Judiciary Vocabulary Judicial Review Judicial Review Precedent Precedent court decision / opinon court decision / opinon elastic language elastic language rationale rationale Reserved Powers Reserved Powers Enumerated Power Enumerated Power Concurrent Powers Concurrent Powers Nullification Nullification Dual Federalism Dual Federalism Copyright © 2011 Cengage

Judicial Review The power of the courts to declare acts of legislature/executive branches unconstitutional The power of the courts to declare acts of legislature/executive branches unconstitutional Copyright © 2011 Cengage

Precedent A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Or – A law established by following earlier judicial decisions Or – A law established by following earlier judicial decisions Judges will generally "follow precedent" - meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case. Judges will generally "follow precedent" - meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case. Copyright © 2011 Cengage

Court Decision the particular end of a legal or official argument : a legal or official judgment the particular end of a legal or official argument : a legal or official judgment Copyright © 2011 Cengage

Elastic Language Precise definitions of powers are politically impossible due to competing interests, for example, commerce. Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” -from Article I

Rationale the reason or explanation for something the reason or explanation for something Copyright © 2011 Cengage

Court Jargon Plaintiff – party who initiates a lawsuit Plaintiff – party who initiates a lawsuit Defendant – person accused of committing an a crime Defendant – person accused of committing an a crime opinion – ruling of the court opinion – ruling of the court majority – is a judicial opinion agreed to by more than half of the members of a courtmajority – is a judicial opinion agreed to by more than half of the members of a court concurring – rule with majority but for different reasonsconcurring – rule with majority but for different reasons dissenting - opinion written by justices who disagree with the rulingdissenting - opinion written by justices who disagree with the ruling

Nullification Definition: states had the right to declare null and void a federal law that they believed violated the Constitution Definition: states had the right to declare null and void a federal law that they believed violated the Constitution Copyright © 2011 Cengage

Dual Federalism Definition: both national and state governments are supreme in their own spheres, which should be kept separate. Definition: both national and state governments are supreme in their own spheres, which should be kept separate. Copyright © 2011 Cengage

The Bill of Rights Chapter 5, Section 3

Copyright © 2011 Cengage The Debate on the Meaning of Federalism The Supreme Court Speaks The Supreme Court Speaks McCulloch v. Maryland (1819) settled two questions Could Congress charter a national bank? Yes, because of the “ necessary and proper ” (elastic) clause, even though this power is not explicitly in the Constitution Could states tax such a federal bank? No, because national powers were supreme and therefore immune to state challenge Later battles related to federal taxes on state and local bond interest. Thomas Jefferson was an ardent supporter of states’ rights, p. 54 Bowdoin College Museum of Art, Brunswick, Maine, Bequest of the Honorable James Bowdoin

Ruling on a Court Case 1. What is the issue being discussed in the case? (in the form of a question – ex. Do schools have the right to censor student expression?) 2. Decision & Rationale – Yes or no & why (ex. Yes, schools have the right to censor students “so long as their actions are resonably related to legitimate pedagogical conerns.”) 3. What is the precident that is set?

Article I Section 9&10 Article I, Section 9 specifically prohibits Congress from legislating in certain areas. Article I, Section 10, limits the power of the states.

Debate cont’ Nullification Nullification Definition: states had the right to declare null and void a federal law that they believed violated the Constitution Authors: James Madison (Virginia Resolutions), Thomas Jefferson (Tennessee Resolutions), and John C. Calhoun Question settled by the Civil War: the federal union is indissoluble, and states cannot nullify federal law; position later confirmed by the Supreme Court Dual Federalism Dual Federalism Definition: both national and state governments are supreme in their own spheres, which should be kept separate. Example: interstate versus intrastate commerce Early, product-based distinctions were unsatisfactory Still, the Supreme Court does seek some distinction between what is national and what is local, although it is not entirely consistent in its support of state sovereignty

Dual v Cooperative 1.What are some services provided by the federal government? 2.What are some services provided by the state government? 3.What services do local governments provide?

