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Article III
section 1 gives the Court judicial power and allows Congress to establish inferior courts; section 2 defines the Court's original and appellate jurisdictions
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judicial review
power of federal courts to review the acts of the other branches of government and the states
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The Judiciary Act of 1789
established the three-tiered structure of the federal courts: 1) district courts; 2) circuit courts, which can take appeals; and 3) the Supreme Court (originally only 6 justices)
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The Marshall Court (1801-35)
- established the Court as a co-equal branch (expanded the sc�s power)
- claimed the right of judicial review in Marbury v. Madison (1803) decision
- est. the Court's authority over state courts, including declaring state laws invalid
- established the supremacy of the federal government over state governments in McCulloch v. Maryland (1819)
- ended the practice of seriatim ("in a series") individual opinions; established a single "opinion of the court," so all justices spoke with one voice (not common today)
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the states also have a three-tiered structure:
- supreme court - highest court (may have different names in different states)
- appellate courts - hear appeals from trial courts
- trial courts - where cases begins (and end, if no appeal)
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jurisdiction
authority a court has to hear and decide the issues in a case
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original jurisdiction
determining the facts of a case; trial court�s authority
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appellate jurisdiction
power to review and/or revise the decision of a lower court
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criminal law
the state prosecutes criminals to protect individual safety and property: felonies, misdemeanors, offenses; usually plea bargains, so no trial
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civil law
regulates business and contractual relationships: lawsuits filed by injured parties ("plaintiffs"); but usually settle out of court
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The Federal Court System
- Supreme Court - final judicial authority and interpreter of the Constitution; decisions are binding on all other courts
- courts of appeals.- aka circuit courts; now strictly appellate courts for the district courts; 13 courts: circuits 1-11, plus "D.C. Circuit" and "Federal Circuit" courts; usually the "court of last resort;" has no original jurisdiction
- district courts - at least one in each state, each staffed by a federal judge: 94 courts, has no appellate jurisdiction; each district also has a U.S. Attorney
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precedent
prior judicial decision that sets a rule for settling similar cases that come later
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stare decisis
reliance on past decisions or precedents in new cases; allows for continuity and predictability, but is not applied uniformly; Latin, "let the decision stand"
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How Federal Court Judges are Selected
- appointed by the president - usually a partisan or ideological choice
- "advice and consent" - the Senate may reject or stall appointees on the same bases
- Congress can impeach
- "judges" characteristics - judicial, legal, or government experience; temperament; ABA rating; political connections; there are no specific requirements
- senatorial courtesy - senators often choose (or veto) federal district judges (and U.S. Attorneys) for their states
- originalism - uses the Framers- original intentions to interpret the Constitution
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Nominations to the Supreme Court
- competence - some judicial or governmental experience
- ideology or policy preferences
- rewards - for friends, party activists, or allies
- political support - to please a special interest or demographic group; can include religion, race, or gender
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Supreme Court Confirmation Process
- very political
- appointment by president
- investigations by special interest groups, FBI, ABA, & Senate Judiciary Committee
- ABA's vetting role was started by Eisenhower, ended by Bush
- lobbying by interest groups
- hearings in Senate Judiciary Committee - questions usually focus on ideology, issues
- vote in the full Senate - but lower court nominees have been blocked by filibuster, holds
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Robert Bork
nominated by Reagan in 1987, defeated by liberal interest groups and Senators in floor vote; many judicial appointees since then have been "Borked"
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clerks
very important now; do research, summarize the facts and issues in each case, and help justices write opinions; in 2005, the justices had 34 clerks (most had 4)
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amicus curiae
- "friend of the court;" a third party which files a legal brief in an attempt to influence a
- court-s decision
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solicitor general
No. 4 in the Dept. of Justice, handles U.S. government appeals to the Court; the Court usually accepts 70 - 80% of the cases the U.S. petitions for
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Opinions
- Three types
- The "opinion of the court" is the majority's ruling
- In a concurrence, a justice agrees with the result, but not the scope and/or reasoning, of the opinion
- A dissent, explains a justice's disagreement with the opinion
- written for the majority, in concurrence, or dissenting
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Judicial Philosophy and Decision Making
- judicial restraint - courts should allow most acts by Congress and the president, or else policy will be made by unelected and unaccountable judges
- judicial activism - courts should exercise broad powers to further their ideas of justice, especially in cases of equality and personal liberty; e.g. Roe v. Wade, Lochner
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implementation
carried out by "the implementing population:" judges, lawyers, public officials, police, administrators, corporations, etc.
