American Government Lecture Ten
The United States is the only nation in the history of the world that is founded on an idea. And what is that "idea"? The Constitution.
This lecture reviews and expands on the key parts of this course, particularly the basic concepts in the United States Constitution. Let's begin by considering this quotation from an important United States Supreme Court decision:
|“||Of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, ... federalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counter-intuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one. 'In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.' The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).||”|
This is taken from an opinion by Justice Kennedy in the U.S. Supreme Court decision of United States v. Lopez, 514 U.S. 549, 575-76 (1995), in which he agreed (concurred) with the majority of the Court but wrote separately to express his own view.
If you can understand and explain every aspect of the above quote, then you have a good knowledge of American government. As a way of review, let's analyze each part of Justice Kennedy's statement.
Justice Kennedy's reference to "the Constitution" is to the United States Constitution, which was written during the Constitutional Convention in Philadelphia during the hot summer of 1787, completed in September, and sent to the 13 States (former colonies) for ratification by at least 9 of them. The "Federalist Papers" were written anonymously by Alexander Hamilton, James Madison and John Jay in order to persuade the people of the large state of New York to ratify (approve and adopt) the Constitution. We now know which person authored which Federalist Paper (each one was published separately in a New York newspaper as the debate progressed), and James Madison is indicated in the above quote as being the author of the 51st Federalist Paper.
The Federalist Papers are important today for their usefulness in interpreting what the Constitution meant at the time (the "original meaning" of the Constitution). Today "judicial activists" and "loose constructionists" think the Constitution should be given a different, expansive meaning based on today's culture, values and perceived needs, while "originalists", "textualists" and "strict constructionists" interpret the Constitution to mean the same today as it did when it was written in 1787 and ratified by 1788.
"separation of powers"
When U.S. Supreme Court Justice Kennedy refers to "separation of powers" in his quote above, he's referring to how the Constitution created three separate branches of government at the federal (national) level: legislature (Congress), executive (president and federal agencies), and the federal judiciary (U.S. Supreme Court; by federal laws Congress has also created the 13 U.S. Courts of Appeals, the many U.S. district courts, and bankruptcy courts).
Remember this: the U.S. Constitution requires strict separation between the duties and activities of these three branches of government. This is different from the parliamentary system of government common in Europe and around the world, where there is overlap between the legislative and executive branches.
Justice Kennedy says that the separation of powers in the Constitution was not a new idea. Historians attribute it to the French philosopher Montesquieu. Bible scholars find its origin in a passage in Isaiah.
"checks and balances"
When Justice Kennedy refers to "checks and balances," he means how the three branches of the federal (national) government stand up to each other, in order to prevent each other from acquiring too much power. When one branch oversteps its authority, such as Congress passing an unconstitutional law, then the U.S. Supreme Court declares the law to be invalid. When the Supreme Court oversteps its authority, then the President refuses to execute (apply) the ruling. President Andrew Jackson, who governed almost like a king, is famous for declaring after a Supreme Court ruling in favor of Indians that President Jackson did not like, "John Marshall has made his decision; now let him enforce it!" (John Marshall was the Chief Justice of the Supreme Court for nearly 35 years in the early 1800s, who led the massive expansion in the power of the Court) President Jackson's point was that the Supreme Court has no enforcement power of its own, and a "check and balance" on its power is when the executive branch refuses to enforce its ruling.
How could Congress "check and balance" the power of the U.S. Supreme Court (and all federal courts)? In many ways:
- refuse to provide funding for the courts (Congress controls the funding for the federal government)
- impeach and remove judges (as Congress unsuccessfully attempted in the case of Samuel Chase)
- remove jurisdiction from the federal courts over certain issues (as Congress has done for disputes over reimbursement in Medicare, which is the government health insurance for Americans over 65 years old)
- abolish entire lower courts (the Constitution requires only that the U.S. Supreme Court exist)
The important point is this: each branch has the power to "check and balance" each other branch under the Constitution, and that prevents the federal government from grabbing too much power for itself.
