141 terms



Terms in this set (...)

3 systems of gov:
unitary system, confederal system , federal system
Unitary System
All substantial governmental powers belongs to the national gov.
political subunits may exist- subunits only have powers given by national gov and national gov can create or terminate existence of subunits as it pleases.
countries with unitary system: Britain, Israel, Sweden, Japan and the Philippines.
most common in the world.
Confederal System
All power retained by regional or state gov.
league of independent sovereign states hold all the power and national gov only has powers given by the states and requires majority approval from states.

ex) US Under Articles of Confederation and Confederate States of America During the CIvil War
Federal System
Power share btw national an dstate gov's.
each has distinc t powers and can't override
countries with fed system- US, Canada, Mexico, INdia, Austria, BRazil
Advantages of Federalism
1) Mobilization of political activity- easier to file complaints/have access to gov't. more positions to run 4(for prosecuting crimes, easier when there's a state gov)
2) states as testing grounds for gov initiatives
3) uniform laws don't always make sense- regional needs differ
ex) Higher age requirement for driving in crazier cities. MOntana- 13 years
Disadvantages of Federalism
1) Dominant groups can use regional clout to do harm. -- states use power to undermine something good the gov is doing
ex) after 15th amend, southern states implement literacy tests, poll taxes, gpa clause. nearly impossible for african americans to vote.
guinn v. US (1915), Court struck down ^^ as unconst. 24th amend outlawed poll taxes
2) Diverse Laws can cause confusion- for public educational matters, pple don't know where to go for issues
3) Diverse laws can lead to inequities- public education. if Minnesota's state budget is +, they can fund public schools far better than Mississippi.
Powers Given to the National gov
1) Expressed/Enumerated Powers- declaring war, admitting new states, establishing post offices, coining money and regulating interstate commerce
2) implied powers- based on necessary and proper clause, artic 1, sec 8. "elastic clause" " US Bank, coin money, borrow money, regulate international commerce.
3) inherent powers- obviously belonging to national gov. making treaties, seeking trades, and waging war.
Powers Given to State govs
1) Reserved powers: 10th amend- if it doesn't say the national gov has power to do it, than the power goes to the states. ex) voting procedures, education, marriage and driving
limitations on the power to tax as a concurrent power
types of taxation each gov is allowed is different"
- states NOT permitted to tariff imported goods, only national gov
- national gov not permitted to tax real estate, only states
- neither may tax a facility of the other. BOTH can tax income
concurrent powers-
shared - establish courts, Borow money, punish crime and tax
NATIONAL: maintain military, declare war, establish postal system, set standards for weights and measures, protect copyrights
STATE : establish local govs, set up schools, regulate state commerce, make regulations for marriage.
BOTH- as one gain powers, the other loses. the states by definition have 'reserved powers;, 10th amend. zero sum gain situation.
Prohibited powers
both state and national gov prohibited from taxing exports.
Supremacy Clause
Article VI, Clause 2. where national laws conflict with state laws over concurrent issues, the national law pre-empts state law.
Ratifying the Constitution- Federalists vs. Anti-Federalists
Battle btw anti feds (Patrick Henry and Sam Adams) vs. Feds (Alexander Hamilton and John Jay) over ratifying the Constitution.
McCulloch v. Maryland (1819)
maryland argues that a national bank is unconst. loose interpretation of const = if const doesn't state it, you can do it bc of the elastic clause. they argue the right to tax the national bank. "creating a national bank" is not an enumerated power.
- elastic clause says congress can make anyp ower and law as long as related. supports US bank (they have right to coin money, borrow money and regulate commerce)
- can't tax the bank bc only states are allowed to tax real-estate
HOLDINGS: it's an implied power- broadesn national gov powers.
power to tax= power to destroy. under a fesystem, neither can tax a facility of the other.
Gibbons V. Ogden (1824)
Ogden obtains NY state license to operate steamboats in NY waters. gibbons obtained a fed license and competed with ogden's business. ogden sued, claiming one can't conduct commerce inside area within NY without a state license. won.
HOLDINGS: marshall broadly interprets the commerce clause- interstate commerce is any kind of commerce so long as it does not SOLELY occur within one state. national gov can regulate commerce and charge licensing fees if there is any aspect of the commerce outside the state (interstate).
significance- broadens fed power - ability to issue more licenses = ability to raise $ at expense of states
Tariff of Abominations (1828)
Northern congress initiates a protective tariff to prevent S states from purchasing cheaply manufactured european imports.
