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key terms Flashcards

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1
Q

Governmental Authorities in U.S. Political System

A

Federal, States, Counties, Municipalities and Township, School Districts, Special Districts

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2
Q

Federalism definition

A

the system of shared and divided governance between the government and the states

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3
Q

powers delegated to the national government only

A
  • declare war
  • create and maintain armed forces
  • establish foreign policy
  • regulate interstate and foreign trade
  • make copyright and patent laws
  • establish postal offices
  • coin money
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4
Q

Powers reserved to States only

A
  • establish local governments
  • establish and maintain schools
  • regulate trade within states
  • conduct elections
  • provide for public safety
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5
Q

Powers delegated to both national government and states

A
  • Raise taxes
  • provide for the public welfare
  • criminal justice
  • borrow money
  • charter banks
  • build roads
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6
Q

Police power (state) definition

A

authority of state governments to pass laws (legislate) to promote the public health, safety, and welfare

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7
Q

Why do state governments have a broader authority to legislate than the federal government?

A
  • state governments aren’t limited to enumerated powers
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8
Q

All governmental authorities are restricted by

A

constitutional rights

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9
Q

What are both the state and federal governments limited by

A

U.S. Constitution

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10
Q

Policy Issues

A
  • ones where there are a range of possible options and the government has to decide what’s ‘best’
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11
Q

Both federal and state governments are what kind of systems

A
  • tripartite
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12
Q

three branches

A
  • legislative branch passes bills that become statutes (the main laws that govern society)
  • the executive branch enforces the laws.
  • the judicial branch interprets the laws and settles disputes in accordance with them
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13
Q

separation of power

A
  • between the 3 branches of the federal government allows each branch to check and balance the others.
  • According to the U.S. Constitution, the branches are coequal - no branch is superior to any other
  • Federalism also allows the state governments to act as checks on the federal government’s authority
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14
Q

Executive Branch Federal

A
  • Headed by the President
  • Includes multiple agencies that enforce laws and promote public policy, such as the DOJ, the Department of Homeland Security, and the State Department
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15
Q

Executive Branch State

A
  • Headed by a governor
  • Includes state agencies such as the attorney general’s office, the department of public health, and the department of education
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16
Q

Legislative Branch Federal

A
  • Bicameral, composed of the House of Representatives and the Senate
  • The House of Representatives and the Senate together are called Congress
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17
Q

State Legislative Branch

A
  • 49 states have bicameral legislative
  • Nebraska is the only state with a unicameral legislature
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18
Q

Interstate Commerce Clause

A
  • ‘The Congress shall have Power…To regulate Commerce…among the several States’
  • Congress uses the ICC to legislate widely on areas including public health, civil rights, environment protection, and interstate crimes
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19
Q

The Spending Clause - source of Congressional Power Today

A
  • ‘The Congress shall have Power..to pay the Debts and provide for the common Defence and general Welfare of the United States;
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20
Q

individual rights in the constitution =

A

limits on the government

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21
Q

federal judicial branch

A
  • Constitution says that Congress can set up additional courts, which was one of the first acts of Congress after the Constitution was ratified
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22
Q

State judicial branch

A
  • every state has a supreme court and lower courts
  • state courts deal with many of the mundane details of settling disputes between private citizens and handling family matters
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23
Q

what is the federal government limited by

A
  • enumerated powers
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24
Q

what do the federal courts do?

A
  • hear cases involving federal crimes - Constitution must specifically give the U.S. Congress the power to legislate in that area
  • handling issues that the Constitution explicitly says are the power of the federal government alone (immigration, federal income tax)
  • Hearing challenges to the constitutionality of laws under the federal Constitution
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25
Q

what does the supremacy clause say?

A
  • federal law takes precedence over state laws
  • the U.S. Constitution takes precedence over everything else (state laws, federal laws, and even state constitution)
  • U.S. Supreme Court has the ultimate authority to judge whether any laws accord with the U.S. Constitution, and it can strike down any law (even part of a state constitution) as unconstitutional under the U.S. Constitution
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26
Q

federal judiciary

A
  • U.S. Constitution sets up the Supreme Court of the (SCOTUS)
  • The constitution does not set up any other courts, but says Congress can do so if it wishes
  • ‘lower’ or ‘inferior’ courts because can be ruled over by SCOTUS
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27
Q

what act set up a system of lower courts

A
  • Judiciary Act of 1789
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28
Q

judicial review definition

A

= ability of the courts to comment on the constitutionality of other branches’ actions and the laws that Congress passes
- if the court find that a law passed by Congress is unconstitutional, they can strike it down

