090910 gov team judiciary

DRAW A LINE SEPARATING TODAY & YESTERDAY1) Write: Date: 09/09/10, Topic: Judiciary 2) Next line, write “Opener #10” and then:

1) Write 1 high+1 low in last 24 hours

2) Give a unit progress update (include what Chiang can do to help)

3) One news/research item to share.OR What do you want to know about Judicary?

Announcements: None

Agenda1) Judiciary

Primary Objective1) How to make legal arguments

Reminder1) Start meeting to work on your regional speeches2) 9/17 Friday is now all day trip

Listen babyAin't no mountain highAin't no valley lowAin't no river wide enough, baby

If you need me, call meNo matter where you areNo matter how farDon’t worry baby

Just call out my nameI'll be there in a hurryYou don't have to worry

There ain't no mountain high enoughAin't no valley low enoughAin't no river wide enoughTo keep me from getting to you, baby

Remember the dayI set you freeI told youYou could always count on me darlinAnd from that day onI made a vowI'll be there when you want meSome way, some how

Cause babyThere ain't no mountain high enoughAin't no valley low enoughAin't no river wide enoughTo keep me from getting to you, baby

Notes #10a, Title: “Federalism” 1) States Come First: Colonies (states)

experienced close to 200 years of separate freedom before joining the US (will wish to retains some power)

2) Federalism: State + fed share power: at times clear split, other times overlapping or conflicting between the state and federal gov

(“federal” technically means split gov, but mostly refers to national gov)

3) History of US Federalism: States had more power > then equal in the 1800s > 1900s Federal became supreme (recently state wins some).

UNITARY FEDERAL

STATENATIONAL

FEDERAL

STATE NATIONALSTATE

NATIONAL

STATE

NATIONAL

1780-1860 1860-1930

1930-2000

Jour. #10a, “Unitary Debate”1) Read the 2 sides, choose 1 side, and write

which you choose and explain why.2) Then write down what your partner thinks

(include their name at the end).1 2 3 4 5

CON: Federalist Gov (fed gov and state gov)1) State govs are closer to the ppl, so they know what the ppl want2) States allow policies to be practiced before being tried nationally3) Diff states have differentvalues and needs

PRO: Unitary Gov (only national gov ruling all)1) National gov can use resources more efficiently, using scale2) Most world is unitary3) National gov ensures everyone gets same quality gov services

Jour. #10b, Title “States Rights! National Power!”

1) With a partner, discuss who should control each issue (state or federal or both).

a) Higher education f) Immigrationb) Military defense g) Consumer protectionc) Environmental rules h) Standards for carsd) Marriage policies i) Illegal drug policiese) Health policies j) Crime and punishment

Notes #10b, Title: “Constitution Notes” 4) Constitutional Gov: Gov driven by laws. US

one of few govs that follow rule of law. 5) US Constitution (1788): Social contract ratified

by ppl conventions (representative vote), 9/13.

US: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievanc

China: Article 35. Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.“

From Article 2 of the US Constitution

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States” -US Code

Notes #10b, Title: “Constitution Notes” 6) US Constitution Characteristics: a) Republican democ (representative)b) Separation of Powers (legis, exec, jud)c) Federalism (national/state share power)d) Rule of Law (but NASCAR style)

Secret Sauce (not written but essential)e) Civic Virtue: Strong community

(choose to be in US), long term view (stability), and sacrifice (gov easy to be patriotic to), enlightened self-interest

Constitutional Structure and Amendment:Article 1: Congress/Legislature (House + Senate)Article 2: President/Executive (President +

Implied Bureaucracy)Article 3: Federal Courts/Judiciary (US Courts)Article 4: State LimitsArticle 5: Amendment Process: 2/3 of Congress > 3/4 States 2/3 of States > 3/4 States (never used)Article 6: National Supremacy (when in Art 1, Sec 8)Article 7: Ratification ProcessAmendments: First 10 (Bill of Rights) 27 Amendments Total So Far

Notes #10b, Title: “Constitution Notes” 7)

Constitution

1: Legislature:Create laws

(S + H)

2: Executive (President)

3: Judicial:Interprets(SC, CC,

DC)

Bureaucracy

Types of Laws We Have: a) Constitution and

Amendments (like BOR: Bill of Rights): Highest Law

b) Congress: Law (USC: US Code)

c) Judiciary: Court decisions are like laws

d) Bureaucracy: Regulations/Orders are like mini-laws

e) State/Local

Notes #10b, Title: “Constitution Notes”

8) Federalism in the Constitution: FEDERAL gov can ONLY do what

the Constitution says. Make laws on very specific list of things.

