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the broad pattern of ideas, beliefs, and values about citizens and government held by a population
different ideas about how American politics/government should run
important elements of political culture
- popular sovereignty
every individual is free to do whatever as long as it doesn't infringe of the rights of others
the theoretical power of the government ultimately stems from the people
worth of every citizen before the law and with political voice
the importance of the individual makes America "unique". What is good for society is what is good for individuals. Each person is responsible for him/herself, to acquire property, better self.
unity through diversity
process of determining how power and resources are distributed in a society without recourse to violence
- allow for change (different parties and people come to power)
- maintaining stability (structure remains relatively unchanged)
John Locke's Philosophical Tenets
- 1. state of nature
- 2. laws of nature
- 3. socical contract
What is man's "state of nature"?
When left to their own devices, men revert to animalistic tendencies. They make no constraints or government.
What are the "Laws of Nature"?
Men share certain God-given rights even in brutality. Government cannot give or take rights to life, liberty, or property.
What is a "social contract"?
agreement formed for government to protect rights. The Framers set up a new social contract.
Montesquieu's Philosophical Tenets
Seperation of powers: a reaction to what he saw in the English government.
What are the important principles of the Constitution?
- limited government
- separation of powers
- checks and balances
- popular sovereignty
What does Article I deal with?
What does Article II deal with?
What does Article III deal with?
What are the constitutional provisions for federalism?
- ennumerated powers of Congress (Article I, Section 8)
- necessary and proper clause
- supremacy clause (Article VI)
- implied powers
- all powers not specifically granted to National gov are reserved to the States
What are the ennumerated powers?
- admit new states to the union
- coin money
- conduct foreign affairs
- declare war
- establish courts inferior to SC
- make necessary laws
- raise and maintain military
- regulate commerce
What are the shared powers?
- loan and borrow money
- law enforcement
- charter banks
- transportation systems
What powers are reserved to the States?
- create local governments
- public safety "police powers"
- registration and voting
- intrastate commerce
McCullough v. Maryland (1819)
- Maryland tried to tax the National Bank
- First time "necessary and proper" upheld
Gibbons v Ogden (1824)
- Monopoly unconstitutional
- interfered with "Commerce Clause"
- first time CC upheld
Doctrine of Nullification
If states find federal laws, they can nullify and ignore them
Dred Scott v. Sandford (1857)
- DS and master moved into free territory, sued for freedom
- Missouri Compromise unconstitutional
- Temporarily in favor of states' power
National Industry Recovery Act 1933
- Public Works Administration: building projects
- Works Project Administration: art projects
- Civilian Conservation Corps: outdoor public projects
- >> tacking unemployment
Social Security Act (1935)
- National government provided unemployment insurance and old age pensions on a large scale\
- All based on the "Commerce Clause"
- "War on Poverty"
- Aimed to create the "Great Society"
- Scaled like New Deal programs
- Funded by Congress, administered by States
- Medicare- healthcare for elderly
- Medicaid- healthcare for low income
- AFDC/TANF- direct financial aid to low income families
Fiscal Federalism (definition)
federal funds to states through grants-in-aid
- 1. Categorical Grants: for specific programs
- 2. Block Grants: more spending and flexibility
- 3. Unfunded Mandates: policies with no funding attached
Unfunded Mandate examples?
- OSHA (1970)
- ADA (1990)
- No Child Left Behind (2001)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.
What are the foundational philophic ideas behind the First Amendment?
- "Harm Principle"
- "Marketplace of Ideas"
What is the "Harm Principle"?
You have have freedom of expression up to the point that it could hurt someone.
"Marketplace of Ideas"
Concept that everyone should be allowed to express their political opinions and let them compete. The good ones will survive and the crazies won't go underground and attempt revolution.
What rights are protected by the First Amendment?
- freedom of religion
- freedom of speech
- freedom of the press
- peacable assembly
- petition the Gov
Schenk v. US (1919)
- Schenk was secretary of a state socialist party
- circulated paphlets encouraging men to dodge to draft
- arrested under the Espionage Act
- SCJ Holmes wrote that the freedom of expressin must be limitied if there is a "clear and present danger" coming from it
- S went to jail
Gitlow v. New York (1925)
- G was a communist arrested for violating criminal anarchy laws
- conviction upheld, court incorporated its interpretation of First Amendment to the states
US v. Carolene Products (1938)
- interstate milk shipments
- Footnote Four by Justice Stone
- "Preferred Freedoms" Doctrine
- Strict Scrutiny Test
The "Preferred Freedoms" Doctrine says
some freedoms need more protection than others because they are more important to the citizenry
Strict Scrutiny Test
The SC looks really hard at cases that want to be upheld at the expense of certain rights. Not usually upheld.
