Civil Liberties and Civil Rights

From CBS 2 School

A fundamental concept in American government is the idea that government is limited and allows for the equality of opportunity of all its citizens.

The protection of our civil liberties ensures that we possess certain unalienable rights that government cannot take from us.

The Bill of Rights is the first 10 amendments to the Constitution that defined the limits of government. The Bill of Rights was originally only interpreted to apply to the national government meant.

During the course of the 20th century, the U.S. Supreme Court began using the 14th Amendment’s “Due Process Clause” to make states protect some of the liberties from the Bill of Rights. This gradual process of making states abide by parts of the Bill of Rights is known at “selective incorporation.”

U.S.S.C. Cases that incorporated Civil Liberties

Gitlow v. New York (1925) is the first case in which the USSC made states protect the right to 1st Amendment’s protection of free speech.

Texas v. Johnson (1989) is a case in which the USSC ruled that flag burning could not be banned by a state just because it’s offensive.

Near v. Minnesota (1931) is a case in which the 1st Amendment’s protection of free press was applied to the states.

Everson v. Board of Education (1947) made states follow the 1st Amendment’s establishment clause which prohibits government from establishing a sponsored religion.

Mapp v. Ohio (1961) is the first case in which the USSC said that state and local police must follow the 4th amendments prohibition against unreasonable searches and seizures. Violations would result in the improperly seized evidence being thrown out under the exclusionary rule.

Gideon v. Wainwright (1963) said the 6th amendment mandates that states provide a lawyer to accused criminal facing jail time right to an attorney.

Roper v. Simmons (2005) said the 8th amendment protection against cruel and unusual punishments prohibits states from sentencing a criminal to death if the crime was committed by a person under the age of 18.

Civil Rights
In its work to uphold civil rights, government acts to intervene when citizens are treated unfairly due to race, religion or gender.

Plessy v. Ferguson (1896) is a USSC case that allowed the “separate but equal” standard at the heart of de facto racial segregation laws.

Brown v. the Board of Education of Topeka (1954) overturned the “separate but equal” standard as it applied to public schools.

Baker v. Carr (1962) and Wesberry v. Sanders (1964) were a tandem of USSC cases that made the practice of malapportionment unconstitutional. By creating the standard of “one man, one vote” the court prohibited the creation of congressional districts that were intentionally different populations to dilute black voting power. The result was the increased political power and representation of ethnic minorities in Congress.

Civil Rights Act (1964) was a congressional law that prohibited the racial segregation of public facilities like hotels, restaurants and public transportation.

Heart of Atlanta Motel v. U.S. (1964) was a court case in which the USSC said that the Civil Rights Act of 1964 was constitutional based on Congress’s power to regular interstate commerce.

Voting Rights Act (1965) was a national law that enforced the 15th amendment. It prohibited literacy tests and state poll taxes that were used to restrict black voting. It also mandated that states and local governments work to increase voter registration efforts in black communities that had been disenfranchised.


Title IX (1972) was part of an education reform law that prohibited public schools from discriminating based on gender.

Cram for the Exam: FOUNDATION

Foundation 167 K

From CBS 2 School

Critical to any study of government is to look at its FOUNDATIONS. Familiarize yourself with these words and concepts:

Legitimacy: This is the most fundamental principle when studying government. Legitimate governments, by implication, are those that are properly executed. They are supported and affirmed by correct doctrines and by the people themselves. Before we succumb to any act of government we should ask, “Is this legitimate?” Legitimacy in the American government is primarily rooted in our Constitution.

Articles of Confederation: Our first crack at governing ourselves. Though under the Articles we were able to defeat the British in war, it was inadequate as a governing document. The central government had no chief executive, no courts, no means of supporting itself through taxes, in essence no real power. It begged the question, “How can we have a more powerful central government but not too strong?” The simple answer, “More powerful than this.”

Declaration of Independence: Jefferson’s legal brief that planted the arguments for independence. Fundamentally it claimed for all certain inalienable rights. They are the right to life, liberty and the pursuit of happiness.

