Judicial doctrine stating that laws impinging on freedoms that are fundamental to preservation of democracy (the freedom of speech, press, assembly, religion) are to be scrutinized by courts more closely than other legislation. ("preferred freedom)
proposed law or state constitutional amendment placed on the ballot by citizen petition.
situation in which the competitive structures of a capitalist (free-market) economy fail to provide a commodity deemed worthy by the public
Types of Market Failure
2) Unprovided public goods
3) Externalities/spillover effects
4) Asymmetric information
Weaknesses of the Articles of Confederation
No independent executive
Equal representation in Congress regardless of size
Super majority of 9 out of 13 states had to agree to act
Congress couldn't tax citizens (had to rely on voluntary contributions) = couldn't pay its debts
Unitary Arrangement Of Political System
All authority is held by national governments; any local jurisdictions are just administrative outposts without sovereignty
Most nations have these systems
France, Great Britain, 1 national government
belief that multiple sources of government authority could coexist, each with its own sphere of responsibility
Federalism leads to a system of...
Two formal units, the national government and the state governments
Highest level of scrutiny the government must clear if it wants to make distinctions between categories of people
Requirements: law must have a necessary relationship to a compelling state objective
Ex: distinguish according to some grouping like race
Who wrote the Federalist Papers?
Alexander Hamilton, John Jay, and James Madison
In favor of the New Constitution being passed, wanted to encourage people to support the Constitution
What did the Civil Rights Act of 1964 do?
Banned segregation in all public places
Prohibited the use of federal $ to fund segregated programs
Created equal employment opportunity (EEOC) to guard against employment discrimination
Which power of Judicial Review is not true?
It is established in the Constitution.
In the book, the authors make a case in Chapter 16 about...
The advantage of the elderly
Separation of Powers provides for what?
3 branches of government
Different constituencies determining top personnel of each branch
checks and balances
In the Federalist No. 10, James Madison advocated what?
a Republican Democracy
What did James Madison say was the greatest threat?
Concurrent Powers include the powers:
and to establish courts
Government is defined as...
An institution and procedures through which territory/people are ruled
A monopoly of the legitimate use of physical force
A group of people within state who have authority to act on behalf of state
Answer: all of the above!
Despite ratification of the 15th amendment, states still took which of the following measures to restrict blacks?
Answer: all of the above were used
Difference between de jure and de facto segregation
De jure - separation of races by law as practiced in the South (Equal Protection clause only forbade this type of segregation)
De facto - separation occurring as the result of private decisions made by individuals
Free exercise clause
Congress shall make no law respect an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech or of the press; or the right of the people peaceably to assemble...
National-state arrangement under 1st constitution
Eisenstadt v. Baird is significant because...
Mass. banned sale of contraceptives rather than their use; Justice Brennan adapted "right to be alone"; prevented govt from trying to influence those details
Set background for Roe v. Wade
Expanded meaning of privacy (to mean personal autonomy)
Heler and McDonald case used to do what?
Apply the 2nd amendment to the state
Four key principles of American constitutionalism
Republican system of government
System of Separation of powers
Checks and balances
Difference between Initiatives and Referendum
Initiative - proposed law or state constitutional amendment that is placed on the ballot by citizen petition.
Referendum - laws or state constitutional amendments proposed by a legislative body that requires voter approval before going into effect
What was Shay's Rebellion?
New England (Mass.) farmers resorted to violence to protect their land from being auctioned off and to protest the hurting economy.
It frightened national leaders, convincing them they needed a strong federal government. (led to Constitution in a way)
Great (or Connecticut) Compromise
Large and small states wanted to structure legislative branch differently.
They compromised - senate would have equal state representation (2 senators) and house would have seats proportionate to population.
Let them both block legislation they opposed.
Northern delegates didn't want to count states when figuring representation in House but Southern states did.
Compromise - a state's slave population would be multiplied by 3/5 when determining both taxes and House seats.
Necessary and Proper Clause
Framers used vague language in Const.
Limited powers of Congress to specific list, but included flexibility to "make all laws which shall be necessary and proper" for exercising those powers.
Allowed congressional influence to grow.
Convention delegates used vague clause binding judges to treat the Constitution as the "supreme Law of the Land."
This clause allowed SC, 16 years later, to claim powers of judicial review (saw a law is unconstitutional)
Why was the Bill of Rights included later?
