регистрация / вход

Mass 2

Mass & Federal System Essay, Research Paper Article I, Section 8, Clauses 1 – 18 are considered by many the important clauses of the US Constitition with clause 18 being the most important. IT is within these clauses where the definition of expressed and implied powers is spelled out. Clauses 1 – 17 deal with the expressed powers and clause 18 deals with implied powers.

Mass & Federal System Essay, Research Paper

Article I, Section 8, Clauses 1 – 18 are considered by many the important clauses of the US Constitition with clause 18 being the most important. IT is within these clauses where the definition of expressed and implied powers is spelled out. Clauses 1 – 17 deal with the expressed powers and clause 18 deals with implied powers. Expressed powers are powers which are spelled out in the constitution, and implied powers are those powers which are just hinted at or suggested.

Clause 18 of the constitution is known as the “elastic clause”, or the “necessary and proper clause”. Due to the fact that the government has obtained more power from this clause than any other clause in the constitution. Clause 18 or the “elastic clause seems to be able to be stretched to fit anything the government wishes. It is out of this clause the government derived the “Doctrine of Implied Power”. This is where the government has expressed powers from clauses 1 – 17 and implied powers from clause 18 which are exercised over the expressed powers. For example, the words collect and commerce, the government has had the power to interpret these words as they see fit.

Persons who believe in the letter of the law as it pertains to the constitution are called strict constructionists, whereas persons who believe in the spirit of a law are called loose constructionists. Thomas Jefferson believed in strict constructionism, and Alexander Hamilton believed in loose constructionism. This caused a conflict between Jefferson and Hamilton in relation to the need for the US to have a federal bank. Jefferson said that the constitution did not give any provision for the US to have a bank because it was not spelled out in the constitution. But Hamilton using the premise of implied powers said it did because it gave them the power to lay and collect taxes, borrow money, and regulate commerce. And in order to perform those expressed powers they needed an agent to perform them. The conflict about whether clause 18 gave the government implied powers went on for years. In 1819 a supreme court decision in the case M Culloch v. Maryland decided that Article I, Section 8, Clause 18 did indeed give the government “implied power”. In this case Maryland tried to impose a tax on notes issued from the Baltimore branch of the Bank of the United States. The bank refused to pay it, and the Supreme Court decided that clause 18 gave Congress the means to carry out it s expressly granted powers, and the bank was “necessary and proper” to tax the funds which were to be used to support armies. The decision basically stated that all means which are appropriate and are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. Which basically meant Maryland could not tax the bank, because the government was carying it s expressed powers of the constitution.

There were many more instances where “strict v. “loose” came into play. One major instance is concerning Social and Human Services. In clause I, there is the words “general welfare”. Many loose constructionists believed this to mean the government should impose taxes to support public welfare. For example, programs such as social security and unemployment. But in 1936 a strict contructionism Supreme Court decision in the case of US v. Butler in regards to the proposed Agricultural Adjustment Act decided that the revenue derived from the taxes of this act could not be used to subsidize farmers. Because it was not supported under the general welfare clause. Therefore was unconstitutional. But in 1937 they changed their minds and made a loose decision during to social security cases, when they were threatened by Franklin Roosevelt. This change was in reference to the social security and unemployment taxes. The court decided that they fit under the provision of “general welfare”. Therefore the taxes from these programs could be used to promote the general welfare. Because in an industrial society when people are laid off or retire without income, the government should provide unemployment and a social security pension. Another instance of strict v. loose was in respect to Amendment I rights. One example was in the separation of church and state. The words “no law” in this case were viewed loosely by the Supreme Court. To the court they meant maybe. In the 1962 decision of Engel v. Vital where the State Board of Regents in NY composed a prayer to be recited at the start of school each day. The court ruled that the government has no business to compose official prayers for any group to recite as part of a religious program carried on by government. In other words there would be NO prayer in public schools. This is an example of a strict decision. Then in 1984 the court made a loose decision concerning a nativity scene in the case of Lynch v. Donnelly where the court decided that it was OK for the city to display a nativity scene as long as the message to be expressed is non-religious, for example just to celebrate Christmas and the spirit of that holiday. Another instance was freedom of expression in regards to obscenity, “what s obscene?”. If strict, the words “no law” would mean nothing could be perceived as obscene. But in 1973 in the Supreme Court case of Miller v. California the court made a loose decision. They ruled that state may make legislation on a work if it:

