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American Government
Semester 1, Chapter 2
GUARANTEED FREEDOM OR YOUR
MONEY BACK !
Well … sort of
Governmental Powers and Limits of the New Nation
One of the trickiest parts of establishing the government of this nation was
figuring out how much power the government should and shouldn’t have. A
major question that faced the new nation was: How do we maintain a central
government that can stand up to outside threats without compromising
freedoms that we fought so hard to establish? By the way, the issue of
government’s compromising individual freedoms is still a major topic.
We know that our government is a Federal system of government. This
means that we have a written constitution that divides the powers of
government on a territorial basis. There is a central, or national government
and several regional, or local, governments. Each level of government has its
own powers, operates its own agencies, and acts upon the people through its
own officials and laws. Maybe one reason why this seemed to work so well is
that most of the states were admitted to the Union after spending time as
an organized territory of their own.
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Our National Government is a government of delegated powers. Essentially,
we gave the government its powers. These powers can be divided up into 3
groups: expressed powers, implied powers and inherent powers. Expressed
powers are those that are literally written out in the Constitution. Implied
powers are those that are not expressly stated in the Constitution, but may
be reasonably inferred from the expressed powers. (We’ll get into an
example of implied powers in a little bit.) Inherent powers are also not
expressly stated, but they belong to the National Government as the
national government of a sovereign state. These powers are what national
governments have historically possessed. A good way to think of inherent
powers is that they’re powers that exist as a consequence of other
conditions; they lie within the meaning of fundamental concepts and ideas.
(Like sovereignty.)
Examples of expressed powers are the abilities to declare war, issue
patents, coin money, regulate foreign commerce and maintain armed forces.
An example of inherent power is the National Government’s ability to give
diplomatic recognition to China. The National Government has other powers,
like the power to fix standards of weights and measurements and the power
to regulate immigration. What category do you think these powers fall
under?
Within the National Government, the separate branches of government have
their own set of powers. For instance, Congress has the power to admit new
states to the Union. The Supreme Court has the power to interpret the
Constitution in order to make decisions about court cases and is often called
the “umpire” in the American federal system.
The Constitution allows some powers to the state, separate of its union with
the Federal Government. For example, the State is allowed to lay and collect
taxes of its own. (If you have a job, you probably already know this. Look at
your next pay stub and you’ll see separate deductions for state and federal
taxes. Sorry.) Any power that belongs to both the National and State
Governments are called concurrent, whereas any power belonging to only the
National Government is called an exclusive power. This doesn’t mean,
however, that the state can do everything that the federal government
does. Whenever a state law is in conflict with a federal law, the federal law
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takes precedence (must be obeyed). But whenever the provisions of an act
of Congress and the provisions of a treaty are in conflict, the one more
recently made takes precedence.
The Constitution says about the state’s powers: “The powers not delegated
to the United States by the Constitution, or prohibited by it to the States,
are reserved to the States respectively.” Seems like they get the leftovers,
huh? These powers are called reserved powers. Divided powers are those
powers that are divided among the National Government and state
government. States also have the power to enter into interstate compacts
among themselves. The Constitution does give every state the guarantee of a
republican, or representative, form of government.
States can receive “free money” from the Federal government in the form
of a block grant. (Any “slice of the federal aid pie” is a grant.) And any
citizen living in any state can enjoy the same privileges and immunities of the
several states.
The Federal government does have limits on its powers. The biggest example
of how the government is limited is the system by which it actually limits
itself: checks and balances. (We talked about this in the last chapter.) A
specific limitation of National Government’s power is that it’s forbidden to
tax exports.
LAWS
They affect us every day, yet we rarely stop to think about them. We usually
abide by them though sometimes we break the “smaller ones”. (Have you run
a red light lately?) Maybe you think of laws as an old stack of leather bound
books, collecting dust on a shelf somewhere in the White House. Actually,
laws are in constant motion, whether in the courts, on the streets or in
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Congress. They’re revised, applied, written or interpreted somewhere in the
U.S. every single day.
(This is a picture of the signing of the U.S. Constitution. Nice hairdos, huh?)
Let’s first talk about the first ten amendments to the Constitution, the Bill
of Rights. The Bill of Rights were originally intended as restrictions against
the new National Government only. (However, the state constitutions
guaranteed individual rights before they were listed in the national Bill of
Rights.) A listing of individual rights was very important to the states. You
will more than likely be familiar with a lot of them. A discussion about U.S.
law is almost impossible without an awareness of them.
CLICK HERE TO SEE THE BILL OF RIGHTS: Transcription: The
Bill of Rights
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The guarantees of the freedoms above are ONLY guaranteed up to the point
that you are not causing harm to others. Sometimes that line is clear, but
most of the time, it’s not. This is what the Supreme Court wrestles with. It’s
a misconception that any of the guarantees listed in the Bill of Rights are
absolute and that freedom means that anyone can simply do as they please.
We may not live in a dictatorial society, but we give our government the
right to have and use authority over us. Responsibility and accountability are
a major part of our free society, and courts have consistently upheld the
right of government to curtail certain actions by individuals in the interests
of society.