Constitution: Our governing document. Written by “the Founding Fathers” in Philadelphia in 1787 the Constitution provided for a limited government divided into three branches. Those three branches are: legislative (power of the purse), executive (power of the sword) and judicial (power to interpret the law).

Popular Sovereignty: The essence of our government. “We the people” rule here. Ultimate legitimacy is found in the people.

Separation of Powers: The foundational principle in our government is that power corrupts. Therefore all power must be diluted and separated in ways that assure no one person or group has the power to oppress another. This is seen most clearly in the three branches of government and in the concept of federalism (division of power between national and state governments).

Federalist Papers: A series of essays written to support the ratification of the new constitution. The most notable essay was Federalist 10. In this essay Madison argued for a republic over a direct democracy. He also stipulated that a large republic would protect against the evils of factions.

Bill of Rights: Those that opposed ratification, the Anti-Federalists, worried that the new government would oppress individual liberties. By way of compromise, the Federalists promised to add a Bill of Rights. These first ten amendments to the U.S. Constitution clearly demarcate the limits for our national government. Most importantly the First Amendment protects our right to free speech, free press, free religion (against an establishment of religion and protection of our free exercise of religion), free petition and free assembly.

Fourteenth Amendment: Perhaps the single most significant addition to our original constitution. The Fourteenth Amendment extended guarantees to citizens inside of state governments certain due processes, equal protections and privileges and immunities. The Courts have interpreted these extensions in ways that have dramatically increased the power of the national government.

This is only a beginning. What questions do you have? What questions about our FOUNDATIONS do you need answered?

Remember Thomas Jefferson said, “Every new generation needs a revolution.” How about making your revolution about learning? Let us make this next generation the most learned generation is history. Start now. Start studying. See you in line. We are right behind you.

Politics is Easy, Governing is Hard: Obama says Drill Baby Drill

Politics is Easy, Governing is Hard. President Obama, after delaying and deliberating for a year, unveiled a controversial new offshore drilling plan Wednesday that was driven largely by the politics of his agenda on energy and climate change – not getting a lot more oil and natural gas anytime soon.

The LA Times reports:

www.latimes.com/news/nationworld/nation/wire/sc-dc-obama-drilling31-20100331,0,3426174.story

In shaping, or trying to shape, a comprehensive energy and climate Newsweek called it "absurd." //blog.newsweek.com/blogs/thegaggle/archive/2010/03/31/today-in-triumphs-of-ignorance-obama-s-drilling-decision.aspx.

Environmental groups also criticized the administration:

"The Outer Continental Shelf Oil and Gas Strategy announced this week by the Obama administration ignores the recommendations and cautions put forward by its lead ocean resource agency, the National Oceanic & Atmospheric Administration, according to Public Employees for Environmental Responsibility (PEER). The new offshore drilling plan also belies pledges for comprehensive planning of ocean management, using a much broader prism than merely expanded offshore oil and gas development. "

www.commondreams.org/newswire/2010/04/01-6

So why is the President moving this way? Remember, "Politics Ain't Beanbag."

AP Gov & Pol on Facebook

From Dan Larsen at Stevenson High School:

The Facebook group - "A.Pnyx" has been created to help students review for their A.P Government and Politics test. The site is for teachers and students alike.

Check it out.

Like Pnyx Hill in Athens, it is a meeting place for all citizens.

On the site are these concise review videos (download them to your I-Pod! and join the group)

Thanks, Dan!

Rule of Law

Obamacare

Winning the Race to be President

Political Parties?

Political Socialization

Power Aide

Foundations of American Government

Practice Comparative FRQs

This advice from former AP Comparative Chief Reader Ken Wedding:

"The key to 'doing what you're asked to do' in the AP FRQs is to pay attention to the verbs. I think it's the natural tendency when we're confronted with exam questions to focus on the nouns, i.e. what the question is about. But doing what you're asked to do with those topics is vital for success."

There are three kinds of FRQs on the AP exam:

1. Short Answer Concept questions (#1-5)
2. Concept Analysis questions (#6)
3. Country Concept questions (#7-8)

In the five weeks before the exam, I'll offer 15 Short Answer Concept questions, five Concept Analysis questions, and 10 Country Concept questions for practice.

