HUMAN RIGHTS AND THE AMERICAN CONSTITUTION

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1 HUMAN RIGHTS AND THE AMERICAN CONSTITUTION PROFESSOR DELAINE R. SWENSON CLASS MATERIALS n Pracownik.kul.pl/dswenson/dydaktyka 1

2 The use of Precedent in the United States Source of law Written sources are primary: - United States Constitution - 50 State Constitutions - United States Code (24,757 pages) - Code of Federal Regulations - State Codes and Regulations - County Ordinances and Regulations - Municipal Ordinances and Regulations 2

3 Source of law 2 Precedential Decisions are used as a method of interpreting the written law and applying it to real cases. NOT as a substitution for written law. First place a lawyer goes is to the code. Understanding and application of the code to the particular facts of a case requires the use of precedent. Stare decisis Anglo-American Doctrine Let the Decision Stand. Judges should look to past decisions for guidance and answers questions of law consistent with precedent. One of the main methods of Legal Reasoning Reasoning by Analogy. The body of law that is developed from court decisions in a stare decisis system is called common law. 3

4 Binding precedent Precedent that must be followed: Jurisdictional Limits Hierarchical Limits. Published Opinions Factual and Legal Questions Distinction Using precedent Previous cases are either analogous to yours or distinguishable from yours. - Factual Analysis Similar, Distinguishable? - Legal Questions Analysis: Similar, Distinguishable? n Example: Is an aircraft a motor vehicle? Is it like a car? Or a Boat? n SMS Messages: like mail? like ? Like a phone call? 4

5 Persuasive Precedent Precedent that the court does not have to follow, but can if it is persuaded by the other court s reasoning. Often happens in cases of first impression. Applies to courts who are of equal status, for example different state supreme courts. - Example: Battered Spouses Syndrome Also applies in the context of international sources of law. Overturning precedent Happens usually where historical, cultural or philosophical changes to society influence previous interpretations of precedent. Two Examples: - Brown v. Board of Education (1954) verses Plessy v. Ferguson (1896). Race Based Discrimination. - Bowers v. Hardwick (1986) verses Lawrence v. Texas (2003). Homosexual Sodomy. 5

6 Advantages of stare decisis Makes the law predictable. Stabilizes the law. Promotes the expectation that the law is just and fair. Promotes efficiency in the legal system. Controls excess by individual members of the Judiciary. Criticism of stare decisis Focus on the past is not as good as focus on the present or the future. Courts can manipulate facts and law to match the precedent they want to match. System of finding and reporting precedents is time consuming and expensive. Courts are too powerful. 6

7 Stare decisis and constitutional law Text of US Constitution beginning point s. (Not a modern document) Court decisions interpreting the document and amendments are the body of common law that defines constitutional law in the US. US Supreme Court Decisions on the US Constitution are binding precedent on all US Courts. Supreme Court develops tests that it applies to determine if a constitutional right has been violated. Case Citation Method n Marbury v. Madison, 5 U.S. 137(1803) 7

8 UNITED STATES 13 Colonies 8

9 American British Citizens vs. Crazy King George and Parliament n French and Indian Wars n British Americans could not vote in England n Stamp Tax n Tax on Tea Boston Tea Party n Petition to Parliament and the King n Armed Response including mercenaries DECLARATION OF INDEPENDENCE The unanimous Declaration of the Thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 9

10 Revolutionary War WHICH FORM OF GOVERNMENT DID THE UNITED STATES CHOOSE IN 1781? PLEASE CHOOSE ONE OF THE TWO ANSWERS BELOW EACH QUESTION: n LEGISLATURE: Unicameral, called Congress. Bicameral, called Congress, divided into the House of Representatives and the Senate. n MEMBERS OF CONGRESS: Between two and seven members per state Two Senators per state, Number of Representatives based on state population. 10

11 WHICH FORM OF GOVERNMENT DID THE UNITED STATES CHOOSE IN 1781? PLEASE CHOOSE ONE OF THE TWO ANSWERS BELOW EACH QUESTION: n VOTING IN CONGRESS: One vote per state One vote per Representative or Senator n EXECUTIVE: None President WHICH FORM OF GOVERNMENT DID THE UNITED STATES CHOOSE IN 1781? PLEASE CHOOSE ONE OF THE TWO ANSWERS BELOW EACH QUESTION: n JUDICIARY Judges established only for Maritime Case Federal judiciary established, including Supreme Court n WHO DECIDES DISPUTES BETWEEN STATES: Congress The Supreme Court 11

