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PAF1250 - FINAL
(non-cumulative; this covers everything that we learned AFTER the midterm!)
Terms in this set (90)
distribution of power between the federal and the state sovereigns
from 1789 to 1935, we had a VERY limited federal sovereign
most of the power was left to the states aside from powers to Congress concerning the national economy and foreign policies/powers. back then in the 1900s, the fed. sovereigns spent ~1% of the budget/year; now it spends about 25% a year
from 1935 to present day, the power of the fed. sovereign shifts
fed. sovereign now does a lot of things that they technically shouldn't be doing according to a LITERAL reading of Art. I, Sec. 8. starting in the 1930s the Supreme Courts started reinterpreting the Constitution and what it said about the powers of the fed. sovereign/Congress, etc.
Gibbons vs. Ogden (1824 - NY/NJ)
precedent set: Congress has the power to promote commerce between the states, but NOT to go INTO the states and tell them what to do if the situation ONLY INVOLVES COMMERCE INSIDE THE STATES. (this precedent held for a very long time)
McCulloch vs. Maryland (1819)
MD wanted to tax fed. properties inside the state while the feds wanted to create a bank to fund infrastructure. SC struck down MD (didn't want states to get rid of feds inside the states/tax them out of existence)
"THE POWER TO TAX IS THE POWER TO DESTROY"
so here, a check was placed on the states.
Bank of the United States ended up being created to fund infrastructure even though nothing in Art. I, Sec. 8 says Congress can do this
Art. I, Sec. 8 states Congress can tax/borrow money/regulate interstate commerce/has naturalization powers/can create post offices, roads, and patents/declare war/raise and support armies/create courts inferior to the SC/provide for organizing and disciplining militia --- BUT THE ELASTIC CLAUSE makes it so that any laws that LEAD to the aforementioned powers are ALSO part of Congress's powers.
(aka this is a backdoor for Congress to expand federal power)
interpreted by the SC to mean that Congress can pass laws to promote commerce between the states -- and THAT IS IT.
but so long as certain powers and laws are interpreted to be part of the Commerce Clause... (ex: Railroad Act was deemed constitutional because railroads promote commerce across the states, so the states cannot stop the feds from building railroads across the country, etc.)
states don't have sovereignty over declaring that companies like Verizon cannot use a certain area or build cellphone towers in the states, etc. (under the Commerce Clause!!)
American with Disabilities Act
everyone with disabilities must be given reasonable accommodations (think sidewalks with the little slanted ramp area at the corner of every block)
technically, Art. I, sec. 8 doesn't say anywhere that Congress has the power to regulate disabilities at all
Clean Water Act
sets minimum standards for water cleanliness -- states can set even stricter guidelines for their individual states (it's not in violation, it's complementary to the federal law!)
The Commerce Clause + Health Insurance
Congress said every American MUST HAVE HEALTH INSURANCE -- if you don't, you'll be fined.
problem: how can Congress force you to buy something?
this went to the SC!!
state and federal sovereignty - founders' vision and now
the states have lost a HUGE amount of sovereignty compared to what the founders envisioned; the states are almost like administrative units of the federal sovereign now, whereas the founders' vision was designed for the STATES to be the sovereigns!
wants power centralized in D.C. (like an imperial capital ruling over the country through fed. laws); states would be ruled by the experts but the states would have some sovereignty over certain things, just DILUTED power
The Supreme Court reinterpreted the Constitution in the 1930s with the Commerce Clause, which meant...
promoting commerce between the states AS WELL AS regulating commerce WITHIN the state IF THE COMMERCE AFFECTS ANYTHING INSIDE ANOTHER STATE.
IF YOU CAN SAY NY COMMERCE AFFECTS COMMERCE WITHIN NJ... THEN CONGRESS CAN REGULATE IT.
as long as they can argue that it affects commerce between states, then the fed sovereign has the power to regulate practically anything.
NLRB vs. Jones Steel Company (1937)
National Labor Relations Board (federal entity) tried to tell Jones Steel Company what to do... and the SC ruled it possible because it affects interstate commerce, and this case was ruled in favor of NLRB. This involves the fed. sovereign's power to go inside the states to regulate manufacturing processes (prices/processes/materials/labor costs/labor-management relations/etc.)
