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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
WrittenRules by which a
government conducts its
affairs
UnwrittenTraditions,
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 LawBasic, 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’tCountries’ 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 loomsEconomic 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 Rights2. No enforcement power3. 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 compromised2. UDH Rights indicates that minorities have the right to preserve their cultural uniqueness
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Adaptability of U.S. ConstitutionsRight 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. ConstitutionsFreedom of Expression
1. Gitlow v. New York (1925)2. Pentagon Papers3. Citizens United v. Federal Election Commission (2010)
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Adaptability of U.S. Constitutions
Free Speech and Sedition1. Sedition – criticism of the government or officials to produce discontent or rebellion2.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 judge2. 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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