Thursday, March 15, 2007

Study Guide Ch 15/16 Test

Study Guide
Chapter 15/16 Test
Definition of civil rights and civil liberties

26th Amendment

Gideon v Wainwright

Establishment clause – 1st Amendment

Free-exercise clause – 1st Amendment

Lemon v Kurtzman 1971 – 3 prong Lemon test

WV State Bd of Ed v Barnette

22nd Amendment

Strict scrutiny

Prior restraint

Brandenburg v Ohio 1969

Standard for judging obscenity

Freedom of speech regarding criticism of public figures

NY Times v US 1971

Incorporation – due process clause 14th Amendment

Miranda warnings

Exclusionary rule

Griswold v CT, 1965

Roe v Wade, 1973

Bowers v Hardwicke, 1986

Brown v Bd of Ed, 1954

Brown v Bd. of Ed, 1955

25th Amendment

Bakke v California, 1978

Adarand Constructors v Pena, 1995

Equality of opportunity

Equality of outcome

13th Amendment

14th Amendment

15th Amendment

Plessy v Ferguson, 1896

Constitutional justification for the Civil Rights Act of 1964

19th Amendment

US v Virginia, 1996

ch 16

CHAPTER 16: EQUALITY AND CIVIL RIGHTS

LEARNING OBJECTIVES:
Define key terms
Explain why the civil war amendments proved ineffective in ensuring racial equality
Outline the NAACP’s strategy for ending school segregation
Distinguish between de jure and de facto segregation
Describe the tactics of the civil rights movement and the passage of the 1964 Civil Rights Act
Show how protectionist legislation discriminated against women
List the major legislative milestones in the struggle for equal rights for women
Explain why women’s rights advocates favored the Equal Rights Amendment (ERA) as a way to extend equal rights to women
Discuss how affirmative action programs have led to charges of reverse discrimination
Distinguish between equality of opportunity and equality of outcome

EQUALITY and CIVIL RIGHTS and THE CHALLENGE of DEMOCRACY

Based on a 2000 US State Dept. report, racial discrimination still persists in the US. In the past, the advocates of social, political, and economic equality have relied on legal, moral, political, and spiritual authority to abolish racial discrimination. Under the new treaty, advocates of racial equality may appeal to an international authority to end racial or other forms of discrimination.

Over the past few decades, however, the government’s priorities have shifted. With the separate-but-equal decision in Plessy v Ferguson, in 1896, the national government tried to sweep the conflict between equality and freedom under the rug. By announcing in Brown v Board of Education in 1954 that “separate is inherently unequal”, the national government faced the tension between freedom and equality and the fact that more of one usually means less of the other. The meaning of equality also creates difficulties. Many who agree on the need for equality of opportunity will not support measures they think are geared to produce equality of outcome.

The struggle for civil rights also illustrates the conflict between pluralism and majoritarianism. In accepting the demands of African-American citizens, the national government acts in a way that is more pluralist than majoritarian. As chapter 1 pointed out, majoritarian democracy does what the majority wants and thus may allow discrimination against minorities, even though the substantive outcome (inequality) seems undemocratic.

Thus, questions about what kind of public policies should be adopted to achieve equality are often highly controversial. If the nation wants to promote racial and gender equality among doctors or sheet-metal workers, for example, it may design policies to help previously disadvantaged and underrepresented groups gain jobs in these areas. This practice, however, may lead to charges of reverse discrimination.

African-Americans seeking civil rights not only had to contend with being members of a minority group, they were also largely excluded from the electoral process. Under the leadership of the National Association for the Advancement of Colored People (NAACP), they adopted the strategies of lobbying legislators and pressing claims before the judiciary, the branch of government least susceptible to majoritarian influences. Later, as the civil rights movement grew, (and as majority opinion became more hospitable to their cause), they emphasized the importance of legislation as a method of achieving equality and also used the technique of civil disobedience to challenge laws they believed to be unjust.

