GOPO MIDTERM STUDY GUIDE:

GOPO MIDTERM STUDY GUIDE

Chapter 1 Origins of Government Citizen member of a political community Get rights protection of rights and freedoms; keep us safe Give obligations taxes, military, obey the law (hopefully civic minded voting) Politics who gets what, when, and how Government should Establish justice Ensure domestic tranquility Provide defense Provide general welfare Secure liberty Roots of American Government Divine Right of Kings 16th and 17th century reformation enlightenment Leads to Pilgrims Mayflower Compact 1620 (social contract) Thomas Hobbes (1588 1671) Pessimistic Low view of humankind Natural state = war Need to prevent anarchy People give up right to a sovereign (strong monarch) John Locke (1632 1704) Optimistic Humankind rights from nature (life, liberty, property) Social Contract people consent to be governed Democracy people rule Direct Indirect republic through elected representatives Changing Characteristics Size and Population 1776 13 states, 4 million people Now 50 states, 300 million people House of Representatives 1776 1 representative per 30,000 Now 1 representative per 700,00 Race Ethnicity Nationality Whites 68.3% going down Hispanic 13.4% going up African America 12.7% staying the same Asian 4% going up Age 80 women 75 men Baby boomers 1946 1964 (77 million) Generation X 1965 1976 (distrust political process, libertarian, capitalism is good) Generation Y 1977 1994 (optimistic, internet savvy, think more globally)

Family Lower birth rates Single parent Higher divorce Women working Mixed families Ideology of American Public Liberal More government action to meet peoples needs Provides services (government) Federal government (domestic) More active role in Economy Emphasize protection of civil liberties Conservative Government that governs least governs best Less activist government State power (domestic) Less regulation of Economy Pro guns, anti abortion, business over environment, restrict gay rights, anti sex ed, prayer in school Fiscal responsibility Foreign Policy (After Vietnam) Liberals Less interventionist Less militaristic Neo-Conservative Interventionist Spend money on military Most republicans Old Conservative George Will out of Afghanistan Current Attitude Cable news, internet mainstream media High expectations Mistrust of politicians Johnson (Vietnam), Nixon (Watergate) Voter apathy Keynesian Economics (John Maynard Keynes 1883-1946) An economic theory stating that active government intervention in the marketplace and monetary policy is the best method of ensuring economic growth and stability Race Matters Cornel West Liberals Problem economic Solution government programs Wrong simplistic, no room for principled criticism Goal included and integrated Conservatives Problem moral behavior of black people Solution unworthy of public action

Wrong ignoring the immoral circumstances of their condition, disregarding public responsibility Goals worthy of acceptance Conservatives and Liberals see blacks as problem people Constitutive elements of American life Chapter 2 Articles of Confederation (1781 1789) National government gets power from the states Powers limited (war and money) Each state got 1 vote need 9 to pass No president, no judicial Could not tax or regulate commerce Shays Rebellion 1786 in western Massachusetts; when impoverished back-country farmers, who were losing their farms through mortgage foreclosures and tax delinquencies, attempted to enforce their demands of cheap paper money, lighter taxes, and a suspension of property takeovers; led by Captain Daniel Shays. The uprising was crushed but it left fear in the propertied class of mobs. Constitutional Convention 1787 No Jefferson or Adams Motives Beard 1913 economics Virginia Bicameral (proportional) State legislature upper; people lower Executive chosen by legislature Judiciary chosen by legislature New Jersey Unicameral (equal) Supreme court are appointed for life Strengthen the Articles not replace them Give Congress power to raise revenue from duties and postal service Great Compromise Bicameral Senate equal (state legislature) House proportional (people) $ bills originate in House National power supreme over state power Three-Fifths Compromise Representation and taxation 60% of slave population for both Senate approves treaties with 2/3 vote Executive 4 year term, no limit Electoral college Impeachment and removal Montesquieu Separation of powers separate institutions sharing powers (diffuse power) Checks and balances (separately staffed, equality) Federalism sharing or dividing of power between the federal government and the states Hofstader Founders Hobbes Government gets power from the people Control self-interest without producing tyranny

 Cant counter vice with virtue Various interests check and control each other No one faction should control government Solution Republic, federalism, separation of powers, checks and balances Liberty property rights; not defined in terms of civil liberties or democracy No Bill of Rights Madison Federalist 10 Problem factions Method 1 remove causes (bad) A. Destroy liberty essential to existence B. Give every citizen same opinion, interest Solution A. Worse than the disease B. Impractical Method 2 control the effects (good) A. If faction is a minority democracy solves B. If faction is a majority republic representatives will be a filter concern for long range public good; faction might be local but not national Constitution Preamble and 7 Articles (1787) Bill of Rights (1791) Article I Legislature Qualifications Bicameral Enumerated specific, listed Necessary and Proper (elastic clause) Implied powers Article II Executive Fewer stated powers Commander-in-Chief Foreign policy Article III Judiciary Independent Appellate and original jurisdiction Article IV Full faith and credit States have to respect laws of other states if a state ruling conflicts with public policy of another state Article V Amendment process Article VI Supremacy Clause Federal law over state law Article VII Ratification Rules for ratification of Constitution 9 out of 13 state conventions Ratification Federalists vs. Anti-federalists Federalists The Federalist Papers (Madison, Hamilton, Jay) support of ratification Minimize faction dissolution of power Anti-federalists Central government was too strong President was too strong Supreme Court should not invalidate state laws Fear of taxes

Wanted a Bill of Rights Bill of Rights 1. Freedoms 2 and 3. Reactions to British 4-8. Legal rights 9. Other rights (privacy) 10. Reserved powers (to states)

Amending the Constitution A. Formal First Step 2/3 Congress (2/3 House and 2/3 senate) or 2/3 of states ask for Constitutional Convention (never been used) Second Step 3/4 of State Legislatures or State Conventions (21st repeal of prohibition) B. Informal Methods Judicial Interpretations Social and Cultural no Equal Rights Act (ERA), protect women; New Deal (expansion of government) Chapter 3 1. What was the solution of the framers of constitution for the type of govt? a. First fed. System- Federal government b. States bound under one national gov. c. BUT all governments (state and fed) get power from the people What laws/legs. differ between states? a. Marrying age- same sex marriage b. Divorce, child custody c. Criminal laws- if/how death penalty is implemented States must meet certain conditions in order to get federal government (a way for the fed. Gov. to control state actions- i.e. drinking age, maintenance of highways)

2.

3.

I. Roots of Federal System and Governmental Powers Under the Constitution 1. Federal system MUST be different from Articles of Confed. government because national government derived ALL of its powers from the states and therefore was way too weak (shays rebellion) Also had to be different from Unitary System (Great Britain) because framers feared centralizing power in one government/institution 2. What are the exclusive powers of national government? a. Coin money b. Conduct foreign relations c. Provide for army and navy- declare war d. Establish national court system e. Tax- constitution did not write out power to levy income tax (came with sixteenth amend. In 1913) f. Set out in Article I section 8 of constitution- called enumerated powers i. Article I section 8 also contains necessary and proper clause- gives congress authority to act to enact any law that is necessary to carry out enumerated powers (implied powers) 3. Article VI- national government supreme in situations of conflict between state and national government (supremacy clause) 4. 10th Amendment- reserves states powers to legislate for general welfare of its citizens 5. What are the states rights according to the constitution?

