Quiz #2 - POL 1001
Terms in this set (91)
Marriage Protection Act of 2007
No federal court can hear a case that pertains to DOMA's constitutionality
Defense of Marriage Act (DOMA)
1996: Defense of Marriage Act
1. Defines marriage as between a man and a woman
2. Same sex marriage would not be recognized by the federal government
3. States do not have to recognize same sex marriage enacted in other states
Full Faith and Credit Clause
Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state (If you're married as a straight couple, your marriage will be respected in other states).
Statements by the states, expressing oppositions to federal policy.
UNDER the 10th Amendment to the United States Constitution.
OFTEN RELATED TO
Unfunded mandates: Federal regulations placing burdens on the states to implement, which states feel are not sufficiently funded with federal funds.
Ex: Health care, education, immigration, firearms, taxation
How does the issue of same-sex marriage/marriage equality highlight questions of American federalism?
Because states have their own laws pertaining to marriage equality and so does the federal government. States decide whether gay marriage will be recognized in their state. Federal Law can overturn state laws if altered but currently it solely limits the benefits seen most explicitly through DOMA. DOMA means that states have some power, but not complete authority to grant gay marriage benefits (left to Federal government)
What does Steve Chapman ("Stacking the Deck on Same-Sex Marriage") argue about DOMA? What do you think about his arguments?
He argues that although states can alter DOMA (Federal law) within its state it still is unable to have complete authority to grant gay marriage benefits which are left to the Federal Government (about 1,100 rights and privileges).
He believes that DOMA contradicts how the nation had previously dealt with marriage which was on a state by state basis (Some states, for instance, allow marriages between first cousins; others forbid it. Some states allow 15-year-olds to marry with parental consent, while most set the minimum age higher.)
Federal gov doesn't intervene, but it's not so with DOMA and gay marriage. Usually, states are obligated to enforce contracts made in other states (even during civil rights era, southern states recognized interracial marriage), but gay marriage is not recognized in all states. He believes the local option (no federal power) is the best option because of the varying opinions.
The idea that an elected body should mirror demographically the population it represents (race, ethnicity, religion, level of education etc)
Theory of representation that says that anyone can represent any group even one in which he or she does not personally belong (ex. a rich white guy can represent the interests of poor black people). Compare to Descriptive Representation.
Advice and Consent
Constitutional power of the senate to ratify treaties, and to confirm presidential appointments.
Districts drawn to ensure that a racial/ethnic minority makes up the majority of voters
Funds designated for a specific use or owner. (Sending money to someone or some project)
The efforts by members of Congress to get their constituents to believe they are responsible for positive government actions oftentimes ones that contribute to the district.
Depending on which party is in power, one person serves as majority leader and the other as minority leader. The leaders serve as spokespersons for their parties' positions on issues. Majority leader is called, "speaker of the House" (presiding officer of the House of Representatives).
Speaker of the House
The Speaker is chosen by the majority party, controls business of House like what to vote on when, and is second in line to succeed to the presidency should that office become vacant.
Assistants to the floor leaders in the House and Senate, responsible for monitoring and marshalling votes. Helps the party leader stay informed about what party members are thinking. Keeps parties in line.
Free postal service for letters sent by members of congress to their constituents (use signature rather than stamp)
4 Types of Congress
(Most important feature. Committees are where bills die)
1. standing committees (most powerful) - permanent and designed to review specific types of legislation to introduce to congress.
a. 3 Functions
i. Consider bills
ii. Exercise oversight over bureaucracy
iii. Recommend funds for agencies.
2. select committees - temporary. Consider something special often no need for legislation. Deal with issue not suited for standing committee.
3. joint committees - members of both House and the Senate. Housekeeping stuff, aka expatiate legislation in certain areas..
4. conference committees - Conference committees. (joint) Resolves difference in Bill between House and Senate.
Doing things for individuals in your district. Cutting through red tape. Do favors for specific people (oftentimes those with money/power).
Factors in Congressional Voting
1. incumbency person who is there already (are incumbents) Helpful because? Name recognition. Franking. Tax payer funded travel. Media gives more attention to incumbents.
2. Weak challengers - most don't face serious challengers. Not enough money.
3. midterm elections - halfway through presidents term
House every 2 years
Senate every six years
President tends to lose seats. Why?
a. Party gets blamed
b. Goup of people voting is different than presidential election
4. money - it matters
The electoral edge afforded to those already in office
Gerrymandering (def and 3 types of)
Drawing district lines for the benefit of some individual or group.
