English for Law Students: University Course. Part II

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M.V. Lomonosov Moscow State University Law School

M.V. Lomonosov Moscow State University Law School

Department of Foreign Languages

Part II

ENGLISH FOR LAW STUDENTS is a part of the university course of legal English for academic purposes. It is addressed to law students of non-common law countries. It is aimed at teaching students to understand the language of English law, its fundamental concepts and institutions. Its goal is to enable students to deal with different types of legal texts, to become knowledgeable in current legal issues, to use proper English legal terms with regard to their own legal systems. The final objective is to stimulate students’ interest in law and language. Although English for Law Students is designed as a part of the university course of legal English it can also be useful for students of the humanities, economics, social and political sciences, etc. in their self-study of English law and language.

ENGLISH FOR LAW STUDENTS: UNIVERSITY COURSE

Department of Foreign Languages

ENGLISH FOR LAW STUDENTS UNIVERSIT Y COURSE

Part II

Copyright ОАО «ЦКБ «БИБКОМ» & ООО «Aгентство Kнига-Cервис»

M.V. Lomonosov Moscow State University Law School Department of Foreign Languages

ENGLISH FOR LAW STUDENTS UNIVERSIT Y COURSE

Part II Рекомендовано Учебно-методическим объединением по юридическому образованию высших учебных заведений в качестве учебного пособия для студентов высших учебных заведений, обучающихся по направлению «Юриспруденция» и специальности «Юриспруденция»

ÌÎÑÊÂÀ 2016

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УДК 802/809.1 ББК 81.2 Е 58 EDITED BY Tatiana Tarasova CONTRIBUTORS: Natalya Berezhneva, Asya Goloborodko, Dina Karpova, Tatiana Patenkova, Tatiana Tarasova



REVIEWED BY Suren Avakjan, Professor of Law, Eugenia Yakovleva, Professor of Linguistics, Anna Lebedeva, Professor of Liguistics

Е 58 English for Law Students: University Course / Ed. by T. Tarasova. Part II. – Moscow: STATUT, 2016. – 672 p. [Английский язык для студентов-юристов. – М.: Статут, 2016. – На английском языке] ISBN 978-5-8354-1138-2 (Part II; softback) ISBN 978-5-8354-0977-8 ENGLISH FOR LAW STUDENTS is a part of the university course of legal English for academic purposes. It is addressed to law students of noncommon law countries. It is aimed at teaching students to understand the language of Anglo-American legal system, its fundamental concepts and institutions. Its goal is to enable students to deal with different types of legal texts, to become knowledgeable in current legal issues, to use proper English legal terms with regard to their own legal systems. The final objective is to stimulate students’ interest in law and language. Although English for Law Students is designed as a part of the university course of legal English it can also be useful for students of the humanities, economics, social and political sciences, etc. in their self-study of English law and language.

ISBN 978-5-8354-1138-2 (Part II) ISBN 978-5-8354-0977-8

УДК 802/809.1 ББК 81.2 © Contributors, 2015 © Издательство «Статут» (Statut Publishing House), 2015

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CONTENTS Foreword.............................................................................. 6 UNIT I THE HISTORY OF THE U.S. CONSTITUTION Text 1. The Need for a New Constitution.............................. 8 Text 2. The Actual Writers of the Constitution.................... 25 Text 3. “We the People of the United States”...................... 42 Text 4. Ratification of the Constitution............................... 58 Text 5. The First National Government under the Constitution...................................................... 70 UNIT II AMERICAN CONSTITUTIONALISM: ORIGINS AND PRINCIPLES Text 1. The Origins of American Constitutionalism............. 83 Text 2. American Circumstances....................................... 107 Text 3. The American Constitutional System: Principal Characteristics....................................... 131 UNIT III U.S. CONGRESS Text 1. Historical and Constitutional Background of Legislative Power.............................................. 152 Text 2. Congress Membership........................................... 168 Text 3. Sources of Legislation........................................... 181 Text 4. Introduction and Referral to Committees.............. 190 Text 5. Senate Action........................................................ 202 3

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Text 6. Congress’s Investigative Oversight Role................. 215 Text 7. The Enactment Process......................................... 225 Text 8. The Party Organization......................................... 231 Text 9. Representative Government.................................. 238 UNIT IV U.S. PRESIDENCY Text 1. The Chief Executive.............................................. 246 Text 2. The Power of Appointment................................... 257 Text 3. Enumerated, Implied, Inherent Powers.................. 268 Text 4. The Treaty-Making Power..................................... 277 Text 5. Executive Agreements............................................ 289 Text 6. The Presidential Veto............................................. 300 Text 7. The President as Legislator.................................... 308 Text 8. Impeachment........................................................ 324 Text 9. The Intent of the Framers Versus the Modern American Presidency.......................... 332 UNIT V THE ORGANIZATION OF COURTS IN THE UNITED STATES Text 1. State Courts v. Federal Courts................................ 347 Text 2. The Structure of American Courts..........................361 Text 3. Consequences of the Dual Court System................ 379 Text 4. The Administrative Organization of Courts............ 392 UNIT VI THE UNITED STATES SUPREME COURT Text 1. The Court and Constitutional Interpretation........... 411 Text 2. The Court as an Institution.................................... 428 4

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Text 3. Constitutional Guide and Modern Developments....................................................... 448 Text 4. The Court and its Procedures................................ 466 Text 5. A Unique Court.................................................... 479 Text 6. Judicial Review...................................................... 502 Glossary........................................................................... 526 Keys................................................................................. 652 References.........................................................................671

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FOREWORD English for Law Students PART II is designed • to meet the students’ needs in acquiring both language through law and law through language; • to strengthen their reading and writing skills; • to develop the students’ ability to analyze, summarize and interpret legal texts concerning particular legal area or issue; • to introduce common law terms, concepts and institutions to the students of a non-common law system; • to increase their competence in legal language usage; • to provide thought provoking materials; • to encourage analytical approach to and comparative studies of current legal issues and reforms; • to equip students with linguistic tools to advance in their scholarly activity. English for Law Students contains six UNITS: The History of the U.S. Constitution, American Constitutionalism: Origins and Principles, U.S. Congress, U.S. Presidency, The Organization of Courts in the United States, The United States Supreme Court. Each unit includes a number of texts on a particular theme followed by LANGUAGE PRACTICE and COMPREHENSION CHECK with TASKS ranging from word building to complicated legal vocabulary, grammar, syntax, discussion points. They focus on reading comprehension, speaking and writing activities. Each unit ends with the task to write an essay based on the texts of the unit which make up one of the exam questions. 6

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The KEY at the end of the book gives the answers to some exercises. The GLOSSARY provides definitions for most legal terms used in the units. English for Law Students PART II is designed for all those who strive for academic excellence and professional success.

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UNIT I THE HISTORY OF THE U.S. CONSTITUTION TEXT 1 The Need for a new Constitution PRE-READING QUESTION: 1. Was the U.S. Constitution the first one in history? 2. Were there other early Constitutions? 1. For most of modern history the word constitution has meant the entire legal framework of a nation. For example, the English “constitution” includes the Magna Charta of 1215, which was the first written set of restrictions on kingly power, the Petition of Right of 1628, the English Bill of Rights of 1689, the Reform Bills of 1832 and 1867, many statutes, judicial decisions, and royal pronouncements, as well as common law and established government customs and usages. Thus, the English constitution is both much less than and much more than a written constitution such as the American one. In fact, a written constitution – setting forth a plan of government, establishing its institutions, and proclaiming the rights of citizens – is a relatively new development. 2. Although claims have been made for the Mayflower Compact of 1620, the 1630 Charter of the Massachusetts Bay Colony, and the 1639 Fundamental Orders of Connecticut, many scholars agree that the first written constitution of 8

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government was England’s 1653 Instrument of Government. The Instrument, which set out a new, republican form of government, and its 1657 successor, the Humble Petition and Advice, were swept away by the Restoration of Charles II in 1660 and had almost no influence on either English or American constitutional development, but they did presage many later reforms in England. 3. The English colonists in North America regarded themselves as Englishmen possessing all the rights of Englishmen, even though they lived thousands of miles away from the mother country. Each colony had some form of written instrument of government by the eighteenth century, usually a royal charter. Originally, there were three types of colonies: joint-stock companies, organized as economic ventures under a charter granted by the Crown conferring certain privileges, as with trade (for example, Virginia and Massachusetts Bay); compacts, agreements reached by and among the colonists themselves (Plymouth; Providence, R.I.; Fundamental Orders of Connecticut); and proprietary colonies, in which the Crown granted the land composing the colony to one or more landholders known as proprietors. By the mid-eighteenth century, most of the colonies were royal colonies, in which the former joint-stock company or compact form had been replaced by direct royal authority residing in the governor. In Maryland, Pennsylvania, and Delaware, the proprietors (not the Crown) appointed the governors; in Connecticut and Rhode Island, the surviving charter colonies, the colonists themselves chose their governors. Each colony also had a two-house, or bicameral, legislature; the lower house was elected by those colonists who could meet qualifications based on the amount of real or personal property they had, while the upper house was selected by the lower house. The upper house, or council, had both legislative and executive 9

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powers and duties, in that it also advised the governor on a daily basis. The royal charters that most colonies possessed became the focus of disputes between the colonists and their governments, with the colonials challenging what they saw as arbitrary and unconstitutional exercises of power. 4. The initial stages of the American Revolution were moves and counter-moves in an intricate but fierce struggle to determine the limits of Parliamentary authority. Parliament retained supreme legislative power over the colonies, while at the same time other key agencies, such as the Privy Council, the Secretary of State, the Treasury, the Admiralty, and the Board of Trade, also had responsibility for colonial affairs, with the result that for most of the seventeenth and eighteenth centuries British administration of the colonies was entangled in bureaucratic infighting and prey to incompetence and mismanagement. 5. In May of 1776, anticipating its action two months later in the Declaration of Independence, the Second Continental Congress passed a resolution calling upon the colonies to prepare new, written constitutions in case it became necessary for them to separate from England. A few colonies merely modified their old charters, deleting all references to the king and England, but within the next few years most prepared entirely new, republican constitutions. These reflected the Americans’ concern with arbitrary power, particularly arbitrary executive power. Pennsylvania’s constitution of 1776 even did away, with a separate executive, establishing instead a Supreme Executive Council chosen by and under the thumb of its one-house legislature. Other states provided for a weak governor and a powerful two-house legislature. Still others, notably New York in 1777 and Massachusetts in 1780, created an independent governor, who was armed with veto power over legislation (although New York’s constitution granted only a qualified veto 10

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power to a council of revision composed of the governor and several state judges), and a system of checks and balances among the legislative, executive, and judicial branches of government. Massachusetts’s most significant contribution to American constitutional thought was a stipulation mandating ratification of its constitution by the people in special conventions called for that purpose. Previous state constitutions merely went into effect after being adopted by their legislatures. The Massachusetts idea recognized the distinction between constitutions and mere statutes. Its constitution – chiefly the work of John Adams – and the New York one – largely that of John Jay – were important models and sources for the subsequent framing of the U.S. Constitution. NOTES TO THE TEXT John Jay (1745–1829) – a Founding Father of the United States who served the new nation in both law and diplomacy. He established important judicial precedents as the first Chief Justice of the United States (1789–1795) and negotiated the Jay Treaty of 1794, which settled major grievances with Great Britain and promoted commercial prosperity. John Adams (1735–1826) – a leader of the American Revolution, the second U.S. President (1797–1801) defeated for another term by Thomas Jefferson (1743–1826). Adams – America’s first Vice President. During his presidency, Washington became the American capital. Mayflower – the ship in which the Pilgrim Fathers sailed from Southampton to the New World in 1620. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to presage, humble, to entangle (in), prey (to), venture, proprietary, stipulation, arbitrary, intricate 11

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TASK I.  a) Match the words to their definitions: 1) to presage 2) to entangle (in) 3) prey (to) 4) venture 5) humble 6) intricate 7) arbitrary 8) proprietary 9) stipulation

a) be seized by, caught by, harmed or affected in a bad way by b) foretell, be a sign of c) put or get into difficulties, in unfavorable circumstances d) having many complexly interrelating parts or elements e) not restrained or limited in the exercise of power f) a material condition or requirement in an agreement; provision g) owned or controlled by, held as property h) an undertaking involving chance, risk, or danger i) reflecting, expressing, or offered in a spirit of deference or submission

b) Use the above words to complete the following sentences: 1. An artificially strong euro may … strong problems for the country. 2. The refugees fell … to criminal gangs. 3. The Court articulated several … that had to be met to sustain a political gerrymandering claim. 4. A tax incentive violates the commerce clause when it has the effect of providing lower tax rates to in-state businesses than those imposed on out-of- state …. 5. The law … the interests of church and state by seeking “the symbolic and financial support of government to achieve a religious purpose.” 12

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6. Holmes was both proud and … about his war service. 7. The ruling in Board of Regents v. Roth … subsequent cases that did expand the rights of terminated employees. 8. Federal funding for private universities may come with congressional … protecting student rights. 9. The courts have upheld the constitutionality of the death penalty but looking more closely at how it is applied, held that an … or discriminatory application would be unconstitutional. 10. The Court ruled that it was not a violation of the due process clause of the Fourteenth Amendment for the state legislature to regulate the price of a necessary good such as milk, as long as the regulation was not … or unreasonable. 11. The policy would … the nation in conflicts that could easily lead to war. 12. There are few … regarding qualifications for becoming a senator, as is the case for representatives. 13. Initially, the father had extensive powers over the family, including the power of life and death; until Justinian’s time, the father alone in his familia had … capacity. 14. Hylton v. United States case is important historically, as it … Marbury v. Madison. 15. True … rights are ‘binding on the world’ in the lawyer’s traditional phrase. c) Translate the following sentences: On the other hand, the highly-debated establishment by Congress of a process by which independent special prosecutors could be established to investigate and prosecute cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion that may presage a judicial approach in separation of powers cases more accepting of some blending of functions at the federal level. 13

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For the Court, Justice Douglas observed that the interests of a State for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but rather “embrace the so called ‘quasi-sovereign’ interests which are independent of and behind the titles of its citizens, in all the earth and air within its domain.” However, the States did in a number of instances engage in commercial activities that would be regulated by federal legislation if the enterprise were privately owned; the Court easily sustained application of federal law to these state proprietary activities. Chief Justice Taft uttered some cautionary words to guide trial judges in the utilization of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall and is now established law. Marshall sold real estate and entered other business ventures to afford his public service and, in order to provide for his family, often turned political office down. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people (Declaration on Independence, 1776). The royal charters that most colonies possessed became the focus of disputes between the colonists and their governments, with the colonials challenging what they saw as arbitrary and unconstitutional exercises of power. 14

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TASK II.  Use the following binominals to describe the way colonies were governed: Customs and usages Real and personal Legislative and executive Powers and duties Arbitrary and unconstitutional Moves and countermoves Incompetence and mismanagement TASK III.  a) Compare the meanings of phrasal verbs: • set forth – to state, to explain in a clear, organized way = to expound (a plan, a system, principles, ideas, purposes, objectives, etc.) – formal use; • set out – to give all the details of something or to explain something clearly, especially in writing; • set down – to record as a law or regulation, to state in an official document how something must be done; lay down; • set up – to make arrangements, preparations, provisions so that something can happen, exist and operate. b) Use set down, had set up, set out, set forth, set down, set up, set out, sets forth in the following sentences: 1. The newspaper correctly reported that the government … an investigation. 2. The first thing to do in the new constitution was to … effective central government. 3. The UN Resolution … the plan of settlement between the conflicting nations. 4. Your contract will … all the terms of your employment. 5. There are laws which attempt to … standards whereby the animal is properly protected. 15

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6. It was proposed that passengers’ rights be … in a separate charter. 7. Should legislators adopt the principles … in Roth v. United States when many of the justices now rejected that standard? If not, what could they substitute for it? 8. The Court observed: “The contract … in the pleadings was made for the purpose of instituting this suit.” c) Compare the meanings of phrasal verbs: • call upon – to officially ask someone to do something – formal use; • call for – demand that it should be done (action), be held, convened, conducted (conference, meeting, elections, investigation). d) Use call for or call upon in the following sentences: 1. The Security Council Resolution … an immediate cease-fire. 2. The Prime Minister may … a new election before the end of the term of office. 3. The Constitutional Convention was … to make and propose to the states a new constitution. 4. The army is in a state of readiness in case it should … to resolve the ethnic conflict. 5. The weaknesses in the system soon became apparent, and the Congress issued a … a convention to meet in May 1787 in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.” 6. New York and Virginia probably would not have agreed to the Constitution without the bill of rights, and Virginia even … a second constitutional convention for that purpose. 7. From the very nature of their judicial duties, state judges would be … to pronounce the law applicable to the case in judgment. 16

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8. The doctrine of prior restraint was … by the Court as it struck down a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them. 9. The New Jersey Plan also … the supremacy of the national government, making all state laws subordinate to the laws and directions imposed by the central government. TASK IV.  Match the nouns to their definitions or synonyms: 1) statute 2) pronouncement 3) government 4) house 5) governor 6) authority 7) stipulation 8) mandate

a) chamber b) the authority to do smth c) power d) official appointed to govern the province e) declaration f) an act of legislature g) authority; conduct of state affairs h) prerequisite, requirement

TASK V.  Combine the verbs and the nouns and use them to describe the colonial governments: 1) to confer 2) to set forth 3) to retain 4) to advise 5) to appoint 6) to grant 7) to select

a) a plan b) qualifications c) institutions d) a charter e) an agreement f) privileges g) a governor 17

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8) to meet 9) to proclaim 10) to establish 11) to reach 12) to determine

h) power i) a house j) a form of government k) rights l) the limits

TASK VI.  Combine the adjectives and the nouns and use them to describe the British administration of colonies: 1) kingly 2) judicial 3) royal 4) common 5) economic 6) a two-house or bicameral 7) the lower 8) real or personal 9) arbitrary and unconstitutional 10) intricate but fierce 11) Parliamentary 12) bureaucratic

a) authority b) infighting c) legislature d) decisions e) house f) exercise of power g) struggle h) property i) pronouncements j) ventures k) power l) law

TASK VII.  a) Sum up the proper paragraph to describe the following: 1) British administration of the colonies; 2) new republican constitutions; 3) the role of England’s Instrument of Government; 4) colonial types and governments; 5) from the entire legal framework of a nation to a single document. 18

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b) Answer the following questions: 1. Why do nations need constitutions? 2. How has the idea of the constitution changed over the centuries? 3. What role did the Instrument of government play? 4. What other documents may be regarded as first written constitutions? 5. When was the first constitution adopted in your country? 6. Was there only one constitution in your country? TASK VIII.  Consult reference books or Glossary to explain the following notions: • legal framework of a nation • government custom and usage • royal pronouncement • direct royal authority • republican constitution • republican form of government • instrument of government • joint-stock company • proprietary colony • qualified veto power • system of checks and balances • bicameral legislature – one-house legislature TASK IX.  Discuss the following passages from Joseph Story’s Commentaries on the Constitution (1833): Plantations or colonies in distant countries are either, such as are acquired by occupying and peopling desert and uncultivated regions by emigrations from the mother country; or such as, being already cultivated and organized, are acquired by conquest or cession under treaties. There is, however, a difference between these two species of colonies in respect to 19

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the laws, by which they are governed, at least according to the jurisprudence of the common law. If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject. So that wherever they go, they carry their laws with them; and the new found country is governed by them. This proposition, however, though laid down in such general terms by very high authority, requires many limitations, and is to be understood with many restrictions. Such colonists do not carry with them the whole body of the English laws, as they then exist; for many of them must, from the nature of the case, be wholly inapplicable to their situation, and inconsistent with their comfort and prosperity. There is, therefore, this necessary limitation implied, that they carry with them all the laws applicable to their situation, and not repugnant to the local and political circumstances, in which they are placed. Even as thus stated, the proposition is full of vagueness and perplexity; for it must still remain a question of intrinsic difficulty to say, what laws are, or are not applicable to their situation; and whether they are bound by the present state of things, or are at liberty to apply them in future by adoption, as the growth or interests of the colony may dictate. The English rules of inheritance, and of protection from personal injuries, the rights secured by Magna Charta, and the remedial course in the administration of justice, are examples as clear perhaps as any, which can be stated, as presumptively adopted, or applicable. And yet in the infancy of a colony some of these very rights, and privileges, and remedies, and rules, may be in fact inapplicable, or inconvenient, and impolitic. It is not perhaps easy to settle, what parts of the English laws are, or are not in force in any such colony, until either by usage, or judicial determination, they have been recognized as of absolute force. 20

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In respect to conquered and ceded countries, which have already laws of their own, a different rule prevails. In such cases the crown has a right to abrogate the former laws, and institute new ones. But until such new laws are promulgated, the old laws and customs of the country remain in full force, unless so far as they are contrary to our religion, or enact any thing, that is malum in se; for in all such cases the laws of the conquering or acquiring country shall prevail. This qualification of the rule arises from the presumption, that the crown could never intend to sanction laws contrary to religion or sound morals. But although the king has thus the power to change the laws of ceded and conquered countries, the power is not unlimited. His legislation is subordinate to the authority of parliament. He cannot make any new change contrary to fundamental principles; he cannot exempt an inhabitant from that particular dominion, as for instance from the laws of trade, or from the power of parliament; and he cannot give him privileges exclusive of other subjects. Mr. Justice Blackstone, in his Commentaries, insists, that the American colonies are principally to be deemed conquered, or ceded countries. His language is, “Our American Plantations are principally of this latter sort, [i.e. ceded or conquered countries,] being obtained in the last century either by right of conquest and driving out the natives, (with what natural justice I shall not at present inquire,) or by treaties. And, therefore, the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct, though dependent dominions.” TASK X.  Compare the following forms of social agreements: A. A compact was a mutual agreement or understanding that was more in the nature of a standing rule. If it did not always have the status of law, it often had a similar effect. A compact implied an agreement that in some way affected the entire 21

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community or relations between communities. The word’s root meaning was knitting together or bringing the component parts closely and firmly into a whole. A compact, therefore, was an agreement creating something that we would today recognize as a community. In the seventeenth and eighteenth centuries, a compact was an agreement between a large group of people creating a new community based upon their own consent. Locke consistently used compact to describe the Foundation agreement. If a people in a given situation had to draw up a mutual agreement but found it impossible to obtain the king’s official sanction, they could call upon God as a witness to bind those signing until the royal seal could be secured. If a people reached a mutual agreement but they chose to call upon neither God nor the king, they must have for some reason, considered themselves competent to establish the document’s force. In this latter instance, legitimacy rested upon the authority of the people, indicating an understanding of popular sovereignty. A compact was just such an agreement. For this reason Blackstone could say: “A compact is a promise proceeding from us, law is a command directed to us” (Sir William Blackstone, Commentaries on the Laws of England). Those in a contractual relationship would be inclined toward legalistic wrangling over the meaning and intent of specific words and phrases. The emphasis upon the letter rather than upon the spirit of the agreement would destroy the sense of community as implied by a compact and would result in something less – an association for specific, limited ends. True compacts, without any contractual elements, are communitarian in their orientation, but contractual variants are more legalistic. The early state constitutions adopted in 1776 could be viewed as compacts, since they usually summarized and codified what the colonists of the respective states had developed over the years. 22

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B. The word charter is derived from the Latin for a papyrus leaf, a writing, a document. Often this legal document or deed, written on a single piece of paper, confirmed or ratified grants, sessions, contracts, and other transactions. Or it was a document by the sovereign or the legislature to grant privileges to, or recognize the rights of, an entire people, a certain class, or specific individuals. Such was Magna Carta, a charter of rights for the nobility. In his Leviathan, Hobbes says that charters are not laws but exemptions from the laws. Charters also granted pardon and created or incorporated boroughs, universities, companies, or other organizations. These written instruments or contracts applied especially to documents or deeds relating to the conveyance of property. The word charter was also a linguistic substitute for privilege, immunity, or publicly conceded right. To say that something was chartered was to say that it was founded, privileged, or protected. Charters and letters patent were similar, though the latter could refer to any authoritative document. A charter was invariably a patent, but a patent was not necessarily a charter. In addition, a charter effectively constituted a contract between the authority granting it and the person(s) to whom it was granted. However, unlike a simple contract, a charter often included many general statements. Contract, for example, would not be an appropriate description for a document saying that “and the proprietors shall establish a government whereby differences among the planters may be settled.” Virtually all colonial charters granted by the king of England had this sentence or one like it, and on its strength the colonists designed their own forms of local government. A true contract could not have included such a historically important provision. The peculiarity of a charter, then, was that it often contained strong contractual elements linked to many or most of what we would recognize as elements of a founding document like a constitution. 23

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TASK XI.  Compare the following definitions of constitution with the one given in the text: A. BLACK’S LAW DICTIONARY The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. In a more general sense, any fundamental or important law or edict; as the Novel Constitutions of Justinian; the Constitutions of Clarendon. B. MARRIAM WEBSTER’S DICTIONARY OF LAW [Latin constitutio – system, fundamental principles (of an institution), from constituere – to set up, establish] 1: the basic principles and laws of a notion, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it 2: a written instrument containing the fundamental rules of a political or social organization esp., cap.: the U.S. Constitution. TASK XII.  Contribute to the subject and prepare a talk on one of the following: • Magna Charta of 1215; • the Petition of Right of 1628; • Instrument of Government of 1653; • the Humble Petition and Advice of 1657; 24

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• the English Bill of Rights of 1689; • the Reform Bills of 1832 and 1867; • John Jay (1745–1829); • John Adams (1735–1826) TASK XIII.  Comment on the following statement by Joseph Story: “...a people who mean to be their own governors must arm themselves with the power which knowledge gives.”

TEXT 2 THE ACTUAL WRITERS OF THE CONSTITUTION The state legislatures decided who would write the Constitution. They, in consultation with their governors, chose the delegates to the Constitutional Convention, in the same way they had selected representatives to the Second Continental Congress, the Congress under the Articles of Confederation, and other interstate conferences. Although James Madison was credited with being the author of the Constitution, he rejected the honor, saying that the document was “not like the fabled goddess of wisdom the offspring of a single brain [but] ought to be regarded as the work of many heads and many hands.” Madison himself credited Gouverneur Morris of Pennsylvania for “the finish given to the style and arrangement.” And, indeed, the Preamble – “We the People of the United States...” – is Morris’s doing. Madison’s name is so closely connected with the Constitution because of a set of resolutions he drafted, later called collectively the Virginia Plan. (It was only after his death and the publication of the journal he kept during the Constitutional Convention that 25

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Madison became known as the “Father of the Constitution.”) The resolutions were offered by Edmund Randolph, governor of Virginia and spokesman for its delegation, when the Convention began the actual business of revising the Articles of Confederation on May 29, 1787. These resolutions, which called for a completely new form of government, formed the basis of the Convention’s deliberations and, ultimately, of the Constitution itself. Madison’s resolutions were a major departure from the structure of the Articles of Confederation. They called for the creation of a national government having legislative, executive, and judicial branches. The Articles had only created a Congress, which itself could create some executive departments and quasijudicial bodies with drastically limited jurisdiction. Madison’s national legislature would have two branches, the first to be elected by the people, the second to be elected by the first from nominees chosen by state legislatures. A state’s representation in each chamber was to be based on its population. The national body would have power to legislate in all areas in which the individual states would not be competent and in which national uniformity was necessary. The national judiciary would include at least one supreme tribunal. It and the national executive would be chosen by the national legislature. The executive and some members of the national judiciary would constitute a council of revision, with an unconditional veto power over all legislation Although the Virginia Plan was the focus of the debates at the Constitutional Convention, it was not the only plan offered. In response to the bias in favor of large states inherent in that plan, most notably in the Virginia Plan’s provision that both houses of the legislature be apportioned among the states on the basis of the population, William Paterson of New Jersey acted as spokesman for the small states in offering a series of proposals later known as the New Jersey Plan. The critical difference between the 26

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two plans was that the New Jersey Plan preserved the form of representation of the Articles of Confederation – that is to say, each state, no matter how large or small, would receive an equal vote in each house of the national legislature. The dispute over representation dragged on for weeks. Although the Convention rejected the New Jersey Plan on June 19, the Convention did not find a way out of the representation dilemma until July 16, when it adopted the Great (or Connecticut) Compromise. This compromise, in which the delegates from Connecticut played the role of brokers and conciliators, provided that the lower house be apportioned on the basis of population and direct taxation, although slaves were to be counted as three-fifths of free persons for both purposes, and that each state would have equal representation in the upper house. Two other delegates offered their own plans. Charles Pinckney of South Carolina offered his on the same day that Randolph presented the Virginia Plan; although the original version has disappeared, historians who have managed to reconstruct it from the notes of other delegates have shown that it resembled the original Virginia Plan in most respects. In the midst of the debate over the Virginia and New Jersey Plans, Alexander Hamilton of New York offered a proposal for a truly consolidated national government. His plan would have reduce the states to mere administrative districts, created a bicameral legislature in which the members of the upper house would serve “during good behavior” (this meant for life unless removed by impeachment), and provided for an executive who would also serve during good behavior. Hamilton’s plan, offered in a six-hour speech delivered on June 18, the day before the New Jersey Plan was rejected, was never seriously considered by the Convention. During the deliberations, the various resolutions, proposals, and drafts were referred to committees for recasting. Each revised and rewritten draft then formed the basis for the next stage of 27

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the Convention’s discussions. The committees considered not only formally adopted resolutions but also individual delegates’ memoranda as well as informal drafts. All the proposals served as raw material from which the committees prepared the next draft for general discussion. After more than three months, the Convention, on Septem­ber 8, created a Committee of Style and Arrangement and appointed to it Madison, Morris, Hamilton, Dr. William Samuel Johnson of Connecticut, and Rufus King of Massachusetts. In five days, the committee produced a nearly final draft almost identical to the text of the Constitution that was subsequently approved. With the assistance of the other members of the committee, Morris completely reorganized and rephrased the previous drafts, giving the wording of the Constitution terse dignity and power, especially in the Preamble. His choice of certain phrases was made in a conscious effort to emphasize two major points: that it was the people of the United States, not the states, who were creating the Constitution and empowering the new government, and that the focus of the Constitution was on the centralization of power in a national government. For example, in previous versions the preamble merely listed the states constituting the United States without setting forth purposes and goals. Rather than listing them by name, Morris’s Preamble begins, “We the People of the United States.” Morris hoped that such a turn of phrase would protect the new government from embarrassment if a state chose not to ratify the Constitution. But those who have studied the Convention’s work – and, indeed, Morris, Madison, and James Wilson themselves – also knew that those opening words underscored the nationalist thrust of the Constitution, that the new government would not be another mere confederation of states. Perhaps the one person who was most critical to the Convention’s achievement was Washington. He emerged out 28

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of formal retirement from public life to serve as a member of the Virginia delegation, persuaded to do so despite personal doubts about the chances for the Convention’s success. His services as commander in chief of the Continental Army had convinced him of the weakness of the Articles of Confederation and had prompted his frequent appeals to give the Confederation Congress more power. Keenly aware of his national prestige, Washington shrewdly used his influence to promote his conception of the national interest. Though he gave only one brief speech during the four months of the Convention, his presence alone was assurance that many Americans would find the Constitution palatable. On top of that, he was unanimously elected president of the Convention, at the suggestion of Franklin, his only likely rival. His acceptance of the office, his endorsement of the Constitution, and his signing of that document and the Convention’s letter transmitting the Constitution to the Confederation Congress were essential contributions to the ultimate success of the ratification campaign. Furthermore, Washington’s silent dignity and reserve in presiding over the Convention’s deliberations helped to preserve the delegates’ sense of the seriousness of their task and to hold the Convention together. One final note: The man who actually penned the original copy of the Constitution – now on display in the National Archives in Washington, D.C. – was Jacob Shallus, a Pennsylvanian who was assistant clerk to that state’s legislature, which met in Philadelphia in the building now known as Independence Hall. He was paid the equivalent of thirty dollars for the job. NOTES TO THE TEXT James Madison (1751–1836) – an American politician and the fourth President of the United States (1809–1817), one of the Founding Fathers of the United States. Considered to be the “Father 29

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of the Constitution,” he was the principal author of the document. In 1788, he wrote over a third of the Federalist Papers, still the most influential commentary on the Constitution. As a leader in the first Congresses, he drafted many basic laws and was responsible for the first ten amendments to the Constitution (said to be based on the Virginia Declaration of Rights), and thus is also known as the “Father of the Bill of Rights.” As a political theorist, Madison’s most distinctive belief was that the new republic needed checks and balances to limit the powers of special interests, which Madison called factions. He believed very strongly that the new nation should fight against aristocracy and corruption and was deeply committed to creating mechanisms that would ensure republicanism in the United States. The Articles of Confederation – the Continental Congress adopted the Articles of Confederation, the first constitution of the United States, on November 15, 1777. However, ratification of the Articles of Confederation by all thirteen states did not occur until March 1, 1781. The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments. The need for a stronger Federal government soon became apparent and eventually led to the Constitutional Convention in 1787. The present United States Constitution replaced the Articles of Confederation on March 4, 1789. LANGUAGE PRACTICE AND COMPREHENSION CHECK

USEFUL VOCABULARY offspring, deliberations, drastic, uniform, inherent, conciliator, recast, terse, embarrassment, palatable TASK I. a) Use the above words in the following sentences, translate the sentences, consult the GLOSSARY: 1. After long … they accepted the order. In a long line of cases, the Court had held that no constitutional right to jury trial 30

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existed in trials of criminal contempt, but in Bloom v. Illinois, 80 the Court announced that “our … have convinced us that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution.” In Adams v. Texas the Court formulated the rule holding Witherspoon applicable to capital sentencing procedures and voiding a statute permitting exclusion of any juror unable to swear that the existence of the death penalty would not affect his … on any issue of fact. 2. Her … remark was very short and showed that she was annoyed. The boss gave … instructions to his secretary and left. 3. The policy ensures the … standard of healthcare throughout the country. In Federalist No. 78, Alexander Hamilton wrote that the U.S. Supreme Court was “to declare the sense of the law” through “inflexible and … adherence to the rights of the constitution and individuals.” In Bagley, the Court established a … test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. 4. The company will be taking … measures to reduce its debt. Reagan delivered on two of his pledges, cutting taxes and increasing defense spending; however, his reluctance to call for … cuts in domestic spending, coupled with a Congress more willing to spend than save, caused the national debt (the accumulated annual deficits) to more than double in four years. Although temporary restraining orders (injunctions) may be warranted in certain situations, this extraordinary remedy may have … consequences for the adverse party by depriving that party of the use of his property or the exercise of his rights. 5. The committee made an attempt to … the statement in less formal language. A further consideration was that eliminating review of Miranda claims would not significantly reduce federal 31

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habeas review of state convictions, since most Miranda claims could be … in terms of due process denials resulting from admission of involuntary confessions. 6. … were called in to negotiate between the warring factions. A trained … discusses and explores the issues with each side, explains any legal issues involved, tries to find opportunities for settling the dispute, helps both parties agree to a legally binding agreement. 7. The allegations have been an … to the administration. “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the potentiality of … from multifarious pronouncements by various departments on one question.” 8. In a world where profit usually beats principle, how can socially responsible investment become … ? From this point of view, … religious liberty developed more from competitive circumstances, experimental learning, and the advent of federalism than from purposeful design. 9. I am afraid the problems you’ve mentioned are … in the system. “Outrageousness” in the area of political and social discourse has an … subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. Obscene material is unprotected by the First Amendment. We acknowledge, however, the … dangers of undertaking to regulate any form of expression. 10. Conflicts between parents and their … are quite common. The offices of Ambassadors, other public Ministers, and Consuls depend for their original existence upon the law, but are the … of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. 32

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TASK II.  a) Choose the meanings the word actual has in the text: • Emphasizing what is really or true, exact as compared with a general idea – The actual number of people killed is not yet known. • Emphasizing what is really true or exact as compared with what people expected –How does your department’s actual performance compare with your plan and budget? • Emphasizing that something is real and not imaginary or part of an idea or a plan – The play is based on actual events. • Emphasizing the word that follows – All I have to do now is to write the actual letter. b) Explain the meaning of the word actual in the following sentences: 1. The 12th Amendment establishes the Electoral College that casts the actual votes for President and Vice-President. 2. If actual conflict is present in a case, it has a 33 percent chance of gaining Court review. 3. Some variation existed among state laws, but most allowed defamed individuals to seek two kinds of monetary damages: compensatory, for actual financial loss (e.g., an individual loses his or her job because of the story), and punitive, to punish the offender. 4. Previously, despite its use of separation-of-powers language, the Court did little to involve itself in actual controversies, save perhaps the Myers and Humphrey litigations over the President’s power to remove executive branch officials. 5. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States. 33

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TASK III.  a) Match the “re”- verbs to their definitions: to reorganize, to restate, to rephrase, to reword, to recall, to repatriate, to repay, to reboot, to reconstruct, to reduce, to represent, to resemble, to remove, to recast, to resolve 1) to start a computer again; 2) to express something using different words; 3) to send someone back to the country that is legally their own; 4) to give someone money that you have borrowed from them; 5) to state or write smth again or using different words 6) to call or summon back; 7) to say or write the same thing using different words; 8) to pay back, give in return for; 9) to act for or in behalf of (a constituency, State, etc.) 10) to make over; 11) to bring down to a lower rank, authority; 12) to shift to another place or position, transfer; 13) to remodel, to reconstruct (a document); 14) to find an answer or solution to, to settle or solve 15) to be like or similar to. b) Translate the following sentences containing the words with re- prefix: 1. Regardless of the specific design of a legal system, in many countries jurists must confront the task of “deciding to decide” – that is, choosing which cases among many hundreds or even thousands they will actually resolve. 2. In Korematsu v. United States (1944) the justices endorsed the government’s program to remove all Japanese Americans from the Pacific Coast states and relocate them to inland detention centers. 3. In Benton v. Maryland (1969) however, the Court concluded “that the double jeopardy prohibition represents a fundamental 34

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ideal in our constitutional heritage. Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments.” 4. The strategic argument can be restated in this way: the choices of justices can be best explained as strategic behavior and not merely as responses to ideological or jurisprudential values. 5. It will be recalled that in Boyd the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. 6. Previously, despite its use of separation-of-powers language, the Court did little to involve itself in actual controversies, save perhaps the Myers and Humphrey litigations over the President’s power to remove executive branch officials. 7. If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. 8. The question is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” 9. Should the government betray the trust placed in it through a series of abuses by either its executive or legislative branch, then the people can regard it as having revolted from them and may exercise their right to recall their trust through, if necessary, an armed rebellion. 10. Statute providing, under circumscribed conditions, that indigent defendant, who receives state-compensated counsel and other assistance for his defense, who is convicted, and who subsequently becomes able to repay costs, must reimburse State for costs of his defense in no way operates to deny him assistance of counsel or the equal protection of the laws. 11. Material on the boundaries of free expression has been reorganized so that we focus not only on the traditional topics 35

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of libel and obscenity but also on emerging areas of government concern – for example, cruelty and violence. 12. The Court ruled that deferring the trial was an abuse of discretion by the district court because delay would increase the probability of denying justice to Jones due to a loss of evidence, the inability of witnesses to recall specific facts, or the possible death of one of the parties. 13. Congress can restrict the Court’s jurisdiction to hear cases, enact legislation or propose constitutional amendments to recast Court decisions, and hold judicial salaries constant. 14. The Whig Party reorganized as the Republican Party later that year (1854). 15. Not only did the Court reject the state of California’s request to remove the sale of violent video games to minors from First Amendment protection, the majority informed the state that all laws prohibiting the sale of such games would be subject to strict scrutiny (meaning that they could be very unlikely to survive). 16. The Court restated the principle in Booker, “any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 17. “When the taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, he has received income, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” TASK IV.  a) Use the nouns memorandum, phenomenon, criterion, datum, curriculum, medium in the plural or singular form in the following sentences; 36

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b) Use the GLOSSARY to translate the sentences: 1. The government’s efforts to control the dissemination of child pornography – whether via traditional or new … – represent only one side of the equation. 2. Every analysis in this area must begin with consideration of the cumulative … developed by the Court over many years. 3. Prohibition was also supported by Robert Woods, Lillian Wald, Jane Addams, and other stalwarts of the Progressive movement who believed in using law for uplift and thought that their program was supported by the best scientific … and expertise. 4. Although it has not been the subject of serious controversy for much of American history, modern political … such as legislative vetoes, the line-item veto, and presidential signing statements have all raised interesting questions regarding what policy-making actions and procedures require presentment to the president as stipulated by the Constitution. 5. The Office of Legal Counsel (OLC) of the Department of Justice prepared for the White House counsel an elaborate … that disputed all aspects of the Dillon opinion. 6. Historically, racial segregation has a long and varied past in the United States. This is not to say that integrationist ideas are a new or 20th century … , as the inclusion of the right to vote for free blacks contained in the original Tennessee state constitution of 1796 illustrates. 7. Five members of the Court said the ruling did not mean that the Commandments could never be used in the school … , but that merely posting them served only to make them objects of religious veneration. 8. Fundamentally, the Pendleton Act began to set … for public employment that called for qualified individuals to fill government jobs. 37

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9. Since 1968, the American Bar Association (ABA) has proposed and updated guidelines designed to achieve a balance between the interests of the … and those of defendants facing trial. 10. Laird v. Tatum is a case that called to question the constitutionality of military intelligence units’ collecting … on civilians and civilian social and political organizations. 11. The … vigorously pursues a “plain-meaning” rule of constitutional construction. 12. Campaign financing has been an integral part of the election process and a documented … since the pre-Constitution days. 13. Because Louisiana proposed to develop special … and provide teaching resources for the clear purpose of advancing creation theory but none for evolution theory, this excessively involved the state and education authorities in advancing a theistic viewpoint in violation of Lemon and the First Amendment’s establishment clause. 14. The Court has also said that judges seeking to protect the fair trial interests of defendants must have a very high justification before they may restrict what the … may publish. 15. The OLC … argued that the proper mode of interpretation of Article V was to “provide a clear rule that is capable of mechanical application, without any need to inquire into the timeliness or substantive validity of the consensus achieved by means of the ratification process.” 16. Ultimately, the Supreme Court ruled that the individuals who brought suit lacked standing to do so, because there was no evidence that they had been negatively affected by the gathering of intelligence … collected about their actions. 17. While the highly contentious political debate over whether to recognize same-sex marriage in the law is relatively recent, the … of two persons, both or one of whom are not heterosexual, antedates the issue, as it was not uncommon for a gay man and a 38

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lesbian to marry each other so as to pass as “normal” for family, work, or other social purposes, especially during the McCarthy era of the 1950s, when homosexual persons were sought out and dismissed from government service. 18. Schools should be able to teach courses about the history of religion or comparative religion, as long as the … does not promote religion. 19. In many jurisdictions, judges must first deal with pretrial publicity by questioning the jurors carefully about their knowledge of the case, by sequestering the jury, or by moving the trial to another location in order to find a jury pool that has not been exposed to too much … coverage. 20. The Tinker standard – protecting student speech except when clearly disruptive of the school’s educational mission – was not the only … for deciding school speech cases. TASK V. Make up word combinations to discuss the government created under the new Constitution: 1) legislative, executive, and judicial 2) executive 3) quasi-judicial 4) drastically limited 5) state 6) state’s 7) one supreme 8) the lower, the upper 9) a bicameral 10) unanimously elected 11) unconditional 12) an equal

a) branches b) jurisdiction c) tribunal d) house e) veto power f) legislature g) departments h) legislatures i) president j) representation k) bodies l) vote 39

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TASK VI.  Use the missing prepositions (on, over, to, for, in, by, to, in) in the following phrases to discuss the composition and functions of the new legislature: 1) to legislate … all areas 2) to be apportioned … the basis of population 3) to have equal representation … 4) to remove … impeachment 5) to be referred … committees … 6) to appoint … a committee 7) to preside … the Convention’s deliberations TASK VII.  Use reference books or Glossary to explain the following: 1) direct taxation; 2) unconditional; 3) veto power; 4) quasi-judicial bodies. TASK VIII.  Find the words in bold type in the text and replace them by their synonyms where possible: 1) to credit with – believe, consider, ascribe to a person; 2) to credit for – bring honor, esteem to; 3) to draft – draw up, design, construe; 4) to revise – adapt, change, amend, modify, alter, review, transform; 5) ultimately – finally, eventually, at last; 6) nominee – candidate; 7) to constitute – make up, form up; 8) to resemble – be or look like, take after, be similar to, appear like; 9) to empower – grant, authorize, permit; 10) to underscore – accentuate, bring out, italicize, stress, underline, emphasize; 40

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11) to persuade – convince, talk smb into smth; 12) to convince – prove, persuade, assure; 13) to prompt – instigate, arouse, provoke, inspire; 14) palatable – agreeable, savory; 15) rival – competitor, emulator; 16) endorsement – support, sanction, approval, confirmation. 17) bias – influence, prejudice. TASK IX.  Translate the following sentences: 1. Washington emerged out of formal retirement from public life to serve as a member of the Virginia delegation, persuaded to do so despite personal doubts about the chances for the Convention’s success. 2. Though he gave only one brief speech during the four months of the Convention, his presence alone was assurance that many Americans would find the Constitution palatable. 3. His acceptance of the office, his endorsement of the Constitution, and his signing of that document and the Convention’s letter transmitting the Constitution to the Confederation Congress were essential contributions to the ultimate success of the ratification campaign. 4. Furthermore, Washington’s silent dignity and reserve in presiding over the Convention’s deliberations helped to preserve the delegates’ sense of the seriousness of their task and to hold the Convention together. TASK X. Use the text to complete the chart about the plans offered at the convention: STATE Virginia plan New Jersey plan South Carolina plan

AUTHOR(S)

MAIN IDEAS

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TASK XI.  Comment on Madison’s words: “Constitution was not like the fabled goddess of wisdom the offspring of a single brain [but] ought to be regarded as the work of many heads and many hands.”

Text 3 “We the People of the United States” Originally, those words referred to little more than the ratifiers of the Constitution. But in the nearly two centuries since 1787, numerous amendments have given the phrase new meaning, so that now it signifies all Americans. In the draft of the Constitution first proposed, the Preamble – closely modeled on the introductory statement of the Articles of Confederation – included no statement of purposes and carefully identified each of thirteen states in the new Union. However, because the Constitutional Convention had decided that the Constitution would go into effect upon being ratified by nine states, rather than all thirteen, it seemed foolish to list all the states. Anyway, it was by no means clear which states would accept or reject the new charter. So Gouverneur Morris of Pennsylvania artfully evaded the issue by using the shorthand designation “We the People of the United States.” Although Patrick Henry of Virginia subsequently denounced the wording of the Preamble in his state’s ratifying convention, demanding to know who the people of the United States were, no delegate to the Convention found fault with the revised wording: We the People of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, 42

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do ordain and establish this Constitution for the United States of America. At the time the Constitution was being written, each state had adopted qualifications for voting that excluded many Americans from the political process. The qualifications limited the right to vote to those who could show that they had sufficient property – either in cash or real property – to entitle them to vote. Many states also restricted voting to those who took an oath subscribing to certain religious doctrines, such as a belief in God, or in God and Jesus Christ, or in the Christian religion. Almost nobody even conceived that anyone but sufficiently wealthy white men would vote, and restrictions on who could hold office in the states were even more stringent. The Framers of the Constitution refused to impose similar religious “test oaths” or property qualifications for holding federal positions such as member of the House of Representatives. But they provided that voting qualifications for election to the House would be the same as those set by the states for electing the “popular” branch of their legislatures. Even this provision – which made the Constitution the most liberal and democratic government charter in the world – nevertheless excluded many Americans. As the Constitution settled into use over the next two hundred years and amendments were added, Americans whom the Framers never dreamed would take part in American politics were included in the national political community. For example, the Fifteenth Amendment, ratified in 1870, guaranteed blacks, most of whom were newly freed slaves, the right to vote. Under the Nineteenth Amendment, ratified in 1920, the Constitution finally recognized women’s right to vote – a right that had been recognized in twelve states by 1914. In 1961, the Twenty-third Amendment extended the right to vote in presidential elections to residents of the District of 43

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Columbia – which would have amazed the Framers, who never anticipated that the seat of government would grow to become one of the ten largest cities in the nation, with hundreds of thousands of residents who were effectively disenfranchised, because they did not live in a state. In 1964, the Twenty-fourth Amendment – by abolishing the poll tax – rejected once and for all the old doctrine that a person had to demonstrate some “stake” to be allowed to vote. Finally, in 1971, the Twenty-sixth Amendment guaranteed the right of eighteen-year-olds to vote in federal, state, and local elections. Before this amendment was passed, each state was free to establish its own minimum voting age because the federal Constitution did not do so. Thus, before 1971, while eighteenyear-olds could vote in Georgia and Kentucky, nineteen-yearolds in Alaska and twenty-year-olds in Hawaii, most states had set their minimum voting age at 21. Thus, two centuries later, “We the People of the United States” means far more than it did in 1787 – and the United States is far more than ever a democracy. NOTES TO THE TEXT Poll tax – a fixed tax levied on each person within a jurisdiction. The 24th Amendment prohibits the federal and state governments from imposing poll taxes as a condition for voting. – Also termed per capita tax; capitation tax; capitation; head tax. Gouverneur Morris (1752–1816) – an American statesman, a Founding Father of the United States, and a native of New York City who represented Pennsylvania in the Constitutional Convention of 1787. He was a signatory to the Articles of Confederation. Morris was also an author of large sections of the Constitution of the United States and one of its signers. He is widely credited as the author of the document’s Preamble, and has been called the “Penman of the Constitution.” In an era when most Americans thought of themselves 44

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as citizens of their respective states, Morris advanced the idea of being a citizen of a single union of states. Patrick Henry (1736–1799) – an American Attorney, planter and politician who became known as an orator during the movement for independence in Virginia in the 1770s. A Founding Father, he served as the first and sixth post-colonial Governor of Virginia, from 1776 to 1779 and from 1784 to 1786. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE vocabulary to signify, to evade, designation, to denounce, tranquility, posterity, to ordain, to disenfranchise TASK I.  a) Insert the missing words from the list above into (1–8); b) Translate the rest (9–25), use the GLOSSARY: 1. As a result of the voting reform some categories of voters who were … got the right to vote. 2. The king … that the feast should be prepared. 3. Everybody enjoyed the … of the scene. 4. Japan … the Washington treaty about the size of navies. 5. We must preserve these songs for … . 6. If you try to … paying taxes, you risk going to prison. 7. Her official … is Systems Manager. 8. Recent changes in climate may … that global warming is starting to have an effect. 9. The school district, by its control of the graduation ceremony, and the theoretically required nature of this oncein-a-lifetime opportunity, places public and peer pressure on students to stand and maintain silence which may signify their participation or approval. 45

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10. Hamilton stated that “in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” 11. The point is made more clearly in Justice Scalia’s concurrence, in which he denounces all forms of nonretroactivity as “the handmaid of judicial activism.” 12. Because the amending process was intentionally made to be difficult, of the 10,000 amendments proposed, only 33 have received approval by both the House and Senate, and just 27 have been ratified by the states. The amendments make a statement to the world and to posterity about what governmental principles the United States most cherishes. 13. Preemption of state law by federal statute or regulation is not favored in the absence of persuasive reasons – either that the nature of the regulated subject matters permits no other conclusion, or that the Congress has unmistakably so ordained. 14. The Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints. 15. The last cluster – which includes the Twenty-third, Twenty-fourth, and Twenty-sixth Amendment – gave the vote in presidential elections to the disenfranchised and predominantly black citizens of the District of Columbia, to men and women too poor to pay poll taxes or any other kinds of levy as a prerequisite to suffrage, and to 18-year-olds, respectively. 16. The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power. This circumstance does not, however, of itself signify that the States were expected to participate in the power thus granted Congress, subject only to the operation of the supremacy clause. 46

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17. Among the acts for which loss of citizenship is prescribed are (1) obtaining naturalization in a foreign state, (2) taking an oath of allegiance to a foreign state, (3) fleeing or remaining outside the United States in wartime or a proclaimed emergency in order to evade military service. 18. The designation of the executive as the “President of the United States” was made in a tentative draft reported by the Committee on Detail and accepted by the Convention without discussion. 19. Whether the “licensed” trade shall be permitted at all is a question for decision by the State. This, nevertheless, does not signify that Congress may not often regulate to some extent a business within a State in order to tax it more effectively. 20. Where the right to vote has been restricted, the principle is used to advocate universal suffrage, thereby broadening the electoral base to include everyone, particularly minorities and all others who are disenfranchised. 21. In areas that the 1964 Civil Rights Act did cover, many employers and unions were able to evade portions regarding job discrimination. 22. The Court wrote that States may enact legislation touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state law. 23. The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word “establish” – did it confer upon Congress the power to construct post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and post roads? As late as 1855, Justice McLean stated that this power “has generally been considered as exhausted in the designation of roads on which the mails are to be transported.” 47

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24. Muckraking journalists – a term that Theodore Roosevelt applied to investigative journalists in 1906 – raised the alarm that wealthy individuals were bribing legislatures to win Senate seats, where they protected special interests rather than the general public. In a series of magazine articles that ran under the title of “The Treason of the Senate,” the muckraker David Graham Phillips denounced the senators as “perjurers,” “bribers,” and “thieves.” 25. “I think that the Constitution of the thirteen states was made, not merely for the generation which then existed, but for posterity; undefined, unlimited, permanent, and perpetual – for their posterity, and for every subsequent State which might come into the Union, binding themselves by that indissoluble bond.” – Henry Clay, Senate speech, February 6, 1850. TASK II.  a) Match the verbs 1) disenfranchise; 2) discharge; 3) disbar; 4) disallow; 5) discount; 6) disclose; 7) disinherit to their definitions: a) to make legal arrangements so that your close relative will not receive any of your money or property when you die; b) to no longer allow someone to have the right to vote; c) to officially stop a lawyer from doing any legal work; d) to say officially that something cannot be accepted because it is illegal or not allowed by the rules; e) to consider that something is not important, possible or likely; f) to be officially allowed or forced to leave an institution such as a hospital, a prison, or the army; g) to give information to people especially the information that is revealed. b) Use the GLOSSARY to translate the following sentences: 1. The phrase “due process of law” first appeared in a statutory rendition of chapter 39 of Magna Carta in 1354. “No man of 48

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what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.” 2. The Fifteenth Amendment, ratified in 1870, prohibited denying someone the right to vote because of race. However, the Southern states soon undermined this amendment with a series of tactics, such as poll taxes and literacy requirements, that effectively disenfranchised their black citizens for another century. 3. In Rhode Island, the leaders of a popular movement protested that the state disenfranchised half of the men in the state (no women were eligible to vote) because the royal charter, which still served as the state’s constitution, allowed only freeholders (landowners) to vote. 4. The Court upheld the public disclosure provisions of the Federal Election Campaign Act (FECA), which required that both contributions and expenditures by candidates, political parties, and political committees be publicly disclosed. 5. Within weeks, in a private letter, the chief justice disclosed his view that if the Court had decided the McCardle case, it “would doubtless have held that his [McCardle’s] imprisonment for trial before a military commission was illegal.” 6. In 1938, it was reported that Democratic Party politicians had misused Works Progress Administration (WPA) funds and staff in order to influence the 1938 congressional elections. Upon investigation, it was disclosed that WPA employees had indeed used their positions to win votes for the Democratic Party. 7. In re Neagle, the Court held that “The Executive Power” included the power to assign a federal marshal to serve as the bodyguard to a Supreme Court justice and insulated the marshal from murder charges stemming from his discharge of that duty. This case expanded the scope of the implied powers of the executive branch through an expansive reading of the president’s 49

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duty to “take Care that the Laws be faithfully executed” (Article II, Section 3), confirming the existence of inherent executive prerogative power in domestic affairs. 8. Subsequently charged with murder by California, Neagle successfully sued for a writ of habeas corpus in the federal circuit court, which discharged him from California’s custody. The sheriff appealed to the Supreme Court. 9. The opinion of the Court, delivered by Justice Samuel Miller, held that Neagle, as an officer of the United States, could not be tried by California, and thus was properly discharged. 10. The Court’s general approach, some have argued, severely discounts the vital importance of allowing citizens to control the form, and therefore, potentially, the power and effectiveness, of their speech. 11. The Office of Legal Counsel of the Department of Justice prepared for the White House counsel an elaborate memorandum that disputed all aspects of the Dillon opinion. First, Dillon’s discussion of contemporaneity was discounted as dictum. 12. In personal reflection, Douglas had often said that one of his most shameful moments was his vote to uphold President Roosevelt’s relocation of Japanese Americans in Korematsu v. United States (1944), and one of his proudest moments was his vote to disallow President Richard Nixon to use executive privilege to keep the Watergate tapes from Congress in United States v. Nixon. 13. The Court generally disallows attempts to condition benefit eligibility on loyalty declaration, as it would have a chilling effect on free speech. 14. Lawyer may not be disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding. 15. Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority, to admit and disbar attorneys. 50

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TASK III.  Add the words to complete the passage that follows: a) opponents; b) votes; c) prosecute; d) proceedings; e) Anti-Federalists; f) secret; g) Convention; h) inaccuracies; i) Constitution: The idea to keep the discussions 1) … was not surprising in the eighteenth century. Both legislative debates and 2) … were only rarely, if ever, open to the public in Britain and America, and legislatures did not hesitate to 3) … printers for publishing reports of debates and 4) … without permission. Such reports, it was widely and justly believed, frequently contained gross 5) … and should not benefit from even an implied legislative endorsement. Only rarely in the ratification process did 6) … of the new 7) … criticize the rule of secrecy. And neither the 8) … nor the few published criticisms of and comments on the rule during the 9) … appealed to any notion whatsoever about the public’s “right to know.” TASK IV.  Match the dates 1870, 1914, 1920, 1961, 1964, 1971 to the following events: • Women’s right to vote is recognized in twelve states. • Eighteen-year olds get the right to vote. • The right to vote in presidential elections is extended to residents of the District of Columbia. • Blacks are guaranteed the right to vote. • Women’s right to vote is recognized. • The poll tax is abolished. TASK V.  Match Voting Rights Amendments to their contexts below: Amendment 19 – Proposed June 4, 1919; Adopted August 18, 1920; Amendment 23 – Proposed June 16, 1960; Adopted March 29, 1961; 51

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Amendment 24 – Proposed September 14, 1962; Adopted January 23, 1964; Amendment 26 – Proposed March 23, 1971; Adopted July 1, 1971. A. Amendment … addresses the voting rights of a different group of people, namely the residents of the nation’s capitol: the District of Columbia. Before the enactment of this amendment, people living in Washington D.C. were forbidden to vote for the President or Vice President, as they had no representation in the electorate. Now, like the state with the smallest population, Wyoming, each election D.C. residents have three electoral representatives. B. The final act of Congress to date regarding voting rights and restriction is the adoption of Amendment … . At that time, massive protest movements against the Vietnam War had swept the nation’s colleges and universities. Prior to the adoption of this amendment, men were being drafted into service before they were even legal to vote. They were risking their lives without having any bearing on the actions of the men sending them to do so. Thus, the amendment set the voting age at 18, forbidding Congress or the States to set it any higher. C. Women finally got the right to vote in the United States with the … Amendment. This development came from the work of the Suffragettes in the Women’s Rights Movement of the early twentieth century. Famous Suffragettes Susan B. Anthony and Elizabeth Cady Stanton led the movement, and together they drafted the amendment which would become Amendment Nineteen: “Universal Suffrage.” D. The … Amendment further protects the votes of free men and women by forbidding Congress and the States from charging poll tax for voting. Similar to the Black Codes of the Reconstruction era, Poll Taxes were commonly used to 52

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keep black Americans from voting. The timing of Amendment Twenty-Four’s adoption coincides with the Civil Rights Movement of the 1960s, when attention was on the unequal treatment of black American citizens in many of the Southern states. TASK VI.  Make up sentences which would start as follows: 1. The ratifiers of the Constitution … . 2. Numerous amendments … . 3. The introductory statement … . 4. Statement of purposes… . 5. The wording of the Preamble … . 6. State’s ratifying convention … . 7. The revised wording … . 8. A belief in God, or in the Christian religion … . 9. More stringent restrictions (on ) … . 10. The Framers of the Constitution… 11. Voting qualifications for election to the House … . 12. Newly freed slaves … . 13. Residents of the District of Columbia … . 14. The seat of government … . 15. The most liberal and democratic government charter in the world … . 16. The right of eighteen-year-olds to vote … . 17. Federal, state, and local elections … . 18. Sufficient property … . 19. Property qualifications … . 20. Women’s right to vote … . 21. National political community … . 22. The minimum voting age … . TASK VII.  Make up word combinations to describe the extension of franchise: 53

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1) to propose 2) to list 3) to take 4) to hold 5) to impose (to set) to adopt 6) to guarantee, to recognize, to limit 7) to abolish 8) to pass

a) an amendment b) office, federal positions c) a draft d) all the states e) qualifications f) the right to vote g) an oath h) the poll tax

TASK VIII.  a) Add the prepositions: to, into, in, upon, to, from, into, with to the following phrases; b) Write a paragraph on the development of voting rights: 1) to go … effect … being ratified by … 2) to exclude … the political process 3) to find fault … 4) to restrict voting … 5) to settle … use 6) to extend the right to vote … 7) to vote … presidential elections TASK IX.  Find the highlighted verbs in the text and replace them by their synonyms where possible: 1) to refer to – to apply, to be about, to include, to cover, to relate; 2) to signify – to imply; 3) to go into effect – to go into force, to take affect, to effectuate; 4) to accept – to agree to, 5) to reject – to decline, to renounce, to repudiate; 6) to insure – to guarantee; 7) to secure – to guard, to make safe, to ensure; 8) to adopt – to pass, to make into law, to enact; 54

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9) to entitle – to authorize, to empower, to qualify; 10) to restrict – to limit, to restrain, to confine; 11) to conceive – to consider, to formulate, to speculate, to form a concept of; 12) to impose – to force upon, to fix, to set; 13) to recognize – to acknowledge the legality of; 14) to extend – to enlarge, to spread, to expand; 15) to anticipate – to foresee, to expect, to hope for, to hold in view, to have in prospect; 16) to abolish – to annul, to repeal, to prohibit, to quash, to invalidate, to do away with; 17) to pass – to enact, to make into law, to adopt. TASK X.  Use the GLOSSARY to translate the following sentences: 1. The Court has read the Preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States. 2. The Preamble expresses the purpose of the U.S. Constitution. The federal government gains its power from the people rather than from the states. The government exists to maintain peace at home, provide national defense, promote the well-being of the people, and protect their liberties. 3. On July 4, 1776, the Continental Congress declared America’s independence from Great Britain and converted the thirteen colonies into the United States of America. The Declaration of Independence’s justification for that break later influenced the language of the Preamble to the Constitution. 4. The Supreme Court held, in Jacobson v. Massachusetts (1905), that the Preamble itself is not a source of federal power or individual rights. 5. States’ rights advocates invoked the Preamble to support their contention that the Constitution was “ordained and established” 55

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by “We the People” of the states, and if the federal government exceeded its constitutional authority, the states as representatives of the people, not the federal courts, had the right to police the boundaries of federal power. 6. Through the Preamble, the Constitution and all laws stemming from it embodied the fundamental will of the people. 7. Although the Preamble does not grant or inhibit power, the phrase “We the People” represents one of the Constitution’s core values – the idea that power emanates from the people. 8. The purpose of the Preamble is to introduce the Constitution and the rationale behind it. 9. The Preamble to the United States Constitution, while notable for its prose, has no legally binding effect. 10. Although the Preamble is not a source of power for any department of the Federal Government, the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. 11. In five days, the committee produced a nearly final draft almost identical to the text of the Constitution that was subsequently approved. 12. Morris hoped that such a turn of phrase would protect the new government from embarrassment if a state chose not to ratify the Constitution. 13. But those who have studied the Convention’s work – and, indeed, Morris, Madison, and James Wilson themselves – also knew that those opening words underscored the nationalist thrust of the Constitution, that the new government would not be another mere confederation of states. 14. Anyway, it was by no means clear which states would accept or reject the new charter. 15. The qualifications limited the right to vote to those who could show that they had sufficient property – either in cash or real property – to entitle them to vote. 56

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16. Many states also restricted voting to those who took an oath subscribing to certain religious doctrines, such as a belief in God, or in God and Jesus Christ, or in the Christian religion. 17. Almost nobody even conceived that anyone but sufficiently wealthy white men would vote, and restrictions on who could hold office in the states were even more stringent. 18. The Framers of the Constitution refused to impose similar religious “test oaths” or property qualifications for holding federal positions such as member of the House of Representatives. 19. As the Constitution settled into use over the next two hundred years and amendments were added, Americans whom the Framers never dreamed would take part in American politics were included in the national political community. 20. In 1961, the Twenty-third Amendment extended the right to vote in presidential elections to residents of the District of Columbia – which would have amazed the Framers, who never anticipated that the seat of government would grow to become one of the ten largest cities in the nation, with hundreds of thousands of residents who were effectively disenfranchised, because they did not live in a state. 21. In 1964, the Twenty-fourth Amendment – by abolishing the poll tax – rejected once and for all the old doctrine that a person had to demonstrate some “stake” to be allowed to vote. 22. Thus, two centuries later, “We the People of the United States” means far more than it did in 1787 – and the United States is far more than ever a democracy. TASK XI.  Comprehension check: • Rephrase the Preamble to the US Constitution in plain English. • Justify the need for the constitutional amendments. • Is there a Preamble to the Constitution of your country? • Do you think the Preamble is important? 57

