Type of paper: Term Paper

Topic: Government, Politics, United States, Federalism, Law, Amendment, Supreme Court, Democracy

Pages: 10

Words: 2750

Published: 2021/01/04

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Section 1: US Government
Discuss the concept of Checks & Balances and explain how it makes government more democratic. Provide a description of each branch that includes its duties and how it checks the power of other branches. Describe the impact of the media on the political process focusing on its role as a check on power.
Democracy has been defined as a type of political ideology wherein the state is governed by the people. It has its roots from the Greek word ‘demos’, which means citizens living within a particular city-state, and ‘kratos’ which means power or rule. Democracy has its roots in Ancient Greece yet it succumbed to the invasion of the Roman Empire. Even so, the political ideology of democracy has remained in the remnants of the Greek city states and lived on to influence the politics of the modern time. The concept of checks and balances is one of the major tenets of the democratic form of government, the concept of which is to prevent a person or a party to gain too much power which would allow them full control of the government. The architects of the United States constitution have seen to it that they develop a system of government with check and balance. This notion has been accomplished by dividing government functions into three branches namely the Executive, Legislative, and Judiciary. Each branch has equal powers to prevent overlapping of authority and uphold democracy. Though not all people participate directly in running the government, they are given power to vote for their representatives. Both the Executive and the Legislative branches are elected positions except for the Judiciary.
The separation of powers of these three major branches of the United States democratic government plays a crucial role in maintaining a high form of democracy. It should be noted though that the doctrine of separation of power between the three government branches can be is not a new thing and can be traced back as early as ancient Greece. Over the years, political philosophers and European thinkers have played on the idea of separate but equal powers, gradually incorporating the three branches of government with distinct function into their own form of democracy. It is one of the basic tenets of democracy that is implicitly understood even if it is not stated explicitly in a country’s constitution. Historical examples of such doctrines can be observed in John Locke in his 1690 treatise, Civil Government and most notably with Montesquieu’s ‘Spirit of the Laws’ in 1748. Montesquieu’s view on how a democratic government should be structured has profound influence on the political thought of America. The framers of the United States constitution, being strongly influenced by British laws, strongly believe in the doctrine of separate powers but it was not explicitly stated in the constitution. Although in his initial drafts, James Madison, by then presiding as one of the founding authors of the U.S. constitution, was believed to have contemplated about stating explicitly the doctrine of separation of power but his proposal was rejected because his fellow members of congress do not find it necessary to do so. One of the first instances where the balance of power materialized in the U.S. was in the case of William Marbury and James Madison. In a historic decision granted by the Supreme Court’s Chief Justice John Marshall, it affirmed the role and position of the United States’ judicial branch as an equal and separate branch of government at par with the executive and legislative branches. This case affirms the doctrine of the ‘separation of power’ as well as the principle of ‘judicial review’ wherein the judiciary has the capacity to veto any acts of the executive and legislative branches that it finds unconstitutional on the grounds that the judicial branch is the only branch that has the legal right to interpret the constitution.
Aside from the three branches of government, the media also provides a check and balance effect and has a significant role in preserving democracy. Most often, the influence of media in the process of democratization is overlooked and yet most scholars believe that they do have significant contribution to democracy and as well as with the doctrine of check and balance. Political scholars have identified three major roles that media play in supporting democracy. Accordingly, the normative functions of the media are often shown through “(1) encouraging pluralistic debate about public affairs, (2) a guardian against the abuse of power, and (3) a mobilising agent encouraging public learning and participation in the political process”. As observed, unbiased media is often times in conflict with the government and their existence ensure freedom of speech, which is a very basic requirement in a functional democracy.

