American Government Lecture Three

<Under development - will complete by Sept. 20>

Constitution Day is on September 17th each year, to celebrate the "Framers" who signed the U.S. Constitution at the completion of the Constitutional Convention on September 17, 1787.Land These Framers were led by George Washington, who presided over the convention, and included Alexander Hamilton, James Madison, Benjamin Franklin, Roger Sherman and, from New Jersey, William Livingston and William Paterson. Note that John Adams and Thomas Jefferson were not part of the Constitutional Convention and never signed the Constitution, because they were away representing the United States to foreign nations at the time (in England and France, respectively). Indeed, this entire week, from September 17 through 23, is "Constitution Week."

The U.S. Constitution did not become law immediately on Constitution Day. Instead, it was sent to the 13 former colonies to consider replacing the Articles of Confederation that were governing them at the time. Vigorous debate between the "Federalists" (led by Alexander Hamilton and James Madison) and the "Anti-Federalists" (led by Patrick Henry and George Mason) ensued, with the Federalists favoring ratification of the U.S. Constitution and the Anti-Federalists opposing it. The Federalists wrote "The Federalist Papers" anonymously as a series of articles in a leading New York newspaper to urge ratification by the large state of New York, which was pivotal to formation of the new United States under the U.S. Constitution. Today the "Federalist Papers" are used as "legislative history" in interpreting what the U.S. Constitution really means.

Note the reference to "U.S." in "U.S. Constitution." Every state also has its own State Constitution. In New Jersey our State Constitution gave the people the power to recall congressmen from office, until the N.J. Supreme Court held, in a case argued by your instructor, that the U.S. Constitution prohibits recalling congressmen. Under the Supremacy Clause of the U.S. Constitution, it takes priority and preempts any state law that is contrary to it.

This year there were commemorations of Constitution Day around the nation, often led by congressmen. Why? Because the U.S. Constitution is the longest governing document in the world, and the single biggest reason for the greatest prosperity this world has ever known: the United States of America.

The "Media"

"The media is what really runs this country" is a phrase you may have heard more than once. The "media" refers to the small group of people to decide what appears on television and in newspapers, and to a lesser extent radio. The internet is not considered part of the "mainstream media," because the internet is not controlled by a small group of people as television and newspapers are.

The "media", strictly speaking, is a plural term but it is often used in the singular, as in "the media tells most Americans what to think." Critics of the media view it as a single entity, though it includes several different news channels and about a half-dozen major newspapers.

Most politicians spend much of each day worrying and wondering what the media will say about them. The media forced President Nixon to resign in 1973; the media have incited wars such as the Spanish American War; and the media completely destroyed the credibility of certain elected officials such as Vice President Dan Quayle.

The media can make enormous differences in the success or failure of businesses, entertainers, and even some sports athletes. Many people hire "publicists" to create positive media stories about them.

A politician disliked by the media has a difficult time winning an election, while a politician promoted by the media is likely to win. When virtually every major newspaper endorsed Democrat Jim McGreevey for governor of New Jersey in 2001, then he easily defeated the more conservative, and better qualified, pro-life Republican Bret Schundler. Why did New Jersey newspapers prefer McGreevey? Because newspapers have liberal positions on issues like abortion and marriage, and McGreevey had those liberal views. Later, after election, McGreevey abruptly resigned from office, but the media never admitted it made a mistake.

The growing use of the internet is reducing the influence of television and newspapers. Each year many American families are disconnecting their televisions, and many newspapers have been going bankrupt. In another ten or twenty years newspapers may have lost their influences, and television may be much weaker in influence also.

Elections to the House of Representatives (congressmen) are the least influenced by the media, because there 435 different districts, too many for the centralized media to focus on. Elections to the U.S. Senate and the presidency are strongly influenced by the media. Accordingly, it is not surprising that elected congressmen tend to be more conservative than elected senators and presidents.

"All Issues Are Political Issues"

George Orwell, the author of Animal Farm and 1984, famously observed that "all issues are political issues." The comment was not intended to be a compliment, but instead a recognition of political decisions made in this world really are.

Politics pervades government, and extends far beyond. Many people are hired and fired from jobs for political, in a broad sense of the word, reasons. The president of Chick-fil-A took a stand in support of traditional marriage, and a political controversy resulted that caused some to avoid going there, while others went there in a show of support.

