Prior to this case, the Court had determined that the Sixth Amendment right to counsel meant that if a defendant was too poor to afford a lawyer, the court (the national government) had to supply a lawyer free of charge in trials in federal courts for federal crimes. This rule did not apply to the states--it did not cover state defendants accused of state crimes in state courts (e.g., most criminal cases).

· In Gideon, the Court determines that the "right to counsel" in the Sixth Amendment will apply against the states. The Court decides that this right to counsel is important enough to be considered part of the "liberty" which is protected from state-level infringement by the Fourteeenth Amendment.

· Overruled prior case of Betts v. Brady (1942).

Gideon v. Wainwright is significant because it:

* Liberty of the press and of expression is important to guard against tyrannical government.

It is also important for the protection of the dignity of the individual and in furtherance of the search for truth. Mill argues that it is illegitimate for the many, united in their beliefs, to suppress the thought and expression of any dissenting one in a society.

· No one has privileged insight into the ultimate secrets of the universe.

· In the pursuit of truth, the reasons for freedom of thought and discussion are:

Mill would protect the right to free expression:

The Communications Decency Act of 1996 (CDA) sought to protect minors from "indecent" and "patently offensive" communications on the Internet.

· Free speech in cyberspace: is the CDA an unconstitutional infringement on free speech?

* The Supreme Court overturns the CDA as an abridgment of free speech protected by the First Amendment.

The vagueness of the CDA is a central concern of the Court

O'Connor and Rehnquist:

The Communications and Decency Act of 1996 (CDA) sought to regulate the transmission of "indecent" or "patently offensive" material over the Internet. The Supreme Court found that the CDA:

In Plessy v. Ferguson (1896), the Supreme Court endorsed the doctrine of "equal but separate," which came to be called "separate but equal." Plessy involved a Louisiana state law requiring blacks and whites to have separate accommodations on passenger trains. The Court, generally supporting Jim Crow laws, held that "equal protection of the laws" in the Fourteenth Amendment did not prevent a state from requiring "separation" of the races as long as accommodations were equal.

· In Brown, The Court holds that "separate but equal is inherently unequal."

· The Court highlights the modern importance of public education for economic mobility and political citizenship, and indicates that separation itself imparts a badge of inferiority.

* Brown overrules Plessy's "separate but equal" doctrine.

· In the context of public education, states may not by law provide that white and black children must attend separate schools, even if the schools have equal resources and facilities. "Equal protection of the laws" (or, more broadly, "equality") now means something different than it did in Plessy.

Brown I ruled that:

Desegregating Southern school systems was a huge political problem. Here, the Court returns Brown to the federal district courts for oversight of desegregation, and orders that desegregation proceed "with all deliberate speed."

· Most see the use of the word "deliberate" as indicating that the Court would accept going slowly if this was necessary. Meaningful desegregation did not occur until the late 1960s and early 1970s.

Brown II ordered desegregation

In the Cantwell case (1940), the Supreme Court had held that the free exercise of religion clause in the First Amendment applied to the states (through incorporation into the Fourteeenth Amendment).

In the Everson case (1947), the Court had held that the establishment clause likewise applied to the states.

· In Engel, the Court rules that a state's endorsement or support of religion is enough to equal a violation of the establishment clause. The establishment clause can be violated even if there is no "coercion" of the individual by the state ("coercion" is needed for a violation of the free exercise clause).

· Justice Stewart dissents. He would make the test under both clauses turn on "coercion." For Stewart, the establishment clause prevents the establishment of any particular religion or church, and not the accommodation of religious values in general. He points out that "we are a religious people", and argues that the state must accommodate this fact.

· The Court's decision banning school prayer as a violation of the establishment clause resulted in widespread public criticism.

In Engel v. Vitale, the Court ruled that:

This case deals with Constitution's Free Exercise of Religion Clause.

An Oregon statute criminalized use of various controlled substances, including peyote. When several employees were fired for their use of peyote, Oregon denied them unemployment benefits. The Native American Church argued that peyote was used during its religious ceremonies, and that therefore the individuals were being denied their freedom to exercise religion.

In 1990, the Supreme Court ruled on the case, and examined the "compelling interest" test used to determine if laws against various religious practices placed substantial burdens on the free exercise of religion. The Court decided that using this test in this forum would result in anarchy, and therefore ruled against the workers.

Congress, in return, passed the Religious Freedom and Restoration Act of 1993 (RFRA), which required the compelling interest test to be used in examining legislative burdens on religious freedom.

