SHEET REVIEW MID-TERM #1
PSCI 101 AMERICAN NATIONAL GOVERNMENT
In class reading : the materials need to read carefully!!
Below is a list of major terms/concepts that have been covered in the readings and/or class discussions to
date in PSCI 101. Please note: this list is *not* intended to be a comprehensive study guide. (That is:
everything in the readings and class discussions is fair game for the exam.) This guide is intended only to
remind students of major themes/concepts found in the class materials and discussions.
representative democracy
Representative democracy is a form of government founded on the principle of elected individuals
representing the people, as opposed to autocracy and direct democracy.
checks and balances
The American constitutional system includes a notion known as the Separation of Powers. In this system,
several branches of government are created and power is shared between them. At the same time, the
powers of one branch can be challenged by another branch. This is what the system of checks and
balances is all about.
There are three branches in the United States government as established by the Constitution. First, the
Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch
interprets the law. Each branch has an effect on the other.
John Locke
John Locke :29 August 1632 28 October 1704), widely known as the Father of Liberalism,
He was an English philosopher and physician regarded as one of the most influential of Enlightenment
thinkers. His contributions to classical republicanism and liberal theory are reflected in the American
Declaration of Independence.
Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776,
which announced that the thirteen American colonies then at war with Great Britain regarded themselves as
independent states, and no longer a part of the British Empire.
natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political
scientists. Natural rights, also called inalienable rights, are considered to be self-evident and universal.
They are not contingent upon the laws, customs, or beliefs of any particular culture or government. Legal
rights, such as constitutional rights, common law rights, and statutory rights, are bestowed under a
particular political and legal system; they are relative to specific cultures and governments. Legal rights are
enumerated in constitutions, in statutes (by a legislative body), in case law (especially in countries with a
common law tradition), in treaties, and in administrative regulations.
social contract theory
Social contract theory, nearly as old as philosophy itself, is the view that persons moral and/or political
obligations are dependent upon a contract or agreement among them to form the society in which they live.
Socrates uses something quite like a social contract argument to explain to Crito why he must remain in
prison and accept the death penalty. However, social contract theory is rightly associated with modern moral
and political theory and is given its first full exposition and defense by Thomas Hobbes.
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an
agreement among the 13 founding states that legally established the United States of America as a
confederation of sovereign states and served as its first constitution. [1] It was drafted by the Continental
Congress in 1776-77, went into use in 1777 and was formally ratified by all 13 states in 1781.
.
confederation v. unitary government
Unitary - All powers are concentrated in the Central Gov't, States do what the central gov't tells them to do.
Confederate - Central gov't only has powers delegated to it by the states. Each state has power over
matters that concern it.
Federal - Central gov't has all powers concerning national affairs such as war. States have power over
matters that concern that state.
weaknesses of the Articles of Confederation
Following is a list of the weaknesses of the Articles of Confederation:
Each state only had one vote in Congress, regardless of size.
Congress had not have the power to tax.
Congress did not have the power to regulate foreign and interstate commerce.
There was no executive branch to enforce any acts passed by Congress.
There was no national court system.
Amendments to the Articles of Confederation required a unanimous vote.
Laws required a 9/13 majority to pass in Congress.
Under the Articles of Confederation, states often argued amongst themselves. They also refused to
financially support the national government. The national government was powerless to enforce any acts it
did pass. Some states began making agreements with foreign governments. Most had their own military.
Each state printed its own money. There was no stable economy.
In 1786, Shays' Rebellion occurred in western Massachusetts as a protest to rising debt and economic
chaos. However, the national government was unable to gather a combined military force amongst the
states to help put down the rebellion.
Gathering of the Philadelphia Convention
As the economic and military weaknesses became apparent, individuals began asking for changes to the
Articles that would create a stronger national government. Initially, some states met to deal with their trade
and economic problems. As more states became interested in meeting to change the Articles, a meeting
was set in Philadelphia on May 25, 1787. This became the Constitutional Convention.
Annapolis Convention
The Annapolis Convention was a meeting at Annapolis, Maryland of 12 delegates from five states (New
Jersey, New York, Pennsylvania, Delaware, and Virginia) that called for a constitutional convention. The
formal title of the meeting was a Meeting of Commissioners to Remedy Defects of the Federal
Government. The defects that they were to remedy were those barriers that limited trade or commerce
between the largely independent states under the Articles of Confederation.
