MODEL ANSWERS – Lecture 2
“THE BILL OF RIGHTS & FEDERALISM“
1. Look up “dual federalism.” The adjective “dual” refers to __________ and _________.
“The term dual is referring to states and the federal government.”
“Emphasized state powers and enumerated federal powers.”
2. Explain briefly the difference between “cooperative federalism” and “new federalism,” and their dates.
“With Cooperative Federalism, 1932-1965, the federal government’s power expanded into areas the states were usually responsible for. On the other hand with New Federalism, 1972-today, [some] of the power that had been taken flowed back to the states and municipalities.”
“… While both cooperative and new federalism did not give the federal government too much power, there is a distinct difference. Cooperative federalism was part of the process where the federal government gained power. Alternatively, Reagan’s [use] of new federalism reversed this trend, focused on giving power back to the states.”
3. Identify by name and section the four main clauses of the Constitution that gives the federal government so much power.
“The four main clauses in the Constitution that gives the federal government much of its power are:
– Supremacy Clause (Article 6)
– Necessary and Property clause (Article I, Section 8)
– Commerce clause (Article I, Section 8)
– General Welfare clause (Article I, Section 8)”
4. What is an “unfunded mandate” and why is it criticized? Provide an example.
“An unfunded mandate is a law, regulation, or court decision that forces a state or local government to take action, but the federal government doesn’t give them money to do it. … A good example is that states are required to make public facilities for the handicapped under the Americans with Disabilities Act (1990).”
“An unfunded mandate is a mandate not accompanied by federal financial aid to offset the cost of the project. … An example of this would be an election for federal office. It is required by the Constitution, but financed and staffed by state and local governments.”
“Signed in January of 2002 by President George Bush, the ‘No Child Left Behind’ initiative became law. This program was intended to raise the standard of education throughout the country and hold teachers, schools and districts accountable for what they do. No extra federal funding has been provided for this expense.” (NOTE: relatively small amounts of federal funding were supplied.)
5. Provide and briefly explain one advantage and one disadvantage of federalism.
“An advantage of federalism is that it allows for policy experimentation. A disadvantage to federalism is that strong state and local constituencies can obstruct and delay the implementation of national policy.”
“Advantage: Diversity is encouraged. Within federalism, states have the opportunity and safety in which to come up with their own views …
Disadvantage: … Diversity isn’t always a good thing. It can create a separation among people. For instance in schools if there are many little cliques, it’s harder to have the same feeling about the entire school.”
6. If the police demanded to search a home, which Amendment would protect the owner? Explain.
“Amendment IV protects against ‘unreasonable search and seizure.’ Neither the police nor any other government official is allowed to search someone’s house without getting a search warrant, or having consent from the owner.”
“If the police demanded to search a home, they would be violating the Fourth Amendment because the police need a warrant if they want to search someone’s house, unless the police were chasing the perpetrator, and he ran into his house.”
7. Which two Amendments provide the states some protection against federal interference? Explain.
“The Tenth Amendment, which says that the powers which are not granted to the federal government by the Constitution nor prohibited by it to the states are reserved to the states and the people. Also the Eleventh Amendment, as Chief Justice Rehnquist said in Seminole Tribe v. Florida. The Eleventh Amendment establishes the sovereignty of the states, and he goes on to say that it limits Congress’ power to override the states’ immunity from lawsuit, unless it is a legitimate pursuit of Commerce Clause authority or unless Congress is enforcing a basic civil right as allowed by section five of the 14th Amendment.”
8. Does a criminal defendant have to testify at his trial? Explain. Can you think of reasons why he might not want to testify, even if innocent? (Many possible answers here.)
“No, they don’t, thanks to Amendment V (Grand Jury, Double Jeopardy, Self-Incrimination, Due Process, Eminent Domain). They may not want to testify in order to prevent the incrimination of one or more other persons.”
9. Read the Second Amendment. Do you think it protects an individual right to own a gun, or only a collective right by a militia to be armed? Explain.