STATE government can do (make laws on) ANYTHING except when forbidden by the US Constitution.

Parenting Analogy: FED: You can only go to the library.STATE: You can go anywhere

except the bar.


9) Constitutional Powers: Gov powers in the Const (exp: make

treaties)

10) Congress’ Powers (Art 1, Sec 8): Congress powers to pass laws

initially limited to a list of 17 reasons in Article 1, Sec 8 (if not listed, make amendment)

11) Amendment Powers: Later, some amendments give

Cong. More power to make laws to enforce Am (like 14th Am)

Power of Taxing and Spending: Article 1, Section 8, Clause 1: Power to buy and spend (for the “General Welfare” is very powerful.

Mandates Review: If when the Fed demands the state to do something. If the state refuses, the Fed will deny it money. (States can refuse to obey and lose the money).

c1: “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts”

Interstate Commerce Clause (ICC): Article 1, Section 8, Clause 3: Initially passed to prevent interstate trade conflicts, courts have allowed Congress to use it to pass MANY laws with a loose connection to economic activity.

NPC Review: NPC by itself has NO power. Congress has to prove the new law is connected to 1-17 like 3 (ICC), then the NPC lets them make it.

c3: “To regulate commerce with foreign nations, and among the several states”

Art 1, Sec 8, Cl. 18 (NPC)Necessary and proper clause says Congress can make any law in order to fulfill clauses 1-17, it is like a car.

Art 1, Sec 8, Cl. 1-17Are the drivers that want to

go someplace, but need a car.

c18 (NPC): “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers”

Civil Rights Act of 1964-CONFIRMED

Endangered Species Act of 1973-CONFIRMED

Violence Against Women Act of 1994-REJECTED

Constitution, Amendment 15:Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2 (enforcement clause): The Congress shall have power to enforce this article by appropriate legislation.

Constitution, Hypothetical Amendment:Section 1: The right of citizens of the United States to live without fear of violence.

Section 2 (enforcement clause): The Congress shall have power to enforce this article by appropriate legislation.

Laws and Constitution have

the same power over all of the US,

except…

Laws: Easily changed

Constitution: harder to change (takes

am. to chance amendment)

Power of Laws: a) If it says “state” or “gov”: Only gov has to

obey, example: BOR protects you from Fed+state, not from private citizens

b) Laws: Laws can be written to apply to citizens

Example of Legal Limits: Banning racism14th Amendment: No “state” shall treat ppl

unequal. Does NOT apply to private ppl or biz.

Civil Rights of Act of 1964: No public accommodation or employer can discriminate race, origin, religion, or gender. Applies to all.

14th Amendment (1868)No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

President’s Listed Powers, Article 21) The executive power shall be vest in a President.2) The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States3) Power to grant reprieves and pardons for offenses against the United States4) He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.


12) Executive Powers (Art 2, Sec 1): President carries out the laws.a) Executive Order: orders

bureaucracyb) Signing Statement: giving his/her

openion on a law by Congress

13) Executive Powers (Art 2, Sec 2)Commander in chief, make treaties,

and appoint judges (for life) and other officials (0.1% of bu)

Federal Court’s Listed Powers, Article 3The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States…to controversies between two or more states… the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

(Judicial Review: Most vague of the listed powers for the branches, courts interpreted themselves to have the power of review)

9th Circuit: Winter v. Natural Resources Defense Council (SCOTUS sites with POTUS)

Worcester v. Georgia(SCOTUS John Marshal,

POTUS: Andrew Jackson)

Amendments, Article 5The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourth

Framers thought amendments would happen more often that it does (US: 27 CA: 500)

Past Amendments Proposed but Failed

1876: Abolish the Senate1878: Replace the President with a

Council of 31893: Abolish the Military1914: Make Divorce Illegal1916: Declare war through voting,

and have those who vote yes to register for military service

1933: Limit personal wealth to $1 million

1971: To declare citizens have a right to a clean environment

Failed Equal Rights Amendment: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Journ #10c, “Equal Rights Amendment Debate”“Equality of rights under the law shall not be

denied or abridged by the United States or by any State on account of sex.”