Article 1- holding elections for senators and reps. guarantees state two members in senate b. Article 2- requires each state appoint electors to vote for president c. Article 4- privileges and immunities clause- guarantees that citizens of each state are afforded the same rights as citizens of all other states; provides republican form of government (represents citizens of each state)- national government will protect states against foreign attacks and domestic rebellion 6. What are the states powers? a. Reserve/Police Powers b. Ability to legislate the public health, safety and morals of citizens 7. What powers were denied/concurrent under the Constitution? a. Concurrent powers- powers shared by national and state governments- i.e. right to borrow $, establish courts b. Article I- states prohibited from entering treaties, coining $ or impairing obligation of contracts, (cant void a contract) entering into compacts with other states (without congressional approval- known as interstate compacts c. Congress barred from favoring one state over another in regulating commerce and cannot lay duties on items exported from any state d. Neither state nor fed. Governments can pass a bill of attainder- declaring an act illegal without judicial trial or ex post facto laws 8. Full Faith and Credit: ensures that judicial decrees and contracts made in one state will be binding and enforceable in another- facilitates trade and commercial relationships a. Ruled in 1997 that full faith and credit mandates state courts must always honor judgements of other state courts 9. Under article 4, states must also return crimilars to states where they have been convicted or are to stand trial 10. Supreme court final authority to decide controversies between states

a.

II. Federalism and the Marshall Court 1. Appointment of John Marshall as Chief Justice strengthened SC- series of decisions carved out an important role for court especially defining relationsip between fed/state govs. 2. What was McCulloch v. Maryland (1819)? How did it impact role of government?

1816, Congress chartered second bank of the U.S. 1818, Maryland state leg. Levied a tax requiring all banks not chartered by Maryland (the Second bank of the U.S.) to 1) buy stamped paper from state on which second banks notes were to be issued 2) pay state $15,000/yr. or 3) go out of business. James McCulloch who was the head cashier of BUS refused to pay tax and therefore Maryland brought suit against him. After losing in Maryland state court, McCulloch brought issue to supreme court. i. Did congress have authority to charter a bank?- Yes because necessary and proper in order to issue currency, collect and levy tax, and borrow funs ii. Could state tax it?- No because national law is supreme (If state of Maryland could regulate laws of fed. govt, then consit. And fed. laws would lose significance. b. Signficance- necessary and proper clause used to justify many fed. actions. Also, if Marshall had allowed Maryland to tax, it is possible that states could have attempted to tax all fed. agencies located within their boundaries- costly could have driven fed. gov. into insurmountable debt. 3. What was Gibbons v. Ogden (1824)? How did it impact role of government? a. NY state leg. Granted Robert Fulton exclusive right to operate steamboats on Hudson River. Simultaneously, Congress licensed a ship to sail on the same waters. Both NY and NJ wanted to control shipping on lower Hudson rive. b. What was the scope of Congresss authority under the commerce clause? i. Congresss power to regulate interstate commerce included the power to regulate commercial activity (along with direct dealings) and that the commerce power had not limits. New York had no constit. authority to grant a monopoly to a single steamboat operator (interfered with interstate commerce) ii. Another broad interpretation of scope of national power III. Dual Federalism: The Taney Court, Slavery, and the Civil War 4. Marsalls successor: Roger B. Taney 5. What is dual federalism? a. Posits that having separated and equally powerful state and national governments is the best arrangement b. National government should not exceed its constitutionally enumerated powers and all other powers are reserved to the states or the people 6. What was the Dred Scott Case? How did it impact the rights of slaves? How did impact the relations between state and national government? a. Missouri compromise unconstitutional- congress lacked authority to ban slavery in territories (ruled out any nationally legislated solution to the slavery question- left problem in hands of states and people) b. Can a Negro Slave become entitled to all the rights and privileges guranteed by the Constitution to the citizen?- No Negro not included or intended to be included under the word citizen in constit. And could claim none of the rights/privileges secured to citizens. c. Seen as property- cannot rob a white citizen of his/her right to property 7. Civil war changed nature of federalism a. In aftermath of war, national government grew in size and powers- imposed its will on state governments through 13th, 14th and 15th amends. (Civil War Amendments) prohibiting slaver, and granting civil and political rights to African Americans. b. SC continued to adhere to concept of dual federalsm, so state governments powers werent truly diminished until 1933 8. What were the sixteenth and seventeenth amendments? How did they impact control of national government? a. 16th- gave congress power to levy and collect taxes on incomes without apportioning them among the states. Income tax and the revenues it generated greatly enhanced power of national government and its ability to enter policy areas where it formerly had few funds to spend.

a.

17th- (1913) terminated the state legislatures election of senators and put their election in the hands of the people. With senators no longer directly accountable to state legislators who elected them, states lost their principal protectors in congress IV. Cooperative Federalism: The New Deal and the Growth of National Govt 1. Dual Fed. abruptly ended in 1930s: a. Severe slump in agricultural prices, decline of construction industry, bank failures, stock market crash (taking with it the entire national economy) b. Presidents Coolidge and Hoover took little action, thinking that national depression was an agglomeration of states crises and therefore should be dealt with by state and local governments. c. 1933- problem could no longer be ignored 2. What was the New Deal? How did it change the role of the Federal Govt? a. New Deal Period- President FDR proposed a variety of innovative programs to combat severe problems facing the nation. Intense government activity on a national level. b. Congress passed variety of new agencies and programs proposed by president (i.e. Federal Housing Admin, Civilian Conservation Corps, Agricultural Adjustment Admin) 3. Through the mid 1930s, SC continued to rule that certain aspects of New Deal went beyond authority of Congress (kind of laissez-faire attitude about economy- didnt realize necessity of new programs) a. FDR outraged- tried court packing plan suggested to enlarge size of supreme court to 13 justices (from 9) so that he could make majority of justices who agreed with his New Deal policies b. NOT popular plan nevertheless congress responded to threat of FDR- 1937 reverse antinew deal decisions. Concluded that congress had authority to legislate in any area so long as what was regulated affected commerce in any way- congress legislated in wide array of areas (min wage, reg. of child labor) 4. Cities began to be embraced as equal partners in intergovernmental system and became players in national political area 5. What is the analogy of from layer cake to marble cake? How did the government begin to change? a. Before New deal (and depression) govt likened to layer cake (national then state then local governments with clearly defined powers and responsibilities) After New Deal, looked much more like marble cake (wherever you slice, inseparable mixture of differently colored ingredients- difficult to tell where one ends and the other begins) b. Marble cake known as Cooperative Federalism- intertwined relationship among national, state and local governments that began with New Deal. States began to take cooperative role in scheme of governance, as did cities. i.e. Growth of federal grant programstremendous growth in these programs shifted questions from how much power should national government have? to how much say in the policies of states can the national government buy? 6. Categorical grants- Congress appropriates funds for specific purposes. Allocate federal dollars by precise formula and are subject to detailed conditions imposed by natl govt. a. By early 1960s, congress saw this power as a way to force states to behave in ways desired by national government 7. What was the Great Society Program and the War on Poverty? a. 1964 LBJ- broad attempt to combat poverty and discrimination. Federal funds channeled to states, local governments and even directly to citizen action groups to alleviate social ills that states hadnt been able to remedy. Grants based on what national government wanted states to do to foster national goals. (States routinely asked Washington for help) V. New Federalism: Returning Power to the States 1. What is New Federalism? a. 1980- Reagan pledged return of power to states- set tone of fed/state relationship until 2001. Took steps to shrink size of national government 2. Reagan proposed massive cuts in federal domestic programs and drastic income tax cuts. Created more block grants- broad grants to states with few strings attached. (four main categories: health, income security, education or transportation) b.

3.

4.

5. 6.