Bradenburg v. Ohio (1969)
- Leader of Ohio branch of KKK. Wanted to invite newspeople to publicize a rally
- Footage gets out; B arrested on an earlier law against spreading unpatriotic views
- Conviction overturned.
- Until B is about to incite "imminent lawless action", his right to expression must be protected. This test is still the standard for any free speech case that makes it to the SC.
- when people interpret action as speech
- generally protected under First Amendment
US v. O'Brien (1968)
- burned draft cards on the courthouse steps
- arrested for violating 1965 Selective Service Act
- Protected by symbollic speech.
Tinker v. Des Moines (1969)
- Students wore black armbands to protest war/grieve for soldiers.
- Principal wanted them stopped.
- SC protected their speech.
Texas v. Johnson (1989)
- Burned an American Flag outside Republican Nation Convention
- SC protected right to protest by burning flag.
- A Nazi group wanted to march in an Illinois town with a large Jewish population. They were allowed to.
- St. Paul cannot outlaw the use of swastikas or burning crosses.
- Obscenity with political or social importance can be shut down based on community standards. SLAPS test.
Freedom of the Press
- Founders wanted Press to be able to report to the citizenry so they could make informed decisions
- Perform a watchdog function
- Act as a "fourth branch" of government
- Wanted to protect Press from censorship/prior restraint
Near v. Minnesota (1931)
- Near owned a tabloid paper running anti-Semetic stories
- violated Minnesota law
- Near sued and won against censorship
- Resulted in a Censorship Test
- Matters of National Security
- Regulation of Obscenity
- Prohibition of expressions that incite violence
New York Times v. US (1971)
- "Pentagon Papers"
- Reports of Tankan and other US screw-ups
- NYT and Washington Post wanted to report what wasn't going to endanger active ops.
- Nixon administration wanted them stopped
- SC ruled against the censorship of the papers because the event they concerned were over and not connected to current troop movements
NYT v. Sullivan (1964)
- Sullivan was an Alabama Official
- NYT ran a full page ad about the use police against Civil Rights workers, calling out Sullivan in particular.
- Sullivan sued for libel.
- SC he had to prove malicious intent to have a shot at winning.
- Easier for private citizens than elected officials.
speaking something patently false against someone with malicious intent
printing a malicious falsehood
Freedom of Religion
Most issues about religion didn't come before the SC until the 1940s. It was pretty much left to the states.
- Everson v. BOE (1947)
- Engel v. Vitale (1962)
- Abington Township v. Schempp (1963)
- Lemon v. Kurtzman (1971)
- "Lemon Test"
Free Exercise Clause
- Cantwell v. Connecticut (1940)
- Sherbert v. Verner(1963)
- Wisconsin v. Yoder (1972)
- Sherbert-Yoder Test
- Employment Division v. Smith
Everson v. BOE (1947)
- NJ was reimbursing parents for transportation costs of taking their children to parochial schools.
- SC ruled that NJ could reimburse. It was a neutral action to help the children.
Engel v. Vitale (1962)
- In NY, school board was writing a non-sectarian prayer.
- SC ruled that because kids are a captive audience, you can't force them to listen to religious things, regardless of which religion
- Ruled no prayer in public schools
Abington Township v. Schempp (1963)
Ruled no Bible readings or Lord's Prayer Recitations
Lemon v. Kurtzman (1971)
- PA policy of funding secular education at religious schools
- Allowing state-paid teachers to teach at parochial schools and buying textbooks for non-religious courses
- Lemon Test
- 1. Must have a secular purpose
- 2. Primary effect neither advances nor prohibits religion (neutral)
- 3. Not foster excessive government entanglement with religion
Cantwell v. Connecticut (1940)
- Jehovah's Witness folks wanted to hnad out pamphlets on the street.
- Nobody liked them and they were arrested
- Cantwell sued.
- SC ruled in favor of free excercise.
- Incorporated free exercise clause to the states
Sherbert v. Verner (1963)
- Adelle Sherbert was a Seventh Day Adventist textile worker.
- Wouldn't work on Saturday Sabath, was fired
Wisconsin v. Yoder (1972)
Wisconsin could not force Amish children to finish school.
- 1. Compelling government interest
- 2. Least restrictive manner possible
Employment Division v. Smith (1990)
- Smith said taking peyote was part of his religion
- interfered with his ability to hold a job
- valid and neutral law of general applicabillity
Griswald v. Connecticut (1965)
- Regarded availability of contraceptives
- Griswald gave them out at her clinic, was arrested.
- Court recognized a constitutional right to privacy in the "penumbras" and "emanations" of 1st, 3rd, 5th, 9th, and 14th amendments. It's implied.