United States vs. Wrightwood Dairy Company (1942)
federal sovereign can set price controls/limits on how much agricultural produce can be produced by individual producers -- so now the federal sovereign is pretty much regulating anything
What does it mean to be conservative?
being worried that the federal sovereigns have too much power, so conservatives will have more narrow interpretations of the Constitution. (Originalists - they'll think the Constitution has been improperly interpreted because they have stricter readings of the Commerce Clause)
United States vs. Lopez (1995)
issue of having gun-free zones around schools; feds said nobody can sell guns or have stores selling guns within 100m of a school, but Lopez sued the feds because it should be up to the states
SC ruled in favor of Lopez
Affordable Care Act (Kings vs. Burwell)
unprecedented attempt to expand the fed sovereign's power over the people - first time in US history that the fed. sovereign said we HAD TO BUY SOMETHING whether we wanted it or not
SC ruled it fine but NOT under the Commerce Clause; instead, the gov't can fine you if you DON'T buy health insurance because a fine is a TAX, and Congress has the power to tax; ergo, we can be fined for not have health insurance like a tax to pay for NOT having health insurance.
new unprecedented definition for commerce
previously, commerce = engaging in/doing something; the Affordable Care Act is the first time that the fed. sovereigns said NOT doing something = commerce, and the fed. sovereigns can force you to do it.
point is: if they can force you to do something under the commerce clause, they can force you to do anything. the commerce clause gives a lot of leeway for the fed. sovereigns to shift more power towards them so long as they can prove it affects commerce!
What happened in the Supreme Court over the Affordable Care Act?
it was a 5-4 win with 5 Justices ruling in favor of the Act. Of the 5, 4 were left-leaning, whereas the remaining Justice was John Roberts, who was originally portrayed as an Originalist. When the 5-4 win came out, conservatives were outraged with John Roberts. (it had never been written in the Constitution that a fine = a tax, so many people thought Roberts was basically rewriting the law saying that a fine = a tax, which isn't supposed to happen -- and this hurt the legitimacy of the court, which is why the courts are pretty political)
What's important to remember about the Affordable Care Act in relation to the Commerce Clause?
the Affordable Care Act DID NOT EXPAND THE COMMERCE CLAUSE TO INCLUDE IT! The Affordable Care Act was achieved through interpreting fines as taxes, NOT as under the Commerce Clause.
What is an economic depression?
a TREMENDOUS drop in demand for goods and services; a tremendous decline in prices and employment.
price drops in certain sectors might be okay for a little while, but in the long run it's very damaging.
economic model vs. theory?
economic model = a quantitative theory applied to the economy.
theory = a simplification of reality WITH PREDICTIVE POWER.
if a theory doesn't predict what's going to happen, it's a bad theory; and if people continue to believe in it, they're not being empirical/rational/scientific.
a theory must be falsifiable, and we want the simplest theory possible but NO SIMPLER THAN THAT.
Critical Legal Theory (aka critical race theory being applied to the law)
the law = a tool for one racial group to oppress another racial group (comes out of Marxism)
the law isn't neutral and it doesn't judge people based on their individual actions -- therefore we shouldn't judge people based on their individual actions, but based on what group they're in!
(if someone is in an oppressed group, they shouldn't be prosecuted)
What was the purpose of the Senate to the Founders?
the bicameral system we have means things must be confirmed by the Senate even when proposed by the President -- so the Senate does have significant power.
Remember: the USA isn't REALLY a democracy -- the founders thought pure democracy = unstable/prone to hasty decisions/people can be easily manipulated by charismatic speakers, which would ultimately devolve into anarchy, and then a dictatorship. Therefore, we're supposed to be a democratic REGIME, but ultimately, we are a REPUBLIC.
the founders wanted to make a federal republic instead of a pure democracy - for what reason?
to prevent tyranny and promote double security for We the People! -- we can turn to fed./state sovereigns when the other sovereign is oppressing us.
Senate is to representing the states as...
House of Reps is to representing the PEOPLE.
we used to vote for the state legislatures/House of Reps. while the senators were elected by OUR chosen state legislatures.
What is the Senate meant to do?
The Senate is meant to moderate the will of the people in the case of a super radical party taking over; they're meant to SLOW THINGS DOWN and OBSTRUCT a powerful President who is backed by his party/House of Reps. (remember: quick, radical change was seen as unstable); they should cool the passions of the people and the House of Reps.