What was the Devolution Revolution? a. Bill Clinton (first democrat in 12 years) elected president state governors and republican party (who still had majority in practically everything else) began to rebel b. Unfunded Mandates: national laws that direct state or local governments to comply with federal rules or regulations (i.e. clean air/water standards) but contain no federal funding to defray cost of meeting those requirements. c. Republicans in congress passed Unfunded Mandates Reform Act of 1995 preventing congress from passing costly federal programs. d. Also major welfare reforms Federal and state budget surpluses- major economic boom, however Gore was not elected and presidency went to George W. Bush, who proposed limited federal government and states extensive administrative powers over programs such as education and welfare. a. However, 9/11, rising costs of education and welfare and struggling economy led to sever deficits and Bush ended up having to ask for Department of Homeland Security and No Child Left Behind Act, angering state and local officials because they believe that class size, accountability testing, etc. should be left as state responsibilities. Known as preemption: national government overrides state and local actions What were some of the modern supreme court cases that demonstrated new federalism? How did they impact state/national powers? a. Tended to side with states: i. Webster v. Reproductive Services (1989): allows states to put certain limits on abortion (even though they cant technically limit abortion completely): parental consent for minors, waiting period, spousal notification ii. U.S. vs. Lopez (1995): guns in schools not covered by commerce clause- state-controlled issue iii. Seminoles vs. Florida (1996): Congess lacked authority to require states to negotiate with Indian tribes about gaming b. Some major exceptions: i. Bush vs. Gore (2000): states wrong- federal government took priority against states ii. Hibbs/Family Leave Act vs. Nevada- SC rejected Nevadas claim that it was immune under suit from FMLA- appropriate exercise of congresss power to combat sex-role sterotypes about domestic responsibilities of female workers

Chapter 5 Civil liberties freedoms that government cannot abridge; limits on what government can do 1. Dispute between government (trying to preserve order and peace) and group (exercise freedom) 2. Dispute between conflicting liberties Courts Decide Bill of Rights o State constitutions had them o First 8 civil liberties o Apply to federal government nothing to do with state governments o Limits on federal government not states Substantive Due Process protects citizens from arbitrary treatment by the states Leads to Incorporation Doctrine Bill of Rights applies to states as well o 1925 Gitlow v. New York speech o 1931 Near v. Minnesota press Selective Incorporation o 1937 Palko v. Connecticut double jeopardy not a fundamental right so not incorporated

o double jeopardy was later incorporated in 1969 First Amendment o Establishment Clause no official religion separation of church and state o Free Exercise Clause not absolute (Mormons polygamy) Freedom to believe absolute Freedom to act not absolute o 1971 Lemon v. Kurtzman: Lemon Test action is constitutional if Has a secular purpose Neither advances or inhibits religion Does not foster an excessive entanglement with religion o Government Protections Thoughts (greatest) Words (middle) Actions (least) o Free Exercise Secular law v. religious law suspicious religions favor secular law Does the state need to show a compelling interest in order to prohibit a religious action No (Peyote NA religious drug) Congress passed Religious Freedom Restorations Act unconstitutional o Freedom of Speech and Press Prior Restraint Constitutional doctrine that prohibits restraint before the fact Alien and Sedition Acts 1798 Lincoln curtailed press WWI Espionage Act 1917 (prevent anti-war talk upheld) 1919 Schneck v. US establish clear and present danger test 1969 Brandenburg v. Ohio replace clear and present danger with imminent lawless action test higher standard o Protected Speech and Press Protected against prior restraint - 1971 NYT v. US (pentagon papers) Symbolic speech 1969 Tinker v. Des Moines (black armbands) Flag burning Federal flag protection Act (unconstitutional 5-4) Hate Speech cannot silence speech on the basis of content but if the intent is racial intimidation o Unprotected Speech Libel(written) and slander(spoken) knowingly untrue, with malice Fighting Words by their utterance inflict injury, incite a breach of peace Obscenity 1957 Roth v. US Roth Test o Not protected if utterly without redeeming social importance/value; average person contemporary standards dominant themes appeals prurient interests 1953 Miller v. California rejects the utterlysocial value o Work as a whole prurient o Sexual conduct depicted in an offensive way o As a whole lacks serious artistic, literary, political, or scientific value o Local standards replace national standards pornography easier to regulate Federal funding of Arts (NEA) congress can define decency Internet SC ruled Congressional regulation unconstitutional (pornography) Second Amendment

Brady Bill federal ban on semi-automatic weapons, 5 day waiting period, background check unconstitutional (5-4) infringed on state sov. o Incorporation not incorporated, Washington D.C, hand gun laws unconstitutional 4th amendment o Reaction to Writs of Assistance o Unreasonable searches, probable cause o Police can search person they are arresting, things in plain view, things the arrested can reach o 1968 Terry v. Ohio stop and frisk No need for probable cause to conduct a pat down search if that search is not unreasonable o 1989 US v. Sokolow reasonable suspicion Some minimal level of objective justification Low bar (particularly in drug cases) o Homes/Business need a warrant unless permitted in o Cars US v. Ross 1982 probable cause search vehicle o Exclusionary Rule bars the use of illegally seized material (evidence) at trial Weeks v. US 1914 federal tainted evidence cannot be used Mapp v. Ohio 1961 incorporated Impartial Jury o Preemptory challenge used to discriminate based on gender or race, violates 14 th amendment equal protection Right to council o You have the right to hire o 1963 Gideon v. Wainwright incorporated o Possibility of jail must be given a lawyer 8th amendment o No cruel and unusual punishment Death Penalty federal death penalty, states decide o 1972 Furman v. Georgia arbitrary and unconstitutional so states rewrite laws o 1976 Gregg v. Georgia reinstated o No death penalty under 15, mentally handicapped Right to Privacy o Griswold v. Connecticut 1965 (7-2) Privacy is a right: penumbras unstated liberties on the fringe of explicit liberties (1,3,4,14) 9th amendment o Roe v. Wade 1973 (7-2) pregnancy into trimesters 1. right to privacy makes abortion an absolute right 2. can regulate to protect mother 3. fetus is viable life out ways privacy states can outlaw o Since Roe waiting period, parental permission, fetal viability in second trimester o Homosexuality o Lawrence v. Texas 2003 (6-3) Declared Texas sodomy laws unconstitutional (reversed 1968) 5 judges privacy 1 judge (OConnor) equal protection 14th o Boy Scouts private club Freedom of association 1st amendment Right to die no constitutional right to die

Chapter 6

Civil Rights government protection of rights against arbitrary or discriminatory treatment by government or individuals based on race, sex, ethnicity, religion, age, or sexual orientation 1800 1890 o 1808 end of slave trade o 1820 Missouri Compromise o Development of anti-slavery societies and womens rights (Seneca Falls) o 1862 emancipation proclamation takes effect 1/1/63 o 1865 13th amendment ends slavery o Block Codes 1865 o 1866 Civil Rights Act (passed over Johnsons veto) Constitutional issues citizenship (Dred Scott) Federal government could intervene with the states to protect African Americans o 14th Amendment 1868 Defines citizenship Equal protection States must follow due process Invalidate 3/5th compromise o 1870 15th amendment black vote not women Leads to National Womens Suffrage association (Anthony, Stanton) Supreme Court o Jim Crow Laws segregation laws upheld by SC in 1883 o Civil Rights cases 1883 SC ruled that congress had no authority to prohibit private discrimination in public accommodations Congress can only prevent government/state discrimination 15th Amendment o Poll taxes, land requirements, literacy test o Grandfather clause Push for Equality 1890 -1954 o Plessy v. Ferguson 1896 separate but equal political equality not social equality o 1909 NAACP Du Bois Legal Defense Fund Thurgood Marshall o Test Cases accepting the doctrine but the equal part was not being adhered to o Truman 1945-1953 Desegregated the military Amicus brief o 19th Amendment 1920 Womens suffrage o Brown v. Board of Ed 1954 (9-0) Equal protection clause 14th Vinson dies Earl Warren integration, political skills o 1957 Arkansas, Little Rock Governor Faubus Faubus v. Ike o 12/55 Rosa Parks Montgomery Bus Boycott o MLK Southern Christian Leadership Conference o SCLC sit-ins, TV, 1960 JFK, March on Washington 1963 I have a dream speech, LBJ o Civil Rights Act 1964 voting, public accommodations, schools, employment, federal government withhold $ o MLK non violence o Malcolm X self-defense o Black Panthers violence Education o 1971 Swann v. Charlotte SC eliminate de jure (result of law or policy) discrimination

