9/12/11
Aim: To discuss
article from summer reading and to introduce some basic constitutional
concepts.
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Constitutional terms/concepts
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Judicial review
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Federal and state courts can overturn an act of
the executive and/or legislative branches that violates the constitution
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Flag burning- in 1989 congress and Bush Sr.
passed a law that you cannot burn the American flag, but the court reviewed
that it violates freedom of speech and overruled the act
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Judicial review makes the courts a coequal
branch
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It was not written in the constitution
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Allows the courts a role in the lawmaking system
and prevents mob rule
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Counter-majoritarian
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The courts can go against the will of people
(they don’t need to worry about public opinion because they are appointed by
the president and not elected by the people)
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Federalism
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A sharing of power between the national
government and the states, but the national government dominates
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Eminent domain
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Taking away private property for public use and
giving just compensation
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Power of both the state and federal governments
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Tea Party Movement
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Far right
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Believe in small government, lower taxes, and
less government intervention
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Raised awareness for the debt issue
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Separation of Powers
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Power is divided between three branches of
government
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Article on the Court
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Thesis: The Court has had a strong interest in
dealing with “structural questions” (separation of power) cases in the last
40-50 years, so therefore we should not be surprised with the Court’s recent
cases (war making and foreign policy, which they usually defer to the other
branches because they do not have that intelligence)
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Issues discussed
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Enemy combatant- people who might be involved in
a potential attack or an alleged terrorist, and they are proclaimed an enemy of
the US and therefore lose their rights and do not get habeas corpus (you
have to be charged with a crime before being put in prison. You have the right to go before a judge
to challenge your detention)
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Internal (within the courts and judges) and
external (political activity) factors that led the federal courts to become
more involved in separation of powers cases
Internal:
the judges all agreed that these cases were important, changes in judges,
protecting their own territory because they felt the other branches were taking
away their role and authority (judicial defense- protecting their role),
reinforcing judicial review (judicial supremacy- decided what is
constitutional)
External: divided
government (the president is from one political party and at least one part of
congress is controlled by the opposing political party. Unified government is the opposite;
everything is controlled by one party) creates more fighting in the lawmaking
process which causes the courts to get involved, 1970’s issues (Nixon, Vietnam
War) made people focus more on separation of powers, formalist (there are clear
boundaries in the constitution which can be interpreted by the courts) vs.
functionalist (let the president and congress fight it out to determine where
the boundaries are for separation of powers) approaches- those who followed the
formalist approach brought more cases to the courts
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War Powers Act
A way of
congress limiting the president’s power with declaring war and trying to
reassert themselves
Created after
the whole Nixon scandal and Vietnam
Some view
this as unconstitutional because it limits the president’s power as commander
in chief
Provisions
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President has to notify congress within 48 hours
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After 60 days, president needs congress’
approval to continue the operation
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Congress can end an operation at any time
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Activism- criticism of judges going too far to
the point that they are making law
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