Senators serve for 6-year terms, and there's NO LIMIT to the amount of terms someone can serve! -- aka this is why nobody wants to offend Senators because they're ALWAYS going to be there and they're ALWAYS going to hold power over federal money
a Senate ruling tradition of having unlimited debate, because extensive debate and discussion was thought to yield better results
but if you think about it, it means that if a senator doesn't want to pass a law, an option could be to have a never-ending debate on it. (this power was originally meant for the minority in the Senate, so that they could obstruct/slow down things from happening)
before ending the debate, there's a vote to end the debate called the CLOTURE vote (to win the Cloture vote, you need 60 votes)
bc the filibuster is in effect now, it forces moderation and compromise -- since radicals won't agree on votes, it quite literally ensures that there's moderation in debates/suggestions.
hysteresis (in economics)
an event in the economy that can persist into the future, which basically causes us to be stuck in a loop of misery (ex: the delayed effects of unemployment -- even after the economy has recovered, rates of unemployment can continue to rise)
this is what happens during depressions!
countercyclical fiscal policy
when our gov't has been borrowing/spending money regardless of whether the economy is doing well or not, then to counter all that money loss we should ACTUALLY be saving money. therefore the gov't could start to tax the people... but they'll end up spending more, and then THAT debt is what we'll have to deal with later...
2008 Banking Crisis
there was a collapse in DEMAND -- the Bush administration tried to save the banks with huge injections of gov't money (to be paid back later)
our fed. debt has risen (during Obama's administration we borrowed a lot of money for more production bc the idea was to tax the production later, etc., and while his team did a great job getting us out of the bad unemployment rates and financial crises...) and we should be paying this debt back but instead we keep spending more!!!
Civil Liberties vs. Civil Rights
civil liberty = an area of behavior/thought/belief where the sovereign CANNOT coerce the INDIVIDUALS; BUT if the sovereign will coerce you, there's a rigorous and difficult procedure for it.
civil rights = an area of behavior where the sovereign MUST COERCE INDIVIDUALS AND INSTITUTIONS to treat other individuals and institutions in a particular manner.
THE BROADER THE CONCEPTION OF CIVIL RIGHTS, THE MORE RESTRICTED CIVIL LIBERTIES ARE.
Constitution: Civil Rights Amendments (13th + 14th)
13th: basically said no slavery (A cannot buy B, and if anyone tries to do so, the sovereign will coerce that person for trying to buy someone as a slave)
zone of liberties and sovereigns
the sovereigns are always trying to penetrate the zone of liberty. Zones of liberty exist under civil liberties, and they're NOT ABSOLUTE -- they include religion, speech, arms, property, trial, torture, privacy, and search, etc.
What counts as a civil rights violation and how can you be protected?
You're protected if you're under a protected category (race, religion, sex, etc.)
unprotected categories: being poor; height; weight; being uneducated; etc.
Civil right cases to keep in mind - religious/Christian bakers vs. [some] state sovereigns
Gay couples were turned away by some super religious bakers or owners of a farm (they wouldn't rent out the farm to a gay couple for a wedding)
argument was that it was against their religious convictions to allow the gay couples to use their services/farm, etc.
both cases (the bakers and the farm wedding) were lost (this happened many times across different states, and the "freedom of religion" argument actually caused these kinds of people to lose their cases many times)
Civil rights case - hotel owner
a hotel owner once refused to serve black people in their hotel, because "hotels are private property; therefore I can do what I want with my hotel"
SC ruled under the 14th Amendment that they could COERCE them into NOT depriving people of their right to pay for a night to stay based on someone's race, etc.
just keep in mind the sovereign won't coerce EVERYTHING, though
What does it mean for Congress's inability to abridge your freedom of speech?
it means the sovereign cannot stop/punish us for SAYING something. We also cannot be forced to say things. We cannot be punished for what we DON'T say, either!
ex: (CA) a gay couple went to a baker for a cake and to write their names/congratulatory message on the cake, but the bakers won in this case in refusing to write the congratulatory message (it counts as speech!)
Keep in mind: hate speech is LEGAL in the USA as of right now :(((
WHAT ARE SOME EXAMPLES OF SPECIFIC CIVIL LIBERTIES?
2nd Amendment protects our rights to bear arms, but does this mean on the militia's rights or the people's rights to bear arms as well?