Section 2: Federalism

Explain the concept of Federalism. Describe the roles of federal, state, and local government. Compare and Contrast Dual Federalism, Cooperative Federalism, and New Federalism including a description of the leaders and movements associated with these concepts.
Federalism is defined as a political system wherein “the functions of government are divided in such a way that the relationship between the legislature which has authority over the whole territory and those legislatures which have authority over parts of the territory is not the relationship of superior to subordinates but it is the relationship of co-ordinate partners in the governmental process”. In a federal system, there is a central government as well as states and smaller government units. The states and the smaller government units retain a limited autonomy and a certain level of self-government. Certain powers are granted to the central government as well as to the state and local government. The central government is mainly responsible for affairs that concern the nation as a whole. Examples of such are the nation’s defense, national infrastructures and foreign affairs. In the U.S., the president heads the executive department while there are also legislative and judicial offices to provide the check and balance concept of democracy. The states, on the other hand, have retained certain autonomy. States are allowed to create their own legislations and laws and are responsible for their own local government units. In the U.S., the states are headed by the governor while the local government units are headed by town and city mayors.
Federalism is a concept that has several variations. According to scholars, there are three major variants of federalism and these are dual federalism, cooperative federalism and new federalism. Dual federalism is a belief that the state and the national government should share equal power. This concept of federalism is common during the establishment of the United States as a young nation and went on to dominate the idea towards how the federal government should be governed until the Great Depression in the 1930s. Perhaps one of the famous advocates of dual federalism could be Abraham Lincoln, wherein he used the same concept to lure rebellious states into the Union. On the other hand, cooperative federalism is the idea that all levels of government should work together to achieve a particular goal as well as solve common problems. This type of federalism emerged in the U.S. during the Great Depression when it became necessary for the Central government to intervene with state affairs for the allocation of jobs and resources. Several government plans have been underway that needs nationwide implementation such as agricultural programs and government funded work programs. Franklin Roosevelt was a key figure who used the concept of cooperative federalism especially in the implementation of his New Deal programs. For the same reason, the distinction of powers and functions between the state and the central government eventually became blurred in a cooperative federalism setting. New Federalism, on the other hand, is the notion that the central government should give back or return the power held by the national government to the states; the underlying objective of which is to balance the strength between the national and state government. New federalism characterized the regime of Ronald Reagan during the 1980s. By comparison, new federalism seems to be a revival of the concept of dual federalism wherein the balance of power between the state and the national government is desired. Some scholars though are skeptical of the realization of dual federalism. Accordingly, the concept of a balanced state and national government “died an ignominious death in 1937 or shortly thereafter”. Today, the concept of cooperative federalism is more prevalent in the U.S.