12 1781 Articles of Confederation n Weak central government power retained by the States. n Very similar to the European Union more a customs union. n Proved to be too weak and unworkable n n CONSTITUTIONAL CONVENTION What kind of government do we want? Guiding Factors: - Power is EVIL. Government is Power, therefore Government is Evil. Government should be limited. - Government limited by: (1) spreading the powers of government via federalism (states have rights too); (2) separation of powers between legislative, executive and judicial; (3) individual rights protections via the Bill of Rights; (4) the people retain certain rights (5) Limited and Enumerated powers. 12

13 CONSTITUTIONAL CONVENTION n n n n n n n STATES HAVE A ROLE IN THE SYSTEM FEDERAL SYSTEM. NO RIGHT WITHOUT A REMEDY DISTRUST OF STRONG EXECUTIVE DISTRUST OF STRONG LEGISLATIVE DISTRUST OF CONTROL OF JUDICIARY BY OTHER BRANCHES REPRESENTATIVE DEMOCRACY IS GOOD LEAD TO A CONSTITUTION THAT IS UNDEMOCRATIC Division of Power 13

14 US CONSTITUTION PREAMBLE n We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. US CONSTITUTION n ARTICLE 1 LEGISLATURE n ARTICLE 2- EXECUTIVE n ARTICLE 3- JUDICIARY n A TOTAL OF 5 ARTICLES n 27 AMENDMENTS 14

15 BILL OF RIGHTS n First 10 Amendments to the US Constitution. n Limited and Enumerated Powers was it even necessary? n Government has to be controlled. Better to tell it not only what it can do, but in important cases what it cannot do. n After passage of Constitution Congress proposed the Bill of Rights. BILL OF RIGHTS n FIRST 10 AMENDMENTS TO THE US CONSTITUTION n RATIFIED AS PART OF THE ADOPTION PROCESS OF THE CONSTITUTION n THE MOST IMPORTANT CIVIL AND POLITICAL RIGHTS INCLUDING RIGHTS OF CRIMINAL DEFENDANTS n CIVIL WAR AMENDMENTS: 13,14,15TH 15

16 THE UNITED STATES JUDICIARY US SUPREME COURT 16

17 US SUPREME COURT FEDERAL COURTS 17

18 US FEDERAL CIRCUIT COURTS STATE COURTS n TRIAL COURTS: 2 or 3 levels. n COURTS OF APPEAL n STATE SUPREME COURT 18

19 CENTRAL PRINCIPLES OF US COURTS n The Doctrine of Marbury v. Madison Constitutional Review. n Federal Courts have supremacy over State Courts in their area of jurisdiction. (Federal Constitution and Laws) n Individuals can claim constitutional protection before any Court at any time. n The other branches respect the role of the Courts. CONSTITUTIONAL PROVISION n Article III. Section. 1. n The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. 19

20 JURISDICTION n In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. JURISDICTION n WRIT OF CERTIORARI (Request to the Court to hear the case.) Discretionary, 4/9 Justices must agree to hear the case. n Typical types of cases: 1) from State Supreme Courts IF Federal issue and 2) from Federal Courts of Appeal. 20

21 LIMITATIONS ON COURTS n SELECTION METHOD: Presidential Appointment, Senate Confirmation n Appointment for Life. n Impeachment only process for removal of a Federal Judge. n State Judges: fixed terms, many elected. LIMITATIONS ON COURTS n Section. 2. n The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and citizens of a different State,-- between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 21

22 LIMITATIONS ON THE COURTS n CASE OR CONTROVERSY REQUIREMENT n RIPENESS IMMEDIATE THREAT OF HARM n MOOTNESS- CONTINUING HARM EXCEPTION- CAPABLE OF REPETITION BUT EVADING REVIEW n STANDING n ADEQUATE AND INDEPENDENT STATE GROUNDS n POLITICAL QUESTION DOCTRINE n THE 11 TH AMENDMENT THE LEGISLATIVE BRANCH 22

