GUARANTEED FREEDOM OR YOUR MONEY BACK!

Transcription

1 American Government Semester 1, Chapter 2 GUARANTEED FREEDOM OR YOUR MONEY BACK! Well sort of Governmental Powers and Limits of the New Nation One of the trickiest parts of establishing the government of this nation was figuring out how much power the government should and shouldn t have. A major question that faced the new nation was: How do we maintain a central government that can stand up to outside threats without compromising freedoms that we fought so hard to establish? By the way, the issue of government s compromising individual freedoms is still a major topic. We know that our government is a Federal system of government. This means that we have a written constitution that divides the powers of government on a territorial basis. There is a central, or national government and several regional, or local, governments. Each level of government has its own powers, operates its own agencies, and acts upon the people through its own officials and laws. Maybe one reason why this seemed to work so well is that most of the states were admitted to the Union after spending time as an organized territory of their own. 1

2 Our National Government is a government of delegated powers. Essentially, we gave the government its powers. These powers can be divided up into 3 groups: expressed powers, implied powers and inherent powers. Expressed powers are those that are literally written out in the Constitution. Implied powers are those that are not expressly stated in the Constitution, but may be reasonably inferred from the expressed powers. (We ll get into an example of implied powers in a little bit.) Inherent powers are also not expressly stated, but they belong to the National Government as the national government of a sovereign state. These powers are what national governments have historically possessed. A good way to think of inherent powers is that they re powers that exist as a consequence of other conditions; they lie within the meaning of fundamental concepts and ideas. (Like sovereignty.) Examples of expressed powers are the abilities to declare war, issue patents, coin money, regulate foreign commerce and maintain armed forces. An example of inherent power is the National Government s ability to give diplomatic recognition to China. The National Government has other powers, like the power to fix standards of weights and measurements and the power to regulate immigration. What category do you think these powers fall under? Within the National Government, the separate branches of government have their own set of powers. For instance, Congress has the power to admit new states to the Union. The Supreme Court has the power to interpret the Constitution in order to make decisions about court cases and is often called the umpire in the American federal system. The Constitution allows some powers to the state, separate of its union with the Federal Government. For example, the State is allowed to lay and collect taxes of its own. (If you have a job, you probably already know this. Look at your next pay stub and you ll see separate deductions for state and federal taxes. Sorry.) Any power that belongs to both the National and State Governments are called concurrent, whereas any power belonging to only the National Government is called an exclusive power. This doesn t mean, however, that the state can do everything that the federal government does. Whenever a state law is in conflict with a federal law, the federal law 2

3 takes precedence (must be obeyed). But whenever the provisions of an act of Congress and the provisions of a treaty are in conflict, the one more recently made takes precedence. The Constitution says about the state s powers: The powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively. Seems like they get the leftovers, huh? These powers are called reserved powers. Divided powers are those powers that are divided among the National Government and state government. States also have the power to enter into interstate compacts among themselves. The Constitution does give every state the guarantee of a republican, or representative, form of government. States can receive free money from the Federal government in the form of a block grant. (Any slice of the federal aid pie is a grant.) And any citizen living in any state can enjoy the same privileges and immunities of the several states. The Federal government does have limits on its powers. The biggest example of how the government is limited is the system by which it actually limits itself: checks and balances. (We talked about this in the last chapter.) A specific limitation of National Government s power is that it s forbidden to tax exports. LAWS They affect us every day, yet we rarely stop to think about them. We usually abide by them though sometimes we break the smaller ones. (Have you run a red light lately?) Maybe you think of laws as an old stack of leather bound books, collecting dust on a shelf somewhere in the White House. Actually, laws are in constant motion, whether in the courts, on the streets or in 3

4 Congress. They re revised, applied, written or interpreted somewhere in the U.S. every single day. (This is a picture of the signing of the U.S. Constitution. Nice hairdos, huh?) Let s first talk about the first ten amendments to the Constitution, the Bill of Rights. The Bill of Rights were originally intended as restrictions against the new National Government only. (However, the state constitutions guaranteed individual rights before they were listed in the national Bill of Rights.) A listing of individual rights was very important to the states. You will more than likely be familiar with a lot of them. A discussion about U.S. law is almost impossible without an awareness of them. CLICK HERE TO SEE THE BILL OF RIGHTS: Transcription: The Bill of Rights 4