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civil liberties
personal rights and freedoms that government should not shrink by law, constitution, or judicial interpretation (can force join army, smoking illegal)
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Bill of Rights
first 10 amendments to the U.S. Constitution; largely guarantees specific rights and liberties
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Due Process
guaranteed rights protecting citizens from arbitrary or unjust application of the laws; applied primarily to criminal procedural rights, but also to other processes
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Incorporation doctrine
holds that state and local governments must also guarantee due process rights; those rights have been selectively made applicable to the states, via the Fourteenth Amendment
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First Amendment Guarantees
- Freedom of Religion
- establishment clause - "Congress shall make no law respecting an establishment of religion . . ." Congress can�t establish a state church
- free exercise clause - ". . . or prohibiting the free exercise thereof." Congress can't interfere with beliefs, but may limit actions; e.g., no polygamy, no peyote use
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Freedom of Speech, Press, and Assembly
- Prior restraint - prohibits government from prohibiting speech; at first, was the only First Amendment protection (following the British model of the day)
- Alien and Sedition Acts - 1798 Federalist laws that banned publication of any -false, scandalous writing against the government of the United States;� Anti-Federalist Jefferson pardoned those convicted, and the new Congress allowed the acts to expire
- unprotected speech - includes libel, fighting words, obscenity, and lewdness (S.C., 1942)
- libel - untrue written statements that defame a person's character; truth is an absolute defense against the charge; see N.Y. Times v. Sullivan (1964)
- slander - untrue spoken statements that defame a person's character
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The Second Amendment: the Right to Keep and Bear Arms
- National Firearms Act (1934) - imposed taxes on automatic weapons (machine guns) and sawed-off shotguns; upheld in U.S. v. Miller (1939)
- Brady Bill (1993) - imposed 5-day waiting period on handgun purchases
- D.C. v. Heller (2008) Supreme Court affirmed personal (not militia-based) right to bear arms; but not applied to the states (yet)
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Fourth Amendment: Searches and Seizures
- sets out what may not be searched without a warrant (many searches can be)
- warrants can only be issued under �probable clause;- government can't use "general warrants" as British Parliament had done
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Fifth Amendment: Self Incrimination
- the accused do not have to testify; involuntary statements are not admissable
- "taking the Fifth" - heard in high-profile investigations
- Miranda v. Arizona (1966) - created "Miranda rights" and required police to advise people of their constitutional rights when arresting them
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Fourth and Fifth Amendments: the Exclusionary Rule
- police may not use illegally seized evidence at trial; asserted in Weeks v. U.S. (1914)
- applied to the states in Mapp v. Ohio (1961)
- since 1976, the Court has allowed limited "good faith" exceptions to the rule, as well as allowances for "inevitable discovery"
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Sixth Amendment: Right to Counsel
Gideon v. Wainright (1963) - required states to provide a court-appointed lawyer, if needed, in felony cases; later, also other offenses punished by imprisonment
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Sixth Amendment: Right to Jury Trials
- originally only the right to trial by a jury of white males
- later, minorities (1880) and women (1975) could not be excluded from jury pools
- 6th Amendment also requires the right to confront witnesses at trial
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Eighth Amendment: Cruel and Unusual Punishment
- validity of the death penalty was not questioned at the writing of the constitution
- constitution does not prohibit the death penalty
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American Civil Liberties Union (ACLU)
est. 1915, US- oldest, largest, most effective civil liberties organization; files lawsuits, lobbies state and federal governments; absolutist, so "extreme" liberal group
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The Right to Privacy (not directly in the constitution)
- created in the "penumbras" of constitutional rights - unstated liberties on the fringes or in the shadow of more explicitly stated rights
- birth control - Griswold v. Connecticut (1965) ruling struck down 1879 law that forbade distributing information about, or sale of, birth control; established "marital privacy
- Abortion
- Roe v. Wade (1973) - privacy right requires states to allow abortion; after the first "trimester," states only need allow abortion to preserve a mother's "life or death;" but
- Doe v. Bolton (1973) - defined "health" to include any reason throughout pregnancy
- Webster (1989) - preserved Roe by 5-4 vote; allowed states to not fund or support it
- Partial-born abortion ban - passed in 1996, 1998; signed in 2003, SC approved in 2006
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civil rights
government protection against arbitrary or discriminatory treatment based on race, sex, age, or national origin or disability
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Abolition and Women�s Rights
- American Anit-Slavery Society - founded 1833 by William Lloyd Garrison
- women's rights leaders - Elizabeth Cady Stanton, Lucretia Mott (Suz B Anthony) organized the
- Seneca Falls Convention (1848) - first women�s rights convention, in New York
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Civil Rights Laws and Constitutional Amendments
- 13th Amendment - banned slavery in the United States; southern states were required to ratify it in order to be readmitted to the Union
- Black Codes - southern laws taking most legal rights from newly freed slaves; even worse than later segregation laws; laid the groundwork for Jim Crow laws
- 14th Amendment - guaranteed citizenship to all natural-born or naturalized persons; guaranteed "equal protection"
- 15th Amendment - guaranteed the right of male citizens to vote
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Civil Rights, Congress, and the Supreme Court
- Jim Crow laws - southern laws creating "whites only" schools, theaters, hotels, and other public accommodations (segregation)
- Southern states denied voting rights with poll taxes, property-owning requirements, and literacy tests
