The impact of the SC on public policy and rights protection Flashcards
List the 4 ways that it can influence policy?
To uphold existing policy
To remove existing policy
To establish new policy
To shape policy by declining to act
What makes the BoR so important
Most debated section of the constitution
Interpretation and application is as vital today at the time of writing
How have the rights of citizens been protected over time?
The FF added the BoR because they wanted to better protect the rights and liberties of citizens. Additional rights have been protected by other amendments since and also by court rulings discovering additional rights
Why was the BoR a necessary addition to the constitution?
The original constitution was more focused on creating representative government rather than protecting individual rights and liberties. The rights protected by the 1787 document are therefore primarily institutional ones. This is why the BoR was added a few years later, so that individual rights and liberties could also be protected by the constitution
What does the 1st amendment say about religious rights
The constitution says that ‘congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. The FF wanted to preserve religious freedom
What do Christians criticise about how the 1st amendment protects religious rights?
Evangelical Christians criticise the SC by saying it has paid too much attention to the first half of this statement (the ‘establishment’ of religion) by banning organised prayer on schools, and not enough on the second half of the statement, on religious freedom.
What does the 1st amendment say about free speech?
The 1st amendment also says that ‘congress shall make no law abridging freedom of speech, or of the press’
How do we know that religious freedom was important to the FF?
We know that the FF thought that freedom of religion was important because it was part of the first amendment
What does the establishment clause state?
The establishment clause states that ‘congress shall make no law respecting an establishment of religion’
What does the free exercise clause state?
The free exercise clause states that congress can make no law inhibiting the free exercise of religion
How does the SC decide whether a law violated religious freedom?
The SC came up with three tests to decide whether a law goes against the 1st amendment in Lemon v Kurtzman (1971)
What does the 2nd amendment state?
‘a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed’
What are the two interpretations around the second amendment?
There are two interpretations of this. Some see it as a collective right to own guns, related only to forming state militias. Most democrats and liberals take this view. But others interpret this amendment as guarenteeing an individual right to own guns. They argue that all rights within the BoR are individual, not collective, and so this one is as well. This view is taken by most Rs, conservatives and the NRA
What settled this debate?
The landmark case in DC v Heller (2008) made this an individual right
What is the most important thing that the 5th amendment states and what is the consequence of this?
The 5th amendment states that no person should be compelled in any instance to be a witness against themselves. Consequently, since a 1966 SC case, police officers read suspects the ‘Miranda rights’ advising them of their right to remain silent
What does the 8th amendment state?
The 8th amendment says ‘excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted’
What is the main debate that emerges from the 8th amendment?
The main debate here is over the death penalty. This is legal in 28 states, with southern states more likely to favour execution. Over the last 40 years the SC has made a number of decisions about where execution is ‘cruel and unusual’
What did the 14th amendment do?
The 14th amendment granted full citizenship to all those born or naturalised in the USA. It was originally intended to extend the 13th amendment, which three years had previously extended slavery
This amendment gave ‘equal protection of the laws’ to all citizens, as well as the requirement for ‘the due process of the law’. It also made it illegal for any state to deprive a person of life, liberty and property. Previously, these protections were only from the federal government
Give some examples of cases where the 14th has been important
This amendment was used to protect the right to an abortion in Roe v Wade, and in the Obergefell ruling to extend the right of marriage to same sex couples
Define public policy
Public policy is the laws actions and regulations of government that flow from a wider political vision and desire to make changes
Give an example of public policy?
An example of public policy could be affirmative action, which comes from the motivation to end discrimination and inequality towards African Americans
What is the more simple definition for public policy?
Public policy can be more simply defined as actions by congress or executive actions performed by the president
What is the role of the SC and why is this role so important?
The role of the SC is to interpret the constitution – any ruling it makes on acts of congress or executive actions of the president are therefore effectively sovereign due to the fact that the constitution is sovereign within the US political system
Give an example of a case where the SC upheld existing public policy
National Federation of Independent Business v Sebelius (2012)
Case background
The case primarily concerned federalism and saw the SC rule in favour of the federal government over the states. The case was a challenge to Obamacare. The state of Florida was the first to challenge the constitutionality of the act on the grounds that it restricted state power and would have broken the interstate commerce ruling
Ruling
John Roberts sided with the 4 liberal justices, arguing that Obamacare was constitutionally acceptable as the individual mandate was a form of tax. Congress had the right to impose this due to the constitutional power granted by Article I, Section 8 and the 16th amendment right for the federal government to impose income tax
Impact on public policy
Described by the New York Times as the most significant federalism decision since the New Deal. Obamacare demonstrated how the SC can find itself in the middle of hot political controversy. Healthcare was the main issue for the Obama presidency, making this a crucial decision. If the court had decided against Obamacare, there would have been huge constitutional repercussions. Claytone and Salamone argued in 2014 that the judgement stunned Rs, who were desperate to repeal the law, because they thought that Roberts would vote with the other 4 conservative justices to invalidate the law
Give an example of an SC case that upheld a presidential order
Trump v Hawaii (2018)
Background
Trump used executive orders to issue three bans on arrival from several majority Muslim countries due to his concerns over terrorism. Each of these were blocked by lower federal courts
Ruling
The conservative justices were joined by the swing justice, Anthohy Kennedy. They ruled that the president was justified in preventing those who he deemed detrimental to the interests of the USA from entering the country
Impact on public policy
The judgement was viewed as conservative judicial restraint, as it deferred to the presidency due to the democratic legitimacy of the position. Roberts argued that while 5 of the 7 nations had a majority Muslim population that fact alone ‘does not support an inference of religious hostility, given that the fact that policy covers just 8% of the overall Muslim population and is linked to countries that were previously designated by congress or previous administrations as posing a national security risk
What did the liberal justices say about the decision in the minority opinion?
The liberal justices disagreed, writing a scathing minority opinion, disagreeing with the majority opinion. They said that the US is built upon the promise of religious liberty. The FF honoured the promise of judicial neutrality. The court’s decision fails to safeguard this 1st amendment provision. It leaves undisturbed a policy first openly advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the US’, because the policy now masquerades behind a facet of national security concerns
Give some examples of cases where the SC has upheld existing policy
- NFIB v Sebelius (2012)
- Gonazales v Carhart (2007)
- Whole Women’s Health v Hellerstedt (2016)
- Trump v Hawaii (2018)
Give some examples of cases where the SC removed existing policy
- Rasul v Bush (2004)
- Hamdan v Bush (2006)
- Boumediene v Bush (2008)
- Citizens United v FEC (2014)
- McCutcheon v FEC (2014)