When you look at the blog archive, you'll find 45 FRQs from 2008 and 27 from 2009 that you can also use for practice. Some of them are out of date, but you should recognize that and avoid them or update them so they are appropriate for 2010. You can also find FRQs from past AP exams at the College Board site (see "Worthwhile Links" at left)

You can submit an answer for any of the FRQs using the "Questions" e-mail link at the What You Need to Know web site. (Look in the lower, right-hand section of that page.)

If you submit the earliest best answer, I'll post your answer (without your name) here a week after the question was posted.

Here's Question No. 1 (It's a Short Answer Concept question):

Define political accountability. Describe a primary way the regime in the UK ensures accountability. Describe a primary way the regime in Mexico ensures accountability. (3 points)

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(See pp. 35 and 54-58 in What You Need to Know.)

Here's Question No. 2 (It's a Conceptual Analysis question.):

a. Define state capacity.
b. Compare the limitations on the state capacity of Russia with the limitations of the state capacity of Nigeria. Which state has more capacity?
c. Describe two of the primary reasons why the state you identified with greater capacity has greater capacity. (5 point question)


(See pp. 36, 65-68, and 104-109 in What You Need to Know.)

Here's Question No. 3 (It's a Short-Answer Concepts question.):

What is the distinction between power and authority?
What is one reason you know that the Iranian president has more power than the Iranian Supreme Leader or that the Supreme Leader has more power than the president?
What is an illustration of the difference between the authority each of them has? (3 points)

(See pp. 35, 40 and 144-147 in What You Need to Know.)


Everyday Ken Wedding will post practice FRQs at the Studying Comparative blog.

A sound of Nigeria

Next we will speak of Nigeria.

Reuters did a profile of Yaw, a Nigerian radio personality who speaks Pidgin English in his show and wants to promote the dialect to his listeners.

In a country with over 400 languages overlaid with English as the official language, can a new invented common language catch on?

You have to face the Deemons to Pass

Funny or Die's Presidential Reunion from Will Ferrell

This Spring Break Potpourri of stuff that happened through the Health Care debate and other Capitol Hill happenings that are worth knowing for policy questions on the AP Test.

First for fun, the SNL current and former cast donated their time to be directed by Ron Howard for a 5-minute skit of 5 former US Presidents advising President Obama on government regulation of banks and credit. Jim Carey's advice as President Reagan might evoke a thumbs-down from some for student viewing, but this will be a nice opening to discuss government regulation in current context for many.

I embedded the video in my article here: http://tinyurl.com/y98cxjz

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From Senate.gov:

reconciliation process - A process established in the Congressional Budget Act of 1974 by which Congress changes existing laws to conform tax and spending levels to the levels set in a budget resolution. Changes recommended by committees pursuant to a reconciliation instruction are incorporated into a reconciliation measure.

reconciliation bill - A bill containing changes in law recommended pursuant to reconciliation instructions in a budget resolution. If the instructions pertain to only one committee in a chamber, that committee reports the reconciliation bill. If the instructions pertain to more than one committee, the Budget Committee reports an omnibus reconciliation bill, but it may not make substantive changes in the recommendations of the other committees.

reconciliation instruction - A provision in a budget resolution directing one or more committees to report (or submit to the Budget Committee) legislation changing existing law in order to bring spending, revenues, or the debt-limit into conformity with the budget resolution. The instructions specify the committees to which they apply, indicate the appropriate dollar changes to be achieved, and usually provide a deadline by which the legislation is to be reported or submitted.

Reconciliation is rarely used; it is used much more in the Senate; it has generally been used to "tidy up" budgetary figures in a bill, rather than alter the character and provisions of a bill; Obama was against it as a Senator but has encouraged it for the health care bill since Scott Brown won his Senate seat.

"Deem and Pass" is just a nightmare to explain. It involves House members voting for procedural provisions that would allow the bill to move forward ("pass") without actually being on the record for casting a vote in support of the bill.