The women’s movement offers an interesting contrast. Women are not actually a minority group; they are a majority of the population. Yet, in the struggle to pass the Equal Rights Amendment (ERA), pluralism prevailed! Although a majority of Americans favored the amendment, it failed. The amending process, by requiring extraordinary majorities, gives enormous power to minorities bent on thwarting a particular cause.

CHAPETR OVERVIEW

TWO CONCEPTIONS OF EQUALITY
Throughout much of American history, civil rights – the powers and privileges supposedly guaranteed to individuals and protected from arbitrary removal at the hand of the government – have often been denied to certain individuals based on their race or sex. The pursuit of civil rights in America has been a story of the search for social and economic equality. But people differ on what equality means. Most Americans support equal opportunity, but many are less committed to equality of outcome.

The Civil War Amendments

After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were passed to ensure freedom and equality for African-Americans. In addition, as a response to the black codes, Congress passed Civil Rights Acts in 1866 and 1875 to guarantee civil rights and access to public accommodations. While the legislative branch was attempting to strengthen African-American civil rights, the judicial branch seemed intent on weakening them through a number of decisions that gave states room to maneuver around civil rights laws. States responded with a variety of measures limiting the rights of African-Americans, including poll taxes, grandfather clauses that prevented them from voting, and Jim Crow laws that restricted their use of public facilities. These restrictions were upheld in Plessy v Ferguson, which justified them under the separate-but-equal doctrine. By the end of the 19th century, segregation was firmly and legally entrenched in the South.


The Dismantling of School Segregation

The NAACP led the campaign for African-American civil rights. Its activists used the mechanism of the courts to press for equal facilities fro African-Americans and then to challenge the constitutionality of the separate-but-equal doctrine itself. In 1954, in Brown v Board of Education, a class-action suit, the Supreme Court reversed its earlier decision in the Plessy case. It ruled that “separate educational facilities are inherently unequal” and that segregated schools must integrated “with all deliberate speed” under the direction of the federal courts. The Court thus ordered an end to school segregation that had been imposed by law (de jure segregation), but in many parts of the country segregation persisted, because African-Americans and whites lived in different areas and sent their children to local schools (de facto segregation). This problem led the courts to require the unpopular remedy of bussing African-American and white children as a means of integrating schools. By 1974, however, the Supreme Court began to limit bussing as ordered by the judicial branch.

The Civil Rights Movement

The NAACP’s use of the legal system ended school segregation and achieved some other, more limited goals, but additional pressure for desegregation in all aspects of American life grew out of the civil rights movement. The first salvo in the civil rights movement came when African-Americans in Montgomery, Alabama, boycotted the city’s bus system to protest Rosa Parks’ arrest and the law that prohibited African-Americans from sitting in the front of buses. Under the leadership of Martin Luther King, Jr., the movement grew, and civil rights activities, including nonviolent civil disobedience, spread.

In the early 1960’s, President Kennedy was gradually won over to supporting the civil rights movement. In 1963, he asked Congress to outlaw segregation in public accommodations. Following Kennedy’s death, President Lyndon Johnson made passage of the Civil Rights Act of 1964 his top legislative priority, and the bill passed despite a long debate and filibuster in the Senate. More civil rights legislation followed in 1965 and 1968. This time, the legality of civil rights acts was upheld by the Supreme Court.

Having civil rights laws on the books does not mean discrimination will end once and for all, however. For one thing, the courts must interpret the laws and apply them to individual cases. In the Grove City College case, the Supreme Court offered a very narrow interpretation of a civil rights law, in effect taking the teeth out of the legislation. Congress reasserted its original, more sweeping intent in the Civil Rights Restoration Act of 1988.

Meanwhile, the Court, with a new conservative majority in the ascendancy, continued to issue decisions limiting the scope of previous civil rights rulings. Civil Rights groups looked to Congress to restore rights previously recognized, but presidential vetoes scuttled such measures until 1991.