S. Carolina Reactions: flags flew at half-mast, talk of boycotts against NOrthern products, talk of refusal to obey the fed law, some states questioned value of remaining in the union.
Calhoun's Nullification Doctrine
Calhoun (JAcksons VP) = state's rights activist. Resigned and joined the Senate when Prez Jackson insisted he would enforce the national tariff law.
Doctrine- argues that states have the right to nullify fed law. PROOF
1_ const originated as an agreement among independently sovereign states
2) 10th amend --> all powers not given to national gov are reserved for the states.
3) const silent on issue of nullification, so must be a state right.
just cuz it doesn't say it, doesn't mean they don't have it
South's attempt to reinstate state rights with the Civil War backfires
(a) results in permanent end to notion that states have the right to secede
(b) national gov't expands powers during the war to impose:
- first income tax to help pay for war costs
- Curtailment of civil liberties during the war (in Maryland)
- national government getting more power and states getting less
Dual Federalism
system where national gov and states exercise powers independently with little cooperation between the two=layer cake fed.
national go exerts more influence over states after the civil war
passage of 12, 14, 15 amend: slavery banned, equal protection under law for all, suffrage rights for all
CRA of 1866
under dual federalism- authorizes use of military to enforce Civil war amendments
CRA of 1872
under dual federalism- make it a fed crime to interfere with another citizen's constitutional rights.
Cooperative Federalism
national gov operates its powers in conjunction and cooperation with the state govs. marble-cake federalim.
1) great depression requires cooperative fed. buisnesses shut down, unemployment soared. national banic. bankrupt states need national $$
2) FDR'S new deal - nat gov created monetary grants for programs. states administer. jobs created by the Public Works Program and Civilian Conservation Cor
Creative Federalism
Picket-fence federalism. (1960's0. national go vhas ideas about how they are going to make the world a better place.
"great Society' public programs (horizontal boards) require contributions from all different levels of gov (vertical boards)
1) national gov becomes more powerful- medicare and War on poverty
states are not administering the programs corectly, so national gov sends down administrators to administrate with the states.
New Federalism
System of federalism allegedly aimed at restoring state power.
1) devolution- transfer of political power from a centralized power to political subunits
2) form of fiscal federalism. money is the source of national gov's influence over the states
tools of new federalism
1) categorical grants- fed aid given for a very sepcific purpose with specific criteria.
2) block grants- fed aid given few strings attached for a broad purpose. power= ability to make decisions
few restrictions. states prefer
3) revenue sharing- money given directly to states with no strings attached.
creeping categorization, cross over sanctions, cross cutting requirements
1_ creepin = national gov disguises a categorical grant to look like a block grant. hidden fine print
2_ cross over = national gov makes funding for one project conditional on meeting standards in an unrelated area
3_cutting= national gov declares that if states fail to meet conditions for a program, all fed funds will be cut
Printz V. US (1997)
congress passes the "handgun Violence prevention act' requiring state employees to check the backgrounds of those wanting to purchase guns. is this constitutional?
HOLDING- national gov may neither issue orders requiring states to address certain problems, nor command them to enforce natilnal programs". states win.
it's a fed system of gov
post 9/11 federalism
states rights no longer a high priority. americans value safety and security.
1) federalized airport security
2) patriot act- allows detainment of noncitizens indefinitely if "reasonable Grounds"
3) creation of military tribunals for trials of suspected terrorists.
4) new office of Homeland Security created to combat terrorism
Horizontal Federalism
how states must interact with eachother
1_ extradition- states aree to return individuals fleeing from justice to the state of original jurisdiction.
2) full faith and credit- each state respects the laws of other states
3) immunities and privileges- each state is required to extend to citizens of other states the same immunities and privileges enjoyed by citizens of their own state.