- grandfather clause - allowed poor, illiterate men to vote if their grandfathers had voted before Reconstruction (i.e., whites only) (voting right denied with use of this)
- Plessy v. Ferguson (1896) - allowed "separate but equal" segregationist laws; such laws and other public practices kept blacks as second-class citizens
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NAACP
National Association for the Advancement of colored people, 1909
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NAACP's LDF
Legal Defense and Educational Fund established to bring cases to the Supreme Court; Thurgood Marshall was its first head (& SC Justice 1967-91)
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Brown v. Board of Education (1954)
school segregation held unconstitutional under the equal protection clause of the 14th Amendment; marked the beginning of the end of legal segregation
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Brown v. Board II (1955)
made southern school districts desegregate "with all deliberate speed"
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Montgomery boycott (1955)
Rosa Parks stays on the bus; boycott of bus system organized; Martin Luther King heads new Montgomery Improvement Association
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1957 - King forms Southern Christian Leadership Conference (SCLC)
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Civil Rights Act of 1964
- passed after 8-week philabuster
- banned discrimination in: voting, registration, public accommodations, public schools and facilities, and employment: created the EEOC
- outlawed discrimination in voter registration
- barred discrimination in public accommodations engaged in interstate commerce
- allowed the Justice Department to sue to desegregate public facilities and schools
- withheld federal funds from discriminatory state and local programs
- barred discrimination based on race, color, religion, national origin, or sex
- created the Equal Employment Opportunity Commission (EEOC)
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The Women's Rights Movement
- suffrage movement - drive for voting rights for women, 1890-1920; part of the broader Progressive movement
- 19th Amendment - guaranteed women the right to vote (1920)
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1963 - Betty Friedan�s The Feminine Mystique questioned women's traditional roles
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1966 - National Organization for Women (NOW) formed; pressed for the Equal Rights Amendment (ERA), which said that:
- Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
- The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
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ERA
- Enactment failed, but effected incrementally
- 1972 - ERA passed in Congress
- 1982 - ERA failed to be ratified in 38 states by deadline after Roe and other controversies; however, much of the ERA agenda has since been enacted anyway
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Hispanic Americans
Mexican-, Puerto Rican-, Cuban-Americans; more than 43 million (largest minority group now)
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Native Americans
domestic dependent nations; about 2.7 million
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Gays & Lesbians
gay marriage is biggest issue in 2000s
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Disabled Americans
- needs grew after WWII, Korea, Viet Nam
- 1990 Americans with Disabilities Act (ADA) - guaranteed access to public facilities, employment, communications; required ramps, BRs, other accommodations (give disabled access)
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What Are Interest Groups?
- organized groups that try to influence public and corporate policy
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Kinds of Organized Interests - single- or multi-issue groups
- public interest groups - AARP, EDF, MoveOn, NAACP, NRA, NARAL, NRLC
- economic interest groups - AFL-CIO, AMA, NFIB, C of C
- governmental units - state & local governments
- Political Action committees (PACs) - fund-raising committee that represents an interest group by giving to candidates; has no members, just contributors
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early national groups (1830-1889)
formed to fight slavery, alcohol (WCTU); railroads were very effective at getting what they wanted (anti-slavery, temperance, RRs)
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organized labor
American Federation of Labor (AFL) founded, 1886; merged w/Congress of Industrial Organizations to form AFL-CIO, 1955
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business groups:
National Association of participation (NAM) founded, 1895; U.S. Chamber of Commerce (C of C) founded, 1912
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Trade associations
groups that represent specific industries
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liberal civil rights and public interest groups
ACLU, NAACP, NOW, Common Cause, Public Citizen, etc.
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Conservative and religious groups formed in response
Moral Majority, Christian Coalition, Business Roundtable, Citizens Against Government Waste (CAGW), etc.
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What Do Interest Groups Do?
- Pro - enhance political participation and organize work toward a common goal
- Con - spend government funds and regulate (or stop regulation) for their purposes, often at everyone else's expense
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Lobbying
- activities to influence legislation and gain support from political leaders for an interest group's positions
- lobbyists try to influence all 3 branches of government:
- Legislative - using and providing information, contact with public officials, campaign donations, etc.
- Executive - using expertise, contact with WH staffers and regulators
- Judicial - fighting lawsuits up the court system (litigating), filing amicus briefs, influencing selection of judges
- in each case, interest groups may also use grassroots organizing and/or protest activities
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election activities include:
- candidate recruitment & endorsements - eg., EMILY's List, WISH List
- getting out the vote (GOTV) - ID prospective voters, get them to the polls; incl. ads
- rating the candidates for office - esp. ACU, ADA, etc.; see pp. 590, 604
- funding and using PACs
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What Makes an Interest Group Successful?
leaders - entrepreneurs, selling like businessmen
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Collective good
value that everyone, including non-members, gets benefit from
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Free Rider problem
people don't join or support the group, but still get benefits
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