LAW & POLITICS

The aim of this tutorial is to help you learn to identify and evaluate the foundations of the American legal and political system.

The social contract theory of government

Several strands of philosophical and political thought influenced the development of the American political system. One of the most important of the these was social contract theory, first developed by the English philosopher John Locke (1632-1704). According to Locke, the primary purpose of government is to protect us in our exercise of our natural rights. These natural rights, such as freedom of speech and the right to debate controversial ideas, would best be protected by a government that recognizes the existence of a social contract.

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Thomas Hobbes and John Locke

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What is a social contract?

A social contract is a voluntary, unanimous agreement among the people in a society to unite as a political community and to obey the laws enacted by the government they select. This is an implicit arrangement, and holds that the people accept the government’s sovereignty—its exclusive rights to exercise political authority—only so long as the government protects people from harm and does not abuse them.

A social contract must be mutually beneficial to both citizens and government.

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Hot or Not?

Why should we obey the laws of our country?

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International law, which regulates relations between nations, presents a dilemma because it conflicts with the concept of absolute national sovereignty.

The current United Nations is not a world government but a collection of independent, sovereign nations.

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The development of democracy in the United States

In a democracy, the legitimate authority of the government comes from the people themselves. As citizens of the United States, it is important we understand how our democracy works and how we can use our critical-thinking skills to influence the political process.

In a direct democracy, all the people directly make laws and govern themselves. In a representative democracy like the United States, the people turn over this authority to elected representatives.

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James Madison

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Checks and balances

To protect citizens against the abuse of government power, the authors of the United States Constitution built in checks against government power. One of these checks is federalism, a system of government where power is divided between a central authority—the federal government—and constituent state governments. Another check is the division of the federal government into three branches: executive, judicial, and legislative, known as the separation of powers.

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To vote or not to vote

One of the principal ways we as citizens participate in a representative democracy is through voting. Despite its crucial role, voter turnout in the United States is one of the lowest among the world’s democracies. This is due in large part to the voluntary nature of the voting system in the United States, unlike in other democracies, such as Australia, where voting is mandatory. It is important to recognize that failure to vote is a form of participation, in that it supports the status quo or the most vocal and powerful political groups.

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Reported voting in the United States, 1964 to 2008

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In 2008 Barack Obama ran on a platform of “Change We Need.”

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The executive branch

In the United States the executive branch of government is headed by the president, who is the head of state and the highest government official in the country. In addition to the president and his or her White House staff, the executive branch of the federal government includes the agencies that carry out much of the work of government. The executive branch usually has increased power in times of war; for this reason, it is important we use our critical-thinking skills in evaluating government policy and directives during these times.

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Checks on executive power

Several groups within our society act as checks on executive power. These include:

The legislative branch, which possesses the power of impeachment

The judicial branch The media The citizenry—that is, us

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Martin Niemoeller

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First they came for the communists, and I did not speak out—because I was not a communist;

Then they came for the socialists, and I did not speak out—because I was not a socialist;

Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;

Then they came for the Jews, and I did not speak out—because I was not a Jew;

Then they came for me—And there was no one left to speak out for me.

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The legislative branch

In a democracy we have the rule of law, in which government authority must be exercised in accordance with written laws, to protect us from the rule of men, where law-making is elitist and arbitrary.

The United States Constitution created the legislative branch, or Congress, for the purpose of making and enacting laws. There are two houses of Congress: the Senate and the House of Representatives.

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Congress enacts laws and acts as a check on executive power.

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Participating in the legislative process

As citizens, there are several ways we can participate in the legislative process. These ways include directly contacting legislators, lobbying, volunteering, interning, and getting initiatives placed on the ballot. In cases where these efforts fail, or where we consider existing laws to be unjust, we can protest the law or engage in civil disobedience.

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Top ten spenders on lobbying 2008**Statistics from the Senate Office of Public Records; compiled by the Center for Responsible Politics

at www.Opensecrets.org

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Hot or Not?

Do lobbyists undermine the basic principles and goals of democracy?

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Tea Party protest rally

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Civil disobedience

Since the early nineteenth century, Americans have used civil disobedience—the active, nonviolent refusal to obey a law that is deemed to be unjust—as a political instrument to bring about changes in legislation or government policy. Individuals as varied as Henry David Thoreau and Rosa Parks have used civil disobedience to challenge authority.

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African-American sanitation workers protested unfair and inhumane work conditions in Memphis, 1968.

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Cardinal Roger Mahoney

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Engaging in civil disobedience

Engaging in civil disobedience requires careful use of our logical and critical thinking skills. In 1849, Henry David Thoreau outlined four criteria for engaging in effective civil disobedience:

Use only moral and nonviolent means to achieve goals. First make an effort to achieve change legally. Be open and public about your actions. Be willing to accept the consequences of your actions.

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The judicial branch

Article III of the Constitution created the judicial branch of the federal government, which comprises the court systems. Their members, the justices (judges), are usually elected for life. Because of this, judges are not as exposed to legislative or public pressure as other elected government officials.

While legislators consider and construct laws, the judicial branch asks when the law should be applied and how it should be interpreted. This is known as judicial review. The U.S. Supreme Court is the highest court in the land.

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The U.S. Supreme Court justices

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Legal reasoning and the doctrine of legal precedent

Legal reasoning requires the use of inductive and deductive arguments, and also the use of inductive arguments using analogies. These analogies take the form of an appeal to precedents. Legal precedents form what is known as common law. According to the doctrine of legal precedent, if previous cases are similar in relevant ways to the current case, then the current case should be decided in the same way.

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Evaluating legal precedence

To determine if a previous case provides legal precedence, use the following criteria:

Research the present case. Study the relevant details and issues.

Examine possible precedents. Find other similar cases, and their court decisions.

Identify shared general principles. Look for principles that apply both to your case and the precedent(s).

Evaluate the analogy. Determine how strong and relevant the similarities and dissimilarities are.

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Conclusions

Our legal and political system is designed to allow us as citizens to participate in a number of ways, both legal and non-legal. A healthy democracy requires continual input from a well-informed citizenry who apply critical-thinking skills to the study of political and legal developments. This is also true when examining the judicial system and the legal process itself. As such, critical-thinking skills are vital in the preparation, presentation, and evaluation of a strong legal argument.

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Perspectives on torture and the war on terrorism

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