AmGovNotesU5
I) The Federal Court System
A) Created by the Constitution to rectify weaknesses of the Articles of Confederation
1) Article III – created Supreme Court
2) Article I, Section 8, Clause 9 – Congress empowered to create lower courts as needed
a) Constitutional Courts – exercise judicial power
b) Legislative Courts – created by Congress to deal with special problems
3) U.S. has a dual court system
a) Federal Courts – made by act of Congress, over 100 nationwide
b) State Courts – number in thousands, most copies of the federal system
B) The Constitutional Courts
1) Jurisdiction (what they can cover)
a) Subject matter – interpretation and application of the Constitution, federal statutes or treaties also admiralty and maritime law
b) Parties involved – the U.S. government or its officers or agencies, ambassadors, consuls or other Representatives of foreign nations, states suing another state, citizens suing a state or foreign nation, citizen of one state suing a citizen of another
2) Exclusive jurisdiction – cases heard only in federal courts
3) Concurrent jurisdiction – cases heard in either state or federal courts or both
4) Original jurisdiction – court in which a case is first heard
5) Appellate jurisdiction – hears cases on appeal from lower courts
a) District = original Appellate = appeals Supreme = both
C) Federal District Courts – trial courts hear almost 300,000 cases per year
1) 94 District Courts – 89 located in the 50 states (at least 1 per state), 1 Puerto Rico, 1 DC
a) Size of state determines the number of courts
2) 654 judges – most cases heard by one, some cases heard by 3 judge panels
3) Jurisdiction – original jurisdiction over most cases heard by the federal courts (civil and criminal)
a) Use Grand Juries to indict and Petit Juries to convict
b) Decisions can be appealed to Appellate and Supreme Courts
D) Federal Appellate Courts – formed by Congress in 1891 to relieve the burden on the S C
1) 12 Appellate Courts – most cover several states
2) 179 judges – plus one member of the SC to oversee each district – cases heard by 3 judge panel
3) Jurisdiction – only appellate, cases usually come from District Courts within their circuit, tax court, territorial courts and federal regulatory agency decisions
a) Hear 55,000 cases per year – decisions are final unless the Supreme Court will hear an appeal
E) The Supreme Court – the only court specifically created by the Constitution
1) Chief Justice and 8 Associate Justices – have final authority over any question on the Constitution, law or treaty
2) Judicial Review – the power of the courts to determine the constitutionality of laws and actions
a) Power hinted at in Constitution and reaffirmed by Marbury v. Madison
3) Jurisdiction – original over cases where a state is a party, foreign ambassadors and consuls: appellate on most cases from federal and state courts
4) Process by which cases come before the Supreme Court
a) 8,000 cases are brought forward each year – only a few hundred are accepted
1) Reject if justices agree with previous decision or if issue is insignificant
b) Cases accepted – more than half are dealt with in brief orders and sent to lower court to be reheard – only about 100 cases are actually heard each year
c) How cases arrive
1) Writ of Certiorari – order from a high court to a lower court for records
2) Appeal – petition by one party in a case to get the court to review
3) Certificate – request by a lower court for SC to hear the case
d) SC is in session approximately 9 months per year – 1st Monday in Oct. to June or July
1) Hear cases for two weeks then recess for two weeks (research cases and review files)
2) Tuesday thru Wednesday hear cases – each side has 30 minutes to present oral arguments, They also will have presented a written brief (sometimes over 100 pages)
3) Friday is conference day – justices meet and try to determine the cases they have heard that week – must be a quorum present (6 – 4 must agree) – all present, majority must agree
4) Weekend opinions are prepared –
a) Majority opinion accompanies the decision
b) Dissenting opinion written by justices who disagree
c) Concurring opinion written by justices who agree with decision but not with how it was reached
5) Monday is decision day – decisions announced and opinions read
F) Legislative Courts – jurisdiction only in special areas
1) U. S. Claims Court, Territorial Courts, Courts of the District of Columbia, Court of Military Appeals, U.S. Tax Court
G) Appointment of Judges
1) All federal judges are appointed by the President with confirmation by the Senate
2) There are no set qualifications
a) Informal qualifications – attorneys, legal scholars, law school professors, members of Congress and judges from state courts
b) Influenced by – Senatorial Courtesy and party politics
3) All Constitutional Court justices are appointed for life with good behavior
a) Resign, retire, die or be impeached (9 have been impeached)
4) Other courts vary from 4 to 15 year terms
5) Compensation is set by Congress
II) The Constitution
A) Our country was founded on the concepts of limited government and individual freedom
1) Limited government – power comes from the people which limits the governments power to control them
2) Individual freedom – reason for the revolution, Bill of Rights, Amendments 13, 14, 21
3) Supreme Court is the guardian of civil rights – interprets and applies Constitutional guarantees
a) Civil Rights are not absolute – you have the right to do as you please as long as it doesn’t interfere with the rights of others – example: free speech doesn’t include obscenity, etc.