Keep in mind that Congress makes the laws, the courts interpret the laws, and the president (executive branch) applies the laws. Any one of the three can stop the other two from grabbing too much power.
What did Justice Kennedy mean when he referred to "judicial review"?
"Judicial review" is the doctrine implied by the U.S. Constitution that authorizes the federal courts (ultimately the U.S. Supreme Court) to review the constitutionality of a law passed by Congress and signed by the President, and for the federal courts to invalidate that law if the courts consider it to be unconstitutional.
This power of judicial review was first asserted by the U.S. Supreme Court, then led by its Chief Justice John Marshall, in the famous case of Marbury v. Madison (1803). Marbury v. Madison is perhaps the most important decision ever issued by the U.S. Supreme Court, because it grabbed for itself the power to overrule what the other two branches decided to do.
Unusual, almost comical, facts led to this case. After the bitter presidential election of 1800, when John Adams lost his reelection to Thomas Jefferson, John Adams had a "lame duck" period of several months when he was still in power. In the final moments of his lame duck period, he appointed an unusually large number of justices of peace (low-level, local judges) in the District of Columbia. Their commissions (salaries) were approved by the U.S. Senate and signed with an official seal by President Adams, but not delivered prior to Adams leaving his office of president. When Thomas Jefferson took office, he ordered his Secretary of State (James Madison) not to deliver the commissions, so the Adams-appointed justices of peace would not be paid. Then Jefferson could use that money to pay the salaries of the people he would appoint to government positions.
One of those newly appointed justices of the peace, Marbury, sued Madison in order to obtain the commission. The U.S. Supreme Court had to decide whether it would rule for Marbury (and Adams), or the new Jefferson Administration.
Chief Justice John Marshall wrote the decision for the U.S. Supreme Court, and ruled for Jefferson (his Secretary of State Madison), so Jefferson was pleased. But the basis of Marshall's decision was that the federal law which brought the case before the Court was unconstitutional. In other words, the Supreme Court invalidated a law passed by Congress and signed by a president, in order to rule for Jefferson. Jefferson could not complain much because he won, but the basis of the ruling made the Court more powerful than both Congress and the president by authorizing the Court to invalidate their laws.
Do not worry if you have trouble understanding the above. All you need to know is this: In Marbury v. Madison, the U.S. Supreme Court gave itself the power of "judicial review," which is the power to declare as unconstitutional any laws passed by Congress and signed by the president.
Consider this analogy to what the Court did. Suppose Joe chooses sides for basketball and picks a player. Joe says, "I want you to be on my team ... because I want to hog the ball and I want lousy teammates who won't complain." At first you might be happy you are picked, but before long you'll realize that you were picked by someone who wanted more power for himself.
Jefferson would not have been shy about applying a "check and balance" to the courts if he had lost. After all, it was Jefferson who sought the removal of Supreme Court Justice Samuel Chase through the impeachment process. But Jefferson's side won in Marbury v. Madison, using reasoning Jefferson disliked.
Finally Justice Kennedy mentions "federalism", which is unique to American government: "federalism was the unique contribution of the Framers to political science and political theory." Justice Kennedy declares that "it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one." The "two governments" he references here are the federal (United States, or national government) and the state governments (for example, New Jersey). According to Justice Kennedy, this helps enhance liberty because the existence of state governments serve as a buffer which limits how big and intrusive the federal government can grow.
The term "federalism" is difficult for many students to fully understand, because different variations of the term are used to mean different things, depending on the context. Here are examples:
- "federal government" = "national government" = "United States"
- "Federalist Papers" = a collection of essays in 1787-1788 explaining and supporting ratification of the U.S. Constitution
- "Federalist Party" = a political party from 1796-1815 which supported a strong national government
- "Federal Express" = a private company that delivers packages quickly; it has no connection with the federal government
Notice how the term "federalism" has a meaning different from all of the above:
- "federalism" = a collection of state governments and a national government
When the term "federalism" is used today, it means state governments co-existing with the federal (national) government.