Courts could remedy with busing and use of quotas Used to eliminate de jure not de facto (unintentional segregation due to housing patterns) discrimination

Employment o In order fro a company to use a discriminatory action they must show a Business Necessity Women o Title VII Civil Rights act 1964 o NOW o 1972 ERA passed Congress, 7 yrs 35 states fails o Equal Protection Clause and Constitutional Standards of Review Strict standard fundamental freedoms (religion, press) and suspect classification (rare nationality) Intermediate standard important objectives ( gender - women cant be drafted) Rational basis (age, wealth, mental retardation) Statutory Remedies for Sex Discrimination o CRA Title VII prohibits discrimination of women by public and private employers o Broad definition of sexual harassment o Education 1972 Title IX bars educational institutions that receive government money from discriminating against female students Womens sports Classes/teachers Court Cases for Chapters 5 and 6 (I made this because we had a whole test of court cases. I dont think hes going to go into this much depth on the midterm, but each one can give a rough idea of what the case was about) Gitlow v. New York (1925): Gitlow was arrested for distributing copies of a "left-wing manifesto. Gitlow was convicted under a state criminal anarchy law. Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all. (Incorporation of Speech) Near v. Minnesota (1931): United States Supreme Court decision that recognized the freedom of the press from prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). (Incorporation of Press) o Thus the Supreme Court, through its power of judicial review, had extended to all the states beyond doubt the 1st Amendment freedoms of speech and press. What about the other rights in the Bill of Rights? Were they also applicable to the states through the due process clause of the 14th Amendment? These questions were answered slowly, on a case-by-case basis, from the 1930s through the 1980s o Selective Incorporation: The process by which certain of the guarantees expressed in the Bill of Rights become applicable to the states through the Fourteenth Amendment. Under the total incorporation approach, an approach never adopted by a majority of the Supreme Court, all the Bill of Rights and the attendant case law interpreting them, are applied to the states. Under the selective incorporation approach, select guarantees in the Bill of Rights and their related case law are applied to the states.

Palko v. Conneticut (1937): Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938. Lemon v. Kurtzman (1971): involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"? Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. (Lemon Test)To be constitutional, a statute must have 1) "a secular legislative purpose, 2)" it must have principal effects which neither advance nor inhibit religion, and 3)it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. Brandenburg v. Ohio (1969): 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." Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? 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 (imminent lawless action test): (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. Roth v. U.S. (1957): 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. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? 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 1)"utterly without redeeming social importance." The Court held that the test to determine obscenity was 2)"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.

Miller V. California (1973): MODIFIED decision of Roth V. U.S. 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. Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? 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. Miranda v. Arizona (1966): Suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation. Does the police practice of interrogating individuals without notifiying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations. Weeks v. U.S. (1914): Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. Did the search and seizure of Weeks' home violate the Fourth Amendment? In a unanimous decision, the Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule." (evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law.) Mapp v. Ohio (1961): Facts of the Case: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. Griswold v. Connecticut (1965): Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within

the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. (Prenumbras and 9th Amendment- Uncommonly Silly Law) Roe v. Wade (1973): Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. o First trimester: right to privacy makes abortion absolute right- unregulated by states o Second trimester: States can regulate abortion to protect mother o Third trimester: Fetus is viable, therefore life outweighs privacy- states can outlaw Bowers v. Hardwick (1986): Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. On appeal, the Court of Appeals held that Georgia's statute was unconstitutional. Does the Constitution grant a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Lawrence v. Texas (2003): Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by samesex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? No, yes, and yes. The Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Plessy v. Ferguson (1896): The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested. Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment? No, the state law is within constitutional boundaries. The majority, in an opinion authored by Justice Henry Billings Brown, upheld state-imposed racial segregation. The justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. (The phrase, "separate but equal" was not part of the opinion.) Justice Brown conceded that the 14th amendment intended to establish absolute equality for the races before the law. In short, segregation does not in itself constitute unlawful discrimination.

Brown v. Board of Ed (1954): Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment? Yes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality. Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority. The longheld doctrine that separate facilities were permissible provided they were equal was rejected. Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all forms of state-maintained racial separation. Other Important Cases Gideon v. Wainright (1963): Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison. Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries." Gregg v. Georgia: A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments. Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment? No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence's circumstances with other similar cases. Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders. Stone v. Graham (1980): Sydell Stone and a number of other parents challenged a Kentucky state law that required the posting of a copy of the Ten Commandments in each public school classroom. They filed a claim against James Graham, the superintendent of public schools in Kentucky. Did the Kentucky statute violate the Establishment Clause of the First Amendment? Te Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman, and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day. Wisconsin v. Yoder (1972): Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. id Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by

criminalizing the conduct of parents who refused to send their children to school for religious reasons? In a unamimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. U.S. v. Ross (1982): Acting on a tip that Ross was selling drugs from his car in the District of Columbia, police officers pulled Ross over, opened his trunk, and discovered a bag of heroin. After returning to the station, another search uncovered $3200 in cash. Officers acted without a warrant in each search. Did the police violate the Fourth Amendment? The Court held that since the search was done with probable cause and extended into the realm (Ross's car) of which a magistrate issuing a warrant would have approved, the officers did not violate the Fourth Amendment. Justice Stevens defended the search of the vehicle's trunk, arguing that if probable cause justifies a vehicle search, then every part of the vehicle is open to inspection. U.S. v. Sokolow (1989): Drug Enforcement Administration agents stopped Sokolow in Honolulu International Airport after his behavior indicated he may be a drug trafficker: he paid $2,100 in cash for airline tickets, he was not traveling under his own name, his original destination was Miami, he appeared nervous during the trip, and he checked none of his luggage. Agents arrested Sokolow and searched his luggage without a warrant. Later, at the DEA office, agents obtained warrants allowing more extensive searches and they discovered 1,063 grams of cocaine. Did the search violate the Fourth Amendment? The Court upheld the search and reasoned that the agents had a "reasonable suspicion that respondent was engaged in wrongdoing." Chief Justice Rehnquist argued that the validity of such a stop should be based on the "totality of the circumstances," (United States v. Cortez, 1981), which, in this case, gave agents a clear reason to suspect Sokolow of drug trafficking. Chapter 7 Dual role of congress members: to maintain role of a law and policy making institution but importance of individual members has grown. Public no longer think of congress as lawmaking body but instead pay attention solely to their own elected representatives o Therefore, they can often highly support their elected representatives, but have an overall negative view of congress as a whole Competing interests: represent interests of their constituents and oversee actions of other two branches of government I. The Constitution and the Legislative Branch of Government Great Compromise at Constitutional Convention resulted in creation of upper house (senate) and lower house (house of representatives)- known as a bicameral legislature Each state represented by 2 senators regardless of population Representatives (HOR) determined by population IN CONST.- house members must be at least 25 and lived in U.S. for at least 7 years, senators must be at least 30 and lived in U.S. for at least 9 years (both must be legal residents of the states from which they are elected) Senators are elected for 6-year terms. They were originally elected by state legislators, but this was changed with the 17th amendment. 1/3 of senators are up for reelection every two years Members of the House are elected for 2-year terms. II. Apportionment and Redistricting Constitution requires that a census be conducted every ten years. The number of representatives was only 65. As population grew larger and larger, House became larger.