b) The Constitution protects you from the actions of the federal, state and local governments and their agents- not the acts of private citizens
c) Defending your rights may be time consuming and expensive
d) Persons who have rights guaranteed – all persons, citizens and aliens (aliens may be limited)
4) Federalism and civil rights guarantees
a) Initially Bill of Rights applied only to the federal government, this changed with the 14th Amendment which nationalized the Bill of Rights
b) Today federal government limited by the Constitution and the states are limited by the Constitution as well as court rulings and federal law
III) Bill of Rights – those rights that are basic to a free society
A) Freedom of Religion – considered to be so important that 2 clauses of the 1st Amendment are dedicated to it
1) Establishment Clause – bars government from creating a national religion or giving preference to one over another
2) Free Exercise Clause – bars government from interfering with manner in which we worship
3) Idea was to create a separation of church and state – has it happened? Oaths in name of god, money, tax exemptions, pledge
B) Freedom of Religion in action – how is the 1st applied?
1) Establishment – areas of cooperation between government and religion
a) Tax exemption for all churches and church owned property – may be denied to religious organizations that discriminate
b) State aid to parochial schools – based on the Lemon Test – 1) Purpose of the aid must be secular not religious 2) Primary affect of the aid must neither advance nor inhibit religion 3) Aid must avoid excessive entanglement of the government
1) Arguments for – 1) If students weren’t in parochial schools they would be in public schools raising cost of operation 2) Relieves double burden carried by parents 3) Most parochial schools devote the majority of their time to secular education
2) Arguments against – 1) Anti–democratic, aid supports an elitist society with greater social and economic standing 2) Parents choose to accept the financial burden
3) Aid allowed – Textbooks, transportation, maps, AV equipment, etc. (Child Benefit Theory)
4) Aid not allowed – Construction, teacher's salaries, etc.
2) Free Exercise – areas of contention between government and religion
a) Beliefs are protected but the actions you take to carry out your beliefs may not be – example: Mormons having 2 wives, snakes used in religious ceremonies
C) Freedom of Speech – guarantees each person the right to freely express themselves through spoken and written words and other means of communication – Insures that all persons can fully discuss public affairs
1) Limitations on freedom of speech
a) Obscenity – difficult to define, each person has different view. - Miller v. California
b) Prior restraint – cannot curb ideas before they are expressed - Near v MN
1) Cannot stop publication because work might be malicious, scandalous or defamatory – some exceptions for political and military literature (national security)
c) Confidentiality – reporters right to keep sources secret
1) SC has ruled there is no constitutional right – if government wants to grant right they must pass law – federal government has not acted 20 states have
d) Symbolic Speech – show feelings through actions, picketing, signs, gestures - Mahanoy Area School District v. B.L.
1) Cases reviewed on a case-by-case basis, black arm bands OK, burning draft cards is not
e) Advertising – also known as commercial speech
1) Courts have ruled that corporations do have 1st Amendment rights – may be limited if there is an overwhelming need to protect the welfare of society – cannot be false, misleading, or harmful to the public
2) Free Speech and National Security – how far does freedom of speech go?
