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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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