Whether Justice Kennedy was correct in claiming that "federalism" enhances individual freedom is debatable. Often the federal government simply intrudes into new areas without any regard for state government. But there are times when the tradition of state government -- which precedes the U.S. Constitution and the creation of the United States -- does seem to protect liberty and freedom.
An example is homeschooling, which is within the exclusive domain of State government. Congress respects the role of the States and thus has not tried to regulate homeschooling. When New Jersey tried to force homeschoolers to take the same tests that are given in public schools, an obstacle was a federal law requiring the withholding of federal money from States that compel homeschoolers to take public school tests. New Jersey public school teachers unions gave up on forcing homeschoolers to take their tests because the teachers did not want to lose the federal money. The result was more freedom for homeschooling New Jersey because of federalism.
So at least with respect to homeschooling, Justice Kennedy's observation is correct: "freedom was enhanced by the creation of two governments, not one."
Bill of Rights
Recall the Bill of Rights -- the first ten Amendments to the Constitution -- and how important they are. The First Amendment has been the subject of the greatest number of Supreme Court decisions, and the Fourth Amendment is a close second.
In review, the First Amendment includes:
- the Establishment Clause, which is used by atheists to prohibit classroom prayer and religious symbols on government property
- the Free Speech Clause, which is used by both sides of the political spectrum
- other freedoms, such as freedom of the press, the right to assemble, the right to petition government, and the implied "freedom of association"
The Fourth Amendment protects against government searches of homes, cars, and other personal property (unless a resident consents or there is a search warrant)
Among the other Bill of Rights, the most important are:
- the Second Amendment, which protects the right to "keep and bear arms" (have guns)
- the Fifth and Sixth Amendments, which protect the right of criminal defendants in investigations and trials, including the right to a public jury trial
- the Seventh Amendment, which provides the right to a jury trial in civil (non-criminal) cases
- the Eighth Amendment, which prohibits cruel and unusual punishment, such as torture and some forms of the death penalty
- the Tenth Amendment, which reserves all rights to the States and the people unless a power has been expressly given to the federal (national) government
The Fifth Amendment, in addition to protecting criminal defendants, also has provisions for all Americans which protect us against violation of our rights without "due process of law" (explained more below in connection with a similar clause in the 14th Amendment). The Fifth Amendment further protects everyone against government taking our property without giving the property owner "just compensation" for what the property is worth. "Eminent domain" is when government takes someone's land in order to build a highway or government building, but the Fifth Amendment requires government to pay the owner the value of his property in those situations.
Next let's review further the most controversial provisions in the Bill of Rights mentioned above.
Nowhere in the Bill of Rights, or anywhere else in the Constitution, is there a requirement for a "wall of separation between church and state." That phrase is from a letter written years after the Constitution and Bill of Rights were ratified, by someone who was not even at the Constitutional Convention: Thomas Jefferson. It takes much more to amend the Constitution than for one person to write a letter.
For most of us, the Bible is the source of knowledge and its moral rules are the source of American law. The Ten Commandments are the best set of specific, formal rules of conduct ever devised. Our country was founded on its principles, and our legal system is guided by its wisdom.
“Thou shalt not kill,” the Sixth Commandment, is echoed in numerous laws against killing in America. Similarly, the other Commandments have inspired countless laws and notions of justice.
But in the middle of the 20th century some on the U.S. Supreme Court, seeking to limit the influence of Christianity, initially applied the Establishment Clause against the States in a decision that upheld what the State was doing. In that decision, the Court agreed with the State but established a precedent for ruling against States in the future under the Establishment Clause. Beware of expansions of federal power like that. It is like a stranger saying, “Open your front door, but don’t worry because I am not coming inside.”
So the Supreme Court first announced it would apply the Establishment Clause against the States, but initially appeared reasonable in deferring to the States. The Supreme Court thereby opened the door but stood outside to make it look friendly. Only later did it enter and beginning demanding that States end prayer and take down the Ten Commandments. Sound familiar? The Supreme Court took the same approach in Marbury v. Madison - let one side win, but base it on a reason that enables the Court to expand its power for future cases.