The Supreme Court has developed ways to determine the boundaries of our
freedoms. In deciding cases involving laws that punish sedition, which is the
incitement of rebellion against government, the Supreme Court has
developed the clear and present danger rule. It’s self-explanatory: in order
for sedition to be charged there has to be proof of clear and present
danger.
For instance, if you and a bunch of your friends are against your tax money
funding nuclear weapons research, you can sit outside any government
building you wish in protest. Ways that you could protest would be to voice
your opinions and carry signs – all OK under the law. You could also protest
through symbolic speech, which would be any form of protest that didn’t
involve the speech or print. BUT if you all want to go the home of your
representative and petition on his or her doorstep, your right to assembly
and petition will no longer be protected. You’ve infringed on someone else by
trespassing on private property.
This is a huge source of controversy for people with strong beliefs, and it
can be a slippery subject to grasp. Another touchy one is freedom of
religion, protected against both the National Government and the states by
both the 1st and 14th Amendments. The Establishment Clause (we’ll talk more
about clauses in just a minute) sets up a separation of church and state, not
allowing any organized religion to impose their views on public schools. This is
because the 1st Amendment allows for two parallel freedoms with regard to
religion, both the freedom of individual expression and the freedom from
having freedom imposed on you. It’s important to understand that with this
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freedom you have both an absolute right and a relative right. Your absolute
right is to believe whatever you choose. Your relative right has to do with
expression. No person may violate the criminal laws, offend the public
morals, or otherwise threaten the health, welfare or safety of the
community in the observance of his or her religion. You are allowed to pray in
public schools, but you are not allowed to make someone else pray in a public
school. There has never been any distinction made between colleges and
public schools on this matter. And there is no prohibition on studying the
Bible in a historical or literary text in a public school.
Censorship of spoken or written words before they have been expressed is
prior restraint. Technically, government is not allowed to do this. However, if
person A says something that is later found out to have damaged person B’s
reputation, person A will be sued for slander. With the freedom of speech
comes a lot of personal responsibility.
With the freedom of the press, shield laws grant reporters some protection
against having to reveal their sources. The idea is that the press keeps the
public informed in an honest manner, and the government can’t infringe on
the right of the people to have accurate information about public matters.
When reporters are building stories, which are frequently written in the
inverted pyramid style*, they have to be true to the bond of trust they have
with their sources. Out of all forms of communication, broadcasting
companies receive the most limited 1st Amendment protection. (Maybe the
government feels more threatened by the spoken word, rather than the
written. What do you think?)
The 2nd Amendment was added to the Constitution to protect each state’s
right to keep a militia. A major point of contention with those who believe
the 2nd Amendment protects an individual’s right to keep and bear arms.
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CIVIL RIGHTS
The guarantee of civil rights is one of the major elements of America’s
English heritage.
Here are the civil rights outlined in the 5th amendment as protection against
the National Government:
1 – No criminal prosecution but upon grand jury action
2 – No double jeopardy (like in the movie with Morgan Freeman and Ashley
Judd)
3 – No compulsory self-incrimination
4 – No persons to be deprived of life, liberty, property, without due process
of the law
Below are just some of the civil rights provided for by the 14th Amendment
against the state and local government:
1 – No denial of privileges and immunities of citizens of other states.
2 – No denial of equal protection of the laws.
3 – No person to be deprived of life, liberty, property, without due process
of the law (Sound familiar?)
4 – Guarantees of freedom of religion, speech, and press and the right of
peaceable assembly and petition
5 – No cruel and unusual punishment
TO LEARN MORE ABOUT AMENDMENTS 11 through 27 CLICK ON THE
LINK …
The Constitution: Amendments 11-27
TO LEARN MORE ABOUT YOUR CIVIL RIGHTS, CLICK ON THIS LINK
FOR The American Civil Liberties Union … ACLU: American Civil Liberties
Union
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Clauses
A clause is something that makes a distinct provision within a law. I’m sure
you’ve heard of a few, even if you can’t recall them. For instance, The Full
Faith and Credit Clause allows any legal marriage to be recognized in all
states, regardless of where you got married. (So even if you got married in
Kansas, you’re still legally married in all other 49 states instantly.)
Here are some more:
Due Process Clause
The courts realized the importance of due process around the late 1800s.
There are 2 types of due process, found in the 5th and the 14th Amendments:
(1) procedural due process means that government in all it does must act
fairly and use fair procedures. It answers the question: How does
government action take place? (2) substantive due process means that both
the ways in which government acts and the laws under which it acts must be
fair. It answers the question: What does government use when taking
action? Example of substantive due process: a total ban on private schools
would likely be struck down in court as a violation of this.
The Supreme Court’s application of the 14th Amendment Due Process Clause
has “nationalized” most of the basic guarantees in the Bill of Rights.
Although it’s important to note that the Constitution does not explicitly
guarantee due process.
Whether or not due process always works is another discussion. The answer
is, of course, no, it doesn’t always work in guaranteeing fair and equal
treatment to all persons.
Supremacy Clause
It states that “This Constitution … shall be the supreme law of the land.”
That’s about as straightforward as it gets.