The U.S. Constitution, and before it the Articles of Confederation, resolved only very basic issues. On a daily basis there are politically motivated attempts to interpret and apply the U.S. Constitution in different ways, or even ignore it entirely. As Benjamin Franklin said at the conclusion of the Constitutional Convention, when questioned by the public as he left Independence Hall, the new U.S. Constitution establishes "a republic, if you can keep it." The struggle for the values on which the United States was founded is ongoing and never complete.

Too many people, unfortunately, do not understand how important politics is in dealing with government. They expect legislators and government officials to "do what's right," not understanding that politicians are going to "do what helps them get reelected," and not do anything that might cause him to be defeated. Presidents, for example, have a constitutional right to pardon unjustly convicted or unjustly published criminal defendants, but grant pardons infrequently because they can be hurtful politically. An exception is when the president is about to leave office as President Clinton was in January 2001, when he granted many dozens of pardons in his final few hours in office, some to political supporters.

Politicians are particularly sensitive to political issues that may be used by the media to help or hurt their popularity. After there was publicity and attention from politically powerful Second Amendment groups (the Second Amendment protects the right to keep and bear arms - guns) about how a man ( Brian Aitken) was sentenced to seven years in jail merely for peacefully having a gun in the trunk of his car as he moved to New Jersey, NJ Governor Chris Christie commuted his sentence and ordered his release from jail. That issue because a political issue, and the political power of those on the side of the Second Amendment resulted in Christie's decision.

Some might think that politics does not influence many areas of life. But even professional sports, which is supposed to be based entirely on merit, is influenced by politics. A Greek Olympic athlete was excluded by her nation from competing for her team because of a political statement she made on Twitter, despite how she had trained for years and qualified to compete in the 2012 Summer Olympics. As another example, outspoken Christian Tim Tebow, who defeated the mighty Pittsburgh Steelers in the first round last year, was traded to the New York Jets, which has a more liberal media market. In Sunday's game between the Jets and Steelers, Tim Tebow was abruptly pulled out of the game despite doing better than the other quarterback. The Jets lost 27-10 without Tebow being allowed to throw a single pass, to a team that Tebow had defeated 8 months earlier. But others would say politics has nothing to do with this, and that Tebow cannot throw a football as well as the other quarterback.

Politics affects far more than government. Almost everything seen in the media is influenced by behind-the-scenes political considerations, and many endeavors (including even professional sports) depend on the media for success or failure. The moral is not to back down from your principles, but to be aware how politics does distort almost everything in the "public square," including even business.

Articles of Confederation

The U.S. Constitution replaced the Articles of Confederation, which were unsuccessful in uniting the colonies after the American Revolution. The Articles of Confederation, which did create the United States, had these defects:

• no president with the modern powers of the office
• no national court system
• no limits on states taxing goods received from businesses in other states (interstate commerce)
• no practical way to amend the document (unanimous consent, which is very difficult to achieve, was required)
• no way for Congress to raise money except by voluntary donations by the states
• no way to stop states having ports, like Rhode Island, from taxing imports
• no way to put down rebellions, like Shay's Rebellion

The Articles of Confederation, were too weak to be successful. During the 1780s when the Articles of Confederation were in place, only two laws of significance passed: the Land Ordinance of 1785 (an successful law for selling government land at an expensive price to the public) and the Northwest Ordinance of 1787 (a successful law that established rules for settling and forming states of the territory northwest to the colonies, resulting in the eventual formation of Ohio, Indiana, Illinois, Michigan, and Wisconsin). Query: how many of the states in the northwest territory are "swing states" in the upcoming presidential election?

Schooling

The different sections of the newly formed United States had very different approaches to schooling children. In Puritan New England, public schools were established and attendance was compulsory as a way of trying to combat evil and promote good. Those public schools were very Christian. In contrast, the southern colonies had almost no compulsory schooling, and the farms relied on the apprentice system, much as Amish communities in Pennsylvania and Ohio do today. In the middle colonies (now states), such as Maryland, there were many religious schools.

The Land Ordinance of 1785 was enacted under the Articles of Confederation (before the U.S. Constitution was written and ratified), and it required new townships to set aside land for public schools.

Many, perhaps most, of the great Americans over the years were homeschooled, such as Abraham Lincoln and Thomas Edison.

