American Government Lecture Ten

American Government Lectures - [1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - 10 - 11 - 12]

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The United States is the only nation in the history of the world that is founded on an idea. And what is that "idea"? The Constitution.

This lecture is to review the key parts of the course, particularly the Constitution and how it works. Let's begin by considering this quotation:

“

Of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism,... federalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counter-intuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one. 'In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.' The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).

”

This is taken from an opinion by Justice Kennedy in the U.S. Supreme Court decision of United States v. Lopez, 514 U.S. 549, 575-76 (1995), in which he agreed (concurred) with the majority of the Court but wrote separately to express his own view.

If you can understand and explain every aspect of the above quote, then you have a good knowledge of American government. As a way of review, let's analyze each part of Justice Kennedy's statement.

"the Constitution"

Justice Kennedy's reference to "the Constitution" is to the United States Constitution, which was written during the Constitutional Convention in Philadelphia during the hot summer of 1787, completed in September, and sent to the 13 states (former colonies) for ratification by at least 9 of them. The "Federalist Papers" were written anonymously by Alexander Hamilton, James Madison and John Jay in order to persuade the people of the large state of New York to ratify (approve and adopt) the Constitution. We now know which person authored which Federalist Paper (each one was published separately in a New York newspaper as the debate progressed), and James Madison is indicated in the above quote as being the author of the 51st Federalist Paper.

The Federalist Papers are important today for their usefulness in interpreting what the Constitution meant at the time (the "original meaning" of the Constitution). Today "judicial activists" and "loose constructionists" think the Constitution should be given a different, expansive meaning based on today's culture, values and perceived needs, while "originalists", "textualists" and "strict constructionists" interpret the Constitution to mean the same today as it did when it was written in 1787 and ratified by 1788.

"separation of powers"

When U.S. Supreme Court Justice Kennedy refers to "separation of powers" in his quote above, he's referring to how the Constitution created three separate branches of government at the federal (national) level: legislature (Congress), executive (president and federal agencies), and the federal judiciary (U.S. Supreme Court; by federal laws Congress has also created the 13 U.S. Courts of Appeals, the many U.S. district courts, and bankruptcy courts).

Remember this: the U.S. Constitution requires strict separation between the duties and activities of these three branches of government. This is different from the parliamentary system of government common in Europe and around the world, where there is overlap between the legislative and executive branches.

Justice Kennedy says that the separation of powers in the Constitution was not a new idea. Historians attribute it to the French philosopher Montesquieu. Bible scholars find its origin in a passage in Isaiah.

"checks and balances"

When Justice Kennedy refers to "checks and balances," he means how the three branches of the federal (national) government stand up to each other prevent each other from acquiring too much power. When one branch oversteps its authority, such as Congress passing an unconstitutional law, then the U.S. Supreme Court declares the law to be invalid. When the Supreme Court oversteps its authority, then the President refuses to execute (apply) the ruling. President Andrew Jackson, who governed almost like a king, is famous for declaring after a Supreme Court ruling in favor of Indians that President Jackson did not like, "John Marshall has made his decision; now let him enforce it!" (John Marshall was the Chief Justice of the Supreme Court for nearly 35 years in the early 1800s, who presided over a massive expansion in the power of the Court) President Jackson's point was that the Supreme Court has no enforcement power of its own, and a "check and balance" on its power is when the executive branch refuses to enforce its ruling.

How could Congress "check and balance" the power of the U.S. Supreme Court (and all federal courts)? In many ways:

• refuse to provide funding for the courts (Congress is what must approve all funding of the federal government)
• impeach judges (as Congress unsuccessfully attempted in the case of Samuel Chase)
• remove jurisdiction from the federal courts over certain issues (as Congress has done for disputes over reimbursement in Medicare, which is the government health insurance for people over 65 years old)
• abolish entire lower courts (the Constitution requires only that the U.S. Supreme Court exist)

The important point is this: each branch has the power to "check and balance" each other branch under the Constitution, and that prevents the federal government from grabbing too much power for itself.

Keep in mind that Congress makes the laws, the courts interpret the laws, and the president (executive branch) applies the laws. Any one of the three can stop the other two from grabbing too much power.

"judicial review"

What did Justice Kennedy mean when he referred to "judicial review"?

"Judicial review" is the doctrine implied by the U.S. Constitution that authorizes the federal courts (ultimately the U.S. Supreme Court) to review the constitutionality of a law passed by Congress and signed by the President, and for the federal courts to invalidate that law if the courts consider it to be unconstitutional.