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29
Q

what are the two types of lower courts that federal law establishes

A
  • U.S. District courts where lawsuits are filed and trials are held
  • circuit courts of appeal hear arguments about whether the district courts properly interpreted and applied the laws
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30
Q

federal judiciary hierarchy

A
  • U.S. Supreme Court
  • U.S. courts of Appeals
  • U.S. District Courts
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31
Q

district courts

A
  • at least one in every state; some states have multiple
  • most (but not all) cases under federal law start out in the district courts
  • judges in the district courts oversee trials - process often issue interpretations of laws, in accordance with precedent
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32
Q

U.S. circuit court of appeals

A
  • losing party in a case may want to challenge the results from district court, or argue that the district court judge made errors in interpreting the law
  • appeals heard first by circuit court of appeals
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33
Q

how many circuits are there?

A

13

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34
Q

en banc review

A
  • entire circuit hears the case
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35
Q

federal lawsuit been dismissed on circuit level two options

A
  • en banc review
  • supreme court
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36
Q

how does cases get to the U.S. Supreme court - Article 3

A
  • small number of cases start and end in Supreme court - Article 3 gives Supreme Court original jurisdiction
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37
Q

how do cases get to the U.S. supreme court

A
  • majority, SCOTUS exercising appellate jurisdiction
  • cases can be appealed from federal circuit court (3-judge panel or the en banc court)
  • Unlike the district and circuit courts, SCOTUS has discretion to take our refute most cases (control of its own docket)
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38
Q

how can cases reach the U.S. Supreme Court from state supreme courts

A
  • cases can be appealed from a state supreme court if - and only if - they involve questions about federal law or the federal Constitution
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39
Q

3 paths to U.S. Supreme Court

A
  1. U.S. District Court (appealed through federal court system) -> Circuit court of Appeals -> petition for certiorari -> supreme court of the U.S.
    2.
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40
Q

remand definition (higher court to lower)

A
  • court kicks down a case to a lower level to carry out its orders
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41
Q

per curium opinion

A

announced in the name of the court

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42
Q

department usually means

A

exec

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43
Q

what does the separation of power between the 3 branches of the federal government allow

A
  • each branch to check and balance the others
  • according to the U.S. Constitution, the branches are coequal - no branch is superior to any other
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44
Q

what does federalism allow for

A
  • state governments to act as checks on the federal governments authority
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45
Q

panel

A

the three judges for the court of appeal

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46
Q

how does SCOTUS decide which 1% of petitions to hear?

A
  • cases about the separation of powers
  • different circuit courts have reached different views (circuit split)
  • cases that allow court to reconsider a problematic precedential opinion
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47
Q

who heads SCOTUS

A
  • chief justice
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48
Q

other justices in SCOTUS

A

associate justices

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49
Q

presidents role in supreme court judges

A
  • president gets to nominate a justice, but the senate has to confirm the choice
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50
Q

current U.S. Supreme Court

A
  • Chief Justice John Roberts
  • Clarence Thomas
  • Samuel Alito
  • Sonia Sotomayor
  • Elena Kagan
  • Neil Gorsuch
  • Brett Kavanaugh
  • Amy Coney Barret
  • Ketanji Brown Jackson
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51
Q

what is the number of justices in the supreme court based on

A
  • federal law and could theoretically change
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52
Q

opinions

A

written explanations

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53
Q

opinion for the court

A

majority opinion

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54
Q

concurring opinion

A

individual justices who are part of the majority will write an opinion explaining their own views

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55
Q

justices who disagree with the majorities decision can write

A

dissenting opinion

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56
Q

laws definition

A
  • rules that allow us to function peacefully as a society
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57
Q

what does a constitution set up

A
  • particular government and gives broad outlines of what power each branch has
  • in addition to the federal constitution, each state government has a constitution
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58
Q

statutes

A
  • laws established by a legislative body like the U.S. Congress
59
Q

case law

A

refers to the body of law that comes from the decisions of courts hearing particular cases. earlier cases set precedents - rules that are applied to later cases with similar facts

60
Q

why is case law important for understanding the constitution

A
  • the constitutional text itself is often vague
61
Q

relationship between constitution and legislature

A
  • constitution only sets up the basic framework of a government. the legislature has to supplement the framework with a detailed system of laws
62
Q

example of judicial review conclusion executive

A
  • the judiciary declares the executive action illegal and beyond the executive’s constitutional authority
63
Q

why is the judiciary reactive?