In 1910, expanded to 435 members, and stayed fixed at that number by statue. Each state allotted share of 435 members based on its population After each U.S. census, number of seats allotted to each state is adjusted by constitutionally mandated process of apportionment. Redistricting- after seats apportioned, congressional districts must be redrawn by state legs. to reflect population shifts to ensure that each member of congress represents approximately the same number of residents III. Constitutional Powers of Congress Most important power: ability to make laws (both houses share power) i.e. no bill can become law without consent of both houses i. Other constitutionally shared powers: power to declare war, raise an army and navy, coin money, regulate commerce, establish the fed. courts and their jurisdiction establish rules of immigration and naturalization and make all Laws which shall be necessary and proper Also specific powers given to each house: i.e. all revenue bills must originate in HOR i. House also has power to charge president, VP or other civil officials of treason, bribery or other high crimes or misdemeanors ii. ONLY senate is authorized to conduct trials of impeachment, with a 2/3 vote necessary before fed. official can be removed from office iii. See pg. 241 for good chart of differences Senate also has sole authority to approve major presidential appointments (such as fed. judges and ambassadors) all presidential treaties (by 2/3 vote) IV. How Congress Is Organized Every 2 years, new congress is seated House more tightly organized, structured more elaborately and governed by stricter rules (because of its large size) Party leadership of congress: speaker of house, majority and minority leaders, Republican and Democratic House whips, deputy whips Speaker of House only officer of HOR specifically mentioned in constit.- entire HOR elects speaker at beginning of each new congress, traditionally member of majority party (greatest number of members) i. Although not typically longest service, speaker generally served in house for long time and in other House leadership positions as an apprenticeship ii. Official spokesperson for house, oversees house business, second in line of presidential succession- house liaison with president therefore great political influence iii. Henry Clay- first speaker (1810) After speaker, most powerful people majority and minority leaders- elected in individual party caucuses or conferences i. Majority leader helps speaker schedule proposed leg. for debate on house floor Republican and democratic whips elected by party members in caucuses i. Assist speaker and majority/minority leaders ii. Most importantly- try to whip fellow democrats and republicans into line on partisan issues. Try to maintain close contact with all members on important votes, prepare summaries of content and implications of bills, get nose counts during debates and votes and in general get members to toe the party line. Whips and deputy whips also serve as communication links V. The Senate Presiding officer of senate is V.P. However, because he is not a member of senate, votes only in the case of a tie.

Official chair of senate is president pro tempore (pro tem) selected by majority party- presides over senate in absence of VP i. Today, honorary position that generally goes to oldest senator of majority party (dont do much, older congressional members go to larger meetings) True leader of senate is majority leader elected by majority party. Because senate is smaller, operating without many formal house rules concerning debate, majority leader not as powerful as speaker of house. Leading and whipping can be challenging in senate i. Senators can offer any kind of amendment or legislation to floor and individual senator can bring all work on floor to a halt through a filibuster unless 3/5 of senators vote to cut him/her off. VI. The Role of Political Parties In Organizing Congress and The Committee System Committee system- organizational feature of Congress that facilitates lawmaking and oversight functions Standing Committees: first and last place most bills go, they continue from one congress to next- bills referred for consideration, considerable power- can kill bills, amend them radically or hurry them through the process. Joint Committees: expedite business between houses and focus public attention on majority matters, such as economy, taxation, or scandals. Include member from both houses of congress who conduct investigations or special studies Conference Committees: special joint committees that reconcile differences in bills passed by House and Senate. Made up of House and Senate committees that originally considered the bill. Select (special) committees: temporary, appointed for special purposes (special studies) and report back to chamber that established them. Discharge petition: bills can be forced out of a house committee signed by majority of House membership (check on power of standing committees) In contrast to house, senators serve on an average of 3-4 committees and seven subcommittees. Also, house members become policy or issue specialists, while senators are often more generalists Often seek committee assignments to have access to pork- legislation that allows reps. To bring money and jobs to their districts for public work programs, military bases or other programs Legislators who bring back these programs are hard to defeat when up for reelection Reasons to join committees: i. Some committees facilitate reelection by giving House members influence over decisions that affect large campaign contributors ii. Others attract members eager to work on the policy responsibilities assigned to the committee even if appointment does them little on the ballot box iii. Desire to have power and influence within chamber In both house and Senate, committee membership generally reflects party distribution within that chamber. (claim more seats, especially on issues more important to majority party) Committee Chairs enjoy tremendous power and prestige- authorized to select all subcommittee chairs, call meetings and recommend majority members to sit on conference committees. (personal skill, influence and expertise) i. Committee chairs in HOUSE no longer selected based on seniority. Today, house leadership interviews potential chairs. Senate however is based on seniority

VII.

The Members of Congress Expensive, busy lifestyle, living between Washington and home Reasons for retirement: increasingly partisan, want to make money in private sector Members must attempt to appease two constituencies: party leaders, colleagues and lobbyists in Washington and constituents at home. (avg. rep. made 35 trips back home to districts) Breakfast with reporters, morning staff meetings, simultaneous committee hearings to juggle, back to back sessions with lobbyists and constituents, phone calls, briefings, afternoon speeches, evening meetings, receptions, fund raisers Membership in one of 2 parties is almost prerequisite because election laws in various states often discriminate against independents and minor party candidates. Ability to raise money is also often key to any members victory (most running for congress should already be wealthy) Incumbency- helps members stay in office once they are elected. Often difficult for outsiders to win because dont have advantages of incumbents such as name recognition, access to free media, inside track on fund-raising, and district drawn to favor incumbent. (If people are happy, why should they change? Dont know specific workings of members) 1980 to 1990, avg. of 95% of incumbents who sought reelection won. Congress better educated, richer, more male and more white than rest of U.S. i. All but 3 senators are college graduates, 401 reps. College grads. ii. Many members of both houses have sig. inherited wealth- 170 members are millionaires (often known as millionaires club) iii. Average age is 60 Theories of Representation: how constitutents interests best represented i. Trustees: listen to opinions of constituents, can be trusted to use own best judgment to make final decision ii. Delegates: vote way constituents would want them to, whether or not their opinion is represented. Must be willing to vote against conscience or personal policy preferences iii. Politicos: fall between trustee and delegate depending on the issue. On an issue of great concern to constituents, more of a delegate, on other issues perhaps most of a trustee. VIII. How Members Make Decisions Members often look to party leaders for indicators of how to vote. Whips job in each chamber to reinforce need for party cohesion, particularly on issues of concern to the party. (partisanship reigns supreme) From 1970-present there has been a much greater party line in voting Many critics charge that both parties have pressured their members to take increasingly partisan positions. Divided Government: different political parties control executive and legislative branches i.e. republican president, democratic congress (1 of 2 houses) Party loyalty is not the only reason members vote the way that they do. Often both parties have committees in both houses of congress that provide extraordinary campaign assistance in the form of funding, political and media consulting and direct mailing. Members know that if they fail to go along with the party on major votes, they risk losing this critical campaign support. (party pressures) Constituents- the people who live and vote in the home district or state- are always in the members mind when casting a vote. On issues that are of little interest to a legislator, logrolling or vote trading occurs. Often takes place on specialized bills targeting money or projects to selected