1. Partisan - district lines to benefit the party
2. Racial - gerrymandering by race
3. Incumbent - districts are drawn to benefit incumbent/party
A tactic for delaying or obstructing legislation by making long speeches (designed to stop legislation the person disagrees with)
An amendment put on a bill by its opponents to make it hard to vote for deeming it useless/killing the bill.
A procedure used in the senate to end or limit the time spend to debate a bill and call for a vote. (counteracts filibuster). Needs 3/5th's vote to stop. 60 Votes.
The tendency for the presidential party to lose congressional seats in off-year elections
Parties have become more significant in Congress because of the process of party polarization. There is growing ideological differences between the two major parties and increased ideological agreement within the parties. (Most democrats are liberals and most republicans are conservatives).
The Constitution provides that each state will have 2 Senators and that population will allocate seats in the House.
One way to regulate the way the House awards seats is called "reapportionment", in which the 435 House seats are reallocated among the states after each ten-year census. States whose populations grow gain seats, which are taken from those whose populations decline or remain steady.
Differences between the House and Senate
a. Senate is 100 members and less formal
b. The House is 425 people and it needs more rules and hierarchy.
a. 2 years for house
b. 6 years for senate
a. House must be at least 25 years old
b. Senators must be at least 30 years old
4. Division of power on impeachment
a. The House impeaches or charges the official with "treason, bribery, or other high crimes and misdemeanors"
b. The Senate tries the official
5. Designed to Represent
a. House = People
b. Senate = State desires
What are the 5 reasons that Dahlia Lithwick ("The Souter Factor") offers for increased partisanship in the judiciary?
She is saying that conservative supreme court judges are becoming more liberal on the bench.
a. The greenhouse effect
Judges rulings are guided by their need for adulation from legal reporters. Once judges are confirmed they become desperate to be liked. This theory implies that there is a strong liberal control over the media, academia and the elites. They can just as easily hop into bed with Fox News and conservatives!
b. Mean ol' Nino
Justices tweak their philosophies and ideologies in response to the other judges around them. Antonin Scalia and Clarence Thomas have driven passionate conservatives into the liberal side (they are crazy).
c. "Seeing the Light"
A theory loved by liberals. Based on the claim that jurists drift leftward because they become increasingly compassionate /sensitive/wise with age
(not aligned with truth which is that we become more conservative with age)
d. The Boys in the Bubble
Justices have so little "real life" experience prior to their confirmation that they only develop his views after becoming a judge.
e. The Law is a Moderate Mistress
There is something inherently moderating about the law itself; that the pace of the legal system fosters centrism and moderation. They "drifter" judges are evolving towards the center.
It is the power of the Supreme Court to say a law is unconstitutional.
Writ of Certiorari
A request from the losing party in a case that a higher court review the decision. Acceptance of the request and issuance of a writ of certiorari is optional with the higher court.
Is the court likely to grant cert for case x?
1. Must be a clean case
2. More likely to grant if they are going to win (party)
3. If its coming out of a lower court that you don't trust (like San Fran) then not likely.
Writ of Mandamus
Written order from a court tofor a lower court or official to carry out a duty
Rule of Four
If four justices decide to hear the case then they hear the case.
Why they might hear a case?
1. US government in case
2. If there is a conflict in the lower courts
3. Amicus curiae brief-"friend of the court" brief
4. If it's a constitutional question
Counter Majoritarian Difficulty
The argument that judicial review is problematic because it allows unelected judges to overrule the decisions of elected representatives, thus undermining the will of the majority.
A statement that presents the views of the majority of Supreme Court justices regarding a case
Presents both the decision and the logic of the decision. Written by a justice who voted with the majority but wants to add something like additional reasons (too strong? Disagree with piece?)
Written by the losing side/minority. Explaining why she/he disagrees with the majority opinion.
Prior decisions on similar cases. What did the court decide on similar case. If follow "stare decisis" you tend to follow precedent. Used with similar cases. Supreme court does not always respect precedent, will and has sometimes overturn its own decisions.
Adherence to the explicit text of the constitution
A view that the Constitution should be interpreted according to the original intent of the framers. Many conservatives support this view.
- If the framers had the internet what would they have done? (Since they didn't censor pamphlets, it can reasonably be assumed that they wouldn't have censored the web) Freedom of speech.