In City of Boerne v. Flores, the Court examined the constitutionality of RFRA.

Local zoning authorities denied a building permit to a Catholic church. The decision was based on restrictions on new construction due to the designation of a historic district that included the church. The local Archbishop relied partially on RFRA to argue that the zoning restrictions unduly infringed on his church's free exercise of religion.

* In Boerne v. Flores, the Supreme Court concludes that the Religious Freedom and Restoration Act of 1993 exceeds Congress' power.

· In Employment Division of Oregon v. Smith, the Court reasoned that application of a compelling interest test "would have produced . . . a constitutional right to ignore neutral laws of general applicability.

· The Court viewed RFRA as a deliberate attempt to circumvent this ruling, and defends itself (and the Constitution, in its view) by overturning RFRA as unconstitutional.

· Justice Stevens' concurring opinion invalidates RFRA, but by different reasoning. He writes that RFRA gives the church, in this case, protections not afforded to other groups. "This governmental preference for religion. . . is forbidden by the First Amendment."

· Justices O'Connor and Breyer dissented, and argued that the original decision in Employment Division of Oregon v. Smith should be reconsidered

O’Connor and Breyer argue that giving heightened protection to religion is acceptable, and liken that extra effort to the special protections given the freedom of speech.

* The Court narrows Congress' efforts to protect the free exercise of religion.

* The Court uses an argument about separation of powers and the Court's authority in deciding the constitutionality of laws to rule RFRA unconstitutional.

In City of Boerne v. Flores, the Supreme Court ruled that the Religious Freedom and Restoration Act of 1993:

In Griswold v. Connecticut (1965), the Court held that there was a right to "privacy" implied in the First, Fourth, and Ninth Amendments to the Constitution. This right prevented the State of Connecticut from prohibiting the sale of contraceptives. The Court held that a married couple could not be prevented from obtaining contraceptives. The right was extended to unmarried individuals in Eisenstadt v. Baird (1972).

Justice Black dissented in Griswold, arguing that in order to claim violation of a constitutional right, one had to be able to point to some text in the Constitution. Otherwise, a Justice could see anything "implied" there. Black alleged that Douglas had done this in deriving the right to privacy from "penumbras" of the Bill of Rights.

· In Roe, the Texas law at issue made it illegal to procure an abortion, except if this was necessary in order to save the life of the mother.

· The Court, in a 6 to 3 decision, strikes down the Texas statute and establishes a "trimester" analysis as constitutionally required.

· The Court's decision relies on the due process clause of the Fourteenth Amendment ("liberty") to find a "right to privacy." This is different from Griswold, which relied on the penumbra argument (that a "right to privacy" could be derived from various parts of the Bill of Rights).

· The trimester system:

Roe v. Wade tied the state's interest in restricting abortions to:

* Congress had been given more leeway to pass affirmative action legislation than the states or local governments.

Terms for a highway project provided that the contractor, Mountain Gravel, would be paid more if it hired subcontractors certified as small businesses controlled by "socially and economically disadvantaged individuals".

This category included Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities.

Gonzales Construction was certified as one of these companies; Adarand was not.

The Court does not rule directly on Adarand's claim.

Instead, the Court rules that the stricter standard-- "strict scrutiny"-- will now be applied to federal rules, as it has been to states and local ones.

* The Court thus makes it harder for the federal government to justify affirmative action programs.

This case is sent back to the lower Court to be decided upon using this standard.

· The dissent written by Justice Stevens argues that the Court, in an effort to provide "consistency" in its rulings, assumes that efforts to burden a minority are equivalent to efforts to provide a benefit to a minority-- he calls this assumption "untenable".

· The dissent written by Justice Ginsburg argues that these issues are being dealt with by the political branches of government, and that therefore the Court need not intervene.

The Supreme Court's decision in Adarand Constructors v. Pena:

North Carolina, reapportioning its congressional districts after the 1990 census, created the Twelfth District. This congressional district meandered along Interstate 85 in North Carolina, including black population areas and excluding white population areas. The effect was to create a district with a bizarre shape that virtually guaranteed the election of a black representative to Congress.

The case is set against a history of Southern states infringing on blacks' voting rights, which the Voting Rights Act of 1965 sought to curtail.

Plaintiffs claimed that this redistricting was based on racial considerations, and that therefore the state must have a compelling justification for its actions. Racial classifications bring the equal protection clause of the Fourteenth Amendment into play.