5 The guarantees of the freedoms above are ONLY guaranteed up to the point that you are not causing harm to others. Sometimes that line is clear, but most of the time, it s not. This is what the Supreme Court wrestles with. It s a misconception that any of the guarantees listed in the Bill of Rights are absolute and that freedom means that anyone can simply do as they please. We may not live in a dictatorial society, but we give our government the right to have and use authority over us. Responsibility and accountability are a major part of our free society, and courts have consistently upheld the right of government to curtail certain actions by individuals in the interests of society. The Supreme Court has developed ways to determine the boundaries of our freedoms. In deciding cases involving laws that punish sedition, which is the incitement of rebellion against government, the Supreme Court has developed the clear and present danger rule. It s self-explanatory: in order for sedition to be charged there has to be proof of clear and present danger. For instance, if you and a bunch of your friends are against your tax money funding nuclear weapons research, you can sit outside any government building you wish in protest. Ways that you could protest would be to voice your opinions and carry signs all OK under the law. You could also protest through symbolic speech, which would be any form of protest that didn t involve the speech or print. BUT if you all want to go the home of your representative and petition on his or her doorstep, your right to assembly and petition will no longer be protected. You ve infringed on someone else by trespassing on private property. This is a huge source of controversy for people with strong beliefs, and it can be a slippery subject to grasp. Another touchy one is freedom of religion, protected against both the National Government and the states by both the 1 st and 14 th Amendments. The Establishment Clause (we ll talk more about clauses in just a minute) sets up a separation of church and state, not allowing any organized religion to impose their views on public schools. This is because the 1 st Amendment allows for two parallel freedoms with regard to religion, both the freedom of individual expression and the freedom from having freedom imposed on you. It s important to understand that with this 5

6 freedom you have both an absolute right and a relative right. Your absolute right is to believe whatever you choose. Your relative right has to do with expression. No person may violate the criminal laws, offend the public morals, or otherwise threaten the health, welfare or safety of the community in the observance of his or her religion. You are allowed to pray in public schools, but you are not allowed to make someone else pray in a public school. There has never been any distinction made between colleges and public schools on this matter. And there is no prohibition on studying the Bible in a historical or literary text in a public school. Censorship of spoken or written words before they have been expressed is prior restraint. Technically, government is not allowed to do this. However, if person A says something that is later found out to have damaged person B s reputation, person A will be sued for slander. With the freedom of speech comes a lot of personal responsibility. With the freedom of the press, shield laws grant reporters some protection against having to reveal their sources. The idea is that the press keeps the public informed in an honest manner, and the government can t infringe on the right of the people to have accurate information about public matters. When reporters are building stories, which are frequently written in the inverted pyramid style*, they have to be true to the bond of trust they have with their sources. Out of all forms of communication, broadcasting companies receive the most limited 1 st Amendment protection. (Maybe the government feels more threatened by the spoken word, rather than the written. What do you think?) The 2 nd Amendment was added to the Constitution to protect each state s right to keep a militia. A major point of contention with those who believe the 2 nd Amendment protects an individual s right to keep and bear arms. 6

7 CIVIL RIGHTS The guarantee of civil rights is one of the major elements of America s English heritage. Here are the civil rights outlined in the 5 th amendment as protection against the National Government: 1 No criminal prosecution but upon grand jury action 2 No double jeopardy (like in the movie with Morgan Freeman and Ashley Judd) 3 No compulsory self-incrimination 4 No persons to be deprived of life, liberty, property, without due process of the law Below are just some of the civil rights provided for by the 14 th Amendment against the state and local government: 1 No denial of privileges and immunities of citizens of other states. 2 No denial of equal protection of the laws. 3 No person to be deprived of life, liberty, property, without due process of the law (Sound familiar?) 4 Guarantees of freedom of religion, speech, and press and the right of peaceable assembly and petition 5 No cruel and unusual punishment TO LEARN MORE ABOUT AMENDMENTS 11 through 27 CLICK ON THE LINK The Constitution: Amendments TO LEARN MORE ABOUT YOUR CIVIL RIGHTS, CLICK ON THIS LINK FOR The American Civil Liberties Union ACLU: American Civil Liberties Union 7

8 Clauses A clause is something that makes a distinct provision within a law. I m sure you ve heard of a few, even if you can t recall them. For instance, The Full Faith and Credit Clause allows any legal marriage to be recognized in all states, regardless of where you got married. (So even if you got married in Kansas, you re still legally married in all other 49 states instantly.) Here are some more: Due Process Clause The courts realized the importance of due process around the late 1800s. There are 2 types of due process, found in the 5 th and the 14 th Amendments: (1) procedural due process means that government in all it does must act fairly and use fair procedures. It answers the question: How does government action take place? (2) substantive due process means that both the ways in which government acts and the laws under which it acts must be fair. It answers the question: What does government use when taking action? Example of substantive due process: a total ban on private schools would likely be struck down in court as a violation of this. The Supreme Court s application of the 14 th Amendment Due Process Clause has nationalized most of the basic guarantees in the Bill of Rights. Although it s important to note that the Constitution does not explicitly guarantee due process. Whether or not due process always works is another discussion. The answer is, of course, no, it doesn t always work in guaranteeing fair and equal treatment to all persons. Supremacy Clause It states that This Constitution shall be the supreme law of the land. That s about as straightforward as it gets. The Necessary and Proper Clause, A.K.A. The Elastic Clause This clause provides for Congress to have the implied power to make laws which shall be necessary and proper through a power that is expressed. It s more easily understood through an example. Congress has prohibited 8