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TEXT 4 Ratification of the Constitution When the Constitutional Convention sent the Constitution to the Confederation Congress in late September 1787, controversy immediately broke out about whether Congress should recommend it to the states. Several members argued that the Convention had gone far beyond its assigned task and that the Constitution was a threat to liberty and to republican government; consequently, they said, either Congress should not transmit the Constitution at all or it should recommend against its adoption. James Madison, who was not only a member of the Confederation Congress from Virginia but also a just-returned delegate from the Constitutional Convention, successfully argued that Congress should merely send the Constitution to the states without comment, thus leaving to the people the decision whether or not to adopt the new form of government. The Convention had provided in Article VII that the Constitution should be ratified by the people of each state in conventions specially called for that purpose. The alternative would have been ratification by state legislatures. But the Convention delegates shrewdly recognized that the legislatures would probably reject the Constitution out of hand. So they adopted an idea first put forward in the Massachusetts Constitution of 1780: the constitutional ratifying convention – an affirmation of faith in the general public’s judgment. At the time there were no clearly organized political parties, though loose networks of like-thinking politicians existed across state boundaries. Supporters of the new Constitution quickly seized on the name Federalists and stigmatized their opponents by referring to them as Anti-Federalists – the implication being 58

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that many of them wanted to break up the Union into several regional confederacies. Though they fought back, the AntiFederalists could never rid themselves of the label. The ratification debates were marked by high-minded intellectual argument and no-holds-barred political maneuvers. In Pennsylvania, for example, there were not enough AntiFederal members of the state legislature to block the calling of a ratifying convention directly, but there were enough to deprive the legislature of a quorum if they all stayed home. The Federalist legislators angrily directed the sergeant at arms to locate and apprehend two Anti-Federal legislators, the minimum number needed to complete the quorum. Accompanied by a cheering mob, the sergeant at arms broke into a locked rooming house and seized the two men, who were held until their votes against calling a convention could be recorded. The ratification battle was conducted in the press, through broadsides and by pamphlets getting forth the arguments of both sides. The Letters of the Federal Farmer by Richard Henry Lee of Virginia was the most important Anti-Federalist publication. The most significant of the Federalist publications was The Federalist, a series of eighty-five newspaper essays written by John Jay, Alexander Hamilton and James Madison. The first five states to ratify – Delaware, Pennsylvania, New Jersey, Georgia and Connecticut – did so unanimously or by overwhelming majorities. Massachusetts proved far more difficult; the final vote for ratification (187 to 168) came about only after the Federalists suggested that their opponents prepare a series of proposed amendments to be affixed to the Constitution for consideration should it actually be ratified. Soon thereafter, Maryland and South Carolina ratified by wide margins. New Hampshire, on June 21, 1788, became the ninth state to ratify, thus putting the new constitution into operation under the terms of Article VII. But Virginia and New York, the 59

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largest and richest of all the states, had not yet taken action, and a nation without either or both could not survive. James Madison and Edmund Randolph led the fight for ratification in the Virginia convention. Opposing them were George Mason, who had refused to sign the Constitution, Richard Henry Lee, and above all Patrick Henry, the leading orator of his time. Henry and Madison battled for weeks, until Virginia finally was persuaded by the cogency of Madison rather than by the sometimes incoherent remarks of Henry. On June 25, before word of New Hampshire’s ratification arrived – but after adopting a twenty-article declaration of rights and twenty other amendments – Virginia’s ratifying convention adopted the Constitution by a vote of 89 to 79. Alexander Hamilton led the fight for ratification in New York, with the assistance of John Jay, the most respected Federalist political figure in the state. They wisely delayed the vote on ratification until news arrived of the ratifications of New Hampshire and Virginia. The Federalists then carried the day by a vote of 30 to 27, though New York’s ratification was conditional on the consideration of proposed amendments by the new Congress. North Carolina and Rhode Island failed at first to ratify the Constitution. North Carolina’s first ratifying convention chose to keep the state in a kind of abeyance, and Rhode Island refused even to authorize the election of such a convention. Congress at first declined to impose federal tariffs and other customs duties on goods entering the United States from Rhode Island and North Carolina. Then customs restrictions on goods from those states were passed in the summer and fall of 1789 – though only some minor restrictions were actually imposed, as a moratorium on imposing the others was adopted to encourage the two states to come into line. North Carolina was the first to relent; the state had always been less rigidly Anti-Federalist than had Rhode Island. In fact, 60

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North Carolina had sent a delegation to the Constitutional Convention and had appointed commissioners to observe closely the actions of the new government. Despite the expectations of Anti-Federalists, the United States seemed all too able to do without the two holdout states, and the campaign for a second constitutional convention failed. Eventually Federalists succeeded in calling a second ratifying convention, which met in November 1789. Its delegates adopted the Constitution, 194 to 77. Rhode Island proved far more stubborn, using excuses and delaying tactics. Congress’s implied threat to remove its moratorium on major trade barriers against the state gave impetus to the Rhode Island Federalists’ campaign to call a state ratifying convention. By then, the proposal to attach a bill of rights to the Constitution had removed one of Rhode Island’s main objections. The ratifying convention was finally scheduled to meet in May 1790 – though, worried that the convention might reject the Constitution, Providence and Newport, the state’s largest cities, threatened to secede if that did happen. The convention, however, did ratify the Constitution, by the narrow vote of 34 to 32. And so Rhode Island, one of the first states to declare its independence from England in 1776, became the last of the original states to ratify the Constitution. NOTES TO THE TEXT Federalist Party – a political party in early U.S. history advocating a strong central government, one of the first two political parties in the United States, and thus in the world. It originated, as did its opposition, the Democratic-Republican Party, within the executive and congressional branches of government during George Washington’s first administration (1789–1793), and it dominated the government until the defeat of President John Adams for reelection in 1800. Thereafter, the party unsuccessfully contested the presidency through 1816 and 61

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remained a political force in some states until the 1820s. Its members then passed into both the Democratic and the Whig parties. Richard Henry Lee (1732–1794) – an American statesman from Virginia best known for the motion in the Second Continental Congress calling for the colonies’ independence from Great Britain. He was a signatory to the Articles of Confederation and his famous resolution of June 1776 led to the United States Declaration of Independence, which Lee signed. He also served a one-year term as the President of the Continental Congress, and was a United States Senator from Virginia from 1789 to 1792. Edmund Jennings Randolph (1753–1813) – an American Attorney, the seventh Governor of Virginia, the second Secretary of State, and the first United States Attorney General. LANGUAGE PRACTICE AND COMPREHENSION CHECK

useful vocabulary controversy, affirmation, to rid oneself of, to stigmatize, implication, to seize on, to apprehend, cogency, to secede, to relent, holdout, impetus, to deprive (of) TASK I.  a) Match the words to their definitions: 1) controversy; 2) affirmation; 3) to rid oneself of; 4) to stigmatize; 5) implication; 6) to seize on; 7) to apprehend; 8) cogency; 9) to secede; 10) to relent; 11) holdout; 12) impetus; 13) to deprive (of) a) the assertion that something exists or is true; b) to take into custody; arrest by legal warrant or authority; c) the quality or state of being relevant, pertinent, to the point; d) dispute, debate concerning a matter of opinion; e) smth implied or suggested as naturally being inferred or understood; f) to clear or free oneself of something objectionable; g) to take advantage of promptly; 62

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h) to remove or withhold something from the enjoyment or possession of; i) to set some mark of disgrace, a stain or reproach as on one’s reputation; j) to soften in determination, to become more mild; k) 1) a person or a party who delays signing a contract in hope of gaining more favorable terms; 2) a person who declines to participate in a group activity or undertaking; l) impulse, stimulus; m) to withdraw formally from an alliance, federation or association, as from a political union. b) Use the GLOSSARY to translate the following sentences: 1. The Court, rather, has adopted an ad hoc balancing approach: “We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.” 2. The Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a non-petty offense deprived an accused of his right to trial by jury. 3. This “two term” idea began when George Washington voluntarily retired from the presidency after being elected twice and serving eight years. Thomas Jefferson seized on Washington’s action and, in a public letter, elevated it to a tradition that prevailed until Franklin D. Roosevelt ran for a third term in 1940. 4. Justice Harlan stated emphatically that to allow a statute such as Section 415 stand would create the risky situation of allowing the government to potentially seize on the “censorship of particular words as a convenient guise for banning the expression of unpopular views.” 5. In some situations, law-enforcement officials must use deadly force to apprehend or stop an individual. 63

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6. At stake in the Civil War was the survival of the United States of America as a single nation. Eleven Southern states, invoking the spirit of 1776, seceded from the Union in 1861 to form a nation they named the Confederate States of America. 7. The abortion controversy divides people into seemingly irreconcilable camps of those who sponsor family values and the rights of the unborn versus those who champion women’s individual rights and choice. 8. Government initiatives in medicine produced controversy about vaccinations, blood transfusions, and life-saving measures. Finally, ethnically diverse immigration produced urbanization patterns that heightened controversies over religious solicitation, religious displays in public places, and coercive religious expression in government-sponsored public forums. 9. The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. 10. Like all oft-repeated truths, the argument has in time lost something of its actuality and cogency. 11. The impetus for including the commerce clause in the Constitution was the economic turmoil that prevailed under the Articles of Confederation. 12. The impetus for the strict scrutiny standard came from Supreme Court Justice Harlan Fiske Stone’s ruling in the case United States v. Carolene Products Co. 13. Subsequent to the Georgia Supreme Court’s affirmation of his conviction and sentence, McCleskey’s lawyers filed a petition for habeas corpus review in the United States District Court. 14. The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President’s nominations, and such nominations fail whenever it rejects them. 64

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15. With regard to salaries, although there is no specific amount set for the president or vice president, Article II states that the president (and by implication the vice president) shall be compensated for services rendered; however, the amount of compensation shall remain constant during the term of office and that no other compensations may be received during this period. 16. Although the Supreme Court continued to clash with the Ohio Supreme Court over the contractual nature of the bank taxes, it became clear that the main issue at hand was not whether these taxes violated the contract clause. Rather, it had more to do with whether the state supreme courts had the final word over the construction of the contract clause and, by implication, the Constitution. 17. Classifications of citizens based solely on race are by their nature odious to a free people whose institutions are founded upon the doctrine of equality. Such classifications threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility. 18. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. 19. “Antlike persistency” is a patents slang expression which means the steady tenacity of a patent practitioner or applicant who tries to wear down the U.S. Patent and Trademark Office by prosecuting patent claims in the hope that the Office will eventually relent. 20. The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters. Although efforts in Congress have failed, 49 states have done so – 33 (plus the District of Columbia) 65

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by statute and 16 by court decision, with Wyoming the sole holdout. TASK II.  Match the phrasal verbs to their definitions; find them in the text and translate the sentences with them: 1) to break out as in: …controversy broke out… 2) to break up as in: …to break up the Union… 3) to break into as in: … broke into the locked house… a) to enter by force; b) to begin abruptly, arise; c) to divide into pieces, to put an end to. TASK III.  Match the words from the text to their synonyms: 1) immediately 2) to transmit 3) shrewdly 4) to get forth 5) to put into operation 6) under the terms of 7) fight 8) to sign 9) to come into line 10) eventually 11) significant

a) wisely b) finally c) to join the rest d) battle e) to put forward f) important g) to give effect h) to endorse i) important j) to pass k) according to the provisions of

TASK IV.  Make up new collocations with the words in bold type; identify the adjectives closest in the meaning to the adjective in the head phrase: 1) incoherent remarks – brief, passing, occasional casual, careless, tactless, derogatory, insulting, nasty, offensive, pointed, 66

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complementary, encouraging, innocent, critical, controversial, illogical, irrelevant, cynical, odd, silly, funny, rude, racist, sexist, defamatory; 2) overwhelming majority – handsome, huge, large, vast, massive, substantial, comfortable, decisive, clear, narrow, slender, slight, slim, tiny, wafer-thin, ten-seat, three-toone, two-thirds, absolute, outright, overall, simple, working, parliamentary, government, Conservative, Labour, Republican, Democratic, etc., necessary, requisite; 3) loose networks – extensive, large, vast, wide, widespread, elaborate, intricate, dense, global, local, national, worldwide, strong, formal, informal, well- or poorly-organized; 4) like-thinking politicians – leading, prominent, outstanding, senior, experienced, influential, astute, clever, shrewd, corrupt, professional, left-wing, Labour, Conservative, etc.; 5) wide margins – comfortable, considerable, greater, huge, large, wide, narrow, slim, small, clear, safe; 6) cheering mob – angry, hostile, unruly, aggressive. TASK V.  Use the text to complete the following statements: 1. Controversy immediately broke out … . 2. Convention had gone far beyond … . 3. Congress should recommend against … . 4. James Madison successfully argued that … . 5. According to Article VII of the Constitution… 6. State legislatures could have rejected the Constitution out of hand if … . 7. The opponents of the new Constitution … . 8. The ratification campaign … . 9. Anti-federal legislators in Pennsylvania … . 10. The sergeant at arms … . 11. The new Constitution went into force … . 67

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TASK VI.  Complete the paraphrased sentences below without changing the original sense: 1. The Convention had provided in Article VII that the Constitution should be ratified by the people of each state in conventions specially called for that purpose. In compliance with Article VII of the Constitution … . 2. New Hampshire, on June 21, 1788, became the ninth state to ratify, thus putting the new constitution into operation under the terms of Article VII. The new Constitution took effect when … . 3. In Massachusetts the final vote for ratification came about only after the Federalists suggested that their opponents prepare a series of proposed amendments to be affixed to the Constitution for consideration should it actually be ratified. Anti-Federalists of Massachusetts agreed to vote for ratification under the condition that … . 4. But Virginia and New York, the largest and richest of all the states, had not yet taken action, and a nation without either or both could not survive. A new nation could survive … . 5. Alexander Hamilton led the fight for ratification in New York, with the assistance of John Jay, the most respected Federalist political figure in the state. They wisely delayed the vote on ratification until news arrived of the ratifications of New Hampshire and Virginia. New York ratified the Constitution due to the efforts of … . The vote on ratification was taken when … . 6. New York’s ratification was conditional on the consideration of proposed amendments by the new Congress. The Constitution was ratified by New York providing … .

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TASK VII.  Translate the following passages: 1. James Madison, who was not only a member of the Confederation Congress from Virginia but also a just-returned delegate from the Constitutional Convention, successfully argued that Congress should merely send the Constitution to the states without comment, thus leaving to the people the decision whether or not to adopt the new form of government. 2. So they adopted an idea first put forward in the Massachusetts Constitution of 1780: the constitutional ratifying convention – an affirmation of faith in the general public’s judgment. 3. The ratification debates were marked by high-minded intellectual argument and no-holds-barred political maneuvers. 4. At the time there were no clearly organized political parties, though loose networks of like-thinking politicians existed across state boundaries. 5. Supporters of the new Constitution quickly seized on the name Federalists and stigmatized their opponents by referring to them as Anti-Federalists – the implication being that many of them wanted to break up the Union into several regional confederacies. 6. Soon thereafter, Maryland and South Carolina ratified by wide margins. TASK VIII.  a) Characterize the following political leaders as Federalists or Anti-Federalists; b) Describe their role in the ratification campaign: 1) James Madison 2) Richard Henry Lee 3) John Jay 4) Alexander Hamilton 5) Edmund Randolph 6) George Mason 7) Patrick Henry 69

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TASK IX.  a) Use the text to list the states in the order of their ratification of the Constitution: 1) New Hampshire, 2) North Carolina, 3) South Carolina, 4) Virginia, 5) Pennsylvania, 6) Rhode Island, 7) Connecticut, 8) New Jersey, 9) New York, 10) Delaware, 11) Maryland, 12) Georgia, 13) Massachusetts. b) Describe the ratification processes in some of the states; name their political leaders where possible. c) Add states to the following vote results: STATE

VOTE RESULTS 187 to 168 89 to 79 30 to 27 194 to 77 34 to 32

TEXT 5 The first national government under the Constitution Once the Constitution was ratified the new government was set up only after a great deal of frustrating delay and political maneuvering. It took the better part of a year, once New Hampshire became the critical ninth state to ratify the Constitution in June 1788, before the new government began to become a reality. First of all, the Confederation Congress, still in existence and meeting in New York’s City Hall, had to set dates for the 70

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election of representatives and for the state legislatures to choose presidential electors. Then it had to select a new national capital, make sure senators were elected by the state legislatures, and finally, see that a president and vice president were selected by the electors. These formidable tasks were set out by the Constitutional Convention in a resolution adopted and sent to the Confederation Congress together with the completed Constitution. They were made complicated by the AntiFederalist campaign for a second constitutional convention and by the “wayward sisters,” North Carolina and Rhode Island, which did not ratify the Constitution until well after the various branches of government began operating. One of the earliest disputes centered on where the new national capital should be located. First, should the temporary capital, in New York, be moved, and if so, where to? And second, where should the permanent capital be? The debate raged between northern states that wanted to retain New York as the capital and southern states that wanted it moved south, preferably to at least Philadelphia. Eventually, a compromise was worked out. New York, the nation’s capital since 1785, would continue as the temporary capital. A site to be determined later but located on the Potomac River between Maryland and Virginia would become the probable location of the permanent capital. As for the elections to be held under the Constitution, the problem was complicated. It was up to the state legislatures to call for elections for the House, but there was no uniformity in how they went about it. Some did it by a general at large vote, others by district voting. The states also chose presidential electors in their own individual ways – several by popular vote, some through their legislatures, some by a combination of both. And because of delays caused by Anti-Federalist opposition to the Constitution, New York never did pick electors for the first presidential election. 71

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The choice of senators was as varied: by joint ballot of both houses in the legislatures of Virginia, Maryland, New Jersey, and Delaware; by ballot in each house in New Hampshire, Massachusetts, and New York; and by the vote of the one-house legislature in Pennsylvania. The methods used in Connecticut, South Carolina, and Georgia are not known – no records were kept. George Washington was the unanimous choice of the electors as the first President, but he had been a far from aggressive candidate for the office. In fact, he served only because he saw it as his duty. But controversy did surround who would be the first Vice President. Washington was a Virginian, so clearly a northerner was needed for balance. The choice narrowed to two men from Massachusetts – John Hancock and John Adams, both signers of the Declaration of Independence in 1776. At first it appeared that Adams would probably be named chief justice of the Supreme Court, leaving the vice presidency to Hancock. However, Hancock’s vacillations in support of the new Constitution and his attitude favoring amendments to it began to turn supporters against him. Adams, who enjoyed a reputation for integrity and ability, became the favored choice. But it was far from smooth sailing. Alexander Hamilton and other Federalists tried to keep him from getting elected by too great a vote. For one thing, they wanted to solidify their influence with Washington and to block Adams because he envisioned that the vice president would be a sort of “prime minister” of the Senate. Their campaign was successful: Adams failed to get a majority of second-place votes and his feelings were deeply hurt. However, he did win a plurality and thus became the first vice president. It took weeks for the new House of Representatives and the Senate to form quorums needed to open business, count the electoral votes, and get the new government under way. In the meantime, the old executive departments of the Confederation 72

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Congress continued in existence. The new Congress was scheduled to begin March 4, 1789, but each house continued to adjourn from day to day until the House finally convened on April 1 and the Senate on April 6. On April 6 the electoral votes were counted by both houses and the Senate elected John Langdon of New Hampshire president pro tempore – that is, for the time being – until John Adams could reach New York to head the Senate. Washington was sworn into office on April 30, 1789. The oath was administered by Robert R. Livingston, chancellor of the state of New York. The business of the new Congress next focused on creating a system of customs duties and establishing new departments of State, the Treasury, and War, each to be headed by a secretary. Then it enacted, and Washington signed into law, the Judiciary Act of 1789, one of the oldest and most important laws in American history. It created a Supreme Court with a chief justice and five associate justices, a system of district courts, and a system of circuit courts. The act also provided that in certain instances litigants could appeal from a state’s highest court to the U.S. Supreme Court – a provision that gave the Court ultimate authority to enforce the Constitution against the states. The first chief justice – chosen by Washington – was John Jay of New York, who had been secretary for Foreign Affairs under the Articles of Confederation. Washington also named all his colleagues. The justices met for the Court’s first session on February 2, 179 NOTES TO THE TEXT Federalists – the supporters of the proposed Constitution called themselves “federalists.” Their adopted name implied a commitment to a loose, decentralized system of government. In many respects “federalism” – which implies a strong central government – was the opposite of the proposed plan that they supported. A more 73

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accurate name for the supporters of the Constitution would have been “nationalists.” Anti-Federalists – a group of diverse individuals that formed to oppose the ratification (passage) of the new federal Constitution in 1787. They were united by their fear of a powerful and potentially oppressive national government, a government dominated by wealthy aristocrats, and the absence of a bill of rights in the new Constitution. John Hancock (1736–1793) – a merchant, smuggler, statesman, and prominent patriot of the American Revolution. He served as president of the Second Continental Congress and was the first and third Governor of the Commonwealth of Massachusetts. He is remembered for his large and stylish signature on the United States Declaration of Independence, drawn so that King George III would be able to read the Hancock name; so much so that the term “John Hancock” has become, in the United States, a synonym for a signature. John Langdon (1741–1819) – a politician from Portsmouth, New Hampshire, and one of the first two United States senators from that state. Langdon was an early supporter of the Revolutionary War and served in the Continental Congress. After being in Congress for 12 years, including serving as the first president pro tempore of the Senate, Langdon became governor of New Hampshire. He turned down a nomination for vice presidential candidate in 1812, and later retired until his death in 1819. Robert R. Livingston (1746–1813) – an American lawyer, politician, diplomat from New York, and a Founding Father of the United States. He was known as “The Chancellor,” after the office he held for 25 years. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE vocabulary to set out, to rage, vacillation, integrity, to retain, to adjourn, to convene, to envision 74

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TASK I.  a) Match the following words to their definitions: 1) to set out; 2) to rage; 3) vacillation; 4) integrity; 5) to retain; 6) to adjourn; 7) to convene; 8) to envision a) to suspend the meeting of to a future time or to another place; b) to come together; assemble, meet usually for some public purpose; c) to picture mentally, esp. some future event or events; d) soundness of and adherence to moral principle and character; uprightness, honesty; e) to proceed, continue, or prevail with great violence; f) to continue to hold or have; g) to define, to describe; h) a state of being indecisive, irresolute, hesitant. b) Add the above words to complete the following sentences: 1. The Lucas fact situation, in which government regulation renders land entirely without economic use, will doubtless prove rare, as the Court itself … on more than one occasion. 2. The Court assumed that the State had a valid interest in preserving the flag as a national symbol, but whether that interest extended beyond protecting the physical … of the flag was left unclear. 3. On July 26, the convention … for 10 days, so a committee of five could put into some form the resolutions that had been approved in the previous month. 4. The Supreme Court held that a fundraiser who … 85 percent of gross receipts from donors, but falsely represented that “a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud. 5. The debate … between northern states that wanted to retain New York as the capital and southern states that wanted it moved south, preferably to at least Philadelphia. 75

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6. Although scheduled … on May 14, 1787, it was not until May 25 that enough delegates were present to proceed with the organization of the Convention. 7. The recent decisions voiding classifications have not clearly … which standard they have been using. 8. By his vigorous opinions in McCulloch v. Maryland and Gibbons v. Ogden, Marshall gave the principle a vitality which survived a century of … under the doctrine of dual federalism. c) Use the GLOSSARY to translate the following passages: 1. By 1984, movement for a balanced budget amendment (BBA) at the state level found 32 states that had passed resolutions calling for a constitutional convention to debate a BBA, two shy of the required 34 states. Critics warned that, if convened, a constitutional convention could consider amendments other than a BBA, and interest in a convention dissipated. Three states – Alabama, Florida, and Louisiana – have rescinded their resolutions since 1990. 2. The vacillation of Chief Justice Marshall between the Bollman and Burr cases and the vacillation of the Court in the Cramer and Haupt cases leave the law of treason in a somewhat doubtful condition. 3. The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller (1973), but not to justify requiring one to forgo one election before changing parties. 4. The oath requirement was valid as “a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty” and as being “reasonably designed to protect the integrity and competency of the service.” 5. The First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness and 76

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because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the fact-finding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. 6. Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. 7. On April 6, the Court adjourned without deciding the McCardle case. Justices Robert Cooper Grier and Stephen Johnson Field stated that the Court should have reached a decision. 8. If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension or office of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them. 9. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. 10 Where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the measure is determined by the power of Congress to regulate the subject matter. TASK II.  a) Combine the adjectives and the nouns; b) Use the word combinations to describe the first actions of the new government: 77

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1) frustrating 2) formidable 3) complicated 4) aggressive 5) completed 6) unanimous 7) ultimate 8) foreign

a) authority b) Constitution c) choice d) problem e) delay f) affairs g) tasks h) candidate

TASK III.  Combine the verbs and the nouns; and use the word combinations to describe the elections to the national legislature or presidential elections in your country: 1) to cause 2) to form (complete the) 3) to hold 4) to keep 5) to favor 6) to enjoy 7) to choose, select, pick 8) to count 9) to enact 10) to enforce 11) to set 12) to adopt

a) records b) a reputation c) a resolution d) the electoral votes e) quorum f) the Constitution g) delays h) dates for i) electors j) a law k) elections l) amendments

TASK IV.  Add the following prepositions to complete the phrases below; use them to describe the formation of the government in your country: 78

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a) into; b) against; c) out; d) under; e) from; f) in; g) into; h) out; i) for 1) to set … (tasks) 2) to turn (supporters) … 3) to call … elections 4) to sign … law 5) to work … a compromise 6) to be sworn … office 7) still … existence 8) to be far … 9) to get … way TASK V.  Match the following notions to their definitions: 1) unanimous vote 2) plurality vote 3) ballot 4) joint ballot 5) customs duties 6) district courts 7) circuit courts 8) pro tempore (lat.) a) first-past-the-post voting b) a vote in which every voter concurs c) a vote by legislators of both houses sitting together as one body d) a system of choosing officers by a recorded vote, usu. by marking a paper e) A tax levied on an imported or exported commodity; esp., the federal tax levied on goods shipped into the United States f) a court usu. having jurisdiction over several counties, districts, or states, and holding sessions in all those areas 79

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g) a trial court having general jurisdiction within its judicial district h) for the time being; appointed to occupy a position temporarily TASK VI.  Complete the following sentences: 1. The Confederation Congress was empowered by the Constitutional Convention to … . 2. Northern and southern states could not come to an agreement … . 3. North Carolina and Rhode Island ratified the Constitution … . 4. Only two candidates …. 5. Both John Hancock and John Adams … . 6. John Adams was expected to … . 7. John Hancock’s supporters turned away from him because … . TASK VII.  Reading comprehension check – The first national government under the Constitution: 1. Explain why North Carolina and Rhode Island are called “wayward sisters.” 2. Explain how “New Hampshire became the critical ninth state to ratify the Constitution.” 3. Describe how Presidential electors were elected. 4. Describe the election of Representatives. 5. Describe the election of Senators. 6. What did John Hancock and John Adams have in common? 7. Name all governmental offices mentioned in the text. 8. Describe the tactics chosen by Federalists in electing John Adams the first vice president. TASK VIII.  a) Describe the functions and powers of the following American governmental officers and departments: 1) The Supreme Court 80

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2) Chief Justice of the Supreme Court 3) Congress (the national legislature ) 4) Senate (the upper house) 5) House of Representatives (the lower house) 6) a Secretary of State 7) the Treasury 8) a Secretary of War b) Name governmental bodies and officers exercising similar powers in your country. TASK IX.  Use the GLOSSARY to translate the following passages: 1. It took the better part of a year, once New Hampshire became the critical ninth state to ratify the Constitution in June 1788, before the new government began to become a reality. 2. The tasks before the Confederation Congress were made complicated by the Anti-Federalist campaign for a second constitutional convention and by the “wayward sisters,” North Carolina and Rhode Island, which did not ratify the Constitution until well after the various branches of government began operating. 3. As for the elections to be held under the Constitution, the problem was complicated. 4. It was up to the state legislatures to call for elections for the House, but there was no uniformity in how they went about it. Some did it by a general at large vote, others by district voting. 5. George Washington was the unanimous choice of the electors as the first President, but he had been a far from aggressive candidate for the office. 6. But controversy did surround who would be the first vice president. Washington was a Virginian, so clearly a northerner was needed for balance. 81

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7. But it was far from smooth sailing. 8. Alexander Hamilton and other Federalists tried to keep Adams from getting elected by too great a vote. 9. For one thing, they wanted to solidify their influence with Washington and to block Adams because he envisioned that the vice president would be a sort of “prime minister” of the Senate. 10. Adams failed to get a majority of second-place votes and his feelings were deeply hurt. However, he did win a plurality and thus became the first vice president. The following issues will help you answer the exam topic THE HISTORY OF THE AMERICAN CONSTITUTION and write your essay: 1. British administration of colonies. 2. Colonial constitutions and governments. 3. Deliberations at the Constitutional Convention. 4. Ratification process. 5. Development of the Constitution.

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UNIT II AMERICAN CONSTITUTIONALISM: ORIGINS AND PRINCIPLES

TEXT 1 THE ORIGINS OF AMERICAN CONSTITUTIONALISM What is American about the Constitution? Just as Americans have no monopoly on constitutional government today, the Founders cannot take credit for everything in their own constitution. Britain taught America the core tradition of constitutionalism. The ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as distant progenitors of the modern construction of the term. A host of medieval and Renaissance thinkers contributed to the constitutional tradition upon which Americans built, as did many writings during the seventeenth and eighteenth centuries in England, Scotland, and France. Still, the American synthesis was a unique blend of these intellectual influences and their own inventions. First of all, there is the matter of form. Britain had a constitution, but the Americans put everything of constitutional status in a single written document. It is difficult to overestimate the significance of this practice. The Constitution is thus far more accessible to the average citizen as opposed to an educated elite. Although over time precise meanings will be buried in 83

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Supreme Court cases, the basic principles of the political system are readily available to the populace. This aspect of its form therefore, reflects a strong commitment to broad citizen participation then and in the future. In 1787, Americans assumed that a constitution should take this form, even though they were overwhelmingly of British descent. Other aspects of the Constitution’s form are worth noting. Separate sections define the three branches of government, and the legislative branch is discussed first, as it always is in American constitutions. There is a preamble, but it does not have constitutional status. There is a bill of rights separate from the main body of the constitution but also considered part of it. Americans had a habit of making a bill of rights part of their fundamental law, yet in various ways it was separate from the description of institutions. These and other aspects of form derive from American practice rather than from foreign theories. A second category has to do with the institutions outlined in the national Constitution. Bicameralism was hardly an American innovation, but the American version was neither derived from nor justified by the British precedent. The explicit separation into three branches of government with coordinate powers is not British in origin. The states are mentioned throughout. In order to determine who is eligible to elect congressmen, senators, or the president, one must consult the state documents. To this day, the role and functions of state governments in America are a matter of some puzzlement to many Europeans. Americans did not invent federalism, but they adopted it with an alacrity missing in nonmigrating British. The use of different constituencies for electing various public officials departs from the British model, as does the use of different terms of office. The elaborate system of checks, the explicit enumeration of governmental powers, and the creation of an independent judiciary are some of the other elements of institutional design not found in the British model. 84

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A third category involves theoretical principles. Although never explicitly mentioned in the United States Constitution, they underlie and tie together the entire document. These are the principles of a deliberative process, federalism, republicanism, the extended republic, consent, liberty, and a mixed regime. The British were no strangers to liberty, consent, deliberative processes, or mixed regimes. The Americans, however, pursued these principles with a vengeance that transformed them. A fourth category has to do with assumptions at variance with those underlying the British political system as it existed in the late eighteenth century. The most dramatic involved the way Americans viewed themselves as a people. They firmly believed that on their own authority they could form themselves into a community, create or replace a government to order their community, select and replace those who hold government office, determine which values bind them as a community and thus which values should guide those in government when making decisions for the community, and replace political institutions at variance with these values. The Americans’ rather complete notion of popular sovereignty was also radical in that their concept of “the people” was a broad one. England was the envy of Europe for its liberal institutions, but the least liberal American state in the 1780s, Georgia, enfranchised four or five times the percentage of the population as held the franchise in England. England would have had to enfranchise ten times as many people as it did in the 1780s to match the average in its former colonies. There was nothing else in Europe to compare with the American practice of popular sovereignty. Nor was this a recent phenomenon in America. For all the resonance with Locke’s ideas, many of the principles and assumptions of American constitutionalism were operative before Locke published his Second Treatise on Civil Government. In temporal terms, it 85

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makes more sense to call Locke an American than it does to call America Lockean. Sorting out the influences on the origin of the form, institutions, and underlying principles and assumptions of American constitutionalism, we could take the anthropologists’ approach. They have taught us that ritual precedes myth that practices develop and are then justified. Thus we should examine political practices and events out of which constitutional theorizing arises. But in a developed culture, practice will sometimes flow from theorizing based upon earlier practices, and the starting point is difficult to determine. NOTES TO THE TEXT Anthropologists’ approach – a sub-discipline of the science which specializes in “the cross-cultural study of social ordering.” John Locke (1632–1704) – English philosopher, who discussed the concept of empiricism in his Essay Concerning Human Understanding (1690). He influenced political thought, especially in France and America, with his Two Treatises on Government (1690), in which he sanctioned the right to revolt. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY descent, constituency, vengeance, alacrity, progenitor, to underlie, commitment, to enfranchise, to outline, host, to assume, construction TASK I. a) Match the words to their definitions: 1) descent; 2) constituency; 3) vengeance; 4) alacrity; 5) progenitor; 6) to underlie; 7) commitment; 8) to enfranchise; 9) to outline; 10) host; 11) to assume; 12) construction a) ancestor, predecessor, source, origin; 86

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b) clarification, comment, commentary, interpretation, meaning, sense, understanding; c) a great number; multitude; d) the state of being bound emotionally or intellectually to a course of action or to another person or persons; e) to be inclined to think, to be of the opinion, to suppose; f) birth, ancestry, blood, origin; g) to give the main features or general idea of; to list or describe only the most important parts of; h) eagerness, enthusiasm, anxiety, readiness; i) electorate, electors, voters, voting district; j) to make up, to be, to form, to serve as the foundation, the basis; k) infliction of punishment in return for a wrong committed; retribution; l) to admit to the privileges of a citizen and especially to the right of suffrage. b) Use the words descent, commitment, vengeance, construction, constituency, descent, construction, constituency, commitment, progenitor, alacrity, assumed, underlie, enfranchised, assume, a host of, outlined, underlie, a host of, outlined to complete and translate the following sentences; consult the GLOSSARY: 1. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English …. 2. Cooley is important because it advances the argument that the commerce clause is not an “all or none” principle; that is, there is some role for state regulation of commerce if the subject is local and if Congress has not … jurisdiction over the subject (in this instance, pilots). 3. The Court’s decision to use less rigorous scrutiny reflects the importance of the interests that … contribution limits – 87

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interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” 4. On August 26, 1920, 26 million women became … . Ten states – Delaware and nine in the South – refused to ratify the amendment. 5. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer, – all orders of men, look forward with eager expectation and growing … to this pleasing reward of their toils. 6. The first naturalization act enacted by the first Congress restricted naturalization to “free white persons,” which was expanded in 1870 so that persons of “African nativity and …” were entitled to be naturalized. 7. Unlike countries such as the Philippines where senators are elected at-large, U.S. presidents are elected separately if indirectly by a far broader national … than any member of the national legislature. 8. The first theory of liability was in terms of a duty to buy off the … of him to whom an injury had been done whether by oneself or by something in one’s power. 9. On February 19, 1942, President Roosevelt issued an executive order, pursuant to which more than 112,000 residents of the Western States, all of Japanese … and more than two out of every three of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later into “relocation centers” in several States. 10. One would … that more than 50 years since the landmark Brown case was decided by the Supreme Court in 1954, the desegregation rulings and mandates would have proven successful in overcoming segregation in schools. However, despite the progress and forced remedies for countering racial segregation 88

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in U.S. schools, a recent study by Harvard’s Civil Rights Project has found that schools were in fact more segregated in 2000 than they were in 1970 when busing and other methods were used for desegregating schools. 11. Whatever the merits or flaws of all the arguments, the U.S. constitutional structure was built upon a … to individual choice and respect for the integrity and inviolability of the individual conscience. 12. The new discrimination can be best seen in Plessy v. Ferguson (1896), where the Supreme Court upheld laws that mandated separate provisions for blacks and whites. Here, the Court stated that separate but equal facilities for members of different races were permitted. As result of Plessy, African Americans were segregated into separate school districts and otherwise were denied equal treatment when it came to housing, employment, and … other actions. 13. Federalist 1, the first to appear, as they were numbered chronologically, written by Hamilton, introduced and … the goals and subjects of the following articles. 14. He also purchased shares in other concerns conducted on the same principle; pocketed dividends made in countries which he had never visited by men whom he had never seen; bought a seat in Parliament from a poor and corrupt … , and helped to preserve the laws by which he had thriven. 15. Until recently, it was the view of most judges and scholars that this type of executive agreement did not become the “law of the land” pursuant to the supremacy clause because the treaty format was not adhered to. A different view seemed to … the Supreme Court decision in B. Altman & Co. v. United States, in which it was concluded that a jurisdictional statute reference to “treaty” encompassed an executive agreement. 16. Battles over the power of states versus the national government, prayer in public school, abortion, gay rights, 89

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censorship, peace, war, the death penalty, and … other issues inevitably reach the Constitution. 17. Harlan, a former slave owner, dissented from this narrow … of the Fourteenth Amendment by declaring that the majority’s narrow concept of state action reduced the amendment to baubles thrown to those who deserved fair treatment. 18. President George Bush was criticized for authorizing electronic surveillance of telephone and internet messages in apparent violation of the Foreign Intelligence Surveillance Act of 1978, which … procedures to obtain warrants from a special court in cases like this. 19. The Waite Court’s narrow … of the Fourteenth Amendment in the Civil Rights Cases can be contrasted with its extension of constitutional protection to corporations. 20. In Cooper v. Aaron, the Supreme Court ruled that state officials must obey court orders resting on the Supreme Court’s authority to interpret the Constitution. This case is important because the Court rejected a serious challenge to its authority and reaffirmed its … to integration. TASK II.  a) Find the following word combinations in the text and translate the sentences with them: a) entire document; b) complete notion; c) elaborate system of checks; d) precise meanings; e) explicit separation into three branches of government; f) explicit enumeration of powers; b) Match the above adjectives to their definitions: 1) exactly or sharply defined or stated; minutely exact; strictly conforming to a pattern; standard, or convention; distinguished from every other; 2) planned or carried out with great care; marked by complexity, fullness of detail; 3) fully revealed or expressed without vagueness, implication, or ambiguity: leaving no question as to meaning or intent; 90

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open in the depiction of nudity or sexuality; fully developed or formulated; unambiguous in expression; 4) having no element or part left out; complete in degree: total; consisting of one piece; 5) having all necessary parts, elements, or steps; brought to an end: concluded; highly proficient; fully carried out: thorough; total, absolute. c) Match the above adjectives to their synonyms: 1) complex, complicated, detailed, fancy, intricate, involved, sophisticated; 2) clear-cut, definite, definitive, express, specific, unambiguous, unequivocal, univocal; 3) compleat, comprehensive, entire, full, grand, intact, integral, perfect, plenary, total, whole; 4) all, concentrated, whole, exclusive, focused (also focused), undivided; 5) accurate, close, delicate, exact, fine, hairline, mathematical, pinpoint, refined, rigorous, spot-on. d) Use the GLOSSARY to translate the following sentences: 1. To appreciate Lincoln’s philosophy of the law requires considering his role in preserving the Union and the idea of democratic government during an autocratic age; how he emancipated not only the slaves but the entire middle class and the nation as a whole; and how “the Great Reconciler” implemented a non-Marxian “people’s jurisprudence” through his “with malice toward none” philosophy. 2. The Great Emancipator took steps to free the entire emerging middle class by signing into law three of the most important pieces of legislation in American history. The first was the Homestead Act of 1862, which James Buchanan had vetoed previously. The second, which Buchanan also had vetoed 91

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as unconstitutional, was the Land Grant College Act of 1862, which transformed higher education in the nation. That same year, Lincoln signed the Pacific Railroad Act, which led to the building of the transcontinental railroad. 3. The line-item veto is a proposal that would allow the president to veto certain items from a budget bill, rather than requiring the president to veto the entire bill. This type of veto power has been requested by several presidents, and at least all since Ronald Reagan was in office. 4. Often overlooked in this compelling debate about slavery was the complete omission of Native Americans in this calculation. American Indians as a whole were not taxed at the time, and consequently, they had neither a representative link to nor a particular stake in the new republic. 5. Interpreting the First Amendment and generally following the path of increasing protection for “commercial speech” as a whole, the Supreme Court has protected much advertising by attorneys as essential freedom of speech. But that protection is not absolute, and in recent years the Supreme Court has refused to give complete protection to lawyers seeking clients through solicitation and targeted advertising. 6. The person convicted in Gregg argued that unconstitutional arbitrariness was still present because the prosecutor, as contrasted with the jury, still had complete discretion whether to try a case as a capital case. 7. The framers’ goal was to protect liberty, preserve popular government, and limit the threats of what we would now call the tyranny of the majority. It would secure these goals by setting up an elaborate machine that would use checks and balances, separation of powers, bicameralism, federalism, and self-interest to check political power. 8. Modern writers, like English philosophers John Locke (1632–1704) and William Blackstone (1723–1780), offered 92

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elaborate theories based on natural law, and both Locke and Blackstone influenced many American thinkers on matters relating to natural law, natural rights, individualism, the right of revolution, and the need for limited government. 9. Fair market value is the sum that a willing buyer would pay a willing seller in the open market. No precise formula exists, however, by which the elements of just compensation can be calculated, and there is much debate over what should be considered in the valuation of the property. 10. Some authors see the insistence on precise equality of district population as curious in light of the fact that distribution of 435 seats among the 50 states inevitably entails more than 70 percent deviations among districts of different states. 11. In Bajakajian, the Court declined to provide a precise test for disproportionality, but did indicate that for a fine or forfeiture to be unconstitutional it must be “grossly” disproportional to the gravity of the offense. 12. While the commerce clause is a positive and explicit grant of authority to Congress, it is simultaneously a restriction on the authority of the states. 13. In determining the permissible scope of congressional power under the clause, the Court has dealt primarily with interstate commerce, but its explicit language also gives Congress prerogatives with regard to foreign commerce and commerce concerning Native American tribes. 14. The Communications Decency Act (1996) designed to protect minors from being exposed to obscene and indecent material on the Internet made it a crime to knowingly distribute sexually explicit content online that was patently offensive or indecent and not shielded from children who were under 18 years of age.

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TASK III.  Find those paragraphs in the text which explain each of the following sentences: 1. The Founders cannot take credit for everything in their own constitution. 2. It is difficult to overestimate the significance of this practice. 3. These and other aspects of form derive from American practice rather than from foreign theories. 4. To this day, the role and functions of state governments in America are a matter of some puzzlement to many Europeans. 5. The Americans, however, pursued these principles with a vengeance that transformed them. 6. American assumptions of constitutionalism were at variance with those underlying the British political system as it existed in the late eighteenth century. 7. There was nothing else in Europe to compare with the American practice of popular sovereignty. 8. In a developed culture, practice will sometimes flow from theorizing based upon earlier practices, and the starting point is difficult to determine. TASK IV.  Use the GLOSSARY to translate the following sentences: 1. Term limits are constitutional or statutory restrictions on how long one single individual may remain in any one office. 2. In the United States, there are both constitutional and statutory provisions that serve as a protection against torture. 3. In the United States, there are also significant cases that illustrate the constitutional protections against torture in domestic interrogations – particularly related to the Fifth Amendment right against self-incrimination and the due process clause of the Fourteenth Amendment. 94

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4. Attempts at making the “two term” tradition permanent through a constitutional amendment had regularly cropped up in congressional proposals and on occasional party platforms. 5. Because the U.S. Constitution permitted states to practice slavery, only a constitutional amendment could end the practice. 6. Johnson’s defense was two-pronged, as his lawyers argued that (1) he had not personally burned the flag, and (2) even if he did, the statute he was charged under was an unconstitutional violation of his free-speech rights. 7. Congress responded to the decision in Texas v. Johnson by passing the Flag Protection Act (1990), which supporters characterized as a way to reverse the Court’s ruling without resorting to a constitutional amendment. 8. Supporters of a constitutional argument typically assert that Texas v. Johnson was decided wrongly; that flag desecration involves conduct, not speech; and that the American flag is unique and thus merits special protection. 9. The Court concluded that, in the Des Moines controversy, wearing the black armbands was a form of symbolic speech and that students were “persons” whose constitutional rights were to be acknowledged by school authorities. 10. Executive agreements entered into pursuant to congressional authorization and probably through treaty obligations present little doctrinal problem; those arrangements by which the President purports to bind the Nation solely on the basis of his constitutional powers, however, do raise serious questions. st 11. The world of the 21 century is vastly different from the one the constitutional Framers experienced. 12. The Supreme Court ruled that state laws seeking to impose term limits upon members of Congress were unconstitutional because they violated the qualifications set for the House of Representatives and the Senate in Article I of the U.S. Constitution. 95

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TASK V.  a) Find negative sentences in the text and translate them; b) Use the GLOSSARY to translate the following sentences: 1. There is a preamble, but it does not have constitutional status. 2. Just as Americans have no monopoly on constitutional government today, the Founders cannot take credit for everything in their own constitution. 3. These and other aspects of form derive from American practice rather than from foreign theories. 4. Bicameralism was hardly an American innovation, but the American version was neither derived from nor justified by the British precedent. 5. The explicit separation into three branches of government with coordinate powers is not British in origin. 6. Americans did not invent federalism, but they adopted it with an alacrity missing in nonmigrating British. 7. The elaborate system of checks, the explicit enumeration of governmental powers, and the creation of an independent judiciary are some of the other elements of institutional design not found in the British model. 8. Although never explicitly mentioned in the United States Constitution, they underlie and tie together the entire document. 9. The British were no strangers to liberty, consent, deliberative processes, or mixed regimes. 10. There was nothing else in Europe to compare with the American practice of popular sovereignty. Nor was this a recent phenomenon in America. 11. “No state, without its consent, shall be deprived of its equal suffrage (equal voting power, or equal representation) in the Senate.” 96

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12. The U.S. Constitution cannot be amended to provide for unequal representation of the states in the U.S. Senate, unless such a proposed amendment is ratified by all the member-states of the federal union. 13. Federal taxes must not be levied on or in some states, but not on or in other states. And federal tax rates must not be higher in some states than in other states. 14. In admitting new states into the American federal union, Congress may not, without the consent of the legislatures of the states concerned, (1) form or erect a new state within the jurisdiction, or borders, of another state or (2) form a new state by the junction, or merger, of two or more existing states or parts of states. 15. By the terms of the Twenty-fourth Amendment, the states are prohibited from denying or abridging the right of citizens to vote in federal elections by reason of failure to pay any poll tax or other tax. 16. All powers neither delegated to the central government nor denied to the states remain within the sphere of state authority. 17. Nothing in the Tenth Amendment denies the national government the right to exercise, to the fullest extent, the powers delegated to it by the Constitution. 18. Therefore, the central government under the U.S. Constitution, a government with a severely restricted and confined sphere of authority, is nothing more than an agent of the states designed to facilitate mutual cooperation and support in joint endeavors to pursue shared interests and achieve common objectives. 19. The U.S. Constitution must be interpreted as narrowly defining the powers of Congress and strictly limiting them to the enumerated powers – the powers expressly delegated to Congress by the Constitution. There are no implied powers of Congress. There are only express powers. 97

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20. Federalism requires a written constitution and the reason is quite simple: there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers. TASK VI.  a) Use the text to complete the following sentences: 1. Americans have no monopoly on … . 2. Britain taught America … . 3. Americans built upon the constitutional tradition … . 4. The American synthesis … . 5. Britain had a constitution… 6. The Americans put everything of constitutional status … . 7. Americans assumed that … . 8. They were overwhelmingly of British descent … . 9. In American constitutions … . 10. Americans had a habit of … . 11. The American practice of … . 12. An American innovation … . 13. The American version … . 14. The British precedent … . 15. British in origin … . 16. Americans did not invent … . 17. The British model … . 18. The British were no strangers to … . 19. The Americans pursued the principles … . 20. The British political system … . 21. Americans viewed themselves as … . 22. The Americans’ notion of … . 23. England was the envy of … . 24. The least liberal American state … . 25. The franchise in England … . 26. The American practice of … . 27. American constitutionalism … . 98

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b) Add the following words French; Great Britain; Americans; Britain; British; English; France; Parliament’s; England’s; British to complete the following sentences: The delegates to the Constitutional Convention often referred to the 1) … philosopher John Locke’s Two Treatises on Government, written in 1690 just after 2) … Glorious Revolution of 1688 had strengthened 3) … hand against the king. Locke argued that all people were born with certain “natural rights” to life, liberty, and property, which governments existed to protect. Locke believed that a government should be seen as the agent of the people, not their ruler, and therefore should operate under some restraints. An equally influential book was The Spirit of the Laws, written in 1748 by the 4) … philosopher the Baron de Montesquieu. Writing while 5) … was still under the rule of an all-powerful monarchy, Montesquieu admired the 6) … system that separated the powers of the monarch, the parliament, and the judiciary. In 7) … , the king served as the head of state, performing ceremonial functions and commanding the military, while the prime minister functioned as the head of government, providing political and legislative leadership. Because the 8) … had rebelled against 9) … , the delegates modified Montesquieu’s political theories into something that differed from the 10) … parliamentary system. They created entirely separate executive, legislative, and judicial branches of government, making sure that no single branch would hold exclusive power, but each would check and balance the others. With power so divided, the independent branches must reach some common agreement for the federal government to act harmoniously. c) Express your agreement or disagreement with Locke’s ideas and Montesquieu’s political theories. 99

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TASK VII.  a) Match the terms republicanism, popular sovereignty, federalism, bicameralism to their definitions: 1. The organization of a legislative body based on two chambers. In some democracies, the lower house has the greatest legislative power, and the upper or second house of the legislature has a more restricted role. In the United States, both the Senate and the House of Representatives have broadly equivalent power, and legislative differences are resolved via joint committees. In federal systems, the upper house usually represents the units of the federation, e.g., states or provinces, which may be given an equal number of seats regardless of their population size. 2. The exclusive right to have control over an area of governance held by the citizenry exercised directly, as in a popular assembly, or, more commonly, indirectly through the election of representatives to government. 3. The form of government based upon the citizenry electing representatives to carry out the functions of government. 4. The broad term, not mentioned in the Constitution, describes the constitutional relationship between the states and the national government, in which power is distributed between the central authority and the states. b) Add the above terms to complete and translate the following sentences, use the GLOSSARY: 1. Events since 1787, of course, have altered both the separation of powers and the … bases of … , in particular the adoption of the Seventeenth Amendment resulting in the popular election of Senators, so that the differences between the two Chambers are today less pronounced. 2. The question whether Congress’ power to regulate commerce “among the several States” embraced the power to prohibit it furnished the topic of one of the most protracted 100

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debates in the entire history of the Constitution’s interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of American … . The issue was as early as 1841 brought forward by Henry Clay. Until roughly the New Deal, the Supreme Court applied a doctrine of “dual … ,” under which the Federal Government and the States were separate sovereigns, each preeminent in its own fields but lacking authority in the other’s. 3. The concept of … as a form of government is guaranteed to all the states in Article IV, Section 4 of the Constitution. However, what this type of government requires is unclear because the federal courts have refused to hear suits on this matter. 4. In the United States, … denotes limited government in the form of representative democracy when citizens elect representatives who govern on their behalf, but within the constraints of the rule of law. 5. Originally, … was simply opposed to hereditary monarchies and tyrannies. Increasingly it came to mean a commitment to popular self-government. 6. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This “imperative of legislative control grew directly out of the Framers’ revolutionary idea of … .” 7. “Judicial review was a substitute for popular action, a device to maintain … without the need for civil unrest.” Judges’ decisions about the Constitution, like those of other officials, “were still subject to oversight and ultimate resolution by the people themselves.” 8. Another theme resonating among the justices was the rejection of state sovereignty and an emphasis on … , the idea that the United States was a union of people. Justice James 101

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Wilson asserted that sovereignty rested with the people of the United States, not with the states, which meant that states were subordinate to the people and therefore could be sued by them. TASK VIII.  a) Discuss the ideas and theories that influenced American thinking on government: During the Enlightenment in the 1600s and 1700s, many political philosophers met and discussed their ideas on government together. The Enlightenment was a period in European history when many educated people stressed the importance of learning and reasoning. Education was considered the key to understanding and solving society’s problems. Many Enlightenment thinkers lived in Paris. These thinkers were known as “philosophers,” the French word for one who searches for wisdom and knowledge. Among the most influential philosophers were John Locke, Jean Jacques Rousseau, and Baron de Montesquieu. “Contract theory” of government developed by Locke (1632–1704) John Locke, an English political philosopher, helped to further develop democratic ideas. In 1690, Locke published the First and Second Treatises on Government. These two books explained Locke’s contract theory of government. According to Locke, the Magna Carta and Bill of Rights protected the inalienable, or natural, rights of all British citizens. Locke wrote that all people had the inalienable “right to life, liberty, and property” Locke believed that people created government and chose to be governed in order to live in an orderly society. In other words, government arose from an agreement, or contract, between the ruler and the ruled. Thus, a ruler only had power as long as he or she had the consent of the governed. And, as a result, a ruler could not justly deny peoples’ 102

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basic rights to life, liberty, and property. Many Americans had read Locke’s book, and they agreed with what it said about government. Those who had actually read Locke’s book knew his ideas from newspapers, political pamphlets, church sermons, and discussions. Most people in the American colonies believed that everyone had a right to life, liberty, and property. These rights were called natural rights. Sometimes these are now called basic rights or fundamental rights. The idea of natural rights means that all persons have these rights just because they are human beings. Everyone is born with these rights and they should not be taken away without a person’s agreement. Many of the Founders of our government believed people receive these rights from God. Others believed that people have them because it is natural for people to have them. Protecting natural rights Although people agreed on certain natural rights, they worried about how those rights could be protected. Locke and others thought about what life would be like in a situation where there was no government and no laws. They called this situation a state of nature. They were afraid that in a state of nature their rights would be taken away. 1. The stronger and smarter people might try to take away other people’s lives, liberty, or property. 2. Weaker people might band together and take away the rights of the stronger and smarter people. 3. People would be unprotected and insecure. The social compact John Locke and other philosophers developed a solution to the problems that exist in a place without government. In a state of nature people might feel free to do anything they want to do. However, their rights would not be protected and they 103

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would feel insecure. Locke argued that people should agree with one another to give up some of their freedom in exchange for protection and security. They should consent to follow some laws in exchange for the protection that these laws would give them. This agreement is called a social compact or social contract. A social compact is an agreement people make among themselves to create a government to rule them and protect their natural rights. In this agreement the people consent to obey the laws created by that government. The contract theory expanded by Rousseau (1712–1778) In his book, The Social Contract, Jean Jacques Rousseau wrote about an ideal society. In this society, people would form a community and make a contract with each other, not with a ruler. People would give up some of their freedom in favor of the needs of the majority. The community would vote on all decisions, and everyone would accept the community decision. When Rousseau wrote The Social Contract, there was not a society in the world with such a system. His vision, however, was shared by American colonists and others. Limited Government suggested by Montesquieu (1689–1755) In his book on government, The Spirit of Laws, Baron de Montesquieu developed practical suggestions for creating democratic governments. He stated that the best way to ensure that the government protects the natural rights of citizens is to limit its powers. And the best way to limit government’s powers is to divide government’s basic powers among a number of authorities. By dividing powers between different branches or parts of the government, no one authority would have too much power. Montesquieu referred to this as a system of checks and balances. 104

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These philosophers’ ideas might sound familiar. In Declaration of Independence, Thomas Jefferson wrote that “all men are created equal; that they are endowed with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” Jefferson had read Locke’s Treatises very closely. The people who created the United States Constitution found great political wisdom in the past. The system of government in place in the United States combines Ancient Greek and Roman practices with ideas developed more than 1,000 years later in Europe. Most Americans living at the time the Constitution was written were familiar with Greek democracy, the Roman republic, the British parliamentary system, and the writings of Locke, Rousseau, Montesquieu and others. The Framers of the U.S. Constitution were deeply influenced by the many ideas on government developed during the previous 2,000 years. Sir William Blackstone (1723–1780) William Blackstone was a British jurist and legal scholar, whose work Commentaries on the Laws of England was used for more than a century as the foundation of all legal education in Great Britain and the United States. Blackstone was born in London on July 10, 1723. He received his education at the University of Oxford. From 1765 to 1769 Blackstone published the four volumes of his Commentaries, which were immediately successful in both England and the American colonies. The Commentaries provided an introduction to English law in a clear style that was easily understandable to the public. Although the authority of his sources, the accuracy of his statements, and the relevancy of his point of view have been subjected to severe criticism, the Commentaries are still significant as a comprehensive history of English law. 105

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Thomas Hobbes (1588–1679) Hobbes lived in England. His views were influenced by the fact that he lived during the English Civil War, a time of violence and famine. Hobbes’ view of human nature was that man was born evil and needed a strong hand to guide him. Thus, Hobbes believed in an absolute monarch. Hobbes said that in the state of nature there is no formal law, no order, no culture, and no hope. In other words, man lived in a state of total chaos where no man has any individual rights and all men are at war. Life is a constant battle for power, ending in death. Man needed some type of fear of authority in order to be able to be persuaded to follow the law. Hobbes discussed his beliefs on man and government in the book Leviathan. Hobbes believed that man gave up all his rights to the government, and that in return, the government provided security. Machiavelli (1469–1527) In 1513, Machiavelli wrote a book about political power, named The Prince. Machiavelli believed that most people were evil and corrupt. A centralized government with a strong leader would be the best type of government. The leader, according to Machiavelli, should do anything necessary to achieve what was best for his country. “The ends justify the means.” The Prince became a must-read for many politicians in years to come, as it was viewed as a common sense, pragmatic approach to politics. b) Complete the table below to compare views and theories on government: NAME

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PLACE & TIME

DEAS & THEORIES

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TEXT 2 American Circumstances What were the circumstances in which European ideas were so transformed? First of all, American political thought in 1787 was not an empty bottle to be filled. There was a century and a half of constitutional experience. In terms of practical politics, the colonists generally elected their legislatures, and the governors were Crown-appointed. As in England, the legislature controlled the purse and had effective control of the militia. The governor, on the other hand, did not have an upper house whose members were lords since there was no aristocracy in America. For this and other reasons, attempts to divide the legislature by awarding representatives paying jobs in the executive branch failed to work. The governor faced a united legislature and had little patronage to disburse. By the middle of the eighteenth century the legislatures in most colonies had more power than did their respective governors. The colonists had evolved a form of separation of powers – holding several offices at once was generally prohibited. This undercut the patronage system, which formed the basis for Hume’s analysis and which made Montesquieu’s analysis less erroneous for American colonial government than it was for England’s government. Bicameralism was a popular feature of most early state constitutions as a primary means of separating the aristocratic from the democratic. Most failed in this respect since the men attracted to the upper house, despite stiffer property requirements for those who sought office there, were similar to those attracted to the lower house. The two houses, thus, did not differ markedly in the kinds of policies they supported. At the center of this problem lay a broad electorate, the same one that voted for both legislative branches. Plentiful land in 107

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America, among other things, had transformed England’s forty-shilling voting requirement into a means of extending the broadest suffrage known to the world at that time. Geography, English common law, religion, and colonial status all conspired to create an electorate that had to elect both houses. That in turn destroyed the possibility of bicameralism as a means for instituting mixed government. One legacy of colonial politics was a deep distrust of executives, with the result that state governors were essentially figureheads. As weak as colonial governors had been they did have the British navy behind them, and a certain social status as well, so they could come reasonably close to limiting the legislature. The state executives after independence could not rein in the democratic element, so American constitutional government at the state level was unbalanced. Connecticut and Rhode Island were clear exceptions. By their charters, the colonists elected the governors, who had therefore been entrusted with real power. A balance closer to the mixed government model thus existed in these colonies despite the absence of an aristocracy. Again, American circumstances, primarily the experience with colonial governors who had no lords to support them, had prevented the importation of any version of English government. Along with the colonial institutions went a theory of government with deep roots in dissenting Protestantism. The American Whig theory generated a view of politics different from that dominant in England. It also generated documents of political foundation upon which rested the written constitutions. Sectarian diversity had significant effects. Whereas the court automatically included high officials of the Church of England, church-state relations in America were entirely different, further vitiating the utility of any model of government that had a role for the aristocracy. Perhaps even more important, sectarian 108

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diversity required the creation of institutions and practices that first expressed American pluralism. Madison’s deep involvement in the issue of religious toleration, and thus his acute awareness of how to treat diversity when there was no natural majority, must have influenced his denying by analogy a broader solution to diversity in general. Hume had a theory about dealing with factions, but Madison had direct experience. His approach to dealing with several religions may have led him to consider Hume’s idea and decide it was sound. The constitutional tradition in America had produced the expectation that any constitution could be written as a single document. All English models relied on informal arrangements that included an aristocracy and a king. Americans’ formal, written arrangements did not require any specific social structure in order to operate. That a constitution had to be written altered fundamentally the prospects for adopting English models. This simple idea transformed every aspect of politics. Ironically, it also allowed the blending of different political models in America, there had been several colonies, and after independence there were several states – each had its own government that had existed for many years. No model of English government, which was unitary, could deal with these states. Their existence was one of those facts that rendered all English models virtually irrelevant. The reasons why Americans did not adapt European ideas intact thus include: one hundred fifty years of colonial government; no long-entrenched hereditary aristocracy; the world’s broadest suffrage; an existing political theory; the expectation of written constitutions; religious diversity; and the existence of states with their own governments. The list could be extended, but it is long enough to illustrate that Locke, Montesquieu, Blackstone, Hume, and a hundred others gave America ideas for a constitutional order, but America already had one. That order had to evolve to meet new circumstances, the most important of which was the 109

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sudden absence of the English Crown. The constitutional system had become unbalanced, and the Articles of Confederation was a modus vivendi inadequate to the circumstances. Still, using a written constitution, the Americans did borrow from European thinkers. Montesquieu, the most widely cited, did seem to understand the process they were undergoing, He wrote of the laws’ spirit conforming to the genius and circumstances of a people. Montesquieu in this regard gave voice to what Americans already believed, what they were already practicing. Americans matched their government to their circumstances because this inevitably happens in a constitutional system worthy of the name. They took Montesquieu’s analysis and transformed it into an accurate prediction. They were going in that direction anyway, and brought Locke, Montesquieu, Blackstone, and Hume along with them. NOTES TO THE TEXT Montesquieu (1689–1755) – a French philosopher and jurist. An outstanding figure of the early French Enlightenment, he wrote the influential Persian Letters (1721), a veiled attack on the monarchy and the ancien régime, and The Spirit of the Laws (1748), a discourse on government. David Hume (1711–1776) – an eighteenth-century Scottish philosopher, historian, and social theorist who influenced the development of skepticism and empiricism, two schools of philosophical thought. Hume’s economic and political ideas influenced Adam Smith, the Scottish economist and theorist of modern capitalism, and James Madison, the American statesman who helped shape the republican form of government through his work on the U.S. Constitution. Sir William Blackstone (1723–1780) – the famous English jurist is remembered for his Commentaries on the Laws of England, the first attempt since the 13th century to provide a comprehensive treatment of English law. 110

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The 40 shilling franchise – The statute of 1429, finding that elections had recently been crowded by people of “low estate,” decreed that only freemen who owned freehold land (that is, not leased from the land’s owner) worth 40 shillings had the vote. This restricted the vote to a much smaller group of landowners, and the 40 shilling franchise was only abolished in 1832 by the Great Reform Act. Modus vivendi – a temporary agreement between contending parties pending a final settlement. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to disburse, to undercut, to rein, to vitiate, utility, acute, intact, erroneous, stiff TASK I.  a) Match the words to their definitions or synonyms: 1) to disburse; 2) to undercut; 3) to rein; 4) to vitiate; 5) utility; 6) acute; 7) intact; 8) erroneous; 9) stiff a) to weaken or destroy the impact or effectiveness of; to undermine; b) to check, to control, to limit, to restrain, to hold back, to constrain; c) to reduce the value or impair the quality of; to make ineffective; to invalidate; d) to pay out, spend, lay out, expend, distribute; e) having or demonstrating ability to recognize or draw fine distinctions; keen; f) containing or characterized by error; mistaken; incorrect; wrong; not correct; not in conformity with fact or truth; g) rigid, inflexible, inelastic; h) whole, complete, sound, perfect, entire; i) the state or quality of being useful; usefulness. 111

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b) Use the GLOSSARY to translate the following sentences: 1. Despite the divisive nature of the Civil War, the nation reunited and the Constitution remained intact, although not without amendments. 2. The six subjects of Federalist Papers were: 1) the utility of the Union, 2) the insufficiency of the present confederation, 3) the necessity of a stronger government, 4) the conformity of the proposed Constitution to republican government, 5) the relationship between federal and state government, and 6) the additional securities of the new government. 3. There are three types of patents available in the United States: utility, design, and plant patents. 4. There is a rule that a pictorial, graphic, or sculptural work that has an inherent use apart from its appearance, and is also an expressive work apart from its utility, may qualify for copyright protection. 5. The Sherman Act of 1890 exempted trade unions and agricultural groups from antitrust laws, and it reined in the use of court injunctions during strikes. 6. Through the early years of the New Deal, the Court reined in congressional authority under the commerce clause, striking down a wide range of legislation intended to address the dreadful economic conditions left in the wake of the Great Depression. 7. The new statute vitiates any common-law argument that the plaintiffs might have. 8. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld and then in a series of cases was practically vitiated. 9. Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the 112

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exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court. 10. The Constitution’s concise expressive style helped it to survive largely intact, forcing Presidents, Congress, and the courts to find new applications periodically to meet changing circumstances and cope with new problems. 11. However, the existence of First Amendment protections did not deter the Congress from passing the Sedition Act of 1798. The law made it a crime, punishable by fines and imprisonment, to engage in “false, scandalous and malicious” writing about the president or Congress or to write or utter statements that would bring them into “contempt or disrepute.” Although ostensibly aimed at curtailing the actions of French immigrants to the United States, the law was largely politically driven, a means for the Federalists in power at the time to undercut their Republican opposition. 12. The Court determined that the law created a burden on interstate commerce and imposed a stiff economic burden on the railroad. 13. Ratification of the new Constitution encountered stiff resistance from those who became known as the Anti-Federalists. 14. Hunters, those who own weapons for self-protection, and other gun enthusiasts insist the Second Amendment prohibits any restrictions on their right to bear arms. Rather than limit the sale of guns, they argue, the government should enact stiffer penalties for those caught using a gun while committing a crime. 15. Process errors include errors in the admission of evidence acquired in violation of the constitution, such as coerced confessions, illegally seized evidence, erroneous jury instructions, and restrictions on the defendant’s right to cross-examine witnesses. 16. The fact that the accusations were so lightly dismissed without a full trial was “erroneous.” 113

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17. The U.S. Supreme Court reversed the district court’s decision, stating that the evidence was inadequate and “erroneous” to show an unconstitutional race-based objective. 18. The Court resolved the conflict by holding that Adolescent Family Life Act (AFLA) is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to “pervasively sectarian” institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. 19. While the United States is not concerned with, and has no power to regulate local political activities as such of State officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. 20. The president’s legal advisers are acutely aware of the importance of Jackson’s opinion, and may advise him of the likelihood that an action will be accepted. TASK II. a) Insert the missing prepositions of, down, at, into, into, to, with, of, from, by: Patronage has its defenders. It is a way to maintain a strong political organization 1) … offering campaign workers rewards. More importantly, patronage puts people 2) … government who agree 3) … the political agenda 4) … the victor. Cooperation, loyalty, and trust flow 5) … this arrangement. Finally, patronage guarantees some turnover, bringing new people and new ideas 6) … the system. Opponents have long agreed that patronage is acceptable 7) … the highest levels 8) … government. Presidents, governors, and mayors are entitled to select their cabinet and department heads. However, history indicates that patronage systems extending far 9) … the organizational chain are susceptible 10) … inefficiency and corruption. 114

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b) Discuss the political phenomenon of patronage as it exists in your country. TASK III.  a) Read the text about Protestant dissenters; describe the reflection of Dissenting Protestantism in the spirit of the American Constitution: All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in the northern colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion (Edmund Burke (1729–1797), On Conciliation with America (1775)). Christianity does not need the support of government. Indeed, the scriptures expressly teach against a dependence on worldly powers. Christianity flourished when government opposed it. Government support weakens the confidence of Christians in their own religion, and it raises suspicions by skeptics about Christians who apparently think so little of their religion that it needs propping up (support) by the government. Commentary: This is a normative claim about what Christianity teaches. It is being made by one who is apparently a Christian. The Protestant dissenters argued that the church should not depend on government. However, that claim went against the teaching of other churches in that day, such as Catholic, Orthodox, and the Church of England. Even before peace was fully memorialized in the Treaty of Paris (1783), Protestant dissenters and American statesmen of enlightenment-rationalistic sympathies began their common drive for disestablishment where Anglicanism still had a hold. On the one hand, James Madison championed the cause of the enlightenment-rationalists. On the other stood Protestant dissenters who believed that the government’s involvement in religion was an encroachment on the authority of Christ over His church. 115

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While the enlightenment rationalists in Virginia sought disestablishment for the unity of the body politic, the Protestant dissenters joined to support them out of a common desire to protect the church from undue control by the government. This close connection between political freedom and church freedom was there from the beginning. NOTES TO THE TEXT: To disestablish – to deprive (a church) of official governmental support. Rationalists – believe in what is based on reason and logic. The conflict between the beliefs of Puritans and Rationalists lies in the role God supposedly played in their lives. The Puritans believed that God was actively involved in their lives. The Rationalists held that God created the universe to work independently and didn’t interfere. They thought reason was God’s special gift to mankind, and right and wrong were theirs to decide.

b) Discuss state-church relationships in your country. TASK IV.  a) Read the text and compare English and American Whig theories; b) Explain the usage of verbal tense forms: The American Whig theory If any name should be attached to the first American political theory, “Whig” is as good a name as any. Whig political theory is important for Americans’ view of themselves as a people, the initiation of the Revolution, the creation of the enduring political institutions, and the writing of the national Constitution. In 1776, America was dominated by a Whig political theory derived from English Whig theory rooted in the seventeenth 116

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century commonwealth experience. Between 1776 and 1787 Whig political theory is found to be inadequate for generating effective institutions at the state and national level, and by 1787 it has been superseded at least at the national level by Federalist theory. In some respects Federalist theory derives directly from Whig theory. In other respects it is in opposition, but even this opposition is a link to the earlier mode of thought. Perhaps because they are portrayed only negatively as Antifederalists, American Whig political theorists have been ignored and their intellectual roots forgotten. Whig theory and Federalist theory which drew most heavily upon Enlightenment thinkers interacted in the context of events between 1776 and 1787. Some might find it most useful and accurate to view Federalist theory as a “variant” of Whig theory. That is, there is enough continuity between Whig and Federalist theory to view them as stages in the development of an evolved American political theory. At the same time, the differences are not so slight as to be passed over lightly. Federalist theory changed the way Americans viewed politics, created many new institutions, and often changed the manner in which Whig-derived institutions operated. TASK V.  Read the text to explain why Americans call their sectarian diversity the glory of democratic liberty: James Madison, fourth President of the United States, who was largely responsible for the “religious freedom” amendment to the American Constitution, had said, “The more independent religious bodies, the more secure would be the government in its freedom from church influence.” The Protestant mind mistakenly assumed that if this multiplication of sects were good for the government, it was also good for religion. “Sectarian diversity was therefore accepted as an ecclesiastical virtue.” Another factor explaining the growth of so many denominations (sects) on American soil may be found in 117

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the pioneer psychology of the nation. Until recent years the American people have always lived on the frontier. New regions had to be explored, new territory cultivated, new homes and institutions established – among them the churches. Except for those who were traditionally Catholic and were blessed with the services of a priest who moved along with them, the majority settled as small religious communities that were distinct from the original denomination, at first only geographically, but, later on, also in doctrine and religious discipline. Add to this fact the circumstance of size of country, and the multiplication of sects becomes a logical corollary with sectarianism being a natural necessity in the United States. Ever since the English dissenters reached America in 1620; men in search of religious liberty have been coming to a free land, “each fiercely determined to find sanctuary for his right to believe and worship as he saw fit, and as God seemed to lead.” This mixture of religious sects is therefore the outgrowth of a heterogeneous assortment of individuals and groups from a variety of cultures in Europe and other parts of the world. Yet they had one thing in common: “their thirst for religious liberty.” Consequently, if America may be called a “melting pot” for diverse social and national customs, “it is even more of a melting pot of denominational (sectarian) diversity.” James Madison laid down the principle which was endorsed by his compatriots, that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” This political expedience “started us on our diversified way. According to Thomas Jefferson, author of the Declaration of Independence, difference of opinion in matters of religion is not only politically advantageous, but also beneficial to religion. Behind the statements from outstanding political figures, a sizable portion of American Protestants take pride in their sectarian diversity and call it the glory of democratic liberty. 118

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NOTES TO THE TEXT: Denomination – a group having a distinctive interpretation of a religious faith and usually its own organization. Sanctuary – a holy place. Expedience – a regard for what is politic or advantageous rather than for what is right or just; a sense of self-interest.