In D.C. & Chicago, it was illegal to own a handgun unless you were an official/policeman -- but the people protested this on the basis of the 2nd Amendment. so PRECEDENT WAS SET: the people can bear ONLY "common use" weapons like a pistol/rifle/shotgun -- but NO SEMI-AUTOMATICS.
now, in NYC, we have some of the strictest and most intrusive laws for guns
- SUPER high fees (so as to try and deter against buying guns easily)
- intrusive applications, etc.
What are the 4 biggest deficits today (in terms of federal debt)?
1) Budget deficit
2) Savings deficit
3) Trade deficit
4) Leadership deficit (this is the most serious)
our problems with our budget/spending include:
we're practically addicted to debt at this point -- federal spending in 2008 amounted to $2.9 TRILLION, whereas the federal reserve then was only at $2.5 TRILLION, leaving us with a $410 billion budget deficit.
while we have large annual surpluses from social security programs, it's all being used up every year to pay other bills -- without them, our debt would be EVEN bigger than what it is. keep in mind we still have plenty of baby boomers waiting to retire and get S.S and Medicare... and yet we can't even pay our bills NOW. (as of 2017, S.S. is only adding to the huge deficit, and is no longer helping it!)
What are our issues with our savings deficit?
lots of us have NEGATIVE savings rates -- majority of people now are living paycheck to paycheck, and it's going to take a crisis to realize that we're not saving money (look at the situation right now with COVID-19 pandemic)
what does it mean to save money?
saving is just putting aside a part of what you produce or have in your income so as to have a provision for your future. over a short run, we CAN consume more than we produce -- but we cannot do this in the LONG run!
without saving, there's no future.
problems with our trade deficit?
we import more than we export -- in 2007, the USA was dead last in terms of having trade surpluses across the world (China had the largest trade surplus)
if you're buying more than you're selling, your trade partners are eventually going to own A LOT of your wealth!
USA's top 5 trade deficits?
China; Oil Exporters; Canada; Mexico; Japan
how does the federal gov't borrow money?
in the past, the gov't turned to the American public (especially after WWII) but nowadays we're growing increasingly reliant on foreign countries to finance our debt and provide capital for investment
this may be okay in the short run, but our reliance is increasing EVERY YEAR!!!
top 3 foreign holders of U.S. gov't debt? (2007)
Japan; China; Oil Exporters
what are our problems with leadership deficit?
our nation's biggest challenge is that so many leaders KNOW of our financial crisis, but NOTHING is being done about it.
01/2000 - Fed. debt at $5.6 TRILLION; George W. Bush won the election and prioritized a LARGE TAX CUT
09/2001 - 09/11 attacks pushed USA to wars in Afghanistan and Iraq, which costed hundreds of BILLIONS
by 2003 - 3 MAJOR tax cuts had been passed, and in 05/2003, federal debt was at $6.5 TRILLION
What happened as a result of all the tax cuts and interest rates being cut by the federal sovereign (during Bush's first term)?
Interest rates were cut by the feds TWELVE TIMES - and that led to the USA $ declining against other currencies.
(as Bush's popularity plummeted, he signed Medicare-D into law, which was a drug benefit program. he ended up being re-elected and fed. debt became $8.7 TRILLION in 2007)
point is: the gov't has a LOT of unfunded gov't obligations and promises...
civil liberty: the police can't arrest you and leave you in prison without a charge - you must be charged with a crime within 48~72 hours or they have to release you, or else your lawyers can come in with a habeas corpus petition from a judge to order your release.
this is a protection of YOU.
the 8th amendment says we cannot have cruel/unusual punishment or excessive bail/fines... but who determines what's excessive or not?
THE FEDERAL JUDGES - their power is to interpret the Constitution, so they have final say. They'll decide if something contradicts the Constitution or not, and it is the federal judges who have final say on ALL CIVIL RIGHTS AND CIVIL LIBERTIES.
the federal judges and the death penalty
if the judges say the death penalty is constitutional, that doesn't necessarily mean all the states (or even the federal sovereign themselves) will implement it. BUT if the judges say it's unconstitutional, then it is no longer up to state elected officials -- it is completely outlawed as per federal instructions.
it is up to the federal sovereign to use, but it isn't the mandatory federal punishment. It's just a VIABLE option.
abortion + the federal judges
as of right now (2020), it's a civil liberty under privacy (feds cannot coerce anything in this zone!) - Roe v. Wade (1973) set precedent for abortion rights.