Drivers LIcense Compact
all states participate except georgia, massachusetts, michigan, tennessee and wisconsin.
congressional consent always required if the agreement results in enhancing the power of the contracting states relative to that of all other states.
lawmaking function of congress
most important function- where ideas for laws originate.
congressperson's offer to support a fellow member's bill in exchange for that member's promise to support his/her bill in the future. frequently influenced by the pursuit of "earmarks'
provision in a bill to direct public funds to be spent on a project or that provides a specific exemption from taxation. pet projects that benefit or provide funding to a congress person's home district.
criticized bc they are not subjected to an impartial evaluation by agencies.
when members of congress assist constituents in dealings with other gov agencies-
activity- anytime spent assisting constituents
Ombudsperson Role
role when congresspersons intercede with other gov agencies for constituents in need. makes for great PR
Representative Function
members of congress function as reps of the views of the electorate
1) Trustee View of Representation- legislators act as "trustees" of whole society. vote according to best interests of whole country
2) instructed-delegate view- acct with voters in mind
3) pluralism- consider needs of interest groups/campaign contributors
4) hyperpluralism- congress hijacked by special interests. doesn't consider needs of country or constituents.
Oversight Function
executive branch and agencies enforce congress's laws.
process by which congress follows up on the laws to ensure laws enforced properly.
Methods of oversight:
(1) research, investigate the matter,
(2) changing the size of an agency's budget
(3) cross-examining high level agency heads.
Public education Function
Congress's public discussion about issues it wants the public to be aware of.
1. Methods of public-education:
(1) holding public hearings,
(2) publicly exercising oversight over another gov't bureaucracy,
(3) engaging in committee and floor debate

2. Agenda setting: Congress's determination of which public policy questions are publicly considered.
differences between the house and Senate Size:
house- 435 voting members
senate- 100

23rd amend- gave wash DC 3 non-voting members in the house . (house 438)
Differences between house and senate CONSTITUENCY
senators elected by entire state
reps elected to districts within their states
6 smallest states have only 1 rep in the house of reps
Differences between house and senate L power to impeach
Representatives can initiate impeachment proceedings.
(50.1% vote needed to impeach in the House)
- only Senate may convict/remove officials for impeachable
offenses (2/3rds must vote to remove an official in the Senate) (67%)
Differences between house and senate: debate procedures
House- 4x larger. time limit
senate- no limits. filibustering _- designed to halt or stall action on a bill
Senate rule 22 and cloture.
the only way to kill a filibuster is
through Senate Rule 22:
(a) 16 or more Senators sign a petition requesting cloture (shutting down the debate)
(b) 3/5ths of Senate (60 votes if no-one missing) vote for cloture (shutting down of debate on bill).
(c) after cloture invoked: Senators speak max of 1 hour before passage vote takes place
interference with the progress of legislation by a filibuster. when the minority party in teh senate has 41 or more members it cannot be stoped from using the filibuster to squash the majority party and the president's legislative agenda.
supermajority for overcoming a filibuster
a supermajority of 3/5ths (60%) is needed to invoke cloture so that a bill can proceed to a passage vote in the Senate.
supermajority to ratify a treaty
a supermajority of 2/3rds (67%) is needed in the Senate to officially ratify a treaty.
when does obstructionism reach a peak
after midterm elections, when a president typically loses some of his support in both chambers of Congress [losing the supermajority in the Senate opens the door for filibustering, which frequently frustrates presidents]
general elections in the senate
Senators serve 6 year terms; the Senate elections are staggered & occur every 2 years with 1/3rd of the Senate seats up for grabs.
- The staggering of Senate elections makes it more difficult for an unhappy public to quickly change the face of the Senate in any given election year. [17th am: direct election of Senators]
General elections in HOuse
Representatives serve 2 year terms. Elections for House seats occur every two years.
Characteristics of mid-term elections
1) voter-turn out falls sharply and
(2) the party controlling the White House usually loses seats in Congress
why does party controlling white house lose seats?: dissatisfaction with pres. performance
power of incumbency
No term limits: the 22nd amendment limits a president to 2 four-year terms, no such term limits exist on legislators.
distribution of seats in House to each state after each census.
- amount of representatives per state: determined by pop of state relative to pop of other states.
- census taken every 10 years to determine pop for new reapportionment.
Wyoming Rule
proposal to increase the size of the house of reps so that the representative to population ratio would be that of the smallest unit (currently wyoming(. means each state gets 1 rep for every 515,000 people in their state.
Reynolds Vs. Sims (1964)
Reynolds challenged Alabama legislature's creation of districts of equal land-size without regard to population.
holding- alabama redistricting method is unconst under 14th amend. legislators represent people. populations in district must be equal.
when a state legislature draws district coundary lines for the sole purpose of obtaining a political advantage
district is gerrymandered when its shape is manipulated by the dominant party in the state legislature to maximize electoral strength.
ex) concentrating an opposing party's support in as few districts as possible.
