Changes

American Government

American Government<br/>

<br>Second Lecture - BILL OF RIGHTS & FEDERALISM

Second Lecture - BILL OF RIGHTS & FEDERALISM<br/>

<br>Instructor: Andy Schlafly

Instructor: Andy Schlafly

I. Introduction

=Introduction=

The Amendments to the Constitution dominate current legal and political controversies.  The Bill of Rights – Amendments one through ten – and the Fourteenth Amendment have wrought enormous changes.  We explain the Bill of Rights now, and reach the Fourteenth Amendment in a future class.

The Amendments to the Constitution dominate current legal and political controversies.  The Bill of Rights – Amendments one through ten – and the Fourteenth Amendment have wrought enormous changes.  We explain the Bill of Rights now, and reach the Fourteenth Amendment in a future class.

II. Bill of Rights

=Bill of Rights=

Opposition was so strong to the Constitution that its supporters had to promise a “Bill of Rights.”  But ratification only required nine out of thirteen states (Article VII), and that was attained when a convention in New Hampshire approved it (57-47) on June 21, 1788.  But the large states of Virginia and New York had not yet joined the Union, and the Anti-Federalists were strong in both states.  These were the home states of Madison and Hamilton, respectively, the biggest supporters of the Constitution.

Opposition was so strong to the Constitution that its supporters had to promise a “Bill of Rights.”  But ratification only required nine out of thirteen states (Article VII), and that was attained when a convention in New Hampshire approved it (57-47) on June 21, 1788.  But the large states of Virginia and New York had not yet joined the Union, and the Anti-Federalists were strong in both states.  These were the home states of Madison and Hamilton, respectively, the biggest supporters of the Constitution.

Let’s look at important sections of the Bill of Rights:

Let’s look at important sections of the Bill of Rights:

<br>A.  The Free Speech Clause.

==The Free Speech Clause.==

The First Amendment protects the greatest of all constitutional rights: “Congress shall make no law ... abridging the freedom of speech.”  This protects religious and political speech.  It protects prayer in many circumstances; it also protects evangelizing.  It was unique to America, reflecting the Great Awakening and preaching that permeated the colonies in the 1700s.

The First Amendment protects the greatest of all constitutional rights: “Congress shall make no law ... abridging the freedom of speech.”  This protects religious and political speech.  It protects prayer in many circumstances; it also protects evangelizing.  It was unique to America, reflecting the Great Awakening and preaching that permeated the colonies in the 1700s.

The Supreme Court has said that “fighting words” are not “free speech” protected by the First Amendment.  Other types of speech are also excluded from the First Amendment.  But over time, the Court has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

The Supreme Court has said that “fighting words” are not “free speech” protected by the First Amendment.  Other types of speech are also excluded from the First Amendment.  But over time, the Court has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

<br>B.  The Establishment Clause.

==B.  The Establishment Clause.==

The First Amendment begins with: “Congress shall make no law respecting an establishment of religion ....”  Known as the “Establishment Clause,” this is increasingly used against state and local government.  In 1962, this clause was the basis for the Supreme Court to ban prayer in the schools (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under God” in the Pledge of Allegiance, and the order to remove the Ten Commandments plaque from the Alabama Supreme Court.

The First Amendment begins with: “Congress shall make no law respecting an establishment of religion ....”  Known as the “Establishment Clause,” this is increasingly used against state and local government.  In 1962, this clause was the basis for the Supreme Court to ban prayer in the schools (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under God” in the Pledge of Allegiance, and the order to remove the Ten Commandments plaque from the Alabama Supreme Court.

Eventually, someone hostile to religion in public life rose to power on the Supreme Court.  Justice Hugo Black, a former member of the Ku Klux Klan, pushed the court to ostracize religion from schools and government.  He wrote the opinion banning prayer from public schools, and other opinions ostracizing religion. Since then courts have banned the Ten Commandments and now even the Pledge of Allegiance.

Eventually, someone hostile to religion in public life rose to power on the Supreme Court.  Justice Hugo Black, a former member of the Ku Klux Klan, pushed the court to ostracize religion from schools and government.  He wrote the opinion banning prayer from public schools, and other opinions ostracizing religion. Since then courts have banned the Ten Commandments and now even the Pledge of Allegiance.

<br>C.  Protections for the Accused.

==C.  Protections for the Accused.==

In colonial America, those who favored independence were considered enemies of the King.  Some were prosecuted.  Peter Zenger, for example, was prosecuted for published materials critical of the governor of New York, who was appointed by the Crown.  Zenger was acquitted by an American jury in a famous case establishing the freedom of the press.  But the jury had clearly saved him - had a judge tried the case, he would have surely been sent to jail.

In colonial America, those who favored independence were considered enemies of the King.  Some were prosecuted.  Peter Zenger, for example, was prosecuted for published materials critical of the governor of New York, who was appointed by the Crown.  Zenger was acquitted by an American jury in a famous case establishing the freedom of the press.  But the jury had clearly saved him - had a judge tried the case, he would have surely been sent to jail.

Many would rather see fifty guilty persons go free than to wrongly convict an innocent man.  What do you think?

Many would rather see fifty guilty persons go free than to wrongly convict an innocent man.  What do you think?

<br>III. Federalism & the Constitution

=Federalism & the Constitution=

The Supremacy Clause may be the most important provision in the entire Constitution.  It is on page 328:  

The Supremacy Clause may be the most important provision in the entire Constitution.  It is on page 328:  

Madison’s assurance seemed true at the beginning, but over time the federal government seized more and more power for itself, as opponents of the Constitution had feared.

