LAW AND POLITICS The aim of this tutorial is to help you learn to identify and evaluate the foundations of the American legal and political system.

The social contract theory of government Several strands of philosophical and political thought influenced the development of the American political system. One of the most important of the these was social contract theory, first developed by the English philosopher John Locke ( ). According to Locke, the primary purpose of government is to protect us in our exercise of our natural rights. These natural rights, such as freedom of speech and the right to debate controversial ideas, would best be protected by a government that recognizes the existence of a social contract. 2 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

What is a social contract?  A social contract is a voluntary, unanimous agreement among the people in a society to unite as a political community and to obey the laws enacted by the government they select. This is an implicit arrangement, and holds that the people accept the government’s sovereignty – its exclusive rights to exercise political authority – only so long as the government protects people from harm and does not abuse them.  A social contract must be mutually beneficial to both citizens and government. 3 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

The development of democracy in the United States  In a democracy, the legitimate authority of the government comes from the people themselves. As citizens of the United States, it is important we understand how our democracy works and how we can use our critical thinking skills to influence the political process.  In a direct democracy, all the people directly make laws and govern themselves. In a representative democracy like the United States, the people turn over this authority to elected representatives. 4 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Checks and balances To protect citizens against the abuse of government power, the authors of the United States Constitution built in checks against government power. One of these checks is federalism, a system of government where power is divided between a central authority – the federal government – and constituent state governments. Another check is the division of the federal government into three branches: executive, judicial, and legislative, known as the separation of powers. 5 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

To vote or not to vote One of the principal ways we as citizens participate in a representative democracy is through voting. Despite its crucial role, voter turnout in the United States is one of the lowest among the world’s democracies. This is due in large part to the voluntary nature of the voting system in the United States, unlike in other democracies, such as Australia, where voting is mandatory. It is important to recognize that failure to vote is a form of participation, in that it supports the status quo or the most vocal and powerful political groups. 6 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

The executive branch In the United States the executive branch of government is headed by the president, who is the head of state and the highest government official in the country. In addition to the president and his White House staff, the executive branch of the federal government includes the agencies that carry out much of the work of government. The executive branch usually has increased power in times of war; for this reason, it is important we use our critical- thinking skills in evaluating government policy and directives during these times. 7 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Checks on executive power  Several groups within our society act as checks on executive power. These include:  The legislative branch, which possesses the power of impeachment  The judicial branch  The media  The citizenry—that is, us 8 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

The legislative branch  In a democracy we have the rule of law, in which government authority must be exercised in accordance with written laws, to protect us from the rule of men, where law-making is elitist and arbitrary.  The United States Constitution created the legislative branch, or Congress, for the purpose of making and enacting laws. There are two houses of Congress: the Senate and the House of Representatives. 9 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Participating in the legislative process As citizens, there are several ways we can participate in the legislative process. These ways include directly contacting legislators, lobbying, volunteering, interning, and getting initiatives placed on the ballot. In cases where these efforts fail, or where we consider existing laws to be unjust, we can protest the law or engage in civil disobedience. 10 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Civil disobedience Since the early nineteenth century, Americans have used civil disobedience – the active, nonviolent refusal to obey a law that is deemed to be unjust – as a political instrument to bring about changes in legislation or government policy. Individuals as varied as Henry David Thoreau and Rosa Parks have used civil disobedience to challenge authority. 11 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Engaging in civil disobedience  Engaging in civil disobedience requires careful use of our logical and critical thinking skills. In 1849, Henry David Thoreau outlined four criteria for engaging in effective civil disobedience:  Use only moral and non-violent means to achieve goals.  First make an effort to achieve change legally.  Be open and public about your actions.  Be willing to accept the consequences of your actions. 12 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

The judicial branch  Article III of the Constitution created the judicial branch of the federal government, which comprises the court systems. Their members, the justices (judges), are usually elected for life. Because of this, judges are not as exposed to legislative or public pressure as other elected government officials.  While legislators consider and construct laws, the judicial branch asks when the law should be applied and how it should be interpreted. This is known as judicial review. The U.S. Supreme Court is the highest court in the land. 13 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Legal reasoning and the doctrine of legal precedent Legal reasoning requires the use of inductive and deductive arguments, and also the use of inductive arguments using analogies. These analogies take the form of an appeal to precedents. Legal precedents form what is known as common law. According to the doctrine of legal precedent, if previous cases are similar in relevant ways to the current case, then the current case should be decided in the same way. 14 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.

Evaluating legal precedence  To determine if a previous case provides legal precedence, use the following criteria:  Research the present case. Study the relevant details and issues.  Examine possible precedents. Find other similar cases, and their court decisions.  Identify shared general principles. Look for principles that apply both to your case and the precedent(s).  Evaluate the analogy. Determine how strong and relevant the similarities and dissimilarities are. 15 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.`

Conclusions Our legal and political system is designed to allow us as citizens to participate in a number of ways, both legal and non-legal. A healthy democracy requires continual input from a well-informed citizenry who apply critical thinking skills to the study of political and legal developments. This is also true when examining the judicial system and the legal process itself. As such, critical thinking skills are vital in the preparation, presentation, and evaluation of a strong legal argument. 16 © 2010, The McGraw-Hill Companies, Inc. All Rights Reserved.