TASK VI.  Read the text to compare approaches to factions of David Hume (1711–1776) and James Madison (1751–1836): Like his philosophical beliefs, Hume’s essays on politics and economics were influential in his time. Historians have concluded that James Madison read Hume’s Essays, Moral and Political and applied some of the ideas from this work while helping write the Constitution and The Federalist Papers. Hume was concerned about the formation of factions based on religion, politics, and other common interests. He concluded that a democratic society needs to prevent factions, which ultimately undermine the government and lead to violence. Madison agreed that factions can divide government but came to the opposite conclusion: the more factions the better. In Madison’s view more factions made it less likely that any one party or coalition of parties would be able to gain control of government and invade the rights of other citizens. The system of checks and balances contained in the Constitution was part of Madison’s plan for placing some limits on factions. TASK VII.  Read the text 1) to comment on the modern definition of federalism; 2) to explain why federalism requires a written constitution; 3) to prove that federalism as a theory of government emerged after the Framers wrote the Constitution; 4) to discuss the alternatives to federalism in America in 1878; 5) to explain the essence of “dual sovereignty” as a compromise between “a strong general government” and “sovereign states:” 119

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The governmental system of the United States is the earliest example of federalism in the modern sense of that word. Nowadays, when the word federalism is used throughout the world, it means a system like that of the United States, with political authority divided between two spheres of authority. The American federal system is an extremely complex pattern of interrelated processes simultaneously at work, a blend of independence and interdependence. Federalism may be defined as a system of government in which there are two levels of authority, national and state, operating side by side, with each level generally supreme within its sphere of power. K.C. Wheare (1907–1979), a noted British authority on federalism, defines the federal principle as a “method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent,” and further, “that each government should be limited to its own sphere and, within that sphere, should be independent of the other.” It should be added that federalism requires a written constitution. The reason is quite simple: there must be a fundamental law delineating the two spheres of authority, lest neither sphere will know the limit of its powers. If the central government acquires too much power, it may swallow up the weaker states, creating a unitary form of government. If, on the other hand, the state governments become too powerful, the union may be reduced to a league or confederation, or be abolished altogether. Now the Framers of America’s Constitution did not create a federal pattern of politics because they had read about something of the sort in an old book. No, American federalism resulted from circumstances in the United States in the year 1787 rather than an abstract theory. True, many of the Framers saw that a weak confederation, under the Articles, was an insufficient system of government. And they perceived that centralized or unitary government (then the pattern in nearly all European states) had 120

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its grave faults. But the primary reason why the Framers chose a federal system was that the federal arrangement was just what the American people wanted, and needed, in a very practical sense, in 1787. Federalism as a theory of government, in other words, emerged after the Framers wrote the Constitution. One alternative to federalism was simply to continue the arrangement established under the Articles of Confederation, and a good many Americans might have been content enough to do so. But this feeble confederation had major economic disadvantages and scarcely could defend itself against foreign enemies. The other alternative to federalism was a unitary, or centralized, form of government, with all real power concentrated in the nation’s capital. Turgot, Condorcet, and other French political thinkers of the 1780s were surprised and almost indignant that the Americans had not formed such a political structure when they won their independence from Britain. But the American people, having thrown off the central power of the King-in-Parliament, were not disposed to establish some new central authority to tell them what to do. Besides, the great majority of American citizens were warmly attached to their State and local governments. They feared that consolidation would diminish their local and personal freedoms. What the Framers agreed upon, then, was a satisfactory compromise between the people who desired a strong general government and the people who wanted to preserve State and local powers of decision. Under the federal arrangement – something new in human society, at least on so large a scale as in the United States – the several States were still called “sovereign,” as if there were no higher political power above them. But through the federal arrangement, there was created a general government with vastly superior powers. The Constitution allocated some powers to the Federal government, 121

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and guaranteed that all other political powers would be reserved to the States or to the people in those States. This division of powers, or “dual sovereignty,” though hotly debated during 1787–1788, was accepted by the States when they ratified the Constitution. NOTES TO THE TEXT: Sir Kenneth Clinton Wheare (1907–1979) – an Australian academic, who spent most of his career at Oxford University in England. He was an expert on the history of the constitutions of the British Commonwealth. Anne-Robert-Jacques Turgot (1727–1781) – Turgot was the French Adam Smith. His Reflections on the Production and Distribution of Wealth, which predated Smith’s The Wealth of Nations by ten years, argues against government intervention in the economic sector. Marie Jean Antoine Nicolas de Caritat, marquis de Condorcet (1743–1794), known as Nicolas de Condorcet – a French philosopher, mathematician, and early political scientist.

TASK VIII.  a) Read the text: Whig political theory flowed from the belief that the people were a homogeneous entity. Despite gradations and ranks within the population, all people had the same rights and thus were politically indistinguishable. In the American Whig view, politics was an inevitable and perpetual battle between the people, who were trying to protect these rights, and the rulers who were constantly trying to extend their power. This traditional dichotomy between the people and their government was joined with a belief that when conflicts arose between the desires of an individual and those of the community at large the community should get its way. Thus, the interests of the community were considered superior to those of any individual, especially if the individual held political power. From this general perspective three related assumptions are derived: 122

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1. The population is homogeneous with respect to rights. 2. The population has a community of interests in protecting and preserving these rights. 3. Community interests are superior to individual interests. American Whigs retained the classical English view of politics insofar as the Crown was government. The Crown embodied the monarchic principle, it was the executive, it acted and thus was the essence of government. The legislature, on the other hand, was not part of government. It was indistinguishable from the people in that its members were drawn directly from the general population and then returned to experience the laws that they had approved. In this sense, and this sense only, did they represent the people. They literally represented the consent of the people to the proposals for action made by the Crown as if the people were themselves all present in the chamber. It made little difference which individuals actually sat in the legislature as long as they were returned to the people at the end of the session. Members of American legislatures tended to come from the more propertied classes for reasons that were simple and obvious to the Whigs of the day. These men had more leisure time for such activities, they were familiar with the financial and legal complexities that a legislator faced, they had demonstrated a stake in the community by owning property in it, and these men had demonstrated superior virtue by being able to amass and retain a certain amount of property. This presumably took discipline, sobriety, hard work, and a certain amount of intelligence – all of which were essential civic virtues. There was the additional belief that men of property could not as easily be bribed by the executive and thus were more likely to retain their political independence because of their economic independence. Between 1776 and 1787 Americans lived under their state constitutions based upon Whig political theory. In the absence 123

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of a strong executive they experienced the legislatures acting, and acting in a manner affecting virtually every aspect of life. They experienced the bitter factionalism in their state legislatures as well as in the general population. They found growing economic inequality, were exposed to a stronger influx of Enlightenment ideas from continental Europe (especially in the cities and commercial towns), and they found religion to be less and less important in their lives. There was also the problem of how to govern diverse populations spread over several states, as well as the problem of bicameral legislatures not acting as they should according to Whig theory. The Whigs were sometimes puzzled, often dismayed, and frequently prone to disagreement over how to proceed, but they continued to evolve solutions based upon an essentially intact Whig political theory. b) Use the following points to sum up the Whig story: 1) equal rights – homogeneous entity – political unity; 2) politics – inevitable and perpetual battle; 3) the people – the rulers; 4) the people – their government; 5) the desires of an individual – the desires of the community at large; 6) individual interests – the interests of the community; 7) the Crown – the essence of government; 8) the legislature – the people; 9) men of property – familiarity with the financial and legal complexities; 10) men of property – a stake in the community; 11) men of property – essential civic virtues; 12) men of property – economic independence; 13) men of property – less likelihood to be corrupt; 14) men of property – political independence; 15) state constitutions – Whig political theory; 124

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16) the absence of a strong executive – the legislatures acting and affecting every aspect of life; 17) factionalism in state legislatures; 18) factionalism in the general population; 19) growing economic inequality; 20) diverse populations spread over several states; 21) new problems – old solutions. TASK IX.  a) Read about Federalists’ and Whigs’ views on government: The Federalists were more radical in their theory making if not in their economics. They rejected the Whig approach and went back to the basic assumptions underlying American politics. Their most breathtaking move was to reject completely Whig assumptions. Instead of assuming a natural community of interests arising from a homogeneous population, they believed that factions and political conflict have their roots in human nature and are thus inevitable. Some, like James Madison, went even further and argued that factions should be encouraged rather than eliminated so as to better control their effects through mutual check and balance. Federalists replaced homogeneity with heterogeneity. The fundamental Whig deduction that government should be based upon the deliberate sense of the community is retained, although deduced from a different set of assumptions. The Whigs saw collective decisions emerging from the cool, calm deliberations of men seeking the community of interest for an organic community by looking to some standard of goodness that transcends individual and factional interests. The Federalists, on the other, hand, saw collective decisions as emerging from the interaction of factions in an arena where more virtuous men respond to factions in a frankly political manner. The deliberate sense of the community is 125

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not discovered through debate. Rather, it emerges from the political process. Delay is even more important to the Federalist not only because it takes time to produce mechanistically the fair sense of the community, but also because in the short run many people will be slow to recognize what is a fair balancing of interests. A political culture is defined not only by a set of institutions and political principles, but also by the widely held assumptions and arguments supporting these institutions and principles. In this respect the Federalists have made a clear break with the past. Theoretically, they have moved from an essentially organic theory with deep roots in the Middle Ages and the Reformation to a modern, mechanistic theory rooted in the Enlightenment. This theoretical shift does not result in the rejection of old political institutions and the creation of new ones as much as it redefines the relationships between them. Government now is any institution having political power. Political power still rests in the hands of the people, but power is now viewed as homogeneous such that it can be parceled out to more than one institution. The legislature is thus by definition as much a part of government as the executive. Both embody popular consent, but both are dangerous to the rights of the people. The deliberate sense of the community is now arrived at by a government separate from the people, and the relationship between the various branches of government should be such as to produce simultaneously the deliberate sense of the community while protecting the people from the government. The assumption that power can be divided or separated into different parts provides the solution to both problems. b) Fill in the table to compare Whigs’ and Federalists’ views on government: 126

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WHIGS:

FEDERALISTS:

TASK X.  Read about a new concept of government organization: Federalism – definition and characteristics The term “Federalism” – “federation,” “federal union,” or “federal system” – refers to a federated sovereign state formed by establishment of a closely-knit, or tightly-knit, union of two or more smaller political communities, which, after formation of the union, are no longer sovereign but do retain a significant degree of autonomy. The smaller political communities that are members of the larger federal union possess and exercise a substantial amount of home rule, but, at the same time, are bound by the constitution and constitutionally valid laws of the national government, or central government – i.e., the general, or common, government over the entire federation and country. The fifty smaller regional political communities comprising the membership of the federal union known as the “United States of America” are officially designated as “states.” And so are the six constituent political units of the federation called the “Commonwealth of Australia.” The ten regional political communities comprising the federation of Canada are officially designated as “provinces.” There are important features which distinguish federalism from unitary government on the one hand and from confederal government on the other – characteristics that distinguish a federal union from a governmental system characterized by a very high degree of political centralization as well as from a governmental system that is almost completely decentralized. The distinguishing features of federalism, as a set of constitutional power relationships between a country’s central government 127

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and the governments of its local or regional political subdivisions, place the federation somewhere in between the high level of centralization that characterizes the unitary state and the thoroughgoing (complete) decentralization that defines the confederation. What are the distinguishing characteristics of federalism? Unlike a confederation, the general government of a federation – the national, or central, government of the federated sovereign state – has unchallenged constitutional authority to speak, decide, and act for the entire country in its relations and dealings with foreign governments. In this sense, the national government is the sole possessor and exerciser of sovereignty. Only the national government can operate as the government of a completely independent political community with absolute power to chart its course in the arena of international relations. The smaller regional or local political communities comprising the larger, federated sovereign community – the member “states” or “provinces” of the federal union – are not sovereign states (as they would be in a confederation). That is, the smaller communities are neither completely nor virtually independent. Instead, they are semiautonomous. They possess autonomy, not sovereignty. However, the degree of autonomy, or self-government, is substantial. In the case of a federation, the national constitution – the constitution over the whole country – divides and distributes the constitutional powers of government between the national government and the constituent political units – the smaller communities comprising the larger community. The national constitution recognizes the existence of two levels of government in the country: (1) the national, or central, government and (2) the governments of the smaller regional communities. 128

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And the national constitution grants substantial authority to each of the two levels of government – national and regional. Each level of government is given the right to make final decisions on at least some governmental activities and services. In a federal system, the national constitution protects the right of each level of government to exist. Legally, neither level of government can destroy the other level. The USA, for example, has been referred to as “an indestructible union of indestructible states.” In a federal union, the national constitution gives the central government control over matters of general, or common, concern to the country as a whole and permits the constituent political communities to regulate matters of more regional or local concern. Neither level of government in a federation receives its powers from other. The constituent communities do not receive their powers from statutes enacted by the national legislature. And the national government does not receive its powers from decisions and actions of the regional legislatures. Both levels of government – national and regional – receive their respective sets of powers from a common source, and that common source is the national constitution. Both levels of government in a federal union operate through their own agents and exercise power directly over individuals. In a given geographic, or territorial, region within the country, two different governments – one national, and the other regional – simultaneously govern the same land and people. Under ordinary conditions within the country, neither level of government in a federal system is dependent upon the other for enforcement of its decisions within its own constitutional sphere of authority. b) Complete the table, 1) USA is done for you: 129

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Federal Union

Members of Federal Union

1) United States of America

50 states

2) Commonwealth of Australia 3) Canada 4) Federal Republic of Germany 5) Austria 6) Russia Your country c) Use the above text to fill in the table and to compare the following types of government: Unitary Government

Federal Government

Confederal Government

c) Find the words in the text which mean the following: 1) completely independent 2) self-government 3) members of federation 4) partially self-governing TASK XI.  a) Read “Emergency Does Not Create Power” by Chief Justice Charles Evans Hughes (1934): Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. 130

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The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under US constitutional system. b) Write 5–7 sentences to show your understanding of the expression “Emergency does not create power.”

TEXT 3 THE AMERICAN CONSTITUTIONAL SYSTEM: PRINCIPAL CHARACTERISTICS Constitutionalism – Constitutional Government In the American constitutional system, the authority of government is defined, limited, and distributed by law – by the fundamental law of the United States Constitution. American government is conducted in accordance with and within the limits set by the fundamental law of the Constitution. The U.S. Constitution, as a body of written basic law, is superior to and takes precedence over all ordinary acts of Congress and the state legislatures and over all decisions and actions of the executive branches of the national and state governments. Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government. Thus, American government is limited government – limited government under the Constitution. The powers of American 131

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government are effectively limited by law – limited by the fundamental law of the Constitution. The U.S. Constitution not only limits the authority of the U.S. central government, it also limits the authority of the states and their local subdivisions. The authority of a state and its local communities is further limited by its own state constitution. American constitutionalism at the national level dictates that the central government operates in accord with the provisions of the U.S. Constitution and that it does not exceed the authority granted to it by the Constitution. Republicanism – Republican Government The United States of America is a republic. There are no inherited offices in the government. Every office in the government, legislative, executive or judicial, is filled by either election – direct or indirect – or appointment according to law. No government office is occupied by a hereditary monarch or titled nobleman. The U.S. Constitution prohibits both the national government and the states from granting or officially recognizing titles of nobility (Article I, Sections 9, 10). Moreover, the U.S. Constitution obligates the national government to guarantee each state a republican form of government (Article IV, Section 4). These constitutional provisions were intended to enhance the republican character of American government. The American system of government is a constitutional republic – a political regime in which the features of constitutionalism and republicanism are combined. The U.S. government is a constitutional republic, and so is each of the fifty states comprising the American federal union. 132

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Separation of Powers Three Separate Branches of Government: The U.S. Constitution divides the national government into three separate branches – legislative, executive, and judicial. The three branches of the national government are institutionally separate from and largely independent of one another. Allocation of Power among the Three Governmental Branches: The U.S. Constitution (1) grants certain powers to the national government and (2) allocates these powers among the three branches of the government. Each governmental branch is given its own set of powers; each branch has its own separate constitutional grant of authority. Congress. The powers of Congress are mainly legislative in character – primarily lawmaking powers. The President. The powers of the President are primarily executive. Presidential power is mainly authority to enforce, or carry out, the laws. The U.S. Courts. The powers of the U.S. Supreme Court and the other federal courts are judicial. Judicial authority is the power of the courts to interpret, or construe, the law. That is, the courts have power to decide (1) the meaning and intent of the law and (2) how the law is to be applied in particular cases. Checks and Balances Under the U.S. Constitution, each of the three branches of the national government has some authority to check and control the decisions and actions of the other branches. Each branch of government has the right to share or participate, to some degree, in the primary activities or functions of the other branches and, in so doing, to withhold consent, cooperation, and support in the areas where it shares decision-making authority with the other branches, delay and block the actions of the other branches, and thereby check and restrain the other branches in the exercise 133

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of their powers. Through the use of checks and restraints, one governmental branch can prevent the other branches from successfully encroaching on and usurping its own powers and force them to stay within the limits of their constitutional powers. Strict Legislative Bicameralism Each of the two houses of Congress has the power of absolute veto over legislation favored by the other house. The consent of a majority in each chamber is required for passage of a legislative bill by Congress. This makes the system of checks and balances a system in which four major governmental entities check and restrain one another. In the U.S. national government, there are four principal governmental organs, or institutions – the House of Representatives, the Senate, the Presidency, and the federal courts – checking and restraining each other. Operation of the principles of checks and balances and strict legislative bicameralism result in a fundamental political situation where four different and largely independent governmental entities are interdependent. The four principal organs of the national government are mutually dependent, i.e., dependent upon one another. Each of these major institutions of the central government, for effectiveness and success in the performance of its primary functions, is dependent upon the consent, cooperation, and support of the other governmental institutions. Balanced Government Balanced government is the consequence of combining separation of powers, checks and balances, and strict legislative bicameralism. One very important way in which the U.S. Constitution limits the authority of the national government is by dividing and distributing its powers among several separate and largely independent governmental organs. These governmental 134

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institutions reflect varying and competing interests and therefore have strong incentives to counteract and check one another. In counteracting and checking each other, the principal organs of government maintain an equilibrium, or balance, of power in the government and prevent any single faction or interest from dominating the entire government and all of its parts. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY discretionary, to exceed, to enhance, to construe, to withhold, to encroach, to usurp, incentive TASK I.  a) Match the words to their definitions or synonyms: 1) discretionary; 2) to exceed; 3) to enhance; 4) to construe; 5) to withhold; 6) to encroach; 7) to usurp; 8) incentive a) to seize and hold (a position, office, power, etc.) by force or without legal right; to use without authority or right; employ wrongfully; to commit forcible or illegal seizure of an office, power, etc.; to encroach; to seize, take over, or appropriate without authority; b) available to be decided according to one’s own judgment; voluntary, arbitrary; c) to hold back; to refrain from giving or granting; to restrain, check; d) to go beyond the limit or bounds of; to overstep, transcend; e) to give the meaning or intention of; to deduce by inference or interpretation; to arrange or combine (words, phrases, etc.) syntactically; explain; interpret; infer; f) to advance beyond proper, established, or usual limits; make gradual inroads; to usurp; g) to increase or improve in value, quality, desirability, or attractiveness; to raise to a higher degree; to intensify; magnify; 135

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h) something that encourages a person to do something or to work harder; encouragement, impetus, impulse, incitement, instigation, momentum, motivation, provocation, stimulant, stimulus. b) Use the above words in the following sentences: 1. Evidence that racial hatred was a motivation for a crime may be taken into account, and criminal sentence may be … because the defendant intentionally selected his victim on account of the victim’s race. 2. “The Sixth Amendment … from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” 3. An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment … that specified in the statutory definition of ‘‘petty offenses.’’ 4. The Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary … executive power in appointing such counsel. 5. “Where the subject matter requires a uniform system as between the States, the power controlling it is vested exclusively in Congress, and cannot … by the State.” 6. When a speech generates a perceived threat to public safety, the easiest police response may be to remove a speaker; yet, in such a case, opponents would have … to become violent if their actions would justify police action against a speaker, with serious consequences for the First Amendment freedom. 7. In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson … the 136

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treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. 8. The actual exercise of appellate jurisdiction by the Supreme Court is one characterized by significant statutory discretion. Such … flexibility is not the rule for all other federal courts. c) Use the GLOSSARY to translate the following sentences: 1. The right to petition creates incentives and protections for individuals and groups to communicate, act politically, and seek political change – by conveying citizens’ opinions directly to governing officials, placing issues on the political agenda, and pressuring government to respond to political problems. 2. State governments frequently offer tax reductions to businesses as an incentive to locate or to remain within the state. Some scholars warn that states are engaged in a “race to the bottom” as each one offers greater incentives, thereby reducing the tax revenues that fund government services. 3. Certain state tax incentive programs have been found to violate the commerce clause of the U.S. Constitution, which is intended to create a free trade area between and among the states. 4. A tax incentive violates the commerce clause when it has the effect of providing lower tax rates to in-state businesses than those imposed on out-of-state ventures. Because such tax incentives do not directly conflict with congressional legislation under the commerce clause, they are said to violate the “dormant” or “negative” commerce clause. 5. Although the Sentencing Commission was given significant discretionary authority “to determine the relative severity of federal crimes, to determine which crimes have been punished too leniently and which too severely,” Congress also gave the Commission extensive guidance in the Act, and did not confer 137

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authority to create new crimes or to enact a federal death penalty for any offense. 6. During the 1980s, the courts were no more receptive to suits, many by Members of Congress, seeking to obtain a declaration of the President’s powers. The political question doctrine as well as certain discretionary authorities were relied on. 7. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. The Senate has determined that disqualification may be accomplished by a simple majority vote. 8. The Marshall Court also invoked the supremacy clause to enhance national supremacy with respect to the states. In McCulloch v. Maryland, the Court ruled that a state tax on the Bank of the United States violated the supremacy clause. 9. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. 10. Due process tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. 11. The City of New York filed a lawsuit challenging Nixon’s refusal to spend appropriated monies for projects he did not support, and the Supreme Court ruled that presidents had no constitutional authority to withhold funds allotted by law. 138

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12. In collecting personal income taxes, most States require employers to deduct and withhold the tax from the wages of employees. 13. Under a written constitution, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution – the law which is construed. 14. The Ninth Amendment, which states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” clearly recognized that individuals had a list of natural rights that the government could not restrict. 15. An ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it encroached on the freedom of assembly. 16. The courts ensure that the administration of the law neither unduly encroaches upon nor curtails the liberties of those being regulated. 17. Critics argued that the Court had gone too far in striking down laws as unconstitutional. An ethic of judicial self-restraint no longer seemed operative, and the Supreme Court seemed to its critics to be usurping the powers of the elected legislatures by means of judicial subjectivism and thus looking to find ways to rationalize results that a majority on the Court held desirable. 18. Section 2 of the Twenty-first Amendment of the U.S. Constitution grants states the power to set minimum drinking ages, and it is unconstitutional for the federal government to usurp this power with a condition on its funding. 19. “The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment 139

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exceeds the scope of legislative power as circumscribed by the Constitution.” 20. A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months. TASK II.  Match the headings to the passages below: 1) Coordinate Organs of Government; 2) Separate and Independent Election of the Chief Executive; 3) Separation of Personnel; 4) Terms of Office Fixed, or Specified, in the Constitution. A. The Constitution requires different personnel (different people) in each of the three branches of the national government. The Constitution prohibits the practice of the same persons simultaneously holding office in two or more branches of the government. Before an officeholder in one branch of the national government can legally take office in another branch, he must first resign the office he is currently holding. Examples of the application of this constitutional rule include the following: An incumbent U.S. Senator runs for and is elected President. Before he can be inaugurated as President and assume the office, he must first resign his seat in the U.S. Senate. The President wants to appoint a particular U.S. Representative to an important post in the Cabinet – say, Secretary of the Treasury. The President makes the appointment and the Senate confirms it. Before the Representative can take the executive office to which he has been appointed, he must resign his seat in the U.S. House of Representatives. U.S. Supreme Court justice, due to advanced age and declining health, announces his resignation, thereby creating a vacancy on the Court. The President appoints his Attorney General to fill the vacancy and the Senate confirms the 140

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appointment. Before the Attorney General can join the Supreme Court, he must resign his executive office – the office of Attorney General of the USA. B. The U.S. Constitution specifies the terms of office of national legislators, the chief executive, and members of the federal judiciary. The Constitution specifies two-year terms for U.S. Representatives, six-year terms for U.S. Senators, a fouryear term for the President, and terms during good behavior for all federal judges. What is the significance of this arrangement? The personnel in one branch of the government cannot be removed from office (before their terms expire) simply because they lose the support and favor of another branch. For example, the President does not have to resign his office if he loses the confidence or support of a simple majority (50.1 percent) in either house of Congress, or even in both houses. C. The Constitution mandates election of the President separately from and independently of the legislative branch. Every four years, congressional elections and the election of presidential electors are held at the same time and in the same polling places. However, the congressional elections on the one hand and the election of presidential electors on the other are entirely different sets of elections. The success of a presidential candidate at the polls is not dependent upon the success of his political party’s candidates for seats in Congress. One party’s candidate for President can win the presidential election, while the opposing party wins a majority of the seats in either one or both houses of Congress. D. The Constitution makes the three governmental branches coordinate organs of government. That is, they are constitutionally equal to each other in rank. No branch of the national government is constitutionally subordinate to another branch. In particular, neither of the two elective branches of 141

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government is subordinate to the other. Each elective organ – legislature or chief executive – is responsible (accountable, or answerable) to its own constituency, not to another elective organ of government. TASK III.   Match the headings to the passages below to explain how the system of checks and balances operates: 1. How the U.S. Courts Can Check and Restrain Congress and the President. 2. How Congress Can Check and Restrain the President. 3. How Congress Can Check and Restrain the U.S. Courts. 4. How the President Can Check and Restrain Congress. 5. How the President Can Check and Restrain the U.S. Courts. A. The President shares the national legislative authority with the two chambers of Congress. A legislative bill passed by the Senate and House of Representatives cannot become law without the President’s consent and signature, unless, after the President has vetoed the bill and returned it to Congress, each of the two chambers, on a vote of reconsideration, marshals a two-thirds vote to pass the bill over the President’s veto. The President’s power to veto national legislation is a very potent check on the power of Congress. The presidential veto is made potent by the utter difficulty of getting a two-thirds vote in the two houses of Congress to override the veto. For all practical purposes, the President is a third house of the national legislature. B. Obviously, the power of Congress to override a presidential veto is a rather weak check on the President. However, there are other, more potent checks available that enable Congress to thwart and restrain the President. Congress can refuse to pass a legislative bill desired by the President. Most importantly, Congress can refuse to appropriate funds requested by the President or any of the executive branch departments or agencies. 142

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The Senate, deciding and deciding alone, without the necessity of House concurrence, can exercise some potent checks and restraints on presidential power. The Senate can refuse to confirm a presidential appointment and thereby prevent it from going into effect. One third of the Senate, plus one additional Senator, can block ratification of a treaty submitted by the President. If extraordinary action is deemed necessary, Congress can institute impeachment proceedings against the President. In impeachment proceedings, the House of Representatives, by simple majority vote, brings an impeachment charge against the President. The Senate tries the President on the impeachment charge. If the Senate produces at least a two-thirds vote to convict the President of the crime or other act of misbehavior with which he is charged, he is removed from office and permanently barred from again holding any government office under the U.S. Constitution. C. Congress can check the federal courts by enacting laws which increase the size (membership) of the Supreme Court and reduce the Court’s appellate jurisdiction and which change the number and jurisdiction of the lower federal courts. The Senate can confirm or reject federal judges appointed by the President and thereby impact upon the membership and political philosophy of the federal judiciary. When extraordinary action is deemed necessary, Congress can institute impeachment proceedings against federal judges, including Supreme Court justices. D. The President can join the two houses of Congress in checking and restraining the federal courts. How? By consenting to and signing congressional legislation increasing the size of the Supreme Court, reducing its appellate jurisdiction, and changing the number and jurisdiction of the lower federal courts. When vacancies on the U.S. Courts occur, the President appoints federal judges, subject to Senate confirmation. In 143

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exercising this power, the President may have an impact upon the membership and political philosophy of the federal courts. However, this is not a strong check on the federal judiciary. Federal judges serve during good behavior and therefore enjoy the benefit of judicial independence. Once a judge has been appointed and the Senate has confirmed the appointment, the President has no control over the judge’s decisions. A judge is answerable neither to the chief executive nor to the legislature for his decisions in cases coming before his court. E. The federal courts, through exercise of the power of judicial review, can check and restrain Congress and the President. A federal court can declare unconstitutional and null and void a statute enacted by Congress. That is, the court can decline to uphold and enforce a congressional statute on the grounds that the statute is contrary to the U.S. Constitution. A federal court can invalidate – i.e., set aside, declare illegal and of no force and effect – a decision or action of the President or another federal executive officer on the grounds that the decision or action violates the Constitution or a federal statute. TASK IV.  a) Use the GLOSSARY to define constitutional government; limited government; republican government and to translate the following passages: 1. On the inner workings of the Court, social scientists long have argued that political creatures inhabit the Court, that justices are not simply neutral arbiters of the law. Since 1789, the beginning of constitutional government in the United States, those who have ascended to the bench have come from the political institutions of government or, at the very least, have affiliated with particular political parties. 2. Former Supreme Court justice Thurgood Marshall, in reflecting during the bicentennial in 1987 on the Constitution and its opening three words remarked: “I do not believe that 144

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the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” 3. Locke’s arguments in favor of individual rights, property, limited government, and the right of the people to hold their governors accountable to them, including through the threat of rebellion, appealed to the American founding generation, influencing not only the drafting of the Declaration of Independence, but also the Constitution. 4. Modern writers, like English philosophers John Locke (1632–1704) and William Blackstone (1723–1780), offered elaborate theories based on natural law, and both Locke and Blackstone influenced many American thinkers on matters relating to natural law, natural rights, individualism, the right of revolution, and the need for limited government. 5. Locke explicitly linked the concept of natural law with advocacy of limited government and the right of revolution. In the United States, republicanism denotes limited government in the form of representative democracy. Citizens elect representatives who govern on their behalf, but within the constraints of the rule of law. Republican governments have nonhereditary leadership for fixed terms, are dependent upon the will of the people, and aim at promoting the collective public interest. 6. Alexander Hamilton, in Federalist 84, described the prohibition of titles of nobility as being “the cornerstone of republican government,” noting that “so long as they are excluded there can never be serious danger that the government will be 145

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any other than that of the people.” In Federalist 85, Hamilton listed the prohibition as being among “the additional securities to republican government, to liberty, and to property.” b) Describe the type of government in your country. TASK V.  a) Add bicameralism, unicameral, bicameral to complete and translate the following sentences, use the GLOSSARY: 1. The Framers’ goal was to protect liberty, preserve popular government, and limit the threats of what we would now call the tyranny of the majority and the Constitution would secure these goals by setting up an elaborate machine that would use checks and balances, separation of powers, … , federalism, and self-interest to check political power. 2. … is the principle that describes the division of power in the U.S. legislative branch between the House of Representatives and the Senate. … is provided for in Article I of the U.S. Constitution and is one of the many checks placed upon legislative power. 3. … describes any legislature composed of two distinct chambers. The chambers, or houses, are often differentiated on the basis of their constituencies or method(s) of election or selection. A so-called lower house is normally directly elected by the general voting-age population, while the upper house may be appointed, directly elected, or indirectly elected. … , in the U.S. Constitution, provides for checks and balances of legislative authority by dividing its powers between the two houses, requiring concurrence in the passage of legislation while assigning unique authority to one chamber or the other, for example, ratification of treaties, confirmation of appointments, and origination of revenue bills. 4. The governments of many countries utilize … parliaments, though some democratic nations operate under a … (single chamber) parliament, an example being the Knesset in Israel. 146

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5. The lengths of members’ terms differ by chamber, with lower-house delegates serving shorter terms (normally two years) and upper-house delegates serving longer ones (normally four to six years). When applied to governments in the United States, the U.S. Congress and 49 of the 50 states operate with … legislatures. Only Nebraska maintains a … legislature, a feature it implemented in 1937, championed by U.S. senator George W. Norris. The vast majority of local governments in the United States – cities, towns, boroughs, school districts, etc., – employ … bodies, such as city councils, boards, or commissions. 6. Dividing a parliament into two chambers establishes an internal check on legislative powers. To pass a law, both chambers must agree on exactly the same language, which requires compromise between the houses, thereby greatly reducing extremist legislation. Critics of … legislatures argue that they are inefficient and easily stalemated by partisan politics. 7. The … tradition in the United States may be traced to the British Parliament, which itself is a … institution. As each of the thirteen colonies in America established its government, many adopted the English model, although several, such as Pennsylvania, opted for a … body. The first U.S. constitution – the Articles of Confederation – created a … legislature in which each state, regardless of the size of its population or delegation to the congress, received one vote. b) Describe the national legislature in your country. TASK VI.  Read the text to justify or to question the existence of bicameralism: Scholars have made a number of arguments to explain the emergence of bicameral legislatures. One of the most common arguments for the emergence of bicameralism in Britain and its American colonies is that it helped to preserve “mixed gov147

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ernments,” to ensure that upper class elements of society were protected (Wood, 1969; Tsebelis and Money, 1997). In such settings, bicameralism allowed the upper chamber, dominated by aristocrats, to have a veto on policy. More generally, an explicit role of some bicameral systems has been the protection of some minority who is overrepresented in the upper chamber. A second rationale for bicameralism is the preservation of federalism. The United States, Germany, and other federal systems use a bicameral system in order to ensure the representation of the interests of individual states and provinces, as well as the population of the country. Under “federal bicameralism,” the lower house is typically apportioned on the basis of population, while the upper house is divided amongst the regional units. Some countries, such as the United States, provide equal representation for the states regardless of their population or geographic size, while others, like the Federal Republic of Germany, unequally apportion the upper chamber by providing additional representation to the larger units. TASK VII.  Discuss the issues raised in the text; add, if possible, any other views on or approaches to the doctrine: Major issues under the doctrine of separation of powers The major purpose of the doctrine of separation of powers is maintaining the constitutional allocation of powers. Consequently, its chief concerns are whether some branch is improperly exercising powers the Constitution has assigned to another branch; whether one branch is improperly inhibiting another branch’s legitimate exercise of its powers; and whether one or another branch is improperly enhancing power at the expense of another branch. There are two major problems in this area of constitutional law. The first is that the Constitution does not define the powers 148

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that it confers on the branches of government. While perhaps everyone might agree on what is central to legislative or executive or judicial action, there are cases involving governmental activities difficult to characterize under these headings. The second problem arises out of the so-called fourth branch of government, the administrative agencies. Many administrative agencies exercise legislative, executive, and judicial powers, and there have been difficulties incorporating them into a rigorous scheme of separation of powers. TASK VIII.  Read the text to explain Madison’s concerns about the new Constitution: For Madison the immediate and pressing question was whether the newly proposed Constitution would indeed make for safe government. There were, he confessed to Jefferson (no. 22), reasons to fault the plan. Though it represented an advance over the Articles of Confederation – “a Confederacy of independent States” – it still was not more than “a feudal system of republics.” As such it was not adequate to secure the federal government against the encroachments of the states nor “to prevent instability and injustice in the legislation of the States.” The remedy for Madison lay in a congressional power to veto state laws, a proposal he had steadfastly fought for in the Philadelphia Convention but to no avail. “It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority.” Madison found the answer to that question in the very extent of the republic: its sheer size and heterogeneity made possible the benign application of that “reprobated axiom of tyranny,” divide and rule. But if a large republic made it difficult for “oppressive combinations” to form, so too did it make it dif149

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ficult for “a defensive concert” against administrative tyranny. Here the Constitution ought to be scrutinized to see whether the government it established has “sufficiently controlled itself, from setting up an interest adverse to that of the entire Society.” Further detailed evidence of what Madison took to be the ingredients of a sufficiently controlled government may be gathered from his close critique of Jefferson’s draft of a constitution for Virginia, observations written for the would-be founding fathers of Kentucky (no. 25). TASK IX. Provide your arguments to agree or disagree with the former Supreme Court Justice Thurgood Marshall: The Constitution of today is very different from the one written by the Framers. The document of 1787 was born of the politics of the times. It was a constitution written for an agrarian society fearful of central power. It was a constitution that provided for slavery and failed to guarantee explicitly the right to vote, and it was a document produced in an era well before the advent of the Internet, cell phones, cars, airplanes, and nuclear bombs. Moreover, as the historian Richard Hofstadter contended in The American Political Tradition, the men who wrote the Constitution went to Philadelphia with value-laden assumptions about human nature and theories of politics and economics that may be very different from the ones that many of us hold today (former Supreme Court Justice Thurgood Marshall, 1987). NOTES TO THE TEXT: Thurgood Marshall (1908–1993) – an Associate Justice of the United States Supreme Court (1967–1991). Marshall was the Court’s 96th Justice and its first African-American justice. Richard Hofstadter (1916–1970) – an American historian and public intellectual of the mid-20th century. 150

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The following issues will help you to answer the exam question THE ORIGINS AND PRINCIPLES OF THE U.S. CONSTITUTION and to write your essay: 1. Colonial constitutional experience. 2. Practical application of European theories and ideas. 3. Federalism as a new constitutional order. 4. Constitutional government. 5. Republicanism. 6. Separation of powers – checks and balances. 7. Bicameralism.

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UNIT III U.S. CONGRESS TEXT 1 Historical and Constitutional background of Legislative Power Enumerated Powers of Congress Article I vests “all legislative Powers herein” in the Congress and later (in § 8) lists those powers. This list of powers was a compromise resulting from one of the major differences of opinion at the convention. The Virginia delegation proposed – in direct response to the problems that had been experienced under the Articles of Confederation – that Congress be given the power “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation,” However, other delegates objected that this gave too much power to Congress. The final compromise language listed particular subject-matter areas in which it was anticipated that individual state legislation would be disruptive of the “harmony of the United States.” Because the powers are set out individually in a list, they are often referred to as Congress’s “enumerated powers.” The major powers listed in § 8 are those one would expect a national government to have: the powers to issue money, to establish a postal system, to create federal courts, to raise an army 152

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and navy, to declare war, to collect taxes and spend money for the general welfare, and the like. As it has developed, the most important of the powers granted is the one empowering Congress to regulate interstate commerce. Compromise on Representation Another major disagreement among the Framers arose over the composition and the method of selection of the national legislature provided for under Article I. The Federalists wanted representation in the legislature based on population, rather than on equal state representation. This would prevent states representing a minority of the population from blocking national legislation, as had happened under the Articles of Confederation. However, strong opposition from the smaller states forced the Framers to compromise. A dual system of representation in a bicameral or two-chamber Congress was agreed to. One “house,” the House of Representatives, would have proportional representation based on population, while the other house, the Senate, would have equal representation from each state. To assure that the House of Representatives would better reflect the prevailing sentiment of the voters, its members, called “representatives” or simply “members of Congress,” were made subject to re-election every 2 years. Senators would serve 6-year terms so as to provide some stability. Both houses would have to agree to legislation before it could become law. In accordance with this system, today there are 100 Senators (two from each of 50 states) and 435 members of the House of Representatives representing the residents of as many districts throughout the country. The 435 House seats are divided among the states based on total population (281,421,906 in 2000), but allowing every state a minimum of one representative. 153

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Compromise on Slavery In the southern states, an agricultural economy based on slavery had developed and the question of slavery came up several times at the convention. Slavery was not abolished by the Constitution nor was Congress given the power to abolish it. Despite viewing slaves as property rather than human beings, southern delegates insisted that they be counted the same as citizens in determining the number of representatives in Congress. A compromise was reached to count slaves as three-fifths of a free person. “Southerners also insisted on a provision requiring the return of escaped slaves from other states.” However, many of the Framers hoped that slavery would eventually be abolished and, in another compromise, Congress was authorized to outlaw further importation of slaves after the year 1808. Assuring the Supremacy of Federal Law Another area of disagreement that arose during discussions of the legislative power was how to deal with conflicts between federal legislation and state law. Under the Articles of Confederation serious problems had arisen when states simply ignored federal laws and treaties which they did not like. Originally, Madison’s plan called for a veto procedure whereby Congress could pass resolutions that would annul the effect of particular state laws. Others argued that this means of assuring federal supremacy would be too direct an affront to the states and unwieldy. The Framers settled upon a clause, set out in Article VI, which is referred to as the “supremacy clause”: This Constitution and the Laws of the United Stales which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary not withstanding. 154

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Congress’s “Power of the Purse” A power of Congress about which the Framers did not disagree was the “power of the purse.” They resolved that the sole power to decide whether and to what extent to tax and fund governmental programs must be lodged in Congress. “Further, Article I gives the sole power to originate revenue bills to the House of Representatives, the house most directly representative of the people.” This clause assured that there would be “no taxation without representation” – a major complaint about British colonial taxes. In addition, the “power of the purse” would serve as a democratic curb on presidential excesses and adventures, since both would likely need funding. The Framers also gave Congress the ultimate check on executive and judicial power – the power of impeachment and removal from office of any “civil Officers of the United States,” including the President and any federal judge. NOTES TO THE TEXT James Madison (1751–1836) – an American politician and the fourth President of the United States (1809–1817), one of the Founding Fathers of the United States. Considered to be the “Father of the Constitution,” the principal author of the document. In 1788, he wrote over a third of the Federalist Papers, still the most influential commentary on the Constitution. As a leader in the first Congresses, he drafted many basic laws and was responsible for the first ten amendments to the Constitution (said to be based on the Virginia Declaration of Rights), and thus is also known as the “Father of the Bill of Rights.” As a political theorist, Madison’s most distinctive belief was that the new republic needed checks and balances to limit the powers of special interests, which Madison called factions. He believed very strongly that the new nation should fight against aristocracy and corruption and was deeply committed to creating mechanisms that would ensure republicanism in the United States. 155

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The Articles of Confederation – the Continental Congress adopted the Articles of Confederation, the first constitution of the United States, on November 15, 1777. However, ratification of the Articles of Confederation by all thirteen states did not occur until March 1, 1781. The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments. The need for a stronger Federal government soon became apparent and eventually led to the Constitutional Convention in 1787. The present United States Constitution replaced the Articles of Confederation on March 4, 1789. Enumerated powers – powers specifically listed in Article I, Section 8 of the Constitution as being granted to the Congress. Supremacy clause – article VI, Section 2 of the Constitution, which states that the “Constitution, and the laws of the United States made in pursuance thereof ... shall be the supreme law of the land.” Thus, if any state laws come into conflict with the Constitution, then the Constitution must win out. Express powers – powers which are directly specified in the Constitution. Implied powers – powers which are not explicitly stated in the constitution, but which are implied through the “necessary and proper” clause in Article I, Section 8. Inherent powers – powers which the national government naturally has to represent the country in relations with other countries. Revenue bill – focuses on methods for raising money, e.g. taxes, user fees, customs duties, and tariffs Under the U.S. Constitution, federal revenue bills are required to be initiated in the House of Representatives. Many state statutes have similar statutes, requiring revenue bills to originate in a particular house of the legislature, or that revenue bills must be passed before a certain number of days prior to the expiration of the legislative session. Subject-matter – the matter or thought presented for consideration in some statement or discussion; that which is made 156

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the object of thought or study. The cause, the object, the thing in dispute. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY To vest (in), to vest (with), to list, to set out, to raise, to grant, to empower, to abolish, to outlaw, to annul, provision, clause, excess, check, adventure, means TASK I.  a) Match the words to their definitions: 1) to vest (in) a) to give; accord, bestow 2) to vest (with) b) to declare illegal c) a clause in a law, legal instrument, etc., 3) to list providing for somethin d) to invest with power, especially legal power 4) to set out or official authority e) to verify by consulting a source or authority 5) to raise 6) to grant f) to place or settle in the possession or control of someone (usu. fol. by in): to vest authority in a new official 7) to empower g) to give a full account of; explain exactly 8) to abolish h) an action or influence that stops motion or expression; a restraint i) to set down together in a list; make a list of 9) provision 10) to outlaw j) to invest or endow with something, as powers, functions, or rights: to vest the board with power to increase production k) a behavior or an action that exceeds proper 11) to annul or lawful bounds 157

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12) clause 13) excess 14) check 15) to check

l) to do away with (laws, regulations, customs, etc.); put an end to m) to make or declare void or invalid, as a marriage or a law; nullify n) a distinct article, stipulation, or provision in a document o) to cause to assemble or gather together; collect

b) Add the words from ACTIVE VOCABULARY to complete the following sentences: 1. Lebanese Foreign and Expatriates Minister Adnan Mansour on Sunday called on the Arab League Council to issue a decision to ... the suspension of Syria’s membership in the League and lift the economic sanctions against it, calling for voting on this issue if necessary. 2. Congress can ... an army to deal with military situations. 3. The Constitution that the delegates proposed included several ... that explicitly recognized and protected slavery. 4. Congress may only make laws respecting the Powers ... and enumerated in the Constitution. 5. The U.N. General Assembly on Monday condemned religious intolerance without urging states to ... “defamation of religions.” 6. The Court concluded the federal government “has a power over its own property analogous to the police power” of the states. The Court did “not think it appropriate [in Kleppe] ... to determine the extent to which the Property Clause ... Congress to protect animals on private lands.” 7. The rules for use of police powers such as arrest are ... in the Police and Criminal Evidence Act of 1984 (PACE) and accompanying PACE codes of practice. 158

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8. France ... slavery in 1789 as a result of its revolution, but it restored it a few years later in its colonies. 9. Use our independent resources to ... on your doctor at Consumer Reports Health. 10. The Commonwealth legislative power is limited to that ... in the Constitution. 11. Many parts of the U.S. Constitution are best known by their popular names, such as the Elastic ... . 12. The Constitution designed the federal government to be a government of limited and enumerated, or ... , powers. 13. Parliament’s backtracking on allowances for MPs proves that citizens can check ... by public officials and inspire positive change if they choose to engage actively with governance issues. 14. There has been bipartisan support for a payroll tax cut for employers as a … to spur job growth. 15. Clifford Chance has had its share of troubles over the years, from its unhappy merger with Rogers & Wells and disastrous West Coast ... in the U.S. TASK II.  a) Match the words on the left with the words and word combinations on the right; check against the text: 1) individual 2) major 3) proportional 4) equal 5) prevailing

a) representation b) sentiment c) state legislation d) powers e) representation

b) Use the following words limited; state legislation; broad; distinct; majority; equal; equal; proportional; proportional to complete the sentences: 159

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1. The larger states argued in favor of … representation in the legislature – each state should have voting power according to its population. 2. The smaller states, fearing domination by the larger ones, insisted on … representation for all states. 3. The issue was settled by the “Great Compromise,” a measure giving every state … representation in one house of Congress and … representation in the other. 4. Because it was considered more responsive to … sentiment, the House of Representatives was given the power to originate all legislation dealing with the federal budget and revenues. 5. The Court is also asked to determine the meaning and/or constitutionality of … . 6. The Articles of Confederation devised a loose association among the states and set up a federal government with very … powers. 7. The Constitution, by contrast, established a strong central, or federal, government with … powers to regulate relations between the states and with sole responsibility in such areas as foreign affairs and defense. 8. Early in the proceedings the delegates agreed that the new government would be composed of three separate branches – legislative, judicial, and executive – each with … powers to balance those of the other two branches. c) Translate the following sentences: 1. While the Constitution spells out in some detail the duties and powers of the president, it does not delegate any specific executive powers to the vice president, to the 15-member presidential cabinet (made up of the heads of the federal departments), or to other federal officials. 2. In 1819, the Supreme Court held and established that a college’s charter could be construed as a contract, and therefore, 160

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state legislation could not impair or alter a college charter (in that case Dartmouth College’s charter), as it would then be altering a contract’s created obligations as previously entered into by the college. 3. In Atkins, the Supreme Court observed a historical trend in state legislation favoring the elimination of the death penalty as a punishment for offenders with mental disabilities. This trend began in 1986, with Georgia enacting a statute prohibiting the execution of such offenders. In the following years, 18 more states enacted legislation forbidding the execution of the mentally disabled. 4. As for the judiciary, the qualities wanted there are special as well: not the executive’s energy and dispatch, nor the legislator’s responsiveness to popular sentiment or ability to compromise, but “integrity and moderation.” 5. By the time the First Congress convened, sentiment for adoption of the Bill of Rights was nearly unanimous, and the Congress lost little time in drafting it. 6. Each state is entitled to two senators. Thus, Rhode Island, the smallest state, with an area of about 3,156 square kilometers, has the same senatorial representation as Alaska, the biggest state, with an area of some 1,524,640 square kilometers. 7. The speaker and the president pro tempore are always members of the political party with the largest representation in each house. TASK III. a) Compare the meanings of the prefix dis-: 1) a) do the opposite of; disestablish; b) deprive of (a specified quality, rank, or object); disfranchise; c) exclude or expel from; disbar; 2) opposite or absence of; disunion; disaffection; 3) not disagreeable; 4) completely; disannul. 161

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b) Match the words on the left with their synonyms on the right: 1) dishonest 2) disinterested 3) disorder 4) displacement 5) to disregard

a) unbiased, indifferent b) irregularity c) unfair, deceptive d) to neglect e) substitution

c) Translate the following passages: 1. More important, overruling Miranda would disregard the principles of stare decisis. 2. Because it is too much to expect that jurors can remain uninfluenced by evidence they receive even though they are instructed to use it for only a limited purpose and to disregard it for other purposes, the Court will not permit a confession to be submitted to the jury without a prior determination by the trial judge that it is admissible. 3. False advertising is generally determined by two standards: specific dishonest claims and deceptive advertising. Dishonest claims are simply false statements about prices, quality, or conditions of products. Deception is more difficult to prove. 4. When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue. 5. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. 6. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member. 162

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7. Calhoun, John C. (1782–1850) – Secretary of State, Secretary of War, U.S. Vice President. Calhoun’s key concern was the threat of an oppressive national government. He argued: “government, although intended to protect and preserve society, has itself a strong tendency to disorder and abuse of its powers, as all experience and almost every page of history testify.” 8. The gun control proponents argue that while the Second Amendment originally referred to an individual right to bear arms in an organized, governmentally sponsored militia, they suggest that the amendment “fell silent” with the decay of the old militia and its eventual displacement by the National Guard. Thus, they argue that the conditions under which the Second Amendment made sense no longer exist and that the amendment is now irrelevant, although they acknowledge that it could become relevant again under changing circumstances. TASK IV.  a) Match the verbs from the text with their definitions: 1) vest 2) legislate 3) disrupt 4) anticipate 5) raise 6) resolve 7) lodge

a) to lay (as a complaint) before a proper authority; file b) to interrupt the normal course or unity of smth c) to authorize, empower d) to reach a firm decision about smth e) to make or enact laws f) to foresee and deal with in advance g) to get together for a purpose, collect

b) Use the verbs lodged; is vested with; anticipate; anticipated; disrupted; be raised; are resolved; lodged; be vested in; resolved; to disrupt; vested to complete the following sentences: 163

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1. The Constitution adopted in 1787 … executive power in a president and that remains the case today. 2. Disputes between different jurisdictions … by the courts. 3. The legislative veto offered a different kind of check on congressional delegations of lawmaking authority, a check … exclusively in the legislative branch itself. 4. There were sharp differences of opinion that threatened at times … the convention and cut short its proceedings before a constitution was drafted. 5. Among the most harmful were trade barriers intended to protect businesses native to particular states, barriers that interfered with interstate trade. The commerce clause firmly removed such power from the states and … it in the new federal government. 6. Absence of a uniform, stable currency also … trade among the states and with other countries. 7. Despite the constitutional provision that “all legislative powers” shall … the Congress, the president, as the chief formulator of public policy, has a major legislative role. 8. The Framers … that most federal revenue would … by indirect levies, such as tariff duties and excise taxes. 9. The Twelfth Amendment’s real purpose is limited to presidential elections. Its need was a result of the emergence of political parties in the United States, something the original Framers of the Constitution did not either … or desire. 10. Chief Justice John Marshall … this dilemma (Marbury v. Madison, 1803) by ruling that the Supreme Court did not have authority to act in this case. 11. The National Labor Relations Board (NLRB) … the power to prevent or remedy unfair labor practices and to safeguard employees’ rights to organize and determine through elections whether to have a union as their bargaining representative. 164

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c) Use derivatives of legislate in the following passages: 1. It is theoretically possible for the House to be composed entirely of … novices. In practice, however, most members are reelected several times, and the House, like the Senate, can always count on a core group of experienced … . 2. Each house of Congress has the power to introduce … on any subject except raising revenue, which must originate in the House of Representatives. The large states may thus appear to have more influence over the public purse than the small states. In practice, however, each house can vote against … passed by the other house. 3. Bills are introduced by a variety of methods. Some are drawn up by standing committees; some by special committees created to deal with specific … issues; and some may be suggested by the president or other executive officers. TASK V.  Complete the following statements: 1. The final compromise language listed … . 2. The Federalists wanted representation … . 3. However, many of the Framers hoped that slavery would … . 4. Another area of disagreement that arose … . 5. A power of Congress about which the Framers did not disagree … . 6. The Framers also gave Congress … . TASK VI.  Use the text to fill in the table below to discuss the raised problems and their solutions: Areas of Disagreement

Final Decision

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TASK VII.  a) Use the following words to complete the sentences below: counterfeiters; money; piracy; naturalization; effect; war; lawlessness; authority; copyrights; exports; invasions; armies; federal laws; government; system; trial; public treasury; people; Constitution; post offices; commerce; standards; navy; country; citizens; vessels; taxes; crime; Article I; nobility: The broad powers of the whole Congress are spelled out in 1) … of the Constitution: • to levy and collect 2) … ; • to borrow money for the 3) … ; • to make rules and regulations governing 4) … among the states and with foreign countries; • to make uniform rules for the 5) … of foreign citizens; • to coin 6) …, state its value, and provide for the punishment of 7) … ; • to set the 8) … for weights and measures; • to establish bankruptcy laws for the 9) … as a whole; • to establish 10) … and post roads; • to issue patents and 11) … ; • to set up a 12) … of federal courts; • to punish 13) … ; • to declare 14) … ; • to raise and support 15) … ; • to provide for a 16) … ; • to call out the militia to enforce 17) … , suppress 18) … , or repel 19) … ; • to make all laws for the seat of 20) … (Washington, D.C.); • to make all laws necessary to enforce the 21) … . A few of these powers are now outdated, but they remain in 22) … . The Tenth Amendment sets definite limits on congressional 23) … , by providing that powers not delegated to the national government are reserved to the states or to the 24) … . In addition, the Constitution specifically forbids certain acts by Congress. 166

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It may not: • suspend the writ of habeas corpus – a requirement that those accused of crimes be brought before a judge or court before being imprisoned – unless necessary in time of rebellion or invasion; • pass laws that condemn persons for crimes or unlawful acts without a 25) … ; • pass any law that retroactively makes a specific act a 26) … ; • levy direct taxes on 27) … , except on the basis of a census already taken; • tax 28) … from any one state; • give specially favorable treatment in commerce or taxation to the seaports of any state or to the 29) … using them; • authorize any titles of 30) … . b) Compare the powers of the US Congress with those of your national legislature. TASK VIII.  Reading comprehension check – Historical and Constitutional background of Legislative Power: 1. What compromise did the delegates reach at the Convention? 2. What did the Virginia delegation propose? 3. Why were other delegates against the proposal? 4. Why is the list of powers called “enumerated powers”? 5. What are the major powers of Congress? 6. What kind of representation in Congress did the Federalists insist on? 7. Which system of representation was agreed to? 8. What terms do Representatives and Senators serve? 9. How many Senators and Representatives are there? 10. Why did southern delegates insist that slaves be counted the same as citizens? 167

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11. Why didn’t the Framers abolish slavery? 12. How did the Framers solve the conflict between federal legislation and state law? 13. Why did Article I give the sole power to originate revenue bills to the House of Representatives? 14. Why is the power of impeachment so important? 15. Name the powers of Congress. 16. Describe the dual system of representation in the USA. 17. Explain the importance of the compromise on slavery. 18. Explain what federal supremacy means. TASK IX. Comment on the following quotations: 1. Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote! Benjamin Franklin (1706–1790) 2. Democracy substitutes election by the incompetent many for appointment by the corrupt few. George Bernard Shaw (1856–1950), “Maxims for Revolutionists” 3. Tyranny is always better organized than freedom. Charles Pegui (1873–1914), a French writer

TEXT 2 CONGRESS MEMBERSHIP Composition, Qualifications Article I, Section 1, of the United States Constitution, provides that: 168

