Changes

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on free speech, [[press]], assembly, petition and [[religion]]; it also prohibits the establishment of [[religion]].  By implication, it protects [[freedom]] of association.  It expressly applies only to [[Congress]], but the [[court]]s have since applied it against all the [[state]]s too.

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on free speech, [[press]], assembly, petition and [[religion]]; it also prohibits the establishment of [[religion]].  By implication, it protects [[freedom]] of association.  It expressly applies only to [[Congress]], but the [[court]]s have since applied it against all the [[state]]s too.

In fact, virtually all of the [[Bill of Rights]] now protect citizens against all forms of government: federal, state or local.

In fact, virtually all of the [[Bill of Rights]] now protect citizens against all forms of [[government]]: federal, state or local.

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

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

Now speech includes, for example, the burning of the [[America]]n [[flag]] ([[Texas v. Johnson]]).  It includes spending money on political campaigns.  It can include vulgar or obscene words.  It offers some protection even to commercial speech, such as certain advertisements.

Now speech includes, for example, the burning of the [[America]]n [[flag]] ([[Texas v. Johnson]]).  It includes spending money on political campaigns.  It can include vulgar or obscene words.  It offers some protection even to commercial speech, such as certain advertisements.

When something qualifies as “free speech,” the protection against regulation of its content is nearly absolute.  Only a compelling interest by the government can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

When something qualifies as “free speech,” the protection against regulation of its content is nearly absolute.  Only a compelling interest by the [[government]] can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

One might ask, why isn’t all speech protected?  Why should the government be able to abridge any speech?  

One might ask, why isn’t all speech protected?  Why should the [[government]] be able to abridge any speech?  

It is easy to think of examples of speech that should not be free and protected.

It is easy to think of examples of speech that should not be free and protected.

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 [[school]]s (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 [[school]]s (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 [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] Statute for Religious Freedom of 1786.  Its purpose was to prevent an elite class of clergy, funded by government.  “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by [[Thomas Jefferson|Jefferson]] to Adams, Monticello (Oct. 28, 1813).

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] Statute for Religious Freedom of 1786.  Its purpose was to prevent an elite class of clergy, funded by [[government]].  “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by [[Thomas Jefferson|Jefferson]] to Adams, Monticello (Oct. 28, 1813).

Neither [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an aristocratic [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

Neither [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an aristocratic [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

The original [[Constitution]] included few protections for individual liberties, but it did guarantee the right to a [[jury]] trial.  Art. III, Section 2.  The Founders were sure to include that.  To this day, 95% of jury trials held in the entire world are in the [[United States]].

The original [[Constitution]] included few protections for individual liberties, but it did guarantee the right to a [[jury]] trial.  Art. III, Section 2.  The Founders were sure to include that.  To this day, 95% of jury trials held in the entire world are in the [[United States]].

This protection was not enough for colonists still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional safeguards against abusive prosecutions by government.

This protection was not enough for colonists still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional safeguards against abusive prosecutions by [[government]].

The [[Fourth Amendment]] protects citizens against unreasonable searches of their homes and personal belongings.  Warrants signed by a neutral [[judge]] or [[magistrate]] are required.  The [[Supreme Court]] imposed the “Exclusionary Rule” to prohibit use of unlawfully obtained material at the trial of the accused.

The [[Fourth Amendment]] protects citizens against unreasonable searches of their homes and personal belongings.  Warrants signed by a neutral [[judge]] or [[magistrate]] are required.  The [[Supreme Court]] imposed the “Exclusionary Rule” to prohibit use of unlawfully obtained material at the trial of the accused.

The [[Fifth Amendment]] allows an accused to avoid testifying in his own case, and gives him the right to counsel.  The [[Supreme Court]] later required government to read Miranda warnings to any accused held in custody before interrogating him.

The [[Fifth Amendment]] allows an accused to avoid testifying in his own case, and gives him the right to counsel.  The [[Supreme Court]] later required [[government]] to read Miranda warnings to any accused held in custody before interrogating him.

The [[Sixth Amendment]] established the right to counsel, and the [[Supreme Court]] later forced states to pay for an attorney when the defendant cannot afford it.  It also establishes the right to an “impartial” [[jury]] in the district where the crime allegedly occurred, and a right to a speedy and public [[trial]].  This expands on the right to jury trial in the original [[Constitution]].

The [[Sixth Amendment]] established the right to counsel, and the [[Supreme Court]] later forced states to pay for an attorney when the defendant cannot afford it.  It also establishes the right to an “impartial” [[jury]] in the district where the crime allegedly occurred, and a right to a speedy and public [[trial]].  This expands on the right to jury trial in the original [[Constitution]].

The Seventh of the [[Ten Commandments]] says “Neither shall you bear false witness against your neighbor.”  [[Deuteronomy]] 5:20.  That prohibits false accusations, and false testimony in court.  If everyone obeyed this commandment, then many of the above protections would not be needed.

The Seventh of the [[Ten Commandments]] says “Neither shall you bear false witness against your neighbor.”  [[Deuteronomy]] 5:20.  That prohibits false accusations, and false testimony in court.  If everyone obeyed this commandment, then many of the above protections would not be needed.

In fact, false accusations were a problem in colonial [[America]] as they are today.  Colonists feared the power of the new government being used to intimidate witnesses into testifying falsely, and imprisoning critics of government.  During the presidency of [[John Adams]], a few of his opponents were fined and even imprisoned under the [[Sedition Act]] for criticizing the [[president]].