The convention met from September 11 to September 14, 1786. The commissioners felt that there were not
enough states represented to make any substantive agreement. New Hampshire, Massachusetts, Rhode
Island, and North Carolina had appointed commissioners who failed to arrive in Annapolis in time to attend
the meeting, while Connecticut, Maryland, South Carolina and Georgia had taken no action at all.
They produced a report which was sent to the Congress and to the states. The report asked support for a
broader meeting to be held the next May in Philadelphia. It expressed the hope that more states would be
represented and that their delegates or deputies would be authorized to examine areas broader than simply
commercial trade.
The direct result of the report was the Philadelphia Convention of 1787.
Shays Rebellion
Shays' Rebellion was an armed uprising in central and western Massachusetts (mainly Springfield) from
1786 to 1787. The rebellion is named after Daniel Shays, a veteran of the American Revolutionary War.
Constitutional Convention of 1787
The Constitutional Convention[1] (also known as the Philadelphia Convention,[1] the Federal
Convention,[1] or the Grand Convention at Philadelphia) took place from May 14 to September 17, 1787,
in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had
been operating under the Articles of Confederation following independence from Great Britain. Although the
Convention was intended to revise the Articles of Confederation, the intention from the outset of many of its
proponents, chief among them James Madison and Alexander Hamilton, was to create a new government
rather than fix the existing one. The delegates elected George Washington to preside over the convention.
The result of the Convention was the United States Constitution, placing the Convention among the most
significant events in the history of the United States.
Virginia Plan (features)
n May 29, 1787, Virginia delegate Edmund Randolph proposed what became known as "The Virginia Plan."
Written primarily by fellow Virginian James Madison, the plan traced the broad outlines of what would
become the U.S. Constitution: a national government consisting of three branches with checks and
balances to prevent the abuse of power. In its amended form, this page of Madison's plan shows his ideas
for a legislature. It describes 2 houses: one with members elected by the people for 3-year terms and the
other composed of older leaders elected by the state legislatures for 7-year terms. Both would use
population as a basis for dividing seats among the states.
The Virginia Plan went through several revisions before it was finalized. These "Variant Texts" of the Virgina
Plan are available at Yale Law School's Avalon Project.
New Jersey Plan (features)
After two weeks of debating the Virginia Plan, a counterproposal was put forth by William Patterson, which
has become known as the New Jersey Plan (or the Small State Plan or the Patterson Plan). Patterson's
ideas amounted to no more than a simple reshaping of the Articles of Confederation.
The plan once again offered the idea of a unicameral (one house) legislature in which all states would have
an equal number of votes.
Nevertheless, Patterson did advance one highly valuable idea:
"All acts of the United States in Congress made in pursuance of the powers hereby and by the articles of
confederation vested in them, and all Treaties made and ratified under the authority of the United States
shall be the supreme law of the respective States . . . and the Judiciary of the several States shall be bound
thereby in their decisions, anything in the respective laws of the individual States to the contrary
notwithstanding."
This was an expression of the supremacy of federal law; those state laws which ran counter to federal
statutes were to be voided.
unicameral v. bicameral legislature
In the government, bicameralism (Latin bi, two + camera, chamber) is the practice of having two legislative
or parliamentary chambers. Thus, a bicameral parliament or bicameral legislature is a legislature which
consists of two chambers or houses.
Bicameralism is an essential and defining feature of the classical notion of mixed government. Bicameral
legislatures tend to require a concurrent majority to pass legislation.
In government, unicameralism (Latin uni, one + camera, chamber) is the practice of having one legislative
or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which
consists of one chamber or house. Some countries with unicameral legislatures are often small and
homogeneous unitary states and consider an upper house or second chamber unnecessary.