(stand on what has been decided) Attention to precedent. The practice of using earlier judicial rulings as a basis for deciding cases.
A case in which a defendant is tried for committing a crime as defined by the law
A lawsuit brought against one person or group to protect a private right (as defined by the constitution)
A court's original jurisdiction refers to those cases that can come straight to it without being heard by any other court first.
(Jefferson believed this power of the Supreme Court is dangerous)
Refers to those cases that a court can hear on appeal- that is, when one of the parties to a case believes that some point of law was not applied properly at a lower court and asks a higher court to review it. Almost all the cases heard by the US Supreme Court come to it on appeal.
Marbury v. Madison (1803)
A court case that came from a dispute between Marbury and Madison where Madison refused to sign Marbury's judicial appointment. Court ruled in Madison's favor, saying they won't write the writ because the part of the law (Judiciary Act of 1789) that gives us that authority is unconstitutional. Brilliant.
Established the basis for the exercise of judicial review and made the judicary branch more powerful.
What are the 3 levels of the federal judiciary? (ignoring smaller specialized courts)
The Supreme Court
The Courts of Appeals (Appellate)
The District Courts
What are the arguments for restraint when approaching judicial review? For activism?
Judicial Restraint - believe strongly in the principle of stare decisis and reject any active lawmaking by the Court as unconstitutional.
Judicial Activism - Quite comfortable with the idea of overturning precedents, exercising judicial review, and otherwise making decisions that shape government policy.
What does Alexander Hamilton say about the federal judiciary in Federalist 78?
Designed to improve support for constitution. 78 is about the judicial Branch. Not powerful. No force or will, merely judgment. He believes it's not Political nor Powerful.
1. Follow the law
2. Outside of political process.
3. Can't enforce their decisions
How are members of the Supreme Court selected? What considerations do Presidents make when picking nominees?
Appointed by the president, with the advice and consent of the Senate. Federal judgeships are awarded on several criteria.
1. Political Friendship
2. Supporting and cultivating future support (especially of a gender or racial and ideology)
"Senatorial courtesy" is another thing that contributes to how members of the Supreme Court are selected. Senior senators of the president's party considerable power over federal judicial appointments in their home states.
Civil Liberties - Individual freedomse that place limitations on the power of government. Civil liberties protect our right to think and act without governmental interference. (Negative Freedom)
Civil rights - Refer to the extension of government action to secure citizenship rights to all members of society. Powers and privileges that are guaranteed to individuals by the government. (Positive freedom)
Ohio Pilot Scholarship Program
An establishment clause case. Voucher given to those from Cleveland public school, uses tax payer money, and 96% go to a private school. Does it violate the establishment clause?
- gets them into better schools
-allows parents to choose where they go.
- violates the establishment clause. Taxpayer money subsidizing religious schools.
Directed at congress. Big list of stuff congress can't do. Congress seen as most powerful branch and therefore is targeted. Restricted from tampering with freedom of speech, religion, etc.
Amendment 2 and 3
Targeting the executive branch. Stuff to do with quartering act. Not given much attention.
2: Keep a fair militia. Right to keep arms.
Amendment 4 and 5
Mostly targeting the judiciary. When involved with the police power (ex: Search and seizure)
Antifederalists were worried about power of police power. Given a fair bit of attention especially with Miranda rights.
Most recently this issue is coming up with detention of suspected terrorists without trial.
One of the worries during ratification was about what gets left out (if its not put in, then it won't get protected)
9: States that its a non-exhaustible list.
Supreme court has used this to protect rights that aren't in the text.
Against literalism. One of the most important rights that isn't mentioned in the constitution is the issue of privacy. Sexual orientation behavior, abortion, control over sexual reproduction etc.
10: The powers not listed by government are reserved for the states, or to the people. Assertion of state rights. But in reality it has not been that powerful (looks strong but isn't)
The Bill of Rights
1st Amendment says that congress shall make no law.
- "habeus corpus" which is the right for a criminal to a fair trial.
- Both the national and state government are forbidden to pass "bills of attainder", which are laws that single out a person or group as guilty and impose punishment without trial.
- They also can't pass "ex post facto laws" which are laws that make an action a crime after the fact.
Turn of 20th century the supreme court didn't have the bill of rights apply to states as well (incorporation). 14th amendment required states protect their citizens basic liberties.