This power of judicial review was first asserted by the U.S. Supreme Court, then led by its Chief Justice John Marshall, in the famous case of Marbury v. Madison (1803). Marbury v. Madison is the perhaps the most important decision ever issued by the U.S. Supreme Court, because it grabbed for itself the power to overrule what the other two branches decided to do.

Unusual, almost comical, facts resulted in the case. After the bitter election of 1800, when John Adams lost his reelection to Thomas Jefferson, John Adams had a "lame duck" period of several months when he was still in power. In the final moments of his lame duck period, he appointed an unusually large number of justices of peace (low-level, local judges) in the District of Columbia. Their commissions (salaries) were approved by the U.S. Senate and signed with an official seal by President Adams, but not delivered prior to Adams leaving his office of president When Thomas Jefferson took office, he ordered his Secretary of State (James Madison) not to deliver the commissions, so the Adams-appointed justices of peace would not be paid. Then Jefferson could use that money to pay the salaries of the people he would appoint to government positions.

One of those judges, Marbury, sued Madison to obtain Marbury's commission. The U.S. Supreme Court had to decide whether it would rule for Marbury (and Adams), or the current President Jefferson's administration.

Chief Justice John Marshall wrote the decision for the U.S. Supreme Court, and ruled for Jefferson (his Secretary of State Madison), so Jefferson was pleased. But the basis of Marshall's decision was that the federal law which brought the case before the Court was unconstitutional. In other words, the Supreme Court invalidated a law passed by Congress and signed by a president, in order to rule for Jefferson. Jefferson could not complain much because he won, but the basis of the ruling made the Court more powerful than both Congress and the president by authorizing the Court to invalidate their laws.

An everyday example are compliments that are actually rude. For example, suppose Joe is choosing sides for basketball and he picks a player by saying, "I want to be on my team because I want to hog the ball and I want lousy teammates." At first you might be happy you are picked, but before long you'll realize that you were picked by someone who wanted more power for himself.

Jefferson was not shy about applying a "check and balance" to the courts if he lost. After all, it was Jefferson who sought (unsuccessfully) to impeach U.S. Supreme Court Samuel Chase.

"federalism"

Finally Justice Kennedy mentions federalism, which is unique to American government: "federalism was the unique contribution of the Framers to political science and political theory." Justice Kennedy declares that "it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one." The "two governments" he references here are the federal (United States, or national government) and the state governments (for example, New Jersey). According to Justice Kennedy, this helps enhance liberty as the existence of state governments serve as a buffer and limit on how big and intrusive the federal government can grow.

Whether Justice Kennedy is correct about that remains debatable. Often the federal government simply intrudes into new areas without any regard for state government. But there are times when the tradition of state government -- which precedes the creation of the United States -- does seem to protect liberty and freedom. An example is homeschooling, which is within the exclusive domain of state government. Congress does not and probably could not pass a law to regulate homeschooling, and it remains free and unregulated in New Jersey and about ten other states. And when New Jersey tried to require homeschoolers to take the same tests that are given in public schools, a federal law requiring withholding of federal money if New Jersey did so became an obstacle. New Jersey public school teachers gave up on its plan because they did not want to lose the federal money.

So at least with respect to homeschooling, Justice Kennedy's observation seems correct: "freedom was enhanced by the creation of two governments, not one."

Bill of Rights

Recall the Bill of Rights -- the first ten amendments to the Constitution -- and how important they are. The First Amendment has been the subject of the greatest number of Supreme Court decisions, and the Fourth Amendment not far behind.

In review, the First Amendment includes:

• the Establishment Clause, which is used by atheists to prohibit classroom prayer and religious symbols on government property
• the free speech clause, which is used by both sides of the political spectrum
• other freedoms, such as freedom of the press, the right to assemble, the right to petition government, and the implied "freedom of association":

The Fourth Amendment is important because it provides some protection against government searches of homes, cars, and other personal property (unless a resident consents or there is a search warrant)

Among the other Bill of Right, the most important are:

• the Second Amendment, which protects the right to "keep and bear arms" (have guns)
• the Fifth and Sixth Amendments, which protect the right of criminal defendants in investigations and trials, including the right to a public jury trial
• the Seventh Amendment, which provides the right to a jury trial in civil (non-criminal) cases
• the Eighth Amendment, which prohibits cruel and unusual punishment
• the Tenth Amendment, which protects the rights of the States and the people except when powers are expressly given to the federal (national) government

Let's now look at the some of the most controversial provisions in the Bill of Rights:

The Establishment Clause

The Establishment Clause is the very first clause in the Bill of Rights: “Congress shall make no law respecting an establishment of religion ....”