IF THE FED. SOVEREIGN DECIDED THAT ABORTION IS NOT COVERED UNDER PRIVACY, ABORTION WOULDN'T NECESSARILY BE ILLEGAL THEN EITHER!
If judges somehow overturn Roe v. Wade and abortion becomes unconstitutional, it's not exactly criminalized or illegal -- it's just no longer a right protected by the Constitution... and since it's not a protected right, it would be up to the elected branches (Congress/the States) to decide if it's illegal or not because the CONSTITUTION has no say in it.
What would happen if Congress decided on a federal law to say that abortion is legal?
under Supremacy Clause, states thereby MUST NOT criminalize abortions - they don't have to allow performance of abortions, but they CANNOT ILLEGALIZE IT.
what if Congress said abortion was illegal?
the states might not criminalize abortion... but someone could be punished at the FEDERAL level if caught!
ex: NY wants LEGAL abortion and wants to sue the feds for having no right to infringe on NY and say if abortion is legal or not (since it's not stated in Art. I, Sec. 8); then Congress could argue that under the Commerce Clause, abortions = medical practice = commerce of medical supplies (or something else)
Who gets final say in this case? THE FEDERAL JUDGES
What if Congress says NOTHING about abortion (stays uninvolved because it's too controversial)?
each state would therefore decide on a state-by-state basis if abortion was legal or not.
Progressives would want the experts to decide (like the highly educated judges); the judges kind of think it should be in the hands of the people (Congress + the states)
On what basis is pornography protected by the Constitution now?
under Freedom of Speech - it wasn't protected in the past and thus people had to turn to the mafia for protection. back then, the zone of liberty in all matters of sexuality was basically pushed out by the court, and it was the people who elected governors/state officials that decided on making things like pornography, homosexuality, and abortion illegal. ultimately, the judges later decided pornography was a form of speech because speech = expression, and so it became protected under freedom of speech.
before 1975, was the death penalty considered cruel and unusual punishment?
no, it wasn't really considered cruel or unusual. Keep in mind that under the Constitution, the judges decided that the 8th Amendment really specifically meant no punishments that are BOTH CRUEL & UNUSUAL, not just one or the other!
since then, the death penalty has been outlawed - which means that We the People do NOT decide on the death penalty to be used: it's now only up to the federal sovereigns to use.
What is considered cruel and unusual punishment?
If it hurts too much (like stoning or burning to death) then that's considered cruel and unusual punishment. Lethal injection also counts as cruel and unusual IF IT TAKES TOO LONG OR CAUSES SUFFERING BEFORE THE CRIMINAL DIES. Overcrowding in prisons also counts as cruel and unusual punishment - and prisoners can actually sue for this!
Now, We the People basically decide on what ARE appropriate punishments through our elected officials - so we're pretty much ruled by the federal judges for issues of "cruel and unusual punishment" and other things involving the law, which is why WHO sits on the Supreme Court COUNTS.
How did the Federalist Society come about?
Starting in the 60s, cultural revolutions (sexual, etc.) started happening, and thinking because more secular and individualistic thanks to the elite (the elite were the ones who were actually more liberal than the people; the common people were actually more conservative and thought that judges were just doing what the elite wanted). The conservatives (common people) decided to organize in law schools, and created the Federalist Society so as to take back the judiciary from the liberals (elite).
Until Cavanaugh came into the picture...
the central power for the liberals was really the Supreme Court (Progressives) for the past 50~60 years.
the founders probably never would have been happy with how powerful the federal judiciary has gotten now, though
Why did the Supreme Court decide to change their mind on the death penalty?
They decided it was unconstitutional... but then they later changed it again after some articles about t he possibility of heinous criminals walking free to commit crimes again. Now, some states have a death penalty, and some DON'T. It all depends on the state legislatures to decide.
If the state/fed. sovereigns want to execute a criminal in a painful way, the criminal's lawyers could sue the sovereign under what basis?
Under "cruel and unusual punishment" - and in this case, then it would be up to the federal sovereigns to decide if it truly is "cruel and unusual".
civil liberties of the First Amendment - Religion
- judges get final say on what counts as exercising religious liberty or "establishing" a religion & Congress cannot make laws respecting the establishment of a religion nor can they prohibit the free exercise of religious liberty
- there's no religious test for office either (it's not allowed in the U.S. - just swear to uphold the CONSTITUTION, not to the pope or President, etc.)