Roe v. Wade (1973)
- right to abortion
- Scrutiny Test: because of Griswald, states can't outlaw abortions, but they can regulate clinics
Planned Parenthood v. Casey (1992)
- States can regulate abortions as long as they don't put "undue burdens".
- Intermediate Scrutiny of any actions that might target women.
Rights of the Criminally Accused
- habeas corpus
- bills of attainder
- Procedural due process
- icorporated over drawn-out time
- prior to 1960, states did not adhere to these rights
search and siezures must have probable cause
- double jeopardy/self-incrimination
- >> due process of law
right to legal counsel as well as trial by jury
no cruel, unusual, or excessive punishment (objective)
Mapp v. Ohio (1961)
- incorporated 4th Am against search and seizure
- exclusionary rule: evidence gained illegally is inadmissible
Miranda v. Arizona (1968)
- Only confessions made after being advised of rights can be counted
- Incorporated 5th Amendment against self-incrimination
Duncan v. Louisiana (1968)
incorporated right to jury trial in criminal cases
Dred Scott v. Sandford (1857) (effect)
upheld institution of slavery. Prohibited government from prohibiting states
13th Amendment (1865)
outlaws slavery in all US territories
14th Amendment (1868)
- Due Process
- Equal Protection
- Not incorporated until later
15th Amendment (1870)
Franchise for all men
After Reconstruction (ended 1877)
Southern states began to ignore the 14th and 15th Amendments and make Jim Crow laws.
Plessy v. Ferguson (1896)
- Plessy is 1/8 black, very fair-skinned.
- Buys a train ticket in the white section
- When the train leaves, he informs the conductor of his race.
- Refuses to move, arrested
- Case goes to the SC.
- Upholds segregation.
- "Separate but equal"
- Major increase in JC Laws
- poll tax
- literacy tests
- Grandfather clause
- Understanding tests
- White-only primary
If a relative was able to vote before 1867, you can vote now.
Law professor difficult tests about interpreting the State Constitutions
NAACP Litigation Strategy
- Judiciary is the only non-partisan branch
- If NAACP can get enough cases in the system, laws can be struck down.
Smith v. Allwright (1944)
struck down all-white Texas primary
Shelly v. Kramer (1948)
Struck down housing covenant about not selling to blacks
McLaurin v. Oklahoma BOR (1950)
Sweatt v. Pointer
- Equal access to highter education
- SC struck down segregation in facilities of higher educaiton
Brown v. BOE of Topeka (1954)
- Brown wanted to go to the school closest to her home, but it was a white school
- Thurgood Marshall argued that segregation is inherently unconstitutional, showing blacks they are unequal citizens.
- SC overturned Plessy.
- Massive resistance in the South.
- Kick-started Civil Rights Movement
White Citizens' Council Formed in MS
- Rosa Parks arrested
- bus boycott
- MLK becomes prominent
Little Rock integrated
sit-ins at segregated lunch tables
Freedom riders test newly desegregated interstate transportation
James Meredith enrolls
- Bull Connors turned hoses on protestors
- MLK arrested
- wrote famous letter
- 1964- People came to MS to register voters, etc.
- 3 kidnapped
- later killed
24th Amendment (1964)
Eliminated poll tax
Civil Rights Act of 1964
- No discrimination/segregation of government facilities, employment
- enabled attorney general to enfore integration
Voting Rights Act (1965)
- Pre-clearance: Department of Justice had to clear any changes in voting procedures
- ended disenfranchisement practices
de jure discrimination
- laws intended to discriminate
- ended as a result of the CRM
de facto discrimination
- Discrimination in outcome of law
- affirmitive action
Women's Rights Convention (1848)
- Seneca Falls, NY
- first wide-scale public meeting to discuss women's rights
- Susan B. Anthony
- Elizabeth Cady Stanton
- Abolitionists as well, wanted provisions in the 14th and 15th Amendments for women
- State-by-state approach
- Wyoming first to grant woment suffrage (1869)
National Women's Party (1916)
- Alice Paul
- Wanted national franchise for women
- Protested at White House during WWI, upseting folks
- Arrested, sent to jail where they went on hunger strikes.
- Led to 19th Amendmetn
Nineteenth Amendment (1919)
- women's franchise
- barely passed
- Equal Rights Amendment
- Equal Opportunity Employment Commision
- Equal Pay Act (1963)
- Women still only earn 75% as much as men
Levels of Scrutiny
- Rational Basis
- assumed unconstitutional without overwhelming justification
- applies to anything suspect
- race, ethnicity, religion
- possible discrimination (constitutional unless you can prove they shouldn't be)
- age, income, sexual orientation