Federal Judiciary

Article III of the U.S. Constitution establishes the United States Supreme Court and authorizes Congress to create lower federal courts as part of a national court system. One of the first Acts passed by the new Congress in 1789, after the U.S. Constitution was ratified, was the Judiciary Act to create the federal court system. President George Washington signed this bill, officially entitled "An Act to Establish the Judicial Courts of the United States," into law on September 24, 1789. This law also established the office of Attorney General in the Executive branch, within the Department of Justice, to enforce the federal laws in the federal court system.

Congress has amended this law many times over the 223 years since it was first passed, but the basic structure of the federal court system remains largely the same.

The basic structure of the federal judiciary is three levels:

• U.S. Supreme Court
• Courts of Appeals
• District Courts

A typical case begins at the local district court level, then goes on appeal to the Court of Appeals that supervises that district court. After the Court of Appeals renders a decision, the losing party can petition the U.S. Supreme Court for its review of the decision. The U.S. Supreme Court accepts only 1% of the requests for it to review case, and it renders about 75 decisions a year out of tens of thousands of decisions rendered by the other federal courts each year.

U.S. Supreme Court

Today there are nine members of the U.S. Supreme Court (that number has varied in prior centuries). It's an odd rather than even number so that tie votes are very rare.

One of the most important presidential powers is to appoint a new Justice to the U.S. Supreme Court, when there is a vacancy. The U.S. Constitution provides that such appointment must be based on the "Advice and Consent" of the Senate, which means that "confirmation" by a majority vote of the Senate is also required. U.S. Const. Art II, Sec. 2, Cl. 2 (The President "by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court ....").

The U.S. Supreme Court decides whether to grant petitions for certiorari ("cert."), which means that it will hear the case, based on the "Rule of Four." The Rule of Four is simply this: if 4 out of the 9 Supreme Court Justices vote to hear a case, then the petition for cert. is granted and the Supreme Court schedules the case for a full argument by both sides and a decision on the merits of the case by the Court.

This Supreme Court "grants cert." and hears about 75 cases each year, which is only about 1% of the cases brought before on petitions. Nearly all the cases are on appeal from a U.S. Court of Appeals; a few are on appeal from state courts, such as a state Supreme Court.

The U.S. Supreme Court uses two criteria in deciding whether to "grant cert." and hear the appeal:

• is there a conflict between courts in different parts of the Nation that the Court needs to resolve?
• is the issue of immense national interest that the Court needs to decide?

The first reason -- a conflict between courts in different parts of the Nation -- is known as a "Circuit split." Each U.S. Court of Appeals is a numbered Circuit, as discussed below, and when they disagree on an issue and render conflicting decisions, then the U.S. Supreme Court likes to accept one of the cases to establish what the rule of law will be for that issue.

For example, if the U.S. Court of Appeals for the Third Circuit (which includes New Jersey) ruled that a search warrant is needed under the Fourth Amendment before police can search the trunk of someone's car, but the U.S. Court of Appeals for the Second Circuit (which includes New York) ruled that cops can search the trunk of someone's car without obtaining a search warrant, then the U.S. Supreme Court would "grant cert." on appeal from one of the two cases in order to establish a national, uniform rule concerning whether a search warrant is needed or not.

Unfortunately, many of the legal issues decided by the U.S. Supreme Court are more obscure than the above example. Among the 75 cases decided each year by this Court, only about 5-10 of them are recognizable to the general public.

One of the more interesting cases, in which your instructor was involved, was whether violent video games should receive protection as free speech under the First Amendment. Even though there was no "Circuit split" on this issue, your instructor filed a brief with the U.S. Supreme Court urging it to consider the issue due to its national importance. Millions of teenagers waste their lives playing hundreds of hours of video games each year, many of them extremely violent.

The Court heard oral argument from the State of California, which had passed a law limiting the sale of violent video games to children, on Election Day 2010 (the timing was a coincident, but shows how the Court operates independent from elections). It took the Court longer to decide this case than any other issue that "Term" (the Court term lasts from October through June of the following year, before adjourning for the summer). Finally, on June 27, 2011, the U.S. Supreme Court announced its decision: 5 out of the 9 Justices, a slim majority, held that violent video games are protected as free speech under the First Amendment, even with respect to their sale to children, and no law can limit their sale or rentals to children. Do you agree?

Your instructor was immediately asked by USA Today to write an editorial about the decision, which it then published.

