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| | == "federalism" == | | == "federalism" == |
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| | + | 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. |
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| | + | 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. |
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| | + | So at least with respect to homeschooling, Justice Kennedy's observation seems correct: "freedom was enhanced by the creation of two governments, not one." |
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| − | We take another look at the U.S. Constitution this week, including the most important U.S. Supreme Court decisions over the last 220+ years that have interpreted it.
| + | == Bill of Rights == |
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| | 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. | | 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. |
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| | *the free speech clause, which is used by both sides of the political spectrum | | *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": | | *other freedoms, such as freedom of the press, the right to assemble, the right to petition government, and the implied "freedom of association": |
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| | + | Please keep in mind that 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. |
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| | 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) | | 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) |
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| | There are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Let's consider them next. | | There are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Let's consider them next. |
| − | This class contains many of the most publicized and controversial issues of the entire course. As the 10th out of 15th lectures, now is a good time to address these topics. After today you will have a long Thanksgiving break to think about them.
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| − | The Establishment Clause is often in the media as the [[ACLU]] and other groups hostile to [[Christianity]] attempt to censor it from public property, including [[public schools]].
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| − | [[Free speech]] is often in the news as the Supreme Court has considered and decided issues ranging from the constitutionality of regulations to limit political contributions and expenditures to whether [[public school]]s can prohibit certain speech or expression by students.
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| − | The rights of criminal defendants has also been in the news as the Supreme Court has repeatedly accepted appeals by inmates at Guantanamo Bay, who have been held for over six years without a trial and are being denied access to American courts.
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| − | Gender equality is in the news in the fight over [[Title IX]] and college sports. I have written and filed an [[amicus curiae]] brief on this matter before the [[D.C. Circuit]]. I will explain further below.
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| − | There are two other issues that will have to wait until the next lecture: abortion and racial equality. Both issues have had enormous impact on American politics. [[Abortion]] has been influential since 1973, when Roe v. Wade invented a constitutional right to abortion. Many voters decide who to vote based on it, and the pro-abortion media distorts its coverage of candidates based on their views on this single issue.
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| − | Race has been controversial from the very beginning of our country, right through the Civil War until the present day.
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| − | These topics – religion, speech, criminal defendants, abortion, race and gender – are the focus of most political and legal controversies. They decide elections and the course of our country. An individual can spend an entire career focusing on any one of them.
| + | == Amendments 11-27 == |
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| | ==The Establishment Clause== | | ==The Establishment Clause== |