A blog post on the New York Times does the best job of explaining it that I have seen:
http://prescriptions.blogs.nytimes.com/2010/03/16/passing-legislation-without-voting-on-it/?scp=1&sq=passing%20health%20care%20legislation,%20tucked%20in%20a%20rule&st=cse

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From CBS2School:
Bracket Buster
March Madness this year has lived up to its name. We are all mad because our brackets have been completely decimated by the number of low seeded teams who have advanced. Even the ratings are down for CBS. It appears we do not want to watch underdogs play. They cost us big, literally.

Looking back at the Obama health care debate there was an equally big upset that made the difference. That score broke the bracket wide open and allowed the Democrats to achieve a victory that had eluded them for a generation.

The Congressional Budget Office provided the score that made the difference. Facing angst against another big government program, the Congressional Budget Office (CBO) scored Obama’s health care reform as not only budget neutral but also a bill that would reduce the federal deficit by trillions of dollars. The CBO substantiated Obama’s claim that his plan would not “add a dime” to the deficit.

What next? Butler will advance to the Final Four?

The CBO reported that Obamacare, costing close to 1 trillion dollars, would actually reduce the federal deficit by over 1 trillion dollars. Without that report health care reform would not have passed.

Obama and the Democratic leadership could boast that health care reform was not another big government program but a plan that would shrink government liability.

The CBO numbers gave the Democrats cover. As laughable as those numbers looked on face value, the integrity of the CBO allowed Democrats to pass a giant new entitlement program under the pretense that it would save money.

What is the Congressional Budget Office (CBO)?

The Budget Impoundment Act of 1974 created the Congressional Budget Office. The CBO was created to be an objective, nonpartisan federal agency responsible to give timely analysis to economic and budgetary decisions. It currently employs over 250 analysts and has an annual budget of close to $50 million. Douglas W. Elmendorf is the current Director. Speaker of the House Nancy Pelosi appointed him.

Though many have criticized the CBO projections, history would suggest that their forecasts tend to overstate deficits. Their projections often underestimate economic growth. Our gut says not this time.

Certainly the Democrats are hoping the CBO score of health care reform is true. They have pinned their future on these CBO numbers. If health care reform does in fact reduce the federal deficit the Republican rhetoric will be quieted. If so the CBO will have busted another bracket. This time it will be the Republican racket.

The impact of their last score, however, will mean the CBO will be scrutinized more than ever. In the past we have trusted their nonpartisanship. Republicans will not forget the role the CBO played in passing health care reform.
This trust may foul out before playing a role in the next big game.

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Constitutional challenges to the Health Care Bill

From Harvard's Carl Herman:A law school grad and writing colleague, Ryan Witt, just wrote a useful article that has topical importance for students: An analysis of the constitutional challenges to the health care reform bill.

Following the signing ceremony today health care reform is now the law of the land. As Vice President Joe Biden put it this is a "big f**cking deal" as the legislation represents the largest overhaul of the health care system in over 50 years. However as soon as the ink was dry from the President's signature some 13 states attorneys general filed lawsuits to have the legislation struck down. All of Democrats efforts will be for naught if the federal court system nullifies the law because it is unconstitutional.

So is the bill unconstitutional? The most honest answer is no knows for sure. A law like this has never been passed and therefore no clear precedent applies. Georgetown law professor Randy E. Barnett seems to give credence to the constitutional challenges to reform but others such as Professor Timothy Jost at Washington and Lee University suggest the legislation is clearly constitutional. So some very knowledgeable people have contrary opinions.

Here is a breakdown of what we do know about the Constitution as it relates to the legislation.

The Individual Mandate and the Powers of Federal Government

First the legislation does present a new case in that it proposes to force individuals to buy insurance from a private companies. If individuals do not purchase insurance they will be fined approximately $700 or 2.5% of their income whichever is greater. There are some exceptions granted based on religious objections and financial hardships.

