Polysci Final Exam

Major Premise of the Declaration of Secession (3 principles)
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Major Premise of the Declaration of Secession (3 principles)
First Principle: States have a right of self-government
Second Principle: The people have a right to abolish a government when it doesn't fulfill the ends they gave it
Third Principle: The Law of Compact - If one side of a compact violates it, the other side does not have to keep it either
Minor Premise of the Declaration of Independence
9 charges - All about slavery
- Confederacy seceded to defend slavery based on the minor premise
Wilson's goal:
- A society that enables people to satisfy their desires and develop themselves mentally and physically.
- Government should seek the same goal—because it just is the instrument through which society acts.
2 challenges the unregulated market pose to Wilson's goal:
1. natural monopolies give some special power over resources needed for self-development.
2. acting wrongly in business is sometimes cheaper than acting rightly
Wilson's solutions to each problem:
1. Government control of natural monopolies returns control of natural monopolies to society.
2. Regulation can forbid unscrupulous cost-cutting practices to prevent the amoral from having an advantage over the moral
Why does Wilson's argument point to the need for a bureaucracy?
- Bureaucrats are hired because they have expertise in a given field to be regulated, rather than for political qualifications
- They also spend their careers doing a given job, thus developing further expertise and familiarity with it
The non-delegation principle:
- "Delegated powers cannot be delegated"
- So, when the people have delegated authority to Congress, Congress may not delegate them to someone else
- Why do we care? To protect separation of powers
Hampton v. US
- Congress may delegate discretion over how to carry a law into effect.
- As long as Congress gives the president an "intelligible principle" to follow in carrying out a law, it is delegating discretion (okay) not legislative power (not okay)
- Congress may not delegate legislative power
NBC v. US
- The "intelligible principle" provided by congress was very broad: seek the "public interest, convenience, or necessity"
- The court held that even an "intelligible principle" this broad can be acceptable—at least where context can provide guidance as to the goal's meaning
Chevron v. NRDC
- The court lays down a 2-part test to resolve questions of statutory interpretation
-- If congress intent is clear, that is the law
-- If congress' intent is not clear, the court must decide whether the agency's interpretational is reasonable
- Courts should defer to agency interpretations of their authorizing statutes as long as interpretation is reasonable
Fiorina's concerns about the bureaucracy:- Methodological assumption: Political action is largely explained by self-interested behavior - First player: representatives want to be reelected - Second player: bureaucrats want their agency to grow - Third player: Voters want gov benefits - The bureaucracy has a built-in tendency to grow whether this is for the common good or not - Representatives have an incentive to let the bureaucracy make controversial policy decisions - Bureaucrats like this because it requires expanding the bureaucracyBernstein's concerns about the bureaucracy:- Gestation: A regulatory agency only comes into being when discontent over a problem has been growing for some time - A societal problem will only gain enough attention to provoke legislative when it is serious enough to impact many people significantly - Those to be regulated are a powerful interest opposing regulation—strong enough to demand a compromise bill. - Youth: A new agency is weakened by lack of resources and experience - Old age: the agency is finally captured and becomes the tool of the regulated - Regulated interests are much more greatly affected by regulations than the general public. - They will have a disproportionate influence on the regulations being promulgatedSchechter v. US- The law puts no limit on the president's authority to determine what codes to approve beyond forbidding monopolies - This is an unconstitutional delegation of legislative power. - Agencies are limited in that delegated discretion must be guided by a legal standardUniversal Camera v. NLRB- Old standard: if the agency provided "substantial evidence" its decision stands - New standard: agency decisions stand if they are supported by "substantial evidence on the whole record"EDF v. Ruckleshaus- The secretary MAY decide A) whether a pesticide meets federal safety standards and B) whether to allow its use even if it does not. - the law gives the Secretary of Agriculture SOME degree of discretion as to what exactly to do. - So, the secretary may NOT make decisions secretly or arbitrarily. They must be made via a public fact-finding process.Hamilton's arguments against a BoRs- America has no monarch, so a bill of rights is inappropriate - It would "take back" power never granted, thus implying that the government has ungranted powers - Fourth, the guarantees in a BoRs are worthless - Therefore, all rights must be defined in careful detail through politics, whether or not they are protected in a BoRsMadison's argument for a BoRs- First, federalists should prove their republicanism - The constitution grants authority over all necessary means to given ends - So, second, the BoRs can "take back" authority over dangerous means - Third, the BoRs authorize judicial review to protect rights - But, fourth, BoRs also shape public opinion—increasing respect for rights—and making the community less likely to attack them in the first placeWhat is the meaning of the (5th and 14th amendment) Due Process Clauses?