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Reddit mentions of Rethinking the Patriot Act: Keeping America Safe and Free (Century Foundation Report)

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Rethinking the Patriot Act: Keeping America Safe and Free (Century Foundation Report)
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Found 1 comment on Rethinking the Patriot Act: Keeping America Safe and Free (Century Foundation Report):

u/TheFryingDutchman ยท 9 pointsr/law

Sure, wikipedia gives you a great summary of how the Constitution works, but here's a crib sheet.

The Constitution establishes the U.S. federal government and describes its powers. Remember that the U.S. federal government has three branches. The first three articles of the Constitution describe the powers and responsibilities of each branch of government.

  • Article I concerns the Legislature (Congress). Congress is supposed to have only those powers specifically enumerated in Article I. In practice, certain clauses have been read broadly and Congress today can pass virtually any law that impacts interstate commerce. Congress is a "bi-cameral" legislature meaning that it has two chambers: the House of Representatives and the Senate.

  • Article II describes powers of the Executive Branch (the President). The President is the Head of State and the Commander in Chief of the military. He can veto laws passed by Congress. He can appoint ambassadors, judges, and cabinet members (equivalent of ministers in other systems) with the "advice and consent" of the U.S. Senate.

  • Article III establishes the federal judiciary.

    The first ten Amendments to the U.S. Constitution are called the Bill of Rights. Notable amendments are: the First Amendment (freedom of speech, press, religion), the Fifth Amendment (right to remain silent), the Sixth Amendment (right to confront witnesses). These amendments originally only applied to the Federal government but over time they were "incorporated" to the states, meaning that they apply to state laws.

    Other important amendments include: the Thirteenth Amendment (abolishment of slavery), the Fourteenth Amendment (due process of law, equal protection clause), the Seventeenth Amendment (direct election of Senators), the Nineteenth Amendment (women's suffrage), and my favorite, the Twenty-First Amendment (end of the Prohibition!).

    EDIT: To answer your other questions. I don't know the answers to all your questions so I'll only address some.

    Question 1: Article 1, Section 8 describe powers that Congress may exercise. They are certainly not required to do so. For instance, Congress has the power to "raise and support Armies" which means they can fund armies. But they can also decline to fund certain military projects or (maybe) missions.

    Question 3: I am not familiar with the legal doctrine you raised, but the answer to whether the federal judiciary can make law is... complicated. Most of the judiciary's work is interpreting statutes and constitutional provisions. However, Congress can certainly overturn a judicial interpretation of a statute by passing another law. Similarly, constitutional amendments can overturn judicial decisions. This has happened several times in U.S. history. For instance, the Dred Scott case (holding that descendents of slaves are not U.S. citizens) was overturned by the Fourteenth Amendment which guarantees U.S. citizenship to anyone born in the United States. Remember that the Constitution is the "highest law of the land" and supersedes any conflicting state or federal law, or judicial opinions.

    On occasions Congress has left certain bodies of law to be developed by the courts, to in effect create a common law binding on those topics. The best example of this is antitrust law in the United States. Section 1 of the Sherman Act prohibits agreements and conspiracies "in restraint of trade or commerce among the several States." The huge body of antitrust law was developed almost entirely by the courts over the last one hundred years. Most observers would say that courts have been busy creating new law of antitrust under the umbrella of the Sherman Act.

    As for precedent, you have to keep in mind that the federal judiciary has three levels: district courts where cases are first brought (this is where trials happen), Courts of Appeals that hear challenges to the district court decisions, and the Supreme Court which is the highest court. Decisions of the Supreme Court are binding on the lower courts. The Supreme Court is not bound by its prior decisions, but there is a principle of stare decisis which means the Supreme Court will not lightly overturn its prior decisions.

    Question 4: The republican form of government mentioned in the Constitution doesn't mean the same thing as the Republican Party today. This clause hasn't been interpreted very often, but it probably prohibits a state from becoming a monarchy, a theocracy, or a dictatorship.

    Question 5: For freedom of press, you'll have to read the key Supreme Court topics on it. I suggest New York Times Co. v. United States as a starting point.

    Question 6: The Patriot Act is a controversial topic. I suggest you read Rethinking the Patriot Act, written by a NYU law professor, which describes and analyzes the law's key elements. Maybe you can get this through your local library?

    Question 7: The Tenth Amendment is an interesting case. Here's an important distinction to keep in mind. States have general police powers which means they can pass laws to regulate health, morals, and safety. They can pass any law as long as it doesn't conflict with federal law, state constitution, or the U.S. Constitution. By contrast, the federal government is one of enumerated powers which means it only has powers specifically granted to it by the Constitution. The U.S. federal system arose from a very unique historical context. The States pre-date the United States, and in the early days of the nation, there was much fierce debate about the proper scope of the federal government. Most states simply did not want a strong federal government and feared that the government created by the Constitution would, over time, usurp the powers of individual states and intrude upon areas traditionally left to state governance. The Tenth Amendment was created to reassure the States that they would not lose all their powers. The Tenth Amendment does not authorize the States to pass their own laws - they already had that power.

    States can also pass laws that run parallel to or overlap with federal laws. Let's go back to antitrust. The Sherman Act is a federal antitrust law. But many states have their own antitrust laws that are often more expansive than the federal law. This is fine under the U.S. federal system. But states cannot pass laws that conflict with federal law and they cannot pass laws in fields that have been preempted by federal law. Preemption is a complex issue, but just know that there are certain fields of law that only the federal government can regulate: immigration and patents, for example.

    Question 8: You are referring to article 36 of the SA constitution? Subsection (a) seems to say that limitations of rights have to be reasonable in light of certain considerations. The Constitution does not contain such a clause, and in fact, the Bill of Rights often uses categorical language ("Congress shall pass no law..."). But over time the Supreme Court has developed several tests to judge the legality of laws that restrict basic freedoms. For instance, courts use the strict scrutiny to determine whether restrictions on certain fundamental rights pass constitutional scrutiny.

    Hope this helps!