congressional districts especially those of concern to person pushing the legislation (within the district). Special interest caucuses created around issues, home states, regions, congressional class or other shared interests to facilitate communication. Informal in nature, although some more organized than others. (example: congressional black caucus) Primary function of most lobbyists whether they work for interest groups, trade associations or large corporations is to provide info. to supportive or potentially supportive legislators, committees and their staffs. How could the states implement such leg? Is it constitutional? Will it really have an impact on schools? Can win over undecided legs. or confirm their support. Also urge voters back home to call, fax, e-mail senators on issues. Special interest groups can also contribute to campaigns, provide funding so congressmen pay special interest to the people who fund campaigns. When an issue comes up that they have little interest in, tend to support positions of those interest who helped pay for the last campaign. (bite hand that feeds you) Groups seek out candidates who think the way that they do so that theyre not just giving them $ to support them. IX. The Law-Making Function of Congress Organization of congress allows it to fulfill constitutional responsibilities chiefly law making function. System of multiple vetoes- framers wanted to disperse power- roadblocks, caution signs and other opportunities. Member who sponsors a bill must get through every obstacle: 1. Subcommittee 2. Full house committee 3. House rules committee 4. House 5. Senate subcommittee 6. Full senate committee 7. Senate 8. Floor leaders in both houses 9.house-senate conference committee 10. President How Bill Becomes a Law: Textbook Version- approved by one or more standing committees and both chambers and if house and senate versions differ, each house must accept a conference report resolving those differences. SEE CHART for how a bill becomes a law i. Unlike the house, in the senate, bills may be held up by a hold or filibuster in the senate. A hold is a tactic by which a senator asks to be informed before a particular bill is brought to the floor. ii. Filibusters allow for unlimited debate on a bill. More formal and public way of halting action. No rules on content of filibuster as long as a senator keeps talking. Only way to end a filibuster (cloture) is for 16 senators to sign a motion for cloture. Requires votes of 60 members to limit debate. iii. If bill is passed, sent to president who either signs or vetoes it. President has ten days to consider it. He can: 1. Sign the bill at which point it becomes a law 2. Veto the bill (congress may override a presidents veto with 2/3 vote in each chamber) 3. Wait full ten days, at which time bill becomes a law without his signature if congress is still in session. Often happens when the president doesnt support legislation but knows his veto would be overridden. 4. If congress adjourns before ten days are up, president can choose not to sign bill and it is considered a pocket veto. X. Case Study Case study: a real life example to shed light on a theoretical process. In this case, how a bill becomes a law China Trade Act: Clinton wanted to give China a most favored nation status for trade.

In the House: Clintons own democrats opposed their president. Worried about the labor issue (that many jobs would go overseas)- Gore was against Clinton i. Eventually Clinton attempted to involve many government officials, including Bush ii. Vote in house 237-197 (it was still relatively popular for republicans, 73 Dems voted for) In the Senate: had to break a filibuster, did not vote until after the house voted i. Vote in Senate 83-15 passes, becomes a law XI. Congress and The President There was a shift in balance of power with Abe Lincoln, but a new balance began with Teddy Roosevelt, and really started with Franklin Roosevelt. They held a much greater executive power until the 60s. Since 1960s, congress has increased its oversight of the executive branch. They watch to see if there are any executive abuses and often top advisors to the president can be called before the senate committee. Oversight subcommittees became particularly prominent in 1970s and 80s as a means of promoting investigations to determine if an agency, department or office is carrying out its responsibilities as intended by congress. Must have ability to question members of admin. To see if they are enforcing and interpreting laws intended by congress. Hearings not used simply to gather info- may be focused on particular executive branch actions and often signal that congress believes changes in policy need to be made. Congressional Review: allows congress to nullify agency regulations by joint resolutions of legislative disapproval. Congressional Review Act: congress could disapprove of agency/department of action President in general has far more power in foreign affairs than in domestic affairs. Makes decisions on foreign affairs specifically on his own say-so alone, does not have opposing groups of domestic affairs. Constitution: congress declares war, but pres wages war (in reality gives him MUCH more control) Last declared war was WWII, congress has given approval since then, but cannot really do anything if president wages war i. War Powers Act (1973): passed over Nixons veto, attempt to limit the presidents power. 60 days to use troops if he doesnt get congressional approval, has 30 days to bring them home- INEFFECTIVE XII. Congress and the Judiciary Constitution does not set size of court- congress decides. Originally was 6, now it is 9. (Roosevelt attempted to make it 13, but many saw this as a crazy reach for powercongress rejected) Congress also decides appellate jurisdiction of court Chapter 8 I Roots Anti-executive power Articles of Confederation no president Framers knew Washington would be first president Electoral college Qualifications o Natural born o 35 yrs old o Resident for 14 years o 1787 no limits o FDR 1940, 1944 o 22nd amendment 1951 two term limit, ten yr max VP no constitutional power (Senate tie vote)

Impeachment US v. Nixon 1974 Executive privilege (implied powers) Rules of Succession o 1792 1886 Pres. Pro Tempore o 1886 1947 Sec. of State o 1947 present Speaker of House o Prior to 1967 there was no Constitutional mechanism for filling a vacancy in the vicepresidency o 25th amendment 1967 president selects new VP congress approves w/ majority vote o 1973 Agnew resigns, Nixon picks Ford, 1974 Nixon resigns, Ford first unelected president II Constitutional Powers Article II few detailed powers Appointment o Substantial authority over the course and direction of public policy o Courts influenced long after a president is gone (Adams Marshall, Bush Roberts/Alito) Convene Congress Make Treaties Trade Agreements o Treaties require 2/3 senate 70% o Executive agreements secret and sensitive arrangement technically not binding on future president Ex. Stationing troops in foreign Yalta WWII FDR o Trade agreements both houses majority vote Ex. China Trade Act, NAFTA Fast Track congress has 90 days, up or down vote, no amendments or filibuster Veto Power o Need 2/3 of both/each houses to override o Threat of veto changes legislation o Line-item veto 1996 given to Clinton Unconstitutional by S.C. Military o Command in chief wage war o Vietnam LBJ Gulf of Tonkin 1964 o Iraq 2002: 296 133, 77 23 Pardon o Unchecked power (only one) o Ford Nixon o Carter Vietnam draft evaders o GW Bush Libby Richard Neustadt Presidential Power and Modern Presidency Congress, Bureaucracy, press, parties, states, pentagon Power to persuade leader or a clerk Separate institutions sharing power necessity of persuasion Continuing relationship need and fear, need favor Most effective way to persuade this is something for their own sake Fear fail if position of person does not depend on president Roosevelt skeptical and curious, Neustadt likes Roosevelt more Reagan trusting and committed Foreign policy WWII, Cold War 1945 1991 Since Cold war is at a close, presidential power will decline