Confederation Congress
The Congress of the Confederation or the United States in Congress Assembled was the governing
body of the United States of America that existed from March 1, 1781, to March 4, 1789. It comprised
delegates appointed by the legislatures of the states. It was the immediate successor to the Second
Continental Congress. It referred to itself as the Continental Congress throughout its eight year history.[1]
The membership of the Second Continental Congress automatically carried over to the Congress of the
Confederation when the latter was created by the ratification of the Articles of Confederation. The Congress
of the Confederation was succeeded by the United States Congress.[2]
Northwest Ordinance of 1787
The Northwest Ordinance (formally An Ordinance for the Government of the Territory of the
United States, North-West of the River Ohio, and also known as the Freedom Ordinance or
"The Ordinance of 1787") was an act of the Congress of the Confederation of the United States,
passed July 13, 1787. The primary effect of the ordinance was the creation of the Northwest
Territory as the first organized territory of the United States out of the region south of the Great
Lakes, north and west of the Ohio River, and east of the Mississippi River.
On August 7, 1789, the newly created U.S. Congress affirmed the Ordinance with slight
modifications under the Constitution. The Ordinance purported to be not merely legislation that
could later be amended by Congress, but rather "the following articles shall be considered as
Articles of compact between the original States and the people and states in the said territory, and
forever remain unalterable, unless by common consent...."[1]
Arguably the single most important piece of legislation passed by members of the earlier
Continental Congresses other than the Declaration of Independence, it established the precedent by
which the United States would expand westward across North America by the admission of new
states, rather than by the expansion of existing states.
Connecticut (or Great) Compromise
The Connecticut Compromise (also known as the Great Compromise of 1787 or Sherman's
Compromise) was an agreement between large and small states reached during the Constitutional
Convention of 1787 that in part defined the legislative structure and representation that each state would
have under the United States Constitution. It retained the bicameral legislature as proposed by James
Madison, along with proportional representation in the lower house, but required the upper house to be
weighted equally between the states.
On May 29, 1787, Edmund Randolph of the Virginia delegation proposed the creation of a
bicameral legislature. Membership in the lower house was to be allocated in proportion to state
population, and candidates were to be nominated and elected by the people of each state.
Membership in the upper house was to be allocated in the same way, but candidates were to be
nominated by the state legislatures and elected by the members of the lower house. This proposal
was known as the Virginia Plan.
Less populous states like Delaware were afraid that such an arrangement would result in their
voices and interests being drowned out by the larger states. Many delegates also felt that the
Convention did not have the authority to completely scrap the Articles of Confederation,[1] as the
Virginia Plan would have.[2] In response, on June 15, 1787, William Paterson of the New Jersey
delegation proposed a legislature consisting of a single house. Each state was to have equal
representation in this body, regardless of population. The New Jersey Plan, as it was called, would
have left the Articles of Confederation in place, but would have amended them to somewhat
increase Congress's powers.[3]
The Federalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the
United States Constitution.
Federalist No. 51
Federalist No. 51 is an essay by James Madison, the fifty-first of the Federalist Papers. It was
published on Friday February 8, 1788 under the pseudonym Publius, the name under which all the
Federalist Papers were published. One of the most famous of the Federalist Papers, No. 51
addresses means by which appropriate checks and balances can be created in government and also
advocates a separation of powers within the national government. One of its most important ideas
is the pithy and often quoted phrase, "Ambition must be made to counteract ambition."
The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by
American jurists. Of all the essays, No. 51 is the fourth-most cited.[1]
The purpose of No. 51 is to "form a more correct judgment of the principles and structure of the government
planned by the Constitutional Convention"[2]. In the paper, this is done by informing the reader of the
safeguards created by the convention to maintain the separate branches of government, and to protect the
rights of the people.
three-fifths compromise
The Three-Fifths compromise was a compromise between Southern and Northern
states reached during the Philadelphia Convention of 1787 in which three-fifths of the enumerated
population of slaves would be counted for representation purposes regarding both the distribution
of taxes and the apportionment of the members of the United States House of Representatives. It
was proposed by delegates James Wilson and Roger Sherman.
Delegates opposed to slavery generally wished to count only the free inhabitants of each state.
Delegates supportive of slavery, on the other hand, generally wanted to count slaves in their actual
numbers. Since slaves could not vote, slaveholders would thus have the benefit of increased
representation in the House and the Electoral College. The final compromise of counting "all other
persons" as only three-fifths of their actual numbers reduced the power of the slave states relative
to the original southern proposals, but increased it over the northern position.
