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| | Do not worry if you have trouble understanding the above. All you need to know is this: '''''In Marbury v. Madison, the U.S. Supreme Court gave itself the power of "judicial review," which is the power to declare as unconstitutional laws passed by Congress and signed by the president'''''. | | Do not worry if you have trouble understanding the above. All you need to know is this: '''''In Marbury v. Madison, the U.S. Supreme Court gave itself the power of "judicial review," which is the power to declare as unconstitutional laws passed by Congress and signed by the president'''''. |
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| − | 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 you 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. | + | 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 you to be on my team ... because I want to hog the ball and I want lousy teammates who won't complain." 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. |
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| − | Jefferson was not shy about applying a "check and balance" to the courts if he lost. After all, it was Jefferson who supported the impeachment of U.S. Supreme Court Samuel Chase by the House of Representatives, and unsuccessfully sought his removal by the U.S. Senate. | + | Jefferson was not shy about applying a "check and balance" to the courts if he lost. After all, it was Jefferson who supported the impeachment of U.S. Supreme Court Samuel Chase by the U.S. House of Representatives, and unsuccessfully sought his removal by the U.S. Senate. |
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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. | + | 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 because the existence of state governments serve as a buffer which limits how big and intrusive the federal government can grow. |
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| − | The term "federalism" is difficult for many students to fully understand, because different variations of the terms are used to mean different things, depending on the contest. Here are examples: | + | The term "federalism" is difficult for many students to fully understand, because different variations of the term are used to mean different things, depending on the context. Here are examples: |
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| − | *"federal government"="national government," or "United States" | + | *"federal government" = "national government" = "United States" |
| − | *"Federalist Papers"=a collection of essays in 1787-88 supporting ratification of the U.S. Constitution | + | *"Federalist Papers" = a collection of essays in 1787-1788 explaining and supporting ratification of the U.S. Constitution |
| − | *"Federalist Party"=a political party from 1796-1815 which supported a strong national government | + | *"Federalist Party" = a political party from 1796-1815 which supported a strong national government |
| − | *"Federal Express"=a private company that delivers packages quickly; it has no connection with the federal government | + | *"Federal Express" = a private company that delivers packages quickly; it has no connection with the federal government |
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| | Notice how the term "federalism" has a meaning different from all of the above: | | Notice how the term "federalism" has a meaning different from all of the above: |
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| − | *"federalism"=a collection of both state governments and a national government | + | *"federalism" = a collection of state governments and a national government |
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| − | Indeed, '''''when the term "federalism" is used today, it is used to emphasize the importance of preserving the role for state governments, and for limiting the power of the federal (national) government in order to make room for the state governments'''''.
| + | '''''When the term "federalism" is used today, it means state governments co-existing with the federal (national) government'''''. |
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| − | Whether Justice Kennedy is correct in claiming that "federalism" enhances individual freedom is 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 U.S. Constitution and 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 respects the role of the states and thus has not not tried to regulate homeschooling. 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 from states that do that became an obstacle. New Jersey public school teachers gave up on its plan because they did not want to lose the federal money. The result was more freedom for homeschooling, due to the federalism. | + | Whether Justice Kennedy was correct in claiming that "federalism" enhances individual freedom is 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 U.S. Constitution and the creation of the United States -- does seem to protect liberty and freedom. |
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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." | + | An example is homeschooling, which is within the exclusive domain of state government. Congress respects the role of the states and thus has not tried to regulate homeschooling. When New Jersey tried to force homeschoolers to take the same tests that are given in public schools, a federal law requiring the withholding of federal money from States if do that became an obstacle. New Jersey public school teachers gave up on their plan to force homeschoolers to take their tests because the teachers did not want to lose the federal money. The result was more freedom for homeschooling New Jersey '''''because of federalism'''''. |
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| | + | So at least with respect to homeschooling, Justice Kennedy's observation is correct: "freedom was enhanced by the creation of two governments, not one." |
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| | == Bill of Rights == | | == 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 is a close second. |
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| | In review, the First Amendment includes: | | In review, the First Amendment includes: |
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| | *the Establishment Clause, which is used by atheists to prohibit classroom prayer and religious symbols on government property | | *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 | | *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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| − | 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 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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| | Among the other Bill of Rights, the most important are: | | Among the other Bill of Rights, the most important are: |
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| | *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 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 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 Eighth Amendment, which prohibits cruel and unusual punishment, such as torture and some forms of the death penalty |
| | *the Tenth Amendment, which protects the rights of the States and the people except when powers are expressly given to the federal (national) government | | *the Tenth Amendment, which protects the rights of the States and the people except when powers are expressly given to the federal (national) government |
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| − | The Fifth Amendment, in addition to protecting criminal defendants, also has provisions for all Americans that protect them against violation of their rights without "due process of law" (explained more below). The Fifth Amendment further protects everyone against government taking their property without giving "just compensation" for what the property is worth. "Eminent domain" is when government takes someone's home and land in order to build a highway or government building, but the Fifth Amendment requires government to pay the owner the value of his property in those situations. | + | The Fifth Amendment, in addition to protecting criminal defendants, also has provisions for all Americans which protect us against violation of our rights without "due process of law" (explained more below). The Fifth Amendment further protects everyone against government taking our property without giving the property owner "just compensation" for what the property is worth. "Eminent domain" is when government takes someone's land in order to build a highway or government building, but the Fifth Amendment requires government to pay the owner the value of his property in those situations. |
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| − | Next let's now explain in greater detail the most controversial provisions in the Bill of Rights mentioned above. | + | Next let's now review in greater detail the most controversial provisions in the Bill of Rights mentioned above. |
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| | ===Establishment Clause=== | | ===Establishment Clause=== |