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All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The Senate is composed of 100 Members – two from each state, regardless of population or area – elected by the people in accordance with the 17th Amendment to the Constitution. The 17th Amendment changed the former constitutional method under which Senators were chosen by the respective state legislatures. A Senator must be at least 30 years of age, have been a citizen of the United States for nine years, and, when elected, be a resident of the state for which the Senator is chosen. The term of office is six years and one-third of the total membership of the Senate is elected every second year. The terms of both Senators from a particular state are arranged so that they do not terminate at the same time. Of the two Senators from a state serving at the same time the one who was elected first – or if both were elected at the same time, the one elected for a full term – is referred to as the “senior” Senator from that state. The other is referred to as the “junior” Senator. If a Senator dies or resigns during the term, the governor of the state must call a special election unless the state legislature has authorized the governor to appoint a successor until the next election, at which time a successor is elected for the balance of the term. Most of the state legislatures have granted their governors the power of appointment. Each Senator has one vote. As constituted in the 108th Congress, the House of Representatives is composed of 435 Members elected every two years from among the 50 states, apportioned to their total populations. The permanent number of 435 was established by federal law following the Thirteenth Decennial Census in 1910, in accordance with Article I, Section 2, of the Constitution. This number 169

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was increased temporarily to 437 for the 87 th Congress to provide for one Representative each for Alaska and Hawaii. The Constitution limits the number of Representatives to not more than one for every 30,000 of population. Under a former apportionment in one state, a particular Representative represented more than 900,000 constituents, while another in the same state was elected from a district having a population of only 175,000. The Supreme Court has since held unconstitutional a Missouri statute permitting a maximum population variance of 3.1 percent from mathematical equality. The Court ruled in Kirkpatrick v. Preisler, 394 U.S. 526 (1969), that the variances among the districts were not unavoidable and, therefore, were invalid. That decision was an interpretation of the Court’s earlier ruling in Wesberry v. Sanders, 376 U.S. 1 (1964), that the Constitution requires that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” A law enacted in 1967 abolished all “at-large” elections except in those less populous states entitled to only one Representative. An “at-large” election is one in which a Representative is elected by the voters of the entire state rather than by the voters in a congressional district within the state. A Representative must be at least 25 years of age, have been a citizen of the United States for seven years, and, when elected, be a resident of the state in which the Representative is chosen. Unlike the Senate where a successor may be appointed by a governor when a vacancy occurs during a term, if a Representative dies or resigns during the term, the executive authority of the state must call a special election pursuant to state law for the choosing of a successor to serve for the unexpired portion of the term. Each Representative has one vote. In addition to the Representatives from each of the States, a Resident Commissioner from the Commonwealth of Puerto 170

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Rico and Delegates from the District of Columbia, American Samoa, Guam, and the Virgin Islands are elected pursuant to federal law. The Resident Commissioner, elected for a four-year term, and the Delegates, elected for two-year terms, have most of the prerogatives of Representatives including the right to vote in committees to which they are elected. However, the Resident Commissioner and the Delegates do not have the right to vote on matters before the House. Under the provisions of Section 2 of the 20th Amendment to the Constitution, Congress must assemble at least once every year, at noon on the third day of January, unless by law they appoint a different day. A Congress lasts for two years, commencing in January of the year following the biennial election of Members. A Congress is divided into two sessions. The Constitution authorizes each House to determine the rules of its proceedings. Pursuant to that authority, the House of Representatives adopts its rules on the opening day of each Congress. The Senate considers itself a continuing body and operates under continuous standing rules that it amends from time to time. Unlike some other parliamentary bodies, both the Senate and the House of Representatives have equal legislative functions and powers with certain exceptions. For example, the Constitution provides that only the House of Representatives originate revenue bills. By tradition, the House also originates appropriations bills. As both bodies have equal legislative powers, the designation of one as the “upper” House and the other as the “lower” House is not appropriate. The chief function of Congress is the making of laws. In addition, the Senate has the function of advising and consenting to treaties and to certain nominations by the President. However under the 25th Amendment to the Constitution, both Houses 171

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confirm the President’s nomination for Vice-President when there is a vacancy in that office. In the matter of impeachments, the House of Representatives presents the charges – a function similar to that of a grand jury – and the Senate sits as a court to try the impeachment. No impeached person may be removed without a two-thirds vote of the Senate. The Congress under the Constitution and by statute also plays a role in presidential elections. Both Houses meet in joint session on the sixth day of January, following a presidential election, unless by law they appoint a different day, to count the electoral votes. If no candidate receives a majority of the total electoral votes, the House of Representatives, each state delegation having one vote, chooses the President from among the three candidates having the largest number of electoral votes. The Senate, each Senator having one vote, chooses the Vice President from the two candidates having the largest number of votes for that office. NOTES TO THE TEXT Andrew Johnson and Bill Clinton – were impeached by the U.S. House of Representatives, but acquitted by the Senate. Richard Nixon resigned before he could be impeached. Read more: Impeachment History // http://www.infoplease.com/spot/impeach.html#ixzz1k5dNXVQm Grand jury – a panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime. An American institution since the colonial days, the grand jury has long played an important role in Criminal Law. The Fifth Amendment to the U.S. Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person. Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. It has been criticized at times as failing to serve its purpose. 172

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Qualification – the possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or to perform a public duty or function. Apportionment – distribution of legislative seats among districts; esp., the allocation of congressional representatives among the states based on population, as required by the 14th Amendment. The claim that a state is denying the right of representation to its citizens, through improper apportionment presents a justiciable issue. Standing rule – a rule that relates to an organization’s administration or operation rather than to its procedure in meetings. For example, a rule about the time and place of regular meetings, or about a committee’s jurisdiction, is a standing rule. Revenue bill – a bill that levies or raises taxes. – Also termed money bill. Appropriation bill – a bill that authorizes governmental expenditures. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY term of office, to terminate, to call an election, to authorize, to succeed, successor, constituent, to rule, ruling, valid, invalid, pursuant (to), to adopt, to present charges, to serve TASK I. a) Match the words to their definitions: 1) term of office 2) to terminate 3) to call an election 4) to authorize

a) to submit formal charges of a crime against someone b) to give authority or official power to; empower c) the term during which some position is held, tenure d) to come to an end 173

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5) to succeed

e) to work through or complete (a period of service) 6) successor f) to allow the country to vote 7) constituent g) a judicial or administrative interpretation of a provision of a statute, order, regulation, or ordinance 8) to rule h) to vote, to accept 9) rule i) a person who succeeds another in an office, position, or the like 10) ruling j) a person who lives, and can vote in a constituency 11) (in)valid k) an established standard, guide, or regulation governing conduct, procedure, or action 12) pursuant (to) l) to settle or decide a point of law at a trial or hearing 13) to adopt m) according to a prescribed method or some authority 14) to present charges n) binding; possessing legal force or strength; legally sufficient 15) to serve o) to replace another in an office or a position b) Use the above words to complete the sentences: 1. Membership in the Law Society ... upon written notice of resignation or judicial appointment. 2. “Your Argument is ...” is a popular catchphrase often used as a playful counter-response in online discussions. 3. In an interview with Matt Lauer in the beginning of his presidency, Barack Obama said he should only ... one term if he could not fix the economy. 174

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4. The House of Representatives refused to ... U.S. involvement in the NATO mission in Libya on Friday but also rejected an effort to cut off partial support for the mission. 5. ... of office refers to the length of time that an elected official serves as a member of the governing body. 6. Being an elected representative means representing … . 7. An Ecuadorian appeals court upheld an $8.6 billion ... against Chevron on claims it had a detrimental impact on Amazonian communities. 8. The power to review a decision … to this Division may be exercised only at the request of the accused person. 9. Kim Jong Un was extolled Monday by North Korean state media as the “great ...” to his father, who was referred to as the “Dear Leader,” and his grandfather, North Korean founder Kim II Sung. 10. The International Criminal Court will ... charges Thursday in the first phase of hearings against prominent Kenyans for their alleged roles in the violence of the aftermath of the disputed 2007 elections. 11. Usually, according to parliamentary law, the head of government must regularly ... an election, but it is otherwise within their discretion when to drop the writ, up to the time when the parliament has served its full term. 12. The U.S. is planning to … Carney’s tougher banking rules. TASK II.  Use the text to complete the following statements: 1. The terms of both Senators from a particular state … . 2. Of the two Senators from a state … . 3. If a Senator dies or resigns during the term … . 4. The Constitution limits the number of Representatives to … . 5. The Court ruled in Kirkpatrick v. Preisler that … . 6. A law enacted in 1967 abolished … . 175

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7. An “at-large” election is … . 8. Unlike the Senate … . 9. Both the Senate and the House of Representatives … . 10. In the matter of impeachments … . TASK III.  a) Use the derivatives or grammar forms of the words supreme; continue; power; governmental; refer; legislative; elect; allocation in the following sentences: 1. The amendment as passed may specify whether the bill must be passed by the state … or by a state convention. 2. Some delegates, fearful of giving too much power to the people, argued for indirect … of all federal officials; others wanted as broad an … base as possible. 3. The Twenty-fifth Amendment, adopted in 1967, amplifies the process of presidential succession and describes the specific conditions under which the vice president is … to take over the office of president if the president should become incapacitated. 4. The power to hear cases regarding federal constitutional and statutory issues is … to the U.S. Supreme Court, the inferior (or lower) federal courts, and the various state court systems. 5. Almost every bill introduced in either house is … to a committee for study and recommendation. 6. Washington recognized the effectiveness of the critics in placing a Bill of Rights (which was later to become the first 10 amendments) before the … . 7. Decisions handed down by the Supreme Court over the course of two centuries have confirmed and strengthened the doctrine of constitutional … . 8. The U.S. Constitution makes several … to age, specifically to minimum age requirements for members of the House of Representatives and the Senate. 9. The Federal Reserve Board is the … body of the Federal Reserve System, the central bank of the United States. It 176

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conducts the nation’s monetary policy by influencing the volume of credit and money in circulation. 10. Although there were signs of returning prosperity in some areas of the fledgling nation, domestic and foreign problems … to grow. 11. With the defeat of the southern states and their reentry into the Union, federal … was reaffirmed and slavery abolished. 12. The two parties spent $3.5 million on television ads during the 1952 campaign, with the Republicans … to outspend the Democrats by a large margin. 13. Creation of a … , unitary presidency was the source of some contention in the Constitutional Convention. 14. The first-meeting “class system” successfully ensured that every two years, about one third of the Senate would be up for election, thereby preserving stability and … within the chamber. b) Translate the following sentences: 1. In 1970, for example, Congress established the Environmental Protection Agency to coordinate governmental action to protect the environment. 2. In 1789 the first session of Congress began their work on a bill of rights. Many members of this Congress, including James Madison, had been delegates to the Constitutional Convention, so there was little loss of continuity. 3. It was the continuing job of the Constitution and the government it had created to draw the disparate interests together, to create a common ground and, at the same time, to protect the fundamental rights of all the people. 4. The theories of separation of powers, which concerns the allocation of power among the three branches of the federal government, and federalism, which concerns the allocation of power between federal and state governments – neither of which 177

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is expressly mentioned in the text of the Constitution – have been derived through structural arguments. 5. Many commentators believe that what the U.S. electoral system needs is more direct, less representative, democracy. Televised town hall meetings, for example, at which voters can talk directly to elected officials and political candidates, have been encouraged as a way to “empower” the people. 6. Impeachment is a charge of misconduct brought against a government official by a legislative body; it does not, as is commonly thought, refer to conviction on such charges. 7. Referendums require that certain categories of legislation, for example, those intended to raise money by issuing bonds, be put on the ballot for public approval; voters can also use referendums to rescind laws already passed by state legislatures. 8. Prior to the 1960s, the U.S. Supreme Court rarely interpreted the Constitution as providing legal protections for prisoners. Thus, prisoners were usually powerless to challenge the policies and practices in jails and prisons. Two notable exceptions during this period were Supreme Court decisions condemning the use of torture in local jails as a means to extract confessions from criminal suspects (Brown v. Mississippi, 1936) and prohibiting prison officials from intercepting legal documents that prisoners sought to mail to a court. 9. The Federalist Papers also provide the first specific mention found in political literature of the idea of checks and balances as a way of restricting governmental power and preventing its abuse. The words are used mainly in reference to the bicameral legislature, which both Hamilton and Madison regarded as the most powerful branch of government. 10. After rejecting a variety of methods ranging from popular vote to selection by Congress, the delegates finally determined that the president should be chosen by a group of electors. 178

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11. The exercise of appellate jurisdiction over the decisions of state courts that violated federal law or the Constitution was essential to the supremacy of the Constitution and the Union. 12. Legislative supremacy to seize land for roads and other public purposes soon gave way to more protection for property rights. TASK IV.  a) Use the text to fill in the table below and to compare the two chambers: Senate

House of Representatives

1. Minimum Age 2. Minimum Years of Citizenship 3. Term of Office 4. In Case of Resignation or Death During the Term 5. Number of Members 6. Rules of Proceedings 7. Legislative Functions 8. Role in Presidential Elections 9. In the Matter of Impeachments 179

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TASK V.  Match the words on the left with their synonyms on the right: 1) to commence 2) accordance 3) permanent 4) temporary 5) entire 6) to permit 7) prerogative 8) sole

a) provisional, lasting for a limited time b) exclusive right, privilege c) agreement, conformity d) to begin, to start e) exclusive f) whole, perfect g) to authorize, to allow h) lasting, stable

TASK VI.  Reading comprehension check – CONGRESS MEMBERSHIP: 1. What does the 17th Amendment stipulate? 2. What qualifications are set for Senators and Representatives? 3. Explain what an “at-large” election means? 4. How is the vacancy filled when a Senator (Representative) dies or resigns during the term? 5. How long does a Congress last? 6. What kinds of bills are the prerogative of the House of Representatives? 7. What are the functions of the Senate? 8. What is the role of Congress in presidential elections? TASK VII.  Comment on the following quotations: 1. Law makers should not be law breakers.

Proverb

2. A government big enough to give you everything you want is also big enough to take everything you have. Gerald Ford (1913–2006), the 38th President of the USA 180

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TEXT 3 SOURCES OF LEGISLATION Sources of ideas for legislation are unlimited and proposed drafts of bills originate in many diverse quarters. Primary among these is the idea and draft conceived by a Member. This may emanate from the election campaign during which the Member had promised, if elected, to introduce legislation on a particular subject. The Member may have also become aware after taking office of the need for amendment to or repeal of an existing law or the enactment of a statute in an entirely new field. In addition, the Member’s constituents, either as individuals or through citizen groups, may avail themselves of the right to petition and transmit their proposals to the Member. The right to petition, is guaranteed by the First Amendment to the Constitution. Many excellent laws have originated in this way, as some organizations, because of their vital concern with various areas of legislation, have considerable knowledge regarding the laws affecting their interests and have the services of legislative draftspersons for this purpose. Similarly, state legislatures may “memorialize” Congress to enact specified federal laws by passing resolutions to be transmitted to the House and Senate as memorials. If favorably impressed by the idea, a Member may introduce the proposal in the form in which it has been submitted or may redraft it. In any event, a Member may consult with the Legislative Counsel of the House or the Senate to frame the ideas in suitable legislative language and form. In modern times, the “executive communication” has become a prolific source of legislative proposals. The communication is usually in the form of a message or letter from a member of the President’s Cabinet, the head of an independent agency, or the President himself, transmitting 181

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a draft of a proposed bill to the Speaker of the House of Representatives and the President of the Senate. Despite the structure of separation of powers, Article II, Section 3, of the Constitution imposes an obligation on the President to report to Congress from time to time on the “State of the Union” and to recommend for consideration such measures as the President considers necessary and expedient. Many of these executive communications follow the President’s message to Congress on the state of the Union. The communication is then referred to the standing committee or committees having jurisdiction of the subject matter of the proposal. The chairman or the ranking minority member of the relevant committee usually introduces the bill promptly either in the form in which it was received or with desired changes. This practice is usually followed even when the majority of the House and the President are not of the same political party, although there is no constitutional or statutory requirement that a bill be introduced to effectuate the recommendations. The committee or one of its subcommittees may also decide to examine the communication to determine whether a bill should be introduced. The most important of the regular executive communications is the annual message from the President transmitting the proposed budget to Congress. The President’s budget proposal, together with testimony by officials of the various branches of the government before the Appropriations Committees of the House and Senate, is the basis of the several appropriation bills that are drafted by the Committee on Appropriations of the House. Many of the executive departments and independent agencies employ legislative counsels who are charged with the drafting of bills. These legislative proposals are forwarded to Congress with a request for their enactment. The drafting of statutes is an art that requires great skill, knowledge, and experience. In some instances, a draft is 182

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the result of a study covering a period of a year or more by a commission or committee designated by the President or a member of the Cabinet. The Administrative Procedure Act and the Uniform Code of Military Justice are two examples of enactments resulting from such studies. In addition, congressional committees sometimes draft bills after studies and hearings covering periods of a year or more. NOTES TO THE TEXT Ranking minority member – the highest ranking (and usually longest serving) minority member of a committee or subcommittee. Senators may not serve as ranking minority member on more than one standing committee. Floor leaders – the Majority Leader and Minority Leader are elected by their respective party conferences to serve as the chief Senate spokesmen for their parties and to manage and schedule the legislative and executive business of the Senate. By custom, the Presiding Officer gives the floor leaders priority in obtaining recognition to speak on the floor of the Senate. Amendment – a formal revision or addition proposed or made to a statute, constitution, pleading, order or other instrument. The process of making such a revision. Constituent – a person who lives, and can vote in a constituency. Memorial – a written statement of facts presented to a legislature or executive as a petition. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE vocabulary to draft, to emanate, to take office, to enact, enactment, to transmit, to avail yourself of (formal), to submit, relevant (to), expedient, to repeal 183

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TASK I. a) Match the words to their definitions: 1) to draft 2) draft

a) to flow out, issue forth; originate b) to revoke or rescind, especially by an official or formal act 3) to emanate c) to compose 4) to take office d) an official or legal cancellation 5) to enact e) a preliminary form of any writing, subject to revision, refinement, etc. 6) enactment f) appropriate to a purpose 7) to transmit g) assume an office, duty, or title 8) to avail yourself of h) having practical value or applicability 9) to submit i) to pass along (news or information); communicate 10) relevant (to) j) to make into an act or statute 11) expedient k) to use something for your own benefit 12) repeal l) a legal document codifying the result of deliberations of a committee or society or legislative body 13) to repeal m) to commit (something) to the consideration or judgment of another b) Use the above words to complete the following sentences: 1. The city’s elected officials formally ... office at noon Sunday with a swearing-in ceremony. 2. A current law, if any, will affect how we ... our bill. 3. While one person can communicate ideas, it takes a group of persons acting together to ... ideas. 4. The supervisory authorities do not consider whether the transactions made by the local council are reasonable or ... , nor 184

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do they consider issues concerning discretionary actions, as long as the actions comply with the law. 5. In order to ... oneself of the affirmative defense of duress, the accused must admit to having engaged in the proscribed conduct. 6. US feels next Taliban offensive may ... from FATA (the Federally Administered Tribal Areas). 7. The Ministry of Justice recently ... to public consultation the Draft Law on Mortgage for Real Estate. 8. There is significant legislation and public policy ... to Universal Design in Ireland. 9. The legislative branch of government has responsibilities which in many cases transcend (syn. exceed) the process of ... of legislation. 10. If a government … a law, it officially ends that law. TASK II.  a) Add nouns from the text to the following adjectives to make word combinations; b) Use them and the active vocabulary to speak about sources of legislation in your country: particular, vital, suitable, independent, expedient, executive, standing, relevant, statutory, annual; c) Add the above adjectives to complete the following sentences: 1. The chief … of a state is the governor, elected by popular vote, typically for a four-year term (although in a few states the term is two years). 2. In 1998, the Congress passed the Internal Revenue Service (IRS) reform legislation that created an … oversight board and expanded taxpayers’ protections, which included shifting the burden of proof in tax disputes from the taxpayer to the IRS. 3. A matter may be postponed on the grounds that the … committee held insufficient public hearings. 185

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4. In his … and special messages to Congress, the president may propose legislation he believes is necessary. 5. In 2013 the Senate had 15 … or permanent committees and 70 subcommittees; the House of Representatives had 21 committees and 104 subcommittees. Each specializes in specific areas of legislation: foreign affairs, defense, banking, agriculture, commerce, appropriations, and other fields. 6. Cabinets are what any … president makes them. 7. The federal government also aids the schools, since literacy and educational attainment are matters of … national interest, and it enforces uniform standards designed to further equal educational opportunity. 8. The oversight power of Congress has helped to force officials out of office, change policies, and provide new … controls over the executive. 9. If an inventor works with reasonable diligence to actually demonstrate that the invention is … for its intended purpose (reduction to practice), then the inventor may establish rights back to the date that he or she had such a fully formed thought (conception) that such thought only need be constructed. 10. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an … decision damaging to the principle. 11. It is often said that, next to the presidency, the most difficult … position in the country is that of mayor of New York. TASK III.  a) Compare the meanings of the following adjectives: • diverse – 1: differing from one another: unlike; 2: composed of distinct or unlike elements or qualities; • different – partly or totally unlike in nature, form, or quality: dissimilar; • various – dissimilar in nature or form: unlike. 186

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b) Complete the sentences with appropriate adjectives or their derivatives: 1. The summit’s goal is primarily to educate students on the … areas of IP (intellectual property) law and to increase the pipeline of ... law school candidates available to law firms. 2. The … Legislation and Regulations makes it the responsibility of the Local Authority to prepare emergency plans for response to a major incident. 3. This commitment to … extends to Fenwick’s involvement with bar associations, pro bono work, and law schools. 4. There is not … legislation for Scotland and England now whereas, previously, there was a big unified legislative system. 5. Though some criticized the proposed draft of this bill, a close read of the legislation reveals what we think is a good balance of … interests in a Utah landscape where unique circumstances arise. 6. Once there are … arrangements in Scotland and England, is there not a risk that there will be two sets of regulations – one for dogs bred in England and exported to Scotland and one for dogs bred in Scotland and exported to England – or will the regulations be identical? 7. … legislation and jurisprudence refer to this concept differently. 8. Emergency Planning is governed by a range of Legislation and Regulations, which relate to … areas of our work. 9. The media industry in Singapore is regulated by … legislation and codes of practice. 10. Centrelink has a legal obligation to comply with the Privacy Act 1998 as well as the confidentiality provisions contained in the … legislation Centrelink administers. 187

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TASK IV.  Complete each sentence with a suitable word or phrase: 1. Ideas for legislation may emanate from the … during which the Member had promised, if elected, to introduce legislation on a particular subject. 2. The Member’s … , either as individuals or through citizen groups, may avail themselves of the right to petition and transmit their proposals to the Member. 3. State legislatures may “memorialize” Congress to enact specified federal laws by passing resolutions to be transmitted to the House and Senate as … . 4. The chairman or the ranking minority member of the … committee usually introduces the bill promptly. 5. This practice is usually followed even when the majority of the House and the President are not of the same political party, although there is no constitutional or … requirement that a bill be introduced to effectuate the recommendations. 6. The most important of the regular executive communications is the … from the President transmitting the proposed budget to Congress. 7. Many of the executive departments and independent agencies employ … who are charged with the drafting of bills. 8. The drafting of … is an art that requires great skill, knowledge, and experience. TASK V.  Match the nouns with their definitions: 1) petition; 2) legislature; 3) memorial; 4) bill; 5) jurisdiction; 6) budget; 7) appropriation; 8) hearing a) a legislative body’s act of setting aside a sum of money for a public purpose; b) any proceedings in which legislators or their designees receive testimony about legislation that might be enacted; 188

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c) a draft of a proposed statute submitted to the legislature for enactment; d) a court’s power to decide a case or issue a decree; e) a sum of money allocated to a particular purpose or project; f) a written statement of facts presented to a legislature or executive as a petition; g) a formal written request presented to a court or other official body; h) a branch of government responsible for making statutory laws. TASK VI.  Reading comprehension check – SOURCES OF LEGISLATION: 1. How many sources of ideas for legislation may exist? 2. Name the main sources of legislation. 3. What does the right to petition mean? 4. Who can assist a Member in articulating the ideas in appropriate legislative language? 5. What is the role of the President in drafting legislation? 6. Name the most important regular executive communication. 7. Prove that the drafting of statutes is an art. 8. Describe the known sources of ideas for legislation. 9. Explain the role of the executive in drafting legislation. TASK VIII.  Discussion points: 1. Describe the range of skills and knowledge that good legislative drafting requires. 2. Is legislative drafting: an art, science or discipline where the art is the expression or application of creative skill and imagination; the science is a systematically organized body of knowledge on any subject; the discipline is a branch of knowledge, especially one studied in higher education. 189

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3. There is a full extent of the art and the science in the discipline of drafting laws, isn’t there? 4. Would you like to make the career in the drafting of legislation? Why? Why not? TASK IX.  Comment on the following quotation: A president’s hardest task is not to do what is right but to know what is right. Lyndon B. Johnson (1908–1973), th the 36 President of the USA

TEXT 4 Introduction and Referral to Committees Any Member, Delegate or the Resident Commissioner from Puerto Rico in the House of Representatives may introduce a bill at any time while the House is in session by simply placing it in the “hopper,” a wooden box provided for that purpose located on the side of the rostrum in the House Chamber. Permission is not required to introduce the measure. The Member introducing the bill is known as the primary sponsor. An unlimited number of Members may cosponsor a bill. To prevent the possibility that a bill might be introduced in the House on behalf of a Member without that Member’s prior approval, the primary sponsor’s signature must appear on the bill before it is accepted for introduction. Members who cosponsor a bill upon its date of introduction are original cosponsors. Members who cosponsor a bill after its introduction are additional cosponsors. Cosponsors are not required to sign the bill. A Member may not be added or deleted as a cosponsor after the bill has been reported by the last committee authorized to consider it, but the Speaker may not entertain a request to 190

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delete the name of the primary sponsor at any time. Cosponsors names may be deleted by their own unanimous consent request or that of the primary sponsor. In the Senate, unlimited multiple sponsorship of a bill is permitted. Occasionally, a Member may insert the words “by request” after the Member’s name to indicate that the introduction of the measure is at the suggestion of some other person or group – usually the President or a member of his Cabinet. In the Senate, a Senator usually introduces a bill or resolution by presenting it to one of the clerks at the Presiding Officer’s desk, without commenting on it from the floor of the Senate. However, a Senator may use a more formal procedure by rising and introducing the bill or resolution from the floor. A Senator usually makes a statement about the measure when introducing it on the floor. Frequently, Senators obtain consent to have the bill or resolution printed in the Congressional Record following their formal statement. If any Senator objects to the introduction of a bill or resolution, the introduction of the bill or resolution is postponed until the next day. If there is no objection, the bill is read by title and referred to the appropriate committee. If there is an objection, the bill is placed on the Calendar. In the House of Representatives, it is no longer the custom to read bills – even by title–at the time of introduction. The title is entered in the Journal and printed in the Congressional Record, thus preserving the purpose of the custom. The bill is assigned its legislative number by the Clerk. The bill is then referred as required by the rules of the House to the appropriate committee or committees by the Speaker, the Member elected by the Members to be the Presiding Officer of the House, with the assistance of the Parliamentarian. The bill number and committee referral appear in the next issue of the Congressional Record. It is then sent to the Government Printing Office where it is printed in its introduced 191

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form and printed copies are made available in the document rooms of both Houses. Printed and electronic versions of the bill are also made available to the public. Perhaps the most important phase of the legislative process is the action by committees. The committees provide the most intensive consideration to a proposed measure as well as the forum where the public is given their opportunity to be heard. A tremendous volume of work, often overlooked by the public, is done by the Members in this phase. There are, at present, 19 standing committees in the House and 16 in the Senate as well as several select committees. In addition, there are four standing joint committees of the two Houses, with oversight responsibilities but no legislative jurisdiction. The House may also create select committees or task forces to study specific issues and report on them to the House. A task force may be established formally through a resolution passed by the House or informally through organization of interested Members by the House leadership. Each committee’s jurisdiction is divided into certain subject matters under the rules of each House and all measures affecting a particular area of the law are referred to the committee with jurisdiction over that particular subject matter. For example, the Committee on the Judiciary in the House has jurisdiction over measures relating to judicial proceedings generally, and 17 other categories, including constitutional amendments, immigration and naturalization, bankruptcy, patents, copyrights, and trademarks. In total, the rules of the House and [rules] of the Senate each provide for over 200 different classifications of measures to be referred to committees. Until 1975, the Speaker of the House could refer a bill to only one committee. In modern practice, the Speaker may refer an introduced bill to multiple committees for consideration of those provisions of the bill within the jurisdiction of each committee concerned. Except 192

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in extraordinary circumstances, the Speaker must designate a primary committee of jurisdiction on bills referred to multiple committees. Membership on the various committees is divided between the two major political parties. The proportion of the Members of the minority party to the Members of the majority party is determined by the majority party, except that half of the members on the Committee on Standards of Official Conduct are from the majority party and half from the minority party. The respective party caucuses nominate Members of the caucus to be elected to each standing committee at the beginning of each Congress. Membership on a standing committee during the course of a Congress is contingent on continuing membership in the party caucus that nominated a Member for election to the committee. If a Member ceases to be a Member of the party caucus, a Member automatically ceases to be a member of the standing committee. A Member usually seeks election to the committee that has jurisdiction over a field in which the Member is most qualified and interested. For example, the Committee on the Judiciary traditionally is composed almost entirely of lawyers. Many Members are nationally recognized experts in the specialty of their particular committee or subcommittee. Each committee is provided with a professional staff to assist it in the innumerable administrative details involved in the consideration of bills and its oversight responsibilities. For standing committees, the professional staff is limited to 30 persons appointed by a vote of the committee. Two-thirds of the committee staff are selected by a majority vote of the majority committee members and one-third of the committee staff are selected by a majority vote of minority committee members. All staff appointments are made without regard to race, creed, sex, or age. Minority staff requirements do not apply to the 193

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Committee on Standards of Official Conduct because of its bipartisan nature. The Committee on Appropriations has special authority under the rules of the House for appointment of staff for the minority. NOTES TO THE TEXT Congressional Record – a daily publication of the federal government that details the legislative proceedings of Congress. The Congressional Record began in 1873 and, in 1947, a feature called The Daily Digest was added to briefly highlight the daily legislative activities of each House, committee, and subcommittee. The text of the Congressional Record is not a verbatim transcript of the statements made on the floor of the Senate or the House of Representatives. After obtaining permission from their respective Houses to do so, members of Congress can revise their speeches prior to publication in the Record and are permitted to extend their comments to include remarks not made on the floor of Congress. Placed on Calendar House (PCH); Placed on Calendar Senate (PCS) – this phrase accompanies a bill that is pending before committees of either house. The bill is assigned a calendar number, which determines when it will be considered by that house. Caucus – generally, a caucus is a meeting of a political party’s members to choose candidates for office or to form policy. In presidential politics, an informal caucus is a meeting in which potential voters and candidates talk about issues, and then voters decide which candidate they support and which delegates to send to their political party’s convention. In a layered caucus system, loyal party activists decide which candidate they support and select delegates to county meetings, who then select new delegates to state meetings, who then decide which delegates will go to national nominating conventions to select a candidate. The most well-known presidential caucus is the Iowa caucus, an example of a layered caucus. Held in January, the 194

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Iowa caucus is the first test for both the Democratic and Republican presidential candidates. Another use of the term “caucus” refers to a group of legislators who convene to discuss particular issues or pursue common objectives. There are many caucuses in the U.S. Congress, from the well-known, such as the Congressional Black Caucus and the Senate Women’s Caucus, to the more obscure, such as the Congressional Kidney Caucus. Standing committee – a committee that is established for ongoing business, that continues to exist from session to session, and that is usu. charged with considering business of a certain recurring kind. Joint committee – a legislative committee composed of members of both Houses of a legislature. Legislative jurisdiction – a legislature’s general sphere of authority to enact laws and conduct all business related to that authority, such as holding hearings. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY unanimous, measure, objection, to assign, forum, amendment, select, multiple, respective, bipartisan, oversight TASK I.  a) Match the words to their definitions: 1) unanimous 2) measure 3) objection 4) to assign

a) corresponding, relevant b) watchful care or management; supervision c) characterized by complete agreement d) of, consisting of, or supported by members of two parties, especially two major political parties 195

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5) forum 6) amendment 7) select 8) multiple

9) respective 10) bipartisan 11) oversight

e) a statement presented in opposition f) having or involving or consisting of more than one part or entity g) a legislative bill or enactment h) a public meeting or presentation involving a discussion usually among experts and often including audience participation; a court of law; a tribunal i) exclusive, designated j) an alteration or change of something proposed in a bill k) to ascribe; attribute

b) Use the above words to complete the following sentences: 1. The Joint ... Committee on Cyber-Safety of the rd 43  Parliament was established under a resolution of appointment passed by the House of Representatives on 29 September 2010 and the Senate on 30 September 2010. 2. If you disagree with the decision made in your case, what you do next will depend on whether our case was heard by a referee or a judge. If a referee heard your case, as is typical in the Las Vegas Justice Court, you may file a formal ... . 3. Each study will offer a comprehensive analysis of the most important innovations and initiatives for financial access undertaken in the ... country. 4. The debate went on for hours, but in the end the decision was ... . 5. The financial data and news provider has created a glossy magazine called Reuters and will distribute 5,000 copies at the World Economic ... in Davos, Switzerland, next week. 6. The U.S. Congress gave final approval to a $182 billion budget ... to keep federal agencies operating past tomorrow. 196

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7. The New-York Historical Society will display a rare copy of the 13th ... signed by President Abraham Lincoln. 8. However, congressional control over U.S. foreign assistance is influenced by a range of often competing interests, spread over ... committees in both houses, with separate but frequently overlapping jurisdictions. 9. A bill or resolution has officially been introduced when it has been ... a number (H.R. # for House Bills or S. # for Senate Bills), and printed in the Congressional Record by the Government Printing Office. 10. One sign of hope for ... cooperation came earlier this week, when the administration added Haiti to the list of countries eligible for H-2 visas, America’s largest temporary work visa program, a move backed by a ... group of U.S. senators and representatives from Florida. 11. The committee has … of finance and general policy. TASK II.  Add prepositions to complete the sentences: 1. Members who cosponsor a bill … its date of introduction are original cosponsors. 2. Occasionally, a Member may insert the words “… request” after the Member’s name. 3. A task force may be established formally … a resolution passed by the House. 4. A Senator may use a more formal procedure by rising and introducing the bill or resolution … the floor. 5. If any Senator objects … the introduction of a bill or resolution, the introduction of the bill or resolution is postponed until the next day. 6. If there is no objection, the bill is read … title and referred … the appropriate committee. 7. The bill is then referred as required … the rules of the House to the appropriate committee. 197

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8. In total, the rules of the House and [rules] of the Senate each provide … over 200 different classifications of measures to be referred to committees. 9. Each committee’s jurisdiction is divided into certain subject matters … the rules of each House and all measures affecting a particular area of the law are referred to the committee with jurisdiction … that particular subject matter. 10. Speaker may refer an introduced bill to multiple committees for consideration of those provisions of the bill … the jurisdiction of each committee concerned. 11. Members rank … seniority in accordance with the order of their appointment to the full committee. TASK III.  Add the words require, obtain, serve, entered, placed, cosponsor, rising, apply, objects to, sign, submitted to complete the following sentences: 1. An unlimited number of Members may … a bill. 2. Cosponsors are not required to … the bill. 3. A Senator may use a more formal procedure by … and introducing the bill or resolution from the floor. 4. Frequently, Senators … consent to have the bill or resolution printed in the Congressional Record following their formal statement. 5. If any Senator … the introduction of a bill or resolution, the introduction of the bill or resolution is postponed until the next day. 6. The title is … in the Journal and printed in the Congressional Record, thus preserving the purpose of the custom. 7. The rules of the House … that committee chairmen be elected from nominations … by the majority party caucus at the commencement of each Congress. 8. Minority staff requirements do not … to the Committee on Standards of Official Conduct. 198

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9. No Member of the House may … as chairman of the same standing committee or of the same subcommittee thereof for more than three consecutive Congresses. 10. A time limit is … on an additional committee only when the primary committee has reported its version to the House. TASK IV.  Complete the following statements: 1. To prevent the possibility that a bill might be introduced in the House on behalf of a Member without that Member’s prior approval … . 2. Occasionally, a Member may insert the words “by request” after the Member’s name to indicate that … . 3. If any Senator objects to the introduction of a bill or resolution … . 4. The House may also create select committees or task forces to … . 5. If any Senator objects to the introduction of a bill or resolution … . 6. The rules of the House require that … . 7. The rules of the House prohibit a committee that maintains a subcommittee on oversight from … . 8. Two-thirds of the committee staff are … and one-third of the committee staff are… 9. Minority staff requirements do not apply to … . 10. If a Member ceases to be a Member of the party caucus … . TASK V.  Insert the following words: bill, forth, out, amendments, approval, entitled, report, unless, filed, session, upon, indicates, matter, rule, committees, notice, departments, communications, law, accomplish

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Reported Bills. Contents, Filing, Availability of Reports and Hearings If the committee votes to report the bill to the House, the committee staff writes a committee 1) … The report describes the purpose and scope of the bill and the reasons for its recommended approval. Generally, a section-by-section analysis is set 2) … explaining precisely what each section is intended to 3) ... . All changes in existing law must be indicated in the report and the text of laws being repealed must be set 4) … . This requirement is known as the “Ramseyer” 5) ... . A similar rule in the Senate is known as the “Cordon” rule. Committee 6) … also must be set out at the beginning of the report and explanations of them are included. Executive 7) … regarding the bill may be referenced in the report. If at the time of 8) … of a bill by a committee, except for the Committee on Rules, a member of the committee gives 9) … of an intention to file supplemental, minority, or additional views, that member is 10) … to not less than two additional calendar days after the day of such notice (excluding Saturdays, Sundays, and legal holidays 11) … the House is in session on those days) in which to file those views with the clerk of the committee. Those views that are timely 12) … must be included in the report on the bill. Committee reports must be filed while the House is in 13) … unless unanimous consent is obtained from the House to file at a later time or the committee is awaiting additional views. The report is assigned a report number 14) … its filing and is sent to the Government Printing Office for printing. House reports are given a prefix-designator that 15) … the number of the Congress. For example, the first House report in the 108th Congress was numbered 108-1. In the printed report, committee amendments are indicated by showing new 16) … in italics and deleted matter in linethrough type. The report number is printed on the bill and the 200

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calendar number is shown on both the first and back pages of the 17) … . However, in the case of a bill that was referred to two or more 18) … for consideration in sequence, the calendar number is printed only on the bill as reported by the last committee to consider it. Committee reports are perhaps the most valuable single element of the legislative history of a law. They are used by the courts, executive 19) … , and the public as a source of information regarding the purpose and meaning of the 20) … . TASK VI.  Reading comprehension check – INTRODUCTION AND REFERRAL TO COMMITTEES: 1. How can a Member of the House of Representatives introduce a bill? 2. Who must sign the bill before it is accepted for introduction? 3. What do the words “by request” on the bill mean? 4. How can a Senator introduce a bill in the Senate? 5. What is the procedure of the first reading in the Senate and in the House? 6. Describe is the most important phase of the legislative process. 7. Define the jurisdiction of the committee on the Judiciary. 8. May different committees consider the same bill? 9. How is the proportion of the major political parties in the committees determined? 10. How are committees assisted in their work? 11. Describe the introduction of a bill introduced. 12. Describe the work of the committees. TASK VII. Comment on the following quotations: 1. For years politicians have promised the moon – I am the first to be able to deliver it. Richard Nixon (1913–1994), the 37th President of the USA 201

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2. One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. Plato (427–347 B.C.)

TEXT 5 SENATE ACTION Chamber Procedure The rules of procedure in the Senate differ to a large extent from those in the House. The Senate relies heavily on the practice of obtaining unanimous consent for actions to be taken. For example, at the time that a bill is reported, the Majority Leader may ask unanimous consent for the immediate consideration of the bill. If the bill is of a non-controversial nature and there is no objection, the Senate may pass the bill with little or no debate and with only a brief explanation of its purpose and effect. Even in this instance, the bill is subject to amendment by any Senator. A simple majority vote is necessary to carry an amendment as well as to pass the bill. If there is any objection, the report must lie over one legislative day and the bill is placed on the calendar. Measures reported by standing committees of the Senate may not be considered unless the report of that committee has been available to Senate Members for at least two days (excluding Sundays and legal holidays) prior to consideration of the measure in the Senate. This requirement, however, may be waived by agreement of the Majority and Minority leaders and does not apply in certain emergency situations. In the Senate, measures are brought up for consideration by a simple unanimous consent request, by a complex unanimous consent agreement, or by a motion to proceed to 202

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the consideration of a measure on the calendar. A unanimous consent agreement, sometimes referred to as a “time agreement,” makes the consideration of a measure in order and often limits the amount of debate that will take place on the measure and lists the amendments that will be considered. The offering of a unanimous consent request to consider a measure or the offering of a motion to proceed to the consideration of a measure is reserved, by tradition, to the Majority Leader. The rules of the Senate provide that at the conclusion of the morning business for each “legislative day” the Senate proceeds to the consideration of the calendar. In the Senate, the term “legislative day” means the period of time from when the Senate adjourns until the next time the Senate adjourns. Because the Senate often “recesses” rather than “adjourns” at the end of a daily session, the legislative day usually does not correspond to the 24-hour period comprising a calendar day. Thus, a legislative day may cover a long period of time from days to weeks, or even months. Because of this and the modern practice of waiving the call of the calendar by unanimous consent at the start of a new legislative day, it is rare to have a call of the calendar. When the calendar is called, bills that are not objected to are taken up in their order, and each Senator is entitled to speak once and for five minutes only on any question. Objection may be interposed at any stage of the proceedings, but on motion the Senate may continue consideration after the call of the calendar is completed, and the limitations on debate then do not apply. On any day (other than a Monday that begins a new legislative day), following the announcement of the close of morning business, any Senator, usually the Majority Leader, obtaining recognition may move to take up any bill out of its regular order on the calendar. The five-minute limitation on debate does not apply to the consideration of a bill taken up in this manner, and debate may continue until the hour when the Presiding Officer 203

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of the Senate “lays down” the unfinished business of the day. At that point consideration of the bill is discontinued and the measure reverts back to the Calendar of Business and may again be called up at another time under the same conditions. Once a Senator is recognized by the Presiding Officer, the Senator may speak for as long as the Senator wishes and loses the floor only when the Senator yields it or takes certain parliamentary actions that forfeit the Senator’s right to the floor. However, a Senator may not speak more than twice on any one question in debate on the same legislative day without leave of the Senate. Debate ends when a Senator yields the floor and no other Senator seeks recognition, or when a unanimous consent agreement limiting the time of debate is operating. On occasion, Senators opposed to a measure may extend debate by making lengthy speeches or a number of speeches at various stages of consideration intended to prevent or defeat action on the measure. This is the tactic known as “filibustering.” Debate, however, may be closed if 16 Senators sign a motion to that effect and the motion is carried by three-fifths of the Senators duly chosen and sworn. While a measure is being considered it is subject to amendment and each amendment, including those proposed by the committee that reported the bill, is considered separately. Generally, there is no requirement that proposed amendments be germane to the subject matter of the bill except in the case of general appropriation bills or where “cloture” has been invoked. Under the rules, a “rider,” an amendment proposing substantive legislation to an appropriation bill, is prohibited. After final action on the amendments the bill is ready for engrossment and the third reading, which is by title only. The Presiding Officer then puts the question on the passage and a voice vote is usually taken although a yea-and-nay vote is in order if demanded by one-fifth of the Senators present. A simple majority is necessary 204

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for passage. Before an amended measure is cleared for its return to the House of Representatives, or an unamended measure is cleared for enrollment, a Senator who voted with the prevailing side, or who abstained from voting, may make a motion within the next two days to reconsider the action. The original engrossed House bill, together with the engrossed Senate amendments, if any, or the original engrossed Senate bill, as the case may be, is then returned to the House with a message stating the action taken by the Senate. Where the Senate has adopted amendments, the message requests that the House concur in them. NOTES TO THE TEXT Unanimous Consent Agreement / Time Limitation Agreement – a device used in the Senate to expedite (to assist the progress of) legislation. Much of the Senate’s legislative business, dealing with both minor and controversial issues, is conducted through unanimous consent or unanimous consent agreements. On major legislation, such agreements are usually printed and transmitted to all senators in advance of floor debate. Once agreed to, they are binding on all members unless the Senate, by unanimous consent, agrees to modify them. An agreement may list the order in which various bills are to be considered, specify the length of time bills and contested amendments are to be debated and when they are to be voted upon and, frequently, require that all amendments introduced be germane to the bill under consideration. In this regard, unanimous consent agreements are similar to the “rules” issued by the House Rules Committee for bills pending in the House. Engrossed bill – 1. a bill in a form ready for final passage by a legislative chamber; 2. a bill in the form passed by one house of the legislature. Enrolled bill – a bill passed by both houses of the legislature and signed by their presiding officers. 205

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Congressional Record – the substantially verbatim account of daily proceedings on the Senate floor. It is printed for each day the Senate is in session. At the back of each daily issue is the “Daily Digest,” which summarizes the day’s floor and committee activities. Floor – members are said to be “on the Floor,” when they assemble, and “to have the Floor,” when they speak. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to invoke, to abstain, to concur, to adjourn, to carry, to waive, to filibuster, motion, floor, calendar, appropriation, rider, cloture, recess, germane, subject (to) TASK I.  a) Match the words to invoke; to abstain; to concur; to adjourn; to carry; to waive; to filibuster; germane; subject (to) to their definitions: 1) to bring a meeting to a stop; 2) to try to delay or prevent action in lawmaking body by making very slow speeches; 3) to communicate; pass on (an amendment); 4) to voluntarily give up a right, including not enforcing a term of a contract (such as insisting on payment on an exact date), or knowingly giving up a legal right such as a speedy trial, a jury trial or a hearing on extradition (the transfer to another state’s jurisdiction of one accused of a crime in the other state); 5) to put (a law, penalty, etc.) into use; to appeal to (an outside agent or authority) for confirmation, corroboration, etc.; 6) to be of the same opinion; agree; to act together; cooperate; 7) to refrain from something by one’s own choice; to refrain from voting; 8) being in a position or in circumstances that place one under the power or authority of another or others; prone; 206

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disposed (to); likely to incur or receive; exposed: contingent or dependent; 9) on the subject of the pending bill or other business; a strict standard of relevance. b) Use the words from ACTIVE VOCABULARY to complete the following sentences: 1. The resolution was … by 340 votes to 210. 2. The … was adopted by six votes to one. 3. The term “legislative day” means the period from when the Senate ... until the next time when the Senate ... . 4. When the Senators call the ... bills that are not objected to are taken up in their order. 5. The article is not … to the subject being discussed. 6. Six countries voted for the change, five voted against, and two … . 7. She … her right to a lawyer. 8. The Senate often ... rather than adjourns. 9. The procedure of ending debate in a legislative day is called ... . 10. Historians … with each other in this view. 11. It is unlikely that libel laws will … . 12. The ... is a provision in a bill that is not germane to the main purpose of the law. 13. ... bills are the bills connected with the financial activity of the government. 14. The tactic known as ... is used as a kind of an opposition to a measure. 15. The Senator from Connecticut took the ... . 16. All nuclear installations are … to international safeguards. TASK II.  a) Match the verbs on the left with their synonyms on the right: 207

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1) interpose 2) debate 3) consent 4) object 5) abstain 6) forfeit 7) enroll

a) deprive b) agree c) discuss d) refrain e) register f) interrupt g) oppose

b) Match the adjectives on the left with the nouns on the right: 1) unanimous 2) immediate 3) legislative 4) engrossed 5) final 6) unamended 7) standing 8) available 9) lengthy

a) committee b) day c) bill d) speeches e) action f) action g) consent h) report i) measure

TASK III.  Complete the sentences: 1. This requirement may be waived by … . 2. In the Senate, measures are brought up for consideration by … . 3. When the calendar is called, bills … . 4. Once a Senator is recognized by the Presiding Officer … . 5. While a measure is being considered … . 6. A voice vote is usually taken although … . 7. Before an amended measure is cleared for its return to the House of Representatives … . 208

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TASK IV.  Reading comprehension check – SENATE ACTION: 1. Describe the rules of procedure in the Senate. 2. When are Senators allowed not to consider measures reported by standing committees? 3. How are measures brought up for consideration in the Senate? 4. How long does a legislative day last? 5. How long may a Senator speak on one question in debate? 6. How can Senators prolong debate? When do they resort to this kind of tactic? 7. Describe the procedure of the passage of a bill. 8. What does the rule of the unanimous consent imply? TASK V.  Match the terms floor debate, appropriation, recess, cloture, advice and consent, policy committee, rider, bill, calendar, amendment, floor to their definitions: 1) the part of a legislative chamber or meeting hall where members are seated and from which they speak; the right to address an assembly, as granted under parliamentary procedure; the body of assembly members; 2) a list of bills, reported out of a legislative committee for the consideration by the entire legislature; 3) the legislative process of debating a proposed bill before an entire chamber; 4) group composed of each party’s principal leadership for the purpose of determining the strategy for particular bills; 5) under the Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the Senate, and international treaties become effective only when the Senate approves them by a two-thirds vote; 6) a proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before it becomes part of the measure, the Senate must agree to it; 209

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7) the principal vehicle employed by lawmakers for introducing their proposals (enacting or repealing laws, for example) in the Senate. They are designated S. 1, S. 2, and so on depending on the order in which they are introduced. They address either matters of general interest or narrow interest, such as immigration cases and individual claims against the Federal government; 8) a time for rest during a working day or year; 9) a way of ending an argument over a bill and forcing a vote on it; 10) provision in a bill that is not germane to the main purpose of the law; 11) the process of setting aside money for a special purpose. TASK VI.  Compare procedures in the House and in the Senate: More differences than similarities emerge when comparing selected House and Senate rules of procedure for referring legislation to committees, and for scheduling, raising and considering measures on the floor. While the House uses five calendars (Union, House, Corrections, Private, Discharge), the Senate only employs two calendars (Legislative and Executive). The House’s system of special days for considering certain types of measures (e.g., “District Days”) has no equivalent in the Senate. In making scheduling decisions, the Speaker typically consults only with majority party leaders and selected Representatives whereas the Senate Majority Leader confers broadly with minority party leaders and interested Senators. The Speaker’s dual position as leader of the majority party and the House’s presiding officer gives him more authority to govern floor proceedings than the Senate’s presiding officer. While debate time is always restricted in the House, individual Senators generally have the right to unlimited debate. 210

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Most noncontroversial measures are approved by “suspension of the rules” in the House, and by unanimous consent in the Senate. Floor consideration of major bills is generally governed by “special rules” in the House, and by “complex unanimous consent agreements” in the Senate. The House typically meets in the Committee of the Whole to consider major legislation; no such committee exists in the Senate. The House considers and amends legislation in a more structured manner (e.g., by section or title) than the Senate. In addition, while germaneness of amendments is required in the House, it is mandated only in four instances in the Senate. Rollcall votes can be requested at almost any time in the Senate, but only after completing a voice or division vote in the House. Because the Senate often recesses instead of adjourning at the end of the day, Senate legislative days can continue for several calendar days. By contrast, the House routinely adjourns at the end of each legislative day. TASK VII.  Use the following headings to name the steps of the legislative process: Committee Action; Referral to the Other Chamber; Scheduling Floor Action; Mark up; Voting; Subcommittee Review; Overriding a Veto; Conference Committee Action; Final Actions; Committee Action to Report a Bill; Debate; Referral to Committee; Publication of a Written Report: Anyone may draft a bill; however, only members of Congress can introduce legislation, and by doing so become the sponsor(s). There are four basic types of legislation: bills, joint resolutions, concurrent resolutions, and simple resolutions. The official legislative process begins when a bill or resolution is numbered – H.R. signifies a House bill and S. a Senate bill – referred to a committee and printed by the Government Printing Office. 211

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Step 1 With few exceptions, bills are referred to standing committees in the House or Senate according to carefully delineated rules of procedure. Step 2 When a bill reaches a committee it is placed on the committee’s calendar. A bill can be referred to a subcommittee or considered by the committee as a whole. It is at this point that a bill is examined carefully and its chances for passage are determined. If the committee does not act on a bill, it is the equivalent of killing it. Step 3 Often, bills are referred to a subcommittee for study and hearings. Hearings provide the opportunity to put on the record the views of the executive branch, experts, other public officials, supporters and opponents of the legislation. Testimony can be given in person or submitted as a written statement. Step 4 When the hearings are completed, the subcommittee may meet to “mark up” the bill, that is, make changes and amendments prior to recommending the bill to the full committee. If a subcommittee votes not to report legislation to the full committee, the bill dies. Step 5 After receiving a subcommittee’s report on a bill, the full committee can conduct further study and hearings, or it can vote on the subcommittee’s recommendations and any proposed amendments. The full committee then votes on its recommendation to the House or Senate. This procedure is called “ordering a bill reported.” 212

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Step 6 After a committee votes to have a bill reported, the committee chairman instructs staff to prepare a written report on the bill. This report describes the intent and scope of the legislation, impact on existing laws and programs, position of the executive branch, and views of dissenting members of the committee. Step 7 After a bill is reported back to the chamber where it originated, it is placed in chronological order on the calendar. In the House there are several different legislative calendars, and the Speaker and majority leader largely determine if, when, and in what order bills come up. In the Senate there is only one legislative calendar. Step 8 When a bill reaches the floor of the House or Senate, there are rules or procedures governing the debate on legislation. These rules determine the conditions and amount of time allocated for general debate. Step 9 After the debate and the approval of any amendments, the bill is passed or defeated by the members voting. Step 10 When a bill is passed by the House or the Senate it is referred to the other chamber where it usually follows the same route through committee and floor action. This chamber may approve the bill as received, reject it, ignore it, or change it. Step 11 If only minor changes are made to a bill by the other chamber, it is common for the legislation to go back to the 213

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first chamber for concurrence. However, when the actions of the other chamber significantly alter the bill, a conference committee is formed to reconcile the differences between the House and Senate versions. If the conferees are unable to reach agreement, the legislation. If agreement is reached, a conference report is prepared describing the committee members recommendations for changes. Both the House and the Senate must approve of the conference report. Step 12 After a bill has been approved by both the House and Senate in identical form, it is sent to the President. If the President approves of the legislation he signs it and it becomes law. Or, the President can take no action for ten days, while Congress is in session, and it automatically becomes law. If the President opposes the bill he can veto it; or, if he takes no action after the Congress has adjourned its second session, it is a “pocket veto” and the legislation dies. Step 13 If the President vetoes a bill, Congress may attempt to “override the veto.” This requires a two thirds roll call vote of the members who are present in sufficient numbers for a quorum. TASK VIII.  Comment on the following quotation: Man is not free unless government is limited. As government expands, liberty ends. Ronald Reagan (1911–2004), the 40th President of the USA

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TEXT 6 Congress’s InvestigatIVE Oversight Role As legislating in the modern world has become more complex, there has been greater need for professional assistance and for legislative work to be done by committees. Proposals for legislation, budgets, approval of Presidential appointments, and all manner of other legislative business must generally survive intensive committee scrutiny before it can be brought forward for a vote on the floor. And on the floor, the relevant committee’s recommendations have weight among busy members of Congress who may be only vaguely aware of the details of much legislation outside their areas of concern and expertise. There are now 298 standing, special, and select committees and subcommittees. The subject matters of some of the more important standing committees that both houses of Congress have are agriculture, appropriations, armed services, banking, education, energy, foreign affairs, governmental operations, judiciary labor, small business, and science and technology. Within each committee are standing subcommittees devoted to particular areas. The original purpose of committees and Congressional agencies was to deal with the increased complexity and specialized nature of legislation in the modern world. But with the changing nature of the legislation and the growth of administrative agencies, committees have taken on the more general Task of overseeing the operations of government. President Woodrow Wilson, before he became President, remarked on the importance of Congress’s role in overseeing government and exposing inadequacies, noting that the “informing function of Congress should be preferred even to its legislative function.” Committee investigative hearings are 215

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nowhere mentioned in the Constitution, but the connection to Congress’s legislative power that investigations have is that they are undertaken to determine whether there is a need for legislation. On this basis the Court has upheld Congress’s right to investigate, including the power to issue subpoenas and to punish disregard of those subpoenas as the “contempt of Congress.” However, for some committee hearings in recent years, the legislative agenda potentially involved has not always been obvious. The fact that the investigators are politicians and there is often intense press and television coverage of the hearings has caused many such investigations to take on a life of their own. The primary product of many such committee investigations is publicity, but that is all to the good if the investigations create greater public awareness of the shortcomings of the government and its officials. Investigations can take on political overtones and the more political congressional investigations are, the more controversial they are. Some such investigations have had laudatory results, but others have not. The Senate committee investigation of the Watergate scandal, which ultimately led to President’s Nixon resignation, is placed by most in the positive category. In that scandal, the Senate committee in 1974 began investigating to see if officials at the highest levels of the Republican White House were involved in and later tried to cover up a burglary of the Democratic National Headquarters. Ultimately, the incriminating evidence was laid out on national television and the President, who had denied any involvement, resigned in disgrace. Perhaps the most widely known abuse of the committee investigatory process involved the activities of Senator Joseph McCarthy, who chaired a committee in a 1954 investigation of “Communists” allegedly working in the Army and the State Department. No substantial evidence was ever produced, but the accusations of McCarthy, assisted 216

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by a brewing anti-Communist hysteria in the country at the time, cost hundreds of people their reputations and careers. For better or for worse, the Congressional investigatory power is well established and has become a real force in government. NOTES TO THE TEXT Senator Joseph McCarthy (1909–1957) – a US politician in the Republican Party and became famous in the early 1960s by saying officially that many well-known people, important politicians and military officers were Communists, and therefore enemies of the United States. Many of these people were blacklisted or imprisoned. Watergate Affair – U.S. political scandal named after the building in Washington, DC, which housed the headquarters of the Democratic National Committee in the 1972 presidential election. The scandal began with the burglary and wiretapping of the Democratic Party’s campaign headquarters, later the scandal engulfed President Nixon and many of his supporters in a variety of illegal acts, and culminated in the resignation of the U.S. President. Subpoena (lat. under penalty) – a writ commanding a person to appear before the court or other tribunal subject to a penalty for failing to comply. Abuse of process – the improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to oversee, oversight, to take on, cover-up, to cover up, coverage, scrutiny, to scrutinize, to expose, laudatory, abuse 217

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TASK I.  a) Match the words to their definitions: 1) to oversee

a) to undertake (work, etc.); engage (an employee); be willing or ready to meet (an opponent, etc.); acquire (new meaning, etc.)

2) oversight

b) an area or amount covered; amount of publicity received by an event, etc.

3) to take on

c) to watch smb / smth and make sure that a job or an activity is done correctly

4) cover-up

d) a departure from legal or reasonable use; misuse; physical or mental maltreatment resulting in physical, mental or emotional injury (child abuse, sexual abuse)

5) cover up

e) to try to stop people from knowing the truth about a mistake, crime, etc.