In fact, false accusations were a problem in colonial [[America]] as they are today.  Colonists feared the power of the new [[government]] being used to intimidate witnesses into testifying falsely, and imprisoning critics of [[government]].  During the presidency of [[John Adams]], a few of his opponents were fined and even imprisoned under the [[Sedition Act]] for criticizing the [[president]].

The [[Sixth Amendment]] contains perhaps the greatest safeguard of all against false accusation: the right “to be confronted with the [[witness]]es against him.”  This includes the right of cross-examination, by which an accused person's [[attorney]] can question the government [[witness]]es in open court.  Statements made outside of court can be excluded in criminal trials if the defendant lacks an opportunity to cross-examine the person who made the statement.  “I heard someone say he saw defendant rob the bank” isn’t going to be allowed, unless that someone is cross-examined in open court.

The [[Sixth Amendment]] contains perhaps the greatest safeguard of all against false accusation: the right “to be confronted with the [[witness]]es against him.”  This includes the right of cross-examination, by which an accused person's [[attorney]] can question the [[government]] [[witness]]es in open court.  Statements made outside of court can be excluded in criminal trials if the defendant lacks an opportunity to cross-examine the person who made the statement.  “I heard someone say he saw defendant rob the bank” isn’t going to be allowed, unless that someone is cross-examined in open court.

Many feel that these amendments have been expanded too far to protect dangerous [[criminal]]s.  This became a national controversy in the 1960s, as the [[Supreme Court]] interpreted these amendments broadly in favor of [[criminal]] defendants.

Many feel that these amendments have been expanded too far to protect dangerous [[criminal]]s.  This became a national controversy in the 1960s, as the [[Supreme Court]] interpreted these amendments broadly in favor of [[criminal]] defendants.

Others, while no friends of real criminals, feel we need the protections to limit a government greedy for power.  [[Christianity]] is based on the unlawful execution of an innocent man, [[Jesus]].  He had no right to an [[attorney]] in [[Roman]] court.  The [[Greeks]], not the [[Roman]]s, allowed advocates or [[attorney]]s in [[trial]]s.   

Others, while no friends of real criminals, feel we need the protections to limit a [[government]] greedy for power.  [[Christianity]] is based on the unlawful execution of an innocent man, [[Jesus]].  He had no right to an [[attorney]] in [[Roman]] court.  The [[Greeks]], not the [[Roman]]s, allowed advocates or [[attorney]]s in [[trial]]s.   

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?

In our history, states have sometimes defied congressional law.  [[James Madison]] and [[Thomas Jefferson]] themselves started the nullification doctrine, declaring that a state could nullify as unconstitutional an act of [[Congress]] (in their case, the Alien and Sedition Acts in 1798).  After all, what is a state to do if [[Congress]] and the [[Supreme Court]] team up against it?  In 1809, the [[Pennsylvania]] legislature ordered the state militia to prevent a federal marshal from serving a writ (order) that it felt was unconstitutional.  The federal officers simply arrested the state militia, but [[James Madison]] pardoned them.   

In our history, states have sometimes defied congressional law.  [[James Madison]] and [[Thomas Jefferson]] themselves started the nullification doctrine, declaring that a state could nullify as unconstitutional an act of [[Congress]] (in their case, the Alien and Sedition Acts in 1798).  After all, what is a state to do if [[Congress]] and the [[Supreme Court]] team up against it?  In 1809, the [[Pennsylvania]] legislature ordered the state militia to prevent a federal marshal from serving a writ (order) that it felt was unconstitutional.  The federal officers simply arrested the state militia, but [[James Madison]] pardoned them.   

Later, nullification doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern states invoked the doctrine to reject the [[Supreme Court]] ruling of Brown v. Board of Education (1954), which desegregated schools.  The federal government enforced that ruling over objections by southern states.

Later, nullification doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern states invoked the doctrine to reject the [[Supreme Court]] ruling of Brown v. Board of Education (1954), which desegregated schools.  The federal [[government]] enforced that ruling over objections by southern states.

Some states, like [[West Virginia]], defer to federal law in their own state constitutions.  Article 1, Section 1 of the West Virginia Constitution provides:

Some states, like [[West Virginia]], defer to federal law in their own state constitutions.  Article 1, Section 1 of the West Virginia Constitution provides:

Perhaps you can think of why [[West Virginia]] expressly accepts federal supremacy.  (Answer: [[West Virginia]] was formed by splitting off from [[Virginia]] in order to join the Union during the [[Civil War]].  [[Virginia]] remained with the southern Confederacy.)

Perhaps you can think of why [[West Virginia]] expressly accepts federal supremacy.  (Answer: [[West Virginia]] was formed by splitting off from [[Virginia]] in order to join the Union during the [[Civil War]].  [[Virginia]] remained with the southern Confederacy.)

Large states, like [[New York]], [[Virginia]] and [[Massachusetts]], were very reluctant to give away their power to the federal government by ratifying the [[Constitution]].  [[James Madison]] assured them that the “powers delegated by the proposed [[Constitution]] to the federal government are few and defined.  Those that are to remain in the State governments are numerous and indefinite.”  (Federalist No. 45)

Large states, like [[New York]], [[Virginia]] and [[Massachusetts]], were very reluctant to give away their power to the federal [[government]] by ratifying the [[Constitution]].  [[James Madison]] assured them that the “powers delegated by the proposed [[Constitution]] to the federal [[government]] are few and defined.  Those that are to remain in the State [[government]]s are numerous and indefinite.”  (Federalist No. 45)

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.

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 ''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 [[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.)

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:

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.

===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]].

[[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]].

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.)

===Issues===

===Issues===

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

#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 [[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?

#*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 [[constitution]]al 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]]