A
  • it responds to the behaviour of other branches
  • for the judiciary to declare a statute unconstitutional, congress or the state legislature first has to pass it
  • the judiciary only gets involved when a person harmed by the other branches brings a lawsuit - otherwise, it doesn’t get involved, even when the law looks questionable
64
Q

two ways of constitutional interpretation

A
  • originalism
  • living constitutionalism
65
Q

originalism

A
  • view that the constitution should be interpreted by looking at how it was understood when it was adopted
66
Q

living constitutionalism

A
  • view that the constitution’s meaning should evolve to keep up with the social, economic, and cultural changes
67
Q

holding definition

A
  • main decision reached by the court about a principle of the law
68
Q

questions to ask oneself when reading a constitutional case

A
  • what values are at stake
  • what is the interpretative method
  • how does the court make use of precedent -> does it overrule precedential opinions? does it uphold them?
69
Q

stare decisis

A

to stand by that which has been decided

70
Q

why might SCOTUS overturn/ overrule a previous decision

A
  • may say made a mistake in the past, or that circumstances have changed and previous holdings are outdated
  • new justices come to court, they may disagree with how previous justices decided certain issues
71
Q

silently overruled

A
  • Supreme Court won’t state outright that it is overturning precedent, but that becomes clear from the implications of its holding
72
Q

distinguish issues in one case from previous

A
  • allows Court to avoid overruling precedent, while at the same time not having to apply a previous holding to a current case
73
Q

dictum - plural (dicta)

A
  • additional commentary beyond the holding
74
Q

when lower courts hear cases, they are required to follow the supreme court’s holdings

A

(precedent)

75
Q

lower courts do not have to follow dicta, but the division between the dicta and the holding isn’t always clear

A

often, lower courts will disagree about what part of SCOTUS opinion is precedential

76
Q

the framers

A
  • the people who wrote the Constitution knew that there was always a danger that government officials would try to amass power
77
Q

solution to stop the government being too strong?

A
  1. checks and balances
  2. government of enumerated powers
78
Q

how do the checks and balances work?

A
  • the federal government doesn’t possess the police power, instead Article 1 Section 8 provides a list of enumerated powers
79
Q

what did the federalists believe

A
  • The Bill of Rights was not necessary
  • they thought the main protection of individual liberty would come from carefully limiting the power of the federal government to the enumerated powers and separating power among the branches.
80
Q

what are the amendments

A
  • important limits on the federal government
81
Q

why is a strong, independent judiciary important

A
  • necessary to check and balance the executive and legislative branches
82
Q

nothing is more threatening to individual liberty than

A
  • if the other branches can act however they want (arbitrarily)
83
Q

solution is the rule of law

A
  • we are all held to the same standards of behaviour
84
Q

Chief justice John Marshall

A
  • ## he was actually the fourth chief justice of the Supreme Court
85
Q

facts: marbury v madison

A
  • outgoing president, John Adams, wanted to fill the courts with his appointees before his left office.
  • When Thomas Jefferson took office as president and found out about this oversight, he told his new Secretary of State James Madison not to deliver the remaining commissions.
  • William Marbury was one of the judges who was to be appointed. he sued Madison for failing to deliver his commission and sought a writ of mandamus.
86
Q

writ of mandamus

A
  • a writ which compels a government officials to perform his duties correctly - from the Supreme Court to order Madison to deliver
87
Q

John Adams

A
  • outgoing president. Wanted to do last-minute court appointments
88
Q

Thomas Jefferson

A

Incoming president. Wanted to make his own court appointments

89
Q

James Madison

A
  • Jefferson’s secretary of state. Jefferson’s messenger in this story
90
Q

William Marbury

A
  • appointed to be a judge by John Adams, but never received his commission. Sued to fix that
91
Q

John Marshall

A
  • Chief Justice of the Supreme Court. Heard Marbury’s lawsuit against Madison (who are carrying out Jefferson’s wishes)
92
Q

Marbury v Madison - if he issued the writ and ordered Madison to deliver the commission

A
  • Madison might simply ignore him.
  • This would expose the Supreme Court as powerless to enforce its own decision
  • Federalist 78 - what power does the judiciary have to enforce its own judgements
93
Q

if he refused to issue the writ, it could seem like the Court

A
  • ## was simply caving to whoever was in office
94
Q

Marshall’s 3 question:

