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Jul 15, 2015
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Source:•Michael G. Roskin, Robert L. Cord, James A. Medeiros, & Walter S. Jones. (2012). Political Science: An Introduction. New York: Pearson Longman.
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Constitutions
Written
Rules by which a government conducts its
affairs
Unwritten
Traditions, customs, statues, precedents
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Constitution
Many C. specify individual rights &
freedoms
Set limits on government
Balance minority &
majority interests
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General Nature of Constitutional Law
Basic, highest law of the land
Often a constitutional court interprets C. provisions
Judicial activism: conservative or liberal courts
strike down precedents
Judicial restraint: court is reluctant to strike down law or
make law through broad decisions
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Constitutions & Constitutional Gov’t
Countries’ political culture can give different interpretations
to similar constitutions
Constitutions can be idealistic fictions
Constitutionalism: degree to which government limits its
powers
Magna Carta: early effort to limit state power; a tool to
create democracy
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Purpose of a Constitution
A statement of national ideals
Formalizes government
structure: separation of power—C. divides
authority & responsibility among branches of
government; limit power of each branch
Establishes government
legitimacy: Constituent Assembly—a legislature
meeting for the first time to write a C; often set up after
overthrow of prvious regime to give legitimacy of rule by
new regime
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What Is a Right?
Jeremy Bentham “right is the child of law,” it only exists when
it’s in statute or C.
U.S. founding fathers took “natural rights” as foundation for
rights, formulated as “freedom from” various types of tyranny
Civil rights: comes with modern democracy, which need freedom to speak & vote for citizens; no civil rights = dictatorship looms
Economic rights: relatively new; a socialist idea of 19C; “freedom
to,” as in freedom to live adequately or have a job
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Can Constitutions Ensure Rights?
Civil Rights & Civil Liberties:
1. As a reaction to WW2, U.N. G. Assembly adopted the Universal Declaration on Human Rights
2. No enforcement power
3. Sets up basic norms that most governments do not violate openly
Minority Groups & Civil Liberties
1. Few countries are homogeneous; most have different racial, ethnic, religious, cultural, or linguistic diversity whose civil or cultural liberties are often compromised
2. UDH Rights indicates that minorities have the right to preserve their cultural uniqueness
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Adaptability of U.S. Constitutions
Right to Bear Arms:
1. U.S. v. Miller (1939)
2. District of Columbia v. Heller (2008)
3. McDonald v. Chicago (2010)
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Adaptability of U.S. Constitutions
Freedom of Expression
1. Gitlow v. New York (1925)
2. Pentagon Papers
3. Citizens United v. Federal Election Commission (2010)
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Adaptability of U.S. Constitutions
Free Speech and Sedition
1. Sedition – criticism of the government or officials to produce discontent or rebellion
2.Espionage Act (1917)
3. Smith Act (1940)
4. Internal Security Act (1950)
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Do Terrorists Have Rights?
1. In 2006 & 2008, the U.S. Supreme Court ruled that terrorists have habeas corpus rights
-Detainees may protest innocence before a judge
2. Patriot Act
-Context dependency when examining legal restrictions on human and civil rights in the U.S. and other countries
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Reference:•Michael G. Roskin, Robert L. Cord, James A. Medeiros, & Walter S. Jones. (2012). Political Science: An Introduction. New York: Pearson Longman.
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