- the single BEST predictor of what political party you'll fall into is actually your religiosity - the more religious you are, the more likely you'll end up as a Republican; less religious people are more likely to end up as Democrats
Point: THERE CANNOT BE AN OFFICIAL, NATIONAL RELIGION OF THE USA
what counts as "establishment" of a religion?
whatever the judges say counts - judges have final say!
USA is considered a Christian country bc it was founded by them and most people are Christians, but there's no official national religion vs. places like Germany or Iraq that have official state religions in certain places or certain religions that are legal to practice.
- it used to be okay to have Christmas nativity scenes on public property in NY, but it's now considered unconstitutional because it establishes a religion
- also notice we no longer have "Christmas" break - it's called WINTER break
How do Catholic schools apply to religious civil liberties or establishment of religion?
They're religious establishments so they actually don't need to pay taxes to the state for their property - but because only certain belief systems are recognized in this kind of way/situation, then some people do think that there is kind of an official religion in a roundabout way.
- Catholic schools cannot deprive non-Catholic students from attending the school, but the Catholic church does get A LOT of money from the state; and the judges say it's not "establishment of religion" so... it's not...
why do some people say there is a separation of church and state?
Taxes are paid separately to the Church and to your sovereign (the governors, etc.) so some people do say that spiritual matters are clearly separated from state matters like state taxes.
The Constitution technically never says "separation of church and state", it just says no ESTABLISHMENT of religion - so how much intermingling is allowed between the church and the state?
Intermingling is allowed SO LONG AS it serves an important public purpose. For ex: education is important for the public - which is why Catholic schools are allowed.
What is the free exercise clause?
The sovereign cannot prohibit the free exercise of religion - BUT THIS HAS LIMITS. If your "religion" means you're a cannibal and you attack your neighbor and eat them, that's NOT a free exercise clause - that's violation of SOMEONE ELSE'S rights/civil liberties. You can claim any religion you'd like, but there ARE LIMITS - you cannot just say what you want.
keep in mind: if the judges are saying that some ARE religions and some AREN'T - then couldn't you technically argue that you are establishing a religion here..?
no laws respecting the establishment of a religion or banning practice of religious liberties are allowed. for this reason, the military actually has official chaplains to provide spiritual sustenance to soldiers, and while there are various chaplains from various religions, they have to be trained to give spiritual guidance even if they aren't of that religion themselves!
cases involving free exercise of religion - A&Fitch
a Muslim woman working for A&Fitch won a case against the company for telling her not to wear hair cover-ups, but she sued them because it was her free exercise of religion
point: if you can do your job and it's not interfering with your job, then you should be free to exercise your religion (usually, anyway)
cases involving free exercise of religion - slaughterhouse
a slaughterhouse somewhere in the Midwest had a lot of Muslim employees that wanted a separate place to pray 7x a day - because there weren't ANY prayer facilities to begin with however, the business said "no - we don't do it for ANYBODY, we're not going to specially make a place for you either", and the business won this case.
cases involving free exercise of religion - flight attendant serving alcohol
A Muslim flight attendant refused to serve alcohol to a customer on the plane because it was against her religion - but she won this case against the airport because she can do her job MINUS serving alcohol: other flight attendants can do this instead of her.
What did the Affordable Care Act do?
it said any business employing 30+ or 35+ people needed to provide health insurance; it also illegalized certain health insurance policies and set minimum bars for what health insurance SHOULD cover (addiction/pregnancy/mental health/abortion/contraception, etc.)
Hobby Lobby vs. Burwell (the Affordable Care Act)
HL (Christian arts and crafts company) didn't want to pay for abortions/contraceptives - they weren't BANNING employees from getting it (it's a civil liberty) but they just didn't want to pay for it because it was against their views.
This went to the Supreme Court, and the SC ruled in favor of HL under the free exercise clause.
remember: religious liberty is highly contested - the Progressives want experts' words >> individuals' choices; they don't want individuals telling sovereigns to take a hike
people following the founders however, want sovereigns to have LESS power over religious freedom and more expansion on religious liberties
the importance of property and property rights
without property, there is NO individual freedom/rights. As an individual, we need property that the sovereign cannot touch in order to have LIBERTY. control over property/someone's living = controlling the man.
cases involving private property rights - grocer in Michigan
A grocer in Michigan was making huge cash deposits because he was afraid of having his money stolen - the IRS was okay with it at first but later seized his account under civil forfeiture.