Establishment Clause/1st Amendment
The 1st Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion (called the establishment clause) Congress can't establish a national religion, or prohibiting the free exercise thereof there are both easy and hard cases.
The federal gov cannot throw someone in jail for studying or practicing their religion; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
A first amendment provision that prohibits government from interfering with the
practice of religion
Using public money to finance private school education, including religiously affiliated schools
What was the constitutional issue in Zelman v. Simmons-Harris (2002)? What did the court decide?
The case Zelman v. Simmons-Harris was a 2002 Supreme Court decision that upheld a state providing families with vouchers that could be used to pay for tuition at religious schools.
The issue was whether it violated the establishment clause, because it was essentially funding religious schools.
The court upheld the program but it was done by a split 5 to 4 which looks bad and political.
In Zelman v. Simmons-Harris (2002).
What was the basis for the decision? What did Justice Souter say in his dissent?
Three Reasons for Majority Reason:
1. Secular Purpose. He wrote that the program was for a secular (non religious) purpose. The point of the program was not about religion but about education
2. It was the parent's choice. The voucher went to the parents. So it was the parents who were deciding which school they were going to send their kids to. Private Choice.
3. Law written to include public schools, the fact that they didn't is not the fault of the law. Intent.
Reasons for Minority (Souter's Dissent)
1st risk: religious support violates establishment. Taxpayer money to religious schools.
2nd risk: regulation when government hands out money they don't do it for free. There is going to be regulation. This could lead to a
'corrosive secularism': The interests of government will manifest themselves in religious schools. It changes your hiring practice because you're subject to a different set of rules than non-voucher private religious schools (can't hire based on faith).
excessive entanglement: Government will implement regulation for achievement, allowing students not to partake in prayers, watching what they read etc.
This amendment declared that all persons born or naturalized in the United States were entitled equal rights regardless of their race, and that their rights were protected at both the state and national levels.
One of the "Reconstruction Amendments". Provided that no government in the United States shall prevent a citizen from voting based on the citizen's race, color, or previous condition of servitude.
A test that a person would have to take at the polling place in order to vote. The purpose was to exclude African Americans from voting.
Legal Defense Fund of the NAACP
The NAACP is an interest group founded in 1910 to promote civil rights for African Americans. The legal defense was led by Thurgood Marshall and devoted to overturn the principle of "separate but equal". Chose to start with law schools (less scary than elementary school desegregation and more egregious)
Plessy v. Ferguson (1896)
A Jim Crow law in Louisiana required separate accommodations in trains for Black and whites. Homer Plessy looked white, but was 1/8th black and when he sat in the white section and wouldn't get up he was arrested.
He appealed to the Supreme Court and lost. The Supreme Court established that enforced separation did not mean that one race was superior as long as the principle "separate but equal" was upheld.
"de jure discrimination"
Discrimination arising from or supported by the law. It's created by laws that treat people differently based on characteristics like race. Discrimination seen in the south.
"de facto discrimination"
Discrimination that is the result not of law but rather of tradition and habit. Produces a kind of segregation that is harder to eliminate.
Segregation in the North was of this type because blacks and whites did not live and work in the same places to begin with.
It was not laws that kept them apart but past discrimination, tradition, custom, economic status and residential patterns. Woven into fabric of society.
Brown v. Board of Education I (1954)
NAACP argued that segregation was unjust based on intangible benefits of integration. Under the new leadership of Chief Justice Warren (previous judge died) the Court ruled unanimously in favor of Linda Brown and the black students.
Did overturn Plessy or upset South, solely said that separate schools could not be equal because of the separation itself. "Separate but equal" not dead, but hurt.
Brown v. Board of Education II (1955)
The courts are unsure. Seeing that things aren't changing and they are trying to push things around while being aware of public opinion. The court issued another decision known as this to provide rules for implementing the 1954 order.
It said that schools must work to desegregate "with all deliberate speed" almost an oxymoron. Served as a catalyst for the civil right movement.
What did the Supreme Court rule in Brown v. Board I (1954)? What case did that decision overturn? What was the main argument of the NAACP in the case? What earlier cases did it build on? Why was the NAACP's strategy a risky move?
Ruled that separation of schools was what was unequal about segregation no matter what the facilities were. Overturned Plessy.
The main argument was that segregated public education violates the equal protection clause of the 14th amendment and it is sociological damaging to children.
Built on "Sweatt v. Painter" and "Missouri ex rel Gaines v. Canada"
1. You might lose. Spend all this time. Get a case to the Supreme Court and only increase precedent for future court cases.