1. Appeals to the purient interest of sex

2. Portrays in an offensive way sexual conduct defined in applicable state law.

3. Has no serious literary, artistic, political, or scientific value.

These rules were termed Miller s Rules. Another issue dealing with strict v. loose was in regards to due process rights. These are guidelines in the constitution which the criminal justice field must follow. They are covered by the IV, V, VI, VIII, and XIV amendments of the constitution. The IV, V, VI, and VIII deal only with the federal system whereas the XIV incorporates the state and federal systems. One example involving the IV amendment is dealing with the search and seizure laws, evidence rules, probable cause, and warrants. Both of the following instances deal with the issue of letting evidence obtained from searches to be used in court. For example, a judge who views things loosely would only require a law enforcement agency to have probable cause in order to search a house or car to obtain evidence. Whereas a strict judge would require both probable cause and a warrant. Another conflict between strict and loose deals with the issue of privacy. Someone who views things strictly, to the letter of the law would say that privacy does not exist, because it is not written any where in the constitution. In 1965 the supreme court established a right to privacy in the decision of Griswold v. Connecticut. They decided that “specific guarantees in the Bill of Rights have penumbras…” Penumbra means an umbrella of protection. The court decided that amendments I, III, IV, V, IX, and XIV added up to the right of privacy. This was a very loose interpretation of the constitution. But before 1965 only suspects in criminal cases were covered under any rights to privacy. Then after the decision in 1965 we the common man began to gain rights to privacy. Then in 1973 in the case of Roe v. Wade the justices made an even looser decision giving women the right to choose whether or not to have an abortion during the first three months of pregnancy. They basically said that laws forbidding abortion violated the XIV amendment, which gave us a right to privacy. This decision gave woman the right to choose only during the first three months of her pregnancy, during the second three months states can regulate abortion in order to protect a woman s life, and in the final three months the state may forbid them, except in cases where the mothers life is at danger. One more case involving right to privacy would be the 1990 case of Cruzan v. Missouri Dep. of Health. This was a case involving the right to die, which many people believe should be your own choice. This decision stated that a competent person has the constitutional right to refuse unwanted medical treatment. But in this case Cruzan who was comatose was not able to make that decision for herself. Many of the issues regarding the right to privacy, like abortion and the right to die are still being debated today.

Article III of the US Constitution outlines the federal court system. This is a very important article since judges in the US make virtually all decisions in our lives. If not directly, then their decisions influence what we do in our every day lives. In the US the congress creates the court system and decides their jurisdictions. Judges are nominated by the president and elected by the senate.

There are three levels of the court system in the US. The lowest being the US District Court, the next being the US Court of Appeals (circuit courts), and the highest court in the land the US Supreme Court, also known as the court of last resort. First I will discuss the US District Courts. Also called the court of “first instance”. There are 94 US District Courts in the United States, with each state having at least one of them. The number of courts a state will have is based on the population of the state. Massachusetts has 14 district court judges and three district court houses, but only one federal court district. The court houses are located in Boston, Springfield, and Worcester. All violations of federal law which occur must be tried within that state. The courts hold four different types of sessions:

1. Criminal – where it s the US v. defendant.

2. Civil – where it is the plaintiff v. defendant.

3. Equity – where they hear cases on the “principle of fairness”.

4. Questions of law and/or constitutionality.

One example of a civil trial is the “Topsy Turvy” case. This is where a people protesting an abortion clinic would go into a clinic with balloons filled with red paint under their shirts posing as breasts. Once inside they would throw them all over the clinic. In Boston a woman was heading into a clinic and was forced to take the balloons out of her shirt, only problem was they weren t balloons. So she sued the Commonwealth. Equity cases are usually involving labor strikes. They try to determine What effect the situation has on society. They try to make a decision that is best for society as a whole. For example, when the gay s wanted to march in the Irish parade the court said no. Also in cases where the KKK try to hold rallies in certain white neighborhoods. In both of these instances the issue of public safety took precedence over normal civil rights. The criminal and civil trials are heard by jury s. The other two are

330

ОТКРЫТЬ САМ ДОКУМЕНТ В НОВОМ ОКНЕ

ДОБАВИТЬ КОММЕНТАРИЙ  [можно без регистрации]

Ваше имя:

Комментарий