55 years ago, students in public high schools in New Jersey recited the “Our Father” every morning. States were free to do this, and schools were much better because of it. But in 1962, in Engel v. Vitale, the Supreme Court applied the Establishment Clause to abolish classroom prayer in public schools. Fortunately, courts cannot ban prayer by homeschoolers.
President George Washington would not have been pleased by this. In his Farewell Address, written by Alexander Hamilton, Washington said:
|“||Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.||”|
Washington said that only five years after the passage of the Bill of Rights.
President John Adams echoed the same principle: "Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
Nothing in the First Amendment requires censorship of the Ten Commandments, which neither establishes a religion nor coerces anyone to believe. Those who oppose the moral message may feign offense, but appeasing the hypersensitive is not a goal of the First Amendment. Its prohibition on an establishment of religion does not require purging recognition of religion from everything public. Federal law expressly references God numerous times, as do our coins and officials’ oaths of office. The U.S. Supreme Court itself features Moses holding the sacred tablets of the Ten Commandments. But the Court banned them from public schools.
The bottom line is this: the Establishment Clause as originally written does not prohibit public school classroom prayer and religious symbols on government property, but the U.S. Supreme Court has interpreted the Establishment Clause to prohibit this.
NOTE: do not confuse the Establishment Clause with the separate Free Exercise Clause, which follows the Establishment Clause in the First Amendment: “Congress shall make no law ... prohibiting the free exercise thereof ....”
Free Speech Clause
One clause in our Constitution has expanded in meaning far greater than every other clause: the Free Speech Clause. The right to free speech has grown and grown and grown. It threatens to swallow the entire Constitution in some respects.
Flag burning is now free speech. So are political expenditures. Spending by a political candidate of his own money on his own campaign is free speech.
Commercial speech is protected by the Free Speech Clause too. Certain types of advertisements, such as ads for legal or medical services, cannot be prohibited.
Free speech can include the right to hear. It can include a right to publish and criticize the laws freely. When combined with free press, free speech can protect newspapers which seek to publish information that the government would rather keep secret, such as embarrassing facts about an Administration.
The right to free speech can even protect lies about public officials. If you are a public figure, then others have a free speech right to make outrageous claims about you. Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her.
You may agree with some or all of the expansions of free speech rights above. In general, conservatives and liberals tend to support expanding free speech rights, and for that reason free speech has greatly expanded. Can you think of an example of someone famous who opposed free speech? (Answer: President John Adams when he signed the Sedition Act to prohibit criticism of him; also Supreme Court Justice Oliver Wendell Holmes when he wrote the decision in Schenck v. United States (1919), which affirmed the conviction of someone for criticizing the compulsory military draft in World War I.)
Public schools do not allow full free speech (should they?). It is easy to see why schools would not allow students to be able to say whatever they like. Should students have a right of free speech to lie? Should students have a right to be rude to the teachers, or post criticisms of their own teachers on the internet? There are court cases where students have been punished by schools after ridiculing their teachers on the internet, and the students then sued the school based on the Free Speech Clause in the First Amendment. What is your view about which side should win on that issue?
There is not free speech in the military, either. If you insult your commander, then he is going to punish you for insubordination. About twenty years before Japan sunk most of our ships at Pearl Harbor, General Billy Mitchell spoke out against how our top military commanders were leaving our navy unprotected against that sort of attack. Later events proved him to be completely right, but at the time he was court martialed for insubordination and forced to resign. (After the Pearl Harbor attack and after Billy Mitchell died, our military admitted its mistake and reinstated his benefits). Should there be free speech in the military?
Conservatives strongly oppose one type of expansion of free speech, however: pornography. Some liberals oppose it too. Pornography, like drugs, destroys those who view it, but the U.S. Supreme Court misused the Free Speech Clause to allow pornography to pollute our society. Gambling has a similar devastating effect on the mind, but because it is conduct (activities), it is not considered to be free speech protected by the First Amendment. States can prohibit gambling.