The three-fifths compromise is found in Article 1, Section 2, Paragraph 3 of the United States
Constitution:
Representatives and direct Taxes shall be apportioned among the several States which may
be included within this Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
slave trade compromise
Slave Trade Compromise
Northern free states were concerned that the economy developing was relying too much on slavery.
They believed that if they relied on this system for too long they would never be able to get off it. To
help the country get off the "slave economy," Northern states proposed a ban on the importation of
slavery.
Southern states were not willing to give up slavery so suddenly because they believed their agriculture
based economy (farming) would not survive.
Compromise: The slave trade would continue for 20years after the Constitution went into effect. Once
the 20years were up, the national government would be allowed to ban the importation of slaves to the
Unites States.
ratification conventions
The normal course of events, when an amendment to the Constitution has been desired by the people, is for
Congress to pass the amendment and for the state legislatures to then ratify. Congressional proposal of the
amendment is by a two-thirds majority vote in both houses. State ratification is by three-fourths majority.
The Constitution does provide for one other way to ratify: by convention. A state convention differs from
the state legislature in that it is usually an entirely separate body from the legislature. This introduces a
different political dynamic into the amendment process.
The only time that conventions have been used was in the case of the 21st Amendment, which overturned
the 18th Amendment. The 18th abolished alcohol manufacture or sales on a national scale. The 21st
repealed the 18th, stating instead that each state shall have the ability to set its own laws regarding liquor.
The text of the 21st specifically stated that it would have to be ratified by conventions held in each state:
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
conventions in the several States, as provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Beards interpretation of the Constitution
3. Charles Beard
Framing the Constitution
Main Argument:
* The framers were an economic elite out to protect their own property against popular majorities.
Beard's Reasoning:
?The framers were an elite consisting of landholders, creditors, merchants, lawyers and public bondholders.
Significance:
?The Constitution is antimajoritarian.
?Roche and Beard disagree on the motivations and actions of the Constitution's
framers.
?Beard's evidence does not support his argument.
Sample Question
Charles Beard's argument:
a) is at odds with John Roche's interpretation of the Constitutional
Convention.
b has been criticized because its evidence is not sound.
c) sees the framers of the Constitution as a self-interested elite.
d) all of the above.
Roches interpretation of the Constitution
2. John P. Roche
The Founding Fathers: A Reform Caucus in Action
Main Argument:
* Roche sees the Constitutional Convention as a democratic reform caucus.
Roche's Reasoning:
?The principles of the Constitution were based on political tradeoffs among state interests.
-- Framers were all nationalists, and therefore ideologically similar.
-- The Convention was a compromise to reach a consensus result that could
be sold to the people back home.
Significance:
?Roche revises two previous notions of the Constitutional framers:
-- as all-wise Platonic guardians adhering to abstract principles of political
theory.
-- as an economic elite protecting their economic interests.
Sample Question
John Roche interprets the Constitutional Convention as:
a) a meeting of elite leaders seeking to limit popular rebellion.
b) a caucus of like-minded people aimed at strengthening the national
government.
c) a gathering of wise political theorists adhering to abstract notions of
government.
d) a mixed group of people with a wide variety of intentions for
government.
INS v. Chadha (1983)
separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle,
is a model for the governance of a state. The model was first developed in ancient Greece and came into
widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic.
Under this model, the state is divided into branches, each with separate and independent powers and areas
of responsibility so that no one branch has more power than the other branches. The normal division of
branches is into an executive, a legislature, and a judiciary. For similar reasons, the concept of separation of
church and state has been adopted in a number of countries, to varying degrees depending on the
applicable legal structures and prevalent views toward the proper role of religion in society. [citation needed]
[1]
Federalism
Federalism is a political concept in which a group of members are bound together by covenant
(Latin: foedus, covenant) with a governing representative head. The term "federalism" is also used
to describe a system of the government in which sovereignty is constitutionally divided between a
central governing authority and constituent political units (like states or provinces). Federalism is
a system based on democratic rules and institutions in which the power to govern is shared
between national and provincial/state governments, creating what is often called a federation.
Proponents are often called federalists.
formalism in the separation of powers
Another key element of federalism is the principle of SEPARATION OF POWERS. The Constitution's
definition of separation of powers is not specific, and the Supreme Court has struggled to interpret
it. Separation of powers is based on the premise that there are three branches of federal
government, each with its own enumerated powers. For example, the EXECUTIVE BRANCH, which
includes the president, has VETO power; the Senate and Congress make up the legislative branch
and have the power of advice and consent over the appointment of executive and judicial officers;
and the courts make up the judicial branch and have the power of judicial review.