a) Government has the right to protect itself from internal subversion – may punish espionage, sabotage and treason
b) Sedition – speaking against the government or government officials can be limited
1) Clear and Present Danger Rule – words can be outlawed and people punished if there is immediate danger of criminal action - Schenck
D) Freedom of Assembly – right to gather peacefully and to petition government for redress of grievances
1) Includes the right to gather, express views, organize political parties, pressure groups, petition, lobby, march or otherwise express your feelings
2) Does not include the right to incite violence or endanger the public
a) Government can regulate with reasonable rules governing time, place and manner
b) Courts have supported requirements for advanced notice and permits
c) There is no freedom of assembly on private property – no right to trespass, or otherwise convert private property for your own use – example: shopping malls only with owners permission
E) Due Process of Law – government can not deprive a person of life, liberty or property without due process of law
1) 5th Amendment applies to federal government
2) 14th Amendment applies to states
F) 2 types of due process
1) Substantive Due Process – laws must be fair
2) Procedural Due Process – methods used to enforce the laws must be fair
G) Due Process and the Police Powers of the government
1) Police Powers – power of the state to protect and promote public health, safety, morals and general welfare – may not be used in an unreasonable or unfair manner
a) Health – forbid sale of drugs and alcohol, require compulsory education
b) Safety – no concealed weapons, car safety rules
c) Morals – gambling, prostitution
d) Welfare – minimum wage, maximum hours
2) Places the Courts between the needs of society (protected by the police powers) and the rights of the individual (protected by due process)
a) Court makes decisions based on each individual case
H) Private Property – protected by the 3rd and 4th Amendments – “a man’s home is his castle”
1) 3rd Amendment protects against quartering of soldiers
2) 4th Amendment protects against unreasonable search and seizure
a) It is legal to search with a warrant
b) It is legal to search without a warrant under following circumstances
1) Following a legal arrest, stop & frisk, consent, plain view, hot pursuit, vehicle search, emergency situations and border and airport searches
2) The Exclusionary Rule – evidence gathered by an illegal search may not be used in court
I) The Rights of the Accused – laws are designed to protect all people, even those who commit crimes –you are innocent until proven guilty under our system of laws
1) Protections listed in the body of the Constitution
a) Habeas Corpus – prevents unjust arrest and imprisonment – state must show just cause why a person should not be released
b) No Bills of Attainder – law that punishes without a trial – Congress can determine what is illegal and the punishment for the action but they cannot determine who is guilty
c) No Ex Post Facto Laws – criminal laws that are applied retroactively to the disadvantage of the accused are illegal
2) Protections listed in the Amendments
a) No Double Jeopardy – 5th Amendment, a person cannot be tried for the same crime twice
1) Exceptions – can be tried in both state and federal, can be tried on another charge, can be retried if there is a hung jury
b) All serious federal crimes must go to a Grand Jury – 5th Amendment, GJ is made up of between 16 and 23 people from area – 12 votes required for a presentment or indictment
1) Grand Juries do not try a person they only determine if a trial is necessary
2) Most states use GJ but are not required to by the Constitution
c) No Self Incrimination – it is not necessary for a defendant to testify against themselves – requires the prosecution to prove guilt not the accused to prove innocence
1) Can be used only for ones self, cannot be used to protect others or corporations
2) Cannot be used if you voluntarily take the stand
d) Speedy and Public Trial – 6th Amendment, protects against the accused from being railroaded or being held for an unreasonable amount of time before being tried
1) Speedy – How long is too long? Federal court 100 days, state court 120 days – can be affected by reason for delay (illness of witnesses, defendant-requested delay, etc.)
2) Public – Keeps government from holding secret trials, there can be restraints on the number of people allowed to attend and the coverage allowed by the media
e) Trial by Jury – 6th Amendment, Petit Juries drawn from a fair cross-section of the district the trial is being held in – federal and most states use 12 member juries
1) Right may be waved by the defendant
2) Federal and most states require an unanimous vote to convict
f) Adequate Defense – 6th Amendment, court has ruled it means the best available
1) Defendant has the right to be: informed of the charges against him, confront witnesses against them, mandatory process to obtain witnesses in their favor, have the assistance of an attorney
3) Supreme Court has ruled that you have these rights and have the right to be informed of them
a) The Miranda Rule – You have the right to remain silent, anything you say can be used in court, you have the right to an attorney, if you can’t afford one government will provide one, you have the right to end questioning at any time
4) Rights of the Convicted
a) No Excessive Bails or Fines – 8th Amendment
1) Bail – must be reasonable according to the seriousness of the crime
2) Fines – must be reasonable according to the seriousness of the crime
b) Cruel or Unusual Punishment – 8th Amendment
1) Capital Punishment – 1972 Furman v. Georgia struck down all existing laws
2) Today laws must provide 2 separate trials, one to determine innocence or guilt, the second to determine punishment and automatic appeal of sentence
IV 14th Amendment - most litigated amendment in the Constitution
J) Separate but equal doctrine of Plessy v. Ferguson overturned by Brown v. Board
1) 2 types of segregation
a) De jure segregation – segregated by law
b) De Facto segregation – when no law requires it, usually by housing patterns
K) Affirmative Action – requires employers to take positive steps to remedy past discrimination
1) Critics claim it amounts to reverse discrimination – Bakke v. California