The Second Amendment protects the right to own a gun, whether in a well-regulated militia or not. It says that because a militia is needed for the protection of a free state, citizens have the right to bear arms. It does not say if a citizen is in a well-regulated militia they can bear arms, but because of the need for a well-regulated militia private citizens have the right to own guns.”
10. Chief Justice Rehnquist has had his greatest influence on what issue? Explain.
“Chief Justice Rehnquist had his greatest influence on the issue of federalism. In his later years as a Chief Justice, Rehnquist wrote the opinion for many important victories for federalism. … In [United States v. Lopez (1995)], Rehnquist wrote the opinion in a 5-4 decision that struck a federal law involving the Commerce Clause; this court decision … limited the power of Congress under the Commerce Clause. Two other important decisions were Seminole Tribe v. Florida and Alden v. Maine, [which] set an important precedent in limiting Congress’ power over state immunity.”
“… In 1997 Rehnquist wrote the opinion in Seminole Tribe v. Florida, in which he applied Amendment XI, and recognized the sovereignty of the states. … Throughout his career as a Supreme Court Justice, Rehnquist has consistently supported federalism.”
11. Today conservatives typically favor states rights and liberals favor federal power. But can you think of examples where the opposite may be true? Explain.
“Today conservatives typically favor states rights and liberals favor federal power. One example that I found where the opposite may be true is in the state of California; the liberals are favoring the state right to allow illegal immigrants and the conservatives want the federal government to enforce regulations to control illegal immigrants.”
“Federal power can be favored by conservatives particularly when the state you live in, a state like New Jersey, is much less conservative than the country as a whole. When abortion issues like a partial birth abortion ban and parental consent for abortions could not be passed into law in NJ, a more conservative national US Congress becomes the greater source for positive social change as they would be more likely to pass the laws.”
12. Your opinion please: is it better to free 50 guilty defendants rather than convict one innocent defendant? Whether your answer is “yes” or “no”, how do you rationalize the injustice that results from your answer? Explain with references to Amendments Four through Eight.
“In my opinion it is better to free all of the fifty-one rather than imprison an innocent person. In genesis Chapter 18, Verse 32, God says that if even ten good men are found in the city of Sodom He will not destroy the city and punish the good with the bad. This is eminently applicable here. It would be by far a worse injustice to punish an innocent person than to forgive the guilty ones and let them go free. To have your life ruined by a conscious decision on your part is bad enough, to lose one’s liberty and happiness because of someone else’s decision that you should suffer for the crimes of other is by far worse.”
“If one innocent defendant is convicted, then no matter how good the intentions of the prosecutors are, the life of the innocent convict is ruined and this is an injustice …. When we consider how many guilty people walk the streets freely each day, it is not that much of a tragedy for fifty more to escape conviction.”
“I believe that it isn’t better to free fifty guilty defendants rather than convict one innocent defendant because it would be wrong to let so many guilty defendants loose into society to repeat their offense if they chose to. By being let out early, they wouldn’t have learned their lesson. The defendant already had a fair trial with an impartial jury as promised in Amendment VI and the defendant wasn’t forced into Double Jeopardy or Self-Incrimination as promised in Amendment V. Also, according to Amendment IV, the defendant did not have an unreasonable search or seizure on their homes, persons, papers, or effects without a Warrant and an informed knowledge of exactly what was being searched and why. These Amendments were made to protect the innocent, not the guilty. If someone wants to argue that my answer would be putting one innocent persons life in jeopardy, I would like for them to consider this: If you let fifty mass murderers go free for one innocent person, then what about the fifty innocent people who get killed by the fifty murderers that you let go for that same innocent person?”
Teacher’s own comment: what if the innocent person is convicted for political reasons? What if the King had sought to convict George Washington? Or what about the newspaper publishers convicted for criticizing President John Adams under the Sedition Act? Or if people are afraid to criticize the government because they fear its power?