Davis v. Bandemer (1986)
the Court held that gerrymandering could be found unconstitutional if it was proven that certain voters were unfairly deprived on influence at the polls. (14th amendment - equal protection)
minority-majority districts
Department of Justice orders state legislatures to re-draw district lines to maximize voting power of minorities. This means to draw district lines in any misshapen way necessary to ensure that a minority group would be the "majority" in the district.
HOLDING- S.C declared distrcits drawn solely for racial considerations violates the equal protection clause of the constitution. forced texas and north carolina to redraw districts.
pays and benefits of congresspersons
Average pay in 2001: About $150,000 annually.
Benefits: free health care, special tax considerations, travel allowances, professional staffs for assistance
- franking privileges: allows Congressmen to send material through the mail for free
- immunities: from misdemeanors, not felonies
- "speech and debate clause": can't be charged with slander/libel for any statements made regarding official duties.
Function of committees
study proposed laws . aka bills
hills sent to committees for further study to determine whether a bill even reaches the floor for a vote. committees study the bill for effectiveness and efficiency. and efficiency.
standing committees
most important committees
- permanent (for every lawmaking session)
- have specific area of legislative policy jurisdiction.
examples: Energy, Ways and Means (taxation), Agriculture, etc... - House members usually serve on two standing
select committees
temporary; created for specific purpose (ex: legislate on a one-time issue/problem)
- Once matter is accomplished, select committee is abolished.
conference committees
made up of members from both chambers (House and Senate)
- purpose: to iron out differences in proposed legislation.
Ex: House version: WXY Senate version: XYZ Compromise: XY or WXYZ
* in order for a bill to pass into law, it must pass through both chambers in the exact same form.
House Rules COmmittee- led by speaker of the House
powerful "gatekeeping" committee in the House.
- powers include: (1) decide when a bill is voted/debated on, (2) set time limits on debates
(3) decide how a bill may be amended, and (4) to propose legislation on its own.
Selection of committee members
for democrats- steering and policy makes all standing committee assignments
for republicans- committee on committees

chairperson selected through the seniority system
2000 senate divide
powerful "gatekeeping" committee in the House.
- powers include: (1) decide when a bill is voted/debated on, (2) set time limits on debates
(3) decide how a bill may be amended, and (4) to propose legislation on its own.
Speaker of the House
currently = John Boehner
most powerful member of House
- leader of maj. party in the House
- 2nd the presidential line of succession
(a) election of Speaker: Speaker is elected on first day of a new session of Congress.
- Each party nominates a Candidate. Members of the House vote; person receiving a majority of the votes becomes Speaker (nearly always someone from majority party is chosen)
Majority leader of the house
: 2nd in line in the majority party behind the speaker.
- develops majority party's legislative goals
- urge party colleagues to support or defeat pending legislation
- communicates party's agenda to media/public

eric cantor
MInority leader in the house
develops minority party's legislative goals
- acts as spokesperson for minority party's agenda to media/public
- possible liaison to white house: when minority party in House = party in power in White House

Nancy Pelosi
House Whips
from both parties
- they conduct polls among party members regarding their views about bills
- encourage party loyalty among House members.
President of Senate
V.P. holds this position - only votes as tie-breaker (if 50-50 deadlock)
- responsible for counting/presentation of electoral college votes after Presidential elections
- assigns bills to committees
President Pro-tem
Because V.P. rarely present for Senate meetings, a "president
pro tempore" presides over Senate in V.P.'s absence.
- usually majority party member with longest continuous tenure.
- 3rd in the line of succession to Presidency
Majority Flood Leader
most powerful member of Senate
- has the right to be recognized first in debates
- controls "gatekeeping" power (scheduling of debates/voting)
Minority Floor Leader
leader of minority party in Senate.
- mobilize party support for party agenda.
- possible liaison: represents Pres when Pres. belongs to Senate's minority party.
Senate party whips
leader of minority party in Senate.
- mobilize party support for party agenda.
- possible liaison: represents Pres when Pres. belongs to Senate's minority party.
money bills
any taxation or spending bill must originate in the House.