Nowhere in the Bill of Rights, or anywhere else in the Constitution, is there a requirement for a "wall of separation between church and state." That quote is from a letter written years after the Constitution and Bill of Rights were ratified, by someone who was not even at the Constitutional Convention: Thomas Jefferson. It takes much more to amend the Constitution than for one person to write a letter.

For most of us, the Bible is the source of knowledge and its moral rules are the source of American law. The Ten Commandments are the best set of specific, formal rules of conduct ever devised. Our country was founded on its principles, and our legal system is guided by its wisdom.

“Thou shalt not kill,” the Sixth Commandment, is echoed in numerous laws against killing in America. Similarly, the other Commandments have inspired countless laws and notions of justice.

But in the middle of the 20th century some on the U.S. Supreme Court, seeking to limit the influence of Christianity, first applied the Establishment Clause against the States in a decision that upheld what the State was doing. In that decision, the Court agreed with the State but established a precedent for ruling against States in the future under the Establishment Clause. Beware of expansions of federal power like that. It is like a stranger saying, “Open your front door, but don’t worry because I am not coming inside.”

The Supreme Court announced it would apply the Clause against the States, but then appeared reasonable in deferring to the states. The Supreme Court thereby opened the door but stood outside to make it look friendly. Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments.

55 years ago, students in public high school in New Jersey recited the “Our Father” ever morning. States were then free to do this, and schools were much better because of it. But in 1962, in Engel v. Vitale, the Supreme Court applied the Establishment Clause to abolish school prayer.

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.” So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights. Philadelphia Daily American Advertiser, Sept. 19, 1796.

President John Adams echoed the same conviction: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” 9 The Works of John Adams, Second President of the United States 229 (Charles Francis Adams, ed. 1854).

Nothing in the First Amendment requires censorship of the Ten Commandments, which neither establishes a religion nor coerces anyone to believe. Those who oppose the moral message may feign offense, but appeasing the hypersensitive is not a goal of the First Amendment. Its prohibition on an establishment of religion does not require purging recognition of religion from everything public. Federal law expressly references God numerous times, as do our coins and officials’ oaths of office. The United States Supreme Court itself features Moses holding the sacred tablets.

NOTE: do not confuse the Establishment Clause with the Free Exercise Clause, which follows it in the First Amendment: “Congress shall make no law ... prohibiting the free exercise thereof ....”

Free Speech

One clause in our Constitution has expanded in meaning far greater than every other clause. The right to free speech has grown and grown and grown. It threatens to swallow the entire Constitution is some respects.

Flag burning is now free speech. So are political expenditures. Spending by a political candidate of his own money on his own campaign is free speech.

Commercial speech can be protected now too. Certain types of advertisements, such as ads for legal or medical services, cannot be prohibited.

Free speech can include the right to hear. It can include a right to publish the laws. When combined with free press, it can protect newspapers who seeking to publish governmental secrets.

The right to free speech can even protect lies about public officials. If you are a public figure, then others have a free speech right to make outrageous claims about you. Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her.

You may agree with some or all of the expansions of free speech rights above. In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded. Only pro-government moderates tend to oppose free speech in politics. Can you think of an example of someone famous who opposed free speech? (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in Schenck v. United States (1919), p. 346); note that kings tend to oppose free speech as well.)

Public schools do not allow full free speech (should they?). On one hand, it is easy to see why we would not allow students to be able to say whatever they like. Suppose they started talking about drugs? Suppose they wanted to be rude to the teachers?

There is not free speech in the military, either. If you insult your commander, then he is going to punish you for insubordination. About twenty years before Japan sunk most of our ships at Pearl Harbor, General Billy Mitchell spoke out against how our top military commanders were leaving our navy unprotected against that sort of attack. Later events proved him to be completely right, but at the time he was court martialed for insubordination and was both humiliated and forced to resign. (After the Pearl Harbor attack and after Billy Mitchell died, our military admitted its mistake and reinstated his benefits). Should there be free speech in the military?