Despite Dr. King’s commitment to nonviolence, the struggle for civil rights was not always a peaceful one. White violence against civil rights workers included murders and bombings. By the late 1960’s racial violence had increased as African-Americans demanded their rights but many whites remained unwilling to recognize them. The African-American nationalist movements, often militant, promoted “black power” and helped instill racial pride in African-Americans.

CIVIL RIGHTS for OTHER MINORITIES

Civil rights legislation won through the struggles of African-Americans also protects other minorities. Native Americans, Latinos, and disabled Americans were also victims of discrimination. Native Americans were not even considered citizens until 1924. The Indian reservations established by the US government were poverty stricken. In the late 1960’s and early 1970’s, the frustrations of Native Americans erupted into militancy. By the mid 1970’s and early 1980’s, they began to win important legal victories, including compensation for land taken by the US government. Recently, new entrepreneurial tribal leadership of Indian tribes has capitalized on the special status of their tribes and enjoyed economic success by sponsoring casino gambling ventures.

Latinos who migrated to the US seeking economic opportunities found poverty and discrimination instead. This problem was compounded by the language barrier and the inattention of public officials to their needs. Latinos, too, have used the courts to gain greater representation on governing bodies. Recently, they have begun to be successful in obtaining elected and appointed political offices.

Building on the model of existing civil rights laws, disabled Americans managed to gain recognition of a right of access to employment and facilities.

HOMOSEXUAL AMERICANS

Though gays and lesbians have made significant progress, they have not yet succeeded in passing a complete civil rights law protecting their rights. The 2000 Supreme Court decision in Boy Scouts of America v Dale illustrated the continued struggles of gays and lesbians for civil rights.

GENDER and EQUAL RIGHTS: The Women’s Movement

Civil rights have long been denied to women, partly as a result of policies designed to protect women from ill treatment. Only after a long struggle did women win the right to vote under the 19th amendment that was passed in 1920. But gaining the vote did not automatically bring equality for women. Discrimination continued in the workplace and elsewhere. It took legislation such as the 1963 Equal Pay Act, the 1964 Civil Rights Act, Adarand,and Title IX of the Education Amendments Act of 1972 to prohibit some of the other forms of discrimination against women. In the early 1970’s, the court began to strike down gender-based discriminations that could not be justified as serving an important government purpose. In 1996, the court applied a new standard of “skeptical scrutiny” to acts denying rights based on sex. This new standard makes distinctions based on sex almost as suspect as those based on race.

For many years, the Court proved reluctant to use the 14th Amendment as the basis for guaranteeing women’s rights. As a result, proponents of equal rights for women sought an amendment to ensure that women’s rights stood on a clear constitutional footing. Although the ERA was ratified by 35 states, it fell 3 states short of the minimum required for adoption and did not become the law of the land, although many states adopted their own ERA’s. Some scholars argue that, in practice, the Supreme Court has since implemented the equivalent of the ERA through its decisions.

Affirmative Action: Equal Opportunity or Equal Outcome

The Johnson Administration started a number of programs to overcome the effects of past discrimination by extending opportunities to groups previously denied rights. These affirmative action programs involved positive or active steps taken to assist members of groups formerly denied equality of opportunity.

These programs soon led to charges of reverse discrimination. The Court, however, has found some role for affirmative action programs. In the Bakke decision, a split court held that race could be one of several constitutionally permissible admissions criteria. In other cases, the Court has allowed the use of quotas to correct past discriminatory practices. In the Adarand case, however, the Court decided that programs that award benefits based on race must themselves be help up to a strict scrutiny standard – a test few could pass. Based on the Adarand case, a federal court in 1996 rejected the use of race or ethnicity as a condition for admission to the University of Texas law school.