IMPORTANT POINT HERE: just like you cannot be punished for a crime before you've been charged with a crime (criminal forfeiture), you cannot have your property seized before you've been charged with a crime. In civil forfeiture, you're not being charged with a crime, so the bar is lower.
civil forfeiture vs criminal forfeiture and the "innocent until proven guilty" civil liberty
In criminal forfeiture, you're innocent until proven guilty, but it's flipped in civil forfeiture. If your property is seized in civil forfeiture, YOU have to prove that you obtained your property through legal means in order to get it back. (in criminal cases, the SOVEREIGN needs to prove that you're guilty)
problem: in order to get your property back after the state has seized it, you need to prove you got it legally, and that means getting a lawyer and going through a legal procedure - and the avg. cost with legal fees is $100K: how do you pay this? if your money seized was less than $100K... does it really make sense to bother trying to get that money back by PAYING EVEN MORE?
so people usually tend to just roll over
what is the issue with police and law enforcement seizing people's money?
they have incentive to seize people's money - that money usually ends up being used in their own budget!
Endangered Species Act and property rights
This Act gave feds the power to designate an animal species (and plants..?) as endangered, which means the species are then protected by limiting property rights. It also gave power to the wildlife preservation organizations to prevent land developers from developing land ON THEIR OWN PRIVATE PROPERTY if it's found that an endangered species COULD survive there or is ALREADY there.
Clean Water Act and its implications in private property rights
the federal sovereign can regulate even a backyard pond because that's a "communicable waterway" (decided by the judges, again) that could potentially be harmful to water supply. If someone building a pond is fined on this basis, the people deciding on a fine or if a fine is excessive or not are also the federal judges.
What is the Administrative State?
it's basically all the bureaucrats who work under the Executive Branch to enforce laws, aka all the experts working under the presidency and executive branch; the bureaucratic experts, etc.
ex: FDA; Environmental Protection Agency (EPA); Federal Communications, etc.
Jones vs. EPA (Environmental Protection Agency)
Jones said the pond in his backyard was not a communicable waterway, but the EPA said otherwise.
CHEVRON PRECEDENT WAS SET: when someone's in a lawsuit with any part of the Administrative State, the judges will give deference to the Administrative State in terms of evaluating what is ethically correct or not (aka the judges will take the word of the Administrative State)
Why are people trying to push back against deferring to the Administrative State now?
the right side of the political spectrum thinks the Administrative State is being given too much power, and that judges should actually be exercise MORE discretion and not completely deferring to the Administrative State (particularly Cavanaugh)
When one of the new Judges was nominated by Trump, the single most important question was whether or not they'd follow the Chevron Precedent - because Progressives (Dem & Rep.) want the Administrative State (experts) to rule the people!
The Takings Clause (5th Amendment)
the sovereign CAN take your private property for public use AS LONG AS they pay you a fair market price for compensation - this is called eminent domain.
if the sovereign doesn't compensate you with fair market prices, that's a VIOLATION of the Constitution, and then you can sue the sovereign and go before the judges.
Why CAN the sovereign take away your private property in the first place?
we DO need things like bridges and tunnels and roads...
ex: Kelo vs. Connecticut: a real estate developer wanted to build a shopping center (for public use) but Kelo wouldn't sell his property, so the real estate developer (private developer) went to the state of CT, who decided to take Kelo's property and compensate Kelo AND THEN IMMEDIATELY SOLD THAT PROPERTY TO THE REAL ESTATE DEVELOPER. Kelo found out that CT was used as a go-between, and argued that CT can't just force him to sell to them and then right away sell it to the real estate developer. Unfortunately, CT won this case (5 to 4) and people became VERY upset, considering this basically meant any rich guy could potentially take your private property under guise of "public use".
Federalist 78 (Hamilton)
Judiciary branch is separate from the Executive and Legislative branch
- the Judiciary also has to have power to cut down laws made by Congress if these laws are deemed unconstitutional (judicial review)
addresses the qualifications of senators (stability), the appointment of them by the state legislatures, the equality of representation in the senate, the no. of senators and their terms (counter house's mob rule), and the powers vested in the senate.
- aka Senate's powers and their role in blocking and obstructing and slowing down things from happening so that a radical group doesn't take over the people and sway the whole nation in a radical direction
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