6) coverage

f) a mistake caused by not noticing something; supervision

7) scrutiny

g) to reveal the identity or fact.; exhibit, display

8) to scrutinize h) praising 9) to expose

i) a critical gaze; close investigation

10) laudatory

j) examine thoroughly

11) abuse

k) concealment of facts

b) Use the above words to complete the following sentences: 1. The whole affair was very well … and never reached newspapers. 2. The Senate committee was ... the work of the executive agencies. 3. The specialist ... the painting very carefully. 218

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4. This Police department deals with different kinds of family ... . 5. Close ... of the document showed that it was a forgery. 6. The Head of the Planning Committee will have general ... of the project. 7. The committees have ... the more general task of overseeing the operation of the government. 8. The head teacher threatened to ... the offender to the police. 9. Some investigations did not have ... results which had been expected. 10. The affair received massive media ... . TASK II.  a) Match the adjectives on the left with their synonyms on the right: 1) relevant 2) standing 3) original 4) investigative 5) laudatory 6) substantial 7) select 8) modern 9) obvious

a) first b) connected c) examining d) solid e) permanent f) evident g) present h) praising i) chosen

b) Match the nouns on the left with their synonyms on the right: 1) scrutiny 2) floor 3) concern

a) business b) examination c) incompetence 219

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4) inadequacy 5) contempt 6) coverage 7) publicity 8) shortcoming 9) involvement 10) evidence 11) oversight 12) abuse

d) meeting e) attention f) fault g) disrespect h) report i) proof j) participation k) ill-treatment l) control

c) Define the meanings of the following derivatives, consult a dictionary: 1) to laud – laudatory 2) to inform – information – informative 3) to involve – involved – involvement 4) complex – complexity – complexion 5) to cover – coverage 6) public – to publicize – publicity 7) to abuse – abusive 8) to commit – committee – commission 9) to allege – allegedly – allegation 10) to govern – governance – governor – government TASK III.  Use the following phrases to make up a short crime story: to survive intensive scrutiny, to bring forward a proposal, to deal with the complexity of legislation, to take on the task, to expose inadequacy, to issue subpoenas, to punish disregard, to cover up the burglary. TASK IV. Use the words president; presidency; Committee; Congress; Congress; Congress; Senate; Senate; Senate; House; 220

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House; congressional committees; Congressional membership to complete and discuss the following text: Oversight Powers of Congress Dictionaries define “oversight” as “watchful care,” and this approach has proven to be one of the most effective techniques that 1) … has adopted to influence the executive branch. Congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance. It applies to cabinet departments, executive agencies, regulatory commissions, and the 2) … . Congress’s oversight function takes many forms: –  3) … inquiries and hearings; –  formal consultations with and reports from the 4) … ; –  5) … advice and consent for presidential nominations and for treaties; –  6) … impeachment proceedings and subsequent 7) … trials; –  8) … and 9) … proceedings under the Twenty-fifth Amendment in the event that the president becomes disabled, or the office of the vice president falls vacant; –  informal meetings between legislators and executive officials; –  10) … on governmental commissions; –  studies by 11) … and support agencies such as the Congressional Budget Office, the General Accounting Office, and the Office of Technology Assessment – all arms of 12) … . The oversight power of 13) … has helped to force officials out of office, change policies, and provide new statutory controls over the executive. In 1949, for example, probes by special Senate investigating subcommittees revealed corruption among high officials in the Truman administration. This resulted in the 221

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reorganization of certain agencies and the formation of a special White House commission to study corruption in the government. The Senate Foreign Relations Committee’s televised hearings in the late 1960s helped to mobilize opposition to the Vietnam War. TASK V.  Complete each sentence with one of the following expressions: a) to chair a committee; b) on the floor; c) legislative business; d) contempt of Congress; e) press and TV coverage; f) brewing hysteria; g) areas to concern 1. Senate business includes … (bills and resolutions) and executive business (nominations and treaties). 2. Both Senators Bond and Carper spoke … about the healthcare proposal that President Bush outlined during the State of the Union address on Tuesday. 3. This checklist is not exhaustive but it sets out the main … yourselves with both before any crisis arises and during the crisis itself. 4. US playwright Arthur Miller is convicted of … after refusing to reveal the names of alleged Communist writers. 5. The difference between the tabloids and the traditional … is so subtle as to be unrecognizable. 6. Many liberal senators, angry with Lieberman for supporting President Bush on Iraq, don’t want him to … in a Democraticcontrolled Senate. 7. It appears there are two stories developing in Asia. One is the appearance of a new virus and the second is a level of … which is difficult to understand. TASK VI.  Reading comprehension check – Congress’s InvestigatIVE Oversight Role: 1. How has the role of committees changed? 222

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2. Why have Congressional committees become so important nowadays? 3. What subject matters do standing committees scrutinize? 4. Why were committees and Congressional agencies set up? 5. Does Constitution provide for committee investigative hearings? 6. Why has the Court upheld Congress’s right to investigate? 7. How does intense press and television coverage affect committee investigators and investigations? 8. Can investigations be linked to politics? 9. Give examples of a successful investigation and abuse of the committee investigatory process. 10. Is the Congressional investigatory power effective? 11. Describe the legislative work of committees. 12. Explain Congress’s role in overseeing government. 13. Give more examples of committee investigations. TASK IX.  Read the following passages and entitle them: A. Bills may originate in either the House of Representatives or the Senate, unless a bill involves raising revenue, in which case it must originate in the House of Representatives (U.S. Const. Art. I, Sec. 7). Only Senators and Representatives (also known as Members of Congress) can introduce a bill in their respective chamber. When bills are introduced, they are given a bill number. The numbering system starts over with each session of Congress, and bill numbers run in chronological order according to when the bill is introduced. Bills in the House of Representatives are given the initial H.R., and Senate Bills are given the initial S. Thus, H.R. 1, would be the first bill introduced in a new session of Congress or the House of Representatives (a session of Congress lasts for two years). B. Once the bill has emerged from committee consideration, it moves to the “floor” of either the House of Representatives or 223

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the Senate (again depending on where the bill was introduced). The entire chamber then debates and may amend the bill. The chamber then takes an open vote on the bill. For noncontroversial votes, the chamber will take a voice vote, but if any legislator asks for a roll call, then each member’s vote is made separately and publicity. C. If the bill passes the first chamber, it is sent to the other chamber where the process described above is repeated. If the bill is amended in the second chamber, it must be sent back to the first chamber because both chambers must agree on the amendments. If the two chambers cannot immediately agree on how to pass identical legislation, the bill will be sent to a joint committee (comprised of both House of Representatives and Senate members), which will attempt to work out a compromise among the different versions of the bill. If the joint committee is successful, the bill will be returned to both chambers for a vote. D. All floor debates and votes are published the following day in the Congressional Record. Legislators can review the Congressional Record before it is published to change or add a statement. The Government Printing Office publishes committee reports for major legislation separately. In recent years, many committee hearings, floor debates and votes have been broadcast live from C-SPAN (Cable Satellite Public Affairs Network), a cable television network that provides twenty-four hour coverage of public affairs. TASK VIII.  Comment on the following quotations: 1. The more corrupt the state, the more laws. Cornelius Tacitus (55–120) 2. A public man is a responsible man, and a responsible man is a slave. Benjamen Disraeli (1804–1881) 224

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TEXT 7 THE ENACTMENT PROCESS The Introduction of Bills A bill is a proposal for a change in the law that becomes a statute after it has been enacted. In Congress, as in most legislative bodies, ideas for legislation are introduced in the form of a bill. Ideas for legislation can emanate from a variety of sources, for example, legislators, lobbyists, constituents, legislative staffs, and, perhaps most importantly, the executive branch. Only members of a legislature can introduce bills. However, the budget processes in some states require the governor of that state to submit budget bills to the legislature. A member who introduces a bill is known as the bill’s sponsor. A bill may have a number of sponsors or cosponsors. For example, S. 1564 has 66 sponsors, enough to stop a filibuster and pass the bill. Part of the strategy of any lobbying campaign is the choice of a bill’s sponsors. A bill sponsored, for example, by a new member of the minority party would have little chance of passage or consideration. On the other hand, a bill sponsored by a senior member of the majority party or by a number of members of the majority party (see S. 1564) would be taken more seriously. In the U.S. House of Representatives, bills are introduced by depositing a bill in the “hopper,” provided for that purpose in the chamber. In the Senate, bills are usually introduced in a similar manner. On occasion, if a senator seeks some particular procedural treatment for a bill, the senator rises and introduces the bill from the floor. Only a small percentage of bills become law. The system, politically and administratively, winnows the number of 225

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bills enacted to a minimal percentage of those introduced. Bills occupy a number of cubbyholes that roughly bespeak their possibilities for passage: bills with little support, noncontroversial bills, controversial bills, major bills, and “must” bills. Noncontroversial bills are bills that are expedited through the process without opposition, generally by the use of special calendars. They include bills to exchange real property, to rename parks or streets, or to name a building after a former legislator. Controversial bills are those around which swirls political controversy. They are usually major bills, those pieces of legislation that have broad redistributive or regulatory impact. The likelihood of their enactment is unpredictable. Legislative bodies focus most of their attention on these types of bills. “Must” bills are controversial bills that the legislature generally agrees must be resolved before the end of a legislative session. These bills generally garner the most attention as members struggle to find compromises to build majorities. The Voting Rights Act is an example of major, controversial, “must” legislation. NOTES TO THE TEXT Lobby – in the British Parliament it is a hall where Members of Parliament and the public meet and hence “lobby” means a group of people who try to persuade a Member of Parliament or a Member of Congress to support or oppose certain actions. Filibuster – 1. obstruction of progress in a legislative assembly, esp. by prolonged speaking; 2. esp. US, person who engages in this. Hopper – a box where the bills are deposited. Cubbyhole – a category, a class. Procedural treatment – a particular way of dealing with the subject. 226

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to emanate, emanation, to expedite, sponsor, sponsorship, to winnow, to bespeak, to swirl, to garner, lobby, filibuster, hopper, cubbyhole, procedural treatment TASK I.  a) Match the words to their definitions: 1) to emanate 2) to expedite 3) sponsor 4) to winnow 5) to bespeak

6) to swirl 7) to garner

a) a person who introduces legislation b) to collect; to store c) to issue or originate (from a source) d) to move, flow, or carry along with a whirling motion e) to make a list, group, or quantity smaller by getting rid of the things that you do not need or want; examine to select desirable elements f) to engage in advance; suggest or indicate g) to hasten the progress (of)

b) Use the words from ACTIVE VOCABULARY to complete the following sentences: 1. The tobacco ... is trying to change the no smoking laws. 2. The new ideas ... from several groups of people. 3. People who officially introduce or support a proposal for a new law are known as ... . 4. The political and administrative system ... the number of bills enacted to a minimum percentage of the introduced bills. 5. The efficiency of the committee’s work ... careful planning. 6. “Must” bills generally ... the most attention in the calendar. 227

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7. Political controversy usually ... around controversial bills. 8. There were some new strategies to ... the decision-making process. 9. Bills occupy a number of ... that roughly bespeak their possibilities for passage. 10. In the House of Representatives bills are introduced by depositing them in a ... , provided for that purpose in the chamber. Task II.  a) Match the verbs on the left with their synonyms on the right: 1) expedite 2) emanate 3) lobby 4) winnow 5) swirl 6) garner 7) focus

a) influence b) hasten c) twist d) collect e) proceed f) concentrate g) select

b) Match the adjectives on the left with their antonyms on the right: 1) major 2) senior 3) opposite 4) former 5) particular 6) minimal 7) broad 228

a) similar b) minor c) junior d) maximum e) narrow f) general g) present

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TASK III.  Make up sentences with the following phrases to describe the enactment process: to introduce a bill; to submit budget bills; to filibuster a bill; to enact a bill; to deposit a bill; to sponsor a bill; a major bill; a “must” bill; to expedite a bill. TASK IV.  Choose the meanings in which the words in bold type are used in the text: 1) provided – a) on condition that, b) arranged, c) stated by law; 2) to winnow – a) to make a list, group, or quantity smaller by getting rid of the things that you do not need or want, b) to blow the current of air through grain; 3) to focus – a) to concentrate, b) to arrange the lens so that to obtain a clear picture; 4) calendar – a) a table of the division of years, b) a schedule of appointments, c) a list of bills; 5) to deposit – a) to put money in a bank, b) to put smth down in a particular place; 6) treatment – a) a medical method of cure, b) entertainment, c) an act or behavior in a certain way; 7) variety – a) difference in quality, type, b) a form of theatre or TV, c) a particular type or sort. TASK V.  Reading comprehension check – THE ENACTMENT PROCESS: 1. Describe the passage of a bill. 2. Who can suggest ideas for legislation? 3. Who is entitled to submit bills to the legislature? 4. Which kind of bill requires the participation of governors? 5. What kinds of bills are most likely to become statutes? 6. Compare the procedure of introducing a bill in the House of Representatives; in the Senate. 229

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7. Describe categories of bills. 8. What subjects do noncontroversial bills deal with? 9. Which bills do legislative bodies largely concentrate on? Why? 10. How are “must” bills resolved? TASK VI.  Put 5–7 questions to each paragraph to show the distinction between the House and the Senate: The order of business in the Senate is simpler than that of the House. While the procedure of both bodies is basically founded on Jefferson’s Manual of Parliamentary Practice, the practices of the two bodies are at considerable variance. The order and privileged status of motions and the amending procedure of the two are at less variance than their method of calling up business. The business of the Senate (bills and resolutions) is not divided into classes as a basis for their consideration, nor are there calendar days set aside each month in the Senate for the consideration of particular bills and resolutions. The nature of bills has no effect on the order or time of their initial consideration. The Senate is a continuing body as contrasted with the House. Two thirds of the Senators of an old Congress return to the subsequent new one without having to be re-elected, but all Representatives must stand for re-election every two years. Thus the manner and extent of organizing each new Senate have not been established under the influence of definite breaks between each Congress as has been the experience of the House, nor have the parliamentary rules of the Senate been equally subjected to alterations. Representatives re-adopt their old rules of procedure at the inception of each Congress, often with slight modification, while Senators have not given a general reaffirmation to their rules since 1789. The rules adopted by the Senate in the first Congresses have remained in force continuously, with the 230

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exceptions of particular additions or abolishments from time to time. Any such changes are made by amending the rules to meet new needs of the body. Changes have not been frequent, as demonstrated by the fact that a codification of the accumulated alterations has occurred on only a few different occasions. TASK VII.  Comment on the following quotations: 1. No government can be long secure without a formidable opposition. Benjamen Disraeli (1804–1881) 2. Important principles may and must be flexible. Abraham Lincoln (1809–1865)

TEXT 8 THE PARTY ORGANIZATION The party system is the most significant organizational unit in Congress and many state legislatures. Legislators run for office as Democrats or Republicans and, once in the legislature, organize themselves according to these labels. In each house of Congress, and in each house of most state legislatures, each party has a caucus (often referred to as a conference) made up of all legislators of that party. The U.S. House of Representatives, for example, has the Democratic Caucus and the Republican Conference. The U.S. Senate has the Democratic and Republican Conferences – these are formal organizations that meet regularly in most jurisdictions and adopt and operate under their own caucus by-laws and customs. The caucuses also establish committees to aid in the performance of their functions. For example, the Democratic 231

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Caucus of the U.S. House of Representatives for the 103rd Congress, 1993–1994 had the Democratic Personnel Committee (patronage), the Democratic Steering and Policy Committee (legislative scheduling and committee assignments), and the Democratic Congressional Campaign Committee (campaign support for House seats). The Republican Conference of the House had the National Republican Congressional Committee (campaign support), the Republican Committee on Committees (committee appointments), the Republican Policy Committee (legislative strategy), and the Republican Research Committee (developments of policy alternatives). Although the legislative caucuses bear the name of national and state political parties, to a substantial extent they exist separately from these parties. National and state parties are dominated by presidential and gubernatorial politics. Power for these parties is achieved through successful executive elections. This requires making choices among the many disparate views that constitute a single party in a two-party system in order to create a platform on which to run. If the national or state party elects a chief executive, that executive usually appoints the leader of the national or state party and totally controls its efforts. The executive’s programs become the national or state party’s programs. Power, for legislative caucuses comes from having as large a membership as possible. As discussed below, the majority party dominates the legislative process, and the larger the majority the greater this domination. This creates, within the legislative caucus, a distaste for ideological choices that might drive members from its ranks. The legislative party system serves two functions; legislative governance and legislative consensus building or policy making. As an institution of governance, the party system determines legislative, committee, and subcommittee leadership; the allocation of staff and financial resources; and the daily flow of legislative activities. As a consensus builder, the caucus serves as 232

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a forum for policy and political debate, hammering out critical differences among party members on many issues in order to provide for a unified front to the opposite party on the floor of the chamber. This unifying role is particularly important given American two-party system, in which legislators in one party may hold a variety of conflicting points of view. In fact, almost every view on every issue is represented in each party. Individuals choose to become Democrats or Republicans for a wide variety of reasons. Sometimes it has to do with support for particular legislative positions, but more likely these choices are determined by broader perceptions of the party’s views of defining events (the Vietnam War) or perceptions (pro-labor, pro-business), or by family tradition, culture, or opportunity. Democratic and Republican legislators may be for or against government regulation of abortion, for or against more aid to the poor, for or against higher or lower taxes, for or against more regulation of industry to protect the environment, or for or against free trade treaties. Such disparate interests and views must be melded to advance legislation. NOTES TO THE TEXT The Democratic Party – one of the two main political parties in the US, tracing the history to the time of Andrew Jackson in the 1820s. It was founded in 1828 and was considered to be more liberal. The Republican Party – is considered to be more conservative than the Democratic Party. It was organized in 1854 to combat slavery. The first Republican President was Abraham Lincoln. The Vietnam War (1964–1975) – a long civil war between the Communist forces of North Vietnam and non-Communist forces of South Vietnam. It ended in 1975 when South Vietnam was finally defeated, and Vietnam was united as one country. US soldiers fought in Vietnam to support the army of South Vietnam. American people have very divided feelings about this war. 233

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Bylaw – the written rules for conduct of a corporation, association, partnership or any organization; a law made by the local government. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY label, disparate, to allocate, allocation, to meld, to assign, assignment, to run, to hammer out, bylaw, caucus TASK I.  a) Match the words to their definitions: 1) label 2) disparate

a) merge, blend, unite b) a designation or apportionment for a specific purpose (of funds, etc.) 3) to allocate c) essentially different; not comparable 4) allocation d) to offer oneself for election 5) to meld e) piece of paper etc. attached to an object to give information about it.; short classifying phrase applied to a person etc.; logo, title, or trademark of a company 6) to assign f) to work out details of a plan, etc.; talk about something and come to a decision about it 7) assignment g) task or mission; the transfer of rights or property 8) to run h) to appoint someone to a job or task; give money to someone or decide it should be used for a particular purpose 9) to hammer out i) to assign or devote to (a purpose, person, or place) 234

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b) Use the words from ACTIVE VOCABULARY to complete the following sentences: 1. The main parties are known under the ... “Democrats and Republicans.” 2. A certain sum of money was ... for disaster relief. 3. Different interests must be ... to advance legislation. 4. The government ... a particular part of its foreign aid budget to African countries. 5. George Bush-junior ... President twice. 6. The challenge is to make ... computer systems work together. 7. The Democratic Party elects its candidates at a Party ... . 8. A rule made by an organization for governing its own affairs is called ... . 9. The committee tried to ... the proper solution. 10. The Government provided some ... to the job creation program. TASK II.  Match the nouns on the left with their synonyms on the right. 1) consensus 2) label 3) politics 4) allocation 5) caucus 6) perception 7) policy 8) extent 9) governance

a) description b) government c) agreement d) understanding e) allotment f) forum g) power h) action i) degree

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TASK III.  Use the following phrases to describe political relations a) in the USA; b) in your country: to run for office; to exist separately; to achieve power; to make up the caucus; to hammer out differences; to be for or against government decisions; to protect the environment; to meld disparate interests. TASK IV.  Use the GLOSSARY or a dictionary to define the following notions: by-laws and customs; the Steering and Policy Committee; committee assignments; gubernatorial politics; legislative governance; an institution of governance. TASK V.  Complete the following sentences: 1. The larger the majority the greater… . 2. The broader the perception the better ... . 3. The higher the taxes the lower … . 4. The more aid to the poor the more … . 5. The more regulation of industry the better … . TASK VI.  Choose the meaning in which the words in bold type are used in the text: 1) to run – a) to move quickly, b) to compete in an election, c) to control; 2) to steer – a) to make a boat go in a particular direction, b) to guide and to direct a particular piece of activity; 3) party – a) a social gathering for pleasure, b) a group of people with common political aims, c) a side in a lawsuit; 4) staff – a) people who work for an organization, b) a long stick to help you walk; 5) to make up – a) to invent a story, b) to use special paint, c) to constitute, to form. 236

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TASK VII.  Reading comprehension check – THE PARTY ORGANIZATION: 1. How important is the party system in Congress? 2. How do legislators organize themselves? 3. Define a caucus and its functions. 4. Describe the role of the committees set up by caucuses. 5. Compare the sources of power for national and state parties and those for legislative caucuses. 6. Describe the functions of the legislative party system. 7. Why do individuals choose to become Democrats or Republicans? 8. How do individuals choose to become a member of a party? 9. Why is it important to achieve consensus on various issues among party members in Congress? 10. Describe the role of caucuses in the legislative process. 11. Explain how national, state parties and legislative caucuses are related. TASK VIII.  Read the following text to describe the purpose and procedure of the conference: The Conference The conference is the means by which the two houses of Congress resolve the differences between them on a bill that both houses have considered and adopted. Such agreement is necessary if a bill is to become law because each house must pass an identical version of the same bill. The House Speaker and the presiding officer of the Senate name conferees to the conference committee. Conferees are usually members of the substantive committee that reported the legislation and are recommended by the committee chair and ranking minority member. A conference report must be approved by a majority of the conferees from each house; it does not matter how many 237

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members are appointed from each house, although it may change the dynamics of arriving at an intra-house compromise. When a conference committee reaches an agreement, it issues a conference report that details the agreement. This report then becomes the vehicle for further legislative action. It may contain exact bill language, but it may only contain references to prior legislative action, such as an amendment of one house or the other. The report is then considered by the house that accepted the request for a conference. The report is not subject to amendment and, if not adopted by both houses, it must go back to another conference. When both houses agree to a conference report, that report becomes the mandate for the bill’s enrollment. TASK IX.  Comment on the following quotation: Liberty means responsibility. That is why most men dread it. George Bernard Shaw (1856–1950)

TEXT 9 Representative Government Representative democracy is perhaps most obviously a system of government suited to situations in which it is for one reason or another impractical for the citizenry actually to show up and personally participate in the legislative process. But the concept of representation, as understood by our forebears, was richer than this. Pre-Revolutionary rhetoric posited a continuing conflict between the interests of “the rulers” on the one hand, and those of “the ruled” (or “the people”) on the other. A solution was sought by building into the concept of representation the idea of an association of the interests of the two groups. Thus the representatives in the new government were 238

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visualized as “citizens,” persons of unusual ability and character to be sure, but nonetheless “of the people.” Upon conclusion of their service, the vision continued, they would return to the body of the people and thus to the body of the ruled. In addition, even while in office, the idea was that they would live under the regime of the laws they passed and not exempt themselves from their operation: this obligation to include themselves among the ruled would ensure a community of interest and guard against oppressive legislation. The Framers realized that even visions need enforcement mechanisms: “some force to oppose the insidious tendency of power to separate the rulers from the ruled was required.” The principal force envisioned was the ballot: the people in their self-interest would choose representatives whose interests intertwined with theirs and by the critical reelection decision ensure that they stayed that way, in particular that the representatives did not shield themselves from the rigors of the laws they passed. Actually it may not matter so much whether our representatives are treating themselves the way they treat the rest of us. Indeed it may be precisely because in some ways they treat themselves better that they seem so desperately to want to be reelected. And it may be that desire for reelection, more than any community of interest that is our insurance policy. If most of us feel we are being subjected to unreasonable treatment by our representatives, we retain the ability – irrespective of whether they are formally or informally insulating themselves – to turn them out of office. What the system, at least as described thus far, does not ensure is the effective protection of minorities whose interests differ from the interests of most of the rest of us. For if it is not the “many” who are being treated unreasonably but rather only some minority, the situation will not be so comfortably amenable to political correction. Indeed there may be political pressures to encourage our representatives to pass laws that 239

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treat the majority coalition on whose continued support they depend in one way, and one or more minorities whose backing they don’t need less favorably. Even assuming we were willing and able to give it teeth, a requirement that our representatives treat themselves as they treat most of the rest of us would be no guarantee whatever against unequal treatment for minorities. This is not to say that the oppression of minorities was a development our forebears were prepared to accept as inevitable. The “republic” they envisioned was not some “winner-takeall” system in which the government pursued the interests of a privileged few or even of only those groups that could work themselves into some majority coalition, but rather – leaving slavery to one side, which of course is precisely what they did – one in which the representatives would govern in the interest of the whole people. Thus every citizen was said to be entitled to equivalent respect, and equality was a frequently mentioned republican concern. Its place in the Declaration of Independence, for example, could hardly be more prominent. When it came to describing the actual mechanics of republican government in the Constitution, however, this concern for equality got comparatively little explicit attention. This seems to have been largely because of an assumption of “pure” republican political and social theory that we have brushed but not yet stressed: that “the people” were an essentially homogenous group whose interests did not vary significantly. Though most often articulated as if it were an existing reality, this was at best an ideal, and the fact that wealth redistribution of some form – ranging from fairly extreme to fairly modest proposals – figured in so much early republican, while doubtless partly explainable simply in terms of the perceived desirability of such a change, also was quite consciously connected to republicanism’s political theory. To the extent that existing heterogeneity of interest was a function of wealth disparity, redistribution would reduce it. 240

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To the extent that the ideal of homogeneity could be achieved, legislation in the interest of most would necessarily be legislation in the interest of all and extensive further attention to equality of treatment would be unnecessary. NOTES TO THE TEXT Declaration of Independence, 1776 – historic U.S. document stating the theory of government on which the USA was founded, based on the right to “life, liberty, and the pursuit of happiness.” To give it teeth – to put into effect (a process, legislation). “Winner-take-all” system – the system of election when candidates gain the state’s total electoral vote in the electoral college, no matter how small the margin. Ballot – a system of voting, usually in secret, or an occasion when you vote in this way; a piece of paper on which you make a secret vote. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to suit, suitable, suitability, suitably, to visualize, visualization, vision, to exempt, to envision, insidious, insidiously, insidiousness, amenable, homogeneous, homogeneity, homogeneously, heterogeneous, heterogeneity, to intertwine TASK I.  a) Match the words to their definitions: 1) to suit 2) suitable 3) to visualize

a) to imagine that something will happen in the future b) proceeding inconspicuously but harmfully; crafty c) to give smb permission not to do or pay smth 241

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4) vision

d) responsive, docile.; answerable to law etc. 5) to exempt e) of the same kind.; consisting of parts of the same kind; uniform 6) envision f) consisting of parts or members that are very different from one another 7) insidious g) to meet the demands or requirements of; satisfy; agree with.; make fitting; accommodate; adapt 8) amenable h) well-fitted; appropriate 9) homogeneous i) twist together, firmly join 10) heterogeneous j) imagine visually 11) to intertwine k) mental picture; imaginative insight b) Use the above words to complete the following sentences: 1. The people of the USA are ... mix of nationalities. 2. The representatives in the government are ... as citizens. 3. The situation is ... to political correction. 4. The most important force ... was the ballot. 5. The new government needed some force to oppose the ... tendency of usurping the power. 6. The Framers understood that even ... needed enforcement mechanisms. 7. The problems of crime and unemployment are closely ... . 8. Democratic government is ... to the public representation in the legislative process. 9. The “people” were essentially ... group whose interests did not differ greatly. 10. The party leader is elected by secret … . 11. The document … the owner from liability in case of accidents. 242

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TASK II.  a) Match the words on the left with their synonyms on the right: 1) forebear 2) posit 3) to visualize 4) to insulate 5) to figure 6) to suit 7) to envision 8) to intertwine 9) subject to 10) to exempt

a) picture b) ancestor c) isolate d) postulate e) fit f) imagine g) consider h) release i) connect j) subordinate

b) Match the adjectives with the nouns to make up word combinations to discuss the representative government in your country: 1) representative 2) unusual 3) effective 4) political 5) republican 6) social 7) homogenous 8) unreasonable

a) protection b) democracy c) ability d) theory e) correctness f) concern g) treatment h) group

TASK III.  a) Use the following phrases to discuss the latest legal news: to seek a solution; the body of the ruled; to shield smb from the rigors (of the law); to treat smb unreasonably; to pursue the interests of smb; to range from … to …; to guard against smth. 243

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b) Make up a story about your proposal of a new law on legal education, use the following connectors: 1) nonetheless – however, despite that 2) actually – really, in fact 3) in addition – besides, as well 4) in particular – in detail, exactly 5) thus far – until now 6) at least – if nothing else 7) but rather – more exactly, more truly 8) indeed – really, certainly TASK IV.  Use the GLOSSARY or a dictionary to define the following notions: representative democracy, pre-revolutionary rhetoric, protection of minorities, homogenous group, heterogeneity of interests. TASK V.  Express the same ideas in other words: 1. The principal force envisioned was the ballot: the people in their self-interest would choose representatives whose interests intertwined with theirs and by critical reelection decision ensure that they stayed that way, in particular that the representatives did not shield themselves from the rigors of the laws they passed. 2. If most of us feel we are being subjected to unreasonable treatment by our representatives, we retain the abilityirrespective of whether they are formally or informally insulating themselves – to turn them out of office. 3. Though most often articulated as if it were an existing reality, this was at best an ideal, and the fact that wealth redistribution of some form – ranging from fairly extreme to fairly modest proposals – figured in so much early republican, while doubtless partly explainable simply in terms 244

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of the perceived desirability of such a change, also was quite consciously connected to republican political theory. TASK VII.  Discussion points, reading comprehension check – REPRESENTATIVE GOVERNMENT: 1. Define the concept of representative democracy. 2. Define the concept of representative government. 3. What conflict did the pre-Revolutionary rhetoric postulate? 4. What is an integral part of the representation concept? 5. What mechanism proposed by the Framers was to prevent the separation of the rulers from the ruled? 6. What can make fair treatment of minorities possible? 7. Prove the effectiveness of the proposed system in protecting minorities’ interests. 8. What kind of republic did the Framers intend to create? 9. Why wasn’t the principle of equality highlighted in the Constitution to the full extent? 10. Discuss the people as really a homogenous group with similar interests. 11. Homogenous society as a reality or an ideal.

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UNIT IV U.S. PRESIDENCY TEXT 1 THE CHIEF EXECUTIVE The Constitutional Basis of Presidential Power When the presidency was created, the colonies had just fought a war of independence; their reaction to British domination had focused on the autocratic rule of King George III. The delegates to the Constitutional Convention were extremely wary of unchecked power; they were determined not to create a presidential office whose occupant could become an allpowerful dictatorial figure. The delegates’ fear of a powerful presidency was counterbalanced by their desire for strong leadership. The Articles of Confederation – which did not provide for a single head of state had failed to bind the states together into a unified nation. In addition, the governors of the individual states had generally proved to be inadequate leaders because they had few formal powers. The new nation was conspicuously weak; its congress had no power to compel the states to obey its legislation. With the failed confederation in mind, John Jay wrote to George Washington: “Shall we have a king?” Although the idea of establishing an American royalty was far from popular among the delegates, they knew that some type of executive office had to be created. Their task was to 246

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provide national leadership without allowing any opportunity for tyranny. Initial Conceptions of the Presidency Debates over the nature of the office began. Should there be one president or a presidential council, or a committee? Should the president be chosen by Congress and remain largely subservient to that body? Initial approval was given to a plan that called for a single executive, chosen by Congress for a seven year term and eligible for re- election. But some of the delegates continued to argue for a strong president who would be elected independently of the legislative branch. The final shape of the presidency reflected the “checks and balances” philosophy that shaped the entire Constitution. In the minds of the delegates important limits were imposed on the presidency through the powers specifically delegated to the Congress and the courts. Those counterbalancing powers would act as checks, or controls, on presidents who might try to expand the office beyond its proper bounds. The Powers of the President The requirements for the presidency are set forth in Article II of the Constitution: A president must be natural-born citizen, at least thirty five years old, who has lived in the USA for a minimum of 14 years. The responsibilities of presidents are also set forth in Article II. In view of the importance of the office, the constitutional description of the president’s duties is surprisingly brief and vague. The vagueness has led to a repeated conflict over the limits of presidential powers. There were undoubtedly many reasons for Article II’s lack of precision. One likely reason was the difficulty of providing and at the same time limiting presidential power. Furthermore, the Framers of the Constitution had no model, no existing 247

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presidency, on which to base the description of the office. And, ironically, their description of the presidency might have been more precise if they had had if less confidence in George Washington, the obvious choice for the first president. According to one account of the Constitutional Convention, “when Dr. Franklin predicted on June, 4 that the first man put at the helm will be a good one, every delegate knew perfectly well who that good man was to be.” The delegates had great trust in Washington; they did not fear that he would try to misuse the office. The major duties and powers that the delegates listed for Washington and his successors can be summarized as follows: •  Serve as administrative head of the nation. The Constitution gives little guidance on the presidential administrative duties. It states merely that “the executive power shall be vested in the President of the United States of America” and that “he should take care that the laws be faithfully executed.” These imprecise directives have been interpreted to mean that the president is to supervise and offer leadership to various departments, agencies and programs created by Congress. In practice, a chief executive spends much more time making policy decisions for his Cabinet departments and agencies than trying to enforce existing policies. •  Act as commander in chief of the military. In essence, the Constitution names the president as the highest ranking officer in the armed forces. But it gives the Congress the power to declare war. The Framers no doubt intended to control the president’s military power, nevertheless, the presidents have initiated military action without the approval of Congress. The entire Vietnam War was fought without a congressional declaration of war. 248

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•  Convene Congress. The president can call Congress into special session on extraordinary occasions, though this has been done only rarely. He must also periodically inform Congress of the State of the Union. •  Veto legislation. The president can veto any bill or resolution passed by Congress, with the exception of joint resolutions that propose constitutional amendments. Congress can override a presidential veto with a two-thirds vote in each house. •  Appoint various officials. The president has the authority to appoint federal court judges, ambassadors, Cabinet members, other key policy makers, and many other officials. Many appointments are subject to Senate confirmation. •  Make treaties. With the advice and consent of at least two-thirds of those senators voting at the time, the president can make treaties with foreign powers. The president is also to receive ambassadors, a phrase that presidents have interpreted as the right to recognize other nations. •  Grant pardons. The president can grant pardons to individuals who have committed “Offences against the United States, except in cases of Impeachment.” NOTES TO THE TEXT: Constitutional Convention – also known as the Philadelphia Convention, the Federal Convention, or the Grand Convention at Philadelphia took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from Great Britain. Articles of Confederation – formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution. 249

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Checks and balances philosophy – the theory of governmental power and functions whereby each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. The term is ascribed to French Enlightenment political philosopher Montesquieu. Montesquieu described division of political power among an executive, a legislature, and a judiciary. State of the Union – an annual address presented by the President of the United States to the United States Congress. The address not only reports on the condition of the nation but also allows the president to outline his legislative agenda (for which he needs the cooperation of Congress) and his national priorities. Veto – a Latin term meaning “I forbid.” A power of one governmental branch to prohibit an action by another branch; esp., a chief executive’s refusal to sign into law a bill passed by the legislature. Treaty – an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. Pardon – the act or an instance of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the chief executive of a government. Impeachment – the act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct; esp., the initiation of a proceeding in the U.S. House of Representatives against a federal official, such as the President or a judge. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY autocratic, to bind (together), conspicuous, to compel, subservient, eligible, eligibility, precise, at the helm, to vest, to override 250

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TASK I.  a) Consult a dictionary to define the words and word combinations from ACTIVE VOCABULARY. b) Use the above words to complete the sentences: 1. The new president established an … control over the White House staff. 2. Your own needs must be … to those of the group. 3. The campaign had been a … success. 4. The company flourished with such a famous lawyer … . 5. Are you … for social security benefits? 6. The mayor felt … to resign because of the allegations of press. 7. The … details of the sale have not yet been released. 8. In most countries the right to make new laws is … in the people’s representation. 9. Their shared experience in war helped to … the two communities together. 10. The principal … the teacher’s rule and let the children stay outside. TASK II.  Complete the following table: Noun

3) occupant

6) confidence

Verb

Adjective

– 2) obey

1) autocratic

– 5) execute

4) vague

7) expand 8) describe 251

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TASK III.  Match the words on the left with their synonyms on the right and use them in your own sentences: 1) to establish 2) to bind 3) subservient 4) conspicuous 5) entire 6) to expand 7) perfect 8) faithful 9) to initiate 10) extraordinary

a) to develop, to elaborate b) honest, reliable c) to launch, to set going d) subordinate e) to connect, to secure f) flawless; authentic g) complete, unbroken h) apparent, evident i) bizarre, marvelous j) to constitute

TASK IV.  Add adjectives to the following nouns to make up the word combinations from the text. Provide broader context: a... rule u... power p... office u... nation f... powers n... leadership

s... executive c... description m... duties i... directives r... officer c... declaration

TASK V.  Use the following phrases to agree or disagree with the statements below: I agree I don’t really agree It’s perfectly right That’s not really how I see it 252

Of course, not Precisely That’s true I don’t think I can agree

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1. The delegates to the Constitutional Convention wanted to guarantee a non-dictatorial rule. 2. The Articles of Confederation failed to create a unified state. 3. The newly established Congress compelled the states to obey its legislation. 4. The task of the Framers was to establish an American royalty. 5. Checks and balances philosophy is reflected in the idea of the presidency. 6. Congress and courts have rights to limit presidential powers. 7. The requirements for the presidency are set forth in Article I of the Constitution. 8. The constitutional description of the president’s duties is precise and clear-cut. 9. Washington was sure to be elected the first president. 10. Congress cannot override a presidential veto. 11. Presidents have never initiated military actions without the approval of Congress. TASK VI.  a) Match the terms to their definitions: 1) pardon; 2) veto; 3) impeachment; 4) treaty: a) A Latin term meaning “I forbid.” A power of one governmental branch to prohibit an action by another branch; esp., a chief executive’s refusal to sign into law a bill passed by the legislature. b) An express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. c) The act or an instance of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the chief executive of a government. 253

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d) The act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct; esp., the initiation of a proceeding in the U.S. House of Representatives against a federal official, such as the President or a judge. b) Use the above terms in the following sentences: 1. The power of the executive to grant … or clemency, being a matter of grace, is rarely subject to judicial review. 2. Legislative … is the popular name for a device granting Congress the power to disapprove, or … , proposed executive branch or agency actions. 3. The House alone was given power of … , and the Senate alone was given power to convict upon … , to advise and consent to executive appointments, and to advise and consent to treaties. 4. The practice and understanding, beginning with the Bill of Rights, have been that resolutions proposing constitutional amendments need not be presented to the President for … or approval. 5. Iowa inheritance tax law discriminating against nonresident alien heirs was violative of a … with Denmark. 6. The … power gives to Congress the authority to root out corruption and abuse of power in the other two branches. 7. Since the statute acted as a … or amnesty and relieved the witness of all legal detriment, he must testify. c) Translate the following passages: 1. When a treaty with Indian tribes exempted their lands from levy, sale, and forfeiture, Kansas could not validly collect its tax on lands held in severalty by members of such tribes under patents issued them pursuant to such treaty. Tribal Indians thus recognized by the National Government are exempt from the jurisdiction of the State. 254

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2. The U.S. Constitution provides at least three different methods in which international treaties and agreements can be directly incorporated into domestic law. First, courts of various tiers and prerogatives may refer to international legal obligations and commitments when interpreting domestic statutes. Second, Congress could refer to international laws in making domestic laws. That is, domestic laws could integrate or incorporate provisions of an international treaty. Third, although the Constitution grants the president the power to negotiate and sign international treaties in particular and conduct foreign relations in general, the treaty supremacy clause of the Constitution, Article VI, requires the Senate to ratify treaties with a majority two-thirds vote. Once a treaty is signed by the president and ratified by the Senate, it becomes the “Supreme Law of the Land.” 3. Inasmuch as Article V of the Federal Constitution specifies that amendments shall become effective “when ratified by legislatures of three-fourths of the several States or by conventions in three-fourths thereof,” it has been generally believed that an approval or veto by a governor is without significance. 4. The impeachment clause, Article I, § 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. 5. In contrast to the Constitution’s explicit grant of a presidential veto power, by which the president may disapprove congressional enactments, no constitutional provision expressly gives Congress the power to exercise continuing authority over its legislative delegations. 6. The line-item veto is a proposal that would allow the president to veto certain items from a budget bill, rather than requiring the president to veto the entire bill. This type of veto power has been requested by several presidents, and at least all since Ronald Reagan was in office. 255

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7. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. 8. Comparative gravity of criminal offenses is, however, largely a matter of state discretion, and the fact that some offenses are punished with less severity than others does not deny equal protection. Heavier penalties may be imposed upon habitual criminals for like offenses, even after a pardon for an earlier offense, and such persons may be made ineligible for parole. TASK VII.  Reading comprehension check – THE CHIEF EXECUTIVE: 1. What did John Jay worry about in his letter to George Washington? 2. Describe the difference between the initial approach to the office of president and the final one. Which one do you find more reasonable? 3. Compare the presidency in the USA with the one in your country. 4. Why did the personality of George Washington have a great impact on the Founding Fathers when they were shaping the final version of the Constitution? 5. Describe the principal duties of the U.S. President. TASK VIII.  Comment on the following quotation: Oh, if I could be President and Congress too for just ten minutes. Theodore Roosevelt(1901–1909) to Franklin D. Roosevelt (1933–1945) – distantly related fifth cousins 256

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TEXT 2 THE POWER OF APPOINTMENT The president’s power to appoint and remove those subordinate officials was a necessary complement to his power to manage the executive branch. Members of the president’s administration are responsible for carrying out the duties of the office they have been selected to fill and to serve the president who appointed them. Article II, section 2, provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the Presidents alone, in the courts of law, or in the heads of departments.” The clause provided four methods of appointments: presidential appointment with Senate confirmation, presidential appointments without Senate confirmation, appointments by courts of law and appointments by heads of departments. Congress exercises no power to appoint executive officers though it may set qualifications for offices established by statute. Congressional requirements usually have pertained to citizenship, grade, residence, age, political affiliation and professional competence. The appointment power of the president has been exercised in conformance with a blend of historical precedents, custom, constitutional requirements and statutory provisions established by Congress. Congress has narrowed the range of officers over whom the president has the discretionary appointment power. The creation 257

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of the Civil Service Commission and the steady addition of positions to the professional civil service list have reduced the scope of the president’s exercise of the appointment power. Moreover, the establishment of a professional foreign service and the enumeration of the list of diplomatic posts available for presidential appointments also narrowed the president’s range of appointments. The court has decided only a few cases with respect to the appointment process but the decisions made, beginning with Marbury v. Madison, control the president’s power to nominate and appoint and limit his discretionary exercise of the removal power. NOTES TO THE TEXT: Marbury v. Madison – first decision of the Supreme Court of the USA (1803) to declare an act of Congress unconstitutional, thus, establishing the doctrine of judicial review. Civil Service Commission – a commission appointed by the President, consisting of three members, not more than two of whom may be adherents of the same party, which has the control, through examinations, of appointments and promotions in the classified civil service. It was created by act of Jan., 16, 1883. Article II, Section 2 – an extract from the Constitution of the United States (1787). LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY official, officer, office, complement, to remove, removal, subordinate, to manage, to nominate ( smb to / as smth), nomination, nominee, clause, confirmation, to confirm, qualification, to qualify, citizenship, competence, provision, position, available, inferior 258

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TASK I.  a) Consult a dictionary to define words and word combinations from ACTIVE VOCABULARY; b) Use the words from active vocabulary to complete the sentences: 1. There has been no official … of the report. 2. She has all the right … to be a good manager. 3. We tried to find out the Senator’s opinion on this matter, but he was not … for comment. 4. The elections … the government from power. 5. You can apply for … after five years’ residency. 6. The document doesn’t provide for this kind of … . 7. A fine wine is a good … to a good meal. 8. In many societies women are … to men. 9. We need people who can … the project. 10. Our party has been in … for three years. 11. Who has the right to appoint executive … ? 12. He held a senior … in a company. 13. His … is not in question. 14. He … … for the presidency. 15. An … court is any court that is subordinate to the chief appellate tribunal within a judicial system. TASK II.  Match the words with their definitions. Use the words to describe the major duties of the head of your country: 1) official; 2) confirmation; 3) to remove; 4) subordinate; 5) to manage; 6) to nominate; 7) complement; 8) clause; 9) qualification; 10) precedent; 11) citizenship; 12) scope; 13) available; 14) inferior a) to dismiss smb from their position or job; b) an item in a legal document that says that a particular thing must or must not be done; c) a thing that adds new qualities to smth in a way that improves it or makes it more attractive; 259

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d) to control or be in charge of a business, a team, an organization, etc.; e) a statement, letter, etc. that shows that smth is true, correct or definite; f) having less power or authority than smb else in a group or an organization; g) a similar action or event that happened earlier; h) a person who is in a position of authority in a large organization; i) the range of things that a subject, an organization, an activity, etc.; deals with lower in position; j) able to be had, obtained, used, seen, etc.; k) an ability, quality, or record of experience that makes a person suitable for a particular job or position; l) the legal right to belong to a particular country; m) to choose smb to do a particular job. TASK III.  a) Match the terms with their definitions: 1) appointment; 2) affiliation; 3) discretionary; 4) administration; 5) qualification a) The act by which a person is selected and invested with an office; as the appointment of a judge, of which the making out of his commission is conclusive evidence; is also understood as public employment, nearly synonymous with office. The distinction is this, that the term appointment is of a more extensive signification than office. b) A person’s connection with a political party. c) Decided according to the judgment of a person in authority about what is necessary in each particular situation; not decided by rules. d) The government of the country, especially the U.S. e) A particular attribute, quality, property, or possession that an individual must have in order to be eligible to fill an office or perform a public duty or function. 260

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b) Use the above terms in the following sentences: 1. Jackson was able to use his … power effectively to place five individuals on the bench who would presumably be more sympathetic to his views than those on the Marshall Court. 2. Discussion of public issues and debate on the … of candidates are integral to the operation of the system of government established by the Constitution. 3. Scholars have posited a number of reasons for the solicitor general’s success as a petitioner. One is that the Court is cognizant of the SG’s special role. A presidential appointee whose decisions often reflect the …’s philosophy, the SG also represents the interests of the United States. As the nation’s highest court, the Supreme Court cannot ignore these interests. 4. The authority of the people of the States to determine the … of their most important government officials is an authority that lies at ‘the heart of representative government’ and is a power reserved to the States under the Tenth Amendment. 5. Section 9(h) does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political …s and beliefs. 6. The Senate also advises and consents on both treaties and executive …s. This function provides a check on the executive branch and the judicial branch as well, since federal judges and justices are appointed. c) Translate the following passages: 1. Nixon had a major impact on the Supreme Court by appointing Warren Earl Burger to replace Earl Warren as chief justice, and Nixon also appointed William Hubbs Rehnquist, a future chief justice, and Harry Blackmun and Lewis Powell Jr. Through his four appointments he created a more conservative Supreme Court, especially in regard to criminal due process issues. 261

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2. The Senate also may approve or reject presidential appointments of the secretaries of state and defense, the national security advisor, ambassadors, and other officials involved in the formulation or implementation of foreign policy. 3. Increasingly, members of the Senate have insisted on being consulted about nominations before they are submitted. And instead of voting to approve or reject a nominee, senators may also resort to filibusters and other delaying tactics in response to a politically objectionable appointment in the hope of causing it to be withdrawn. 4. A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicy-making, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations, the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 5. Some scholars suggest that the justices knew if they ruled in a certain way, the Jefferson administration would not carry out their orders. Because the Court felt that such a failure would threaten the legitimacy of judicial institutions, it crafted its opinion in a way that would not force the administration to take any action but would send a message about its displeasure with the administration’s politics. 6. The State’s admitted interest in assuring the requisite qualifications of persons licensed to practice law could be adequately served by judging applicants on a case-by-case basis and in no sense could the fact that a lawyer is considered to be an officer of the court serve as a valid justification for a flat prohibition. 262

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7. In Clinton v. City of New York, the Supreme Court declared unconstitutional a federal law giving the president of the United States line-item veto authority. In 1997, President Bill Clinton used the Line Item Veto Act of 1996 to remove or delete individual items that were contained within bills, resolutions, and other budgetary items that he would otherwise have vetoed. Through the new act, the president basically had the power to cancel three major types of financially defined items. The range of his authority to veto began at one end with the ability to challenge the dollar amount of discretionary budget authority. TASK IV.  a) Read and discuss: The Power of Removal A lengthy review of history led the Court to conclude that “the executive Power” (Article II, Section 1) was a broad grant of substantive power, and that the appointing provisions of Article II, Section 2 were to be understood as limitations to this power which were to be construed strictly. Congress’s power to determine the mode of appointment of “inferior officers” (Article II, Section 2) thus does not extend to it the power to limit their removal once appointed. The power to remove is inherently executive: The president must be able to remove officials in whom he has lost confidence in order to fulfill his own obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3). b) How are officials removed in your country? Provide a few examples; c) Discuss the Executive – Judiciary relations: 1. The executive branch, which operates under the president’s command, is a direct source of influence. The bureaucracy can assist the Court in implementing its policies, or it can hinder 263

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the Court by refusing to do so, a fact of which the justices are well aware. As a judicial body, the Supreme Court cannot implement or execute its own decisions. It often must depend on the executive branch to give its decisions legitimacy through action. The Court, therefore, may act strategically, anticipate the wishes of the executive branch, and respond accordingly to avoid a confrontation that could threaten its legitimacy. Marbury v. Madison, in which the Court enunciated the doctrine of judicial review, is the classic example. Some scholars suggest that the justices knew if they ruled in a certain way, the Jefferson administration would not carry out their orders. Because the Court felt that such a failure would threaten the legitimacy of judicial institutions, it crafted its opinion in a way that would not force the administration to take any action but would send a message about its displeasure with the administration’s politics. 2. Presidential influence is demonstrated in the kinds of arguments a solicitor general (SG) brings into the Court. That is, SGs representing Democratic administrations tend to present more liberal arguments; those from the ranks of the Republican Party, more conservative arguments. The transition from George H. W. Bush’s administration to Bill Clinton’s administration provides an interesting illustration. Bush’s SG had filed amicus curiae briefs – many of which took a conservative position – in a number of cases heard by the Court during the 1993–1994 term. Drew S. Days, Clinton’s first solicitor general, rewrote at least four of those briefs to reflect the new administration’s more liberal posture. For example, Days argued that the Civil Rights Act of 1991 should be applied retroactively, whereas the Bush administration had suggested that it should not be. In another case, Days claimed trial attorneys could not systematically challenge prospective jurors on the basis of sex; his predecessor had argued that such dismissals were constitutional. 264

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d) Describe the Executive – Judiciary relations in your country. TASK V.  a) Match the words on the left with their synonyms on the right; b) Make up sentences to describe the power of appointment in your country: 1) power a) to nominate 2) to appoint b) duty 3) responsibility c) authority 4) to provide d) convention 5) statute e) to fulfill 6) to pertain f) position 7) in conformance with g) to restrict 8) custom h) in accordance with 9) to limit i) range 10) scope j) to be connected with 11) office k) to stipulate 12) to carry out l) law c) Match the words on the left with their antonyms on the right: 1) to appoint 2) to manage 3) to narrow 4) to create 5) to reduce 6) available 7) to carry out 8) consent 9) inferior

a) to abolish b) to neglect c) to increase d) unavailable e) refusal f) to widen g) to mismanage h) superior i) to remove 265

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d) Make up sentences with them to compare the procedures of appointment and removal in the USA and in your country. TASK VI.  Use the following phrases to describe the appointment power of the U.S. President: • the president’s power to appoint and remove • to manage the executive branch • to be responsible for carrying out the duties • the article provides that • to vest the appointment in • appointment with (without) Senate Confirmation • to exercise power • statutory provisions established by • to narrow the range • the steady addition of positions • the scope of the president’s exercise of the appointment power • available for presidential appointments • to decide cases TASK VII.  Use the verbs in brackets in the appropriate tense and voice. Check against the text and explain the usage of each grammar form: 1. Members of the president’s administration are responsible for carrying out the duties of the office they … … … (to select) to fill. 2. Article II provides that the president … … (to nominate), and by and with the advice and consent of the Senate, … … (to appoint) ambassadors … . 3. Congress exercises no power to appoint executive officers though it may … (to set) qualifications for offices … (to establish) by statute. 4. The appointment power of the president … … … (to exercise) in conformance with a blend of historical precedents, 266

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custom, constitutional requirements and statutory provisions … (to establish) by Congress. 5. The court … … (to decide) only a few cases with respect to the appointment process but the decisions … (to make), … (to begin) with Marbury v. Madison, control the president’s power to nominate and appoint and limit his discretionary exercise of the removal power. TASK VIII.  Paraphrase the sentences without changing their sense: 1. The president’s power to appoint and remove those subordinate officials was a necessary complement to his power to manage the executive branch. 2. The Congress may by law vest the appointment of such inferior officers in the Presidents alone, in the courts of law or in the heads of departments. 3. Congress exercises no power to appoint executive officers though it may set qualifications for offices established by statute. 4. Congressional requirements usually have pertained to citizenship, grade, residence, age, political affiliation and professional competence. 5. Congress has narrowed the range of officers over whom the president has the discretionary appointment power. 6. The creation of the Civil Service Commission and the steady addition of positions to the professional civil service list have reduced the scope of the president’s exercise of the appointment power. TASK IX.   Reading comprehension check – THE POWER OF APPOINTMENT: 1. Describe President’s appointment power. 2. What methods of appointment are set forth by the Constitution? 267

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3. Who is authorized to appoint executive officers? 4. What measures have reduced the president’s appointment power? 5. Illustrate the appointment process by the court’s rulings if there are any.

TEXT 3 ENUMERATED, IMPLIED, INHERENT POWERS For general purposes of categorization, scholars have identified presidential powers as enumerated, implied, or inherent. Those powers that are enumerated (or clearly delineated) in the Constitution provide express authority. Article II gives the president some but not much express authority. Implied powers refer to those that can be inferred from express grants. The inherent power is, in Richard Nixon’s words, the “gray area” of the Constitution. As holder of the executive power a president can go beyond his enumerated powers and take whatever steps are necessary to preserve the country’s security, even if his actions might be unconstitutional. This reasoning worked during the Civil War but could not pass muster during Watergate. During a televised interview with David Frost, Nixon was asked whether in theory a president is justified in doing something illegal if he believes it is in the best interests of the nation. “Well,” Nixon responded, “when a President does it that means that it is not illegal.” Frost then asked, “Is there anything in the Constitution or the Bill of Rights that suggests the President is that far of a sovereign, that far above the law?” Nixon responded, “No, there isn’t. There’s nothing specific that the Constitution contemplates in that respect. ... In war time, 268

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a President does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution...” For Nixon, however, domestic political dissent was defined as a state of war that justified illegal wiretaps, surveillance, and break-ins. NOTES TO THE TEXT: Gray area – an area of a subject or situation that is not clear or does not fit into a particular group and is therefore difficult to define or deal with. Civil War (1861–1865) – between the Southern or Confederate States of America and the Northern or Union States. The former wished to maintain certain “states’ rights,” in particular the right to determine state law on the institution of slavery, and claimed the right to secede from the Union; the latter fought primarily to maintain the Union, with slave emancipation a secondary issue. Nixon Richard Milhous (1913–1994) – The 37th President of the USA (1969–1974). The Bill of Rights – the first 10 amendments to the U.S. Constitution (1791). Surveillance – close observation or listening of a person or place in the hope of gathering evidence. Wiretapping – electronic or mechanical eavesdropping, usu. done by law-enforcement officers under court order, to listen to private conversations. Dissent – the fact of having or expressing opinions that are different from those that are officially accepted.

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to enumerate, enumerated, to imply, implied, to suggest, inherent, to delineate, express, to infer (smth from smth), to pass muster, in theory, to contemplate, break-in TASK I.  a) Consult a dictionary to define the above words and word combinations; b) Use ACTIVE VOCABULARY, NOTES TO THE TEXT to complete the sentences: 1. The chairman … the main points. 2. I came here with the … purpose of speaking with the manager. 3. I disliked the … criticism in his voice. Violence is … in our society. 4. The possibility of war is too horrifying to … . 5. That sounds fine … . 6. The evidence … that he stole the money. 7. I … from the article that the Senator would serve another term. 8. Nothing can justify illegal … and … . 9. Our objectives need to be precisely … . 10. The explanation can’t … . 11. The police have been keeping her under … . TASK II.  Match the words with their definitions: 1) to enumerate; 2) to imply; 3) inherent; 4) express; 5) to infer; 6) to preserve; 7) to categorize; 8) specific; 9) to contemplate; 10) dissent; 11) domestic; 12) break-in a) to put people or things into groups according to what type they are; b) clearly and openly stated; 270

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c) to reach an opinion or decide that smth is true on the basis of information that is available; d) to keep a particular quality, feature, etc., to make sure that smth is kept; e) to suggest that smth is true or you feel or think smth, without saying so directly; f) that is a basic or permanent part of smb / smth and that cannot be removed; g) to name things on a list one by one; h) of or inside a particular country; not foreign or international; i) an entry into a building using force, usually to steal smth; j) to think about deeply and thoughtfully, esp. when considering a possible course of action or future event; k) detailed and exact; l) the fact of having or expressing opinions that are different from those that are officially accepted. TASK III.  a) Add the following words to complete the sentences below: implied, express, enumerated, inherent, enumerated, enumerated, contemplated, implied, enumerated, inherent, express, inferred, delineate 1. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was … in the Presidency, relying instead on statutory grounds. 2. In 1936, Justice Sutherland posited the doctrine that the power of the National Government in foreign relations is not one of … powers, but rather is … . 3. “The broad statement that the federal government can exercise no powers except those specifically … in the 271

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constitution, and such … powers – as are necessary and proper to carry into effect the … powers, is categorically true only in respect of our internal affairs.” 4. That “the executive power” is not confined to those items expressly … in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Court. 5. The federal courts have the power to construe and … claims arising under … and … powers. 6. Absence of an … statement identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting a claim. 7. Under this theory, constitutional rights are not … or derived from the text to address modern issues. Rather, modern issues are viewed as being either within the scope of the original protections afforded by the Constitution or outside of them. 8. In 1956, Eisenhower … dropping Nixon from the reelection ticket due to a campaign finance scandal involving Nixon. b) Translate the following passages: 1. The Constitution nowhere contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. 2. In 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated. 3. Hamilton saw the Constitution as a document containing only express powers. By that, unless the Constitution actually stated that the federal government had a specific power, it lacked 272

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it. Thus, why have a bill of rights that stated that Congress cannot limit freedom of speech if it lacked the authority to restrict expression? 4. Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the “rights expressly given, and duties expressly enjoined” by the Constitution; the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts; the power to acquire territory by discovery; the power to legislate for the Indian tribes wherever situated in the United States; the power to exclude and deport aliens; and to require that those who are admitted be registered and fingerprinted; and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. 5. The Court expanded the scope of the implied powers of the executive branch through an expansive reading of the president’s duty to “take Care that the Laws be faithfully executed” (Article II, Section 3), confirming the existence of inherent executive prerogative power in domestic affairs. 6. Justice Kennedy would have followed the formalist approach, but he explicitly grounded it on the distinction between an express constitutional vesting of power as against implicit vestings. 7. In Chapman, the defendants exercised their rights not to testify under the Fifth Amendment to the U.S. Constitution. In response, the prosecutor exercised his right under the state constitution to draw an inference of guilt from the defendants’ silence. After the defendants were convicted, in an unrelated case, the inference of guilt relied upon by the prosecution was found to be a violation of the Fifth Amendment. 8. Because ethical arguments are based on inferences from open-textured language, it is similar to the structural approach 273

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to constitutional interpretation. A significant difference between these modalities is that structural arguments infer rules from powers granted to governments, and ethical arguments infer rules from powers denied to governments. 9. Bradwell, whose application to practice law in the State of Illinois, where she had been residing for several years, was denied by that state’s supreme court, appealed the decision to the U.S. Supreme Court. Both courts relied on traditional views about women and legal practices that reflected them. For example, it was submitted that, as in the earlier era in which the law was rooted, no one contemplated women’s employment outside the domestic sphere, so there was no reason to suspect that, although never explicitly stated, the law ever contemplated the inclusion of women. TASK IV.  Discuss the extension of presidential powers in the USA: 1. The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled. Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any “United States person” will be overheard. 2. Defending the program including wiretapping (eavesdropping) in the United States without warrants administered by the National Security Agency, President Bush and other administration officials argued that the Times had acted irresponsibly in revealing its existence, that Congress had implicitly authorized it in 2001 by passing the Authorization for Use of Military Force and the Patriot Act, and that in any case the 274

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president already possessed the power to authorize such a program under Article II of the U.S. Constitution. In response to concerns regarding whether the president had the authority to order this surveillance, Congress passed the Protect America Act in 2007, which authorizes him to order warrantless wiretapping of intelligence targets located outside the United States. While some have argued that these searches violate the Fourth Amendment, the courts have thus far not allowed suits contesting this issue to proceed. TASK V. а) Match the words on the left with their synonyms on the right. Use them to describe the presidential powers in your country: 1) to imply 2) to delineate 3) express 4) to infer 5) to preserve 6) to justify 7) legal 8) to contemplate 9) inherent

a) to conclude b) to maintain c) to excuse d) lawful e) intrinsic f) to consider g) to suggest h) precise i) to describe

b) Match the words and word combinations on the left with their antonyms on the right. Use them to describe the powers of the chief executive in your country: 1) general 2) to imply 3) express

a) to undermine b) ambiguous c) to state 275

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4) to preserve 5) to pass muster 6) dissent 7) in theory 8) specific 9) war-time

d) to be inappropriate e) specific f) vague g) peace-time h) in practice i) assent

TASK VI.  Use the following opening phrases to discuss the categories of the presidential powers in the USA: 1. Express authority … . 2. Presidential powers are identified as … . 3. Powers that can be inferred from … . 4. The “gray area” of the Constitution … . 5. The holder of the executive power … . 6. To go beyond the enumerated powers … . 7. To preserve the country’s security … . 8. Richard Nixon defined the inherent power as… 9. The Constitution contemplates … . 10. Extraordinary powers … . 11. Illegal wiretaps, surveillance and break-ins … . TASK VII.  Use the verbs in brackets in the appropriate grammar form; check against the text: 1. Scholars … (to identify) presidential powers as enumerated, implied, or inherent. 2. Those powers that … (to enumerate) in the Constitution provide express authority. 3. Implied powers refer to those that can … (to infer) from express grants. 4. A president can … (to go) beyond his enumerated powers and take whatever steps are necessary to preserve the country’s security, even if his actions might … (to be) unconstitutional. 276

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5. Nixon … (to ask) whether in theory a president … (to justify) in doing something illegal if he believes it is in the best interests of the nation. 6. For Nixon domestic political dissent … (define) as a state of war that justified illegal wiretaps, surveillance, and break-ins. TASK VIII.  Paraphrase the sentences without changing their sense: 1. For general purposes of categorization scholars have identified presidential powers as enumerated, implied, or inherent. 2. Implied powers refer to those that can be inferred from express grants. 3. The inherent power is the “gray area” of the Constitution. 4. As holder of the executive power a president can go beyond his enumerated powers and take whatever steps are necessary to preserve the country’s security. TASK IX.  Reading comprehension check – ENUMERATED, IMPLIED, INHERENT POWERS: 1. Define each group of presidential powers according to the classification in the text. 2. When does the president as the Chief Executive exceed his powers for the country’s good? 3. Comment on Nixon’ position.

TEXT 4 THE TREATY-MAKING POWER The executive has also maneuvered into a commanding strategic position in the area of treaty approval or disapproval. 277

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Under the 1798 Logan Act, only the president or his agent is authorized to conduct foreign relations for the United States. In that year Senator George Logan of Pennsylvania traveled to France to discuss the possibility of reestablishing diplomatic relations. Logan had appointed himself to represent the United States. Congress showed its displeasure by barring all private citizens from negotiating for the United States with foreign nations. When citizen Edmond Genet arrived in America as the new French ambassador, only President Washington was legally authorized to give him diplomatic recognition. When U.S. congressmen travel abroad on fact-finding missions, they cannot officially represent the United States, since such actions would usurp the executive’s constitutional responsibility. And when Jesse Jackson visited Damascus in 1984 to seek the release of Navy Lieutenant Robert O. Goodman, Jr., the State Department refused to sanction the trip, forcing Jackson to travel as a private citizen. Since 1789 approximately 1,600 treaties have been submitted to the Senate for ratification. Over three-fourths have been approved with no modification. However, the numbers are a bit misleading since presidents withdrew 150 of the treaties when defeat seemed likely. Only 1 percent of all treaties submitted to the Senate have actually been defeated. The Senate’s rejection of Wilson’s Treaty of Versailles is the classic example of a defeat, but Wilson seized this defeat from the jaws of victory by refusing to compromise on several nonessential issues. Wilson allowed his personal hatred for Senator Henry Cabot Lodge to overcome the need for a more moderate political strategy. He failed to compromise on points that obviously called for such a strategy. The Senate’s ratification of the Panama Canal treaties provides an instructive example of the politicized approval process. The treaty eventually received Senate ratification by one vote (68-32), but only after President Carter agreed to the 278

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DeConcini reservation, which will allow the United States to use force, if necessary, to keep the canal operating after 1990. To ensure ratification, Carter was forced to behave like Monty Hall on the TV program “Let’s Make a Deal.” Over fifty Senators went to Panama on a fact-finding mission, and when the treaty reached the Senate over 140 amendments and 26 reservations were proposed. Republican Senator Robert Dole joked that he felt like withholding support just to see if Carter would give him a navy base in Kansas. NOTES TO THE TEXT: Treaty of Versailles – peace treaty after World War I between the Allies (except the US and China) and Germany, signed on 28 June 1919. The Treaty was never ratified by the USA, which signed separate treaties with Germany and Austria in 1921. The terms of Versailles and its reshaping of Europe contributed to the outbreak of World War II. USA – Panama treaties (1977) – transferred the canal to Panama (effective from 2000) with the USA guaranteeing protection and annual payment. George Washington (1732–1799) – Commander-in-Chief of the American army during the War of Independence and the first President of the United States (1789–1797). Jesse Jackson (1941) – U.S. civil rights leader. From the late 1970s Jackson gained wide attention through his attempts to mediate in various international disputes, including in the Middle East. Woodrow Wilson (1856–1924) – the 28th US President (1913– 1921). Henry Cabot Lodge (1850–1924) – american writer and politician. Jimmy Carter (1924) – the 39th President of the USA (1977–1981). One of the features of his presidency was the return of Panama Canal Zone to Panama. Fact-finding – the process of taking evidence to determine the truth about a disputed point of fact. 279

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Ratification – adoption or enactment, esp. where the act is the last in a series of necessary steps or consents; confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done. Reservation – the establishment of a limiting condition or qualification; esp., a nation’s formal declaration, upon signing or ratifying a treaty, that its willingness to become a party to the treaty is conditioned on the modification or amendment of one or more provisions of the treaty as applied in its relations with other parties to the treaty. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to approve (of), approval, agent, to authorize, to usurp, to bar, to negotiate, negotiation, to seek, to submit, modification, to withdraw, withdrawal, to defeat, to compromise, moderate, instructive, to ensure TASK I.  a) Consult a dictionary to define the above words and word combinations; b) Use the words and word combinations from ACTIVE VOCABULARY to complete the sentences: 1. Who … the payment of the bill? 2. Our … in New York deals with all U.S. sales. 3. We … currently … new ways of expanding our membership. 4. The president doesn’t … of the idea. 5. Considerable … of the existing system is needed. 6. Completed projects must … … by 10 March. 7. His views are quite … . 8. It is … to see how other countries are tackling the problem. 9. After much argument, the judges finally … on this case. 10. The report was not expected to … any answers. 280

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11. He attempted to … the principal’s authority. 12. They seized his passport and … him from leaving the country. 13. The government will not … with terrorists. 14. He … his support for our campaign. 15. The motion … … by 19 votes. TASK II.  a) Match the verbs with their definitions; b) Use the verbs to ask the text-related questions: 1) ensure; 2) approve; 3) seek; 4) modify; 5) provide; 6) negotiate; 7) authorize; 8) appoint; 9) bar; 10) submit; 11) withdraw; 12) compromise; 13) ratify a) to think that smb /smth is good, acceptable or suitable; b) to make an agreement officially valid by voting for or signing it; c) to change smth slightly; d) to give smth to smb or make it available for them to use; e) to try to obtain or achieve smth; f) to forbid or prevent smb from doing smth; g) to try to reach an agreement by formal discussion; h) to give a document, proposal to smb in authority so that they can study or consider it; i) to give official permission for smth; j) to take away or take back; k) to choose smb for a job or position of responsibility; l) to make sure that smth happens or is definite; to give up some of your demands after a dispute with smb, in order to reach an agreement. TASK III.  a) Add the words submit, authorizes, authorized, authorizing, withdrawal, withdraw, withhold, sought to complete the following sentences: 281

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1. In 1975, Congress legislated to bring Members of Congress within a separate commission system … the President to recommend annual increases for civil servants to maintain pay comparability with private-sector employees. 2. Nothing in the Constitution … the President to amend or repeal a statute unilaterally, and the Court could construe both constitutional silence and the historical practice over 200 years as “an express prohibition” of the President’s action. In a number of situations the Court has invalidated statutes on the preemption ground when it appeared that the state laws … to favor local economic interests at the expense of the interstate market. 3. All grants of power to Congress must be read in conjunction with the final clause, cl. 18, of § 8, which … Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers.” 4. By the Alien Registration Act of 1940, Congress provided that all aliens in the United States, fourteen years of age and over, should … to registration and finger printing and willful failure to comply was made a criminal offense against the United States. 5. The legislature of New York attempted to … its ratification of the 15th Amendment; although the Secretary of State listed New York among the ratifying States, noted the … resolution, there were ratifications from three-fourths of the States without New York. 6. Due process tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not … . b) Translate the following passages: 1. The settlement of the interior of the country led Congress to seek to facilitate access by first encouraging the construction 282

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of highways. In successive acts, it authorized construction of the Cumberland and the National Road from the Potomac across the Alleghenies to the Ohio, reserving certain public lands and revenues from land sales for construction of public roads to new States granted statehood. 2. Because the power of exclusion of aliens is also inherent in the executive department, Congress may in broad terms authorize the executive to exercise the power for the best interest of the country during a time of national emergency. 3. In Shaughnessy v. United States (1953), the Court majority upheld the Government’s power to exclude on the basis of information it would not disclose a permanent resident who had gone abroad for about nineteen months and was seeking to return on a new visa. But the Court will frequently read the applicable statutes and regulations strictly against the Government for the benefit of persons sought to be excluded. 4. The draft of the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress “to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations.” 5. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication. 6. The Executive Branch asserted the power to wiretap and to “bug” in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of “inherent” presidential power and then in the Supreme Court withdrawing to the 283

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argument that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment. 7. In collecting personal income taxes, most States require employers to deduct and withhold the tax from the wages of employees. 8. State statutes vesting in a parole board certain judicial functions or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade are not in conflict with the due process clause and present no federal question. TASK IV. Express your opinion about the presidential powers discussed in the text: In United States v. Curtiss-Wright Export Corp. (1936), the Supreme Court suggested that presidents potentially have more power to depart from the normal constitutional arrangements in foreign affairs as opposed to domestic matters. However, one effort to clarify the lines of constitutional authority between the president and Congress was made in Youngstown Sheet & Tube v. Sawyer (1952). In that case, President Harry S. Truman stepped in via executive order and had the steel mills of the nation seized in order to avert a strike during the Korean War. The Supreme Court overturned the seizure. Justice Robert Jackson’s concurrence in the case suggested that the president’s, or commander in chief ’s, authority is limited in scope, and he cannot act on his own without the consent of Congress on most matters that offer other methods for recourse. Jackson described three categories of presidential power: 1) “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum;” 2) “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have 284

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concurrent authority, or in which its distribution is uncertain;” and 3) “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” TASK V.  a) Match the words on the left with their synonyms on the right: 1) to approve 2) agent 3) to establish 4) to bar 5) nation 6) responsibility 7) to represent 8) release 9) to submit

a) to prevent b) duty c) сountry d) liberation e) to authorize f) to act for g) to set up h) to offer i) representative

b) Match the words on the left with their antonyms on the right: 1) approximately 2) legal 3) to reject 4) to seize 5) defeat 6) essential

a) to discontinue b) victory c) to loosen d) imprisonment e) to manage f) extreme

7) to establish 8) to appoint 9) private

g) unimportant h) to accept i) illegal 285

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10) release 11) to submit 12) moderate 13) to fail

j) to dismiss k) public l) precisely m) to withdraw

TASK VI.  Use the following phrases and the above words to describe the treaty-making power of the U.S. presidents: • under the act • to be authorized to conduct foreign relations • to bar citizens from negotiating • to give smb diplomatic recognition • to travel on fact-finding missions • to usurp the executive’s constitutional responsibility • to sanction the trip • to submit a treaty to the Senate for ratification • to approve with no modification • to withdraw treaties • to compromise on issues • to provide an instructive example • to ensure ratification • to propose amendments and reservations • to withhold support TASK VII.  Put the verbs in brackets in the appropriate grammar forms. Check against the text and explain the usage of the grammar forms: 1. The executive … (to maneuver) into a commanding strategic position … . 2. Only the president or his agent … (to authorize) to conduct foreign relations for the United States. 3. Congress showed its displeasure by … (to bar) all private citizens from … (to negotiate) for the United States with foreign nations. 286

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4. They cannot officially represent the U.S., since such actions … (to usurp) the executive’s constitutional responsibility. 5. The State Department refused to sanction the trip, … (to force) Jackson to travel as a private citizen. 6. Since 1789 approximately 1,600 treaties … (to submit) to the Senate for ratification. Over three-fourths … (to approve) with no modification. 7. Only 1 percent of all treaties … (to submit) to the Senate … (to defeat). 8. Republican Senator Robert Dole joked that he felt like withholding support just to see if Carter … (to give) him a navy base in Kansas. TASK VIII.  Paraphrase the sentences without changing their sense: 1. The executive has also maneuvered into a commanding strategic position in the area of treaty approval and disapproval. 2. Only the president or his agent is authorized to conduct foreign relations for the U.S. 3. Congress showed its displeasure by barring all private citizens from negotiating for the U.S. with foreign nations. 4. When U.S. congressmen travel abroad on fact-finding missions, they cannot officially represent the U.S. 5. Wilson seized this defeat from the jaws of victory by refusing to compromise on several nonessential issues. TASK IX.  Read about the presidential power of making and terminating treaties and emphasize the main points in each paragraph: 1. Treaties are one way to formalize agreement in foreign affairs. Two-thirds of senators present and voting may give the president their “advice and consent” and “concur” in “treaties” proposed by the executive branch (Article II, Section 2, Clause 2). 287

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But since “all treaties” are also “the supreme law of the land” (Article VI, Clause 2), treaties share characteristics of statutes (a legislative product). Thus, treaties can become an understandable focus of contention between executive and legislative branches. President Woodrow Wilson’s failure to elicit Senate ratification for U.S. membership in the League of Nations resulted from such a clash, partly because of his unwillingness to elicit the “advice and consent” of key senators in early discussions of the proposed treaty. Later, during the cold war, senators opposing two 1977 Panama Canal treaties signed by President Jimmy Carter tried but failed a year later to attach limitations on the treaties. But in a changed international climate shortly thereafter, Senate hostility to Carter’s proposed SALT II Treaty with the Soviet Union led to suspension of ratification efforts. 2. In Goldwater v. Carter, 444 U.S. 996 (1979), the Supreme Court rejected a challenge to the president’s authority to unilaterally terminate a United States treaty, but a split majority provided no clear rationale for the Court’s ruling. Four members of the Court felt the case presented a nonjusticiable “political question.” Another justice argued for dismissal because the case was not ripe for judicial review, while yet another member of the Court favored dismissal without explaining his reasoning. 3. President Jimmy Carter gave notice of termination of the Mutual Defense Treaty with Taiwan in December 1978, as part of the process of normalizing relations with the government of China. Following President Carter’s action, several members of Congress (including Senator Barry Goldwater of Arizona) filed suit claiming injury to their “legislative right to be consulted and to vote on the termination of the 1954 Mutual Defense Treaty.” 4. The District Court for the District of Columbia ruled that because the Mutual Defense Treaty was part of the “law of the land” under the supremacy clause of the Constitution, termination required ratification by two-thirds of the Senate or 288

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a majority of both chambers of Congress. A split panel of the Court of Appeals for the District of Columbia Circuit reversed that decision, ruling that President Carter did not exceed his authority by taking action to withdraw from the treaty. TASK X. Discussion points: 1. Treaty-making powers in terms of executive and legislative authority under the U.S. Constitution. 2. Treaty-making powers in terms of executive and legislative authority under the Constitution of your country.