Court of Appeals

There are 13 U.S. Courts of Appeals:

• U.S. Court of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico)
• U.S. Court of Appeals for the Second Circuit (Vermont, Connecticut and New York)
• U.S. Court of Appeals for the Third Circuit (New Jersey, Pennsylvania and Delaware)
• U.S. Court of Appeals for the Fourth Circuit (Virginia, West Virginia and North and South Carolina)
• U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi)
• U.S. Court of Appeals for the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee)
• U.S. Court of Appeals for the Seventh Circuit (Indiana, Illinois, Wisconsin)
• U.S. Court of Appeals for the Eighth Circuit (Arkansas, Nebraska, Missouri, Iowa and Minnesota)
• U.S. Court of Appeals for the Ninth Circuit (by far the largest Circuit, this includes numerous western states, including California and Arizona)
• U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma, Utah, New Mexico and Wyoming)
• U.S. Court of Appeals for the Eleventh Circuit (Alabama, Georgia, and Florida)
• U.S. Court of Appeals for the D.C. Circuit (appeals from federal court in D.C.)
• U.S. Court of Appeals for the Federal Circuit (patent issues and claims against the U.S.)

State Courts

<elected or non-elected judges>

Review of the Process

"Audit the Fed" and independent agencies.

<write about the Judicial branch and the different views of interpreting the Constitution>

Strict constructionalism.

Appointment and confirmation process.

Court system, federal and state. The process on appeal.

Amending the constitution

There are three branches of government: legislative, executive and judicial. Last week we learned about the legislative branch, which for the United States (federal) government is Congress. This week we learn about the executive branch.

The top official in the executive branch is the president. He is mentioned on the news more than anyone else, not because he is necessarily the most influential, but because it is easiest for news sources to put one reporter and one camera outside the White House (his home) to speculate about what the president thinks, or what he is going to do about something, or why the executive branch made a particular decision, and it easiest to refer to the entire executive branch as the "[president's name] Administration" regardless of whether the president has any involvement in the issue. It is far more difficult (and more expensive) for the media to report on and explain what Congress is doing, and even harder still to describe an important case being decided by the Supreme Court. The Supreme Court has nine people who jointly make decisions, and it does not help television ratings to place all nine pictures on the screen!

The president is not a king. His powers are limited and enumerated. He lacks a special title, and is called simply “Mr. President.” Under the 22nd Amendment, the President of the United States of America|president may not be elected more than two terms. But often a president serves only one term, and is defeated for reelection (examples include Jimmy Carter and the first President Bush, George H.W. Bush).

The president is often, but not always, the leader of his own political party which nominates him. Certainly his approval rating (the percentage of Americans who approve of the job he is doing) affects the positions and fortunes of his entire political party. If his party is in control of Congress, then the president can exert enormous influence over it. If the opposing political party controls Congress, then it devotes its time to opposing his policies as much as possible. Either way, the political party of the president controls the political agenda.

Beyond politics, historians debate how much influence a president really has over the nation. But the president his is held responsible regardless of whether he is at fault. When Iranian students captured the U.S. Embassy in 1979 and held American diplomats hostage for a year, president Jimmy Carter was held responsible. Was it his fault? Voters held him responsible and 60% voted against him in the next election.

Economists say that the outcome of every presidential election can be predicted by how well the economy is doing on Election Day. Can the president control the economy? Not completely, but he can have an influence. Voters typically reelect him if the economy is doing well, but elect someone else if it is doing poorly.

Homework

Answer the first five questions, and then two of the remaining three:

1. Describe the three levels of the federal court system, including where a federal case begins and were, in most cases, its final appeal is decided with a full opinion.
2. What is the Rule of Four?
3. Are federal judges elected? Should they be?
4. Give an example of a non-Article III judge, and explain what that term means.
5. Discuss the influence of the media on politics.
6.
7. "All issues are political issues" - George Orwell. Do you think this can be true even for sports or other businesses? Explain.
8. Explain why the U.S. Supreme Court "granted cert." in the violent video game case, and what its final decision on the issue was.

Extra credit (answer two of the following four questions):

9. Recently Apple won a billion-dollar patent case in federal district court in California against Samsung based on claims that Samsung had copied the iPhone. Which court would handle this appeal? (Think about this question carefully before answering.)
10. Where is the pardon power in the U.S. Constitution (include section and clause numbers), and upon whom does it confer the power to pardon? Was Governor Chris Christie acting pursuant to this power when he commuted Aitken's sentence? Explain.
11.
12.

You can post your answers at American Government Homework Three.