The SEPARATION-OF-POWERS principle has had two interpretations. The first, formalism, is rooted
in the idea that the Constitution's goal was to divide the new federal government into three defined
categories, each with its own set of powers. The second interpretation, functionalism, is based on
the belief that the three branches of government are not clearly delineated. Functionalists believe
that the goal of separation of powers is to ensure that each branch retains only as much power as
is necessary for it to act as a check on the other branches.
realism in separation the of powers
The basic difficulty of defining a judicial role in enforcing structural relationships between the branches of the
national government is that the various policies informing those relationships seem quite contradictory:
separated powers, yet shared and overlapping powers; independence of branch functions, yet functions that
check and balance each other; and, in the duality with which Paul Verkuil begins his essay, promoting
efficient specialization, but avoiding the tyranny of too much efficiency. Given these dualities, the courts
have three options. They must either adopt simplifying mediating principles, or engage in some form of
case-by-case balancing to assess the tradeoffs in particular situations, or abandon the project of trying to
enforce separation of powers norms.
Bowsher v. Synar (1986)
debt supercommittee
Congressional leaders have named nine of the 12 lawmakers who will make up the "super committee"
tasked with finding more than $1 trillion in future spending cuts by the end of the year, Bloomberg reports.
dual federalism
Dual federalism, a legal theory which has prevailed in the United States since 1787, is the belief
that the United States consists of two separate and co-sovereign branches of government. This form
of government works on the principle that the national and state governments are split into their
own spheres, and each is supreme within its respective sphere. Specifically, dual federalism
discusses the relationship between the national government and the states' governments. According
to this theory, there are certain limits placed on the federal government. These limits are:
National government rules by enumerated powers only.
2. National government has a limited set of constitutional purposes.
3. Each governmental unitstate and federalis sovereign within its sphere of operations.
4. Relationship between nation and states is best summed up as tension rather than
cooperation.
1.
national supremacy
Article VI, Clause 2 of the United States Constitution, known as Supremacy of National Law ,
establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the
land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates
that all state judges must follow federal law when a conflict arises between federal law and either
the state constitution or state law of any state. (Note that the word "shall" is used, which makes it a
necessity, a compulsion.) However, the Supremacy Clause only applies if the federal government is
acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance
thereof" in the actual text of the Supremacy Clause itself.
The "supremacy clause" is the most important guarantor of national union. It assures that the
Constitution and federal laws and treaties take precedence over state law and binds all judges to
adhere to that principle in their courts. - United States Senate[1]
McCulloch v. Maryland (1819)
Affordable Care Act
A major goal of the Affordable Care Act the health insurance reform legislation President Obama
signed into law on March 23 is to put American consumers back in charge of their health
coverage and care
Today, the Departments of Health and Human Services (HHS), Labor, and Treasury issued
regulations to implement a new Patients Bill of Rights under the Affordable Care Act which will
help children (and eventually all Americans) with pre-existing conditions gain coverage and keep
it, protect all Americans choice of doctors and end lifetime limits on the care consumers may
receive. These new protections apply to nearly all health insurance plans.1
Transit Authority (SAMTA) (1985)
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), is a United
States Supreme Court decision that holds that the Congress has the power under the Commerce Clause of
the Constitution to extend the Fair Labor Standards Act, which requires that employers provide minimum
wage and overtime pay to their employees, to state and local governments. The decision overruled a
previous decision of the Court, National League of Cities v. Usery, 426 U.S. 833 (1976), which had held that
such regulation of the activities of state and local governments "in areas of traditional governmental
functions" would violate the Tenth Amendment to the United States Constitution .
U.S. District Courts
The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution,
the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. Every day
hundreds of people across the nation are selected for jury duty and help decide some of these cases.
There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. Three
territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have district courts that hear federal
cases, including bankruptcy cases. (Printable Circuit/District map (pdf))
There are two special trial courts that have nationwide jurisdiction over certain types of cases.
