Political Science: An Introduction

Political Science: An Introduction Fourteenth Edition Chapter 4 Constitutions and Rights Roskin | Cord | Medeiros | Jones

Constitutions 4.1 Distinguish between constitutions and statutes. Constitutions are important documents because the specify the rules of government. Constitutions The rules or customs, either written or unwritten, of how government is run. Almost all countries in the world have constitutions, as they serve to create and define power. They are, with the exceptions of dictatorships, the highest law in the land

Constitutions 4.1 Distinguish between constitutions and statutes. Constitutions are different from statutes. Statutes are general laws passed by legislatures, while constitutions specify the basic structure and framework of government. Constitutions also almost always have some specification of individual rights for citizens.

Constitutions 4.1 Distinguish between constitutions and statutes. Political scientists study the written documents as well as what is actually practiced. Many states might have constitutions that say one thing, but political behavior can be very different. The U.S. Constitution differs from other states in that it is fairly brief and considerably less detailed than others.

The General Nature of Constitutional Law (1 of 2) • Because a constitution cannot cover every problem, courts have to interpret the meaning of the constitution. • Judicial review is a power that is relatively new and began with the American courts. • Gives power to rule on the constitutionality of legislation.

The General Nature of Constitutional Law (2 of 2) • Courts are never consistent and how they read the constitution depends on how activist they are. • Judicial activism • The willingness of a judge to strike down legislation or practices. • Judicial restraint • The court's job is not to legislate but to follow the will of Congress; therefore judges are unwilling to overturn statutes passed by legislatures

Constitutions and Constitutionalism (3 of 4) • Constitutionalism refers to the degree to which power is limited in society. • Constitutionalism has its roots in the Magna Carta, which limited the rights of the monarch in relation to the nobility. • In theory, constitutionalism limits the ability of the state to trample the rights of citizens, but this varies, as evidenced by the U.S. actions against Japanese-Americans during WWII.

The Purpose of Constitutions (1 of 3) • Constitutions serve three general purposes. • A statement of national ideals • The Preamble to the U.S. Constitution is an eloquent and precise statement of the values and ideals that matter in the U.S. creed; justice, domestic tranquility, etc.

The Purpose of Constitutions (2 of 3) • Formalizes the structure of a government • Articulating who has power • How much power they have • The uses of that power • The limits on that power.

The Purpose of Constitutions (3 of 3) • Establishes the legitimacy of a government • Both symbolic and practical. • Most constitutions were written after regime changes and seek to justify the new order's right to rule. • Constituent assemblies are formed for this purpose.

Can Constitutions Ensure Rights? 4.3 Explain the variety of "rights" in the modern world. If Constitutionalism refers to the degree to which power is limited in society…can constitutions ensure… Civil liberties? Civil rights? Minority groups?

Civil Liberties and Civil Rights Universal Declaration of Human Rights (UDHR) United Nations General Assembly in Paris 1948, establishes fundamental human rights to be universally protected. Include rights to life, freedom of assembly, expression, movement, religion, and political participation…as well as right to work, education, marry, raise and provide for a family. IMPOSSIBLE to enforce………..why?

Minority Groups and Civil Liberties • The Declaration says that minorities have a right to preserve their cultures, but there is often pressure by the majority to make the minority conform (e.g. speak their language). • It is unclear whether the Declaration should be enforced in these cases. • This is illustrated by the U.S. debate on multiculturalism.

The Adaptability of the U.S. Constitution 4.4 Explain how U.S. judicial review was a first among constitutions. Constitutions are not static documents—they can change and evolve over time. Because constitutions cannot foresee every problem that might arise, they have to be flexible to be enduring. Marbury v Madison – allows the courts to review federal and state laws to see if one part of the constitution is at odds with another

Adaptability - The Right to Bear Arms • A good example is the evolution of the U.S. Constitutional provision on the right to bear arms. • US v Miller – allowed restrictions on gun ownership • DC v Heller – Districts gun law violated 2nd Amendment. • 2nd Amendment contains the militia clause, but is there an inherent individual right apart from belonging to a militia?

Freedom of Expression 4.5 Trace the development of the U.S. right to free speech. Free speech is critical in democratic societies. Freedom of expression is protected by the First Amendment to the Constitution, which says Congress shall make no law abridging the freedom of speech. Freedom of speech is an American problem with all sorts of restrictions on speech. Charlie Hebdo case 2015 in Paris

Freedom of Expression in the U.S. (2 of 3) 4.5 Trace the development of the U.S. right to free speech. Free speech is critical in democratic societies. Free speech is an extremely difficult topic and has many subtle implications. UDHR…with restrictions….why? Constitutions must balance your rights with mine. What is and isn’t protected? Protected – unpopular, hate and symbolic speech, prior restraint Not Protected – libel, slander, obscenity, fighting words

Freedom of Expression Charlie Hebdo – 2015 murder of 12 staffers by Muslim extremists. Free speech vs hate speech Gitlow v NY – “clear and present danger” restricted speech based on “substantive evils” NY Times v US – court protected speech by striking down restrictions on prior restraint

Political Science: An Introduction