Chapters 3-4

Question 1

Define Federalism

Answer 1

A system of government that divides sovereign power across at least two political units.

Question 2

Define Sovereign Power

Answer 2

The amount of authority and autonomy given to each unit of government.

Question 3

Balancing state and federal powers (example: national drinking age)

Answer 3

Congress cannot set a national drinking age. However, it can use coercive federalism by withholding federal highway funds from states to get them to raise the drinking age.

Question 4

Basics of federalism (separate versus shared powers)

Answer 4

Separate powers: state governments are not responsible for national defense or foreign policy. The federal government is not responsible for allowing smoking in restaurants.
Shared powers: both state and federal governments can collect taxes.

Question 5

Concepts supporting a stronger national government

Answer 5

Preamble to the Constitution (founding fathers said “We the people of the United States, meant for a less state-centric government).
Necessary and proper clause (Article I Section 8 leaves the door open for Congress to expand the scope of conflict and pass whatever legislation it wants).
Supremacy clause (Article IV states the Constitution is Supreme Law of the Land and all are bound to it).
Enumerated powers (powers given specifically to Congress).

Question 6

Concepts supporting stronger state governments

Answer 6

Tenth Amendment (often referred to as the “reserve powers clause,” the Tenth Amendment says that any power not explicitly given to the national government is reserved for the states).
Eleventh Amendment (prevents citizens of one state from suing the government of another state; Chisholm v. Georgia (1793)).

Question 7

Fiscal Federalism’s 2 grants

Answer 7

Categorical grants: money to states with “strings attached”.
Block grants: money to states where states
have discretion.
States prefer block grants, as they give the state government the opportunity to decide how best to spend the money for its citizens. The national government prefers categorical grants, as they give Congress more control over how the money is spent.

Question 8

Coercive Federalism

Answer 8

Requires states to change their policies by using regulations or mandates to change their policies. The national government may do this through changing regulations, by making mandates, or by threatening to withdraw federal funding for the states.
The national government also issues federal preemptions, which are rooted in the national supremacy clause.

Question 9

Competitive Federalism

Answer 9

Competition among the states to provide the best policies to attract businesses. It can be helpful, as it allows people to “vote with their feet,” but critics have also said that it can lead to a “race to the bottom,” whereby states compete in unhealthy ways that lead to social ills. But it usually increases trust in state governments over the national government.

Question 10

Tradeoffs of state power

Answer 10

Benefits:
More policy innovation, more policy responsiveness, more pathways to responsiveness, and checks national tyranny.

Costs:
Unequal resource distribution, unequal civil rights protections, and “Race to the bottom”.

Question 11

Civil Liberties vs. Civil Rights

Answer 11

Civil liberties are basic political freedoms that protect citizens from governmental abuses of power (the balance of individual freedoms with governmental interests).
Civil Rights are about equality among citizens and equal treatment.

Question 12

Origins of Civil Liberties

Answer 12

Creation of the Bill of Rights: first 10 Amendments created by the Anti-federalists for fear that the national government would become to powerful.

Due process clause of the Fourteenth Amendment: forbids states from denying “life, liberty, or property” to any person without the due process of law.

Selective incorporation: the process through which the civil liberties granted in the Bill of Rights were applied to the states on a case-by-case basis through the Fourteenth Amendment.

Gitlow v. New York: the first case that found that the Fourteenth Amendment incorporated certain amendments of the Bill of Rights.

Question 13

A fundamental problem of Civil Liberties

Answer 13

How to balance competing interests such as personal liberty with security or military strategy. Example: if terrorists were captured and they knew the location of a bomb in New York City, should they be tortured to protect thousands of lives?

Question 14

Freedom of religion in the Constitution

Answer 14

Establishment clause: part of the First Amendment that states, “Congress shall make no law respecting an establishment of religion,” which has been interpreted to mean that Congress cannot sponsor or endorse any religion.
Free exercise clause: part of the First Amendment stating that Congress cannot prohibit or interfere with the practice of religion.

Question 15

The First Amendment court cases

Answer 15

Schenk v. U.S.: “Clear and present danger” test, which allows the government to restrict certain types of speech deemed dangerous.

Brandenburg v. Ohio: “Direct incitement” test. Protects free speech unless it incites lawlessness.

Question 16

Protection of speech

Answer 16

Symbolic speech: nonverbal expression, such as the use of signs as symbols; it benefits from many of the same constitutional protections as verbal speech (ie. burning the flag).

Hate speech: expression that is offensive or abusive, particularly in terms of race, gender, or sexual orientation. Currently protected by the First Amendment.

Commercial speech: it’s tough to regulate commercial speech in our era, though ads can be regulated if they meet any one of three criteria:
The ads concern an illegal activity, the ads are misleading, or regulation advances a substantial governmental interest.

Question 17

Protection of money as speech

Answer 17

Spending money in political campaigns is also protected by the First Amendment. The Court balances two values:
the public interest in honest and ethical elections and the First Amendment rights of candidates and their advocates.

Question 18

Prior Restraint

Answer 18

A limit on freedom of the press that allows the government to prohibit the media from publishing certain materials. The Supreme Court looks unfavorably on government attempts to restrain the media.

Question 19

Rights of criminal defense

Answer 19

Due process rights: to protect the rights of people who have been accused of a crime.

The Fourth, Fifth, Sixth, and Eighth Amendments include:
Protection from unreasonable search and seizure
The right to a fair trial
Right to consult a lawyer
Freedom from self-incrimination
Knowing what crime you are accused of
The right to confront your accuser

Question 20

The Fourth Amendment

Answer 20

Protects against unreasonable searches and seizures.

“Probable cause” is needed to obtain a search warrant, but restriction is relaxed in schools or with consent of the searched.

The exclusionary rule says that illegally obtained evidence cannot be used in a trial. Has been weakened over time by:
Good Faith exception (officers gathering the evidence truly believe they followed the law).
Independent Source rule (evidence is collected by an outside source still within legal bounds).
Evidence found from an illegal search can be used if the person searched was a subject of an outstanding warrant.

Question 21

Requirements for a warrant

Answer 21

Generally speaking, before law enforcement can search your home a law enforcement official must seek a warrant from a judge:
Information must be provided that is based on the official’s personal knowledge;
Based upon probable cause;
Of specific criminal activity; and,
Must outline the specific evidence that is the target of the search.

Question 22

Exceptions to needing a warrant

Answer 22

Searches of the immediate area incident to a legal arrest.
Collecting evidence not included in a search warrant but that is open and in plain view.
Police roadblocks.
Searching passengers and the passenger area of a car if the driver has been stopped for a traffic offense.
Searching an area where the police have a reasonable suspicion that a crime is in progress or there is an armed and dangerous suspect.
Searches to prevent the destruction of evidence.

Question 23

The Fifth Amendment

Answer 23

Self-incriminating rights.

Miranda rights: the list of civil liberties described in the Fifth Amendment that must be read to a suspect before anything the suspect says can be used in a trial.

Double Jeopardy: being tried twice for the same crime. This is forbidden, save for two loopholes. You can be acquitted of criminal charges but guilty of civil charges. And you can be tried in federal and state courts for the same crime.

Question 24

The Sixth Amendment

Answer 24

Right to an attorney, a speedy trial, and an impartial jury trial.

The right to an attorney came about because of Gideon v. Wainwright. Gideon was too poor to afford counsel so he appealed his conviction under his 6th Amendment rights. The Court overturned his conviction.