Your instructor filed briefs with the U.S. Supreme Court opposing an extension of free speech protection to the sale of violent video games to children. But by a narrow 5-4 majority, the Supreme Court held in 2011 that the Free Speech Clause gives people the right to sell the most violent video games imaginable to young children.
Keep in mind that the right to free speech does not generally protect one from the resulting consequences of that speech. The harm that some types of speech (including images) causes, both to others and to yourself, is very real. People often lose their job because of something they said at work, or on the internet outside of work, for example. Also, speech relating to conduct, such as threatening someone with harm or asking to do something that is illegal, is a crime punishable with imprisonment.
Rights of Criminal Defendants
The basic rights of criminal defendants include: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually prohibiting a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a "Miranda warning" (explained below); (5) the right to a hearing before a judge if held in jail (known as the writ of habeas corpus); and (6) protection against cruel and unusual punishment. There are other rights also.
The "Miranda warning" is a statement that must be read to all criminal suspects before an officer asks him questions, as established by the Supreme Court decision of Miranda v. Arizona (1966):
|“||You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.||”|
The United States protects criminal defendants far more than any other country. Should we?
Some conservatives agree with liberals in siding with rights of criminal defendants in federal court, because the federal government routinely imposes sentences of 20 years or more for non-violent crimes, or crimes that should be handled at a State or local level, or activities that some may not even consider to be criminal. Ron Paul opposed the Patriot Act because it can be used by the federal government to harass law-abiding citizens. Few conservatives are concerned about the rights of terrorists held at Guantanamo Bay, but many conservatives are worried about abuse of federal powers against American citizens. The Constitution itself authorizes only a few federal crimes, like treason or misconduct on the "high seas" (oceans).
While we focus mostly on the Bill of Rights (Amendments I through X), there are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Among these the most important are the 14th and 15th Amendments, which were passed as a result of the Civil War, the 17th Amendment, which established the direct election of U.S. Senators by the people, and the 22nd Amendment, which places a "term limit" of at most two full terms in office for a president.
The 14th Amendment is the most important Amendment after the Bill of Rights. The 14th Amendment was passed after the Civil War to prohibit discrimination by the southern States against the former slaves. The 14th Amendment is directed against the States, and prohibits State laws from discriminating or violating other constitutional rights.
There are three important aspects of the 14th Amendment:
- its Equal Protection Clause
- the "incorporation doctrine"
- its Due Process Clause
Let's look carefully at each of these three concepts.
Equal Protection Clause
The Equal Protection Clause of the 14th Amendment states: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." That means any law which treats people differently based on their race (ethnicity or skin color) is unconstitutional and cannot be enforced. For example, it is illegal for public schools to segregate students based on their race. The U.S. Supreme Court ended segregation in public schools in Brown v. Board of Education (1954).
The Equal Protection Clause prohibits other forms of unequal treatment by government too. The Supreme Court, applying the 14th Amendment, ordered the all-male Virginia Military Institute (VMI) to admit women. But because the Equal Rights Amendment never passed, not all government laws treating men and women differently are unconstitutional. For example, the military can have a men-only military draft. But the military could not draft whites without also drafting blacks, because discrimination by government based on race is never allowed. "Strict scrutiny" is a very strict legal standard that applies to invalidate any discrimination by government based on race.
But notice the qualifier "by government." The 14th Amendment applies only to government. The 14th Amendment does not apply to private individuals, clubs, churches, sports teams, etc. Major League Baseball excluded blacks until after World War II, for example, and the 14th Amendment says nothing about that. But other laws prohibit discrimination by places of public accommodation, such as hotels and restaurants. And the New Jersey Law Against Discrimination is the strongest in our Nation in prohibit discrimination far beyond what the 14th Amendment requires. Keep in mind that the U.S. Constitution sets a minimal standard against discrimination; States can often go beyond what the Constitution requires.