- other types of bills may originate in either chamber.
how a bill becomes a law
in order for a bill to become law, it must pass through both chambers of Congress in identical form and usually needs to receive favorable action from the President.
if a bill originates in the House, it will pass through 4 basic stages
1) intro of bill - member of house drafts bill and submits to speaker
2) committee stage- speaker refers bill to appropriate standing committee with subject matter jurisdiction over bill.
3) rules committee/scheduling floor action- if committee passes bill is sent to rules committee. speaker has gatekeeping and schedules debate/voting
4) Floor Action- debate time limits. quorum - at least 100 members of house must be present to officially begin debate. voting req
what happens during the committee stage requires 50.1% majority to pass bill.
218 must be present for a vote
Speaker refers bill to appropriate standing committee with subject matter jurisdiction over bill
- select committee: if no standing committee has jurisdiction, then select committee is assigned.
- multiple referral: bill sent to multiple standing committees if more than 1 has policy jurisdiction.
- bill studied for effectiveness and efficiency
- within committee: bill can be killed, passed, or amended
* germane requirement: in House, all amendments must be
germane (related to subject matter of bill)
- discharge petition: House committee refuses to release a bill for a vote, then
after 30 days, majority of House can insist that bill be put to a passage vote (without committee consideration).
Floor action for senate
debate: - voting:
- quorum: 51 must be present for official debate - quorum: 51 must be present for official vote
- no time limits; filibuster is possible - 50.1% to pass a bill out of the Senate
- Senate Rule 22 can be invoked to stop filibuster - V.P. can act as a tie-breaker
(60=filibuster proof Senate)
conference committees
: members of both chambers
- purpose: iron out differences House vs. Senate version of bill
- only needed if 2nd chamber viewing bill amends it
- if no compromise reached, bill dies
- if compromise achieved, new version of bill goes back to each chamber for quick passage vote
Presidential Action
possible courses of action a President may take on a bill.
(a) If he signs it it becomes a law
(b) If he vetoes it, then Congress can respond in one of three ways:
- over-ride the veto with a 2/3rds vote in EACH chamber
- let the bill die
- re-write the bill to the President's liking and re-start the process
(c) If he ignores it, then:
- after 10 working days (2 weeks), if Congress has NOT adjourned their lawmaking session then the bill becomes a law
- if during the 10 working days Congress DOES adjourn its lawmaking session then the bill dies (pocket veto)
executive budget
Since 1922, Congress has required the President to prepare an executive budget for Congressional approval.
- Until 1974, the President was able to impound allocated funds (thereby killing programs which he disapproved of by withholding funds).
Budget and Impoundment Control act of 1974
Congress passed this law which:
(a) required the President to spend the funds
that Congress appropriated, and
(b) forced Congress to review and examine the
total budget at least twice in each fiscal year.
OMB office of management and budget
agency that outlines the budget.
spring review:
part 1: each spring, agencies review their enforcement costs
part 2: each summer, agencies sends formal requests for money to OMB

(b) fall review:
part 1: OMB reviews agency budget requests, and usually cuts them back
part 2: OMB meets with agency heads to make final decisions, and sends budget to President for official approval.

(c) presidential approval:
- budget must be approved by President in January and sent to Congress.
authorization and appropriating funds
Authorization: a spending bill that indicates a certain amount of funds MAY be available to an agency. [bill must originate in House]
(b) Appropriation of funds: occurs when final bill is passed.
- Congress need not appropriate entire authorized amount; it may give less. It cannot give more.
budget resolutions
1st budget resolution:
- passed by May - sets overall revenue and spending targets
for upcoming budget year.
(b) 2nd budget resolution:
- passed by September - sets "binding" limits on taxes and spending
for upcoming budget year
(c) Continuing resolutions: Continuing resolutions occurs when Congress fails to
follow its own rules. If Congress fails to pass a complete budget by October 1st then
every agency will operate on the basis of a continuing resolution which means
they receive the same funds as previously, adjusted for inflation.
Civil Liberties defined
found in the bill of rights. limitations imposed on the government designed to protect the rights of citizens.
originated from a fear of a tyrannical gov similar to britain.
Freedom of Religion (2 parts)
1) congress shall make no law respecting an establishment of religion
2) no law prohibiting free exercise of religion
Establishment Clause
creates a "wall of separation" between the gov and religion. church and state.