1. The Court of International Trade addresses cases involving international trade and customs issues.
2. The United States Court of Federal Claims has jurisdiction over most claims for money damages against the United States,
disputes over federal contracts, unlawful "takings" of private property by the federal government, and a variety of other claims
against the United States.
Tenth Amendment
The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of
Rights, was ratified on December 15, 1791.[1] The Tenth Amendment states the Constitution's principle of
federalism by providing that powers not granted to the federal government nor prohibited to the states by the
Constitution are reserved, respectively, to the states or the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
police powers
In United States constitutional law, police power is the capacity of the states to regulate behavior
and enforce order within their territory for the betterment of the general welfare, morals, health,
and safety of their inhabitants.[1] Under the 10th Amendment to the United States Constitution, the
powers prohibited from or not delegated to the Federal Government are reserved to the states
respectively, or to the people. This implies that the states do not possess all possible powers, since
some of these are reserved to the people.
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution
(Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as
a separate power granted to Congress. It is common to see the Commerce Clause referred to as "the
Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce
Clause", each of which refers to a different application of the same sentence in the Constitution.
Article I, Section 8, Clause 3:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and
among the several States, and with the Indian tribes;
The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales
v. Raich, 545 U.S. 1 (2005):
The Commerce Clause emerged as the Framers' response to the central problem giving
rise to the Constitution itself: the absence of any federal commerce power under the
Articles of Confederation. For the first century of our history, the primary use of the
Clause was to preclude the kind of discriminatory state legislation that had once been
permissible. Then, in response to rapid industrial development and an increasingly
interdependent national economy, Congress ushered in a new era of federal regulation
under the commerce power, beginning with the enactment of the Interstate Commerce
Act in 1887 and the Sherman Antitrust Act in 1890.
The Commerce Clause represents one of the most fundamental powers delegated to the Congress
by the founders. The outer limits of the Interstate Commerce Clause power has been the subject of
long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has
helped define the balance of power between the federal government and the states and the balance
of power between the two elected branches of the Federal government and the Judiciary. As such,
it has a direct impact on the lives of American citizens.
Necessary and Proper Clause
The Necessary and Proper Clause (also known as the Elastic Clause, the Basket Clause, the
Coefficient Clause, and the Sweeping Clause[1]) is the provision in Article One of the United
States Constitution, section 8, clause 18:
The Congress shall have Power - To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States, or in any Department or
Officer there of.
compact of the people
compact of the states
In the US, it basically means a state can declare a law unconstitutional and ignore it because the
constitution was formed by a compact made will all of the states.
Wickard aggregation theory
The Commerce Clause states that Congress shall regulate commerce among the several
States In Wickard, the Court extended this to include any action that exerts a substantial
economic impact on interstate commerce, regardless of how direct or indirect that impact may be.
This relies upon the adoption of the aggregation principle: taken together with that of many
others, an individuals small production of wheat for home consumption could effect the federal
governments delicately balanced price-fixing system. On this possibility alone, with no evidence
of any actual interstate effect, the government could prevail.
Wickard rendered a nullity the Constitutions enumeration of the federal governments limited
powers. With just one of those powers, that to regulate commerce among the states, it could
reach any conduct at all. The result has been massive federal intrusion into all aspects of life, in
direct contravention of the Framers vision.
Federalist No. 84
Federalist No. 84 (Federalist Number 84), an essay entitled "Certain General and Miscellaneous
Objections to the Constitution Considered and Answered," is one of the Federalist Papers by
Alexander Hamilton, published under the pseudonym Publius on July 16, July 26, and August 9,
1788.
Federalist No. 84 is notable for presenting the idea that a Bill of Rights was not a necessary
component of the proposed United States Constitution. The Constitution, as originally written, did
not specifically enumerate or protect the rights of the people. It is alleged that many Americans at
the time opposed the inclusion of a bill of rights: if such a bill were created, they feared, this might
later be interpreted as a list of the only rights that people had. Hamilton wrote:
It has been several times truly remarked, that bills of rights are in their origin, stipulations
between kings and their subjects, abridgments of prerogative in favor of privilege,
reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by
the Barons, sword in hand, from king John...It is evident, therefore, that according to their
primitive signification, they have no application to constitutions professedly founded upon
the power of the people, and executed by their immediate representatives and servants.