1) Read the 2 sides, choose 1 side, and write which you choose and explain why.

2) Then write down what your partner thinks (include their name at the end).

1 2 3 4 5CON: Reject ERA1) Civil rights laws already protect women2) Some things should not be equal access, like military service (combat)

PRO: Add ERA1) Adding constitution ensures women rights

2) There is no reason for anything not to be equal

35 states which ratified the ERA rescinded their

Future Amendments Being Discussed1) Revise ‘14th Amendment’ Amendment: Remove line

allowing anyone born in US to be citizen.2) Marriage Amendment: Define marriage as between a man

and a woman. (Fed courts have refused to decide yet)3) End the Electoral College Amendment: Let voters directly

choose the president.4) Flag Burning Amendment: Ban flag burning (Fed Courts

say we have a 1st Amendment right to burn flags)5) Arnold Amendment: Let non-US born citizens run for

president.

18: Bans alcohol

21: Repeals 18

Notes #10c, Title: “Judiciary Notes” 14) Judiciary: 1 of the 3 branches, designed to be most independent (protect minority rights). Power to interpret: kill laws or force actions.15) Judicial Review: Cases brought to it, judiciary’s power to strike down part of laws (Marbury v Madison: strike part of Jud Act 1789)

Notes #10c, Title: “Judiciary Notes” 16) Loose Interpretation: Interpret Constitution loosely to evolve with changing times. 17) Strict Interpretation : Stick to literal word meaning of the Constitution

Work #10d, “Con Interpretation Debate”1) Read the 2 sides, choose 1 side, and write



CON: Strict1) More predictable2) If times change, then let Congress amend the Constitution.3) Federal judges are nominated for life, its too much power to let decide what laws are.

PRO: Loose1) Strict can lead to unpractical outcomes2) Times change, laws need to reflect change.3) The courts are the most qualified to determine the meaning of laws (laws will always need interpreter)

Notes #10d, Title: “Judiciary Notes” 18) Judicial Activism: Court should not shy from being early in solving public controversies.19) Judicial Restraint: Court should wait until the more democratic branches exhaust resolving public controversies.

Work #10e, “Con Interpretation Debate 2”1) Read the 2 sides, choose 1 side, and write



CON: Jud Restraint1) Judges are not elected or confirmed by the ppl2) 9 Justices aren’t wiser than 535 members of Congress+President3) Who gives 9 Justices the right to override the democratic process?

PRO: Jud Activism1) Life term judges have can make decisions free of politics2) Federal judges are wiser than Pres/Cong3) Society at times needs a jumpstart to do what’s right (Brown v Board)

Notes #10d, Title: “Judiciary Notes” 20) Originalism: Stick to intent of the framers/law writers.

Other World Views:Economic Theory:

Looks at law through a Free Market

Lens

Critical Theory:Looks at inherit

injustice in the system

Notes #10e, Title: “Judiciary Notes” 21) 3 Levels to Federal Court: Supreme Court (1)Circuit Court of Appeals (13):

We are in the 9th CircuitDistrict Trial Court (94):

We are in the Northern CA Fed District Court82% Male, 18% Female, 49% GOP, 45% DEM82% White, 5% Hispanic, 0.5% Asian

22) All Federal Judges: Appointed by President > confirmed by Senate serve for life.*

*Tradition is for Cir+Dist nominees, Pres ask local Senators, also any Senator can hold up.

N. CADistrict

JudgeEdward Chen

(appointed by Pres. Obama)

CA is part of the 9th Circuit Court

28 judges rotate the 9th

9th

Circuit

FYI1) Judge: Judge on any of the courts lower than the highest court (their decision has the same power as a higher court, except they can be reversed by higher court)

2) Justice: Judge on the highest court (their decision can only be reversed by constitutional amendment*)

*Technically, the Constitution has given Congress the power to remove certain topics from the jurisdiction of the court, this has never been done (Art 3, Sec 2).

