Final 258 Flashcards
(22 cards)
According to Jonathan Gienapp, what are the two steps of social contract theory, and how does that relate to the terms of the Preamble to the US Constitution?
Step 1 People leave the state of nature and agree to a social contract.
- This step involves individuals surrendering certain freedoms to form a society.
- It reflects mutual consent to be governed for collective safety and order.
Step 2: They form a body politic: a government.
- Government is not inherent but is created by the people to serve their interests.
- Power flows from the people to the government, not vice versa.
*This theory is embedded in the Preamble’s opening (“We the People”), emphasizing popular sovereignty.
*The Preamble outlines the goals of the contract: justice, domestic tranquility, defense, welfare, and liberty.
Why is the separation of powers considered a safeguard against tyranny according to The Spirit of Laws and Federalist 51?
Montesquieu’s idea in The Spirit of Laws:
- Tyranny results when power is concentrated in one body.
- Separating legislative, executive, and judicial branches is essential for liberty.
Madison in Federalist 51:
- “Ambition must be made to counteract ambition.” We need internal checks within the government.
- Each branch must have the constitutional means and personal motives to resist encroachments.
Checks and balances help prevent the abuse of power and ensure accountability.
Define “forceful federalism” and explain how the Meredith case at the University of Mississippi exemplified it.
*Forceful federalism: When federal authorities intervene to enforce constitutional rights against state resistance.
*In 1962, James Meredith’s admission to the University of Mississippi met with state defiance.
*Federal marshals were sent covertly (in postal trucks) to protect Meredith, avoiding the optics of military occupation.
*Example of federal enforcement overriding state obstruction to desegregation.
What is the significance of Article I, Section 8, and the Tenth Amendment in debates over federal versus state power?
Article I, Section 8:
- Grants enumerated powers to Congress (e.g., taxation, defense, commerce).
- Includes the “Necessary and Proper” Clause, which gives flexibility for federal action.
Tenth Amendment:
- Reserves powers not delegated to the federal government to the states or people.
- Acts as a constitutional counterweight to federal authority.
Together, they define the ongoing tension and dynamic between national and state governance.
What roles did the U.S. Supreme Court play in undermining and later supporting civil rights laws and policies?
Undermined Civil Rights:
- Struck down early civil rights laws, such as the Civil Rights Act 1875.
- Claimed protections did not apply to private discrimination (e.g., Jim Crow laws).
Later supported Civil Rights:
- Expanded interpretation of the 14th Amendment (e.g., Brown v. Board).
- Upheld key aspects of civil rights legislation, including the Fair Housing Act.
Demonstrates the Court’s evolving stance on civil rights enforcement.
Explain the constitutional tension between “states’ rights” and federal enforcement of civil rights, using examples from the readings.
States’ rights argument:
- States claimed sovereignty over segregation, voting laws, and education.
- Cited the Tenth Amendment to resist federal intervention.
Federal enforcement:
- Used the 14th Amendment’s Equal Protection Clause to justify intervention.
- Example: Brown v. Board of Education (1954) forced desegregation against state opposition.
Tension revealed:
- Resistance in cases like Little Rock (1957) and the University of Mississippi (1962).
- Federal troops and marshals were used to enforce court orders.
According to Lieberman and King, what are the four dimensions of Forceful Federalism, and how do they interact?
Federal Authority over Individuals:
- Direct federal enforcement of individual rights, bypassing states.
Federal Promotion of National Lobbies:
- Encouragement of civil rights and advocacy groups that influence national policy.
Federal Protection of National Rights:
- Constitutional rights are upheld regardless of state opposition.
Federal Control over States:
- The federal government compels state compliance through legislation and enforcement.
Interaction:
- These elements collectively strengthen national unity and promote equality.
Why was the federal government’s use of coercive power in 1962, Mississippi, historically unprecedented and politically significant?
- First primary post-Reconstruction use of force to uphold individual rights against a state government.
- Marked a turning point in the civil rights movement, where federal authority asserted itself over state defiance.
- Politically significant for establishing a precedent of federal intervention in civil rights matters.
Who was John Doar, and why does Kevin Kruse consider him an important figure?
- Deputy Assistant Attorney General for Civil Rights.
- Played a key role in mediating racial conflicts, notably during the Meredith crisis.
- Personally intervened to prevent violence, showing federal commitment on the ground. His interviews with sharecroppers were compelling, while the FBI’s were not.
- His approach embodied the shift toward active federal protection of civil rights.
What were the roles of Gouverneur Morris and James Wilson in shaping the Constitution’s language and framing?
James Wilson:
- Advocated for strong national government and popular sovereignty.
- Supported proportional representation and executive power.
Gouverneur Morris:
- Principal author of the Constitution’s final text, including the famous phrasing of the Preamble.
- Crafted clauses like Necessary and Proper to give Congress more flexibility.
If their views had fully prevailed:
- Slavery might have been restricted or abolished sooner.