Here, in strictness, the people surrender nothing, and as they retain every thing, they have
no need of particular reservations. "We the people of the United States, to secure the
blessings of liberty to ourselves and our posterity, do ordain and establish this constitution
for the United States of America." Here is a better recognition of popular rights than
volumes of those aphorisms which make the principal figure in several of our state bills of
rights, and which would sound much better in a treatise of ethics than in a constitution of
government....
I go further, and affirm that bills of rights, in the sense and in the extent in which they are
contended for, are not only unnecessary in the proposed constitution, but would even be
dangerous. They would contain various exceptions to powers which are not granted; and
on this very account, would afford a colorable pretext to claim more than were granted.
For why declare that things shall not be done which there is no power to do? Why for
instance, should it be said, that the liberty of the press shall not be restrained, when no
power is given by which restrictions may be imposed? I will not contend that such a
provision would confer a regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power.
U.S. Courts of Appeals
The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A
court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal
administrative agencies.
In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as
those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.
en banc proceedings
En banc, in banc, in banco or in bank is a French term (meaning "on a bench") used to refer to
the hearing of a legal case where all judges of a court will hear the case (an entire "bench"), rather
than a panel of them.[1][2] It is often used for unusually complex cases or cases considered of
unusual significance.[2] Appellate courts in the United States sometimes grant rehearing en banc to
reconsider a decision of a panel of the court (a panel generally consisting of only three judges)
where the case concerns a matter of exceptional public importance or the panel's decision appears
to conflict with a prior decision of the court.[3] In rarer instances, an appellate court will order
hearing en banc as an initial matter, instead of the panel hearing it first.
Some appellate courts, such as the Supreme Court of the United States and the highest courts of
most U.S. states, do not sit in panels, but hear all of their cases en banc (with the exception of cases
where a judge is ill or recused).
How to read legal citations
A citation (or cite) in legal terminology is a reference to a specific legal source, such as a
constitution, a statute, a reported case, a treatise, or a law review article. A standard citation
includes first the volume number, then the title of the source, (usually abbreviated) and lastly,
a page or section number.
United States Reports
The United States Reports are the official record of the rulings, orders, case tables [clarification needed], and other
proceedings of the Supreme Court of the United States. Opinions of the court in each case, prepended with
a headnote prepared by the Reporter of Decisions, and any concurring or dissenting opinions are published
sequentially. The Court's Publication Office oversees the binding and publication of the volumes of United
States Reports, although the actual printing, binding, and publication are performed by private firms under
contract with the United States Government Printing Office.
Fede The Federal Reporter is a case law reporter in the United States that is published by West
Publishing. It begins with cases decided in 1880. It was preceded by Federal Cases. The third and current
Federal Reporter series publishes decisions of the United States courts of appeals and the United States
Court of Federal Claims; prior series had varying scopes that covered decisions of other federal courts as
well. Though West is a private company that does not have a legal monopoly over the court opinions it
publishes, it has so dominated the industry in the U.S. that legal professionals uniformly cite to the Federal
Reporter for included decisions. It is estimated that the Fourth Series of the Federal Reporter will begin
sometime around 2025.[1]ral Reporter
Federal Supplement
The Federal Supplement is a case law reporter published by West Publishing in the United States that
includes select opinions of the United States district courts. Though West is a private company that does not
have a legal monopoly over the court opinions it publishes, it has so dominated the industry in the U.S. that
legal professionals uniformly cite the Federal Supplement for included decisions.
Debate (in Ellis and Nelson) re Article V
Ellis and Nelson have found that debating concrete proposals to reforming the political system encourages
their undergraduate students to leave ideology
behind and instead, to sift through competing
claims and evidence.
Debate (in Ellis and Nelson) re state drinking
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that
set forth the authoritative capacity of the United States Congress.[1] In summary, Congress may exercise the
powers to which it is granted by the Constitution, and subject to explicit restrictions in the Bill of Rights and
other protections found in the Constitutional text. The 10th Amendment states that all prerogatives not
vested in the federal government nor prohibited of the states are reserved to the states and to the people,
which means that the only prerogatives of the Congress (as well as the Executive Branch and the Judicial
Branch) are limited to those explicitly stated in the Constitution.