Friday, March 9, 2007

Ch 16 Synopsis

Chapter 16 - Equality and Civil Rights
Chapter Synopsis

Learning Objectives:
After reading this chapter, students should be able to
· Define the key terms at the end of the chapter
· Distinguish between equality of opportunity and equality of outcome
· Explain why the Civil War Amendments proved ineffective in ensuring racial equality
· Outline the NAACP's strategy for ending school segregation
· Distinguish between de jure and de facto segregation
· Describe the tactics of the civil rights movement and the passage of the 1964 Civil Rights Act
· Show how protectionist legislation discriminated against women
· List the major legislative and judicial milestones in the struggle for equal rights for women
· Explain why women's rights advocates favored the Equal Rights Amendment rather than the 14th Amendment as a way to extend equal rights to women
· Discuss how affirmative action programs have led to charges of reverse discrimination

Synopsis
This chapter provides a historical overview of the process by which civil and political rights have been extended to African-Americans, women, and other minorities. The search for social and economic equality has been slow and often filled with controversy and violence.
Americans continue to struggle over the difference between equality of opportunity and equality of outcome. While nearly all Americans agree on equality of opportunity, not everyone agrees that individual outcomes should be equal or that society should limit certain individual freedoms in order to ensure that others are "equalized".
The adoption of the 14th, 15th, and 16th Amendments following the Civil War was designed to provide black Americans with the civil and political rights that had been denied to them by slavery. The Supreme Court, however, systematically prevented these citizens from exercising their rights by declaring that the federal government could not regulate private forms of discrimination. Throughout the South, black Americans were denied the right to vote by the use of the poll tax, education requirements, and proof of property ownership.
"Jim Crow" laws, requiring separate housing and public facilities for blacks and whites, became the basis of an official system of racial segregation. In a landmark case, the Supreme Court upheld racially motivated segregation as long as separate but equal facilities were provided for blacks. The Court overlooked the existing differences in facilities available to blacks and whites in reaching this decision. Nevertheless, the separate-but-equal doctrine later allowed black Americans to challenge the discriminatory admissions policies of all white universities.
The political mood of the 1950's favored the successful challenge to the separate-but-equal doctrine in the famous Brown v. Board of Education of Topeka case in 1954. With this decision, the Court approved several remedies, such as busing and racial quotas, to achieve the integration of schools.
The advancement of political equality beyond the classroom, however, required more extensive political mobilization, which came to be known as the Civil Rights movement. During the 1960's, the unconventional political tactics of the civil rights movement, which included boycotts and sit-in demonstrations, brought national attention to the problem of racial discrimination. As a result, Congress passed the Civil Rights act of 1964, the most comprehensive legislation to date designed to eliminate racial discrimination.
Although legislative efforts of Lyndon Johnson's Great Society program did much to improve race relations, the problem of poverty and unemployment among African-Americans in urban areas remained unsolved. This lack of progress toward economic equality was in part responsible for the rise of militant black nationalist movements during the 1960's. Other minorities have had mixed fortunes in improving their lot. Hispanic Latinos have only recently been able to exercise significant economic and political clout in urban areas. Native Americans have had worse treatment. Other non-black ethnic minorities had to wait until 1987, when the Supreme Court extended civil rights protection to them. In 1990, the protection of the Civil Rights Act of 1964 was extended to people with disabilities.
The movement toward equal civil rights for women also has a long history of confrontation and struggle. The courts upheld laws discriminating against women in education and employment on the grounds that they protected the "weaker sex" from the harsh realities of life. Women were also "protected" from participating in the electoral process until the adoption of the 19th amendment in 1920. During the 1960's, the prohibition of sex-based discrimination was heralded in the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1954. Despite some clear gains in dismantling sexist stereotypes in the work force, most working women are still relegated to jobs that pay less than those held by men. When the Equal Rights Amendment (ERA) failed to be ratified by the 1982 deadline, much of the controversy regarding the civil rights of women was put to rest.
One of the more controversial issues the court has dealt with recently concerns affirmative action. The depth of the Court's ambivalence on this issue is illustrated by the 1978 Bakke case, in which the Supreme Court ruled against the use of racial quotas. In 1987, however, in Johnson v. Transportation Agency, Santa Clara County, the Supreme Court upheld the use of affirmative action programs. Overall, the Supreme Court has shown sympathy for the concept of affirmative action while requiring that such practices not deviate excessively from common employment practices. In 1995, however, in Adarand Constructors v. Pena, the court ruled that minority set-aside programs would be subject to "strict scrutiny".
Americans will continue to work through their differences over the competing values of freedom and equality, and many of those debates will occur in the judicial system.