Now there are some similar laws but nothing that goes quite this far. For example states require individuals to have insurance in order to drive a car but if individuals do not want to obey that law they simply can chose not to drive. Under health care reform everyone would need to purchase insurance. People are also automatically taxed for Social Security and Medicare but these taxes are on income and not technically a fine for not engaging in some kind of behavior.

However just because the federal government has never done something this does not mean that it is unconstitutional. The Department of Justice is likely to point to many parts of the Constitution in defending the legislation. Article 1, Section 8 proscribes the powers given to Congress. The relevant powers in this case could be:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"

The government's power to tax is generally interpreted very broadly by the courts so if the Obama administration was able to effectively argue the mandate was in fact a "duty" or "tax" the courts would probably approve the mandate. Of course the state attorneys generals will argue the legislation does not fall under this power since a "fine" is different in nature than a tax.

The Department of Justice could also argue that the legislation is merely an attempt to "regulate Commerce." The commerce power is certainly not unlimited but generally Congress can regulate anything which has a substantial relation to interstate commerce. The Obama administration would have a strong argument here since health care makes up over one-sixth of the economic activity of the entire nation.

A Challenge Based on the Tenth Amendment

Idaho has already passed a law which states their citizens are not bound by the health care laws. While this is likely a nice political tactic in general states can not simply exempt their citizens from federal law. For example if Missouri passed a law exempting their citizens from the federal income tax the IRS will still be able to demand my payment next year. Under the Supremacy Clause (Article VI, Clause 2 of the U.S. Constitution) federal law generally trumps state law.

A reader may have noticed how I emphasized the "generally" part of my last analysis. There are exceptions to the Supremacy Clause rule. If a power is considered "reserved" for the States under the Tenth Amendment then theoretically a federal law could be nullified if it conflicted with state law.

The problem for the attorneys general is that once again a regulation of health care seems perfectly within the federal government power either to tax or to regulate interstate commerce. Given the vast nature of Medicare and Medicaid it will be hard for the states to argue that the regulation of health care is a power reserved solely for them.

A Challenge Based on the Fourteenth Amendment

The Supreme Court has interpreted the 14th Amendment as granting substantive due process rights to American citizens. Basically what this means is that citizens have certain rights which are not explicitly enumerated in the Bill of Rights. For example the Supreme Court determined a woman has a limited right to have an abortion based upon a right of "privacy" under the Fourteenth Amendment even though privacy is never explicitly mentioned as a right in the U.S. Constitution.

In order to challenge the health care bill a U.S. citizen would have to allege the bill violates a fundamental right they have as part of the "liberty" interest under the Fourteenth Amendment. Generally something is determined to be a "fundamental right" if it is "deeply rooted in American history and traditions." A claimant would have to identify a right such as "the right to make one's own health care decisions" or "the right to abstain from purchasing insurance." They would then have to show that this right has been deeply rooted in American history and traditions. The Department of Justice would of course argue to the contrary.

Even if the court agreed that a "fundamental right" was at issue the government could still argue the legislation is constitutional. Even legislation affecting fundamental rights is constitutional if it is necessary to advance a compelling state interest. The government would argue the individual mandate is necessary to meet the compelling state interest of providing affordable health care for all or something to that effect. It would then be up to the court to determine which side was right.

The hardest step in this process would be convincing a court that a "fundamental right" was at stake. Generally the courts are reluctant to create new fundamental rights since it opens the door to challenges of all sorts of other laws. For example if a court determined an individual has a "fundamental right" not to purchase insurance it could lead to a challenge of automobile insurance laws among other things.

Conclusion:

Anyone who says they know for certain how the court system will rule on an issue this complicated does not know of what they speak. Having said that the lawsuits that seek to have health care reform overturned are facing some long odds. The Department of Justice has a large staff of experienced and qualified lawyers who have many credible legal arguments to make for the bill. I have just scratched the surface of the legal arguments they are sure to come up with in defending the legislation. A federal court is unlikely to declare such a bill unconstitutional without a really good basis for doing so. Faced with such obstacles it is hard to imagine opponents of reform succeeding in getting rid of the law through the court system.

13 State Attorneys General filed lawsuit against the health care reform bill after it was signed.