A
  1. Has the applicant a right to the commission he demands?
  2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
  3. If {the law} do afford him a remedy, is it a mandamus issuing from this court?
95
Q

third question in Marbury v Madison

A
  • court’s jurisdiction
96
Q

Article 3 of the Constitution

A
  1. Supreme Court is mostly an appellate court: hears appeals from the lower federal courts or from state supreme courts using its appellate jurisdiction
  2. Supreme Court has original jurisdiction over only a limited number of cases
97
Q

Marbury v Madison

A
  • Marshall pointed out that if the Supreme Court was issuing a writ of mandamus to a lower court, then it would be exercising appellate jurisdiction since the essence of appellate jurisdiction is ‘that it revises and corrects the proceedings in a cause already instituted’
  • SCOTUS was being asked to issue it to an official in a different branch
98
Q

Marbury v Madison 1803 - case

A
  • section 13 of the Judiciary Act of 1789, Congress said it was giving the Supreme Court original jurisdiction to grant writs of mandamus
  • Marshall asked whether Congress could do that:
  • Article 3 gives Congress authority over the Supreme Court’s appellate jurisdiction only
  • But Marbury had come directly to the Supreme Court asking for a writ of mandamus, pointing to section 13 of the Juridiciary Act of 1789
99
Q

Marbury v Madison 1803 - Marshall issues one of the most famous lines

A

‘it is emphatically the province and duty of the Judicial Department to say what the law is’

100
Q

Summarised Marshall

A

a) Mandamus would be the right remedy if the Supreme Court could issue it in this case
b) However, section 13 of the Judiciary Act of 1789 - which granted the Supreme Court original jurisdiction over writs of mandamus - was unconstitutional
c) An unconstitutional law is invalid and cannot be enforced
d) Therefore, the Supreme Court couldn’t issue the writ, and the case had to be dismissed

101
Q

McCulloch v Maryland (1819) facts of the case

A
  • the state of Maryland passed a law imposing a tax on banks that were not chartered by the state legislature
  • McCulloch worked for the Maryland branch of the Bank of the United States and he refused to pay up
  • Maryland sued him and won, but he appealed the decision, arguing the law was unconstitutional
102
Q

Two important questions raised by McCulloch v Maryland

A
  • Does Congress have the authority to establish a national bank, even though it isn’t listed under the enumerated powers in Article 1?
  • Could a state tax a federal institution?
103
Q

McCulloch v Maryland 1819 - Marshall’s argument

A
  • the federal government is one of enumerated powers
  • but we have to understand that list of powers properly
  • the ‘necessary and proper’ clause allows Congress to take actions that aren’t specifically granted in the Constitution, if
    (1) those actions are otherwise constitutional; and
    (2) they are means to carrying out the enumerated powers in the Constitution
104
Q

McCulloch v Maryland (1819)

A
  1. Congress has explicit powers in economic matters, e.g., regulating interstate commerce
  2. Nothing in the Constitution forbids Congress from establishing a bank.
    Therefore,
  3. Establishing a bank is a ‘necessary and proper’ way for Congress to carry out its enumerated powers.
105
Q

Chief Justice Marshall on the Interstate Commerce Clause

A

Marshall originally proposed a broad reading of the ICC to encompass many interactions between people:

‘it is the power to regulate, that is, to prescribe the rule by which commerce is to be governed’

106
Q

McCulloch v Maryland

A
  1. Does Congress have the authority to establish a national bank, even though it isn’t listed under the enumerated powers in Article 1
    Answer = Yes, this is allowed under the Necessary and Proper Clause because it’s in furtherance of other, enumerated powers and not specifically prohibited by the Constitution
  2. Can a state tax a federal institution?
    Answer: No, that would interfere with federal supremacy
107
Q

Tyranny of the Majority

A
  • democracy relies on majoritarianism, or rule by the majority
  • constitutional democracy has to accommodate both majority rule and minority rules.
108
Q

how does the executive check legislative branch

A
  • veto power
  • some discretion over how laws are enforced
109
Q

how does the judicial branch check the legislative branch

A
  • judicial review of legislation; invalidation of unconstitutional legislation
110
Q

how does the judicial branch check the executive branch

A
  • judicial review of executive actions
  • writ of habeas corpus (prevents illegal imprisonment)
111
Q

legislative branch checking executive branch

A
  • ‘power of the purse’
  • ‘impeachment power
  • consent needed for judicial appts and treaties (Senate)
112
Q

how does the legislative branch check the judicial branch

A
  • ‘power of the purse’
  • control over appellate jurisdiction
  • impeachment power
  • can propose constitutional amendments to override SCOTUS decision
113
Q

how does the executive branch check the judicial branch

A
  • in charge of judicial appointments
114
Q

what do federalists believe?