- Due process of law means the procedures of the legal system - Due process: fair treatment through the normal judicial system, especially as a citizen's entitlement.Substantive Due Process (Dred v. Scott)- The idea that Due Process Clauses protect substantive rights from any legal processStrauder v. West Virginia- The equal protection clause requires equal legal treatment of all persons - Problem: There is no such thing; all people are similar in some way and different in others - Race defines such a societal divide, so racial discrimination in jury selection violates equal protection - States may still define jury qualifications, thus discriminating on the basis of relevant factorsIncorporation & due process clauseThe due process clauses of the 5th and 14th amendments apply SOME BUT NOT ALL of the bill of rights to the statesHow are rights incorporated?Rights are incorporated through the 14th amendment due process clauseMcDonald v. Chicago - The New StandardThe new standard, however, is whether a right is fundamental to the US constitutional traditionWhat did the Court say about liberty in Pierce v. Society of Sisters?There is a "fundamental theory of liberty" on which all US institutions are based, that forbids standardizing citizens.What did the Court say about liberty in Jacobson v. Massachusetts?- Liberty is never absolute; it is always subject to limits for the common good - The idea is contradictory: Liberty from harm by others cannot coexist with liberty to harm others - Their limits are defined by state police powers to regulate health, safety, welfare, and moralsThe welfare state- Able to control property for the common good—is a good development, but is becoming oppressive - Makes people dependent on it - Gov welfare should be considered property to protect people's rightsLiberty of contract:Individuals are free to buy/sell labor as they pleaseEstablishing MW for women results:- The law resulted, therefore, in increased unemployment, forbidding people to make trades that both wantedConstitutional argument for MW: (West Coast Hotel v. Parrish)- Constitutional liberty is always limited - And reasonable regulation is due process, so if regulation is reasonable it is constitutional - Adkins is therefore overruled, and freedom of contract largely abolished as a significant player in US constitutional lawWhat did the Court say about the Equal Protection Clause in Strauder v. West Virginia?- The equal protection clause requires equal legal treatment of all persons - Problem: There is no such thing; all people are similar in some way and different in others - Race defines such a societal divide, so racial discrimination in jury selection violates equal protection - States may still define jury qualifications, thus discriminating on the basis of relevant factorsWhat did the Court say about the Equal Protection Clause in Brown v. Board of Education?- The decision will not turn on different treatment in terms of resources provided - It will turn on the inherent nature of segregation - The very act of segregation communicates a message of racial superiority and inferiorityStrict scrutinyA policy must be "narrowly tailored" to a further a "compelling governmental interest" - Narrow tailoring requires that a decision not be mechanistic - The law school's decisions pass this test because they are individualized not mechanical - Undergraduate admissions use a point system that automatically awards 20 points for race—enough to virtually ensure admittance - Interest in diversity is still a compelling interest, but the program is not narrowly tailored - The process is too automatic and not individualized enough, so it is unconstitutionalHistorical causes of the Sexual Revolution- Culturally, awareness of promiscuity in other cultures increased, normalizing it Awareness of promiscuity in our own society increased, again normalizing it. - Demographically, the age group most driven by hormones and least practiced at delayed gratification increased (teenagers) - Economically, women entered the workforce, becoming economically independent, decreasing the cost of failing to marry and reducing the cost of losing one's virginity - A booming economy and unprecedented availability of consumer goods left people rich and bored, and sex passed the time - Technically, penicillin was discovered and came on the mass market, curing syphilis which was the most significant STD, and so reducing the cost of promiscuity - Modern contraceptives were invented and mass produced, decreasing the primary cost of (especially pre-marital) sexuality to womenThe Right to Privacy- Various amendments (1, 2, 3, 4, 5, 9) protect certain types of privacy - Those privacy guarantees require not interfering with married couples' choice about whether or not to use contraceptivesRight to Privacy applied to Roe v. Wade- Therefore, the court held that abortion is a protected exercise of the right to privacy - The court justified a legal right to abortion due to the detriment to the mother of an unwanted pregnancy - As with all rights however, this one is not absolute; some regulation of abortion in permitted.What is the current standard for abortion regulation, as explained in Planned Parenthood v. Casey?- First, before viability, states must not impose an undue burden on access to abortion - Second, after viability, the state may regulate abortion at will so long as there are exceptions for the mother's life/health - Third, the reason the state may regulate is its legitimate interest in protecting the mother's health and child's life (PICK THE CHOICE THAT TALKS ABOUT BEFORE AND AFTER VIABILITY)