The Necessary and Proper Clause, A.K.A. The Elastic Clause
This clause provides for Congress to have the implied power to make “laws
which shall be necessary and proper …” through a power that is expressed.
It’s more easily understood through an example. Congress has prohibited
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racial discrimination in access to such places as restaurants, theaters, hotels
and motels because of its expressed power to regulate foreign and
interstate commerce. While the Constitution didn’t directly provide for
Congress to make those decisions, the expressed power implies all of these
other things are illegal, too. It’s like the expressed powers are an umbrella
over all of the implied powers.
Crime and Laws
One thing that makes our court system so unique is that in any trial, the
burden of proof is on the prosecution. This allows the accused to remain
presumably innocent until proven guilty by fair and lawful means. Our court
system stands as the government’s major guardian of individual rights. Is
this a good thing? When it works, yes. But how many times have we seen high
profile cases where the public has already decided the verdict? This
happens frequently, and the media is usually to blame. (Although we can also
blame ourselves if we bought into forming our own opinions before hand!) At
any rate, these protections are provided for in the Amendments 5, 14 and 6.
(The 6th Amendment guarantees the right to counsel in criminal cases.)
Other facts you should know about crime and the law …
*Grand juries can make presentments.
*For an arrest to be lawful, police must have either a warrant or probable
cause. Also, under the Miranda rule, suspects must be informed of their
constitutional rights before police questioning.
*A law changing the penalty for a crime, applied after a person has been
convicted of the crime, is an ex post facto law.
*Bills of attainder are legislative acts inflicting punishment without a court
trial. The Constitution forbids Congress and the states to pass such laws.
*The practice of extradition, which is the surrender of an alleged fugitive
by one nation or authority to another, is referred to directly by the
Constitution.
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Constitutionality and Laws
The Supreme Court’s job is to determine constitutionality. That just means
they have to answer questions regarding whether situations brought before
them violate the Constitution or not. That’s an easy explanation for a very
difficult job. Especially since we can see from the Bill of Rights how open
the language is to interpretation. In the past, they have upheld the
constitutionality of all of the following: daily prayers in State legislatures,
the use of public funds to supply textbooks to parochial school (which makes
some people angry), and tax-supported busing of students to parochial
schools. But in order to be constitutional, a state’s parochial-school-aid laws
must meet the excessive entanglement standard. The Constitution also
allows tax exemption for churches and does not prohibit a minister from
holding an elected office.
Those who oppose parochial schools argue that public schools play an
important role in bringing pupils of various religious backgrounds together.
They object to separating children in schools on the basis of religion. They
also argue that parents who send children to parochial schools must accept
the financial consequences of that choice and not expect others to do so.
What do you think about this argument? Do you agree or disagree?
A landmark case in desegregation decided by the Supreme Court is Brown v.
Topeka. This case reversed the decision in Plessy v. Ferguson, it held that
segregation by race in public education is unconstitutional, and it struck
down the separate-but-equal doctrine in education. To remedy the enduring
effects of past discrimination, the Federal Government has required that
affirmative action programs be set up.
More important info about constitutionality:
*Mandatory death penalties for
unconstitutional by the Supreme Court.
certain
crimes
is
*The only crime the Constitution specifically defines is treason.
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considered
*The Supreme Court can uphold laws that treat men and women differently
if they meet certain criteria.
Citizenship and Immigration Laws
The topic of naturalization and immigration has been a hot topic lately with
the returning of Elian Gonzalez to Cuba. It was a situation that most people
had strong feelings about on both sides. Some felt that it was wrong to allow
him to stay, while others felt that it was outrageous to make him go back to
Cuba. Ironically, both sides of the issue used fundamental American ideals as
support for their argument. Regardless of how any of feel about little Elian,
the decision was made to return him to his father in Cuba. The Attorney
General made the decision to send him back based on immigration laws. It
was not a decision of expatriation, which is the act of dissolving one’s
citizenship. Expatriation has never been upheld in this country.
While recent immigration consists mostly of massive amounts of political
refugees from Cuba and Southeast Asia, prior to the 1880s immigrants were
mostly from the countries of Northern and Western Europe. The flow of
immigration hasn’t decreased in quite some time.
Under current law, a person must be of good moral character before
becoming a naturalized citizen. About 200,000 aliens become naturalized
American citizens every year. The other way to obtain citizenship is by
birth. If you’re born in the U.S. (Jus Soli) or born outside the U.S. of
parents who are U.S. citizens (Jus Sanguinis), then you’re automatically a
citizen.
Need Some Info?
A good place to find a list of specific publications of the National
Government is the Monthly Catalogue of the United States Government
Printing Office (GPO). website:http://www.access.gpo.gov/su_docs/sitemap.html
If you’re interesting in reading summaries of landmark Supreme Court cases,
look at Congressional Quarterly’s Guide to the Supreme Court or locate
U.S Supreme Court opinions from the online GPO by clicking here .
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*What’s an inverted pyramid style??
Think top-heavy, which is the way an upside-down pyramid would look. That
means
that the beginning of the news story is loaded with the
most
important information at the beginning, tapering off to
the
least
important details at the end.
Back
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