TEXT 5 EXECUTIVE AGREEMENTS The proliferation of executive agreements has been one of the most significant changes in the character of foreign relations. Under the executive agreement process, presidential agents negotiate directly with other countries. In 1951 Senator John Bricker (Ohio) sponsored a constitutional amendment to restrict the president’s power to negotiate treaties and executive agreements. Sixty-two senators endorsed the amendment, which would have required both federal and state enabling legislation to allow Congress to monitor all executive agreements. But President Eisenhower’s opposition to this assault on presidential power helped defeat the Bricker amendment. Executive agreements got off to an inconspicuous start. In 1792 the postmaster general was authorized to negotiate procedures for reciprocal receipts and postage costs with postmasters from other countries. Since that time presidents have used a wide variety of executive agreements. Executive agreements have been used to demilitarize the Great Lakes and 289

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to negotiate arms deals with Israel. By executive agreement McKinley ended the war with Spain, Teddy Roosevelt restricted Japanese immigration to the United States, and Richard Nixon pledged military support to Saigon. State Department Circular 175 stipulates the official distinction between a treaty and an executive agreement. The circular recognizes three legal bases for executive agreements: (1) executive agreements pursuant to treaties, (2) those pursuant to legislation, and (3) those pursuant to the president’s constitutional authority. This last justification is particularly important. Circular 175 provides that “the President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority.” And what are the constitutional bases for concluding international agreements? NOTES TO THE TEXT: Dwight David Eisenhower (1890–1969) – the 34th President of the USA (1953–1961). William McKinley (1843–1901) – the 25th President of the USA (1897–1901). Theodore Roosevelt (1858–1919) – the 26th President of the USA (1901–1909). Executive agreement – in such agreements the President, without the need for Senate approval, may bind the government just as in a treaty. Enabling legislation – a law that permits what was previously prohibited or that creates new powers; esp., a congressional statute conferring powers on an executive agency to carry out various delegated tasks. Circular – a printed letter, notice or advertisement that is sent to a large number of people at the same time. 290

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY proliferation, to sponsor, to endorse, to monitor, (in) conspicuous, reciprocal, variety (of), deal, to pledge, to stipulate, distinction, consistent (with) TASK I.  a) Consult a dictionary to define the words from ACTIVE VOCABULARY; b) Use the above words and word combinations to complete the sentences: 1. The … of global media networks is on the agenda of the conference. 2. There is a wide … of patterns to choose from. 3. The government … … the situation closely. 4. The new law makes no … between adults and children. 5. Members of all parties … a ban on land mines. 6. The amendment … … by a Democrat. 7. The government … their support for the plan. 8. They were hoping for a better pay … . 9. The event was a … success. 10. A delivery date … … in the contract. 11. The results are entirely ... with our earlier research. 12. They approved of a … trade agreement between the countries. TASK II.  a) Match the words with their definitions; b) Use the words to make statements on the U.S. foreign policy: 1) proliferation; 2) to endorse; 3) to monitor; 4) conspicuous; 5) reciprocal; 6) variety; 7) deal; 8) to pledge; 9) to stipulate; 10) to sponsor; 11) consistent with; 12) to restrict; 13) distinction 291

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a) in agreement with smth; b) to formally promise to give or do smth; c) to state clearly and firmly that smth must be done or how it must be done; d) to limit smth; e) to say publicly that you support a person, statement or course of action; f) easy to see or notice; likely to attract attention; g) several different sorts of the same thing; h) to introduce the proposal; i) an agreement, especially in business; j) to watch and check smth over a period of time in order to see how it develops so that you can make any necessary changes; k) involving two people or groups who agree to help each other or behave in the same way to each other; l) a clear difference or contrast; m) the sudden increase in number or amount. TASK III.  a) Read the text to describe the extension of presidential treaty-making powers: The United States enters into several other kinds of international agreements that do not follow the Senate ratification process. The Congress, by simple majority of both houses, may authorize the president to conclude an international agreement in areas where Congress has power to legislate (congressional-executive agreements). Trade agreements often take this form. The president is also competent to enter into international agreements that are within the sphere of executive power (sole executive agreements), such as an agreement to base U.S. troops in a foreign country (a Status of Forces Agreement), within his power as commander in chief. For purposes of international law, all these agreements produce binding international obligations. 292

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Article VI, Clause 2 of the Constitution declares that treaties made by the United States (along with the Constitution and laws made by Congress) are the “supreme Law of the Land.” This provision grew out of the conflict between state law and the Jay Treaty that ended the Revolutionary War. State laws in direct conflict with commitments made by the United States threatened to undermine the peace (Ware v. Hylton (1796)). By making treaties part of the law of the land, the Founders introduced the idea of the self-executing treaty, i.e., treaties would have domestic legal application just like any other legislative act. But not all provisions of all treaties are self-executing. Often treaties require additional legislation. The Jay Treaty contained selfexecuting provisions (state laws in conflict with the obligation under the treaty to honor debts were void), but provisions requiring the United States to make certain payments required congressional authorization of the funds. b) Describe treaty-making powers exercised in your country. TASK IV.  Insert the missing prepositions in, in, in, on, into, from, from, from, under, by, by, by, by, with, with, with, with, for, for, to, to, to: The judicial power created 1) … Article III of the U.S. Constitution includes cases arising 2) … treaties made 3) … the United States. Because treaties are equivalent 4) … status to other laws made by Congress, conflicts inevitably arise. Courts will go to great lengths to interpret a treaty to make it consistent 5) … other laws. In cases where it is impossible to reconcile a treaty 6) … another law, the newer provision will prevail. In many instances the Supreme Court has refused to answer questions that flow 7) … treaties 8) … invoking the political question doctrine, i.e., the question presented is not a legal question but a matter 9) … the executive or legislature to decide. 293

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Such questions include whether a foreign government has the authority to enter 10) … a particular agreement or whether a treaty has lapsed because a foreign party has lost its sovereign independence. The Constitution is silent 11) … the question of termination of treaties. Treaties often contain provisions 12) … their termination by notice 13) … the other party. The Senate’s power to concur in the making of treaties might imply a role 14) … termination, but the practice has varied considerably. In one instance Congress passed an act terminating a treaty, the treaty 15) … France of 1778 (1800). Congress has also authorized the president to terminate treaties, and presidents have acted their own. An example of the latter was President George W. Bush’s withdrawal of the United States 16) … the Anti-Ballistic Missile Treaty. Originally made 17) … the Soviet Union President Richard Nixon in 1972 with Senate concurrence, four former states of the Soviet Union, including Russia, succeeded 18) … the treaty at the Union’s breakup. The succession was confirmed by a memorandum of understanding negotiated 19) … the Clinton administration but never submitted 20) … the Senate. In 2001 President Bush notified Russia that the United States would withdraw 21) … the treaty 22) … six months as required by the treaty’s termination clause. TASK V.  a) Match the words on the left with their synonyms on the right: 1) agent 2) to endorse 3) to authorize 4) to monitor 5) to pledge 294

a) to vow b) to sanction c) to control d) to provide e) according to

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6) to stipulate

f) to approve

7) pursuant (to)

g) representative

b) Match the words on the left with their antonyms on the right: 1) conspicuous 2) to authorize 3) to end 4) war 5) immigration 6) legal

a) to sever b) illegal c) emigration d) to prohibit e) unimportant f) to initiate

7) important 8) to conclude

g) peace h) neutral

TASK VI.  Use the following words and phrases to describe executive agreements: • the proliferation of executive agreements • under the executive agreement process • to negotiate directly • to sponsor a constitutional amendment • to monitor agreements • to endorse the amendment • to defeat the amendment • to stipulate • the circular provides that … • to conclude an agreement on any subject • to be consistent with legislation • legislation enacted by Congress TASK VII.  a) Identify the underlined grammar forms, explain their usage: 295

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1. The proliferation of executive agreements has been one of the most significant changes in the character of foreign relations. 2. Sixty two senators endorsed the amendment, which would have required both federal and state enabling legislation to allow Congress to monitor all executive agreements. 3. In 1972 the postmaster general was authorized to negotiate procedures for reciprocal receipts and postage costs with postmasters from other countries. 4. Since that time presidents have used a wide variety of executive agreements. 5. Executive agreements have been used to demilitarize the Great Lakes. 6. The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by Congress. TASK VIII.  Paraphrase the sentences without changing their sense: 1. The proliferation of executive agreements has been one of the most significant changes in the character of foreign relations. 2. In 1951 Senator John Bricker sponsored a constitutional amendment to restrict the president’s power … . 3. But President Eisenhower’s opposition to this assault on presidential power helped defeat the Bricker amendment. 4. Since that time presidents have used a wide variety of executive agreements. 5. State Department Circular 175 stipulates the official distinction between a treaty and an executive agreement. 6. The circular recognizes three legal bases for executive agreements. 7. The President may conclude an international agreement on any subject within his constitutional authority so long as 296

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the agreement is not inconsistent with legislation enacted by Congress in the exercise of its constitutional authority. TASK IX.  a) Read the text to discuss the treaty policy in American history: Treaties have been a part of statecraft at least since biblical times and were common among the Greek city-states. The United States, under the Articles of Confederation, had negotiated treaties that were viewed as critical to sustaining independence from England and to avoiding involvement in European wars that would be detriment to the new nation. The delegates to the Constitutional Convention agreed that keeping the commitments made in treaties was important to the new country’s standing in the world, while some delegates worried that treaties might be used as a tool to certain disadvantage of the states, particularly in matters of trade. b) Read the text to compare the legal aspects of treaty, convention, agreement: A treaty is a formal, solemn, binding agreement between nations. The U.S. Constitution refers to treaties in several places, making them part of the law. The term “convention” is often used when the treaty involves several nations – a multilateral treaty. Nations also conclude agreements that fall short of the status of treaty, agreements that do not have the formal status that comes from the process of ratification. Generally, according to the Vienna Convention on the Law of Treaties, all international agreements are, more or less, binding on the parties to the agreement, pacta sunt servanda (agreements must be served). TASK X.  Read the text to discuss the constitutionality of executive agreements: 297

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United States v. Belmont (1937) In United States v. Belmont, the Supreme Court upheld a presidential executive agreement reached to settle debts with the Soviet Union. This case is important because it gave wide constitutional authority to the president to use executive agreements in foreign affairs. Executive agreements are international compacts negotiated by the president of the United States with other heads of state. Although the U.S. Constitution (Article II, Section 2) requires that treaties – formal agreements between nations – be approved by a two-thirds vote of the U.S. Senate, the Constitution does not specifically mention executive agreements. In United States v. Belmont, the U.S. Supreme Court recognized for the first time the constitutionality of executive agreements, thus placing them on a par with U.S. treaties. Additionally, the Court reinforced that the president alone has power to recognize foreign governments and establish diplomatic relations with foreign states. This case significantly expanded the power of the presidency, not only in the field of international diplomacy, but also in the area of domestic affairs. Prior to the Bolshevik Revolution in October 1917, the Petrograd Metal Works, a Russian corporation, deposited investments in a New York City bank owned by August Belmont. In 1917, the Bolshevik party established the Soviet Union, nationalized corporations, confiscated their property, and claimed all corporate assets – including funds deposited in American banks. President Woodrow Wilson refused to recognize the legitimacy of the newly created Soviet Union, and in 1918 cut off diplomatic relations with the Soviet state. It was not until 1933 that President Franklin Roosevelt officially recognized the Soviet Union and reopened diplomatic channels. Under the Litvinov Assignments, President Roosevelt entered into an executive agreement whereby the United States 298

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government would serve as the agent to release Soviet assets held in American banks before the October Revolution of 1917. When the U.S. government ordered the Belmont bank to relinquish the Petrograd Metal Works assets, the bank refused, and the government filed suit in U.S. district court to recover the funds for the Soviet Union. The federal district court, however, ruled in favor of Belmont, noting that: (a) the U.S. government had no authority to supersede the New York law that specifically forbade the confiscation of bank assets; (b) the confiscation of such funds violated the Fifth Amendment’s command that private property shall not be taken without just compensation; and (c) the president was acting pursuant to an executive agreement and not a treaty, which required the advice and consent of the U.S. Senate. The U.S. Court of Appeals affirmed the lower court decision, and the federal government appealed to the U.S. Supreme Court. Writing for the majority, Justice George Sutherland ruled that the lower courts erred in dismissing the suit. According to Sutherland: (a) the president had the sole constitutional authority to recognized foreign governments and exchange diplomatic personnel; (b) the executive agreement entered into by the president had the same effect as a treaty; (c) the Constitution’s supremacy clause (Article VI, Section 2) makes treaties and executive agreements superior to any conflicting state laws; and (d) the Fifth Amendment’s takings clause applies only to U.S. citizens and not Soviet subjects. There was no dissenting opinion. The implications of Belmont are far-reaching. Over the years, presidents have increasingly relied upon executive agreements to accomplish foreign-policy goals that might not otherwise be ratified as treaties by skeptical senators. Critics charge that executive agreements are more secretive than treaties and 299

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have shifted too much power to the president in the field of international affairs. Moreover, critics maintain that, because of the supremacy clause, it is possible for a president to alter domestic policy through executive agreements that otherwise might be unconstitutional. The Belmont decision was reaffirmed in United States v. Pink (1942), when the Court ruled that state insurance companies had no authority to prevent the restoration of Soviet assets under the terms of an executive agreement either. TASK XI.  Comment on the following statement: I’d rather be right than be President. Henry Clay (1777–1852)

TEXT 6 THE PRESIDENTIAL VETO The Constitutional Convention initially gave the executive a qualified veto with the proportion of the legislature needed to override established at three-fourths (this provided greater independence from the legislature, which was still empowered to select the president). When the mode of presidential selection was shifted outside Congress, the convention returned to the present two-thirds override. The intent of the Framers concerning the veto is widely debated. Most delegates envisioned the veto as a “negative” by which an executive could be defended against legislative excesses, which is precisely why supporters of a line-item veto refer to reinstating the intent of the Framers. The veto represented one of the most basic elements in how the Framers sought to separate and check power. 300

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Did the Framers intend the executive to use the veto only against legislative encroachment, or would the veto also apply to bad legislation? And what criteria would a president employ in determining what was a poor law? Hamilton argued that the veto was necessary to protect executive independence (“He might gradually be stripped of his authorities by successive resolutions or annihilated by a single vote”) and that the veto “not only serves as a shield to the executive, it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body calculated to guard the community against the effects of faction, precipitancy, or any impulse unfriendly to the public good, which may happen to influence a majority of that body.” The veto may have once served as a weapon of last resort, but several presidents have used a veto strategy to implement their legislative goals. For example, the first six American presidents vetoed a total of 9 bills. Taylor, Fillmore, and Garfield vetoed no bills, Polk vetoed 3, and Franklin Roosevelt vetoed 635 – reflecting both his conception of the presidency and his influence over the legislative process. The veto also serves as a persuasive lever when the branches are in conflict. Presidents frequently find the mere threat of a veto sufficient. In 1985, for example, President Reagan (who used the veto less frequently than his predecessors) dared Congress to try raising taxes. Borrowing from Clint Eastwood, he said such action would “make my day” and be met by a quick veto. The use of the veto by a president of one party against a Congress controlled by another is something the Framers did not anticipate. The Pocket Veto The pocket veto is one subject to current controversy. Congress passes a bill; it arrives at a White House. The president can sign the bill if he approves it or veto the bill and return it to 301

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the Congress, which can override the veto by a two-thirds vote in each house. The president can also decide to take no action, in which case the bill becomes a law in ten working days. When Congress is not in session the president can not return a bill; therefore, according to the Constitution, “It shall not be a law.” The term used to describe this action is “pocket veto” – the president pockets the legislation and denies Congress a chance to override the veto. Can a president pocket a bill when Congress merely adjourns for a Christmas holiday? In 1984 a U.S. Court of Appeals panel ruled that President Reagan acted illegally when he pocketvetoed legislation linking military aid to El Salvador with human rights progress. Reagan decided to break what had been a political accommodation under Presidents Ford and Carter, who restricted the pocket veto to final adjournment of Congress at the end of the second session. Reagan exercised the pocket veto between the first and the second sessions of the 98th Congress. In 1984 the U.S. Circuit Court of Appeals for the District of Columbia ruled that a president may use the pocket veto only between the adjournment of one Congress and the convening of a newly elected one. Thus Reagan should have returned the human rights bill for a possible override vote in the second session of the 98th Congress. NOTES TO THE TEXT: Zachary Taylor (1784–1850) – the 12th U.S. President (1849–1850). Millard Fillmore (1800–1874) – the 13th President of the United States (1850–1853). James Abram Garfield (1831–1881) – the 20th President of the United States (1881), after completing nine consecutive terms in the U.S. House of Representatives (1863–1881). James Knox Polk (1795–1849) – the 11th President of the United States (1845–1849). 302

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Alexander Hamilton (1755 or 1757–1804) – a Founding Father, soldier, economist, political philosopher, one of America’s first constitutional lawyers and the first United States Secretary of the Treasury. Clint Eastwood – an American film actor, director, producer, composer and politician. Ronald Reagan (1911–2004) – the 40th President of the United States (1981–1989); the 33rd Governor of California (1967–1975). Bill – a legislative proposal offered for debate before its enactment. To adjourn – in law, to suspend proceedings to another time or place, or to end them. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY intent, to envision (Am. E.), to envisage (Br. E.), to encroach, encroachment, salutary, to precipitate, precipitance/precipitancy, to lever, lever, to dare TASK I.  a) Consult a dictionary to define the above words; b) Use the words from ACTIVE VOCABULARY to complete the sentences: 1. Jefferson was charged with the … to damage property. 2. It was a … lesson to see the whole team so easily defeated. 3. The chairman … the commission to approve the resolution. 4. The federal government … on a state issue. 5. Farmers may find a … to persuade supermarkets to sell more local products. 6. The plan … the creation of a regional council. 7. The rise in the value of oil … a world economic crisis. 303

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TASK II. Complete the following table: Noun 2) defense

5) anticipation

9) implementation

Verb 1) empower 3) resort

6) accommodate 8) annihilate

Adjective

4) precipitous

7) appellate

TASK III.  a) Compare the meanings of the word “dare” with the one in which the word is used in the text; b) Provide more examples with “dare:” 1) do smth dangerous e.g. The others used to steal things from shops, but I would never dare; 2) do smth rude, shocking e.g. Tell her what I really think? I would never dare; 3) persuade smb to do smth e.g. They dared Lanny to climb the very top branch; 4) (n) smth dangerous that you have dared someone to do e. g. I only did it for a dare. TASK IV.  a) Define the terms veto power, veto, line-item veto, pocket veto, use a law dictionary or the GLOSSARY; b) Use the above terms in the following text: A presidential 1) … is formal action by the president that stops and prevents a legislative bill from being enacted into law. As a source of many other governmental powers, the United States 304

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Constitution (Article I, Section 7) explicitly and clearly gives the president the veto power. According to the Constitution, bills passed by Congress shall be presented to the president for his approval and signature before the law can take effect. In addition to the 2) …, the president also has what is called a 3) … . A 4) … is one way a president can veto a bill without taking any action when Congress is not in session. The 5) … gives the president a third option other than signing or vetoing the bill. The reason for giving the president a 6) … was to prevent Congress from having too much power. The drafters of the Constitution were concerned that Congress might pass a bill and then adjourn quickly, thereby preventing the president from having the opportunity to return or veto the bill. Although the Constitution grants Congress the principal responsibility for making laws, the president’s 7) … shows that the Founding Fathers wanted the president to play a role in lawmaking. The writers of the Constitution were worried that even an assembly of popularly elected representatives might intrude on the rights, liberties, and interests of the citizenry. The presidential 8) … is an example of one of the U.S. Constitution’s principles, commonly referred to as check-and-balance. The 9) … is a proposal that would allow the president to veto certain items from a budget bill, rather than requiring the president to veto the entire bill. The current practice would allow the president to veto a single budgetary item from a larger bill. However, rather than seek a two-thirds majority vote, as is required by the Constitution, the vetoed item would be sent back to Congress for a simple majority vote for override. However, until legislation passes in both chambers of Congress and passes what would likely be an imminent challenge in the federal judicial system, it is impossible to be sure of the success of this, or any other, legislative attempt to give the president the power of the 10) … . 305

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The Office of Legal Counsel (OLC) was asked to prepare an opinion discussing the probability that the 11) … was, in fact, constitutional. OLC’s opinion stated that it was not: “Article I of the Constitution does not vest the President with the inherent power to veto portions of a bill while signing the remainder of it into law.” Despite several failed previous attempts to give the president the power of the 12) … through legislative action, the idea continues to appeal to both the president, who tends to desire more power generally, and Congress, which seems to need assistance in curbing its own spending power. c) Discuss the latest developments in the presidential veto power. TASK V.  Use the text THE PRESIDENTIAL VETO to paraphrase the following: 1. The executive was originally given a qualified veto with the proportion to override established at three-fourths to provide independence from the legislative branch of power which still had the authority to select presidents. 2. It turned to be a problem to elaborate criteria which might be used by presidents to determine the effectiveness of law. 3. A number of presidents applied veto powers to realize their ideas concerning legislation. 4. The Framers could not foresee a situation when the majority of seats in the Congress belonged to one party, while the president was a member of the other. 5. When the Congress adjourns for a holiday the President cannot return the bill. 6. The Congress planned to introduce a system of checks and balances to prevent any abuse of power. 7. Presidents attach much importance to the very threat of using the veto. 306

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TASK VI. a) Read about the line-item veto in a court action; b) Comment on the opinion of the Supreme Court: The most public rebuke of the presidential power of line-item veto occurred in the Supreme Court case Clinton v. City of New York (1998). Congress granted the president the power of the line-item veto in 1996. President Clinton used that power about 80 times before this case was heard. In this case, President Clinton vetoed part of the Balanced Budget Act of 1997. New York sued to return a provision that allowed the state to raise taxes on hospitals and use the tax revenue to solicit federal Medicaid payments. The Supreme Court ruled that the Line-Item Veto Act violated the presentment clause of the Constitution (Article I, Section 7, Clause 2). In the decision, written by Justice John Paul Stevens, the Supreme Court stated that “if there is to be a new procedure in which the president will play a different role in determining the text of what may become a law, such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.” c) Read the text to discuss the concerns of the critics; express your opinion about presidential veto power: Scholars often consider the effects of the constitutional rules and powers, like the veto, on the policy-making process and good governance. One criticism of the veto power is that it gives too much power to one person – the president – who can mute the voice of the 535 senators and representative comprising Congress. Another criticism is that the veto power may add to political stalemate or policy gridlock because the veto creates one more obstacle to be overcome in passing legislation. Conversely, the Founding Fathers intentionally created an institutional system that made it difficult to pass laws because they wanted to protect personal liberty by limiting government. 307

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TASK VII. Use the phrases below to comment on the following statement: As President I have no eyes but constitutional eyes. Abraham Lincoln (1809–1865) It’s clear to me that … . The way I see it … . I think, believe, suppose … . It looks to me as if ... . Obviously … .

TEXT 7 THE PRESIDENT AS LEGISLATOR With considerable validity one may term the President Chief Legislator as well as Chief Executive of the United States. His role in lawmaking is derived in part from a constitutional grant of authority and in part from the evolution of the American political system. Under the latter heading would be placed the vast expansion of governmental activity and the resulting burden on Congress. The national legislature not only is in session for longer periods than in the early days of the Republic, but individual members are more involved in committee work and are subject to increasing pressure as their constituents grow in number and become more demanding. Confronted as he is with the necessity of legislating on numerous highly complicated subjects, the senator or representative tends to become a specialist in some area, leaving to others the task of integrating the entire legislative program. No one is better fitted for this role than the President. He has a national constituency, having been elected by all the 308

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people of the nation, and his sources of information afford him an understanding of national and international problems not granted to the most eminent legislator. For these reasons Congress has turned to the President for direction. This is nowhere better illustrated than in the national budget that the President submits to Congress for its guidance. Before this monumental document is presented to the legislature, the appropriations requested by the various governmental agencies have been scrutinized, weighed against the demands of other agencies, and compared with expected revenue. The budget finally presented to Congress represents the economic philosophy of the President, as illustrated in his judgment of the nation’s needs and of the best method of meeting them. In his State of the Union message the President provides Congress with another legislative blueprint. The statement may cite past accomplishments, present activities, and future needs, and it usually is followed by other messages dealing with specific problems, many of them economic. The President may not be content to offer a mere outline of needed legislation: frequently, individual measures are drafted in some executive department and then introduced by senators or representatives friendly to the proposals. To facilitate the passage of these administration bills, the President may confer with key legislators, particularly his spokesmen on the floor of the Senate or the House. He may bring pressure by appealing to the American people through his press conferences, which are widely publicized, or by means of radio and television. Citizens aroused by a persuasive President have great influence over the legislators whom they elect. And when Congress adjourns without enacting legislation desired by the President, he may call a special session in an effort to achieve his goal. The President may urge a course of action on Congress, may have bills prepared for submission to that body, and may 309

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sign into law measures passed by both houses. These positive legislative powers are reinforced by negative ones, including the President’s power of veto. In vetoing a bill, the President returns it to Congress without his signature, generally accompanied by a statement of his objections. Presidents have made increasing use of the veto. Washington, for example, vetoed only two measures and Jefferson none, but Franklin D. Roosevelt vetoed more than 600. Few presidential vetoes are overridden, since a two-thirds vote in each house is required. When the President is of one party and Congress of another, however, vetoes are more likely to be overridden. A notable example was the manner in which a Republican Congress overrode Democratic President Truman’s veto of the Labor-Management Relations (Taft – Hartley) Act of 1947. Curbs on Presidential Powers In this brief recital of the powers of the President, his dominant role in American government has been stressed. But one should not gain the impression that the Chief Executive is armed with such formidable authority that he completely overshadows Congress and the courts. On the contrary, the President’s powers are circumscribed by constitutional intent and by long-established usage. In fact, some writers dwell at length on the undue restrictions placed on the President. Thus one of President Kennedy’s closest advisers, Theodore C. Sorensen, observed that “a President’s authority is not as great as his responsibility.” A constitutional protection against misused executive power is the provision that the House of Representatives may bring charges against the President in impeachment proceedings. After a trial presided over by the Chief Justice of the United States, the Senate determines guilt or innocence. If convicted the President 310

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is removed from office. Treason, bribery, or other high crimes and misdemeanors are the only charges on which impeachment proceedings may be based. Only one President, Andrew Johnson, has been impeached and he escaped conviction by one vote. Even at the time, his trial was regarded by neutral observers as political in inspiration. In the opinion of some historians, his acquittal made it unlikely that future Presidents would be impeached. In opposing the President, Congress has other means than the threat of impeachment. The Senate may thwart a President by refusing to ratify a treaty he has negotiated. For example, Wilson suffered a crushing defeat when the Senate refused to sanction American membership in the League of Nations. The upper house may also discipline a President by refusing to confirm his appointees. And not all persons appointed to office by the President may be removed by him. He cannot dismiss federal judges, and he may not remove for political reasons the members of a number of independent agencies that have quasi-legislative and judicial duties in addition to their executive functions. Thus, the President may appoint members of the Federal Trade Commission but may remove them only under circumstances defined by Congress. He may encourage members of such regulatory agencies to resign, but he may not dismiss them merely because they disagree with him on policy. In fact, members of regulatory agencies may act against the President’s wishes. In its power to appropriate money, Congress exercises a more important curb on the President. His projects require money, and when the legislature pares the proposed budget or rejects portions of it, the President must trim his sails accordingly. When Congress is controlled by members of the opposing party, the President is often disadvantaged, for legislative leaders may come forward with a program of their own and try to force acceptance of it. 311

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Even when his own party has a congressional majority, the President’s leadership may be challenged, as it was during the Kennedy Administration. President Kennedy enjoyed exceptional popularity with the American people; his political finesse was acknowledged in all quarters; his understanding of his office was unsurpassed. Yet the ambitious program he outlined upon his inauguration was largely unfulfilled at the time of his assassination. In commenting on the impasse, editorial writers observed that the struggle for power between the legislative and executive branches antedates the Constitution, since it began with the Continental Congress and its challenges to Washington’s conduct of the Revolutionary War. When the Constitution was adopted, executive-legislative conflict became a built-in feature of American government, since the Founding Fathers created what Alexander Hamilton described as “power to rival power.” Challenges to executive leadership ordinarily have been more common in time of peace, but Congress has sought to curb presidential power even in time of war. Thus in 1861, Congress created the Joint Committee on the Conduct of the War as a direct challenge to Lincoln’s leadership. The President’s difficulties are aggravated by the fact that legislators represent states or districts and tend to take a provincial view of public affairs, while by the very nature of his office the President adopts a national point of view. This was evident in President Kennedy’s drive for the passage of a strong civil-rights measure. For the most part, the members of his own party viewed the legislation in relation to their constituencies. Many of his fellow Democrats had more to gain by opposing Kennedy than by supporting him, and the lax discipline of American political parties enabled the President’s opponents to obstruct his program with impunity. Legislative curbs on executive powers characterize the American system of checks and balances, but federal courts 312

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also may checkmate the President. The President’s power to remove certain of his key appointees, such as members of regulatory agencies, was limited by the Supreme Court in the Humphrey’s Executor v. United States decision, handed down in the administration of President Franklin D. Roosevelt. During the Korean War, when President Truman seized the steel mills to prevent a nationwide strike, his action was promptly challenged in the courts. The Supreme Court declared that the President had exceeded the authority granted to him as chief executive and commander-in-chief. The President yielded. NOTES TO THE TEXT: Franklin D. Roosevelt (1882–1945) – the 32nd President in 1933, the only president to be elected 4 times. Roosevelt led the United States through the Great Depression and World War II. Harry S. Truman (1884–1972) – the 33rd President of the United States (1945–1953), he succeeded to the presidency on April 12, 1945, when President Roosevelt died. Taft-Hartley Act of 1947 – the Labor-Management Relations Act, enacted June 23, 1947, is a United States federal law that monitors the activities and power of labor unions. Abraham Lincoln – the 16th President of the United States, guided his country through the most devastating experience in its national history – the Civil War. League of Nations (LON) – an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace. John Fitzgerald “Jack” Kennedy – the 35th President of the United States, serving from 1961 until his assassination in 1963. Attorney – attorney at law, a lawyer in some countries; Attorney – General, the principal legal adviser to a government; Attorney 313

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(England and Wales), a person, who may be but is not necessarily a lawyer, who is authorized to act on someone else’s behalf in either a business or a personal matter. Treason – the offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies. Bribery – the corrupt payment, receipt, or solicitation of a private favor for official action. Misdemeanor – a crime that is less serious than a felony and is usu. punishable by fine, penalty, forfeiture, or confinement in a place other than prison. Conviction – the act or process of judicially finding someone guilty of a crime; the state of having been proved guilty; the judgment (as by a jury verdict) that a person is guilty of a crime; a strong belief or opinion. Bar association – a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY constituent, constituency, to legislate (on), to be in session, to scrutinize, scrutiny, scrutineer, to draft, draft, spokesman, spokesperson, to adjourn, to override a veto, measure, to induce, inducement, to resign, resignation, to dismiss, dismissal, nominate, nomination, to bribe TASK I.  a) Consult a dictionary to define the above words and word combinations; b) Use the words from ACTIVE VOCABULARY and NOTES TO THE TEXT to complete the following sentences: 314

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1. Parliament has … against the sale of drugs. 2. I have made the first … of my speech for Friday but it still needs a lot of work. 3. The appeal court … the decision of a lower court. 4. The committee … for an hour for lunch. 5. He was … to steal the plans by an offer of a large amount of money. 6. A government … to prevent crimes in inner cities was widely discussed in the press. 7. The justices … the witnesses’ evidence out of hand. 8. His … as chief executive was rejected by the board. 9. … is a less serious crime than felony. 10. A government … said today that there would be an official inquiry. 11. During the war time he was disloyal to his country and was found guilty of … . 12. He … as a member of a committee. 13. He … the police sergeant to get the charges dropped. TASK II.  a) Match the words on the left with their synonyms on the right: 1) accordingly 2) to curb 3) to antedate 4) to confer with 5) to scrutinize 6) to provide

a) cunning, keen b) to afford, to produce, to present c) to appeal, to advocate, to encourage d) to draft, to sketch out, to summarize e) to deter, to impede f) to consult, to converse, to discuss

7) to urge 8) to outline 9) lofty

g) correspondingly h) to pre-date i) to respect, to worship 315

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10) to revere 11) astute

j) dignified k) to analyze, to examine

b) Match the verbs on the left with their antonyms on the right: 1) to pare 2) to achieve 3) to include 4) to obstruct 5) to appoint 6) to reject

a) to lose, fail b) to accept, adopt c) to agree d) to exclude e) to increase f) to remove

7) to refuse

g) to help

TASK III.   a) Discuss the meanings of the verb “to grant” and its legal derivatives: • to grant – bestow or confer, with or without compensation; • grant – a gift or bestowal of one having control or authority over it, as of land or money conveyance, i.e. transfer of property real or personal by deed or writing in a treaty, a formal grant is meant, but any concession, warrant, or permission to survey, possess or settle, whether written or parole, express, or presumed from possession. Such a grant may be made by law as well as by a patent pursuant to a law; • grantee – one to whom a grant is made; • grantor – the person by whom the grant is made. b) Use the above terms in the following passages: 1. Although the Constitution … Congress the principal responsibility for making laws, the president’s veto power shows that the Founding Fathers wanted the president to play a role in lawmaking. 316

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2. By … the right of franchise to blacks and forbidding its abridgment on account of race or previous condition of servitude, the Fifteenth Amendment superseded existing state laws to the contrary. 3. The Voting Rights Act (1965) suspended most voting qualifications for five years and gave the attorney general and the courts broad powers … relief whenever violations of the Fifteenth Amendment occurred. 4. Since the terrorist strikes on the United States on September 11, 2001, Congress has rarely raised concern over the War Powers Act (WPA), in large part due to the wide authorizations that Congress … Bush in the global war on terrorism and for the war in Iraq. 5. Madison believed that Congress could tax and spend only for things enumerated in the Constitution. To him, the phrase “general welfare” was a preface to the powers listed in the remainder of Article I, Section 8, not a separate … of power. Hamilton, however, interpreted the general welfare clause as an independent power that was not limited by other powers … in the Constitution. 6. Supreme Court explicitly supported Hamilton’s interpretation, saying that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct … of legislative power found in the Constitution.” 7. Equally consistent with due process is a tax on an inter vivos transfer of property by deed intended to take effect upon the death of the … . 8. No State shall pass a law revoking, invalidating, or altering a contract. Every … from one to another, whether the … be a State or an individual, is virtually a contract that the … shall hold and enjoy the thing … against the … , and his representatives. 317

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c) Translate the following passages: 1. Taking the terms of the Constitution in their large sense, and giving them effect according to the general spirit and policy of the provisions, the revocation of the grant by the act of the legislature of Georgia may justly be considered as contrary to the Constitution of the United States, and, therefore null. 2. The minority business enterprise (MBE) provision of the Public Works Employment Act (1977) required that, absent an administrative waiver, at least 10 percent of federal funds granted for local public works projects had to be used by the state or local grantees to procure services or supplies from businesses owned by U.S. citizens who were “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, [or] Aleuts.” Thus, contracts were awarded to MBEs even when they were not the lowest bidders. 3. A Pennsylvania statute which forbade the mining of coal under private dwellings or streets of cities by a grantor that had reserved the right to mine was viewed as too restrictive on the use of private property and hence a denial of due process and a “taking” without compensation. 4. Massachusetts law which imposed succession taxes on all property within Massachusetts transferred by deed or gift intended to take effect in possession or enjoyment after the death of the grantor. 5. Marshall’s opinion in Fletcher v. Peck performed two creative acts. He recognized that an obligatory contract was one still to be performed – in other words, was an executory contract, also that a grant of land was an executed contract – a conveyance. But, he asserted, every grant is attended by “an implied contract” on the part of the grantor not to claim again the thing granted. Thus, grants are brought within the category of contracts having continuing obligation and so within Article I, § 10. 318

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TASK IV.  a) Determine the function of “as” in each of the following sentences; b) Translate the sentences: 1. Individual members are more involved in committee work and are subject to increasing pressure as their constituents grow in number and become more demanding. 2. Confronted as he is with the necessity of legislating on numerous highly complicated subjects, the senator or representative tends to become a specialist in some area, leaving to others the task of integrating the entire legislative program. 3. The budget finally presented to Congress represents the economic philosophy of the President, as illustrated in his judgment of the nation’s needs and of best method of meeting them. 4. This measure is known as a pocket veto, and is final because Congress is not in session and cannot override it. 5. As party leader, the President may offer considerable inducement to legislators to win their full cooperation. TASK V.  a) Define the meaning of the word “measure” in the text THE PRESIDENT AS LEGISLATOR: 1) extent, degree, amount 2) a standard measurement as a foot, pound, etc. 3) a certain definite quantity 4) moderation or degree 5) a decree or an act of legislation 6) (often pl.) something done with a view to an accomplishment of a purpose b) Translate the following sentences: 1. The source of all federal governmental authority is the Constitution and, because the Constitution contemplates that 319

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Congress may delegate a measure of its power to officials in the executive branch, statutes. 2. It is necessary to consider four principles or doctrines whereby the Court has itself broken down the force of the Dartmouth College decision in great measure in favor of state legislative power. 3. Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in two briefs of the Department of Justice’s Office of Legal Counsel, which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine. 4. In his message to Congress of September 7, 1942, in which he demanded that Congress repeal certain provisions of the Emergency Price Control Act President Roosevelt formulated his conception of his powers as “Commander in Chief in wartime” as follows: “As “Commander in Chief in wartime” the President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.” “Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered.” 5. The treaty-power cannot purport to amend the Constitution by adding to the list of Congress’ enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; the only question that can be raised as to such measures is whether they are “necessary and proper” measures for the carrying of the treaty in question into operation. 320

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TASK VI.  a) Read the text Party Chieftain and Judicial Officer and discuss the President’s political status and influence; use the expressions in bold type: The President’s influence over legislation is enhanced by his position as the acknowledged leader of his party. Thus, when a Republican President deals with a Congress having a Republican majority, he normally is in a position of strength. He works closely with the majority of both houses to enact legislation that will fulfill campaign promises and thus strengthen the party with voters. As party leader, the President may offer considerable inducement to legislators to win their full cooperation. He may use his influence in securing campaign funds for a senator or representative standing for reelection, or he may agree to speak in their behalf. On the other hand, he may threaten to withhold his support from an uncooperative legislator. Making appointments in return for political support is known as patronage, and it is an effective device for promoting cooperation between the legislative and executive departments. Although the vast majority of government employees are under civil service, several thousand positions are filled by presidential appointment. Ordinarily the President asks senators and representatives of his party to suggest nominees for federal judgeships, ambassadorial posts, and important commissions. This practice enables the President to name policy makers who are in accord with his views and, in theory at least, makes legislators responsible for recommending highly qualified persons. In making such appointments, the President also strengthens the position of the senator or representative, since their supporters are given political plums. As party chieftain, the President assists in raising money by appearing at important dinners and rallies, influences the selection of state and national party officers, campaigns for his supporters when they are seeking reelection, and enunciates party policy on occasion. 321

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It has been said that lofty statesmanship rests on a foundation of astute politics. The revered Lincoln used his party powers boldly in his struggle to save the Union, and the idealistic Wilson sought the cooperation of political bosses to effect the passage of reform measures, a practice followed with even greater skill by another crusading President, Franklin D. Roosevelt. In fact, all strong Presidents have used their party powers with energy, imagination, and daring. However, this should not make one lose sight of a highly important factor in American politics: the decentralization and lack of discipline that characterize the major parties. Even the most skillful presidential leadership is frequently not enough to win over an obstructionist in the President’s own party. As noted earlier, legislative, executive, and judicial powers are separated in the American system of government. There is, however, a system of checks and balances. This is evidenced by the constitutional allocation of certain judicial powers to the President. One illustration is his influence over the judicial branch through his power to appoint, with Senate approval, all federal judges and attorneys. As a rule, judges are suggested to the President by senators or representatives after approval by the bar association of the state. b) Illustrate your opinion about the head of your country being politically active and influential. TASK VII.  a) Identify the following “-ing forms” and translate the sentences: 1. He may bring pressure by appealing to the American people through his press conferences, which are widely publicized. 2. When Congress adjourns without enacting legislation desired by the President, he may call a special session in an effort to achieve his goal. 322

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3. In vetoing a bill, the President returns it to the Congress without his signature. 4. It is an effective device for promoting cooperation between the legislative and executive departments. 5. As party chieftain, the president assists in raising money by appearing at important dinners and rallies. 6. In Article V, the Framers established a two-step procedure for altering the Constitution. Proposing a constitutional amendment is the first step. 7. The second step is ratification. Proposed amendments may be ratified by three-fourths of the state legislatures or by threefourths of special state ratifying conventions. 8. The equal rights amendment (ERA) was proposed in 1972 stating that “equality of rights under law shall not be denied or abridged by the United States or any State on account of sex” but an insufficient number of states agreed to its ratification. 9. Viewing the Articles of Confederation as unworkable, the fifty-five delegates decided to start afresh. 10. Rather than provide for a compact between the people and the government, the Articles of Confederation institutionalized “a league of friendship” among the states, and their guiding principle was state sovereignty. 11. An opposition movement was marshaling arguments to persuade state convention delegates to vote against ratification. 12. The Federalists’ arguments and writings took many forms, but among the most important was a series of eightyfive articles published in New York newspapers under the pen name “Publius.” 13. Other states began devising their own wish lists – enumerations of specific rights they wanted put into the document. 14. One of the major flaws in the Articles of Confederation, some thought, was the amending process: changing that document required the approval of all thirteen states. 323

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TASK VIII.  Reading comprehension check – THE PRESIDENT AS LEGISLATOR: 1. Describe the president as Chief Legislator, Chief Executive and Party Chieftain. 2. Use the text to exemplify the curbs on presidential powers throughout American history. TASK IX. Explain how you understand the following ideas: • “A president’s authority is not as great as his responsibility.” • “The President has a national constituency.” TASK X. Comment on the following quotation: Party is organized opinion. Benjamin Disraeli (1804–1881)

TEXT 8 IMPEACHMENT The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other Court Crimes and Misdemeanors (Article II, Section 4). The delegates decided rather quickly on the procedures by which a president could be impeached (charged) by the House of Representatives. Debate occurred on the question of who would prosecute the president – Senate, the House, or the Supreme Court. Eventually the Framers settled on trial by Senate since the justices would be appointed by the president and would also be involved in criminal proceedings afterwards. 324

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In early June, Dickenson suggested that Congress be able to remove the executive if requested by the majority of state legislatures. Madison and Wilson contended that this gave too much power to the small states. Sherman suggested that Congress have the power to remove the executive at its pleasure, but Madison argued that then the executive would be nothing more than “the mere creature of the Legislature.” A tentative agreement was reached under which the executive would be removable “on impeachment and conviction of malpractice or neglect of duty.” But during the debate on reeligibility, Morris noted that “the Executive shall also be impeachable. This is dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature.” Morris suggested short terms and reeligibility as an alternative to impeachment, believing that the executive “can do no criminal act without coadjutors who may be punished.” When the Committee on Detail was handed the impeachment issue, Randolph wrote that “the House of Representatives would try and the Supreme Judiciary would convict.” The full committee narrowed the scope of impeachment offences by replacing the “malpractice or neglect of duty – the chiefly political offences ‑ with Treason, Bribery, or corruption” – offences primarily criminal in nature. The Committee on Unfinished Business later changed the impeachment process, vesting the power to convict in the Senate. Morris, a member of the committee, explained the impropriety of the conviction by the Supreme Court, since the Court would try the president for criminal offences after the impeachment trial. As the convention drew to a close the scope of impeachable offences was expanded to include “things” political. Mason was 325

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uncomfortable with impeachments limited to treason and bribery and recommended extending the power of impeachment to include “maladministration.” But Madison objected, stating that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted “other high crimes and misdemeanors against the State,” which passed the convention. The verb “to impeach” means to charge, to accuse. The word impeachment means a process that is used to charge, try, and remove public officials for misconduct while in office. The Constitution gives the House the power to bring charges through articles of impeachment and the Senate the power to try all impeachments. It takes a two-thirds majority to convict a president of the charges. The full House votes on Judiciary Committee’s charges and then appoints managers (prosecuting attorneys) to argue its case in the Senate. The Senate becomes a tribunal for the trial, with the Chief Justice of the Supreme Court presiding. The Chief Justice rules on whether the evidence is admissible but can be reversed by majority vote. And, given the seriousness of their actions, all senators are sworn to a special oath above their oath of office: “to do impartial justice according to the Constitution and laws.” The ambiguity of what constituted an impeachable offense became the focal point of Richard Nixon’s presidency in 1973. Could a president be impeached for a crime against the spirit of the Constitution, or was proof of a criminal offense needed? The House impeachment hearings were carried out with great care; most of the nation’s adult population reported having watched at least part of the proceedings during the long “Watergate Summer.” Five articles of impeachment against Richard Nixon were considered; the first three passed the House Judiciary Committee. They were Article I, Obstruction of Justice; Article II, Abuse of Power, Article III, Ignoring Congressional Subpoenas; Article IV, Concealing Information 326

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from Congress on the bombing of Combodia; and Article V, Tax Evasion and Emoluments. NOTES TO THE TEXT: Committee on Detail – a committee established by the Philadelphia Convention on June 23, 1787 to put down a draft text reflecting the agreements made by the Convention. Legal proceedings – action or procedure instituted in a court of law to acquire a benefit, interest, or right or to enforce a remedy. Malpractice – a type of negligence in, which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm. Neglect of duty – the omission to perform a duty. Evidence – something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact. Emolument – any advantage, profit, or gain received as a result of one’s employment or one’s holding of office. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY tentative, tentatively, to contend, coadjutor, treason, tenure, ambiguity, ambiguous, obstruction, to obstruct TASK I.  a) Consult a dictionary to define the above words; b) Add the words from ACTIVE VOCABULARY to complete the sentences: 1. He was criticized for his … of efforts to rebuild the wartorn country. 2. Critics of the school system … that not enough emphasis is laid on creativity. 327

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3. The peace talks are … planned for next week. 4. There seem to be some … in the rules. 5. Throughout his … of office the committee worked very effectively and carried out a number of important surveys. 6. The task would have never been fulfilled without the … help. 7. The court found him guilty of committing … and sentenced him to life imprisonment. 8. He reached some ... conclusions about the possible cause of the accident. TASK II.  a) Match the verbs with their definitions: 1) mismanage 2) mislead 3) misjudge 4) mishandle 5) misinform 6) misdial 7) misdiagnose 8) misbehave 9) misappropriate 328

a) to take for yourself the money that you are responsible for but that does not belong to you b) to take a wrong judgment about a person or situation c) to deal with the situation or process badly or without enough care d) to behave badly and annoy and upset the people e) to give someone false or incorrect information f) to be wrong about what illness someone has g) to choose a wrong number when making a telephone call h) to make someone believe smth that is incorrect or not true i) to manage badly

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b) Use the above verbs to write a short detective story. TASK III.  a) Find the definition of impeachment in the text; b) Compare it with the following definitions: 1) (esp. in the USA) charging (a public official) with serious misbehavior in office (Longman Dictionary of English Language and Culture); 2) charge of treason brought about the head of state (Peter Collin English Law Dictionary); 3) a charge of treason or other high crime before competent tribunal (The Concise Oxford Dictionary); 4) the first step in removing an officer from office. The President and other federal officers (as judges) may be impeached by the House of Representatives. The House draws up articles of impeachment, once approved by a simple majority of the House members, are then submitted to the Senate, thereby impeaching the officer. The Senate then holds a trial, at the conclusion of which each member votes for or against conviction on each article of impeachment. Once convicted, the officer can be removed from office (MerriamWebster’s Dictionary of Law); 5) a criminal proceeding against a public officer, before a quasi-political court, instituted by a written accusation called “articles of impeachment” (Black’s Law Dictionary). TASK IV.  a) Compare the meaning of the prefix “mal-” in the following terms: Mal- – a prefix meaning bad, wrong, improper, fraudulent. • maladministration – poor management or regulation by a public officer; an official’s abuse of power; • malapportionment – the improper or unconstitutional apportionment of legislative districts; 329

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• malfeasance – a wrongful or unlawful act; esp. wrongdoing or misconduct by a public official; the tort of excessive, malicious, or negligent exercise of statutory powers by a public officer; • malpractice – unskillful treatment, negligence or incompetence on the part of a professional (esp. lawyer or doctor). b) Translate the following passages: 1. The Chief Justice noted: “We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” 2. According to the Federal Trade Commission Act, a commissioner could be removed by the president only for “inefficiency, neglect of duty, or malfeasance in office.” 3. By a l921 statute, the Comptroller General was removable by joint congressional resolution for, inter alia, “inefficiency,” “neglect of duty,” or “malfeasance.” “These terms are very broad,” the Court noted, and “could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.” Consequently, the Court determined, “the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.” 4. Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary 330

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need of a vigilant and courageous press, especially in great cities. 5. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character. 6. Besides indictments, grand juries may also issue reports which may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct. Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them. 7. As the franchise became exercisable by greater numbers of people, the belief became widespread that Senators ought to be popularly elected in the same manner as Representatives. Acceptance of this idea was fostered by the mounting accumulation of evidence of the practical disadvantages and malpractices attendant upon legislative selection, such as deadlocks within legislatures resulting in vacancies remaining unfilled for substantial intervals, the influencing of legislative selection by corrupt political organizations and special interest groups through purchase of legislative seats. TASK V.  Reading comprehension check – IMPEACHMENT: 1. What caused the debates on the procedure of impeachment? 2. How was the agreement on the range of impeachable offences reached? 3. Describe the powers granted to the Senate and Congress by articles of impeachment? 4. What episode in American history illustrates the obscure nature of impeachable offences? 331

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TASK VI.  Use the following phrases to discuss different views on the procedure of impeachment: Dickenson suggested … . Madison and Wilson contended … . Sherman suggested … . Madison argued … . Moris noted … . Randolf wrote … . Mason substituted … .

TEXT 9 THE INTENT OF THE FRAMERS VERSUS THE MODERN AMERICAN PRESIDENCY The intent of the Framers should be addressed at every stage of the studies in Constitutional law. Arguments for and against the legislative veto, summarized in the accompanying selection, illustrate their intent versus reality. Legislative vetoes are provisions in laws enacted by Congress that delegate provisional or conditional authority to the president or the executive (or judicial) branch. Congress, by concurrent resolution not subject to presidential veto, can thereby veto executive decisions. From 1952–2000 over 250 separate veto provisions existed in legislation. The Framers had not debated a legislative veto power since it made little sense that Congress should negate legislation it had already initiated as the legislative branch. But as the modern institutionalized presidency expanded, the legislative process diverged from the Framers’ plan. The legislative veto should be seen as a product of changes in the presidency. The Supreme Court declared the legislative veto unconstitutional in Immigration and Naturalization Services v. 332

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Chadhsi. In the majority opinion written by Chief Justice Burger, the Court focused on the intent of the Framers. A substantial part of the decision quoted directly from the records of the Constitutional Convention. In the Court opinion the legislative veto was unconstitutional because the Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. Although not “hermetically” sealed from one another, the powers delegated to the three branches are functionally identifiable. When any branch acts, it is presumptively exercising the power the Constitution has delegated to it. The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decision of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution. In dissent Justice Byron White argued that the Court was inappropriately applying the solution of 1787 to the world of 1984 – a world in which the powers exercised by the president 333

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went far beyond those enumerated in Article II. The legislative veto was not the sword that Madison and Hamilton feared Congress would one day use to tyrannize the other branches and to aggrandize itself. “Rather, the veto has been a means of defense,” wrote Justice White, “a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the nation’s lawmaker.” From the summer of 1787 to the present the government of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government’s responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure their role as the nation’s lawmakers. But the wisdom of the Framers was to anticipate that the nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles … the legislative veto device here – and in many other settings – is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies, both executive and independent, as they engage in exercising authority delegated by Congress. The legislative veto is but one of several issues that requires the attention of modern constitutional thinkers. The Framers offered their country an experiment in republican government. That certain issues and contingencies were unanticipated there can be no doubt. Recognizing this possibility, the Framers included an amendment process. But as these debates on both a legislative veto and a lineitem veto reveal, the structure bequeathed by the Framers is often ambiguous with respect to contemporary needs. If the 334

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Framers could be called back to assess their blueprint and suggest revisions and amendments, what do you believe they would say, either as a group or individually? In formulating your response, don’t worry about what your professor might think. Most scholars have already incurred too much of a stake in the answer. What do you believe the Framers would say about the relationship of their blueprint to expectations for the president? Does this arrangement tend to foster constitutional insolvency? Keep in mind that the Framers placed the necessity for checks and balances ahead of the need for cooperation between the branches. Moreover, to the Framers the very notion of presidential leadership of the political system was anathema to the preservation of liberty and balances between branches. NOTES TO THE TEXT Immigration and naturalization services v. Chadsi – a United States Supreme Court case ruling in 1983 that the one-house legislative veto violated the constitutional separation of powers. Chief Justice Burger (1907–1995) – the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings the U.S. Supreme Court delivered a variety of transformative and controversial decisions on abortion, capital punishment, religious establishment, and school desegregation during his tenure. Justice Byron Raymond “Whizzer” White (1917–2002) – won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Concurrent resolution – a resolution passed by one house and agreed to by the other. It expresses the legislature’s opinion on a subject but does not have the force of law. Appropriation bill, or running bill – a legislative motion (bill) which authorizes the government to spend money. 335

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY concurrent, to confine (to), intent, to comply (with), to aggrandize, aggrandizement, to anticipate, to enact, to focus (on), to discern TASK I.  a) Consult a dictionary to define the above words; b) Add the words from ACTIVE VOCABULARY to complete the sentences: 1. He is serving two … prison services. 2. He is willing to tell lies and break promises for his own personal … . 3. The police cadet’s duties were … to taking statements from women and children. 4. We … meeting a certain amount of resistance to our plan. 5. The court has to decide if he entered the building with the … to steal. 6. The factory was closed for failing to … with government safety regulations. 7. Several bills were … at the end of this session of Parliament. 8. It was difficult to … which of them was telling the truth. 9. Today we are going to … on the question of homeless people. TASK II.  a) Compare the meanings and usages of intent and intention: • Intent – a determination to perform a particular act or to act in a particular manner for a specific reason; an aim or design; a resolution to use a certain means to reach an end. 336

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• Intent is a mental attitude with which an individual acts, and therefore it cannot ordinarily be directly proved but must be inferred from surrounding facts and circumstances. • Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. • Intent – mental desire and will to act in a particular way, including wishing not to participate. • Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that “there was no criminal intent.” Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime. • Intent implies a sustained unbroken commitment or purpose, while • Intention implies an intermittent (sporadic, stopping or ceasing for a time; alternately ceasing and beginning again) resolution or an initial aim or plan. • Intention – a purpose or goal; aim. Synonyms: intention, intent, purpose, goal, end, aim, object, objective. b) Translate the passages: 1. Cornell W. Clayton’s book “Separate Branches, Separate Politics: Judicial Enforcement of Congressional Intent” was recommended for constitutional law classes. 2. The legal importance of what an individual’s intent was depends on the particular area of law. In contract law, for example, the intention of the parties to a written contract is fixed by the language of the contract document. 3. The first 10 Amendments – the Bill of Rights – adopted in 1791, were ratified immediately and have been instrumental in protecting basic liberties in the United States. These changes 337

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were promises fulfilled by the Federalists, who made them to win ratification of the Constitution itself. For all intents and purposes, they are part of the original. The Eleventh Amendment of 1795 protected universal loyalty to states’ rights. It forbade lawsuits against a state by citizens of another. 4. The majority opinion also drew on the original intent of the writers of the Constitution. They noted that when the Bill of Rights was adopted, the founders intended the Sixth Amendment to allow defendants only the privilege of hiring private counsel. 5. Justice Bork believes judges should not substitute their values for the original intent of the Framers of the Constitution. 6. In Brandenburg, the Court moved to a standard that was much more protective of free speech. The test requires both the intent by the speaker to provoke illegal action immediately and circumstances in which such action is likely to occur. 7. Justice Bradley made an important point by noting that the owner’s intention to export cannot always be taken for granted; the owner can change his mind. The goods are considered the general mass of property in the state “until goods are actually put in motion for some place out of state, or committed to the custody of a carrier for transportation to such place.” 8. In Virginia v. Black (2003) the Supreme Court held that cross burning with intent to intimidate is not a protected act under the First Amendment and thus is similar to fighting words. 9. However, the burden of proof for the prosecution of acts such as cross burning is to prove that there was direct intent to intimidate through the act, and thus the intent related to the act cannot be inferred from the act of cross burning itself. 10. The sheriff advised the students that they were trespassing and would have to leave or be arrested; those students who did not leave were arrested and charged with “trespass with a malicious and mischievous intent.” 338

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11. Susan M.W. Norwick was born in Scotland, moved to the United States in 1965, and married a U.S. citizen. Norwick was eligible to apply for U.S. citizenship but expressed no intention of renouncing her British citizenship. Norwick applied to become an elementary teacher in the state of New York. Although otherwise qualified, her application for certification was denied by the New York Commission on Education solely on the basis of Section 3001(3) of the New York Education Law, which bars aliens from teaching in public schools unless they manifest intention to become U.S. citizens. The trial court held that the state’s blanket ban on public school teaching by aliens was unconstitutionally “overbroad” because it did not take into account the subjects being taught, the relationship of the alien’s home country to the United States, and the possibility of including an alien’s loyalty statement in lieu of declaring his or her intent to become a citizen. TASK III.  Use the text, reference books, GLOSSARY to define the following notions: legislative veto; institutionalized presidency; delegated powers; ultimate authority; constitutional authorization; lineitem veto; qualified veto; power appropriation; bill; the principle of checks and balances. TASK IV.  Read the text and explain the role of concurrent resolutions in executive –legislative relations: Concurrent resolutions are generally used to address the sentiments of both chambers or deal with issues or matters affecting both houses. Examples of concurrent resolutions include: • providing for a recess or adjournment of more than three days during the session of Congress (required by Article I, Section 5 of the United States Constitution, “neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor 339

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to any other place than that in which the two Houses shall be sitting”); • permitting the use of the Capitol rotunda, which is under the control of both Houses; • providing for a joint session of Congress, normally to hear a message from the President, such as the State of the Union address; • correcting the enrollment of a bill that has already passed both Houses; • asking the President to return a bill that has been presented to him, before he has signed or vetoed the bill; • launching the budget process; • creating a temporary joint committee. Sometimes, before the Supreme Court of the United States ended the practice in its decision in Immigration and Naturalization Service v. Chadha (1983), concurrent resolutions were used to override executive actions via a mechanism known as the legislative veto. If both houses of Congress were to ever censure a President (which has never happened – both the House and Senate have done so individually, but so far never together) it would, according to parliamentary procedure, be a concurrent resolution, as a joint resolution requires the President’s signature or veto and has the power of law. A concurrent resolution does not have the power of law nor require action by the executive to take force. Concurrent resolutions originating in the Senate are abbreviated S.Con.Res. and those originating in the House are abbreviated H.Con.Res. b) Compare the meaning of concurrent in the following notions: • Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction 340

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over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them. • Concurrent sentence – the sentence in which the period of imprisonment equals the length of the longest sentence. • Concurrent resolution is a resolution (a legislative measure) adopted by both houses of a bicameral legislature that lacks the force of law (is non-binding) and does not require the approval of the chief executive (president). c) Translate the following passages: 1. The minimalist view maintains that the commerce clause grants both Congress and states “concurrent” powers to regulate interstate commerce. In this view, state regulation of commerce is unconstitutional or invalid only if Congress passes specific statutes that restrict or remove the economic powers of states. 2. Despite mandating consultation with Congress, the War Powers Act (1973) does not say who in Congress must be consulted. And to stop presidential war-making, the act unluckily designated the “concurrent” resolution. Since concurrent resolutions cannot be vetoed, they were ruled unconstitutional in INS v. Chadha (1983). 3. Treaties are one way to formalize agreement in foreign affairs. Two-thirds of senators present and voting may give the president their “advice and consent” and “concur” in “treaties” proposed by the executive branch (Article II, Section 2, Clause 2). 4. In Hutto v. Davis (1982) the Supreme Court again deferred to local legislature determination of what was an appropriate punishment for a crime. The issue here was two concurrent 20-year sentences and a $20,000 fine for the possession of nine ounces of marijuana. 341

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5. Justice Robert Jackson’s concurring opinion in the case suggested that the president’s, or commander in chief ’s, authority is limited in scope, and he cannot act on his own without the consent of Congress on most matters that offer other methods for recourse. Jackson described three categories of presidential power: 1) “when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum;” 2) “when the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain;” and 3) “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” 6. The fact that the details of the actual amendment (Prohibition), in particular the language granting concurrent authority to the states and federal government to enforce it, do not seem to have been subject to much thought, suggests that it was perhaps drafted and evaluated in haste, although the AntiSaloon League insisted that there had been 70 years of deliberate experimentation with less drastic restrictions. d) Make up your own definition – explanation of concurrent authority, concurrent powers. Give examples of similar concepts existing in your legal system. TASK V.  a) Use the modal verbs should, must, to be to in the sentences below: 1. The legislative veto … be seen as the product of changes in the presidency. 342

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2. The hydraulic pressure inherent within each of the separate branches to exceed the outer limits of its power … be resisted. 3. The veto has been a means of defense, a reservation of ultimate authority necessary if Congress … to fulfill its designed role under Article I as the nation’s lawmaker. 4. The intent of the Framers … be addressed at every stage of the studies in constitutional law. 5. The wisdom of the Framers … to anticipate that the nation would grow and new problems of governance would require different solutions. 6. The President … either veto or approve the package as a whole. 7. The Congress … rely on the legislative veto as the most effective if not the only means to ensure their role as the national legislator. TASK VI.  Replace the italicized words by the following alternative words – since, thereby, as, although, that, rather than, because: 1. The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes which often seem clumsy, inefficient, even unworkable. 2. The Framers had not debated a legislative veto power because it made little sense that Congress should negate legislation it had already initiated as the legislative branch. 3. Congress, by concurrent resolution not subject to presidential veto, can therefore veto executive decisions. 4. Even though they are not hermetically sealed from one another, the powers delegated to the three branches are functionally identifiable. 5. While the modern institutionalized presidency expanded, the legislative process diverged from the Framers’ plan. 343

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6. An item veto would enable the President to reject specific items and not veto the bill entirely. 7. This makes it difficult for the president to discharge the responsibility vested in him by the Framers as a president cannot consider the individual items of the appropriations separately. TASK VII.  Determine whether the meanings of the following binominals are: a) similar; b) opposite; c) complementing one another: 1) provisional or conditional (authority); 2) cumbersomeness and delays; 3) programs or activities; 4) issues and contingencies. TASK VIII.  Read the text and provide your arguments for and against the constitutionality of the line-item veto: President Reagan requested regularly that he be given an item-veto authority. In the effort to achieve fiscal responsibility over the federal budget, an item veto would enable the president to reject specific items within a piece of legislation rather than veto the bill entirely. In recommending the item veto, Reagan added his name to a long list of predecessors dating back to Grant. In Reagan’s view, the intent of the Framers in providing the president a qualified veto power has been frustrated to a large extent by the development of the congressional practice of combining various items in a single appropriations bill. The Framers undoubtedly anticipated that Congress would pass separate appropriations bills for discrete programs or activities, and that the president would be able to review each program. Until about the time of the Civil War, this was the practice of Congress. Since that time, however, Congress has increasingly combined various items of appropriation in omnibus 344

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appropriation bills. This makes it difficult for the president to discharge the responsibility vested in him by the Framers, because a president cannot consider the individual items of the appropriations separately, but must either veto or approve the package as a whole. The president is thus prevented from using the veto as the Framers intended, “to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design.” It is for this reason that we have proposed restoring the Framers’ original design through constitutional amendment granting the president line-item veto authority. The constitutions of no fewer than forty-three states grant some authority to the governor, and the experience at the state level suggests a lineitem veto would work well at the federal level. Would enactment of an item veto actually restore the intent of the Framers? “It is fair to say,” wrote Judith Best, “the veto power created by the Founders has been displaced and debilitated, and that some form of item veto would be viewed by the Founders as necessary to reinstate the veto power they originally envisioned. ... It is reasonable to assert that the Founders would not find the item veto to be a dangerous innovation but rather a rehabilitation of an original and essential check and balance.” Moreover, an item veto reinforces the principle of checks and balances by restoring the original intent of the veto itself. TASK IX.  Comment on the following statements from the text: • “The Framers offered their country an experiment in republican government.” • “The legislative veto is a product of changes in the presidency.” 345

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The following issues will help you to answer the exam question THE U.S. PRESIDENCY and to write your essay: 1. Presidency: historical and constitutional background. 2. President: major duties and powers. 3. The categories of presidential powers. 4. Presidential veto in the system of checks and balances. 5. President and lawmaking. 6. Impeachment.