Conservatives strongly oppose one type of expansion of free speech, however: pornography. Many liberals oppose it also. But a lawyer who represented the pornography industry (Abe Fortas) was a friend of President Lyndon Johnson, who appointed him to be a Supreme Court Justice. Pornography, like gambling, has a devastating effect on the minds of those taken in by it. And there is an enormous amount of money and profits pushing pornography on the public.

Speaking of gambling, is it free speech? Why not? (It’s more conduct than speech, and thus does not quality as free speech.)

Further, free speech does not generally protect one from the resulting consequences of that speech by private persons. For example, your boss has a right to fire someone for making unflattering statements about him on the internet.

Rights of Criminal Defendants

The basic rights of criminal defendants include: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually that means a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a Miranda warning when taken into custody (established by the Supreme Court decision of Miranda v. Arizona; (5) the right to a hearing before a judge if held in jail (writ of habeas corpus); and (6) protection against cruel and unusual punishment. There are other rights also.

Why do we protect criminal defendants far more than any other country? Should we?

Today, however, some conservatives agree with liberals that the federal government has gone too far in expanding its criminal power. The Patriot Act was passed to combat terrorism, but it has now been used to investigate non-terrorists also. Almost no conservative is concerned about suspected terrorists in Guantanamo Bay, but conservatives are worried about abuse of federal powers against American citizens. President Bill Clinton’s White House was found to have top secret FBI files on his political opponents. Do we want a future president to be able to prosecute his adversaries? Do we want to allow even the chance of that? The Constitution only allows a few federal crimes, like treason or misconduct on the high seas.

Amendments 11-27

While we focus on the Bill of Rights (Amendments I through X), there are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Among these the most important are the 14th and 15th Amendments, which were passed as a result of the Civil War, the 17th Amendment, which established for the direct election of U.S. Senators by the people, and the 22nd Amendment, which places a "term limit" of ordinarily two terms on a president.

14th Amendment

The 14th Amendment is a broadly worded and expansively interpreted amendment that has been used by the U.S. Supreme Court to invent new "rights", such as abortion. The 14th Amendment was originally intended to end discrimination against African Americans after the Civil War. But then the U.S. Supreme Court used it to "incorporate" the Bill of Rights and apply them against state laws ("incorporation doctrine"). Then, beginning with the liberal "Warren Court" (led by Chief Justice Earl Warren), the U.S. Supreme Court began using the 14th Amendment to create new rights never before thought to be in the U.S. Constitution. The Warren Court ended when Chief Justice Earl Warren retired in 1969, but its decisions provided the basis for Roe v. Wade on January 22, 1973, which created a new constitutional "right" to abortion nationwide. The March for Life has been held in D.C. every year since in protest against that ruling.

The 14th Amendment applies in many areas other than abortion. It creates rights of "due process" when dealing with government, which (for example) interferes with the ability of a school district to fire a bad public school teacher. Under the 14th Amendment, whenever government does anything against an individual, it must provide basic elements of due process.

What is "due process"? It means, most fundamentally, the right to advance notice of an action the government is going to take against you, and an opportunity to be heard in order to object to that action. For example, if government is going to try to take your property away from you (as in "eminent domain," when it takes private property to build a new highway), then it must give you advance notice and an opportunity to be heard against the idea. The Fifth Amendment requires the government to pay you "just compensation" if it does take your property.

15th Amendment

The 15th Amendment ensures the right of everyone to vote, no matter what their race or ethnicity is (the 19th Amendment extended that right to all women). This 15th Amendment has been interpreted to prohibit any "literacy tests" (exams to see if someone can read a ballot) as a pre-condition of the right to vote.

17th Amendment

When the U.S. Constitution was ratified and all through the 1800s, state legislators selected the U.S. Senators who would represent them. But the 17th Amendment shifted that power to the people, in direct elections, as part of the "progressive movement" that increased the level of democracy in the United States.

22nd Amendment

President George Washington set the "precedent" (an example that is so strong that it is rule) that American presidents should stay in office for only two terms, and then resign so that power can shift to someone new. But Democrat Franklin Delano Roosevelt, hungry for power, broke the precedent and was elected to four terms, eventually dying in office from an illness. Within years the Republican-controlled Congress passed term limits for the office of president, prohibiting a president who has served two full terms from being elected again. This prevents a president from trying to grab too much power for too long.

Quiz

This week the assignment will be to take the fourth quiz, which will be emailed to you.