To ensure ratification by states that were at first hesitant to put so much power into the hands of the government.
The Tenth Amendment
Makes reserved powers for the states
Says that the states "retain the powers not delegated to the national government."
- Power to run elections, supervise local govts, regulate intrastate commerce, public health and safety, education
gives Congress control over interstate trade
- Wickard v. Filburn - farmer violated New Deal crop limits, Congress said his actions affected interstate commerce by depressing worldwide wheat prices.
Expansive definition of this clause.
grants with fairly specific regulations about how the money must be spent.
- controversial b/c they impose so many limits on states
- Republicans criticize them and endorse block grants instead
Grants with a broad set of objectives, minimal restrictions and maximum discretion for local officials.
- there have been ways of increases in block grants
- but govt usually prefers categorical b/c it allows them to control what the money buys
fed. government puts federal regulations on states/local govts without appropriation of enough $ to cover their costs.
- ex: saying they must make buildings accessible to handicapped but not giving enough money to cover construction costs
Full Faith and Credit Clause
each state owes to the other states full respect of their legal documents
- ex: if you're married in one state, you're married in another
- driver's licences, marriage licences, divorces, etc.
Privileges and Immunities
states must extend to members of other states the privileges and immunities they would extend to their own states
- "comity" clause
- Exceptions: out-of-state tuition, fishing and game licenses,
- clause only extends to fundamental rights
United States v. Lopez
Supreme Court narrowed scope of commerce clause in this case
Congress attempted to declare public schools gun-free zones - argued that education was a "business"
SC ruled education wasn't economic activity, it was up to the states to make that policy.
fundamental freedoms that protect a people from tyranny; protect individuals from government interference.
- establishes what the govt cannot do
- "freedom of being left alone"
- Bill of Rights (they are actually liberties)
process by which, over time, Supreme Court applied most of the guarantees in the Bill of Rights to state governments.
Why was the Supreme Court able to selectively incorporate the Bill of Rights into State Governments?
Due process clause of the 14th amendment.
- this clause applied language of 5th amendment to states; said they cant deprive "any person of life, liberty or property w/o due process of law."
McDonald v. City of Chicago
2008 - case involving handgun ban in D.C. ruled that the 2nd amendment preserved an individual's right to own guns
2010 - in McDonald, Court found that this right applied to states as well
- ex. of incorporation of bill of rights into states
Schenck v. United States
Schenck passed out flyers urging draft-age men to resist the draft (for WWI). Supreme Court said that free speech didn't extend to messages posing a clear and present danger to U.S.
- created the Clear and Present Danger doctrine
Three types of speech that lack full protection from "free speech":
Commercial speech - govt. may regulate advertising
Libel - false statements made knowingly defaming someone's reputation
determines if law violates Establishment (of religion) clause in Constitution.
- Lemon v. Kurtzman
- laws must have clear secular purpose
- laws must not inhibit one religion or religion in general
- no public officials entangled in religion
meant to determine when law violates Free Exercise (of religion) clause
Religiously motivated action had to
- promote secular goal that was
- a compelling governmental interest and to do so
- in a manner least restrictive to religious practices
Most Controversial unlisted right is...?
Right to Privacy
Two court cases involved in the changing meaning of the Right to Privacy
Griswold v. Connecticut
- SC says she has a right to privacy (to keep personal details private)
Eisenstadt v. Baird
- SC says states can't ban sale of contraceptives b/c she has a right to be "left alone"
Privacy comes to mean personal autonomy
Mapp v. Ohio
Est. exclusionary rule - improperly obtained evidence can't be presented during trial.
Miranda v. Arizona
When the Supreme Court put teeth into 5th amendment, requiring police officers to alert suspects of their rights before questioning them (or else they can't include evidence from the suspect)
Civil rights guarantee equal treatment by government
What is the provision in the 14th amendment that guards civil rights?
The equal protection clause - states must give everyone "equal protection of the law."
- states must not make categorical distinctions (race, gender, etc.)
What are the three levels of scrutiny the government must clear to make a categorical distinction in a law?
lowest level - Rational Basis Test - reasonable way to promote legitimate govt purpose
second level - Heightened Scrutiny - substantial relationship to important state obj.
highest level - Strict Scrutiny - necessary relationship to compelling state obj
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