The Equal Protection Clause is used today to seek constitutional rights beyond issues of racial and gender discrimination. Gays seek a right to marry under the Equal Protection Clause, by claiming they are discriminated against in violation of this Clause when a State (such as New Jersey) does not allow same-sex marriage. Many of these lawsuits are headed to the U.S. Supreme Court for final resolution.
As with the Free Speech Clause, Courts have repeatedly expanded the scope of the 14th Amendment. "Incorporation doctrine" is an example. It is a doctrine invented by the U.S. Supreme Court in order to "incorporate" the Bill of Rights into the 14th Amendment, and thereby apply the Bill of Rights against the States. Recall that the Bill of Rights were originally intended to apply only against the federal government.
"Incorporation doctrine" means that the 14th Amendment includes the Bill of Rights and prohibits violations of the first ten Amendments by the States. So when someone challenges a New Jersey law for infringement on free speech, then he is suing under the Free Speech Clause as incorporated into the 14th Amendment to apply against the State of New Jersey.
"Due Process Clause"
The Equal Protection Clause of the 14th Amendment states: "No state shall ... deprive any person of life, liberty, or property, without due process of law."
This clause has been used by the U.S. Supreme Court to create two types of rights: procedural and substantive.
The procedural rights consist of legal process: advance notice of a legal hearing, a right to be heard, a right to have your attorney there, a right to call and cross-examine witnesses, a right to a reasoned decision, etc. When the government takes away your property ("eminent domain"), fires you from a government job, or takes some other type of formal action, the 14th Amendment gives you a right to "due process." This is a logical extension of what the 14th Amendment says. A right to "due process" means a right to the "process that is due" - i.e., certain "procedural" protections.
The creation of "substantive" due process rights created by the U.S. Supreme Court is not a logical extension of what the 14th Amendment says. But this is how the Supreme Court created a new "right" to abortion. In Roe v. Wade (Jan. 22, 1973), the Court held that the Due Process Clause, combined with incorporation doctrine, invalidates all State laws prohibiting abortion. You can read the Constitution 100 times and you will still not find any mention of abortion in it, but the U.S. Supreme Court, by a 7-2 vote, declared that there is a constitutional right to abortion. This is an example of "judicial activism," where the Court went beyond merely interpreting the law, in order to create a new law. In the four decades since Roe v. Wade was decided, the 7 votes in support of abortion on the U.S. Supreme Court has declined to only 4 or 5 votes, and many expect that eventually the Court will overturn its Roe v. Wade decision. If that happens, then States could again limit and prohibit abortion, as they had done prior to 1973.
The 15th Amendment ensures the right of everyone to vote, no matter what their race or ethnicity is (the 19th Amendment extended that right to all women). This 15th Amendment has been interpreted to prohibit any "literacy tests" (exams to see if someone can read a ballot) as a pre-condition on the right to vote. Millions of voters today are unable to read the ballot.
When the U.S. Constitution was ratified, and throughout the 1800s, State legislators selected the U.S. Senators who would represent them. But the 17th Amendment shifted that power to the people, in direct elections, as part of the "progressive movement" that increased the level of democracy in the United States.
President George Washington set the "precedent" (an example that is so strong that it becomes the rule) that American presidents should stay in office for only two terms, and then resign so that power can shift to someone new. But Democratic President Franklin Delano Roosevelt, hungry for power, broke the precedent and was elected to four terms, eventually dying in office from an illness. A few years later the Republican-controlled Congress passed (by a 2/3rd vote) term limits for the office of president, and 3/4 of the State legislatures ratified this Amendment, to prohibit a president who has served two full terms from being elected again. This prevents a president from trying to grab too much power for too long.
This week the assignment will be to take our fourth quiz, which will cover only the material in this lecture. This quiz will be emailed to you. Be sure to have a basic understanding of the Amendments explained in this lecture, and the key terms in the quote by Justice Kennedy (as explained by this lecture). Try to understand the "big picture," and the meaning of these key decisions by the U.S. Supreme Court: Marbury v. Madison, Brown v. Board of Education, Engel v. Vitale, Miranda v. Arizona, and Roe v. Wade.