Ages
Methods of amending the Constitution
To propose an amendment
1. 2/3 of both houses of Congress vote to propose and amendment
2. 2/3 of the state legislatures ask Congress to call a national convention
To ratify an amendment
1. 3/4 of the state legislatures approve it
2. 3/4 of ratifying conventions in states approve it
selective incorporation
a theory or doctrine of constitutional law that those rights guaranteed by the first eight amendments to the
U.S. Constitution that are fundamental to and implicit in the concept of ordered liberty are incorporated into
the Fourteenth Amendment's due process clause compare TOTAL INCORPORATION
Due Process Clause
Due process is the legal principle that the government must respect all of the legal rights
that are owed to a person according to the law. Due process holds the government subservient to
the law of the land protecting individual persons from the state. When a government harms a
person without following the exact course of the law it constitutes a due process violation which
offends against the rule of law.
Due process has also been frequently interpreted as limiting laws and legal proceedings (see
substantive due process), so judges - instead of legislators - may define and guarantee fundamental
fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the
concepts of natural justice, and procedural justice used in various other jurisdictions. This
interpretation of due process is sometimes expressed as a command that the government must not
be unfair to the people or abuse them physically.
Palko test
Maybe related to the US Sup Ct case of Palko v. Connecticut? Had to do with 5th Amendment right to be
free from double jeopardy, where Court found the federal constitution didn't prevent state prosecutors from
appealing life sentence for murderer and retrying him for death penalty. Mr. Palka was executed in 1938, a
full 30years before the Supreme Court ruled that the "double jeopardy" clause of the US Constitution did, in
fact, apply to state prosecutions as well as federal (Benton v. Maryland)
Privileges and Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United
States Constitution. It states:
No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States
total incorporation
a doctrine in constitutional law: the Fourteenth Amendment's due process clause embraces all the
guarantees in the Bill of Rights and applies them to cases under state law compare SELECTIVE
INCORPORATION
NOTE: The total incorporation doctrine has never been adopted by a majority of the U.S. Supreme Court.
The majority opinions of the Supreme Court have instead adhered to a fundamental fairness standard or
applied selective incorporation in determining whether a state has violated the Fourteenth Amendment's
due process clause.
New York Times v. Sullivan (1964)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme
Court case which established the actual malice standard which has to be met before press reports
about public officials or public figures can be considered to be defamation and libel[2]; and hence
allowed free reporting of the civil rights campaigns in the southern United States. It is one of the
key decisions supporting the freedom of the press. The actual malice standard requires that the
plaintiff in a defamation or libel case prove that the publisher of the statement in question knew
that the statement was false or acted in reckless disregard of its truth or falsity. Because of the
extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is
inside a person's head, such caseswhen they involve public figuresrarely prevail.
Before this decision there were nearly US$300 million in libel actions outstanding against news
organizations from the Southern states and these had caused many publications to exercise great
caution when reporting on civil rights, for fear that they might be held accountable for libel. After
The New York Times prevailed in this case, news organizations were free to report the widespread
disorder and civil rights infringements. The Times maintained that the case against it was brought
to intimidate news organizations and prevent them from reporting illegal actions of public
employees in the South as they attempted to continue to support segregation.
Miller v. California (1972)
Miller v. California, 413 U.S. 15 (1973) was an important United States Supreme Court case involving what
constitutes unprotected obscenity for First Amendment purposes. The decision reiterated that obscenity was
not protected by the First Amendment and established the Miller test for determining what constituted
obscene material.
Texas v. Johnson (1989)
Texas v. Johnson, 491 U.S. 397 (1989), was an important decision by the Supreme Court of the United
States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice
William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was
protected speech under the First Amendment to the United States Constitution. Johnson was represented
by attorneys David D. Cole and William Kunstler.
Snyder v. Phelps (2011)
Snyder v. Phelps was a case heard by Supreme Court of the United States on whether the First
Amendment protected protests of public protestors at a funeral against tort liability. It involved a claim of
intentional infliction of emotional distress made by Albert Snyder, the father of Matthew Snyder, a Marine
who died in the Iraq War. The claim was made against the Phelps family, including Fred Phelps, and against
Phelps' Westboro Baptist Church (WBC). The Court ruled in favor of Phelps in an 8-1 decision, holding that
their speech related to a public issue, and was disseminated on a public sidewalk.