Book o Prestige and reputation o Command last resort o Ex. Eisenhower Arkansas, Truman MacArthur Imperial Presidency Increasingly perilous world President captured the power to go to war Congress abdicated war power more than president usurped them Decline of parties result president more politically powerful Economically Keynesian economics JFK Cuban missile crisis LBJ Vietnam Nixon (peak) Watergate stops imperial presidency III Development and Expansion of Presidential Power Washington o Primacy of national govt Whiskey rebellion o Cabinet and meetings o Foreign affairs - Jays treaty o Inherent powers declaration of neutrality o Jefferson Louisiana Purchase o 1809 1933 weaker Pres o Andrew Jackson use veto in modern sense o Lincoln suspend habeas corpus, blockade Southern ports, expand the army (Inherent Powers) Growth of Modern Pres o 1933 FDR Depression federal agencies Created large federal bureaucracy public welfare Traitor to his class o Banking crisis Poor 1930 stockholders lost, depositors lost Rich 2008 stockholders lost o Radical changes Before govt not an option After first resort to solve a problem Before isolationist After internationalists o Fireside chats (radio) o Bank Holiday people depositing money IV Presidential Establishment Vice pres o Insignificant Adams o Election Balance the ticket Geographic Experience Ideology Personality Pick your opponent unifies party Cabinet o Informal, based on practice and precedent o Purpose: 1. Execute the laws 2. Advise on decision making (modern presidency advise decreased) o Created for interest groups The First Lady

o o o o o EOP o o o o

Can be influential Abigail Adams Edith Wilson Eleanor Roosevelt Hilary Clinton official jobs

Executive Office of President Groups of policy makers When: 1939 FDR, New Deal Legislation National Security Council (1947) NSA not confirmed by Senate VP, Sec. of Defense, Sec. of state, CIA, Joint chiefs of staff OMB office of management and budget Council of economic advisors White House Staff o Chief of staff o Political advisors Carl Rove: Bush, David Axelrod: Obama o Legal advisors Paradoxes of US Presidency (Cronin/Genovese) Constitution Article II purposely imprecise Common man vs. uncommon man Bi-partisan but Strong powerful pres. but limits Takes to win and govern two different things Democracy vs. leadership V President as a Policy Maker FDR changes the traditional model of law making Honeymoon period beginning of presidency, very popular Divided govt GHB gridlock, Clinton compromise Working coalitions persuade Large majorities: FDR, LBJ, Obama Patronage Coattails Budgetary Process o OMB Prepares annual govt budget How much it will cost to run the govt Policy making through regulation o Executive Orders rules or regulations that have the effect of law, often used to clarify or implement legislation sometimes beyond clarification o Examples Truman desegregates army FDR Japanese interment camps Bush military tribunals o Congressional action unenforceable Public Opinion TR bull pulpit Chapter 9 Bureaucracy 4th branch of govt, private or public, group of departments help executive carry out his or her duties I Development of Federal Bureaucracy Implement laws Enforce laws Settle disputes end up in Court (court tends to side with Bureaucracy) judicial

Page 315 Max Weber Model (ideal) o Chain of command o Division of labor o Clear lines of authority o Goal oriented o Impersonal o Productively evaluated About 1.8 million federal employees (doesnt include military or postal service 1816 1861: growth (post office) Andrew Jackson (1829 1837) Spoils system, use of patronage Civil War o Agriculture o Patronage peak 1881 Garfield assassinated Pendleton Act transfer from spoils system to merit system By 1978 90% of jobs based on merit system 1887 Interstate Commerce Act o Create interstate commerce commission first independent regulatory commission created by Congress President appoints commissioner, no power once they are in (fixed term) Shift from service to regulation TR progressive republican increased regulation, increase bureaucracy, create dept of commerce and labor 1913 16th amendment - income tax FDR shift from govt being hands off economy to direct responsibility LBJ great society 1939 Hatch Act forbid federal employees from any govt activity 1993 Federal Employees Political Activities Act relax these rules o Could contribute $ to candidates, support a candidate o Could not on duty, run for partisan office, raise $ for candidates II Modern Bureaucracy Not run like a business no profit, unclear sometimes who answers to who, less risk taking Who are they o Career govt employees o 90% merit system o All occupations o 326,000 work in DC Cabinet Departments (15) broad areas o 60% of federal workforce o Headed by security reports to president o Permanent o Serve and regulate clientele o Congress funds Govt Corporations o Most recent 1930s o Do business that can be done by private sector o Amtrak losing $ o Cheaper service post office, TVA, FDIC Independent Executive Agencies o Like cabinet departments but more specialized o Reform service not regulation o CIA, EPA, NASA

Independent Regulatory Commission o Created by to regulate a specific area of economic activity or interest o Federal Reserve Board FED o SEC o FCC o NLRB o Free from partisan pressure Heclo A government of strangers Struggle between change (political leadership) vs. continuity (bureaucratic power) Sabotage bureaucratic power sabotages initiatives of political leadership Agency (Bureaucracy) Congress Interest Groups Iron triangle Ted Lowie End of Liberalism o Assumption bureaucratic agencies seek to create and consolidate a power base ally w/ powerful interest groups who pressure Congress Heclo goal of each - self sustaining control of power in its own sphere Anti-democratic, not competitive, not responsive to public, conservative Lowie Sabato Iron triangle is no longer the norm; Issue networks loose and informal relationships between a large # of people in broad policy areas III Accountability Executive checks o Appointment power o Reorganize with Congress o Executive orders specific directions to bureaucracy Congress o Create or abolish depts (constitutional): ex. Homeland security o Senate confirmation o Pass laws o Power of the purse o Oversight Investigate hold hearings Proactive GAO Reactive IRS Judicial o Injunction o Due process lawsuits o All regulations must be constitutional Chapter 10 I. Constitution and the Federal Judiciary Framers to them the judiciary was an afterthought. o Hamilton called it the least dangerous branch Anti-Federalists disagreed and thought that aspects, such as life tenure, made it too powerful. Jefferson contended it was undemocratic and threatened states rights because they were not elected. Hamilton said this took out corruption w/ lobbying or influenced decisions because justices dont have to worry about reelection. Article III: o Congress will create the court system. o Supreme Court has original and appellate jurisdiction.

Original jurisdiction if a state or an ambassador is a litigate. o Defines treason o (Article I): Chief Justice presides over presidential impeachments (Senate trial). o Judicial Review (not in constitution) power to rule a federal or state law unconstitutional. derived from Marbury v. Madison (1803) Checks: o appointment + ratification o can be impeached for bad behavior o constitutional amendments can reverse previous judicial rulings or precedent. o Congress can alter jurisdiction in terms of what types of cases the S.C. can hear. Judiciary Act of 1789: o creates a 3-tier federal court system: U.S. Supreme Court 9 justices (originally 6) Circuit Courts (a.k.a. Court of Appeals) 13 courts District Courts (act as trial courts) 94 courts 1st Chief Justice = John Jay o Jay refuses to give Washington legal advice. This sets an early precedent for future justices. The judiciary was originally insignificant until John Marshall became Chief Justice. o They didnt even have a building for the justices to meet in. Chisholm v. Georgia (1793): o Question = could the Supreme Court hear lawsuits brought by a citizen from one state against another state? Courts Answer = yes. Led to 11th Amendment a citizen from one state cannot sue a state in which he does not reside. Marbury v. Madison (1803): o Background: Adams appoints Marbury as a midnight judge (justice of the peace). Marburys commission was never sent by mistake. Administration changed and Jefferson refused to send the commission. Marbury sued for a writ of mandamus a court order to force a government official to do something. o Decision: Constitution defines original jurisdiction as a lawsuit involving a state or ambassador. This does not fit the case Marbury brought forth. o Therefore, the court cannot issue a writ of mandamus. Judiciary Act of 1789 improperly expanded original jurisdiction which Marshall ruled to be unconstitutional. This establishes the Courts power of judicial review. o Originally, it was only the power to rule federal laws unconstitutional. Later expanded as the U.S. Supreme Court began to strike down state laws and executive actions.

