simultaneous attempts to outlaw flag burning happened at this time: the first Flag Protection amendment was introduced, and was voted down; the Flag Protection Act was passed by both houses of Congress.
Then-President Bush allowed the bill to become law without his signature, as an expression of his preference for a Constitutional amendment. The actual "Flag Protection Act" was not new legislation, but an amendment of the existing U.S. Code.
On October 30th 1989, the day the bill went into effect, hundreds of people burned American flags in protest.
Shawn Eichman and Mark Haggerty were among those charged with violating the law. The Justice Department admits that the law is unconstitutional under Texas V.
Johnson, but plans to prosecute anyway, hoping to get the court to reverse its decision.
Federal District courts in both cases dismiss charges, calling the Flag Protection Act unconstitutional.
The Justice Department appeals to the Supreme Court.
In June 1990 the Supreme Court in U.S. v. Haggerty and U.S. v. Eichman upheld the district court rulings that the Flag Protection Act is unconstitutional.
This law is still part of the U.S. Code, although it is not likely to be enforced unless a Flag Protection Amendment passes.
US vs. Eichman
- In 1989, Congress passed the Flag Protection Act which made it a crime
- to destroy an American flag or any likeness of an American flag which may be "commonly displayed." The law did, however, allow proper disposal of a worn or soiled flag.
Several prosecutions resulted from the Act.
Eichman set a flag ablaze on the steps of the U.S. Capitol while protesting the government's domestic and foreign policy.
Two cases (Eichman and Haggerty) were argued together.
In a 5-to-4 decision, coming on the heels of a similar holding in Texas v. Johnson (1989), the Court struck down the law because "its asserted interest is related to the suppression of free expression and concerned with the content of such expression."
Allowing the flag to be burned in a disposal ceremony but prohibiting protestors from setting it ablaze at a political protest made that clear, argued Justice Brennan in one of his final opinions.
Hazelwood vs. Kuhlmeire
The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students.
In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication.
Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.
The Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech.
The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'"
Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns."
Roth vs. US
Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute.
In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press."
The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance."
The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process.
Brennan later reversed his position on this issue in Miller v. California (1973).
Miller vs. CA
Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material.
Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.
In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection.
The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.
Who decides if nudity is pornographic?
- LADS = Any value?
- Community Acceptance
Is the current balance between national and state government correct?
Gibbons vs. Ogden
A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction.
Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges.
In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters.
The Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade.
The New York law was invalid by virtue of the Supremacy Clause.
In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause.
Marshall's was one of the earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress.
McCulloch vs. MD
In 1816, Congress chartered The Second Bank of the United States.
In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.
In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.
Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution.
Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."
What are the Checks and Balances?
The system of checks and balances is an important part of the Constitution.
With checks and balances, each of the three branches of government can limit the powers of the others. This way, no one branch becomes too powerful.
Each branch “checks” the power of the other branches to make sure that the power is balanced between them
The process of how laws are made is a good example of checks and balances in action.
Political Philosopher: Aristotle
Political Philosophers: Hobbes vs Locke
- Believed govt. was a necessary evil
- Wrote: Leviathan
- Locke: Two treaties of govt.
- 1) Govt. = ensures people's right
- 2) People has right to overthrow govt.
- Had a lot of influence on Declaration of Independence
Classic Liberal vs. Modern Liberal
We find that although modern liberals use much of the same language as classical liberals when referring to fundamental principles, very different meanings are employed.
- Classic Liberal:
- John Locke
Equality: Argued against the thesis that some men were born into slavery or subjection to other men—that other men had a natural jurisdiction over them. They certainly were not suggesting that we pursue other kinds of equality that would be in violation of justice.
Individualism: held that all the acts of government are “to be directed to no other end, but the peace, safety, and public good of the people” (Locke), but “public good” was meant as opposed to the government acting in the government's good, and not as opposed to the individual.
Liberty: the absence of physical interference by others upon one's person and estate
- Modern Liberal:
- Equality: attempt to expand and pursue other kinds of equality—e.g., of wealth or income—or at least are in favor of eliminating “too much” inequality of income.
Individualism: Appeals are often made to the common good (or “public good”, or “public welfare”) as opposed to the good of the individual. The common good is seen as a higher claim that overrides the individual's claim to his life, liberty, or estate.
Liberty: “Positive” liberty is said to consist of possessing the (positive) capacity and means to do what you will. Thus a wealthy person has more “positive” liberty.