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UNIT V THE ORGANIZATION OF COURTS IN THE UNITED STATES

TEXT 1 STATE COURTS V. FEDERAL COURTS The structure of courts in the United States is complicated. Two separate court systems – federal and state – operate side by side. The structure is decentralized. Nevertheless, within this largely archaic structure the complex conflicts generated by twenty-first-century life must be settled. To understand how judges, lawyers, and litigants operate, it is necessary to understand the labyrinthine environment in which they work. The most striking feature of the American judiciary is the dual system of courts, which reaches into every section of the country with trial as well as appellate tribunals. The dual structure is a consequence of the creation of a federal court system in 1789 to operate alongside existing state tribunals. The creation of a federal court system was one triumph of the Federalists in the Constitutional Convention of 1787 and the first Congress in 1789. Having a court system of its own, the new national government would not have to depend entirely on the good will of state courts to effectuate its laws. That the states retained their own courts, however, attested to their continued strength. 347

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The relationship between state and federal courts was complex from the beginning. The Constitution provided that state judges should swear allegiance to its provisions and obey them regardless of the constitution or laws of their own state. Section 25 of the Judiciary Act of 1789 gave the Supreme Court authority to review state court decisions that had ruled against a claim based on the federal Constitution, a treaty, or a federal statute. Moreover, the United States Supreme Court held that state courts were bound by Supreme Court decisions on these matters. This ruling meant that state courts were bound by federal interpretations of state laws when the constitutionality of those laws was questioned. Despite such provisions, which appeared to make state judges subordinate to the federal judiciary, state courts retained most of their autonomy. The vast majority of cases decided by the state courts did not involve federal questions, and state judges ruled upon them according to their own traditions. Although the state courts were de jure subordinate to the Supreme Court in federal matters, they retained a great measure of de facto independence. To a certain extent, state courts became competitors of the federal judiciary. Competition between the two court systems ensued from their overlapping jurisdiction. Originally, state courts held exclusive jurisdiction over most cases. Congress confined federal courts to admiralty, patent, and copyright matters; to suits where citizens of two different states contested a claim (“diversity of citizenship” matters); and to criminal charges resulting from a few federal statutes. Only when the nation’s expanding economy broke through state and regional barriers in the last half of the nineteenth century was the jurisdiction of the federal courts broadened. Congress expanded federal court jurisdiction to all matters involving federal rights – a category of conflicts that previously had been tried in state 348

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courts and only occasionally appealed to the United States Supreme Court. Congress also greatly expanded the scope of federal statutory law involving commerce, civil rights, taxation, and criminal law. Each new statute provided federal courts with new sources of litigation. The state courts, in the meantime, also faced new problems as a result of state legislative activity and of growing industrialization, both of which provoked new legal conflicts. At the end of the nineteenth and the beginning of the twentieth century, litigants increasingly had a choice between state and federal courts. Sometimes federal courts were chosen to escape disadvantageous state rules. For instance, for a brief period (1860–1861) Wisconsin abandoned the fellowservant rule and made employers (principally railroads) liable for injuries resulting from accidents cause by negligence of employees. This decision led railroads to take such cases to the federal court to avoid Wisconsin’s decision. At other times state courts were chosen over federal courts to take advantage of the more favorable attitude of state judges. Over the long run, state courts gradually lost grounds in the competition with federal courts. Cases involving important public policy tended to go to federal courts because they dealt with federal statutes or claims under the federal Constitution. Just as state governments in general became less important to national policy making, so state courts – to somewhat lesser degree – lost their preeminent position in judicial system and increasingly concentrated on private law cases, which enforce existing norms and affect only the immediate parties to a case. NOTES TO THE TEXT Trial court – the court of original jurisdiction where all the evidence is first received and considered. – Also termed court of first instance; instance court. 349

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Appellate tribunal (court) – a court with jurisdiction to review decisions of one or more lower courts. – Also termed appeals court; appeal court; court of appeals. Constitutional Convention – a treaty, executive agreement (agreements) between nations (treaty must have the advice and consent of the Senate, an executive agreement is made by the President but not ratified by the Senate); a legal custom; a meeting, congress. De jure – existing by right or according to law. De facto – actual, existing in fact; having effect even though not formally or legally recognized. Ensue – to follow as a consequence; result. Admiralty matters – all maritime contracts, torts, injuries, or offenses. Patent – the grant of a right, privilege, or authority by the government; the official document so granting. Copyright – a property right in an original work of authorship fixed in any tangible medium or expression (such as a literary, musical, artistic, photographic, or film work). Statutory law – the body of law derived from statutes rather than from constitutions or judicial decisions. – Also termed: statute law; legislative law; ordinary law. Fellow servant rule – a common law doctrine, now generally abrogated by workers’ compensation acts and Federal Employers’ Liability Act, that in action for damages brought against an employer by an injured employee the employer must allege that the negligence of another fellow employee was partly or wholly responsible for the accident resulting in the injury and, thus reducing or extinguishing his own liability. Negligence – the failure to exercise the standard of care that a reasonably prudent person would have exercised in the same situation. Private law – a private bill enacted into law. Private laws have restricted applicability, often addressing immigration and naturalization issues affecting individuals. 350

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Overlapping (concurrent) jurisdiction – jurisdiction exercised by different courts, at the same time, over the same subject matter, and within the same territory, and litigants may, in the first instance, resort to either court indifferently. Compare: exclusive jurisdiction. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY striking, overlapping, expanding, preeminent, to effectuate, to attest (to), to ensue (from), confine to, to abandon TASK I.  a) Use overlapping, expanding, preeminent in the following sentences; translate the passages: 1. The usual practice is that parties may file … lawsuits in both the state and federal courts. Each court can proceed with its case rather than staying its hand in favor of the other, at least until one of the cases concludes. (Once one case concludes, doctrines of preclusion may require the second court to honor the first judgment rather than reexamining the same issues.) 2. With the enactment of the National Labor Relations Act and subsequent amendments, Congress declared a national policy in labor-management relations and established the NLRB to carry out that policy. Throughout the ups-and-downs of federal labor-law preemption, it remains the rule that the Board remains … and almost exclusive. 3. The … of authority creates an “invitation to struggle” whereby the separate branches of government diligently pursue additional powers. 4. The sovereignty of each State implies a limitation on the sovereignty of all its sister States – a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment. Thus, the federalism principle is … . 351

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5. Some states have moved in the direction of a unified court system, whereas others still operate with a bewildering complex of courts with … jurisdiction. 6. Other cases that followed would further solidify the Court’s … authority. 7. In recognizing the … role of staff, the Court acknowledged that the rapidly changing technology necessary in the performance of legislative duties makes the day-to-day work of congressional aides equivalent to being an alter ego of the congressional member. 8. Until roughly the New Deal, the Supreme Court applied a doctrine of “dual federalism,” under which the Federal Government and the States were separate sovereigns, each … in its own fields but lacking authority in the other’s. 9. Federalism is the principle that both the national and state governments derive their authority directly from the people and each retains powers not given to the other and as well exercises … and shared powers. 10. In recent years, the Court’s decisions have permitted the reach of the Sherman Act (anti-trust law) to expand along with the … notions of congressional power. b) Use to confine, to abandon, to effectuate in the following sentences; translate the passages: 1. Persons not yet convicted of a crime may be detained by government upon the appropriate determination of probable cause and the detention may … through subjection of the prisoner to the restrictions and conditions of the detention facility. 2. Provisions relating to codes of fair competition, authorized to be approved by the President in his discretion “… the policy” of the act, held invalid as a delegation of legislative power (Article I, § 1) and not within the commerce power (Article I, § 8, clause 3). 352

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3. Five justices ruled in favor of Butts, upholding the lower court’s decision, on the ground that Butts had demonstrated that the magazine … professional standards or exhibited a reckless disregard for the truth. 4. New York statute authorizing police officers to enter a private residence without a warrant and without necessarily exigent circumstances … a felony arrest violates the Fourth and Fourteenth Amendments. 5. An Iowa statute subjecting to damages a common carrier who … service and thereby injures shippers is preempted by the Interstate Commerce Act, which empowers the ICC (Interstate Commerce Commission) to approve cessation of service on branch lines upon carrier petitions. 6. “Law” Defined – The term comprises statutes, constitutional provisions, municipal ordinances, and administrative regulations having the force and operation of statutes. But are judicial decisions within the clause? The abstract principle of the separation of powers, at least until recently, forbade the idea that the courts ‘‘make’’ law and the word ‘‘pass’’ in the above clause seemed … it to the formal and acknowledged methods of exercise of the law-making function. 7. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed (issued a presidential proclamation) that France … certain practices that violated the neutral commerce of the United States. c) Translate the following passages: 1. Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power 353

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to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded (acknowledged). That this power has been freely exercised is attested by the pages of the United States Code devoted to Title 18, entitled ‘‘Criminal Code and Criminal Procedure.’’ In addition numerous regulatory measures in other titles prescribe criminal penalties. 2. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. Only if the balance struck by the legislature is “outside the pale of fair judgment” could the Court hold that Congress was deprived by the Constitution of the power it had exercised. 3. In 1975, Texas amended its Education Code so that local school districts were allowed to deny enrollment of undocumented children or to condition enrollment upon the payment of full tuition. Extensive discussion ensued over the application of the equal protection clause to the Texas statute in question. Under the equal protection clause analysis, the government is given wide latitude in making distinctions and classifications in the course of conducting policy, unless it involves a suspect classification (such as race) or it touches upon a fundamental right of a person. 4. Critics of the War Powers Act (1973), point to the act’s imprecise language, which allows for broad interpretations of the word “consult.” For example, when President Ronald Reagan launched air strikes on Libyan leader Muammar Qaddafi in 1986, congressional leaders were told of the forthcoming missile strikes three hours prior to the military action. Similarly, in 1989, President George Bush gave congressional leaders five hours’ notice before the American military invasion of Panama. In both cases, each administration maintained that it had consulted 354

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Congress prior to the military action. In contrast, some in Congress felt that they had been merely notified of the ensuing military action and were not privy to any aspect of the decisionmaking process. 5. The majority held that the Syndicalism Act was not repugnant to the due process clause for its vagueness or uncertainty of definition because the definition of “criminal syndicalism” was very specific. They went further and held that the act did not violate the equal protection clause either because its penalties were confined to people who were advocating a resort to violent and unlawful actions as a means of changing industrial and political conditions. TASK II.  a) Match the meanings of the defined words to the words in the following sentences: a) striking – engaged in a work stoppage; b) striking – arresting the attention and producing a vivid impression on the sight or the mind; noticeable, apparent, conspicuous, notable, obvious, prominent, remarkable; c) to strike a balance (bargain, deal) – to make a compromise; to reach an agreement; d) to strike a juror – to challenge a juror; to form a jury by cancelling certain names among those nominated for jury service until only the requisite number remains; e) to strike – to cease work collectively as a protest against working conditions, low pay, etc.; stop work in order to press demands; f) to strike – to eliminate, expunge, delete, remove, erase. b) Translate the sentences: 1. Madison’s subsequent changes of position are striking. 2. But the most striking exertions (instances, acts) of the police power touching private contracts, as well as other private 355

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interests within recent years, have been evoked by war and economic depression. 3. The central focus of the majority opinion was striking a balance between the contract clause and the state’s police powers. 4. Throughout its early years, deals had been struck that balanced slave state interests with those of free states. 5. The Supreme Court established a three-step process for evaluating claims that prosecutors had exercised peremptory challenges in violation of a defendant’s equal protection. Under the new three-step process: (1) the defendant must show with clear and convincing evidence that the peremptory challenges had been exercised on the basis of race; (2) if the defendant succeeds with step one, then the prosecution must offer a “raceneutral basis” for striking jurors; and (3) the trial court must determine if the defendant has shown purposeful discrimination. 6. The Court found that the prosecution did not provide a credible race-neutral basis for striking African-American jurors. 7. In his separate opinion, Thomas claimed that petitioner had not shown by clear and convincing evidence that the prosecution’s striking African Americans from the jury was done due to race. 8. The amending process is a means for enabling the government to keep the Constitution ready to meet challenges, both present and future, striking a balance between entrenchment (encroachment, infringement, violation) and flexibility. 9. The case involved a claim by striking prison workers against the state of New York. The workers had been provided apartments on the prison site, but were locked out of their residences by the prison superintendent when the workers went on strike. 10. The new law stated that unions should not be considered illegal combinations as applied to the restraint of trade. It also denied federal courts the authority to issue injunctions against 356

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striking unions unless required to prevent irreversible damage to property. 11. Even more striking was Berea College v. Kentucky (1908), in which the Court ruled that Kentucky could make it illegal for a private school to teach white and black students together. 12. Manifestations of politics can be seen in virtually every aspect of the Court’s work, from the nomination and confirmation of justices to the factors that influence their decisions, but perhaps the most striking example of this politicization is the incursion of organized interest groups into the judicial process. 13. Some of the more striking cases may be briefly summarized. 14. The level of scrutiny is crucial to the outcome of the case. Statutes reviewed under minimal scrutiny almost always receive the Court’s approval; conversely, laws reviewed under strict scrutiny are almost always struck. TASK III.  Match the following de-words with their definitions: a) decolonize; b) deform; c) dehydrate; d) decentralize; e) defrost; f) decipher; g) defame; h) declassify; j) demerit 1) to move from one central place or office to several different smaller ones; 2) to read or find the meaning of (something difficult or secret, esp. a code); 3) to declare (esp. political or military information) to be no longer secret; 4) to give political independence to (a former colony); 5) to damage the good opinion held about (a person or group), usu. unfairly, by writing or saying smth bad about them – (libel or slander); 6) to change the usual shape of smth, esp. so as to spoil its appearance or usefulness; 7) to make free of ice, to remove ice from; 357

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8) to dry completely, remove all the water from; 9) a disadvantage, a fault, bad quality; in AmE a mark against smb for smth they have done, esp. at school. b) Add de-words to complete the following sentences: 1. I always wonder how people manage to … my doctor’s handwriting. 2. The look he gave her was hard to… . 3. Wearing shoes that are too tight will … your feet. 4. When you … a freezer or fridge, you switch it off so that the ice inside starts to melt. 5. To remove the ice from a plane or the windscreen of a car is to … them. 6. To … means to lose so much water from your body that you feel weak or ill. 7. They were discussing the merits and … of the agreement with their lawyers. 8. In the United States a mark or record that shows someone has done something wrong is called … . 9. An area where no soldiers or fighting between armies is allowed, usually as the result of an official decision to end a war is called the … zone. TASK IV.   Complete the following statements: 1. The federal court system was created to strengthen … . 2. Having retained their own court systems states wanted to demonstrate … . 3. The state judges were bound to abide … . 4. State court decisions had to comply with … . 5. Although the Supreme Court decisions were de jure binding for state courts they de facto … . 6. The jurisdiction of federal courts was confined by Congress to … . 358

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7. Then their jurisdiction was expanded to … . 8. Litigants chose federal courts to … . TASK V.  Use the text to prove the same or the contrary: 1. Two separate systems exist only for courts of original jurisdiction. 2. The national government became independent in the enforcement of its laws with the creation of a federal court system. 3. State courts maintain the power of the federal government. 4. State judges are loyal only to their state constitutions. 5. Supreme Court has the power of judicial review over the state court decisions violating the federal legislation, a treaty, or the American Constitution. 6. Concurrent jurisdictions of federal and state courts resulted in their rivalry. 7. Wisconsin’s decision was popular mainly among the employers. 8. State courts gained jurisdiction over the cases arising under public law. TASK VI.  Use the text STATE COURTS V. FEDERAL COURTS to fill in the table to describe the jurisdiction of the federal and state courts: Courts

Jurisdiction

TASK VII.  Read the text to discuss the origins of the American legal system and its ties with English common law: As the USA developed it gave rise to fifty-one individual codes of civil laws. They were established by federal statutes 359

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and the state statutes of the fifty states. If someone wanted to know what the law pertaining to alcohol was in the U.S., they would have to examine the federal statutes and the state statutes of every state in the union concerning alcohol. A solution was built into the U.S. Constitution to help federal and state courts deal with conflicts which arise when state statutes are in direct conflict with federal statutes. The solution is the Supremacy Clause found in Article VI of the U.S. Constitution which states: “This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What makes Article VI effective is the fact that all public officials, federal and state, are bound by an oath to support the U.S. Constitution which is administered prior to taking a public office. Prior to the development of civil law in the U.S. the court systems relied on English common law. Common law is defined as the unwritten law, especially of England, based on custom or court decisions, distinct from statute law. After the Revolutionary War the American courts became detached from the English court system. Each colony began to develop its own distinct common laws. As time passed, U.S. Law developed from a combination of English common law and American statutes. It must be emphasized that common law develops from the decisions of judges over a period of time. There still exists a common thread between English and American common law that could not be cut and that was stare decisis. Stare decisis is the legal rule that past precedents determine the outcome of contemporary legal disputes. A person 360

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attempts to establish precedent between their case and a case from the past in hopes of receiving a similar verdict. Stare decisis still plays a major role in determining the outcome of cases in federal and state courts. Another aspect of the English legal system adapted by most U.S. legal systems is the grand jury. A grand jury is a body of citizens (chosen in the same manner as jurors) whose responsibility is to determine if there is enough evidence to justify bringing charges against an individual. The grand jury was instigated in order to avoid the official persecution by a prosecutor without just cause. Grand juries are not a part of every state judicial system while a grand jury indictment is necessary for federal prosecution.

TEXT 2 THE STRUCTURE OF AMERICAN COURTS From the beginning both the states and the federal government have maintained trial courts throughout the country. The network of state courts, however, remains by far the more extensive. Each state possesses several sets of trial courts. Some state courts handle minor criminal and civil matters, such as traffic fines, local ordinance violations, and suits involving small amounts of money. These courts often exist in every large town of a county. Until very recently, the presiding official, called a justice of the peace, was an untrained layperson elected along with other county officials. Where the office of the justice of the peace still exists, he often remains in charge of these minor courts. In some states his functions have been limited to still more minor matters, and a professional magistrate or judge has been installed to hear criminal and civil suits. In most states, 361

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courts of minor jurisdiction may not hold jury trials. All matters that come before them are settled by the judge alone. If a jury trial is desired and permitted by law, the case must be transferred to another court. Another tier of trial courts hears more important matters – felony trials where the defendant may be sentenced to a long prison term and civil suits that involve a greater sum of money, usually more than $1,000. Such courts are generally located only at the county seat. In some states several counties share a single court, which normally sits in one and visits the other counties of the circuit for short periods each year. Judges of these courts are always lawyers and normally serve for relatively long terms. All jury trials take place in these courts, although most cases are heard by the judge alone or are settled out of court. Finally, many states have a set of specialized courts, which fit somewhere between the major and minor trial courts. Some of these – as in Ohio – deal with family matters, such as divorce and juvenile delinquency. Most larger cities have special traffic courts to handle the thousands of parking and driving violations that occur each year. Some cities also possess small-claims courts to handle monetary claims of less than $500; in smallclaims courts, a lawyer is unnecessary and sometimes is not even allowed. Finally, larger cities often have special probate courts to handle the administration of wills and estates; in other locales, the major or minor trial courts handle the probate matters in addition to their other business. No two states possess identical court structures, nor is the division of work between the courts of any state as symmetrical as would appear from the foregoing description. Without exception, the jurisdiction of lower and higher trial courts overlaps. The potential litigant is thus confronted with a maze of tribunals through which he and his lawyers must pass to attain their goals. 362

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Federal trial courts are much more simply organized. For one thing, there are relatively few – ninety-four in the entire country. Each state has at least one. Called district courts, these courts normally operate over a large portion of a state. The court usually travels to the more important cities within its territory, visiting each for two weeks twice a year. Many district courts have several judges, each operating his own branch of the court. The court hears criminal matters involving the violation of a federal law, such as taking a stolen car across state boundaries or illegally dealing in narcotics. Civil matters heard in federal court range from large suits involving the citizens of two states to complicated antitrust complaints filed by the federal government. A single judge presides over each case. Although the Constitution guarantees the right to a jury trial for all criminal prosecutions and for many civil cases involving more than $20, only criminal trials make extensive use of juries. In 2008, for instance, litigants in civil trials waived their right to a jury in 72 percent of the trials. Criminal defendants waived a jury in only 33 percent of the trials. When no jury sits, the judge decides the case alone. The federal government also maintains several specialized courts. Although some legal controversy exists over whether they have the same standing as constitutional courts, they operate like constitutional courts except that the jurisdiction is limited, they sit mostly in Washington, and they are assigned some quasilegislative functions. These courts exist for custom and patent appeals and for claims against the federal government. They usually hear appeals of administrative decisions, much as the regular courts of appeals hear appeals from many regulatory agencies. The Supreme Court treats their decisions like those by courts of appeals. Another extraordinary federal court is the three-man district court, which is an ad hoc tribunal specially convened in exceptional circumstances. Litigants who wish to use this court 363

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must make a special application to the senior judge of the district court. If he agrees to their request, the chief judge of the circuit convenes the court. It consists of three judges: at least one must be a district judge, and at least one must be a judge of the court of appeals. The court hears arguments and renders its decision. If the losing party wishes to appeal (and it usually does), the appeal goes directly to the United States Supreme Court. These three-man courts are used to hear some of the most controversial issues reaching the judiciary; they are intended to dispatch them more quickly and more authoritatively than a trial before an ordinary district court. Trial courts settle most cases with finality, either by promoting out-of-court settlements or by a judgment resulting from a formal trial. Some litigants, however, wish to appeal the results of their trial, believing that the judge made prejudicial errors that robbed them of victory, or seek to win a change in policy through an appellate decision. For such appeals, special appellate tribunals exist in every state and in the federal court system. Twenty-four states have intermediate appellate courts as well as supreme courts; the remainder have only supreme courts to hear appeals. The federal judiciary has eleven intermediate appellate courts as well as its Supreme Court. Where intermediate appellate courts exist, appeals usually must be directed to them before being taken to the appropriate supreme court. In almost every case the litigants have a right to one appeal. If they file their case properly, the appellate court is obliged to consider it, regardless of the legal merit of the appeal and the triviality or importance of the conflict. The intermediate appellate courts serve large portions of their state or, in the case of the federal courts of appeals, several states. Like federal district judges, the judges of appellate courts ordinarily visit several major cities of their area, although most of their business takes place at the headquarters city. Unlike trial courts, each 364

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appellate court operates with several judges. There is no jury; a panel of three or more judges decides. Unlike most trial judges, appellate judges give reasons for their decisions in a written opinion, which is often published for future reference by lawyers and other judges. Supreme courts make the final decision in the judicial process. State supreme courts render the final verdict for all cases involving state law; the federal Supreme Court renders the final judicial decision on all matters involving federal law or the federal Constitution. Some state supreme courts must hear every case appealed to them; other courts exercise a great deal of discretion in selecting the appeals that they will decide. The United States Supreme Court is the best-known example of the exercise of discretion. The Court receives requests to hear more than 5000 cases each year and dismisses nearly 90 percent of the appeals as unworthy of review. Among the state courts, Virginia and Louisiana are almost as selective. Courts like the Wisconsin Supreme Court hear almost all cases brought before them. Three or more justices staff each of the supreme courts. They hear cases as a group, although in some states the court divides into panels in the same way as most federal courts of appeals. In a few states – Missouri is an especially conspicuous example – the court parcels cases out to “commissioners,” who are appointed by the justices to act as their alternates. Although the decision of a commissioner does not become final until adopted by the court, in practice their decisions are seldom overruled. The courts sit at the capital or in another large city of the state. Unlike other courts that go on circuit as a convenience for litigants, supreme courts demand that litigants come to them. As a result, the lawyers practicing before supreme courts often constitute a rather specialized group, who handle cases for their less experienced colleagues when an appeal is necessary. 365

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The principal bridge between the state and federal courts is at the supreme-court level. When a case involves federal statutes or rights under the federal Constitution, the decision of a state supreme court may be appealed to the United State Supreme Court. The federal Supreme Court either affirms the state’s decision or reverses it. Reversals mean that the case is sent back to the state court system for the appropriate action – a dismissal, a rehearing, or a granting of the remedy that the litigant sought originally. Although constitutionally obliged to follow Supreme Court decisions, state courts in fact sometimes ignore them. They may simply react to the Court’s decision with disbelief and interpret it away, or they may rehear the case and come to the same result as before, but on slightly different grounds. It would therefore be a mistake to describe the relationship between the state courts and the United States Supreme Court as that of subordinates and superior. It is more accurate to characterize the Supreme Court’s position as being first among equals. In ordinary cases the Supreme Court’s judgment is respected. In highly controversial ones, its decision is sometimes evaded by legalisms; for example, the state court may distinguish between cases on the basis of highly specific fact situations. NOTES TO THE TEXT County – a political subdivision of a state, the power and importance of which varies from one state to another. A county is distinguishable from a city or Municipal Corporation, since a municipal corporation has a dual character, both public and private, while a county is established by the state and is considered to be an agency thereof. Through home rule, a municipality may make certain decisions on matters of local concern, while a county is controlled by the state and does the work of state administration. In the state of Louisiana, a state political subdivision is known as a parish. Comparable to counties, parishes have no independent 366

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existence apart from the state but possess only such authority as the state grants them. Justice of the peace – a local judicial officer having jurisdiction over minor criminal offenses and minor civil disputes, and authority to perform routine civil functions (such as administering oaths and performing marriage ceremonies). Felony – a serious crime usually punishable by imprisonment for more than one year or by death; examples include murder, rape, arson, and burglary. – Also termed major crime. Juvenile delinquency – antisocial behavior by a minor; especially, behavior that would be criminally punishable if the actor were an adult, but instead is usually punished by special laws pertaining only to minors. Probate court – a court with the power to declare wills valid or invalid, to oversee the administration of estates, and in some states to appoint guardians and approve the adoption of minors. – Also termed surrogate court; surrogate’s court; and (in a few states) orphan’s court. Administration of estates – in common-law jurisdictions, administration of an estate on death arises if the deceased is legally intestate, meaning they did not leave a will, or some assets are not disposed of by their will. Antitrust complaints – claims under antitrust law, a body of law designed to protect trade and commerce from restraints, monopolies, price-fixing, and price discrimination; the principle antitrust laws are the Sherman Act and the Clayton Act. Waive – to abandon, throw away, renounce, repudiate, or surrender a claim, a privilege, a right, or the opportunity to take advantage of some defect, irregularity, or wrong. To give up right or claim voluntarily. Constitutional Court – a court named or described and expressly protected by Constitution, or recognized by name or definite description in constitution in contrast to legislatively created courts. 367

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Commonly referred to as “Article III” courts in reference to U.S. Constitution. Regulatory (administrative) agency – independent government commission charged by the legislature with setting and enforcing standards for specific industries in the private sector. The concept was invented by the U.S. government in 1887, and regulatory agencies exist almost exclusively in the U.S. The theory is that a commission of experts on the industry being regulated is better equipped to regulate it than the legislature or executive departments. Designed to operate with a minimum of executive or legislative supervision, agencies have executive, legislative, and judicial functions, and their regulations have the force of law. Important regulatory agencies include worker’s compensation commissions, the Food and Drug Administration, OSHA, the Federal Communications Commission, the Securities and Exchange Commission, Federal Trade Commission. In addition to “agency,” such governmental bodies may be called commissions, corporations, boards, departments, or divisions. Quasi-legislative power (functions) – the power of an administrative agency to engage in rule-making. Board of Patent Appeals and Interferences – consists of Commissioner of Patents, the Deputy Commissioner, the Assistant Commissioners, and the examiners-in-chief whose responsibility is to review adverse decisions of examiners upon applications for patents and to determine priority and patentability of invention in interferences. Custom appeal – an appeal arising from a custom which implies habitual practice or course of action that characteristically is repeated in like circumstances; which is more or less widespread, and prevails within a geographical or sociological area. Ad hoc tribunals – courts of law established for a special purpose. Out-of-court settlement – the phrase is used with reference to agreements and transactions in regard to a pending suit which are arranged to take place between parties or their counsels privately 368

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and without being referred to the judge or court for authorization or approval. Thus, a case which is compromised, settled, and withdrawn by private agreement of the parties, after its institution, is said to be settled “out of court.” Legal merit – the elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points. Judicial discretion – the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant can not demand the act as a matter of right. – Also termed legal discretion. Reversal – an appellate court’s overturning of a lower court’s decision. Dismissal – termination of an action or claim without further hearing, and especially without trial of the issues involved. Rehearing – a second or subsequent hearing of a case or an appeal, usually held to review an error or omission in the first hearing. Remedy – the means of enforcing a right or preventing or redressing a wrong; legal or equitable relief. Evade – to get around by trickery. Legalism – strict adherence, or the principle of strict adherence, to law or prescription, especially to the letter rather than the spirit. LANGUAGE PRACTICE AND COMPREHENSION CHECK

USEFUL VOCABULARY to overlap, to guarantee, to waive, to staff, to deal with, to fit, to share, to hear, to maintain, to possess, to handle, to hold TASK I.  a) Place the following verbs into their proper contexts: overlap, guarantee, waive, staff, deal with, fit, share, hear, maintain, possess, handle, hold; check against the text: 369

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1. Each state ... a few sets of courts. 2. Some state courts ... minor civil and criminal matters. 3. Courts of minor jurisdiction may not ... jury trial. 4. Other trial courts ... more important matters. 5. Three or more justices ... each of the supreme courts. 6. Specialized courts ... somewhere between the major and minor courts. 7. Courts of this type ... family matters, such as divorce and juvenile delinquency. 8. Without exception, the jurisdiction of lower and higher courts ... . 9. In some states several counties ... a single court. 10. The Constitution ... the right to a jury trial for all criminal prosecutions. 11. Criminal defendants ... a jury trial in only 33 percent of the trials. 12. Both the state and the federal governments … trial courts. b) Use handle, overlaps, to deal with, staffed, held, hearing, hold, is waived, share, holding, fits, is hearing, maintained, possess, guarantees to complete the following sentences; translate the sentences, use GLOSSARY: 1. The “right of the people ... to petition the Government for a redress of grievances” concludes the First Amendment and … with rights to speech and assembly. 2. Trial courts of limited jurisdiction are used in some states to … preliminary matters in felony criminal cases. They often … arraignments, set bail, appoint attorneys for indigent defendants, and conduct preliminary examinations. The case is then transferred to a trial court of general jurisdiction for such matters as … pleas, … trials, and sentencing. 3. The Constitution … a person accused of a crime the right to a defense attorney. 370

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4. Most lawbreaking incidents are not that simple or clearcut, and police officers … and exercise wide discretion about whether to take someone into custody. 5. In United States v. Battiste, a circuit court case in 1835, Story instructed jurors in a criminal case that even under a general plea of not guilty, they could only determine facts, not law. Story conceded that every general issue mixed fact and law, but he … that the definition of law was for the judge, and fact for the jury. 6. Usually the defense chooses not to fight at this stage of the criminal process; in fact, a preliminary hearing … by the defense in the vast majority of cases. 7. Not only are the accused and his or her attorney absent from the proceedings, but usually they also have no idea which grand jury … the case or when. 8. The Judicial Panel on Multidistrict Litigation, … by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial. 9. At the pretrial conference, the attorneys also … with each other a list of witnesses and documents that are part of each case. 10. On appeal, the U.S. Supreme Court observed that a warrantless search, such as the one in the case before the court, is presumptively invalid unless it … into a recognized exception. One such exception is established in Terry v. Ohio (1968), where the Court … that a police officer may stop and briefly detain a person if the officer has reasonable suspicion that he was engaging or about to engage in criminal activity. 11. The National Industrial Recovery Act was one of the first pieces of New Deal legislation, proposed by the Roosevelt administration and approved by Congress, … the depression affecting the United States in the early 1930s. 371

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TASK II.  Make the following statements complete, use the text where necessary: 1. A justice of the peace is elected along with … . 2. In some states a professional magistrate or judge has been installed to … . 3. The case must be transferred to another court if … . 4. The litigant and his lawyer must pass through a maze of tribunals to … . 5. District courts hear criminal cases involving… . 6. Civil matters heard in federal courts range from…to … . 7. Although … , only criminal trials extensively use juries. 8. Although some controversy exists over … . 9. If … the chief judge of the circuit convenes the court. 10. If the losing party wishes to appeal … . 11. Some litigants wish to appeal … . 12. Before being taken to the appropriate supreme court appeals usually … . TASK III. Add court, courts, tribunal, tribunals, check against the text: a) ... may not hold jury trials; b) ... hear more important matters; c) ... were created to operate alongside existing state tribunals; d) ... has authority to review state court decisions that had ruled against a claim based on the federal Constitution, a treaty, or a federal statute; e) ... held that state courts were bound by Supreme Court decisions; f) ... retained most of their autonomy; g) ... handle parking and driving violations; h) ... consider monetary claims of less than $500; i) ... handle the administration of wills and estates; j) ... are much more simply organized; 372

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k) ... usually travels to the more important cities within its territory; l) … operate like constitutional courts except that that their jurisdiction is limited; m) … exist for custom and patent appeals and for claims against federal government; n) … is specially convened in exceptional circumstances; o) ... consists of three judges; p) ... settle most cases with finality; q) There are twelve ... in the federal judiciary; r) ... make the final decision in the judicial process; s) ... render the final verdict for all cases involving state law; t) ... is the best known example of the exercise of discretion; u) ... either affirms the state’s decision or reverses it; v) ... are constitutionally obliged to follow Supreme Court decisions. TASK IV.  Add the verbs from the text to describe the US judiciary: STATE COURTS

FEDERAL COURTS

1. Minor trial courts – criminal and civil matters: traffic fines, local ordinance violations, small sums of money; justices of the peace; no jury

94 district courts – criminal jurisdiction over: violations of federal law, taking a stolen car across state boundaries, illegal dealing in narcotics; civil jurisdiction: litigants – the citizens of two states, complicated antitrust complaints by the federal government; jury trial under the Constitution for both criminal and civil cases 373

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2. Major trial courts – more serious matters: felony trials, cases involving over $1000; professional judges; jury

Specialized courts – quasilegislative functions : custom and patent appeals, claims against the federal government; appellate jurisdiction

3. Specialized courts – family matters (divorce), juvenile delinquency

Ad hoc tribunals – civil jurisdiction, on a special application in exceptional circumstances; the chief judge of the circuit; a district judge; a judge of the court of appeals

4. Traffic courts – parking and driving violations 5. Small claim courts – monetary claims under $500 6. Probate courts – administration of wills and estates

13 appellate courts The U.S. Supreme Court

24 state appellate and supreme courts 36 only supreme courts TASK V.  Use the following headings State or Federal Courts; Federal Courts; State Courts to complete the table and to compare the jurisdiction of federal courts with that of state courts: 374

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1

2

3

Crimes under state legislation. State constitutional issues and cases involving state laws or regulations. Family law issues. Real property issues. Most private contract disputes (except those resolved under bankruptcy law). Most issues involving the regulation of trades and professions. Most professional malpractice issues. Most issues involving the internal governance of business associations such as partnerships and corporations. Most personal injury lawsuits. Most workers’ injury claims. Probate and inheritance matters. Most traffic violations and registration of motor vehicles

Crimes under statuses enacted by Congress. Most cases involving federal laws or regulations (tax, Social Security, broadcasting, civil rights). Matters involving interstate and international commerce, including airline and railroad regulation. Cases involving securities and commodities regulation, including takeover of publicly held corporations. Admiralty cases. International trade law matters. Patent, copyright, and other intellectual property issues. Cases involving rights under treaties, foreign states, and foreign nationals. State law disputes when “diversity of citizenship” exists. Bankruptcy matters. Disputes between states. Habeas corpus actions. Traffic violations and other misdemeanors occurring on certain federal property

Crimes punishable under both federal and state law. Federal constitutional issues. Certain civil rights claims. “Class action” cases. Environmental regulations. Certain disputes involving federal law

TASK VI.  Use the GLOSSARY to translate the following sentences with modal verbs: 1. In certain areas federal courts share jurisdiction with state courts. For example, both federal and state courts may decide 375

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cases involving parties who live in different states. State courts have exclusive jurisdiction over the vast majority of cases. 2. A party to a case may appeal as a matter of right to the circuit court of appeals (except that the government has no right of appeal in a criminal case if the verdict is “not guilty”). 3. The length of a sentence cannot be appealed so long as it is in the range prescribed. A verdict of not guilty may not be appealed by the government, but convicted defendants may appeal if they believe that the judge or jury made an improper legal determination. 4. At its discretion, the U.S. Supreme Court may hear appeals from the federal circuit courts of appeals as well as the highest state courts if the appeal involves the U.S. Constitution or federal law. 5. Once the judges are appointed their salaries cannot be reduced. Federal judges may only be removed from office through an impeachment process in which charges are made by the House of Representatives and a trial is conducted by the Senate. 6. An individual who cannot afford to hire a lawyer may attempt to obtain one through a local legal aid society. Persons accused of crimes who cannot afford a lawyer are represented by a court-appointed attorney or by federal or state public defender offices. 7. Although the judicial process in the courtroom may not focus separately and distinctly on each of the crime elements, they are at least implicit throughout the entire process of duly convicting the defendant of the criminal offense. 8. The federal judge may not actually participate in the process of plea bargaining; at the state level judges may play an active role in this process. 9. If a plea bargain has been made between the U.S. attorney and the defendant, the government may not renege [rini:ɡ] – go 376

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back – on the agreement. If the federal government does so, the federal district judge must withdraw the guilty plea. 10. The defendant must be admonished by the court of the consequences of a guilty plea (for example, the defendant waives all opportunities to change his or her mind at a later date), that the accused must be sane, and that, as one state puts it, “It must plainly appear that the defendant is uninfluenced by any consideration of fear or by any persuasion, or delusive hope of pardon prompting him to confess his guilt.” TASK VII. Add both, either … or; neither … nor; nor, either, neither to complete and translate the following sentences; use GLOSSARY: 1. If the jury has not reached a decision by nightfall, the jurors are sent home with firm instructions … to discuss the case with others … read about the case in the newspapers. 2. Still, at … state and federal levels the role of the jury remains basically passive. 3. Many of the extensive due process guarantees that a defendant has in a criminal trial do not apply in a civil proceeding. For example, … party is constitutionally entitled to counsel. 4. In civil cases … the plaintiff … the defendant is constitutionally entitled to the services of an attorney. 5. A guilty defendant may be punished by a fine, imprisonment, or … . 6. In some instances the same act may give rise to … a criminal proceeding and a civil suit. 7. While the 50 different states have inherent police power, … the federal … local governments have this authority. The federal government must rely upon its commerce clause power to perform police power-type functions, while local governments may receive this authority from their respective states. 377

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8. Although interest groups are probably better known for their attempts to influence legislative and executive branch decisions, they also pursue their policy goals in the courts. Some groups have found the judicial branch to be more receptive to their efforts than … of the other two branches of government. 9. Civil cases far outnumber criminal cases in … the federal and state courts, although they generally do not attract the same media attention as criminal trials. 10. Amicus curiae briefs are often filed in an attempt to persuade an appellate court to … grant … deny review of a lowercourt decision. 11. The Speedy Trial Act of 1974 mandated time limits, ultimately reaching 100 days, within which criminal charges must … be brought to trial … dismissed. 12. The arbitration process is similar to going to court. After listening to … parties in a dispute, an impartial person called an arbitrator decides how the controversy should be resolved. 13. “An impartial jury” means that the prospective jurors must not be prejudiced one way or the other before the trial begins. For example, a potential juror may not be a friend or relative of the prosecutor or the crime victim; … may someone serve who believes that anyone of the defendant’s race or ethnic ancestry is “probably the criminal type.” 14. Jurors are ordinarily not permitted to ask questions … of the witnesses … of the judge, … are they allowed to take notes of the proceedings. 15. Jurisdictional requirements are satisfied when the court has legal authority over … the subject matter and the person of the defendant. 16. First and foremost, the judge is expected to play the part of a disinterested party whose primary job is to see to it that … sides are allowed to present their cases as fully as possible within the confines of the law. 378

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TEXT 3 CONSEQUENCES OF THE DUAL COURT SYSTEM The existence of the dual system of courts is not without substantive impact. It supplies alternative tribunals to which cases may be brought. The Southern black, for instance, may litigate to protect his civil rights in either a state or a federal court. As long as Southern legislatures ignored the desires of black citizens and as long as blacks could not vote for state judges, they were likely to prefer federal courts, which proved to be more receptive to their claims. Likewise, Southern whites were apt to go to a state court, where they were likely to have more influence. A second consequence of the dual court system is that the interpretation of legal doctrine differs from state to state. Although several states may have identical or similar statutes and although most state courts operate in the same common-law tradition, none of them interprets the laws or their common-law heritage in exactly the same way. To some extent the resulting variation of law reflects different social conditions and different attitudes by the public toward similar problems. It may also represent experimentation by certain state courts in an effort to develop more effective ways of dealing with problems. Mostly, however, the diversity of legal doctrine is, simply the consequence of a fragmented court system, representing neither conscious experimentation nor an explicit adaptation to peculiar social conditions. Consequently it is impossible to summarize the state of the law in the United States in brief form. What the law says about a particular matter depends not only upon the whims of fifty-one legislatures but also on the accidental development of judicial interpretation in fifty-one judicial systems. 379

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The dual-court structure also provides a weapon for both the federal and state governments in their struggle to expand or retain their functions. State governments use their courts to resist what they regard as federal encroachments by asking state courts not to honor federal decisions. In turn, the federal government promotes litigation in its courts to extend the scope of its power. Thus, in recent years Southern courts have been involved not only in the desegregation dispute but also in the larger issue of what powers each governmental level possesses. State courts in both the North and the South have on occasion sought to deny federal jurisdiction over a case to protect their state’s sovereignty. NOTES TO THE TEXT Legal doctrine – a rule, principle, theory or tenet of the law as e.g. abstention doctrine; clean hands doctrine, etc. Common law – the body of law derived from judicial decisions and opinions, rather than from statutes or constitutions; The body of law based on the English legal system as distinct from a civil-law system. All states except Louisiana have the common law as their legal system. Judicial interpretation – the art or process of discovering and ascertaining the meaning of a statute, will, contract, or other written document in court. Desegregation – the process of ending segregation (separation) of the races, especially in public places. Desegregation may be achieved through protest, such as a sit-in demonstration like those used in the South during the civil rights movement, or, if the segregation stems from a law, it is necessary to overturn that law in order for segregation to cease. School desegregation began as a result of the Supreme Court ruling in Brown v. Board of Education of Topeka (1954).

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY impact, diversity, whim, receptive, apt, accidental, to expand, to retain, to extend TASK I.  a) Match the above words to their definitions: 1) to increase in extent, size, scope, or volume; to stretch out; spread, broaden, grow, develop, enlarge; 2) to enlarge the area, scope, influence, or range of; enlarge, stretch out, spread out; 3) to keep possession of; to continue to use, practice, etc.; keep on; 4) able to apprehend quickly; tending to receive new ideas or suggestions favorably; 5) occurring by chance, unexpectedly, or unintentionally; nonessential; incidental; 6) likely; probably or apparently destined (usually followed by an infinitive); 7) the impression made by an idea, cultural movement, social group, etc.; effect; 8) inconformity, multiplicity, variety; 9) an odd or capricious idea, notion, or desire; a sudden or freakish fancy. b) Add the words from ACTIVE VOCABULARY to complete the following sentences: 1. In the past few decades, the U.S. judiciary … to include more women and minorities. 2. … their positions, the state trial court judges generally have only to keep the electorate satisfied. 3. The Constitution … federal jurisdiction only to certain kinds of disputes. 381

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4. The U.S. Constitution (adopted 1787, ratified 1788) began a gradual and at times hotly contested shift of power and legal authority away from the states and toward the federal government. Still, even today states … substantial authority. 5. The Fourteenth Amendment (1868) greatly … the federal courts’ ability to invalidate state laws. 6. Criminal law remained state or local law, and within it the jury … much power. 7. The criminal process begins when a law is first broken and … through the arrest, indictment, trial, and appeal. 8. When the victim of a crime is in a continuing relationship with the criminal, the police often decline to make an arrest. Such relationships include landlord and tenant, one neighbor and another, and, until recently, husband and wife. In this last case, however, heightened awareness of domestic violence has had a significant … on police procedures. 9. … jurisdiction allows each party to avoid litigating his case before the courts of his adversary’s state. 10. As a technical term, ‘act of God’ is untheological. It is an operation of ‘natural forces’ and this is … to be confusing in that it might imply positive intervention of the deity. This (at any rate in common understanding) is apparent in exceptionally severe snowfalls, thunderstorms and gales. 11. “Negligence in law ranges from inadvertence that is hardly more than … to sinful disregard of the safety of others.” Patrick Devlin, The Enforcement of Morals (1968). 12. The Constitution … federal jurisdiction only to certain kinds of disputes. Article III, Section 2 lists cases involving a question of federal law and … cases, or disputes between citizens of two different states. 13. Because the other two branches of government are sometimes not … to the demands of certain segments of society, 382

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the only alternative for those individuals or groups is to turn to the courts. 14. The increasing use of advertising by lawyers has had a profound … on the legal profession. 15. The founders considered the legislative branch to be critical to republican freedoms. It would give the people a voice in controlling the government, yet also check the … of a capricious populace through its structure. c) Use the GLOSSARY to translate the following passages: 1. Only in recent years has the Supreme Court again been receptive to curtailing congressional power over economic life and to defending the rights of individual property owners. 2. Judicial scholar Herbert Jacob summarizes the breadth of the civil law field in Justice in America: “Every broken agreement, every sale that leaves a dissatisfied customer, every uncollected debt, every dispute with a government agency, every libel and slander, every accidental injury, every marital breakup, and every death may give rise to a civil proceeding.” 3. For the next two decades, the Court struck down some pieces of labor legislation and upheld others, depending on whether it deemed the government’s use of police power as “reasonable.” It was most apt to find legislation “reasonable” if it was seen to protect public health, safety, or morals rather than individual workers. 4. President George W. Bush also has shown a commitment to racial and gender diversity. Almost one-third of his district court appointments, for example, have been “nontraditional” – women and minorities. 5. The ultimate importance of the Supreme Court’s decisions depends primarily on their impact on American society as a whole. A few policies that have had significant effects are in the areas of racial equality, criminal due process, and abortion. 383

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6. Another reason is that some scholars express agreement with the justices, arguing that Court members cannot follow their own personal preferences, the whims of the public, or other non-legally relevant factors “if they are to have the continued respect of their colleagues, the wider legal community, citizens, and leaders.” Rather, they “must be principled in their decisionmaking process.” 7. Both Plato and Aristotle taught that there are certain standards (of justice, virtue, goodness, etc.) that are transcendent and objective, in that the substance of such standards are not reducible to the mere opinions of humans, but, rather, exist in a realm of truth more enduring and reliable than the fads (trend, craze, fashion) or whims of the moment. 8. By the 1960s, the curriculum in some law schools had been expanded to include social concerns such as civil rights law and law-and-poverty issues. International law courses also became available. 9. Another good example of Marshall’s use of the Court to expand the federal government’s powers came in McCulloch v. Maryland (1819), in which the chief justice held that the Constitution permitted Congress to establish a national bank. 10. In Chief Justice Marshall’s words, “our complex system presents the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union.” 11. Congress has permitted judges to go on senior status instead of accepting full retirement. In exchange for a reduced caseload they are permitted to retain their office and staff and – equally important – the prestige and self-respect of being an active judge. 384

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12. In the closing days of President John Adams’s administration in 1801, Congress eliminated circuit riding by the Supreme Court justices, authorized the appointment of 16 new circuit judges, and greatly extended the jurisdiction of the lower courts. 13. Although some cases are later taken to a court of appeals or perhaps even to the Supreme Court, most federal cases never move beyond the U.S. trial courts. In terms of sheer numbers of cases handled, the district courts are the workhorses of the federal judiciary. However, their importance extends beyond simply disposing of a large number of cases. 14. The U.S. Constitution states that “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made under their Authority” (Article III, Section 2). TASK II.  Compare the meanings of alternative, identical, different, various, similar, same, peculiar: • Alternative (of two or more things) – that may be used, had done, etc., instead of another, other (e.g. alternative road); different from what is usual or traditional(e.g. source of energy); not based on or not accepting the established standards of ordinary society (e.g. alternative theatre, art). • Identical – exactly alike, the same. • COMPARE: same and similar. Same suggests things that are completely unchanged or exactly alike. Similar suggests things that are alike in most ways, but not in every detail. • Different (from, than, to) – unlike; not the same or of the same kind; separate, other, distinct; various, several. • COMPARE: different and various. Both mean “not the same” but various is used about several things that are not the same; (e.g. there are various/numerous/many reasons; 385

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this time he gave different reasons for his decision). Different from, different to – BrE. • Peculiar – strange or unusual, especially in a troubling or displeasing way; belonging only to a particular person, place, time, etc.; exclusive. b) Use the adjectives alternative, identical, different, various, similar, same, peculiar in the following sentences: 1. Thirty-three proposed amendments to the Constitution have been submitted to the States pursuant to Article V, all of them upon the vote of the requisite majorities in Congress and none, of course, by the … convention method. 2. The Court seems to assume that “obscenity” is a … genus of “speech and press,” which is as distinct, recognizable, and classifiable as poison ivy is among other plants. 3. Historically, Congress has provided for … service for men who had religious scruples against participating in either combat activities or in all forms of military activities. 4. The presentation of the case for the defense is … in style and format to that of the prosecution. 5. The witnesses are questioned by the defense attorney in the … style as those in the prosecution case. 6. The function of making laws is … to Congress, and the Executive cannot exercise that function to any degree. 7. In rural areas the judge may ride circuit and hold court in … parts of the territory according to a fixed schedule. 8. Many judicial decisions are actually implemented by the … departments, agencies, bureaus, and commissions of the executive branch. 9. When a State has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to … treatment with domestic corporations. 386

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10. Washington State’s Supreme Court, like other state courts of last resort, follows procedures … to those of the U.S. Supreme Court. 11. The equal protection clause does not require … taxes upon all foreign and domestic corporations in every case. 12. The courts of appeals do not have the … degree of discretion as the Supreme Court to decide whether to accept a case. 13. After the judicial nomination is announced to the public, … interest groups that believe they have a stake in the appointment may lobby for or against the candidate. 14. Arbitrators are drawn from all … types of professional backgrounds and frequently volunteer their time to help people resolve their problems. c) Use the GLOSSARY to translate the following passages: 1. Diversity of citizenship disputes are disputes between parties from different states or between an American citizen and a foreign country or citizen. 2. Each federal district court was to be presided over by a single judge who resided in the district. As soon as this became known, President Washington began receiving letters from individuals desiring appointment to the various judgeships. 3. Congress gave new meaning to the term “speedy” when it passed the Speedy Trial Act of 1974. The act mandated time limits, ultimately reaching 100 days, within which criminal charges must either be brought to trial or dismissed. Most states have similar measures on the statute books, although the precise time period varies from one jurisdiction to another. 4. Occasionally, different three-judge panels within the same circuit may reach conflicting decisions in similar cases. To resolve such conflicts and to promote circuit unanimity, 387

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federal statutes provide for an “en banc” (Old French for high seat) procedure in which all the circuit’s judges sit together on a panel and decide a case. 5. The Supreme Court’s role as a policy maker derives from the fact that it interprets the law, and the same holds true for the courts of appeals. 6. Because it has never successfully been invoked, the convention method of amendment is surrounded by a lengthy list of questions. When and how is a convention to be convened? Must the applications of the requisite number of States be identical or ask for substantially the same amendment or merely deal with the same subject matter? 7. Because the Supreme Court, at least today, is so selective about the cases it decides, it probably would not take a case for which clear precedent existed. Even in the past, two cases that were precisely identical probably would not be accepted. 8. Just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. 9. The House’s vote to impeach President Clinton arguably amounted to an affirmative answer, but the Senate’s acquittal leaves the matter somewhat unsettled. The almost evenly divided Senate vote to acquit meant that there was no consensus that removal was justified on the alternative theory that the alleged perjury and obstruction of justice so damaged the judiciary as to constitute an impeachable “offense against the state.” 10. Texas’ filing fee system, which imposes on candidates the costs of the primary election operation and affords no alternative opportunity for candidates unable to pay the fees to obtain access to the ballot, violates the equal protection clause. 388

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TASK III.  Read the text a) to explain: diversity jurisdiction, citizenship; b) to compare residence and domicile of corporations and individuals: A phrase used with reference to the jurisdiction of the federal courts which, under the U.S. Constitution, Art. III, § 2, extends to cases between citizens of different states designating the condition existing when the party on one side of a lawsuit is a citizen of one state and the party on the other side is a citizen of another state, or between a citizen of a state and an alien. The requisite jurisdictional amount must, in addition, be met. Diversity of citizenship is one of the factors that will allow a federal district court to exercise its authority to hear a lawsuit. This authority is called diversity jurisdiction. It means that a case involving questions that must be answered according to state laws may be heard in federal court if the parties on the two sides of the case are from different states. No matter how many parties are involved in a lawsuit, there must be complete diversity in order for the federal court to exercise this type of authority. If a single plaintiff is a citizen of the same state as any defendant, there is no diversity and the case must be pursued in a state court. Being a citizen of a state is something more than simply owning property or being physically present within the state. Citizenship means that the individual has a residence in the state and intends to have that residence as his or her present home. Residence plus this intent makes that place the individual’s domicile, and a party can have only one domicile at a time. Citizenship does not mean that the individual must swear that he or she never intends to move, but the residence and the intent to consider it home are essential. Students, prisoners, and service personnel can establish a domicile in a state even though they are living in it involuntarily or temporarily. 389

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Corporations are citizens of the state in which they are incorporated and also of the state where they maintain their principal place of business. This citizenship in two places has the effect of narrowing the number of cases that qualify for a federal court’s diversity jurisdiction because a corporation’s citizenship is not diverse from the citizenship of anyone else in either of those two states. The citizenship of each party must be determined as of the time the lawsuit is commenced. A part’s domicile at the time of the events that give rise to the Cause of Action or a change of domicile during the course of proceedings does not affect the court’s jurisdiction. This rule, of course, gives a person contemplating a lawsuit the opportunity to change his or her domicile just before serving legal papers that start an action. This tactic has been challenged on a few occasions on the ground that it violates another federal law that prohibits collusion to create federal jurisdiction. Generally, the courts have ruled that a plaintiff’s motives in moving to a new state are not determinative, and the only question is whether in fact the plaintiff’s domicile is different from that of the defendants at the time the lawsuit begins. TASK IV.  Use verbs in passive; discuss the origin and purposes of diversity jurisdiction and its importance: The right of an individual to take his or her case into a federal court 1) … assure by Article III, § 2 of the U.S. Constitution. This provision extends the federal judicial power to controversies between the citizen of a state and the government of a different state, citizens of a different state, or between a state or its citizens and a foreign government or its citizens. It 2) … put into effect by a statute that limits federal diversity jurisdiction to cases involving a dispute worth more than $10,000. This minimum 3) … intend to keep small cases 390

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from clogging the calendars of federal courts. Cases worth less than $10,000 must 4) … bring in a state court even though diversity of the parties’ citizenship otherwise would entitle them to 5) … bring in federal court. The origin and purposes of federal diversity jurisdiction 6) … long debate. It 7) … create when the Constitution 8) … first adopt, a time when loyalty to one’s state was usually stronger than feelings for the United States. It 9) … undoubtedly intend to balance national purposes with the independence of the states. Chief Justice John Marshall of the Supreme Court wrote in Bank of United States v. Deveaux (1809): However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between citizens of different states. Some scholars believe that the opportunity to take business and commercial disputes into an impartial federal court helped to encourage investment in the developing South and West. People from the industrialized Northeast felt more secure when their financial transactions in other states were not necessarily at the mercy of local prejudices. Even if diversity jurisdiction did help the economic growth of the United States, many people question whether it continues to be useful. Because these cases require substantial investments of time and energy by the federal judiciary in cases that arise under state law, proposals to curtail or abolish diversity jurisdiction 10) … introduce repeatedly in Congress since the 1920s. None of the proposals 11) … adopt, however.