Ch 15 Synopsis

The Challenge of Democracy
Chapter 15 - Order and Civil Liberties
Synopsis

The Bill of Rights and the Constitution give individuals a wide range of civil liberties designed to protect them against the power of the state. The interpretation of how these civil liberties should be enforced has involved a clash between government-imposed order and freedom. The courts, especially the Supreme Court, have the power to resolve societal controversies over values involving civil rights. However, government at all levels can, and does, create rights through laws written by legislatures and regulations issued by bureaucracies.
The First Amendment of the Constitution protects individuals from government laws that interfere with the freedom of religion and freedom of expression. With respect to religion, government has set out to establish a wall of separation between church and state. The Supreme Court has interpreted the establishment clause in the First Amendment in such a way that government is prevented from giving assistance to religious institutions. Over the years, however, indirect and and incidental assistance of parochial schools has been tolerated. Since the Supreme Court handed down its decision in Lemon vs. Kirtzman (1971), state funding of religious programs must pass a stringent test of non-interference with religion. The free exercise clause of the First Amendment protects religious beliefs but not the actions based on those beliefs. Thus, government is allowed to regulate antisocial behavior that stems from a constitutionally protected right.
Freedom of expression is one of the vital characteristics of a democratic system. The freedom of expression clause of the First Amendment confers the right to unrestricted public discourse that does not threaten public order. The Supreme Court has defined the kinds of behavior that constitute a threat to public order through the clear and present danger test. Over the years, the Court has expanded the latitude of political expression that does not present real danger to society. Symbolic expression, such as wearing black armbands to protest the Vietnam War, has been protected by the Court. There are two noted exceptions to freedom of speech. "Fighting words" are defined as utterances designed to "inflict injury or tend to incite an immediate breach of the peace" and are not subject to First Amendment protection. Obscenity is also excluded from constitutional protection.
The First Amendment also guarantees that government will not interfere with freedom of the press. There are limitations on this freedom. Public officials or public figures can institute a lawsuit against the press for libel. The Sullivan case, however, established that "actual malice" must be proved before libel is upheld. Prior restraint, or censorship, is permissible by the government under exceptional circumstances that are not specified by the Court. As demonstrated by the Ellsberg case, the Court takes a very narrow view on what constitutes permissible grounds. Another limitation on freedom of the press exists in the conflict between the needs of law enforcement and those of the free press.
Only with the passing of the Fourteenth Amendment did the Bill of Rights become applicable to the states. The incorporation of the individual guarantees in the Bill of Rights under the due process clause of the Fourteenth Amendment was a slow, painful process. The landmark decision in Palko vs. Connecticut (1937) interpreted the due process clause to include only "fundamental" rights. In the thirty years after Palko, however, almost every aspect of the Bill of Rights was accepted as a fundamental right.
The incorporation of constitutional procedural safeguards to be used by the states in criminal prosecution has dramatically changed the U.S. criminal justice system in the last thirty years. In several decisions, the Supreme Court required states to provide trial by jury in criminal cases, a lawyer to criminal defendants, the right against self-incrimination through the Miranda warnings, and freedom from unreasonable searches and seizures through the exclusionary rule.
The Supreme Court has expanded the rights of individuals beyond those explicitly enumerated in the Constitution. For instance, the Court has asserted people's right to privacy in making choices about contraception and reproduction. The protection of a woman's decision to have an abortion during the first three months of pregnancy, granted by the Supreme Court in Roe vs. Wade (1973) was the most controversial result of the extension of the right to privacy. Through Webster vs. Reproductive Health Services (1989) and other recent decisions the Court has moved down the road toward greater government control of abortion policy. In addition, in 1986 the Court restricted the right of privacy to only heterosexual choices, thus placing homosexual choices outside constitutional protection. Nonetheless, state-by-state efforts to give homosexual commitments the same status as heterosexual marriage continue to occur.
With the Clinton appointments of Ruth Bader-Ginsburg and Stephen Breyer, the Court may become more moderate in coming years. The judicial branch will continue to play a major role in balancing freedom and order.