- A stronger, more centralized federal government could have addressed civil rights issues earlier.
- Welfare and national programs might have developed more rapidly.
What are racially restrictive covenants, and how did they evolve from private agreements into constitutional questions?
- Private contracts in property deeds preventing sale or rental to certain racial groups.
- Originally considered private actions beyond constitutional reach.
- Evolved into constitutional issues through cases like Shelley v. Kramer (1948), where enforcement by courts was deemed a state action violating the 14th Amendment.
- Led to the Fair Housing Act of 1968, prohibiting racial discrimination in housing.
How did the Hansberry v. Lee case challenge the legitimacy of racially restrictive covenants?
- Challenged whether a legal ruling binding a racial group to prior decisions violated due process.
- The Supreme Court ruled in 1940 that a private covenant could not preclude an individual’s rights if they were not adequately represented.
- Undermined the legal foundation of racially restrictive covenants, setting the stage for later challenges.
How did the National Association of Real Estate Boards’ 1924 Code of Ethics reinforce systemic racial exclusion in housing?
- Code instructed realtors to maintain racial homogeneity in neighborhoods.
- Institutionalized segregation under the guise of “ethical” business practices.
- Contributed to long-term racial wealth gaps and urban segregation.
What is the significance of the phrase “We the People” in the final version of the Preamble, and how did it differ from earlier drafts?
- Symbolized the principle of popular sovereignty, emphasizing national unity over state allegiance.
- Earlier drafts listed each state, implying a looser confederation.
- Shift to “We the People” reinforced a singular national identity.
How do “sanctuary cities” challenge traditional notions of federal supremacy and local compliance?
- Sanctuary cities refuse to cooperate fully with federal immigration enforcement.
- Assert local autonomy and p protections, often citing constitutional principles like federalism and the Tenth Amendment.
- Reflect broader debates about the limits of federal power over local governments.
According to Steven Schwinn, why should we be “terrified” by recent threats to the separation of powers?
- Schwinn warns about executive overreach, especially under the Trump administration.
- Independent federal agencies (like the DOJ, EPA) have been politicized, undermining their autonomy.
- Separation of powers is being eroded as the executive consolidates control.
- Without adequate checks, the balance envisioned by the Framers is at risk.
What are the three ways that the Supreme Court has said the actions of private corporations can be held to constitutional standards, and what were the cases that established those principles?
Functional Equivalent of a Municipality (Marsh v. Alabama, 1946):
- A private entity running a company town was subject to constitutional limits because it performed a public function.
Judicial Enforcement (Shelley v. Kramer, 1948):
- Courts enforcing racially restrictive covenants constituted state action.
Symbiotic Relationship (Burton v. Wilmington Parking Authority, 1961):
- A restaurant operating in a government-owned parking garage could not discriminate. Close cooperation with the state triggered constitutional scrutiny.
How do the themes in The Latter-Day General Grant relate to recent efforts by the federal government to intervene in state-level civil rights issues?
- Modern federal efforts parallel General Grant’s post-war enforcement of civil rights.
- Federal troops and policies are used when states fail to protect citizens’ rights (e.g., DEI programs, immigration).
- Highlights the necessity and historical precedent for federal intervention to defend equality.
List three things you would change about the US Constitution if you could, and explain why your changes would improve.
Abolish the Electoral College:
- Replace with a direct national popular vote to ensure democratic legitimacy.
Term limits for Supreme Court Justices:
- Promotes accountability and prevents lifetime entrenchment of outdated ideologies.
Overturn Citizens United v. FEC:
- Reinstate campaign finance limits to reduce undue corporate influence and increase transparency.
Optional additions:
- Add affirmative rights (e.g., healthcare, education).
- Create new branches for ethics oversight and modern administrative functions.
Explain Sanford Levinson’s “constitutional faith” concept and why he says he has lost his constitutional faith.
- Levinson likens the Constitution to a sacred text (like the Bible), invoking national reverence.
- “Constitutional faith” is belief in its principles and power to guide just governance.
- He’s lost faith due to structural issues (e.g., the Senate, Electoral College) that hinder democratic representation.
- Advocates for a new Constitutional Convention to address these deficiencies.
Explain the theory of the “unitary executive” and its significance for contemporary debates over presidential power.
- Asserts that all executive authority is vested solely in the president.
- The President can control, direct, and remove any executive official or agency.
- Critics argue it threatens checks and balances and allows for authoritarian overreach.
- Especially relevant in debates over presidential authority in enforcement and administration (e.g., firing prosecutors, controlling investigations).
What is the most important thing you have learned about the US Constitution this semester, and why is it so important?
Its vague language:
- Clauses like “necessary and proper,” “equal protection,” and “due process” are open to interpretation.
- This flexibility allows both progress and regression depending on judicial philosophy and politics.
Its fragility:
- It is not self-enforcing: it depends on civic engagement, legal advocacy, and political will.
- Recognizing its strengths and weaknesses helps citizens defend and reform it responsibly.