1_ no official church
2_ no coercion: gov can't force or influence a person to go to or remain away from church, nor force him to profess a belief or disbelief in any religion
3_ no preference
4_ participation - gov can't participate in affairs of religious organizations
5_ punishment for beliefs not allowed
3-fold lemon test
Lemon V. Kurtzman the court stated that a gov action will ONLY be valid if it satisfies EACh of the following conditions:
1) purpose: action or law must have a SECULAR purpose
2) effect: principal or primary effect must neither advance nor inhibit religion
3) entaglement: action or law must not create an excessive gov entanglement with religion
When is gov aid allowed to be given to religious schools
lunches, secular textbooks, services for speak and hearing problems, standardized testing and transportation.
NOT- reimbursements for field trips, paying employees of the school, developing the school's own achievement tests, etc.
Engel v. Vitale (1962)
State composed "non denominational" prayer; no child forced.
holding- violated the 1st prong of the Lemon test- it was clearly part of a religious program carried on by the gov
Abington School Dist v. Schempp (1963)
daily classroom ritual of reading bible, no child forced to participate. state argues that forbidding of organized prayer readings is anti-religious, and favors non-religion over religion.
holding- struck down, no secular purpose.
Wallace V. Jaffree (1985)
Moment of Silence struck down by supreme court in Alabama law. it endorsed religion and had no secular purpose.
Epperson v. Arkansas (1968)
court struck down state law forbidding the teaching of evolution as unconst because it imposed religious beliefs on students.
Edwards V. Aguillard (1987)
louisiana law required creationism to be taught alongside evolution. it's struck down bc the law had as its primary purpose the promotion of a particular religious belief.
Newdow V. Congress (2002)
athiest father of 3rd grade child challenges pledge of allegiance reading in CA public school as violating establishment clause.
district court: purpose of pledge = to instill loyalty and patriotism. effect neither advances nor inhibits religion. result = pledge upheld
APPELLATE court: 2 versions of pledge, original version doesn't contain "g-d" pledge and school made an intential use to use the one that says god. result- pledge struck
SUPREME COURT: father divorced from mother and not legal guardian. case dismissed
Oregon V. Smith (1990_
free exercise of religion - 2 drug counselors fired for using an illegal substance in their native american religious practices.
state law required that these fired employed would not receive any benefits from the state. 2 defendants sued, claiming a violation of free exercise of religion.
holding- court upheld state statute, claiming primary purpose and effect of the law was not to prohibit religion but to promote general welfare by discouraging drugs.
freedom of speech and expression
this refers to the ability of individuals to voice their opinions, state their beliefs, or engage in expressive action without punishment from the government for doing so.
protected speech & unprotected
speech that the government MAY NOT allowably restrict or prohibit (it would constitute a 1st am violation) ex: debate, prayer, etc..
unprotected - speech that may allowably be restricted or prohibited if the gov so chooses
clear and present danger
when a person or group's remarks create an immediate danger to the peace or ublic order, gov can prohibit or stop the speech.
Dennis V. US (1951)
bad-tendency rule : state law made a crime to conspire to teach, advocate or organize the violent overthrow of any gov in teh US> law upheled even tho no immediate danger, the gravity of evil proposed justifies the invasion into free speech rights .
many state and fed laws make it a crime to create or distribute obscene material and the supreme court has generally held that obscene material is nOT protected under the first amend free speech rights.
Miller V. CA
what is obscene!
1) avg person finds the expression violates recent community standards
2) work is made to appeal to a deviant interest
3) work shows patently offensive conduct
4) work lacks serious redeeming literary, artistic, political OR scientific merit
defamation of character
freedom of speech does not extend to making false, reputation-damaging statements about others.
slander: statements orally. libel : in writings.
to win a defamation case:
- statement must be false (truth is defense)
- statement must be heardseen by a third party
- must prove fiscal harm resulting from newly damaged rep
heckler's veto
loud and boisterous to drown out the speaker's voice
prior restraint
attempted censorship of speech where the gov is trying to stop teh speech BEFORE it occurs, instead of making laws that punish it AFTER
Supreme Court holds - prohibition against prior restraint is so strong that even when the gov argued that national security was at stake in preventing the NY times from publishing secret docs, the court still found in favor of the newspaper
When can gov restrict symbolic speech/expression? 2 types of analysis apply
- if gov's intent is to stop the communicative content of the expression, court will find the law to be unconst.
- if gov's intent is something otehr than trying to stop the communicative content of the act,, even if the expression gets incidentally restricted, the court will uphold the law.