23) SCOTUS: Supreme Court of the U.S., 9 judges. 4 of 9 judges to take a case, 5 of 9 for a decision. Chief Just. Roberts.

SCOTUS: 9 Justices

9th

Justices

Three Kinky Southern Girls Bring Rapper Kanye Scandals Aplenty

1) Ginsburg - LIB2) Sotomayer - LIB3) Kagan - LIB4) Breyer - LIB5) Kennedy - SWING VOTE (LEANS CON)6) Roberts - CON, CHIEF JUSTICE7) Alito - CON8) Thomas - CON9) Scalia - CON

Notes #10e, Title: “Judiciary Notes” 24) Precedent/ Stare Decisis: Make laws more

predictable, judges obligated to rule in current case as it had in similar past cases. Lower court must obey past decisions made by higher courts.

Court if persuaded can reverse its own decision, or decisions of lower court.

Example:9 follow SCOTUSNor Cal District

follow 99 no need follow

13

Precedent Practice1) 9th Circuit reverses a decision made by the Nor. CA District court.2) 9th Circuit reverses a decision by the So. NY District court.3) 9th Circuit reverses a decision by the 5th Circuit Court.4) 9th Circuit reverses a decision by SCOTUS.5) SCOTUS reverses a decision by the 9th Circuit.6) SCOTUS reverses a past decision by SCOTUS.7) President and Congress reverse a decision by SCOTUS.

Past Cases

Current Case:Cases are never identicalto past cases.

No Yes

Notes #10e, Title: “Judiciary

Notes” 25) Certiorari: D+C courts

must accept all cases, but SC can refuse to hear a case. It takes 4/9 votes for SC to accept a case Avg: 1000+ request, 100+ granted. (activist vs restraint key to how many cases get granted cert, Roberts restraint)


Notes” 25) Certiorari: D+C courts

must accept all cases, but SC can refuse to hear a case. It takes 4/9 votes for SC to accept a case Avg: 1000+ request, 100+ granted.

(activist vs restraint key to how many cases get granted cert, Roberts restraint)

Gideon vWainwright


Notes” 26) Legal Arguements: Each

legal team submit written and oral arguments: focusing on favorable case precedent. The judges later announce their opinion orally and in writing.

a) Amicus Briefs: those not involved in the case can write arguments to try to sway the court.

Notes #10f, Title: “Judiciary Notes” 1) Trial (Mock Trial): First case, fact finding case 2) Appellate Case (Moot Court): Appealed case, can only look at mistake of law (mistakes by judges)

3) Counsel: Lawyer4) Judge/Justice (SC): Decides what the law is5) Jury: Decides what the facts are (what happened), jury can be waived.6) Plantiff (π or P): Harmed7) Defendant (Δ or D): Accused8) Appellant (a): Person who lost lower case, and appeals to higher (1:District Court > 2: Circuit Court of Appeals > 3:Supreme Court)9) Respondant (r): Person who must defend their lower case victory.

Oral Argument Structure 1) Greeting Statements (both sides come up) 2) Issue Statements (both sides come up) 3) Facts (both sides come up) 4) Initial Arguments (appellant first, respondent second) 5) Rebuttals (appellant first, respondent second) 6) Closing Statements(both sides come up)

How Judges Think1) Presenting past binding precedent (past same or higher court) cases that is in your favor2) Presenting persuasive precedent (past sister, lower, state court cases)3) Legal theory (legal logic) and jurisprudence (loose v. strict, restraint v. activism, originalism, econonmics, critique)4) Public policy (social, political, economic, benefit v harm)

Notes #10f, Title: “Judiciary Notes” 10) How Can You Sue: a) Criminal: Gov (ppl) sue you! Decision by: 100% of jury believed beyond

reasonable doubt (98%)Outcome: action by accused, fine, jail, deathb) Constitutional: You sue gov to enforce or

change interpretation of the Constitution Decision by: judgeOutcome: gov action c) Civil: You sue gov or people to get something

for yourself. (Being harmed is called a “tort”)Decision by: 75% of jury believes probably (50%)Outcome: action by accused, award money

Notes #10f, Title: “Judiciary Notes” 11) 42 U.S.C. 1983: Law passed that says you can

sue the gov for money if gov violate your civil liberties (constitutional freedoms)

090910 gov team judiciary

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