II. American Legal System Dual-System: (Federal + State Court System) o Federal: District Circuit (court of appeals) U.S. Supreme Court o State: Trial Appeals State Supreme Court Jurisdiction:

Varies between state and federal courts. Original Jurisdiction = 1st to hear the case. 90% of cases end here. o Appellate Jurisdiction = review case after decision has been made in a lower court. To appeal a case, due process rights must be violated. Cannot just have a case do-over because you lost. Criminal + Civil Law o Criminal: Criminal law can vary dramatically from state to state. In a criminal case, society is the victim government or state presses charges. ex. The State of California v. Scott Peterson o Civil: Civil law regulates conduct between individuals, private corporations, etc. Cases are - Plaintiff v. Defendant Plaintiff brings the lawsuit in order to recover something of value. o ex. Financial compensation or a right (i.e. freedom of speech flag burning) Defendant represents the accused party. o Judges can make decisions in small cases (i.e. DWI). o Juries make decisions in larger cases. Lawyers have a set # of preemptory challenges (removal without reason). Cannot use them to discriminate against race or gender. III. Federal Court System o o District Courts: (94 courts) o These are federal trial courts of original jurisdiction. o Try criminal and civil cases. o Each state has at least 1 (max = 4) Do not cross state lines. [Circuit] Court of Appeals: (13 courts) o These are federal courts of appellate jurisdiction. o Most important one is the D.C. Court of Appeals. o They correct errors of law or procedure. o Usually the last resort for appeals. Must petition to appeal to the Supreme Court. Highly unlikely S.C. only hears 90 cases a year on average. o There are no new testimonies in appeal cases: Lawyers submit a brief and then make oral arguments. o Decisions are binding on only the particular districts within the geographic confines of the circuit court. U.S. Supreme Court: (now 9 justices originally 6) o Constitution is silent about the size of the S.C. In history, the smallest = 6 --- the largest = 10 o Final interpreter of the law. Ensures uniformity in interpretation of national law + the Constitution. Resolves conflicts between states. Maintains the supremacy of national law in the federal system. o Establishes national precedent. Stare Decisis (literally - let the decision stand) o Cases come from: Federal appeals appellate jurisdiction State Supreme Court Original jurisdiction (if state or ambassador is a litigate)

IV. Federal Selection Process Selecting justices is an opportunity for the president to spread his political philosophy to federal courts in the long-term. Senatorial Courtesy (usually for lowers district courts): president takes the opinion of a senator for the appointment in the state in which the vacancy lies. Blocking Appointments: o Clinton Republicans blocked more liberal judges. o Bush Democrats blocked more conservative judges with filibusters. Republicans threatened to blow up the filibuster (nuclear method). Gang of 14 Conference: Agreed not to blow up the filibuster if Democrats pass the previously blocked conservative justices. Presidential Mistakes: o Eisenhower appointed Earl Warren (too liberal). o Ford appointed John Paul Stevens (too liberal). o Reagan appointed OConnor + Kennedy (too moderate for Reps.). o H.W. Bush appointed Souter (too liberal). Criteria: 1. Competence: the nominee has prior judicial experience. Miers (too moderate & incompetant) vs. Roberts (very successful) 2. Ideology: are you a strict constructionist or not? Strict constructionist (conservative) = analyzes the Founders original intent in the Constitution. Nowadays liberal vs. conservative is the driving trend in appointments. 3. Rewards: president appoints someone based on a personal friendship. ex. LBJ appointed Abe Fortas. 4. Politics: appoint someone in order to gain political support. ex. Reagan appointed OConnor to gain female support for his reelection. 5. Religion: the Supreme Court has traditionally been Protestant. Now the S.C. has 6 Catholics, 2 Jews, + only 1 Protestant. 6. Race & Gender: ex. appointment of Clarence Thomas & Ruth Bader Ginsburg. Confirmation Process: o Goes through the Senate Judiciary Committee Senate (simple 50% majority). o (ABA) American Bar Association conducts investigations. Rankings: Well Qualified Qualified (Clarence Thomas) Not Qualified o Public Hearings: Clarence Thomas was confirmed 52 48 o Interest Group Lobbying: Went after Robert Bork who was rejected 42 58 V. The Supreme Court Today There is widespread public ignorance about the S.C. Hearings are not televised although reporters are allowed to attend in person. (2003-2004) 9,000 petitions filed S.C. heard only 93 1. 2/3 of cases heard = federal courts 2. 1/3 of cases heard = state appeals If the S.C. doesnt make a ruling, the ruling from the lower court stands. Trends: 1930s 5% of cases heard concerned the Bill of Rights. 2000 45% of cases heard concerned the Bill of Rights. In order for the S.C. to hear a case

it must come from a U.S. Court of Appeals or a State Supreme Court. or a special 3-judge District Court (very rare). 2. It must be a federal question/issue. Cases heard are overwhelmingly appellate. o (2003): 6 out of 93 cases heard were original jurisdiction. Process of Appeals: o The loser from the lower court files a writ of certiorari. o writ of certiorari = request to call up the records from the lower court to the S.C. o U.S. Supreme Court chooses cases 1. that have important issues of law. 2. with a substantial federal question involved. Do not take cases to simply correct errors made in the lower courts. Rule of Four: (4 out of 9 justices must vote in favor of hearing a case) o All petitions go to the Chief Justice. Chief Justice [+ clerks] divide and disperse the cases amongst the justices. o Decide which make the discuss list ( 30%) others make the dead list. Justices then meet in conference to discuss the cases. o If 4 justices vote to hear the case, certiorari is granted, and the case is heard. Role of the Clerks: (3 or 4 per justice) o Clerks are usually top law school graduates from prestigious universities. o They are very confidential & influential (determine which cases the S.C. hears). o Their job is to review petitions/cases, research, and write opinions. Why Cases are Heard: 1. If the federal government asks for a review (70-80% of the time they get a review). Solicitor General (member of the Dept. of Justice): argues on behalf of the federal government and the president in court. He can submit an amicus brief even if the fed. govt is not a party. Amicus Curie Brief (friend of the court) = a form of lobbying that is also done by other interest groups. 2. If there is a conflict among Circuit Courts of Appeal. U.S. Supreme Court wants to establish consistency in its rulings. 3. If there are questions of civil liberties (usually referring to the Bill of Rights). 4. For ideological reasons (based on the policy preference of the justices). ex. S.C. conservatives wanting to overturn a liberal circuit court ruling. 5. If there is a significant political issue or public interest. Large interest group participation with amicus briefs (ex. ACLU, NAACP) Hearing a Case: o Actual court sessions are very short. o 1st Monday of October April July S.C. hears cases S.C. is in

1.

o 1. 2.

session Very ceremonial always starts @ 10 a.m. Chief Justice sits in the middle with other justices in order of seniority. Lawyers file their briefs: Legal arguments that cite previous laws and decisions. Interest groups file amicus briefs. Oral Arguments: (hear them Monday - Wednesday) 30 minutes which includes questions from the justices. (no testimonies) Purpose of oral arguments: So the public can hear the arguments. To ensure the justices actually hear the case. To clarify information. To highlight issues for other justices.

3.

4.

Conference + Vote: Chief Justice speaks first, followed by the rest in seniority order. The newest justice holds the door, gets coffee, etc. The conference is an opportunity to change another justices mind. Most of them have already decided how they will vote. The justices have a preliminary vote (this vote is not final yet). Writing of Opinions: (legal reasoning for the decision) The opinions set the legal precedent (stare decisis). If the Chief Justice votes with the majority, then he chooses who will write the majority opinion. If the Chief Justice votes with the minority, then the justice with the greatest seniority chooses who will write the majority opinion. Concurring Opinions are written by justices who vote with the majority, but for different legal reasons. Dissenting Opinions are written by the minority (have no legal weight)

**NOTE: do not need to study polity readings