Changes

==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 [[judge]]s 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 principle 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 un[[constitution]]al.  This is known as the principle of “judicial review.”  It affects the relative power of the [[Supreme Court]] with respect to [[Congress]].  It does not affect [[federalism]], because the [[state]]s 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 [[state]]s 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]] 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]] 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 [[state]]s.  This greatly reduced the power of [[state]]s 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.

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]].

co-federal 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:

dual federalism (1788-1932): limited federal government no stronger than the states.  Each has its own separate authority.  Not much cooperation between the two.  Examples: federal government runs the mail routes, state government runs the police.

[[dual federalism]] (1788-1932): limited federal government no stronger than the states.  Each has its own separate authority.  Not much cooperation between the two.  Examples: federal government runs the mail routes, state government runs the police.

cooperative federalism (1932-1965): responsibilities of federal and state government are mixed.  Exclusive state power erodes.

[[cooperative federalism]] (1932-1965): responsibilities of federal and state government are mixed.  Exclusive state power erodes.

centralized federalism (1965-1972): federal government asserts its power in cities, health care, schools, etc., with large spending programs under President Johnson’s Great Society.  Also known as “creative federalism.”

[[centralized federalism]] (1965-1972): federal government asserts its power in cities, health care, schools, etc., with large spending programs under President Johnson’s Great Society.  Also known as “[[creative federalism]].”

new federalism (1972-today): conservative movement to return power and money back to the states, away from the federal government.

[[new federalism]] (1972-today): [[conservative]] movement to return power and money back to the states, away from the federal government.

Which do liberals prefer?  A strong federal government.  Which do conservatives prefer?  A weak federal government.

Which do liberals prefer?  A strong federal government.  Which do conservatives prefer?  A weak federal government.

===Issues===

===Issues===

#Are laws against certain advertisements unconstitutional?  

#Are laws against certain advertisements un[[constitution]]al?  

#*The federal government reserves the right to prohibit certain types of advertising, such as ads for harmful products like alcohol or cigarettes.  Tobacco companies voluntarily stopped television ads rather than wait until the federal government banned them.  The First Amendment says “[[Congress]] shall make no law ... abridging the freedom of speech.”  Should the federal government have the power to ban certain types of ads?

#*The federal government reserves the right to prohibit certain types of advertising, such as ads for harmful products like [[alcohol]] or [[cigarette]]s.  [[Tobacco]] companies voluntarily stopped television ads rather than wait until the federal government banned them.  The [[First Amendment]] says “[[Congress]] shall make no law ... abridging the freedom of speech.”  Should the federal government have the power to ban certain types of ads?

#free 50 guilty defendants rather than convict one innocent defendant?

#free 50 guilty defendants rather than convict one innocent defendant?

#*The Bill of Rights contains many protections for criminal defendants.  Clearly, these rules will allow some guilty defendants to go free in order to minimize convictions of innocent persons.  Do you agree with this approach?

#*The [[Bill of Rights]] contains many protections for criminal defendants.  Clearly, these rules will allow some guilty defendants to go free in order to minimize convictions of innocent persons.  Do you agree with this approach?

#Is there a constitutional right for defendants to question potential jurors before trial?

#Is there a [[constitution]]al right for defendants to question potential jurors before trial?

#*The selection of the jury is often the most important aspect of a criminal trial.  The Sixth Amendment guarantees an “impartial jury,” so questions are asked of potential jurors to identify bias for one side or the other.  A jury that favors government is what the prosecutor wants; a jury skeptical of government is what the defendant seeks.  How much freedom should the defendant have in asking questions of potential jurors before they are chosen for the trial?  This process is known as “voir dire.”  In state court, defendants have much more leeway than in federal court, and the conviction rate is higher in federal court partly for this reason.  Should defendants have a right for their attorneys to question potential jurors during jury selection?

#*The selection of the [[jury]] is often the most important aspect of a criminal trial.  The [[Sixth Amendment]] guarantees an “impartial jury,” so questions are asked of potential jurors to identify bias for one side or the other.  A jury that favors government is what the prosecutor wants; a jury skeptical of government is what the defendant seeks.  How much freedom should the defendant have in asking questions of potential jurors before they are chosen for the trial?  This process is known as “voir dire.”  In state court, defendants have much more leeway than in federal court, and the conviction rate is higher in federal court partly for this reason.  Should defendants have a right for their attorneys to question potential jurors during jury selection?

#Does the Fourth Amendment prohibit drug testing of all public school students?

#Does the [[Fourth Amendment]] prohibit drug testing of all public school students?

[[category:Homeschool Curriculum]]

[[category:Homeschool Curriculum]]