Dual v Cooperative Dual: o o Pre national govt dominance o o Each remain supreme w/in their own spheres o o Layer Cake Analogy o o Powers of National Govt interpreted narrowly Cooperative: o Share responsibilities for public policy o Marble Cake Analogy o Mingled resp. and blurred distinctions o Historically starts w/ New Deal, Great Society o Involve shared costs, federal guidelines, shared administration

State Sovereignty Supreme Court has strengthened states ’ rights in several recent cases United States v. Lopez (1995), guns in schools United States v. Morrison (2000), overturned Violence Against Women Act of 1994, stating that attacks against women do not substantially affect interstate commerce Printz v. United States (1997), background checks on gun purchasers Supreme Court has also strengthened the Eleventh Amendment, protecting states from suits by residents of other states or citizens of foreign nations Alden v. Maine (1999), compliance with federal fair-labor laws Federal Maritime Commission v. South Carolina Ports Authority (2002), states did not agree to become mere appendages of national government

Eleventh Amendment The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country. Protecting states from certain types of legal liability is a concept known as “sovereign immunity.” (immune from being sued in federal court without their consent). Hans v. Louisiana(1890) extended the sovereign immunity, barring suit even by citizens of that defendant state. Although other states and the federal government could still bring action against the state. Result: States became immune to federal law, since private parties could not sue. Stripping doctrine: private parties can sue state officers in their official capacity for injunctive relief.

State Sovereignty cont’ But not all decisions have supported state sovereignty State can do what is not prohibited by the Constitution or preempted by federal policy, even if it is consistent with its own constitution Police power — generally recognized; refers to those laws and regulations, not otherwise unconstitutional, that promote health, safety, and morals. Protections for the states in the Constitution No state can be divided without its consent. Two senators for every state Every state assured of a republican form of government. Powers not granted to Congress are reserved to the states. Cities, towns, and counties have no such protections. They exist at the pleasure of the state government, so there is no struggle over sovereignty (Dillon ’ s Rule) See the Politically Speaking box: The Terms of Local Governance Current conflicts are mostly over federal grants or federal mandates, which require states to meet certain standards before they can receive federal funds.

At one time the states could issue their own paper money, such as this New York currency worth 25 cents in Under the Constitution, this power was reserved to Congress. p. 55 The Granger Collection

V. Who wins?????

Advocates of a strong national govt say….. Supremacy Clause! (Article VI, Section 1, Clause 2. This clause asserts and establishes the Constitution, the federal laws made in pursuance of the Constitution, and treaties made by the United States with foreign nations as "the Supreme Law of the Land”)

10th Amendment Advocates of state’s rights believe this means the national govt has only those powers specifically assigned by the constitution 10th Amendment: Any power not listed, says the Tenth Amendment, is left to the states or the people.

What would Georgia do???? Jack and Jill got married in Maine and moved to GA for the weather. Are they still married? Susie gets her driving license in Texas. Can she get pulled over in GA for not having a GA license? Yes, Full Faith and Credit Clause No, Full Faith and Credit Clause

Article IV Section 1 ensures that states respect and honor the state laws and court orders of other states, even when their own laws are different. Section 2 guarantees that states cannot discriminate against citizens of other states. Section 3 Congress can admit new states into the Union, but a single state cannot create a new state within its boundaries. Section 4 The section also gives Congress the power (and obligation) to protect the states from an invasion by a foreign country.

What would Georgia do???? John Dillinger is fleeing Indiana after robbing banks and has made it down South to GA. The officials know where he his. Return him to Indiana….. Extradition

What would Georgia do???? Sam is visiting Atlanta from New York and has to pay 7% sales tax (he ’ s not to happy since New York does not have this ….). Does he have to pay? Yes, Privileges and Immunities

Article IV…. Federalism ALSO involves relationships among states

So what is Federalism? Is Federalism Good or Bad?

Figure 3.1 Lines of Power in the Federal System of Government Federalism: a political system with local government units, as well as a national government, that can make final decisions regarding some governmental activities and whose existence is protected Local governments are able to make decisions on at least some matters without regard to the preferences of the national government. Examples of federal governments: United States, Canada, India, Germany, Switzerland, Australia

Governmental Structure Special protection of sub national governments in federal system due to: Constitution of country Habits, preferences, and dispositions of citizens Distribution of political power in society National government largely does not govern individuals directly, but compels states to do so in keeping with national policy.