2. You win, and nothing happens. You get the case through and the proper decision but nothing changes after that because the court doesn't have the power of enforcement. There is going to be resistance.
What are some limitations on the power of the Supreme Court to make policy? How does the attempt to overcome segregation demonstrate these?
Must show that they are harmed by the law/unconstitutionality.
2. Relief -
What the court does for people who win. Can't always give broad relief.
The president nominates and congress approves. Selection of judges.
4. Powers of Congress-
Set the size of the court and establish lower federal courts.
5. Lack of enforcement powers-
The courts can't enforce their own decisions.
6. Public opinion-
The court can never veer to far from public opinion.
7. The slow pace of the judicial system-
the one truism of these cases is that by the time the supreme court decision is handled these kids are out of school. SLOW. "Litigate and legislate" attempted to slow down the case by bring more cases.
8. Judicial discretion -
The supreme court has ordered integration and placed it into hands of district state judges. That's a problem. Supreme court is not supreme, they don't have that power.
District court judges will be in charge of implementation.
Problem = many judges aren't supportive of integration
What issue does Sara Corbett address in "Prom Divided"?
Racially segregated high school proms. They have tried to have an integrated prom and continuously failed.
A president's strategy of appealing to the public on an issue, expecting that public pressure will be brought to bear on other political actors
Refers to the tendency for most presidents to begin their terms of office with relatively high popularity ratings, which declines at they move through their four year terms.
The power or right to prohibit or reject a proposed or intended act (especially the power of a chief executive to reject a bill passed by the legislature). President can veto legislation passed by congress. Veto can be overwritten with a 2/3rds vote in both Houses.
War Powers Resolution
A law passed in 1973 spelling out the conditions under which the president can commit troops without congressional approval. Passed by congress to reassert congress' authority in armed conflict. (constitutional by default)
2 Main Sections.
First lays out the conditions under which the president can commit armed forces.
a. If there is a formal declaration of war.
b. Specific authorization by congress
c. A national emergency that is an attack on the US or its armed forces.
Second is what happens after declared war?
a. President needs to notify congress within 48 hours
b. Unless congress explicitly authorizes continued use of force the president must withdraw forces after a certain amount of time.
Person holding office after his or her replacement has been elected to the office, but before the current term has ended
The act of excusing a mistake or offense
The resources available to a politician to reward service. Granting favors or giving contracts or making appointments to office in return for political support
Executive Office of the President
A collection of organizations that forms the president's own bureaucracy. Instituted by FDR, the EOP was designed specifically to serve the president's interests, supply information, and provide expert advice. (Ex: OMB advises the President on the federal budget. National Security Council advises president on foreign and national security)
A presidential advisory group selected by the president, made up the vice president, the heads of the federal executive departments, and other high officials to whom the president elects to give cabinet status. President appoints these people.
Political rule split between two parties: one controlling the White House and the other controlling one or both houses of Congress.
Agreements between the President and foreign nations that carry the same force of international law as treaties
Formal instructions to executive agencies in order to carry out the laws. President's use executive orders to expand their power, tell people/groups the instructions to carry out laws.
What are the powers of the President as enumerated in the Constitution?
2. Commander in chief
War Powers Resolution of 1973
3.Require opinions (the president has more information.)
4. Grant pardons
5. Make treaties
The president can make a treaty but must be ratified by Senate (2/3rds). Can get around this through executive agreements.
6. Make appointments
7. Advising the legislature on the state of the union
(President doesn't actually have to go, but does because of the power of public opinion. Big spectacle.)
8. Can convene and adjourn Congress
9. Receive ambassadors
10. Take care that the laws be faithfully executed.
When laws aren't clear, gives president power. Gives president power to interpret the laws. How? Through executive orders.
What are sources of presidential power that do not come from the Constitution?
mandate - When you win big. And the president can point to that and show that the people are behind him
2. The Media
"going public" - A president's strategy of appealing to the public on an issue, expecting that public pressure will be brought to bear on other political actors
3. Political Parties - head of the democratic party. President can't always get members of his party to get along with him.
4. Interest groups - think patronage
5. Public Opinion - if popular they are powerful, if not then no. Why? Sway with congress.
lame-ducks (not much power)
What issue does David Nather discuss in "Taking Giant Steps"?
How much power does the president have and has Obama changed that power?