US vs. O'Brien (1968)
O'Brien burns draft cards as part of a protest against Vietnam war. convicted of violating a law which made it a crime to mutilate a draft card. holding: gov's law is an allowable restriction. the purpose was to preserve an orderly draft, not stop free expression
Texas vs. Johnson (1989)
Texas Texas state law deemed it a crime to desecrate a flag in a way likely to offend others. johnson burns a US Flag while shouting "America the red, white and blue, we spit on you". arrested + guilty.
SUpreme court overturned the conviction and upheld the gov's law unconstitutionally violated the first amend. the gov intended to censor an odious message.
gag orders and summary judgement
pre-trial order prohibiting the press from publishing info on a case.
summary judg- pre-trial motion made by teh defense to dismiss the case or lack of evidence
Nebraska Press Association v. Steward (1976)
defendant's case is mass murder that attracts widespread media attention. trial judge orders a gag order, the press appealed it to the supreme court.
holding - gag order violates the 1st amend freedom of the press, and that the defendants 6th amend rights could be preserved via other ways - change in venue, postpoenent of trial, careful voir dire
Gannett Company vs. De Pasquale (1979)
district court judge closed pre-trial proceedings to the public to protect defendant's 6th amend rights. press sues when blocked by a closed pre-trial proceeding, claiming their "special access to info" rights.
holding- closure of a pre-trial proceeding does NOT violate the first amend. defendant's rights can outweigh a press's rights for a fair trial
Griswold vs. Connecticut (1965)
connecticut law forbade use of contraceptives and the aiding or counseling of others. "planned parenthood" defendant was convicted of counseling. state law challenged as unconst for violating the right to privacy.
holding- court found that the combo of several amendments together, imply the existance of a right to privacy.
Roe Vs. Wade (1973)
state law in question for criminalizing abortions.
holding- state's ability to restrict/prohibit is limited as follows: prior to viability, state may not restrict a woman's ability to end her pregnancy. after viability, a state may restrict a woman's ability to terminate a pregnancy except where giving birth would endanger the health of the mother.
Webster V. Reproductive Health Services (1989)
can states insist abortions are privately paid for? Missouri state law bans use of public hospitals or other tax-payers for performing abortions. holding- law upheld.
liberal criticsm- those determined to get abortions may opt for a more dangerous route if a safe one is not available
conservative- lives saved
planned parenthood vs. Casey (1992)
PA law requires 1) pre-abortion counseling 2) waiting periods 3) parental consent .
all state requirements are upheld as constitutional.
Exclusionary Rule
Judicial policy since 1914, has been for the fed courts to prohibit the admission of any illegally seized or obtained evidence at trials, no matter how indicative of guilt it is.
extended to states in mapp v ohio
EXCEPTIONS- would have gotten it anyways, "good faith".
civil rights act of 1875
Declared that all citizens are entitled to equal and full enjoyment of all public accommodations.
constitutional challenge- southern business owners sue, claiming that the lang of the 14th amend only requires that STATES provide equal protection.
HOLDING- congress may not legislate social equality among private citizens. lang of 14th amend only applicable to gov action and can't be extended to conduct between private citizens
Civil Right Act of 1964
prohibited discrimination on the basis of race, color, religion, national origin and gender.
* no discrimination in accommodations like hotels and restaurants.
Heart of Atlanta Motel V. US (1964)
petitioner challenges the law as a violation of the constitution, claiming that the prohibiting private discrimination extends beyond the scope of congress's enumerated and implied powers.
HOLDINGS- under sec 8, congress has power to regulate interstate commerce. ability to proscribe against behaviors that will likely have a harmful effect upon commerce.
Boy Scouts vs. Dale (2000)
NJ has a public accommodations law which prohibits discrimination on basis of sexual orientation. holding- state may not require private group to take action contrary to their own beliefs, this law infringes on BSA's freedom of association and their right to oppose homosexual conduct.
de jure segregation and 2 court cases
by law. plessy v ferguson- separate but equal.
brown vs. board- overturns plessy; segregation violates 14th amend.
de facto segregation
created by socio-economic conditions and residential patterns.
"white flight" - initial response to integration
Voting rights Act of 1965
1) outlaws discrimination on voting registration exams
2) fed administration of voting procedure in any state guilty of discriminatory voting practices
3) requires bilingual ballots in counties where 5%+ speak another language
The Feminine Mystique
Betty Friedan highlights teh unequal status of women in america after the passage of teh 19th amend
NOW ( national organization of women)
demand the passage of the eual rights amendment.