Madison’s assurance seemed true at the beginning, but over time the federal government seized more and more power for itself, as opponents of the Constitution had feared.

<br>IV. Key Decisions concerning Federalism

=Key Decisions concerning Federalism=

The Supreme Court is part of the federal government, and until recently it has consistently expanded federal power.  This is self-serving and predictable.  Many, unfortunately, like to seize more power for themselves.  Also, many judges tend to enjoy exercising authority over others.

The Supreme Court is part of the federal government, and until recently it has consistently expanded federal power.  This is self-serving and predictable.  Many, unfortunately, like to seize more power for themselves.  Also, many judges tend to enjoy exercising authority over others.

In Marbury v. Madison (1801), the Supreme Court grabbed the power to invalidate laws of Congress as unconstitutional.  This is known as the principal of “judicial review.”  It affects the relative power of the Supreme Court with respect to Congress.  It does not affect federalism, because the states were not involved.

In ''Marbury v. Madison'' (1801), the Supreme Court grabbed the power to invalidate laws of Congress as unconstitutional.  This is known as the principal of “judicial review.”  It affects the relative power of the Supreme Court with respect to Congress.  It does not affect federalism, because the states were not involved.

In McCulloch v. Maryland (1819), the Supreme Court decided a contest between the federal government and the state of Maryland.  Guess which side the Supreme Court chose?  The federal government, of course, because that is what the Supreme Court itself is.  It held that the Necessary and Proper Clause of the Constitution gives Congress broad powers.  The states cannot interfere with a law passed by Congress.  (In this case, Maryland tried to tax the national bank operating within its state.  The Court voided the tax.)

In ''McCulloch v. Maryland'' (1819), the Supreme Court decided a contest between the federal government and the state of Maryland.  Guess which side the Supreme Court chose?  The federal government, of course, because that is what the Supreme Court itself is.  It held that the Necessary and Proper Clause of the Constitution gives Congress broad powers.  The states cannot interfere with a law passed by Congress.  (In this case, Maryland tried to tax the national bank operating within its state.  The Court voided the tax.)

The expansion of federal power continued in the courts for another 150 years.  Not until Justice William Rehnquist arrived to the Supreme Court (see handout) did the tone start to change.  Here are some more examples:

The expansion of federal power continued in the courts for another 150 years.  Not until Justice William Rehnquist arrived to the Supreme Court (see handout) did the tone start to change.  Here are some more examples:

In Gibbons v. Ogden (1824), the Supreme Court interpreted the Commerce Clause to include virtually any business activity between two or more states.  This greatly reduced the power of states to regulate commerce.

In ''Gibbons v. Ogden'' (1824), the Supreme Court interpreted the Commerce Clause to include virtually any business activity between two or more states.  This greatly reduced the power of states to regulate commerce.

Now, much legislation by Congress is justified based on the Commerce Clause.  For example, civil rights legislation banning discrimination in places of public accommodation (e.g., hotels, restaurants, trains, airplanes) is based in the Commerce Clause.  This was upheld by Heart of Atlanta Motel v. United States (1964).  Since almost anything affects commerce, it is difficult to find many limits on federal power anymore.

Now, much legislation by Congress is justified based on the [[Commerce Clause]].  For example, civil rights legislation banning discrimination in places of public accommodation (e.g., hotels, restaurants, trains, airplanes) is based in the Commerce Clause.  This was upheld by Heart of Atlanta Motel v. United States (1964).  Since almost anything affects commerce, it is difficult to find many limits on federal power anymore.

One limit that does still exist is in family law.  It remains outside the reach of the federal government.  Education has also been beyond federal power, but President Bush’s No Child Left Behind has greatly expanded federal influence in this area.  Most types of crimes, including most murders, are still beyond federal power.  States alone can prosecute them, unless state lines were crossed during the commission of the crime.

One limit that does still exist is in family law.  It remains outside the reach of the federal government.  Education has also been beyond federal power, but President Bush’s No Child Left Behind has greatly expanded federal influence in this area.  Most types of crimes, including most murders, are still beyond federal power.  States alone can prosecute them, unless state lines were crossed during the commission of the crime.

V. Types of Federalism

==Types of Federalism==

Let’s review various forms of national government:

Let’s review various forms of national government:

unitary system: national government has all the power.  Examples: England, France and Italy.

unitary system: national government has all the power.  Examples: England, France and Italy.

cofederal system: states have all the power.  Examples: colonies under Articles of Confederation.

co-federal system: states have all the power.  Examples: colonies under Articles of Confederation.

In between these systems is the federalism unique to our Constitution.  For legal, political and economic reasons, the system has changed over the years:

In between these systems is the federalism unique to our Constitution.  For legal, political and economic reasons, the system has changed over the years:

Here is a more difficult question: which do big companies prefer?  Think about it.  (Answer: Big companies want to avoid 50 different state regulations.  They tend to prefer a strong federal government.  Hence big business creates another source of pressure for weakening state power further.)

Here is a more difficult question: which do big companies prefer?  Think about it.  (Answer: Big companies want to avoid 50 different state regulations.  They tend to prefer a strong federal government.  Hence big business creates another source of pressure for weakening state power further.)

VI. Issues

==Issues==

1. Are laws against certain advertisements unconstitutional?  

1. Are laws against certain advertisements unconstitutional?