9 racial discrimination in access to such places as restaurants, theaters, hotels and motels because of its expressed power to regulate foreign and interstate commerce. While the Constitution didn t directly provide for Congress to make those decisions, the expressed power implies all of these other things are illegal, too. It s like the expressed powers are an umbrella over all of the implied powers. Crime and Laws One thing that makes our court system so unique is that in any trial, the burden of proof is on the prosecution. This allows the accused to remain presumably innocent until proven guilty by fair and lawful means. Our court system stands as the government s major guardian of individual rights. Is this a good thing? When it works, yes. But how many times have we seen high profile cases where the public has already decided the verdict? This happens frequently, and the media is usually to blame. (Although we can also blame ourselves if we bought into forming our own opinions before hand!) At any rate, these protections are provided for in the Amendments 5, 14 and 6. (The 6 th Amendment guarantees the right to counsel in criminal cases.) Other facts you should know about crime and the law *Grand juries can make presentments. *For an arrest to be lawful, police must have either a warrant or probable cause. Also, under the Miranda rule, suspects must be informed of their constitutional rights before police questioning. *A law changing the penalty for a crime, applied after a person has been convicted of the crime, is an ex post facto law. *Bills of attainder are legislative acts inflicting punishment without a court trial. The Constitution forbids Congress and the states to pass such laws. *The practice of extradition, which is the surrender of an alleged fugitive by one nation or authority to another, is referred to directly by the Constitution. 9

10 Constitutionality and Laws The Supreme Court s job is to determine constitutionality. That just means they have to answer questions regarding whether situations brought before them violate the Constitution or not. That s an easy explanation for a very difficult job. Especially since we can see from the Bill of Rights how open the language is to interpretation. In the past, they have upheld the constitutionality of all of the following: daily prayers in State legislatures, the use of public funds to supply textbooks to parochial school (which makes some people angry), and tax-supported busing of students to parochial schools. But in order to be constitutional, a state s parochial-school-aid laws must meet the excessive entanglement standard. The Constitution also allows tax exemption for churches and does not prohibit a minister from holding an elected office. Those who oppose parochial schools argue that public schools play an important role in bringing pupils of various religious backgrounds together. They object to separating children in schools on the basis of religion. They also argue that parents who send children to parochial schools must accept the financial consequences of that choice and not expect others to do so. What do you think about this argument? Do you agree or disagree? A landmark case in desegregation decided by the Supreme Court is Brown v. Topeka. This case reversed the decision in Plessy v. Ferguson, it held that segregation by race in public education is unconstitutional, and it struck down the separate-but-equal doctrine in education. To remedy the enduring effects of past discrimination, the Federal Government has required that affirmative action programs be set up. More important info about constitutionality: *Mandatory death penalties for certain crimes is considered unconstitutional by the Supreme Court. *The only crime the Constitution specifically defines is treason. 10

11 *The Supreme Court can uphold laws that treat men and women differently if they meet certain criteria. Citizenship and Immigration Laws The topic of naturalization and immigration has been a hot topic lately with the returning of Elian Gonzalez to Cuba. It was a situation that most people had strong feelings about on both sides. Some felt that it was wrong to allow him to stay, while others felt that it was outrageous to make him go back to Cuba. Ironically, both sides of the issue used fundamental American ideals as support for their argument. Regardless of how any of feel about little Elian, the decision was made to return him to his father in Cuba. The Attorney General made the decision to send him back based on immigration laws. It was not a decision of expatriation, which is the act of dissolving one s citizenship. Expatriation has never been upheld in this country. While recent immigration consists mostly of massive amounts of political refugees from Cuba and Southeast Asia, prior to the 1880s immigrants were mostly from the countries of Northern and Western Europe. The flow of immigration hasn t decreased in quite some time. Under current law, a person must be of good moral character before becoming a naturalized citizen. About 200,000 aliens become naturalized American citizens every year. The other way to obtain citizenship is by birth. If you re born in the U.S. (Jus Soli) or born outside the U.S. of parents who are U.S. citizens (Jus Sanguinis), then you re automatically a citizen. Need Some Info? A good place to find a list of specific publications of the National Government is the Monthly Catalogue of the United States Government Printing Office (GPO). website: If you re interesting in reading summaries of landmark Supreme Court cases, look at Congressional Quarterly s Guide to the Supreme Court or locate U.S Supreme Court opinions from the online GPO by clicking here. 11

12 *What s an inverted pyramid style?? Think top-heavy, which is the way an upside-down pyramid would look. That means that the beginning of the news story is loaded with the most important information at the beginning, tapering off to the least important details at the end. Ba ck 12