NOT PASSED bc it would be duplicative legislation (women protected under 14th amend) and large corporations save huge sums of money by paying female workers less
reed v. Reed
gains made in women's movement.
state law favored men in legal estates and wills. holding = law struck down as a violation of unequal protection for all
scrutiny test
for laws that discriminate based on gender.
medium "intermediate" - to be upheld, law must serve an important governmental objection and the means/discrimnation bust be substantially related toward the achievement of the objective
craig v. boren (1976) - implementing the medium scrutiny test
an Oklahoma law prohibiting the sale of mostly non-intoxicating beer (3.2% alcohol content) to males under 21 and females under 18 was challenged as violating equal protection.
state defense- law promotes traffic safety cuz statistically 18-20 year old males were arrested for drunk drinking much more than females
HOLDING- law struck down as unconst: the % of males out of the entire population that are convicted of drunk driving is too small. 2) law prohibits the sale of the drink, and not the possession and consumption. therefore it is easy to evade.
gov laws that classify/discriminate based on gender but were struck down under the medium-scrutiny test.
1977: Court held that police/firefighting units cannot establish height/weight requirements that preclude women
(b) 1983: Court held that insurance companies cannot charge different rates solely on the basis of gender
(c) 1992: Court held that a company could not forbid women from working in battery factories on the grounds that the work might cause infertility.
(d) 1996: Court held that a state-supported public military academy's policy of accepting only males violated the 14th amendment
ex of gov law that classified based on gender but was upheld under medium-scrutiny test: MIchael M vs. Superior court
CA law made men, but not women, criminally liable for having relations with a partner between 16-18. a 17 yr old defendant challenges the law as violating the 14th amendment since men alone are made criminally liable.
HOLDING- law is upheld and satisfies the med-scrutiny test bc: protecting against teenage pregnancy is an important interest. and the means are substantially related toward achieving this interest in that: pregancy affects women more, a criminal sanction against men equalizes the incentives against teenage relations.
women won't report the violations if they too could be held liable
Title VII of the Civil Rights Act of 1964- gender based discrimination in the workplace
1) blanket prohibition against gender disc in workplace
2) prohibits discrimination based on pregnancy
3) prohibits hostile working environment and sexual harassment.
affirmative action
gov's attempt to remedy the competative disadvantage suffered by minority groups as a result of past discrimination. A.A. policies give special preference in 1) education admissions 2) employment decisions.
UC Davis vs. Bakke (1978)
UC Davis medical school reserves 16b seats in each entering class of 100 for disadvantaged minority students. Bakke claimed the policy violated his 14th amend rights and CRA of 1964 .
holding- admissions policy struck down as unconst. blatant discrimination against white applicants. taking race into account is permissible, quotas are not.
Adarand Constructors v. Pena (1995)
adarand company- highway guardrail construction- submits lowest bid to a prime contractor working under a gov contract funded by US dept of transportation. terms of gov contract claim the prie contractor receives additional compensation if it selects a subcontractor that is owned by a disadvantaged minority.
gonzales construction is awarded the job- prime contractor admits they would have chosen adarand if not for the additional compensation clause
HOLDING- presumption of disadvantage based on race alone violates the 14th amend.
hopwood v. state of texas
Univ. of Texas Law School's admissions policy took race into account as one factor

Holding: Even to take race into account as a factor violates the 14th amendment rights of those denied admission based on this consideration.
ADEA Age discrimination in Employment Act
Act covers all people over 40
#2. Prohibits discrimination against people based on age unless age is a bona-fide occupational qualification.
ADA- Americans with Disabilities Act of 1990
1) prohibits job discrimination against those with physical or mental impairments
2) requires that all public buildings and services be made available to those with disabilities
3) requires employers to make reasonably accommodations to the needs of those disabled unless the accommodations ould create undue hardship on the employer
test for laws that discriminate on the basis of age, disability and sexual orientation
any law that discriminates on the basis of the above factors will be upheld if they
1) serve a legitimate government interest
2) the terms of the law are conceivably related toward accomplishing the interest
"non-suspect" classes
these 3 classes are given the least protection under the 14th amend by the court- some suggest that the classifications based on these factors relate more to legitimate, non-discriminatory purpose.