23 UNITED STATES CONGRESS UNITED STATES 23

24 US CONGRESS n US HOUSE OF REPRESENTATIVES: - - Speaker of the House; 435 Members; 2 Year Terms. Congressman; Representative n US SENATE: Vice President; 100 Members; 6 Year Terms. Senator Together: United States Congress 24

25 25

26 Congressional Districts Gerrymandering 26

27 Washington State US SENATE 27

28 CONGRESSIONAL POWER n LIMITED AND ENUMERATED POWERS n ARTICLE 1 SECTION 8 LISTS THOSE POWERS n ANYTHING NOT LISTED IS RESERVED TO THE STATES OR THE PEOPLE n GENERAL POLICE POWER NOT GIVEN TO THE FEDERAL GOVERNMENT: THIS INCLUES THINGS LIKE HEALTH, WELFARE, MORALS COMMERCE POWER n REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES AND WITH THE INDIAN TRIBES. n COMMERCE: APPLIES TO INTER- STATE COMMERCE, NOT INTRA-STATE COMMERCE EX: GIBBONS V. OGDEN 28

29 POWER TO TAX n POWER TO LAY AND COLLECT TAXES, IMPOSTS AND EXCISES MUST BE UNIFORM n FEDERAL INCOME TAX AMENDMENT n TAX VS. PENALTY n OBAMA CARE SPENDING POWER n CONGRESS MAY SPEND TO PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE n SOUTH DAKOTA V. DOLE n FEDERAL SPEED LIMIT EXAMPLE n MUST BE A NEXUS BETWEEN SPENDING AND CONGRESSIONAL GOAL n CANNOT BE COERCIVE 29

30 WAR POWERS n POWER TO DECLARE WAR, RAISE AND SUPPORT ARMIES, NAVIES n FUNDING FOR MILITARY ONLY LASTS 2 YEARS, MUST BE REAUTHORIZED n WHAT IS A WAR? OTHER POWERS n TREATY POWER: No treaty can violate constitution n INVESTIGATORY POWER n PROPERTY POWER n BANKRUPTCY POWER n POSTAL POWER n CITIZENSHIP/IMMIGRATION POWER n ADMIRALTY POWER n POWER TO COIN MONEY; FIX WEIGHTS AND MEASUREMTNS; PATENT AND COPYRIGHT 30

31 NECESSARY AND PROPER CLAUSE n CONGRESS SHALL MAKE ALL LAWS NECESSARY AND PROPER FOR CARRYING INTO EXECUTION ANY POWER GRANTED IT. n NATIONAL BANK: McCULLOCH V. MARYLAND The Executive 31

32 n President n Vice President US Executive n Departments: Agriculture; Commerce; Defense; Interior; State, Justice, Labor; Education; Energy, Transportation; Health and Human Services; Treasury; Homeland Security; Veterans Affairs; Housing and Urban Development. PRESIDENT n 4 year term limit election to 2 terms n No popular vote election by electoral college. 438 plus 100=538 electoral votes. 32

33 US ELECTORAL VOTES 2008 ELECTION 33

34 2004 ELECTORAL COLLEGE 2004 BY COUNTY 34

35 REMOVAL OF A PRESIDENT n Reason: High Crimes and Misdemeanors n Impeachment: House of Representatives n Trial: Senate CJ Supreme Court Presiding n Punishment: Admonition to Dismissal POWERS OF THE PRESIDENT n COMMANDER IN CHIEF n HEAD OF GOVERNMENT n APPOINTMENT OF CABINET, JUDGES AND AMBASSADORS n EXECUTIVE ORDERS n HEAD OF STATE: FOREIGN AFFAIRS 35

36 LIMITS ON PRESIDENTIAL POWER n JUDICIAL REVIEW n SENATE CONSENT ON APPOINTMENTS n MONEY HAS TO COME FROM CONGRESS n CONGRESS CAN PASS LAWS: CONGRESSIONAL OVERSIGHT n IMPEACHMENT n TERM LIMITS CLASS MATERIALS n Pracownik.kul.pl/dswenson/dydaktyka 36

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