A
  • did not think a bill of rights was necessary
  • thought the main protection of individual liberty would come from carefully limiting the power of the federal government to the enumerated powers and separating power among the branches
115
Q

The Bill of Rights

A
  • First 10 Amendments
116
Q

Chief Justice John Marshall

A
  • he was the fourth chief justice of the Supreme Court
117
Q

what does a democracy rely on

A

majoritarianism

118
Q

constitutional democracy

A
  • has to accommodate both majority rule and minority rights.
119
Q

state action doctrine

A

legal principle that constitutional rights only restrict the action of the government

120
Q

Constitution places limits on legislatures which then

A

… writes laws governing private actors

121
Q

state actions doctrine states

A
  • that a constitutional rights only limit governmental actors
122
Q

Back then, the Bill of Rights was adopted, the Bill of Rights only applied to the federal government, not the state governments, and why?

A

The civil war

123
Q

What happened after the civil war?

A
  • The Constitution was amended to ensure the rights of former slaves
  • rather than being protectors of individual freedom, as the Federalists thought, some states had fought against the federal government to maintain the system of slavery
  • highlighted that we needed constitutional limits on the state governments, not just the federal government, to ensure individual freedom.
124
Q

what are the additions to the 13th, 14th and 15th Amendments called

A
  • Reconstruction Amendments because they were added during the post-Civil War period called Reconstruction
125
Q

The 14th Amendment includes a Due Process Clause

A

‘nor shall any State deprive any person of life, liberty, or property, without due process of law’

126
Q

selective incorporation

A
  • In the late 19th century, the Supreme Court began holding that the 14th Amendment makes some of the guarantees of the Bill of Rights apply to state governments.
127
Q

what does the state action doctrine

A
  • constitutional rights limit governmental actors, but not private ones
128
Q

constitutional doctrine of selective incorporation

A
  • applies some of the Bill of Rights to the states
129
Q

Three Arguments of Freedom of Speech

A
  1. The ‘marketplace of ideas’ argument
  2. The argument from individual liberty
  3. The argument from democracy ‘speech concerning public affairs is more than self-expression; it is the essence of self-government’
130
Q

14th Amendment includes what Clause

A

Due Process

131
Q

What is the Due Process Clause?

A

‘nor shall any State deprive any person of life, liberty, or property, without due process of law’

132
Q

What does the ‘incorporation’ mean?

A
  • some of the Bill of Rights limits state governments
133
Q

why ‘selective’ incorporation?

A
  • incorporation is an on-going process, because the Supreme Court has never held that all of the Bill of Rights applies to the states.
  • Instead, it has decided about specific rights as they’ve arisen in particular cases.
134
Q

When did the Bill of Rights regulate only the federal governments

A
  • 1791
135
Q

When did the Bill of Rights regulate some of the states (incorporated via the 14th amendment)

A
  • 1897
136
Q

what does the state action doctrine say

A
  • constitutional rights limit government actors, but not private ones
137
Q

truth as to the first amendment (when)

A
  • first amendment means that the government generally cannot outlaw or punish you for your speech (state action doctrine)
138
Q

part of respecting other people’s constitutional rights is

A
  • allowing them to respond to speech
  • other people can get angry
  • if you work for a private company, it can fire you
  • the state action doctrine says that private institutions are not bound by the First Amendment
139
Q

truth about first amendment

A
  • prevents the government from interfering with your speech. it doesn’t require anyone to help you make your voice heard.. or to listen
140
Q

Free speech clause can be understood as what

A
  • presumption that speech laws are unconstitutional
  • all else being equal, the government will usually lose in attempts to limit or punish speech
141
Q

2 exceptions to the free speech clause

A
  1. incitements of illegal (especially violent) activity
  2. threats
142
Q

First Amendment

A

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

143
Q

federalism also allows

A
  • allows the state governments to act as checks on the federal government’s authority

con law (3 decks)

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