This particular case is not about whether the North Carolina district was unconstitutional. The case is about whether a plaintiff is permitted to challenge this type of redistricting based on the Fourteenth Amendment.

· The Court ruled, 5-4, that a plaintiff may challenge a reapportionment statute by arguing that it is an effort to separate voters on the basis of race.

·The Court then sent this case back to North Carolina, which was ordered to decide whether this particular district was a "racial gerrymander." If the North Carolina court found that it was, then the district could only be upheld if there was a compelling government interest in separating voters by race.

· Justice O'Connor wrote that districts based on racial classifications bear "an uncomfortable resemblance to political apartheid." This is because they reinforce the perception that members of the same race share values and candidate preferences because of their race, despite differences in socio-economic status, geography, age, education, or community.

Others argue that redistricting based on race is the best way to ensure minority representation in Congress, which serves the interests of that minority.

Follow-up case to Shaw v. Reno and issues surrounding redistricting.

Sequence of events:

· Some Georgia voters and the Justice Department challenged the actions of the District Court.

The central issue is whether or not the District Court could ignore Georgia's original effort aimed at 2 majority-black districts.

* The Supreme Court upheld the District Court's plan

· The dissent argues that the District Court, when it was drawing up its own plan, was not free to disregard Georgia's original desire for a plan with 2 majority-black districts

In 1991, Georgia drew up a redistricting plan with two majority-black districts. In Abrams v. Johnson, the Supreme Court upheld a plan designed by the federal District Court that had how many majority-black congressional districts in Georgia?

* Madison makes his case for extending the scope of the republic and multiplying the number of factions.

Earlier political theorists had argued that a republic, to be successful, could not occupy a great area--it had to be kept small to discourage conflict.

· Factions

unequal distribution of property

inevitable diversity of group opinions/man's nature

· Cannot prevent factions; they are unavoidable because:

· Therefore, must control the effects of faction to prevent majority tyranny

· Madison favors a large republic over pure democracy, because it can control factions through:

-- Representative government

delegation of government to a small number of citizens

-- Extended republic

* The Constitution is both pro-party and anti-party.

· Constitution denounces factions as evil (from Federalist 10): anti-party

· Constitution also supports and nourishes factions by protecting freedoms of speech, assembly, etc.: pro-party

· It is therefore both anti-party and pro-party at the same time

· Interest groups are also checked because members always have other group interests

According to Schattschneider, the Constitution is pro-party because:

* Two strong parties are necessary and required elements of an American political system which provides the electorate "with a proper range of choice between alternatives of action." Parties must organize and present coherent plans of action, providing clear choices for voters.

Modern government is so complex and its activities so far-flung that general policies and clear choices are necessary to have government run effectively and with accountability.

Four major dangers of a decline of parties:

According to the Committee on Political Parties of the APSA, the decline of political parties in America is:

* Parties can be viewed from a variety of perspectives. Parties must function effectively in the electorate as well as in government if they are to be successful organizations.

· Wattenberg notes that analysis of parties often conflates two distinct party functions; separating these terms of analysis is important

* Wattenberg concludes that understanding both of these interpretations, and how the two roles of parties interact, is necessary if we are to understand political parties in the United States.

Martin Wattenberg argues that political parties:

* Divided government produced by the separation of powers works as well as the unified government favored by many critics.

· Divided government (when one party controls the Presidency and the other controls Congress) has been the rule rather than the exception over the last several decades.

· Many authors argue that divided government creates gridlock and stalemate in government.

· Mayhew argues that, regarding Congress' oversight role and the amount of legislation approved by Washington, "Unified versus divided control has probably not made a notable difference during the postwar era."

· Mayhew argues that the following areas show few differences regardless of divided or unified control:

Mayhew argues that divided government results in:

* Critical elections begin a long-term realignment from the previously dominant party to a new majority party.

· Critical elections:

· Maintaining elections

· Deviating elections

· Reinstating elections

V. O. Key argues that elections:

* Ginsberg and Shefter argue that as parties decline and elections become less important, winners do not gain full control and losers are not deprived of power. Politics is increasingly carried out by means other than elections.

· Declines in party influence and in voter turnout mean that elections are less important.

· Elections do not establish who will or will not wield power.

· Political forces concentrate their efforts in discrete sectors of government.

· This fragmentation results in decreasing government's ability to achieve its national purposes.

· Political battles increasingly take place through the use of the criminal justice system, the federal judiciary, and the national security apparatus.