Section 3: Civil Rights

Discuss two civil rights found in the Bill of Rights explaining how they have changed over time through court or public interpretation. Explain the Process of Incorporation and the significance of the 14th Amendment to this concept. Provide an example of the Process of Incorporation.
The Bill or Rights makes up the first ten amendments of the United States constitution, which was written by James Madison in 1791. Two of the provisions under the Bill of Rights that has undergone much debate and controversy are the Second Amendment and the Fourth Amendment. The Second Amendment refers to the right of an individual to bear arms. It states that, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”. Constitutional analysts agree that there is no clause in the United States’ constitution that has been so misunderstood as the Second Amendment. Because of its ambiguity, even the Supreme Court could not find a satisfactory interpretation or stand on the matter. Since the second amendment has been ratified, only few cases ended up in the Supreme Court. In these cases, the court’s decision has been flimsy making the second amendment even more obscure. The first case that made it to the Supreme Court regarding the second amendment was in U.S. v Cruikshank in 1876. The Court favored the United States and ruled that the second amendment does not guarantee the right to bear arms. Ten years after the Cruikshank case, the court ruled in Presser v. Illinois that the Federal government has limited jurisdiction over the second amendment leaving the decision on the state. Then again in 1894, the Supreme court further strengthened its previous decision by upholding the right of the state to impose their gun control laws in Miller v. Texas. One of the most celebrated cases involving the interpretation of the Second Amendment was the ‘United States v. Miller’ case in 1938. Jack Miller and Frank Layton were bank robbers. On April 18, 1938, both men were apprehended by police officers who found in their possession an unregistered shotgun. Miller was arrested and was charged of violating the National Firearms Act (NFA). However, the defendant argued that the NFA violates their constitutional rights under the provision of the Second Amendment. The district court ruled in favor of Miller but the Supreme Court over-turned the district court’s decision by saying that the second amendment does not guarantee the right to bear a shotgun. Scholars argue that the Miller case is quite confusing as far as ‘the right to bear arms’ clause is concerned. Accordingly, the Miller case is an “impenetrable mess” that until now plagues the court’s interpretation of the second amendment.
On the other hand, the Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Generally, this provision under the constitution is referred to as the individual’s right to privacy. While this right is one of the most debated, the right to privacy is also one of the most obscured. And when it comes to privacy, most people are overly sensitive and very particular. Americans, in particular, would go to great lengths in order to protect this right even if it means that they would have to sacrifice other aspects of their lives such as security and safety. Several conflicts and controversy in the history of the American people have proven how privacy is highly regarded in this country. For example, the increased surveillance and intelligence as an aftermath of 9/11 have been strongly criticized. Since the terrorist attack of September 11, the world, especially the United States, has never been the same. For the first time in American history, intelligence agencies have found a valid excuse to pry on other people’s lives for the sake of national security. On the other hand, although everyone is aware that government surveillance has become more extensive, most people do not know how to react. September 11 gave Americans a dilemma wherein people would have to choose between their safeties or risk another terrorist attack for their privacy. Because of the rising criminality and terrorism, authorities are becoming more confident that privacy can be set aside for safety. And with the current technological advances, spying on people has taken a new level. At present, there are several forms of surveillance system and devices that can be concealed from public view. However, since more people become highly dependent on the use of communication mediums such as social media, internet and mobile devices, almost everyone’s privacy is being threatened by the extensive surveillance systems that the government utilizes. Although most people points out to the September 11 incident as the turning point of government surveillance, spying and espionage of authorities on its citizens is not a new thing. Since the 1920’s, the United States has employed a group of code breakers whose job is to monitor any suspicious information that goes in and out of the US. Since then, the United States has created agencies to man its internal and external surveillance and counterintelligence. From the National Security Agency (NSA) to the Federal Bureau of Investigation (FBI) to the Central Intelligence Agency (CIA), the United States has come a long way in its surveillance operations. Among the most notable advancement in surveillance technology is the use of surveillance cameras that have superior capabilities. As observed by Mack, “Surveillance cameras can already track thermal differences, distinguish details and color in very dark and low-light situations, detect motion, control access, and provide retail point of sale (POS) observation, as well as identification and recognition”. Aside from surveillance cameras with behavior detection capabilities, Biometrics is also one of the recent technologies that are being used in surveillance. Facial recognition technology is also one of the most promising technologies in surveillance. Using this technology, the identity of an unknown person that is captured in a camera of video can be tracked using images that have been saved on the data base. In order for this system to become efficient, it is only logical to think that this data base would be linked in social media sites as well as other data sites online. Facebook, for example, can be utilized to automatically match an unknown image from its large data base. Aside from these observable but rather discrete surveillance strategies, one of the most extensively used by the military to conduct surveillance and even reconnaissance operation is the drone. According to Mack, these unmanned aerial vehicles “can identify the heat signature of a human body from a distance of 60 kilometers”. With the increased capabilities of surveillance devices, not to mention their increasingly undetectable operations, an individual’s right to privacy as stipulated in the fourth amendment has since then become obscured.
The process of incorporation or the incorporation doctrine is a constitutional doctrine wherein some provisions in the Bill of Rights have been incorporated or made binding to all states. It is also noted how the due process clause as stipulated in the fourteenth amendment of the United States constitution was used as the framework for the doctrine of incorporation. The United States, being a federal system, has a unique justice system because of the autonomy of each state in passing their laws. One of the important significance of the process of incorporation is that it allows the Supreme Court of the national government to review the provisions of the laws of each state when it comes to the Bill of Rights. This doctrine is one of the most important developments in the United States’ justice system. Accordingly, the incorporation of select provisions in the Bill of Rights is “fundamental to the American scheme of justice”. One example of the process of incorporation has been applied in the case of McDonald v Chicago in 2010 wherein McDonald challenged Chicago’s strict gun control regulations. The court ruled in favor of McDonald ruling that the second Amendment right was among the “fundamental rights necessary to our system of ordered liberty" and is therefore a right fully enforceable against the states.

