Flashcards in SAC #5 (Outcome 2C) - US Constitution Deck (35)
How does the US Constitution provide for the structural protection of rights? (VERY BASIC)
By providing for the principles of separation of powers and representative government.
DOES NOT PROVIDE FOR RESPONSIBLE GOVERNMENT.
How does the US Constitution provide for the principle of separation of powers?
- The legislative, judicial and executive powers are all kept separate.
> Allows each power to acts as a check and balance on each other.
> Thomas Jefferson noted that the separation of powers would limit the power of government and prevent any person or group from exercising power tyrannically.
How does the US Constitution provide for the principle of representative government?
- Sections 1, 2 and 3 of US Constitution requires that all members of Congress be elected by the people.
- 18th Amendment provides the right to vote to US citizens who are over 18 years old.
> Avoids possibility of governments encroaching on the human rights of citizens.
How does the US Constitution provide for the principle of responsible government?
Does not provide for responsible government because the President is elected separately and not part of Congress.
- President also selects the cabinet.
> Means they are not responsible to Congress.
How does the US Constitution provide for express rights?
- They are contained in the Bill of Rights which have the first 10 Amendments to the US Constitution.
> Congress cannot pass a law which is in conflict with the bill of rights.
When was the bill of rights passed and what does it protect people against?
Protects people and groups against abuse of rights by both the federal AND state governments.
How can rights in the US Constitution be amended?
Through a joint resolution of both house of Congress.
- Must have an approval of two-thirds of both houses of Congress.
- Must then be approved by three-quarters of the states (where the state legislatures usually give approval).
List the 10 amendments in the bill of rights.
1. Freedom of speech, press, religion and petition.
2. Right to keep and bear arms.
3. Conditions for quarters for soldiers.
4. Right of search and seizure regulated.
5. Provisions concerning prosecution.
6. Right to a speedy and public trial.
7. Right to trial by jury.
8. Excessive bail, cruel punishment.
9. Rule of construction of the Constitution.
10. Rights of the states under the Constitution.
Explain the 1st Amendment.
"Freedom of speech, press, religion and petition".
- Free speech
- Free press
- Right to peaceful assembly
- Freedom of religion and the separation of church and state, and
- The right to petition the government for a redress of grievances.
Explain the 5th Amendment.
"Provision concerning prosecution".
This guarantees the right to:
- Not be tried twice for the same crime (double jeopardy rule)
- To a grand jury (provides that a person cannot be tried for a capital or infamous crime unless first indicted by grand jury - determines if there is enough evidence for a trial)
- To not be deprived of liberty without due process of law
- Just compensation when property is taken for public use.
Explain the 6th Amendment.
"Right to a speedy and public trial".
This guarantees the right to:
- A fair and speedy trial by an impartial jury
- Legal counsel
- Be informed of the nature of the accusation
- Compel witnesses to testify during the trial.
Explain the 9th Amendment.
"Rule of construction of the Constitution".
States that the enumeration of these rights does not deny the existence of other rights retained by the people.
How does the US Constitution provide for implied rights?
The US Supreme Court has read implied rights into the US Constitution and Bill of Rights.
Explain what occured in "Griswold v. Connecticut (1965)" - US CASE.
- A physician was arrested for giving information about contraception to a married couple.
- Connecticut law prohibited the use of 'any drug, medicinal article, or instrument for the purpose of preventing contraception'.
- Supreme Court overturned this law.
> Believed it infringed the implied right to privacy
- Court suggested other Amendments supported the implied right to privacy:
> 4th Amendment.
> 5th Amendment.
This court decision raised questions concerning un-enumerated (implied rights) in the 9th Amendment.
List some strengths of the US Bill of Rights as a means of protecting rights.
- Difficult to change.
- Remedies are provided by the courts if rights have been infringed.
- The US Supreme Court can declare that an Act or section of an Act infringes the Bill of Rights and is therefore invalid.
> Cannot be overridden by Congress.
List some weaknesses of the US Bill of Rights.
- Difficult to change.
- People may not be asked to vote on a referendum, means nobody has a say in Amendment to Constitution.
- Rights in the Bill of Rights can be interpreted by the US Supreme Court very narrowly (can cause injustices).
List some similarities between the Australian and US constitutional protection of rights.
- Rights can only be altered, added or removed by amending the Constitution through a complex procedure.
- High/Supreme Court has found that the Constitution contains implied rights.
- Individuals and groups can bring a complaint about an Act infringing their rights set out in the Constitution/Bill of Rights.
- A Court can make an Act invalid if it is inconsistent with the Constitution/Bill of Rights.
- Parliament/Congress cannot override a High/Supreme Court ruling relating to a right.
- Parliament/Congress can change or amend an offending Act.
- Separation of powers exists.
- Representative government.
List some differences between the Australian and US constitutional protection of rights.
- Extensive list of express rights.
- Process for amending the Constitution is longer and more complex.
- Executive, judicial and legislative are separate.
- Responsible government does not exist.
- Bill of Rights applies to federal and state legislatures and governments.
- Only give express rights (and freedom of political communication which is an implied right).
- Process for amending Constitution is outlined in S128 (shorter, less complex).
- Executive and legislative are combined.
- Responsible government applies.
- Protected rights in the Commonwealth Constitution apply to Commonwealth Parliament (only some rights apply to state as well).
What are entrenched rights?
Rights that are protected by a Constitution and can only be changed through methods set out in the Constitution.
What are express rights?
Rights that are expressly referred to in a Constitution.
What are implied rights?
Rights that are not expressly referred to but are read into a Constitution by implication.
Explain structural protection of rights.
Refers to the protection of rights contained in the structure and text of the Constitution.
Provides indirect protection of the rights of Australians in their dealings with the Commonwealth Parliament.
How does the Australian Constitution provide for the structural protection of rights? (VERY BASIC)
Separation of powers, responsible government and representative government.
How does the Australian Constitution provide for the principle of separation of powers?
- The legislative and executive are separate from the judicial.
- If the Commonwealth Parliament oversteps these powers, the High Court (if a case is brought before them) can declare that the law is unconstitutional.
- Legislative and executive are combined (PM, Senior ministers and government departments - Executive, Parliament - Legislative).
- Justice of the High Court are appointed by the government.
How does the Australian Constitution provide for the principle of responsible government?
- Section 53 gives legal recognition of this principle.
> Government cannot operate unless it is able to collect tax and spend money (pay defence money and public servants).
- Only H/Reps can initiate appropriation Bills (for collecting taxes and distributing revenue) and therefore the government must have the confidence of the lower house to run the country.
How does the Australian Constitution provide for the principle of representative government?
- Section 7 directs that senators shall be directly chosen by the people.
> Section 24 for H/Reps.
- Sections 8 and 30 require that each elector shall only vote once.
- Sections 7 and 24 provide for the implied right of the right to vote as they restrict Commonwealth Parliament from passing legislation which interferes with this right.
What are the five express rights in the Constitution?
- S116 (Freedom of religion)
- S117 (Rights of residents in States)
- S92 (Trade within the Commonwealth to be free)
- S80 (Trial by jury)
- S51 xxxi (Receive 'just terms' when property is acquired by the Commonwealth)
Explain Section 92 of the Australian Constitution.
"Trade within the Commonwealth to be free"
Restricts the states from making laws that interfere with free trade within the Commonwealth.
However, legislation is acceptable as long as it does not impose a burden on interstate trade, or discriminate against interstate trade.
Explain Section 80 of the Australian Constitution.
"Trial by jury"
Any individuals who have broken the law must be given a trial by an impartial, unbiased jury where they are considered innocent until proven guilty.