· Elections become deadlocked, with Democrats controlling Congress and Republicans controlling the Presidency, neither party will support change that might risk their respective institutional strongholds.

· Three consequences characterize the "postelectoral political order":

Ginsberg and Shefter argue that elections are:

* Democratic theory is wrong to address the rationality of individual voters; they address groups of voters.

· Rational voting comes when large numbers of people vote irrationally, because of the moderating influence of different degrees of attitude and viewpoints.

· Apathy among voters signals contentment; therefore low voter turnout is a sign of stability.

According to Berelson, et. al., rational voting comes from:

* The electorate "behaves about as rationally and responsibly as we should expect, given the clarity of the alternatives presented to it and the character of the information available to it."

Voters are not the fools that many politicians take them to be, are not apathetic, and are not manipulated by politicians.

According to V. O. Key, voters:

* The national interest is defined by the actions of pressure groups pursuing their own interests.

· There is no objective "national interest".

· The political process is a reflection of group politics: parties (electing devices) act against interest groups (policy devices).

· Group politics is a perfect representation of democracy in action.

Truman argues that the interaction of groups:

· "Interest-group liberalism" (essentially Truman's argument) fights against democracy and takes away its authoritativeness:

· Interest group liberalism fails because it cannot recognize the greater national interest; it does not even try.

Theodore Lowi argues that interest-group liberalism:

* Interest groups interact with government through their leaders, who often do not reflect the involvement of group members.

· The actions of group leaders do not necessarily reflect the attitudes of members.

· Group interaction, therefore, may not reflect democracy (contrasts Truman).

· Key does accept that interest groups are, nevertheless, important links between the people and government. Even though they are dominated by elites, elites still must act within the general bounds and interests of the community at large.

· Key also argues that despite efforts at manipulation by interest group leaders and their publicity people, elected political leaders and the public are not often deceived.

V. O. Key argues that the actions of interest-group leaders:

* PACs (Political Action Committees) are highly influential because they pump vast amounts of money into the electoral process.

· Criticism of PACs:

· Argument for PACs:

· Suggestions for limiting PAC influence:

Walter Isaacson argues that PACs:

* Sabato argues that the obsession with PACs as the bad guys of politics is misplaced because PACs fulfill the role Madison created for diverse and active factions.

· PACs are legal and encouraged by campaign finance laws.

1) While the number and influence of PACs have multiplied since the 1970s, Sabato writes that it "is not clear that there is proportionately more interest-group money in the system than before."

2) More PACs and the increased cost of running for office, rather than being cause and effect, may both be results of increasingly costly technologies associated with campaigning.

3) There is little direct evidence that PAC money can "buy" votes on legislation.

4) PAC influence may increase in certain situations:

-- narrow and specialized issue-areas with low visibility

-- agenda-setting

-- subcommittee votes

5) It is difficult to assess PAC influence: does a dairy state senator vote for dairy price supports because his constituents are dairy farmers, or because he received PAC money from agricultural interests?

6) PACs are Madisonian factions, multiplying associations and participation; they are checked by elections and the needs of a two-party system.

Sabato argues that PACs and their influence:

The Federal Election Campaign Act of 1971 (amended in 1974) focussed on two aspects of the campaign financing process:

The regulations also required detailed reporting of contributions and spending, and established the Federal Election Commission to oversee campaign behavior.

* In Buckley, the Court ruled that

· The Court thus decided differently on the issues of contributions, which can be limited, and spending, which is a protected form of free speech.

· The Buckley decision still stands as a cornerstone of how campaign finance is viewed through the Constitution.

In Buckley v. Valeo, the Court decided that:

Main Argument:

* The campaign finance system should be deregulated

The system of campaign finance regulations established in the 1970s, and upheld in part by Buckley v. Valeo, is overburdened.

This has led to declining efforts at compliance, which, in turn, forces even honest candidates to "keep up" with crafty opponents by bending the financing rules.

Bending the rules has become standard operating procedure with the prevalence of "shadow" campaign organizations and unrestricted contributions in the form of "soft money" (not directed specifically at a particular candidate or campaign, and thus outside the financing restrictions).

Sabato and Simpson reject calls for public financing of elections and for spending limits:

* Sabato and Simpson prefer a free market approach to campaign finance, which they call "Deregulation Plus":

· This kind of information will serve as its own check on the financing system, while bringing the involvement of "shadow" organizations to the public's attention.

Larry J. Sabato and Glenn R. Simpson favor which type of campaign finance regulation?