Section 4: Current Events

Provide an example in the news (from the last year) that is relevant to a concept discussed in this paper. Give an explanation of why it relates to the concept. Analyze the source of the news story; focusing on its credibility. Include your own thoughts and opinions on the Current Event.
Last year, in his article ‘This Week in Making Poor People Pee,’ Arthur Delaney reports about the local government’s initiative to place people on welfare under drug tests in Maine. Delaney’s article is an unbiased presentation of Maine’s governor initiative to implement a drug testing requirement for those who are under welfare. The rationale behind the initiative according to Maine’s governor Paul LePage was to ensure that tax payers’ dollars do not enable the continuation of a drug addiction, noting that “Maine people expect their tax dollars to be spent supporting our most vulnerable citizens -- children, the elderly and the disabled” . While Maine’s initiative may have logical merits, it also touches a sensitive aspect of human rights especially when it comes to privacy. Such act may be considered as suspicion-less Drug Testing has been regarded by many as a violation of an individual’s right to privacy under the fourth Amendment. It should be noted though that under the Welfare reform of 1996, the states were given a right to require drug testing of welfare recipients and may impose sanction on those who fail but this act is not fully implemented . However, in case someone challenges Maine’s initiative citing the privacy clause of the 4th amendment, depending on the merits of the case, it may also become a case where the incorporation doctrine might be applicable. It is also worth noting that the issue of drug testing a welfare applicant or recipient has been here for quite some time. As observed by Delaney, in 2011, anyone seeking benefits from the Temporary Assistance for Needy Families program in Florida would have to submit a urine sample, regardless of their record or any suspicion of drug use . With numerous people negatively reacting to such measures, there could be legal implications in the future that may again brought the ambiguity of the fourth amendment into the open.

Works Cited

Bill of Rights Institute. BILL OF RIGHTS OF THE UNITED STATES OF AMERICA (1791). 2015. March 2015 <http://billofrightsinstitute.org/founding-documents/bill-of-rights/>.
Brooks, C. The Second Amendment & the Right to Bear Arms. January 2013. June 2014 <http://www.livescience.com/26485-second-amendment.html>.
Delaney, A. This Week In Making Poor People Pee. August 2014. October 2014 <http://www.huffingtonpost.com/2014/08/07/welfare-drug-testing_n_5658452.html>.
Downs, R. "A BRIEF HISTORY OF THE US GOVERNMENT SPYING ON ITS CITIZENS." June 2013. http://www.vice.com/. January 2014 <http://www.vice.com/read/a-brief-history-of-the-united-states-governments-warrentless-spying>.
Exploring Constitutional Conflicts. Separation of Powers . n.d. January 2015 <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/separationofpowers.htm>.
—. The Incorporation Debate. n.d. March 2015 <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm>.
Frye, B. THE PECULIAR STORY OF UNITED STATES V. MILLER. n.d. October 2014 <http://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf>.
Jebril, N., Stetka, V., Loveless, M. Media and Democratisation: What is Known about the Role of Mass Media in Transitions to Democracy. 2013. March 2015 <https://reutersinstitute.politics.ox.ac.uk/sites/default/files/Media%20and%20Democratisation.pdf>.
Levine, J., & Yavorek, T. Types of Federalism:. 2015. March 2015 <https://apgovernmentchs.wikispaces.com/Types+of+Federalism>.
Mack, T. Privacy and the Surveillance Explosion. February 2014. September 2014 <http://www.wfs.org/futurist/january-february-2014-vol-48-no-1/privacy-and-surveillance-explosion>.
McBride, A. Marbury v. Madison (1803). 2006. January 2015 <http://www.pbs.org/wnet/supremecourt/democracy/landmark_marbury.html>.
Mount, S. Constitutional Topic: Separation of Powers. 2010. January 2015 <http://www.usconstitution.net/consttop_sepp.html>.
Red Apple Education Ltd. Early origins of democracy. 2014. April 2014 <http://www.skwirk.com/p-c_s-76_u-104_t-270_c-896/early-origins-of-democracy/nsw/civics-and-citizenship/state-and-federal-government/history>.
U.S. Department of Health and Human Services. Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies. October 2011. November 2014 <http://aspe.hhs.gov/hsp/11/DrugTesting/ib.shtml>.
What is Federalism? n.d. March 2015 <http://streitcouncil.org/uploads/PDF/Bosco%20What%20is%20federalism.pdf>.
Young, E. Dual Federalism, Concurrent Jurisdiction and the Foreign Affairs Exception. February 2001. March 2015 <http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2530&context=faculty_scholarship>.

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