Study Guide - Institutions of Government

The Institutions of Government - Study Guide
Chapters 11, 12, 13, & 14

Reapportionment

17th amendment

Redistricting

Shaw v Reno

Miller v Lopez

Line item veto

Congressional Committee system

Floor debate

Ranking minority member

Articles of the Constitution

Inherent power

War Powers Resolution

Presidential popularity over time

George H.W. Bush – vision

America bureaucracy & pluralism

Presidential frustration with the bureaucracy

Administrative discretion

Bureaucratic regulation making

Marbury v. Madison

Clarence Thomas v Anita Hill

Hamilton & Federalist #78

Most criminal offenses are tried at the state level

Statutory construction

Stare decisis

Role of chief justice

Solicitor general

Judicial activism

Judicial restraint

Concurring opinion

Popular election of judges

Senatorial courtesy

Clinton appointed moderates

Rejection of supreme court nominees

Plea bargaining

Class action suits

Friday, March 2, 2007

Ch 14 - Synopsis

Ch 14 Synopsis

The Constitution created only one court – the Supreme Court – and sketched the rough contours of federal judicial power. The real design took shape in the first Congress, and much of the handiwork can be seen in today’s court system. Congress created federal (national) courts that would co-exist with the courts in each state but would be independent of them. But the judiciary was not viewed as a powerful branch of government until John Marshall was appointed the third Chief Justice in 1803.
Marshall’s opinion in Marbury v Madison (1803) established the power of judicial review, the power to declare acts of coordinate branches (and acts of state government) void because they violate the Constitution. This power appears to conflict with democratic theory because an unelected branch can trump an elected branch in the name of the Constitution.
The federal courts form a hierarchy, with the Supreme Court at the apex, the courts of appeal in the middle, and the district courts at the base. Note that most litigation arises in state courts; federal courts have limited jurisdiction to decide civil and criminal cases. Policymaking in the courts occurs at all levels, but it is most pronounced in appellate courts, where the emphasis on judicial opinions enables judges to create precedents.
The Supreme Court deserves special consideration because the value conflicts inherent in American democracy often end up before the court’s nine justices. The Court is a national policymaker with far-reaching impact. The Court exercises influence in part through the power to set its own agenda; it is aided in this function by the solicitor general, who represents the federal government before the Court.
If presidents are successful in appointing judges who share their values, they can influence policy even after their term is over. Although this is true across the federal judiciary, it is especially pronounced for appointments to the Supreme Court. Judges (some more than others) exercise political power. Separation of powers and checks and balances frustrate representative government. Groups that failed to secure or protect their interests in then democratic branches can turn to lawyers and the courts. Pluralist democracy operates when groups press their interests on the government. The open access provided by the courts reinforces pluralist democracy.
Though judicial power runs counter to democratic theory, policies emanating from the Supreme Court rarely seem pout of step with majority sentiment or the trend toward such sentiment. There are some exceptions to this observation, such as the Roe v. Wade abortion decision. Recent decisions and changes in the Court presage a change on the abortion issue, however, perhaps one closer in step with majority views.
Judges confront new issues calling for the exercise of judicial power. With open access to the judiciary and the creation of new rights in the name of the Constitution, courts increasingly become arenas in the conflicts between freedom and order and between freedom and equality.