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TEXT 4 THE ADMINISTRATIVE ORGANIZATION OF COURTS Another peculiarity of the American judiciary is that within each state courts are almost completely independent of each other. Partly this is a consequence of the development of the judiciary as a separate branch of government, independent of the executive. In other nations, the judiciary is controlled by the ministry of justice or the ministry of interior. In the United States no executive department controls the courts either at the federal or at the state level. Until recently each court in the nation governed itself. Each one formulated the rules under which cases would be heard; each hired its own auxiliary personnel; each judge determined independently the days and the hours to hold court. No one had responsibility for the operation of the court system as a whole. No one collected statistics to determine which courts were overburdened and which were left unused. No one had the authority to transfer a judge from one court to another to alleviate delay in hearing trials. No organization existed through which judges could compare their experiences, exchange ideas, or learn of new developments in the conducting of court. The problem was well described by an observer of the Minnesota court system: It is important to know that constitutionally the legislature can do a great deal to reorganize the local courts, and that the state supreme court by overruling local court decisions can exercise pressure in the direction of statewide uniformity of decisions. It is also important to know, however, that neither the legislature by passing laws of statewide application, nor the supreme court through decisions in particular cases can actually bring about complete uniformity of court practices and decisions. Overruled 392

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in one decision a local judge may make just as unorthodox a decision in the next case. The higher courts can again overrule him and give him a verbal spanking, but they cannot otherwise discipline and they certainly cannot remove a lower judge just because his decisions are wrong. In this respect the state supreme court is in an even weaker position than, for example, the state tax commissioner in his efforts to bring about uniformity in the assessment of property for taxation. The description is apt, not only for Minnesota but for most of the nation. The country possesses several groups of courts that remain administratively unrelated to each other. Since 1922 the federal courts have operated under minimal administrative supervision. Although their authority comes from legislative enactments, judicial administrators work independently of the legislative or executive branches. In the federal court system an administrator of the courts operates under the supervision of the Chief Justice of the United States. He collects statistics and other information to guide the work of the courts. Most authority, however, rests with the Supreme Court (which may promulgate rules for the entire federal court system), with conferences of judges, who meet at various levels, and with the chief judge of the court of appeals in each circuit, who has some authority over the transfer of judges from one district (or circuit) to another. Compared to an administrative agency’s budgetary, personnel, and policy controls, the supervision over federal courts is quite rudimentary. Most of the states have adopted similar managerial controls; in 2006 all had court administrative offices. Most of these operated under the supervision of the state’s supreme court or its chief justice. Many of these offices were quite small and possessed only a skeletal staff. However, in a few states, the administrative office has become a sizeable agency, its director was a wellpaid official. Yet despite the growth of these offices, only a 393

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handful of states compile statistical reports containing enough information to be useful in supervising court operations. In a few states effective administrative controls have been imposed over all the courts. In New Jersey, for instance, the chief justice is head of the judicial branch. Each judge is required to hold court during specified days and hours. He must submit weekly reports on the number of cases heard, the decisions rendered, and other pertinent matters. By rule of the supreme court, judges may not withhold a decision on a case for more than two weeks; if they do, they must justify their delay. When necessary, judges may be shifted from one court to another to help alleviate long delays or unusually burdened court dockets. In New York, Maryland, Missouri, California, Louisiana, and Wisconsin, courts operate under somewhat less stringent administrative controls, but some manner of control exists. In each a court administrator (the post has various titles) operates under the supervision of the supreme court to collect information and formulate administrative rules to govern the work of the courts. However, even vigorous chief judges and court administrators meet strong resistance from trial judges, who insist on their autonomy. In New York a trial judge had this to say of the chief administrative judge and his assistant: Murtaugh and Vetrano are my colleagues, not my bosses. They have no right to question my findings on facts or why I impose what I think are fair fines and proper sentences. If they don’t like what we do, then let them be the only two judges in the court and let them sit on every case and make the decisions. Several states also possess “judicial councils,” which ordinarily consist of judges, lawyers, and laymen who meet to consider judicial reforms that require legislative action. Once a council determines a course of action, it proposes a bill and lobbies for it before the legislature. In Wisconsin the council was successful in convincing the legislature to restructure the 394

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entire court system so that most overlapping jurisdictions were eliminated. Quite typically, however, the Wisconsin council was not strong enough to counter the opposition of the justice of the peace lobby: its proposals to eliminate justices of the peace met defeat in the legislature. Most states, however, do not impose effective administrative controls over their courts. In most, each judge remains sovereign over his own courtroom. He is free to adopt his own local rules of procedure to supplement the standard ones for the state. He may hold court during any hours he pleases. He appoints his own assistants, thereby preserving in many localities the greatest source of patronage remaining on the political scene. Moreover, each judge is responsible only for the cases arising in his jurisdiction. If a neighboring judge is overburdened, there is sometimes no way to temporarily transfer a judge from one area to another to assist him. In most states the judiciary represents an extreme case of the fragmentation and autonomy that in more moderate form is so characteristic of American government. Whereas cities, counties, and special districts must conform to administrative controls in many of their activities, courts are left more independent. NOTES TO THE TEXT Assessment of property for taxation – the listing and valuation of property for the purpose of apportioning a tax upon it, either according to value alone or in proportion to benefit received. Chief justice – the presiding, most senior, or principle judge of a court. Circuit – judicial divisions of the United States (e.g. thirteen judicial circuits wherein U.S. Courts of Appeal sit). Court administrator – generally a non-judicial officer whose responsibility is the administration of the courts as to budgets, juries, judicial assignments, calendars and non-judicial personnel. 395

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY annual, auxiliary, pertinent, stringent, unorthodox, vigorous, to alleviate, to eliminate, to impose, to remove, to promulgate, to submit, to render, to hold, to bring about TASK I.  a) Match the verbs 1) to hold; 2) to alleviate; 3) to submit; 4) to eliminate; 5) to impose; 6) to render; 7) to remove; 8) to promulgate; 9) to bring about to their definitions: a) to cut, to reduce; b) to publish; to announce officially; to make public as important as obligatory; c) to present for approval or consideration; d) to pass down, deliver, return; “render a verdict;” “deliver a judgment;” e) to conduct; carry on, possess, occupy, decide legally; f) to dismiss, to transfer; g) to establish or apply as compulsory; levy; h) to remove, take out; get rid of; i) to cause to happen. b) Match the adjectives 1) annual; 2) auxiliary; 3) pertinent; 4) stringent; 5) unorthodox; 6) vigorous to their definitions: a) applicable; relevant; b) of, for, or pertaining to a year, yearly; c) giving assistance or support; helping; acting as a subsidiary; supplementary; d) imposing rigorous standards of performance; severe; e) breaking with convention or tradition; unconventional, unusual, irregular; f) strong or active; robust; energetic; forceful; powerful in action or effect. 396

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TASK II.  Add the verbs to alleviate, to eliminate, to impose, to remove, to promulgate, to submit, to render, to hold, to bring about in the proper tense form to complete the following sentences: 1. In deciding which cases can be disposed of without oral argument, the courts of appeals increasingly rely on law clerks or staff attorneys. These court personnel read petitions and briefs and then … recommendations to the judges. As a result, many cases are disposed of without reaching the oral argument stage. 2. Magistrate judges are appointed by the judges of the district court for eight-year terms of office, although they can … before the expiration of the term for “good cause.” 3. Amicus curiae or “Friend of the court” is a person (or group), not a party to a case, who … views (usually in the form of written briefs) about how the case should be decided. 4. The federal courts started a process of self-examination under William Howard Taft, the only person in American history to … the offices of both president and chief justice of the United States Supreme Court. 5. At issue in Schechter was a delegation to the President of authority to … codes of fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. 6. The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the Assize of Clarendon … by Henry II. 7. Legislators sometimes … time standards for processing cases or place pressure on courts to be more efficient. 8. The state legislatures carefully watched the courts and in some instances … judges or abolished specific courts because of unpopular decisions. 9. Once the verdict has been reached, a dissatisfied party may pursue a variety of tactics. The losing party may file a motion 397

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for judgment notwithstanding the verdict. This type of motion is granted when the judge decides that reasonable persons could not have … the verdict the jury reached. 10. The Cabinet, as we know it today, that is to say, the Cabinet meeting, was … solely on the initiative of the first President, and may be dispensed with on presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings (the accessories that normally accompany some activity). 11. Most like consolidation into one courthouse and convenience of one court for lawyers and litigants. Unification … a lot of abuses and inefficiencies, such as a full-time probate judge who was underworked. Now it is a part-time docket. 12. Not only may officers search areas within the arrestee’s immediate control in order to … any threat posed by the arrestee, but they may extend that search if there may be a threat posed by “unseen third parties in the house.” b) Use the GLOSSARY to translate the following passages: 1. In Kilbourn v. Thompson, Members of the House of Representatives were held immune in a suit for false imprisonment brought about by a vote of the Members on a resolution charging contempt of one of its committees and under which the plaintiff was arrested and detained, even though the Court found that the contempt was wrongly voted. 2. A state court administrator serves the state supreme court, the chief justice, or a judicial council as the principal administrative officer of the state court system. In the federal system, the head of the USAOC (the Administrative Office of the United States Court) holds a comparable position and answers to the Judicial Conference of the United States. Court administrators bring professional knowledge and experience to 398

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the judiciary and relieve the administrative burdens of judges so that they can devote more time to adjudication. 3. U.S. attorneys are appointed by the president and confirmed by the Senate. Nominees must reside in the district to which they are appointed and must be lawyers. They serve a formal term of four years but can be reappointed indefinitely or removed at the president’s discretion. 4. Sometimes, legislators permitted political considerations to enter into their procedural and administrative legislation, and sometimes they imposed rigid legal constraints that inhibited effective management of court operations. 5. Actus reus is the material element of the crime, which may be the commission of a forbidden action (for example, robbery) or the failure to perform a required action (for example, to stop and render aid to a motor vehicle accident victim). 6. Depending on the model and the issue, “ADR (alternative dispute resolution) processes may be voluntary or mandatory; they may be binding or allow appeals from decisions rendered; and they may be consensual, adjudicatory, or some hybrid of the two.” Some commonly used ADR processes are mediation, arbitration, neutral fact-finding, mini-trial and summary jury trial (without the parties present). 7. Consolidation of courts will eliminate access by public: traffic, minor misdemeanor will be dealt with bureaucratically because all attention will go to felonies and “big-time” civil suits. Lower court currently does hold long trials, for example, in a domestic battery case. Will that still be possible if unified court – will drive out possibility to get a trial in a minor case, including traffic? No doubt, this is part of a move to eliminate right to trial for minor misdemeanors and end judicial review for traffic cases. The bottom line: the proposal eliminates “Ordinary Joe or Jane’s” contact with courts and will replace with administrative review by bureaucrats in DMV (Department of Motor Vehicles). 399

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8. Trial courts should be open and accessible. Because location, physical structure, procedures, and the responsiveness of its personnel affect accessibility, a trial court should eliminate unnecessary barriers to its services. Barriers can be caused by deficiencies in language or in the knowledge of individuals. Additionally, psychological barriers can be created by unduly complicated and intimidating court procedures. 9. The Supreme Court requires that, “when the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” It must demonstrate that the recited harms are real, not merely conjectural (speculative, supposed, hypothetical), and that the regulation will in fact alleviate these harms in a direct and material way.” 10. The Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves to refuse to follow erroneous precedents; otherwise mistakes in interpreting the Constitution are extremely difficult to alleviate. 11. Although agencies possess only powers that Congress delegates by statute, these can be quite substantial. They can include the authority to promulgate rules that define with precision more general statutory terms. TASK III.  a) Add the adjectives annual, auxiliary, pertinent, stringent, unorthodox, vigorous to complete the following sentences: 1. Standards must be “at least as …” for warrantless arrest as for obtaining warrant. 2. Prior to their visits and during interviews at each site, they collected information on court staffing and budgets and any documents that seemed … to their inquiry. 400

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3. Here, the Court seeks to distinguish secular or philosophical beliefs from religious ones. But that is not an easy task. What if one’s religious beliefs are quite … , involving the belief that the supreme being is some ultimate cosmic force that created the universe in a big bang billions of years ago. Is this a secular or spiritual belief? 4. The most … protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. 5. “The Court’s enforcement of separation of powers needs to become considerably more … than it has been in the recent past.” – Charles Black, Jr., Structure and Relationship in Constitutional Law (1969). 6. Federal criminal jurisdiction based on the commerce power, and frequently combined with the postal power, has historically been an … criminal jurisdiction. 7. The chief judge is elected by the other full judges by an … vote and usually serves for two years. b) Use the GLOSSARY to translate the following passages: 1. Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise, Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. 2. Commenting in The Federalist on the requirement that state officers, as well as members of the state legislatures, shall be bound by oath or affirmation to support the Constitution, Hamilton wrote: “Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the 401

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operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.” 3. Charles Warren (1868–1954), a leading student of the Supreme Court, said in The Supreme Court in United States History: “Nothing in the Court’s history is more striking than the fact that while its significant and necessary place in the Federal form of Government has always been recognized by thoughtful and patriotic men, nevertheless, no branch of the Government and no institution under the Constitution has sustained more continuous attack or reached its present position after more vigorous opposition.” 4. With the large volume of cases making plea bargaining the rule, the sentence often bears no relation to the specific facts of the case, to the correctional needs of the criminal, or to society’s legitimate interest in vigorous prosecution of the case. Charles Austin Beard (1874–1948) was an influential historian and scholar who wrote numerous books in the early half of the 20th century. His most important book is An Economic Interpretation of the Constitution of the United States, which argued that the Constitution was an antidemocratic document meant to protect the economic interests of the wealthy, including those who wrote and signed it. Beard was a champion of the progressive school of history, writing during an era of tremendous economic growth and industrial development. His unorthodox economic interpretations of key historical eras and political events questioned traditional modes of writing and have in turn been challenged by numerous academicians over time. Beard himself acknowledged that his research was fragmentary in nature but contended that it was “designed to suggest new lines of historical research rather than to treat the subject in an exhaustive fashion.” Even so, his historical interpretation that the Constitution was an economic 402

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document has survived criticism and has earned a place in the literature as an interesting, if not unorthodox, perspective on the Founding Fathers. 5. Another major difference is that the standard of proof used in civil cases is a preponderance of the evidence, not the more stringent beyond-a-reasonable-doubt standard used in criminal cases. A preponderance of the evidence is generally taken to mean that there is sufficient evidence to overcome doubt or speculation. It clearly means that less proof is required in civil cases than in criminal cases. 6. A witness appearing before a congressional committee is entitled to require of the committee a demonstration of its authority to inquire with regard to his activities and a showing that the questions asked of him are pertinent to the committee’s area of inquiry. 7. Intensive analysis of the record by circuit judges prior to oral argument is not always possible. They seldom have time to do more than scan pertinent portions of the record called to their attention by law clerks. 8. All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 9. Crosskey did, in fact, develop “a specialized dictionary of the eighteenth-century word-usages, and political and legal ideas.” He believed that such a work was “needed for a true understanding of the Constitution.” But some scholars have been skeptical of the understandings to which it led him, as many were highly “unorthodox.” Some applauded Crosskey’s conclusions. 403

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TASK IV.  Use the following opening phrases to describe the Minnesota court system: 1. The state legislature possesses legal powers to reform … . 2. The state supreme court can overrule … . 3. It controls the uniformity of … . 4. However, neither the legislature nor the supreme court can bring about … . 5. Local judges exercise a great deal of discretion in … . 6. The higher courts can not discipline or remove … . TASK V.  Add the subjects to complete the following statements; check against the text: 1. … is controlled by the ministry of justice or the ministry of interior. 2. … governed itself until recently. 3. … determined the days and hours to hold court. 4. … can do a great deal to reorganize the local courts. 5. … can exercise pressure in the direction of statewide uniformity of decisions. 6. … can not bring about complete uniformity of court practices and decision. 7. … remain administratively unrelated to each other. 8. … have operated under minimal administrative supervision. 9. … collects statistics and other information. 10. … promulgates rules for the entire federal court system. 11. … has some authority over the transfer of judges from one district (or circuit) to another. 12. … have been imposed over all the courts. 13. … must submit weekly reports on the number of cases heard, the decisions rendered, and other pertinent matters. 14. … meet strong resistance from trial judges. 15. … have no right to question the findings on the facts. 16. … insist on their autonomy. 404

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17. … meet to consider judicial reforms that require legislative action. 18. … proposes a bill and lobbies for it before the legislature. 19. … met defeat in the legislature. 20. … remains sovereign over his own court room. TASK VI.  a) Read the text to describe the organizational structure of state courts in terms of their jurisdiction: Unlike the federal courts, which had achieved a highly compact organizational structure before 1900, state courts at the turn of the century had a very chaotic organizational structure. This structure was created to serve a variety of local needs, not to conform to theories of organizational coherence. Eventually states created trial courts of uniform statewide jurisdiction to hear cases arising under state law, but these courts were superimposed on (placed over) a mixture of local courts of varying jurisdiction and names. There were often three or more tiers of trial courts, with some trial courts hearing appeals from other trial courts either in a formal appellate process or by conducting a new trial. For example, as late as 1959, Connecticut, a small and compact state, had twelve different categories of trial courts, most of them courts of limited jurisdiction tailored to some local need. The names of the eight limited jurisdiction courts reflected the prevailing tendency to fragment court structure along functional and geographic lines: town courts, city courts, municipal courts, traffic courts, justice of the peace courts, trial justices, police courts, and borough courts. By 1978 Connecticut had managed to consolidate all its trial courts, other than probate courts, into a trial court of general jurisdiction, the superior court. This organizational disorder of state courts was exacerbated (worsened) by jurisdictional statutes or constitutional provisions specifying the types of matters that a court could handle and the territorial scope of the court’s authority. 405

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Sometimes, there were very rigid jurisdictional lines between courts restricting each trial court to certain types of cases; for example, civil cases with an amount in issue of less than $5,000. Rigid jurisdiction created inflexible barriers to transfer of cases and resources to enhance speed and efficiency. Sometimes, the jurisdictional statutes erred on the side of looseness, creating a very confusing overlap of jurisdiction. This invited disputes among courts, frequent transfer of cases, and the practice of “forum shopping” in which attorneys sought out the courts most favorable to their cause. There were geographic problems as well. Some courts had territorial jurisdiction within a city, others within a county, others within a region, and others statewide. Some municipal courts were even permitted to hear certain cases arising outside the city limits. Courts of uniform statewide jurisdiction were broken into geographic regions composed of one or more counties. These regions were commonly called “circuits” or “districts” and might be served by judges traveling from county to county. These courts could in theory act upon any proceeding arising under state law, but usually there were limitations imposed by venue requirements that determined where a particular type of case could be heard and established some rational pattern to the geographic allocation of cases among courts of similar jurisdiction. Unfortunately, venue requirements were not always clear and could be occasionally overcome by requesting a court to change the venue of a case. Because political considerations often determined the geographic structure of upper-level trial courts, the haphazard configuration of the districts or regions constituted yet another obstacle to the efficient administration of trial courts. b) Summarize the key issues concerning Court Unification and Performance: 406

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To get at what court reformers mean by unification, one must look in some detail at individual districts or counties. What is important about unification is almost as likely to vary within a state as between different states. The extent to which a court system is unified is very weakly expressed in the statewide arrangements for court structure that are specified in state constitutions, statutes, and court rules. • Nonetheless, some ways of structuring a state court system seem to be associated with attaining high levels of unification as viewed in practice. Actual unification is found in states with a single-tier court system and in states with two levels of trial courts. • Court unification, in and of itself, is not necessarily associated with higher levels of court performance. Other features of court organization contribute more to high performance, notably mechanisms for decision making and the approach taken to assigning judges to domestic relations, juvenile, and highvolume routine cases. • Court systems that have already substantially unified should consider the extent to which they are taking maximum advantage of what their court structure makes possible. Court systems that are considering unification should begin by thinking through which aspects of their work they are trying to influence. It also makes sense to bear in mind what the consequences of unification might be for those outside of the courthouse: lawyers in private practice are one important constituency; others include local justice system officials, officials and managers in local government, social service providers, and the general public. • The potential for court improvement inherent in a two-tier court system should be weighed carefully against what the model of a single trial court has to offer. One-tier court systems tend to re-create a limited jurisdiction court by establishing an unofficial 407

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lower level of judges and staff who process routine, high-volume cases. Juvenile and domestic relations cases also tend to gravitate downwards. The resulting problems are maximized to the extent that this unofficial lower level is staffed by part-time judicial officers who do not participate in setting the court’s priorities. A two-tier court system may offer greater flexibility in giving appropriate attention to all types of cases. • Overlapping subject matter jurisdiction is one of the prime reasons given for unification. However, significant overlaps in subject matter jurisdiction are rare in court systems today. However, shared jurisdiction does create conflicting orders in domestic relations cases and thwarts a comprehensive approach to juvenile delinquency. Courts whose jurisdiction extends only to local ordinances do issue temporary protection orders and do adjudicate cases stemming from offenses such as loitering, shoplifting, and traffic violations. This is noteworthy because courts enforcing local ordinances often persist in states that otherwise have unified jurisdiction. • Individual trial courts and court districts are experimenting with executive committees, management teams, cross-training staff, providing coverage for overloaded dockets, and family courts. Such innovations tend to remain local and undocumented. TASK VII.  Read the text below to prove that Jurisdiction and Policy Making of State Courts are closely related: The jurisdictions of the 50 separate state court systems in the United States are established in virtually the same manner as those within the national court system. Each state has a constitution that sets forth the authority and decision-making powers of its trial and appellate judges. Likewise, each state legislature passes laws that further detail the specific powers and prerogatives of judges and the rights and obligations of those who 408

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bring suit in the state courts. Because no two state constitutions or legislative bodies are alike, the jurisdictions of individual state courts vary from one state to another. State courts are extremely important in terms of policy making in the United States. Well over 99 percent of the judicial workload in the United States consists of state, not federal, cases, and 95 percent of all judges in the United States work at the state level. Moreover, the decisions of state jurists frequently have a great impact on public policy. For example, during the 1970s a number of suits were brought into federal court challenging the constitutionality of a state’s spending vastly unequal sums on the education of its schoolchildren. (This occurred because poorer school districts could not raise the same amount of money as could wealthy school districts.) The litigants claimed that children in the poorer districts were victims of unlawful discrimination in violation of their equal protection rights under the U.S. Constitution. The Supreme Court said they were not, however, in a five-to-four decision in San Antonio Independent School District v. Rodriguez (1973). But the matter did not end there. Litigation was instituted in many states arguing that unequal educational opportunities were in violation of various clauses in the state constitutions. Since Rodriguez such suits have been brought 28 times in 24 states. In 14 of these cases, state supreme courts invalidated their state’s method of financing education, thus requiring the reallocation of billions of dollars. b) Read the text below to justify the importance of the following elements of a court administrative system: Court administration has developed along so many different paths in so many different settings that it is not possible to identify some ideal model. It is, however, possible to identify the various elements in a court administrative system: 409

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• a court of last resort that makes administrative policy for the judicial branch, often reflecting this policy in rules of court, directives, or orders; • a chief justice who generally serves as an executive overseer to see that court policy is implemented; • a state court administrator whose office provides administrative support to the chief justice and the court in implementing policy and in serving various other administrative or legal functions; • chief judges of trial courts and intermediate appellate courts who administer the operations of their respective courts in conformity with the policy set by the supreme court and by the court they serve; • trial court administrators and trial court administrative offices that provide the principal, but not the sole, assistance to the chief judges in implementing their administrative responsibilities. Underlying the management structure is an information system that provides the statistics and other information necessary to management decision making. The quality of the decisions depends heavily on the quality of the management information. The following issues will help you to answer the exam question THE ORGANIZATION OF COURTS IN THE UNITED STATES and to write your essay: 1. Creation of the federal judiciary. 2. Competition between federal and state courts. 3. Composition, jurisdiction and procedures in federal and state courts. 4. Administration and structural organization of state courts.

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UNIT VI THE UNITED STATES SUPREME COURT TEXT 1 THE COURT AND CONSTITUTIONAL INTERPRETATION “EQUAL JUSTICE UNDER LAW” – these words written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution. The Supreme Court is “distinctly American in concept and function,” as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. “The representative system of government has been adopted in several states of Europe,” he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans ... A more imposing 411

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judicial power was never constituted by any people.” The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written constitution still in force. The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the vitality of the American system of government. The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive action which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations. While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, 412

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for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution. Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit. Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared. In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind … Its nature, therefore, requires that only its great outlines should be marked, its important 413

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objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases. The Justices must exercise considerable discretion in deciding which cases to hear, since more than 7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government. When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken. Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding ... intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” NOTES TO THE TEXT Charles Evans Hughes (1862–1948) – an American statesman and jurist, Associate Justice of the U.S. Supreme Court (1910–1916), U.S. Secretary of State (1921–1925), and 11th Chief Justice of the United States (1930–1941). 414

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Rule of law – a legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a “rule,” because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called “the supremacy of law,” provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. Judicial review – power of courts to review decisions of another department or level of government. The Federalist Papers – a series of 85 essays (1787–1788) by Alexander Hamilton, James Madison, and John Jay, written in support of the Constitution. Tumult – violent and noisy commotion or disturbance of a crowd or mob; uproar; riot; uprising, or other disorder. Political bargaining – political compromise. Prolixity – the unnecessary and superfluous statement of facts in pleading or in evidence. Legal code – the collection of laws and constitutions made by order of the Roman Emperor Justinian and first authoritatively published in 534 A.D.; contained in 12 books, the Code is one of four works that make up the Corpus Juris Civilis. Advisory opinion – a nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose; federal courts are constitutionally prohibited from issuing advisory opinions by the case-or-controversy requirement, but other courts, such as the International Court of Justice, render them routinely. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to invoke, to anticipate, to expound, to endure, to designate, to deduce, to assert, to overturn, to uphold 415

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TASK I.  a) Match the verbs 1) to invoke; 2) to anticipate; 3) to expound; 4) to endure; 5) to designate; 6) to deduce; 7) to assert; 8) to overturn; 9) to uphold to their definitions: a) to give a detailed statement of; set forth; to explain in detail; elucidate; b) to reach (a conclusion) by reasoning; to infer from a general principle; to trace the origin or derivation of; c) to state or express positively; affirm; to defend; to maintain; d) to indicate or specify; point out; to give a name or title to; characterize; e) to carry on through, despite hardships; undergo; to bear with tolerance; to continue in existence; last; f) to foresee and act in advance of; to regard as likely; expect; foresee; g) to invalidate or reverse (a decision) by legal means; h) to maintain, affirm, or defend against opposition or challenge; i) to resort to; use or apply; to put into use. b) Add the verbs invoked; expounded; shall designate; upheld; endure; invoked; anticipate; asserted; deduce; overturn; is upheld to complete the following sentences: 1. Marshall also used his powers to involve the Court in the policy-making process. Early in his tenure as chief justice, for example, the Court … its power to declare an act of Congress unconstitutional, in Marbury v. Madison (1803). 2. Supreme Court decisions are made by a majority vote. In case of a tie the lower-court decision … . 3. Plaintiffs may not … that defendants will raise a federal question in answer to the action. 4. The Marshall Court also … the supremacy clause to enhance national supremacy with respect to the states. 416

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5. It is argued that, if they scrutinize the intent of the Framers, justices can … “constitutional truths,” which they can apply to cases. 6. Justice Holmes emphasized that in wartime a nation cannot … acts that hinder the war effort. Nor did it matter whether the leaflets persuaded anyone to obstruct recruitment – if the intent, tendency, and act are the same, Justice Holmes saw “no ground for saying that success alone warrants making the act a crime.” 7. There are also disclosure requirements for any candidate spending over a certain amount. The disclosure requirements were ultimately … by the Court. 8. Two parties soon developed, one in opposition and one in support of the Constitution, and the Constitution was debated, criticized, and … clause by clause. 9. The Court … the supremacy clause and made it clear that a state law that was contrary to the Constitution, or laws of Congress made in pursuance of the Constitution, was void. 10. The flag burning amendment refers to efforts to … a Supreme Court decision that made the act of burning the American flag a protected First Amendment expression. 11. Louisiana statute requiring that in all primary, general, or special elections, the nomination papers and ballots … the race of the candidates violated the equal protection clause. c) Use the GLOSSARY to translate the following passages: 1. State laws were amended so as to enable voters participating in primary elections to designate their preference for one of several party candidates for a senatorial seat, and nominations unofficially effected thereby were transmitted to the legislature. 2. The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States. Justice Holmes matter-of-factly stated the essence of the pattern: 417

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“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” 3. In an effort to prevent the infusion of new meanings from sources outside the text of the Constitution, adherents of original intent seek to deduce constitutional truths by examining the intended meanings behind the words. 4. One important branch of property law today deals with land use controls. The most common type of land use restriction is zoning, a practice whereby local laws divide a municipality into districts designated for different uses. For instance, one neighborhood may be designated as residential, another as commercial, and yet another as industrial. 5. If the injury is minor, the charge may be simple assault. Because the nature of the injury often determines the offense, it is frequently asserted that the nature of the injury is the key legal element of the crime. 6. “The controlling principle consistently expounded in our holdings,” said the Court in the Detroit case, “is that the scope of the remedy is determined by the nature and extent of the constitutional violation.” 7. As a judicial body, the Supreme Court cannot implement or execute its own decisions. It often must depend on the executive branch to give its decisions legitimacy through action. The Court, therefore, may act strategically, anticipate the wishes of the executive branch, and respond accordingly to avoid a confrontation that could threaten its legitimacy. 8. First and foremost, the judge is expected to play the part of a disinterested party whose primary job is to see to it that both sides are allowed to present their cases as fully as possible within the confines of the law. If judges depart from the appearance or practice of being fair and neutral parties, they run counter to 418

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fundamental tenets of American jurisprudence and risk having their decisions overturned by an appellate court. TASK II.  Discuss the following principles of judicial selfrestraint: The activities that judges are forbidden to engage in, or at least discouraged from engaging in, deal not so much with jurisdiction as with justiciability – the question of whether judges in the system ought to hear or refrain from hearing certain types of disputes. The principles of judicial self-restraint serve to check and restrain the power of American judges. These maxims originate from a variety of sources – the U.S. Constitution and state constitutions, acts of Congress and of state legislatures, and the common law. 1. Laws are overturned on the narrowest grounds only. Sometimes during a trial a judge clearly sees that the strictures (restraints, limits, or restrictions) of the Constitution have been offended by a legislative or executive act. Even here, however, a jurist may proceed with caution. First, a judge may have the option of invalidating an official action on what is called statutory, instead of constitutional, grounds. Statutory invalidation means that a judge overturns an official’s action because the official acted beyond the authority delegated to him or her by the law. Such a ruling has the function of saving the law itself while still nullifying the official’s misdeed. Second, judges may, if possible, invalidate only that portion of a law they find constitutionally defective instead of overturning the entire statute. 2. No rulings are made on the “wisdom” of legislation. If followed strictly, this principle means that the only basis for declaring a law or an official action unconstitutional is that it literally violates the Constitution. Statutes do not offend the Constitution merely because they are unfair, are fiscally wasteful, or constitute bad public policy. If taken truly to heart, this means 419

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that judges and justices are not free to invoke their own personal notions of right and wrong or of good and bad public policy when they examine the constitutionality of legislation. TASK III.  a) Find the verbs in the text and translate the sentences with them: to ensure, to provide, to preserve, to assure, to maintain, to balance, to guard, to uphold, to guarantee, to protect; b) Replace the verbs from the text by their synonyms, where possible: 1) to ensure – insure, assure, guarantee, secure, protect; 2) to preserve – protect, guard, defend, maintain, support; 3) to protect – defend, guard, preserve, foster, nurture; 4) to provide – supply, furnish, equip, produce, yield, afford, stipulate, specify, state; 5) to assure – secure, stabilize, settle, establish, guarantee, ensure, encourage, reassure, convince, persuade, assert, state, promise; 6) to maintain – continue, preserve, perpetuate, sustained, uphold, preserve, hold, claim, assert, defend, back (up), support, vindicate; 7) to balance – weigh, estimate, consider, deliberate, ponder, assess, evaluate, compare, stabilize; 8) to guard – protect, shield, safeguard, police, look after, control; 9) to uphold – support, maintain, preserve, hold up, defend, protect, endorse, stand by; 10) to guarantee – assure, ensure, pledge, promise, undertake, certify, swear to, attest to. TASK IV.  a) Use the text to complete the following statements: a) Chief Justice Charles Evans Hughes observed … . b) The French political observer remarked … . 420

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c) Alexander Hamilton had underlined … . d) James Madison argued … . e) Hamilton had written … . f) Chief Justice declared … . g) Chief justice Marshal noted … . h) The first Chief Justice clarified … . b) Replace the above verbs in bold type by their synonyms where possible: 1) to observe – obey, abide by, comply with, regard, examine, scrutinize, study, inspect, see, mark, notice, comment on/upon, remark on/upon, mention, say, celebrate, respect; 2) to remark – note, notice, observe, perceive, regard, comment on/upon, say, reflect, mention; 3) to underline – accentuate, emphasize, highlight, mark, reiterate, stress, urge; 4) to argue – assert, claim, contend, convince, debate, discuss, display, suggest, prove; 5) to declare – affirm, assert, certify, claim, disclose, maintain, pronounce, reveal, state; 6) to note – notice, observe, mark, record, register, mention, report, designate, detect; 7) to clarify – elucidate, make clear, simplify, clear up, explain, shed or throw light on/upon, explicate. TASK V.  a) Replace the underlined verbs by one of the following without changing the sense of the sentences: a) to restrict; b) to refuse; c) to change; d) to protect; e) to construe; f) to invalidate / to nullify; g) to apply; h) to call for; j) to stress; k) to create: 1. “A more imposing judicial power was never constituted by any people”. 2. James Madison had underlined the importance of judicial review in the Federalist papers. 421

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3. Federalist Papers urged adoption of the Constitution. 4. Chief Justice John Marshall invoked the Court’s power of judicial review in 1803. 5. The Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its duty to uphold the Constitution. 6. The Founding Fathers had wisely worded that document in rather general terms. 7. The Constitution limits the Court to dealing with “Cases” and “Controversies.” 8. John Jay, the first Chief Justice, declined to advise President George Washington on the constitutional implications of a proposed foreign policy decision. 9. The Supreme Court’s decisions can be altered only by the rarely used procedure of constitutional amendment. TASK VI.  Choose the sentence which best fits to express the main idea of the text; if none fits give your suggestions: 1. The text dwells on the role of the Supreme Court in the American Judiciary. 2. The author stresses the unique position of the American Supreme Court as compared to other courts in the world. 3. The text describes the function of judicial review as the one which enables the Supreme Court to invalidate legislation which conflicts the Constitution. 4. The very nature of the Constitution provides for the possibility of its interpretation by the Supreme Court. TASK VII.  a) Translate the following passages, mind the difference between few – fewer – a few; little – a little: 1. In practice few persons make use of the entire judicial process. Instead, most cases are settled without resort to a fullfledged trial. 422

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2. At both the state and federal levels everyone has the right to at least one appeal upon conviction of a felony, but in reality few criminals avail themselves of this privilege. 3. At the federal level 12 persons must render a unanimous verdict. At the state level such criteria apply only to the most serious offenses. In many states a jury may consist of fewer than 12 persons and render verdicts by other than unanimous decisions. 4. Those states that do not use grand juries employ a preliminary hearing or an examining trial. A few states use both procedures. 5. Those who prosecute persons accused of violating state criminal statutes are commonly known as district attorneys. In most states they are elected county officials; however, in a few states they are appointed. 6. In June 1994 the U.S. Supreme Court ruled that the creation of the one-school district effectively delegated political power to the orthodox Jewish group and therefore violated the First Amendment’s ban on governmental “establishment of religion.” Whether or not everyone agrees that the New York law was constitutional, few, if any, would doubt that the school board association met the specific criteria for securing judicial review: The Constitution clearly forbids the government from delegating political power to a specific religious entity. The government here readily acknowledged that it had passed a law for the unique benefit of a singular religious community. 7. The first law schools grew out of law offices that specialized in training clerks or apprentices. The earliest such school was the Litchfield School in Connecticut, founded in 1784. This school, which taught by the lecture method, placed primary emphasis on commercial law. Eventually, a few colleges began to teach law as part of their general curriculum, and in 1817 an independent law school was established at Harvard University. 423

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8. A quorum for a decision on a case is six members; obtaining a quorum is seldom difficult. Cases are sometimes decided by fewer than nine justices because of vacancies, illnesses, or nonparticipation resulting from possible conflicts of interest. Supreme Court decisions are made by a majority vote. In case of a tie the lower-court decision is upheld. 9. In most cases a single opinion does obtain majority support, although few rulings are unanimous. Those who disagree with the opinion of the Court are said to dissent. b) Discuss or comment on the following passages: 1. Because the courts of appeals have no control over which cases are brought to them, they deal with both routine and highly important matters. At one end of the spectrum are frivolous appeals or claims that have no substance and little or no chance for success. At the other end of the spectrum are the cases that raise major questions of public policy and evoke strong disagreement. 2. Many lower-level state judges, such as justices of the peace and juvenile court judges, are nonlawyers who have little interest or skill in reading complex judicial decisions. Finally, even those judges who have an interest in higher court decisions and the ability to understand them do not have adequate time to keep abreast of all the new opinions. 3. Cases that have survived the screening process and have not been settled by the litigants are scheduled for oral argument. Attorneys for each side are given a short amount of time, usually as little as 10 minutes, to discuss the points made in their written briefs and to answer questions from the judges. However, if one went into court and contended that a particular law or official action “violated the spirit of the Bill of Rights” or “offended the values of the Founders,” a judge surely would dismiss the proceeding. For if judges were free to 424

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give concrete, substantive meaning to vague generalities such as these, there would be little check on what they could do. In the real world this principle is not as simple and clear-cut as it sounds, because the Constitution contains many clauses that are open to a wide variety of interpretations, giving federal judges sufficient room to maneuver and make policy. 4. If the Supreme Court were inescapably bound by the dictates of its prior rulings, it would have very little flexibility. 5. Regional party leaders have little to say in the appointment of Supreme Court justices, where presidential prerogative is dominant, and their role in the choice of appeals court judges is minimal. 6. In terms of political party affiliation, little difference is seen between trial and appellate court appointments. However, appeals judges have a slight tendency to be more active in their respective parties than their colleagues on the trial bench. TASK VIII.  Read the text about judicial review v. judicial supremacy controversy; provide your arguments for or against the author’s opinion: Many of the issues involved in the debate over the scope of the judiciary’s role in construing the Constitution can be avoided if, from the outset, two doctrines are carefully distinguished: (1) the doctrine of judicial review; and, (2) the doctrine of judicial supremacy. These doctrines are fundamentally distinct, although they have been easily confused. Briefly, the doctrine of judicial review provides that the Supreme Court has the right to rule on the constitutionality of an act of Congress that has been signed into law by the President. This judicial right was first articulated most fully in Marbury v. Madison. Until Marbury, there were apparently Founders who doubted whether the Supreme Court had any greater right to review constitutionality than any other branch of the federal 425

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government. The Marbury Court ruled that a certain judicial appointment made by President Adams at the close of his term was valid under the Constitution. However, the Court also ruled that the prospective judge – Mr. Marbury – did not have a way to enforce the decision, specifically holding that the section of the act providing for a remedy was unconstitutional, since the act improperly granted original jurisdiction to the Supreme Court. Unlike the doctrine of judicial review, the doctrine of judicial supremacy assumes that once the Supreme Court has determined that a particular act is unconstitutional, its decision is the “law of the land” and all, including the Congress, the President, and the People, must conform to its interpretation. This supremacy goes well beyond the Supreme Court’s mere right to review acts of Congress and rule on their constitutionality. This doctrine essentially sets forth that the Supreme Court is the final arbiter of the Constitution. It also gives rise to much of the current public perception of the duties of the Supreme Court. The role of the Supreme Court in constitutional interpretation hinges in many respects on whether judicial review should be accompanied by judicial supremacy. If judicial supremacy is a correct doctrine, the debate is settled in that the judiciary must logically become the final interpreter of the Constitution. If judicial supremacy is not supported by the Constitution, it behooves (makes necessary for) the legislative and executive branches to take notice. The issue of whether review encompasses supremacy is as old as the United States. The Founders were faced with the basic dilemma of how to create an independent judiciary without creating a tyrannical body. William Rawle, an early commentator on the Constitution, summed up the tension in the following manner: “It is supposed to be the natural disposition of man, when placed above control, to abuse his power. On the other hand, if the judge submits to be governed by the opinions of others, if he allows the desire to retain his office, 426

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the fear of giving offense, or the love of popularity, to form any part of the ingredients of his judgment, an equal violation of his trust is apparent. It is therefore not without anxiety that the patriotic mind endeavors so to regulate the organization of this all essential power, that it shall be safely steered between the two extremes.” As noted above, at least since Marbury, it has been the right of the Supreme Court to review an act and to determine its constitutionality. Even so, it is important to note that nothing in the Constitution nor in Marbury requires that the Supreme Court’s constitutional interpretations have supremacy over the interpretations of the President or Congress. In fact, after the Marbury decision was issued, President Thomas Jefferson simply disregarded the Supreme Court’s constitutional interpretation that the appointment was valid and refused to appoint Mr. Marbury. University of Minnesota Professor of Law Michael Paulsen recently summed up this constitutional reality: “But who died and left the Supreme Court boss in the first place? Nowhere does the Constitution make the Supreme Court the master in matters of constitutional interpretation. Nowhere is it written in the holy words that the Supreme Court’s interpretations bind the other branches of government. Indeed, to vest interpretive supremacy, the power to determine the meaning of all other constitutional powers, in just one branch of the national government is contrary to the founding generation’s premises about separationof-powers. Rather, the Framers intended that the power of constitutional interpretation, like many other important powers conferred on the federal government, be divided and shared among the three branches of government, with none literally bound by the decisions of any of the others. That way, the People would not lose control over their Constitution to any mere organ of government.” 427

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NOTES TO THE TEXT William Rawle (1759–1836) – an American lawyer in Philadelphia, who in 1791 was appointed as United States district attorney in Pennsylvania. Professor Michael Paulsen – one of the nation’s leading scholars of constitutional interpretation, and his publications include articles in the Yale Law Journal, Stanford Law Review, Chicago Law Review, NYU Law Review, Texas Law Review, California Law Review, and the Georgetown Law Journal, among many others.

TEXT 2 THE COURT AS AN INSTITUTION The Constitution elaborated neither the exact powers and prerogatives of the Supreme Court nor the organization of the Judicial Branch as a whole. Thus, it was left to Congress and to the Justices of the Court through their decisions to develop the Federal Judiciary and a body of Federal law. The establishment of a Federal Judiciary was a high priority for the new government, and the first bill introduced in the United States Senate became the Judiciary Act of 1789. The act divided the country into 13 judicial districts, which were, in turn, organized into three circuits: the Eastern, Middle, and Southern. The Supreme Court, the country’s highest judicial tribunal, was to sit in the Nation’s Capital, and was initially composed of a Chief Justice and five Associate Justices. For the first 101 years of the Supreme Court’s life but for a brief period in the early 1800s the Justices were also required to “ride circuit,” and hold circuit court twice a year in each judicial district. The Supreme Court first assembled on February 1, 1790, in the Merchants Exchange Building in New York City then 428

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the Nation’s Capital. The earliest sessions of the Court were devoted to organizational proceedings. The first cases reached the Supreme Court during its second year, and the Justices handed down their first opinion in 1792. During its first decade of existence, the Supreme Court rendered some significant decisions and established lasting precedents. Chief Justice John Jay resigned from the Court in 1795 to become Governor of New York and, despite the pleading of President John Adams, could not be persuaded to accept reappointment as Chief Justice when the post again became vacant in 1800. Consequently, shortly before being succeeded in the White House by Thomas Jefferson, President Adams appointed John Marshall of Virginia to be the fourth Chief Justice. This appointment was to have a significant and lasting effect on the Court and the country. Chief Justice Marshall’s vigorous and able leadership in the formative years of the Court was central to the development of its prominent role in American government. Although his immediate predecessors had served only briefly, Marshall remained on the Court for 34 years and five months and several of his colleagues served for more than 20 years. Members of the Supreme Court are appointed by the President subject to the approval of the Senate. To ensure an independent Judiciary and to protect judges from partisan pressures, the Constitution provides that judges serve during “good behavior,” which has generally meant life terms. To further assure their independence, the Constitution provides that judges’ salaries may not be diminished while they are in office. The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices and 112 Associate Justices. Historically, the average length of service on the Court has been less than 15 years; however, since 1970 the average length of service has increased to about 429

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26 years. Despite this important institutional continuity, the Court has had periodic infusions of new Justices and new ideas throughout its existence; on average a new Justice joins the Court every 22 months. President Washington appointed the six original Justices and before the end of his second term had appointed four other Justices. During his long tenure, President Franklin D. Roosevelt came close to this record by appointing eight Justices and elevating Justice Harlan Fiske Stone to be Chief Justice. NOTES TO THE TEXT John Marshall (1755–1835) – the fourth Chief Justice (1801– 1835) of the United States and principal founder of the U.S. system of constitutional law, John Marshall, who had almost no formal schooling and studied law for only six weeks, nevertheless remains the only judge in American history whose distinction as a statesman derived almost entirely from his judicial career. Following a diplomatic mission to France, he won election to Congress, where he supported President John Adams. Adams appointed him Secretary of State and in 1801 Chief Justice, a position he held until death. Combat experience during the Revolution helped him develop a continental viewpoint. After admission to the bar in 1780, he entered the Virginia Assembly and rose rapidly in state politics. He had good looks, a charismatic personality, and a debater’s gifts. A Federalist in politics, he championed the Constitution in his state’s ratification convention. As perhaps the Supreme Court’s most influential Chief Justice, Marshall was responsible for constructing and defending both the foundation of judicial power and the principles of American federalism. Thomas Jefferson (1743–1826) – author of the Declaration of Independence and the third U.S. President (1801–1809). Jefferson served in the Virginia legislature and the Continental Congress and was governor of Virginia. He later served as U.S. minister to France and U.S. Secretary of State, and was Vice President under John Adams (1735–1826). 430

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Harlan Fiske Stone (1872–1946) – Associate Justice of the Supreme Court (1925–1941); Twelfth Chief Justice of the Supreme Court (1941–1946). Prerogatives – an exclusive or peculiar right or privilege. The special power, privilege, immunity, right or advantage vested in an official person, either generally, or in respect to the things of his office, or in an official body, as a court or legislature. Associate justice – a Supreme Court justice, or an appellate-court justice other than the Chief Justice. Stature – degree of development attained; level of achievement; status; importance. Precedent – a decided case that furnishes a basis for determining later cases involving similar facts or issues. Tenure – generally, a right, term, or mode of holding or occupying, and “tenure of an office” means the manner in which it is held, especially with regard to time. “Term of office” – duration of holding public or private office. The tenure of federal judges is during life and good behavior. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY predecessor, continuity, tenure, subject to, prominent, able, partisan, to resign, to succeed, to persuade, to remain, to accept, to diminish TASK I.  a) Match the words: predecessor, continuity, tenure, subject to, prominent, able, partisan to their definitions: 1) having the necessary power, resources, skill, time, opportunity, etc., to do something; capable; competent; talented; (law) qualified, competent, or authorized to do some specific act; 2) one who precedes another in time, especially in holding an office or position; something that has been succeeded by another; 431

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3) relating to or excessively devoted to one party, faction, etc.; one-sided; 4) the possession or holding of an office or position; the length of time an office, position, etc., lasts; term; the right to permanent employment until retirement, esp. for teachers, lecturers, etc.; the holding or occupying of property, esp. realty, in return for services rendered, etc.; the duration of such holding or occupation; 5) standing out so as to be seen easily; immediately noticeable; conspicuous, leading, important, well-known, widely known, eminent; 6) logical sequence, cohesion, or connection; a continuous or connected whole; 7) (preposition) under the condition that. b) Use the above words to complete the sentences: 1. The insurance industry is regulated by government agencies and … its own distinct rules. 2. If the judge’s … is supported by the voters, as is virtually always the case, the judge will serve for a regular and fairly long term. 3. Each state has an attorney general who serves as its chief legal official. In most states this official is elected on a … statewide ballot. 4. It would be difficult to believe that the current justices would be any less likely than their … to vote on the basis of their ideologies. 5. Indeed, the justices are people like all of us whose political biases and … attachments are strong and pervasive. 6. Whenever a prison term is set by the judge, it is still … the parole laws of the federal government and of the states. 7. In 1789 the first session of Congress began their work on a bill of rights. Many members of this Congress, including James 432

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Madison, had been delegates to the Constitutional Convention, so there was little loss of … . 8. Even when not directly involved in the enforcement of a judicial policy, the president may be … to influence its impact. 9. Grand and petit juries were introduced during the colonial period and remain … features of the state judicial systems. 10. Under Roger Taney, the Supreme Court refined and developed many of the legal doctrines first articulated under his … , Chief Justice John Marshall, especially in the direction of moving away from some of the nationalistic ideas that had supported federal over state power. 11. Federal judges, for example, are protected by life … and traditionally have been … to run their courts as they see fit. c) Translate the following passages: 1. The fact that the system is able to provide its own socialization – that the older, experienced jurists train the novices – serves as a sort of glue that helps bond the system together. It allows the judicial values, practices, and orientations of one generation of judges to be passed on to another. It gives continuity and a sense of permanence to a system that operates in a world where chaos and random behavior are common. 2. In colonies, conflicts between legislatures and judges, often stemming from opposing interests, became more prominent. Legislators seemed more responsive to policies that favored debtors, whereas courts generally reflected the views of creditors. These differences were important because “out of this conflict over legislative and judicial power...the courts gradually emerged as an independent political institution,” according to David W. Neubauer in America’s Courts and the Criminal Justice System. 3. A few years later, after Marbury v. Madison the Court also claimed the right of judicial review over actions of state 433

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legislatures; during Marshall’s tenure it overturned more than a dozen state laws on constitutional grounds. 4. Some states have declining retirement benefit plans for judges who serve beyond the desired tenure; that is, the longer judges stay on the bench, the lower their retirement benefits. Another constraint upon the federal judiciary is that judges will hear no case on the merits unless the petitioner is first able to cite a specific part of the Constitution as the basis of the plea. 5. Chancellor James Kent (1763–1847) was a state judge and a more devoted student of contemporary English law. He came of age during the Revolution and Constitution-making period, gained office through Federalist patronage, and idolized his friend Alexander Hamilton, whom he saw as a consummate lawyer and the ablest proponent of an independent judiciary. 6. Every crime has several distinct elements, and unless the state is able to demonstrate in court the existence of these essential elements there can be no conviction. 7. If the offender is a bankruptcy judge or magistrate, he or she may be removed; and an Article III judge may be subject to private or public reprimand or censure, certification of disability, request for voluntary resignation, or prohibition against further case assignments. However, removal of an Article III judge is not permitted; impeachment is still the only recourse. 8. Supreme Court has ruled in a variety of cases that laws that treat persons differently according to their race or gender are automatically subject to “special scrutiny.” This means that the burden of proof shifts to the government to demonstrate a compelling or overriding need to differentiate persons according to their ethnic origins or sex. For instance, the government has long argued (successfully) that some major restrictions can be placed on women in the armed forces that prevent them from being assigned to full combat duty. 434

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9. In addition to internal bargaining, strategic approaches (as well as others) one should also take account of political pressures that come from outside the Court. There are three sources of such influence: public opinion, partisan politics, and interest groups. 10. Political pressures from the outside also can affect the Court. Although the justices have no electoral connection or mandate of responsiveness, the other institutions of government have some influence on judicial behavior, and, naturally, the direction of that influence reflects the partisan composition of those branches. 11. Among ordinances held by the Supreme Court unconstitutional there is an ordinance of an Idaho municipality adopted in 1906 which subjected a water company to monthly rental fees for the use of its streets invalidly impaired the obligation of contract arising under an ordinance of 1889 which granted a predecessor company the privilege of laying water pipes under the city streets without payment of any charge for the exercise of such right. 12. Pursuant to freedom to picket, to broadcast leaflets, and to engage in physical activity representatives of one’s political, social, economic, or other views, enjoy wide though not unlimited protection. It may be that a differently constituted Court would narrow the scope of the Amendment’s protection and enlarge the permissible range of governmental action. But, in contrast to other areas in which the present Court has varied from its predecessor, the record with respect to the First Amendment has been one of substantial though uneven expansion of precedent. TASK II.  a) Match the following verbs to succeed, to persuade, to remain, to accept, to diminish to their definitions: 1) to answer affirmatively; to agree to take (a duty or responsibility); to receive (something offered), especially with gladness or approval; 435

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2) to induce to undertake a course of action or embrace a point of view by means of argument, reasoning, or entreaty; to cause to believe; convince; 3) to make smaller or less or to cause to appear so; to detract from the authority, reputation, or prestige of; to become smaller or less; to decrease; 4) to continue in the same state or condition; to continue to be in the same place; stay or stay behind; to continue to be; 5) to come next in time or succession; follow after another; replace another in an office or a position; to come after and take the place of; 6) to give up (a position, for example), especially by formal notification. b) Use the above words to complete the sentences: 1. Sometimes friend-of-the-court briefs are used not to strengthen the arguments of one of the parties but to suggest to the court the group’s own view of how the case should be resolved. Amicus curiae briefs are often filed in an attempt … an appellate court to either grant or deny review of a lower-court decision. 2. Other schools eventually adopted the Harvard approach, and the case method … the accepted method of teaching in many law schools today. 3. A dispute must be real and current before a court will agree to … it for adjudication. 4. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor … during the Period for which he shall have been elected. 5. The advocates of the new Constitution realized, however, that the new Government could not … without the addition of New York and Virginia, neither of which had ratified. 436

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6. Since 1789 the House of Representatives has initiated impeachment proceedings against only 13 jurists – although about an equal number of judges … just before formal action was taken against them. 7. The New York Times attorneys added, “It is implicit in this Court’s decisions that speech which is critical of governmental action may not be repressed upon the ground that it … the reputation of those officers whose conduct it deplores.” 8. When the President is disabled or is removed or has died, to what does the Vice President … : to the “powers and duties of the said office,” or to the office itself? 9. In some states a few trial judges have allowed jurors to take fairly active roles in the trial. Still, at both state and federal levels the role of the jury … basically passive. 10. When a case … for review the opposing parties file written briefs and later present oral arguments. 11. Nixon did comply with the Court’s directive and thus a decision was implemented that quickly led to his downfall. Within two weeks he … from the presidency, in August 1974. c) Translate the following passages: 1. Under Marshall’s stewardship, the Court adopted the practice of handing down a single opinion. Marshall’s goal was to keep dissension to a minimum. Arguing that dissent undermined the Court’s authority, he tried to persuade the justices to settle their differences privately and then present a united front to the public. Marshall also used his powers to involve the Court in the policy-making process. 2. The Twenty-fifth Amendment saw multiple use during the 1970s and resulted for the first time in American history in the accession to the Presidency and Vice-Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and 437

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President Nixon nominated Gerald R. Ford to succeed him, following the procedures of § 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. 3. Precedent from the 1876 impeachment of Secretary of War William Belknap, who had resigned prior to his impeachment by the House, suggests that impeachment can proceed even after a resignation. 4. Reaction after World War II did not persist, but soon ran its course, and the necessities, real and only perceived, of the United States’ role as world power and chief guarantor of the peace operated to expand the powers of the President and to diminish congressional powers in the foreign relations arena. 5. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. 6. Another principle of self-restraint often frustrates the anxious litigant but is essential to the orderly administration of justice: Courts in the United States will not accept a case until all other remedies, legal and administrative, have been exhausted. In its simplest form this doctrine means that one must work up the ladder with one’s legal petitions. Federal cases must first be heard by the U.S. trial courts, then reviewed by one of the appellate tribunals, and finally heard by the U.S. Supreme Court. 7. The accused “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.” 438

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TASK III.  Complete the table to describe the history of the American Judiciary: DATE

EVENT

1789 The Supreme Court first assembled. 1792 Chief Justice John Jay resigned from the court. 1795 John Jay did not accept reappointment. 1869 TASK IV.  Say whether the following is true or false: a) The Constitution contains thorough provisions about the federal court system. b) The federal government passed among others the Judiciary Act of 1789. c) Originally there were six Justices in the Supreme Court. d) The Supreme Court first met on February 1, 1790. e) The first Justices were not satisfied with their functions. f) The first Chief Justice retired in 1795. g) The Constitution guarantees judicial appointments for life because judges behave well. h) The longest term of office was served by John Marshal. i) Justice Stone was promoted to the Chief Justice office by the Senate. j) Originally the Supreme Court possessed unlimited powers. TASK V.  Answer the following questions: 1. Are all the provisions of the Judiciary Act of 1789 still in force? 439

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2. What matters did the Supreme Court consider in its early years? 3. How has the composition of the Supreme Court changed? 4. How is the judicial independence ensured? 5.How is the institutional continuity maintained? TASK VI.  a) Match the notions judicial power, judicial interpretation, judicial conference of the United States, judicial branch, judicial discretion, judicial review to their definitions: 1. The courts, which interpret the laws; including the Supreme Court, which interprets the Constitution. 2.The policy-making entity for the federal court system. A 27-judge body whose presiding officer is the Chief Justice of the United States. 3. The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant cannot demand the act as a matter of right. 4. The art or process of discovering and ascertaining the meaning of a statute, will, contract, or other written document in court. 5. The authority exercised by that department of government which is charged with declaration of what law is and its construction. The authority vested in courts and judges, as distinguished from the executive and legislative power. Courts have general powers to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision; and also such specific powers as contempt powers, power to control admission and disbarment of attorneys, power to adopt rules of court, etc. 6. Power of courts to review decisions of another department or level of government. Form of appeal from an administrative body to the courts for review of either the findings of fact, or of 440

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law, or of both. May also refer to appellate court review of decisions of trial court or of intermediate appellate court. b) Add nouns system’s, experience, styles, tribunal, power, experience, appointees, service, scholar, official, process to complete and translate the following passages: 1. There is no single criminal or civil court process in the United States. Instead, the federal system has a court process at the national level, and each state and territory has its own set of rules and regulations that affect the judicial … . 2. The court procedures, however, are not as automatic or routine as they might appear; rather, the judicial … decision makers exercise discretion at all stages according to their values, attitudes, and views of the world. 3. After a suspect is arrested for a crime, he or she is booked at the police station; that is, the facts surrounding the arrest are recorded and the accused may be fingerprinted and photographed. Next the accused appears before a lower-level judicial … whose title may be judge, magistrate, or commissioner. 4. The American legal tradition has room for a variety of judicial … that depend on the personality, training, and wisdom of individual judges. 5. Judicial … Herbert Jacob summarizes the breadth of the civil law field in Justice in America: “Every broken agreement, every sale that leaves a dissatisfied customer, every uncollected debt, every dispute with a government agency, every libel and slander, every accidental injury, every marital breakup, and every death may give rise to a civil proceeding.” 6. Jurisdiction deals with a court’s authority to exercise judicial … , and venue means the place where that power should be exercised. 7. Since 1789, 106 men and two women have sat on the bench of America’s highest judicial … . Although perhaps 10 percent of 441

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the justices were essentially of humble origin, a majority of the justices came from politically active families, and about a third were related to jurists and closely connected with families with a tradition of judicial … . 8. Only 22 percent had state or federal judicial … immediately prior to their appointments, although more than half had served on the bench at some time before their nomination to the Supreme Court. 9. During the administration of President Bill Clinton (1993–2001), a dramatic change took place. During his first six years in office, 49 percent of his judicial … were either women or minorities. 10. Appeals judges are much more likely to have previous judicial … than their counterparts on the trial court bench, and they are just as likely, if not more so, to have attended private and Ivy League schools. TASK V.  Discuss the impact of the following Chief Justices on the development of the US judiciary: Chief Justice John Jay (1745–1829) During its first decade the Court decided only about 50 cases. Given the scarcity of Supreme Court business in the early days, Chief Justice Jay’s contributions may be traced primarily to his circuit court decisions and his judicial conduct. Perhaps the most important of Jay’s contributions, however, was his insistence that the Supreme Court could not provide legal advice for the executive branch in the form of an advisory opinion. Jay was asked by Treasury Secretary Alexander Hamilton to issue an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives, and President Washington asked Jay for advice on questions relating to his Neutrality Proclamation. In both instances, Jay’s 442

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response was a firm “No,” because Article III of the Constitution provides that the Court is to decide only cases pertaining to actual controversies. Chief Justice Marshall (1755–1835) John Marshall served as chief justice from 1801 to 1835 and dominated the Court to a degree unmatched by any other justice. Marshall’s dominance of the Court enabled him to initiate major changes in the way opinions were presented. Prior to his tenure, the justices ordinarily wrote separate opinions (called “seriatim” opinions – Latin for “one after the other”) in major cases. Under Marshall’s stewardship, the Court adopted the practice of handing down a single opinion. Marshall’s goal was to keep dissension to a minimum. Arguing that dissent undermined the Court’s authority, he tried to persuade the justices to settle their differences privately and then present a united front to the public. Marshall also used his powers to involve the Court in the policy-making process. Early in his tenure as chief justice, for example, the Court asserted its power to declare an act of Congress unconstitutional, in Marbury v. Madison (1803). This case had its beginnings in the presidential election of 1800, when Thomas Jefferson defeated John Adams in his bid for reelection. Before leaving office in March 1801, however, Adams and the lame-duck Federalist Congress created several new federal judgeships. To fill these new positions Adams nominated, and the Senate confirmed, loyal Federalists. In addition, Adams named his outgoing secretary of state, John Marshall, to be the new chief justice of the Supreme Court. As secretary of state it had been Marshall’s job to deliver the commissions of the newly appointed judges. Time ran out, however, and 17 of the commissions were not delivered before Jefferson’s inauguration. The new president ordered his secretary of state, James Madison, not to deliver the remaining 443

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commissions. One of the disappointed nominees was William Marbury. He and three of his colleagues, all confirmed as justices of the peace for the District of Columbia, decided to ask the Supreme Court to force Madison to deliver their commissions. They relied upon Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the authority to issue writs of mandamus – court orders commanding a public official to perform an official, nondiscretionary duty. The case placed Marshall in a predicament. Some suggested that he disqualify himself because of his earlier involvement as secretary of state. There was also the question of the Court’s power. If Marshall were to grant the writ, Madison (under Jefferson’s orders) would be almost certain to refuse to deliver the commissions. The Supreme Court would then be powerless to enforce its order. However, if Marshall refused to grant the writ, Jefferson would win by default. The decision Marshall fashioned from this seemingly impossible predicament was evidence of sheer genius. He declared Section 13 of the Judiciary Act of 1789 unconstitutional because it granted original jurisdiction to the Supreme Court in excess of that specified in Article III of the Constitution. Thus the Court’s power to review and determine the constitutionality of acts of Congress was established. This decision is rightly seen as one of the single most important decisions the Supreme Court has ever handed down. A few years later the Court also claimed the right of judicial review over actions of state legislatures; during Marshall’s tenure it overturned more than a dozen state laws on constitutional grounds. TASK VI.  a) Describe the changing issue emphasis of the Supreme Court and discuss the trends in the Court’s policy: Until approximately 1865 the legal relationship between the national and state governments, or cases of federalism, 444

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dominated the Court’s docket. John Marshall believed in a strong national government and did not hesitate to restrict state policies that interfered with its activities. A case in point is Gibbons v. Ogden (1824), in which the Court overturned a state monopoly over steamboat transportation on the ground that it interfered with national control over interstate commerce. Another good example of Marshall’s use of the Court to expand the federal government’s powers came in McCulloch v. Maryland (1819), in which the chief justice held that the Constitution permitted Congress to establish a national bank. The Court’s insistence on a strong national government did not significantly diminish after Marshall’s death. Roger Taney, who succeeded Marshall as chief justice, served from 1836 to 1864. Although the Court’s position during this period was not as uniformly favorable to the federal government, the Taney Court did not reverse the Marshall Court’s direction. During the period 1865–1937 issues of economic regulation dominated the Court’s docket. The shift in emphasis from federalism to economic regulation was brought on by a growing number of national and state laws aimed at monitoring business activities. As such laws increased, so did the number of cases challenging their constitutionality. Early in this period the Court’s position on regulation was mixed, but by the 1920s the bench had become quite hostile toward government regulatory policy. Federal regulations were generally overturned on the ground that they were unsupported by constitutional grants of power to Congress, whereas state laws were thrown out mainly as violations of economic rights protected by the Fourteenth Amendment. Since 1937 the Supreme Court has focused on civil liberties concerns – in particular, the constitutional guarantees of freedom of expression and freedom of religion. In addition, an increasing number of cases have dealt with procedural rights 445

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of criminal defendants. Finally, the Court has decided a great number of cases concerning equal treatment by the government of racial minorities and other disadvantaged groups. b) Discuss the current issues raised in the opinions of the Supreme Court or the Constitutional Court in your country which reflect their policy. TASK VII.  a) Translate Alexis de Tocqueville’s words; comment on them; b ) Summarize each paragraph in 2–3 sentences: A. Almost two centuries ago, the famous student of American life and customs Alexis de Tocqueville wrote, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” That statement is still accurate today, and it poses a unique dilemma for American courts. How can judges resolve issues that, by their nature, are political rather than legal? The answer lies in the structure of the judicial branch and the decision-making process in which judges engage. B. Unlike judges in many other countries, American judges are drawn from the ranks of ordinary lawyers and installed on the bench without any specialized training. Not even Supreme Court justices, although they often have prior experience on other courts, receive specialized training beyond the legal education of every lawyer in the United States. And while individuals (including future Supreme Court justices) studying to become lawyers may choose to emphasize particular subject areas, such as employment law or antitrust law, there are no courses that aim to prepare them for a judicial career. C. Supreme Court justices, then, begin their careers as lawyers. Their backgrounds, their political preferences, and 446

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their intellectual inclinations are, in theory, as diverse as might be found in any group of lawyers. This diversity on the Supreme Court – especially political diversity – is somewhat narrowed by the process through which justices are chosen: each is nominated by the president and must be confirmed by a majority vote in the Senate. Once appointed, justices serve until they die or choose to retire; there are no fixed terms and no mandatory retirement. Vacancies on the Supreme Court are thus sporadic and unpredictable, and the political views of any particular justice will depend on the political landscape at the time of his or her appointment. A popular president whose party is in the majority in the Senate will likely make very different choices than a weak president faced with a Senate in which the opposing party has the majority. D. At any particular time, the Court will consist of justices appointed by different presidents and confirmed by different Senates. As the Court began its term in October 2012, for example, the nine sitting justices were appointed by five different presidents – three Republicans and two Democrats. The diversity of political views on the Court and the periodic appointment of new justices guarantee that no single political faction will reliably prevail for long. E. Differences aside, all of the justices share a commitment to uphold the Constitution. Their fidelity to that goal makes the United States a country governed by the rule of law, rather than by the rule of men. The justices, in interpreting and applying the Constitution and laws, do not view themselves as Platonic guardians seeking to govern an imperfect society but, instead, as faithful agents of the law itself. The Supreme Court can, and does, decide political questions, but does so using the same legal tools that it uses for any legal question. If it were otherwise, the Court might jeopardize its own legitimacy: the public might not regard it as an institution particularly worthy of respect. 447

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NOTE TO THE TEXT Alexis de Tocqueville (1805–1859) – a French political thinker and historian best known for his works Democracy in America (appearing in two volumes: 1835 and 1840) and The Old Regime and the Revolution (1856).

c) Describe a typical judicial career in your country.

TEXT 3 CONSTITUTIONAL GUIDE AND MODERN DEVELOPMENTS The Court Jurisdiction The Supreme Court has both original and appellate jurisdiction. Original jurisdiction means that a court has the power to hear a case for the first time. The most important subject of such jurisdiction is a suit between two or more states. The Court shares original jurisdiction (with the U.S. district courts) in certain cases brought by or against foreign ambassadors or consuls, in cases between the United States and a state, and in cases commenced by a state against citizens of another state or another country. In situations such as these, where jurisdiction is shared, the courts are said to have concurrent jurisdiction. Cases over which the Supreme Court has original jurisdiction are often important, but they do not constitute a sizable proportion of the overall caseload. In recent years less than 1 percent of the High Court’s docket consisted of cases heard on original jurisdiction. Appellate jurisdiction means that a higher court has the authority to review cases originally decided by a lower court. The Supreme Court is overwhelmingly an appellate court since 448

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most of its time is devoted to reviewing decisions of lower courts. It is the highest appellate tribunal in the country. As such, it has the final word in the interpretation of the Constitution, acts of legislative bodies, and treaties – unless the Court’s decision is altered by a constitutional amendment or, in some instances, by an act of Congress. Since 1925 a device known as “certiorari” has allowed the Supreme Court to exercise discretion in deciding which cases it should review. Under this method a person may request Supreme Court review of a lower court decision; then the justices determine whether the request should be granted. If review is granted, the Court issues a writ of certiorari, which is an order to the lower court to send up a complete record of the case. Historically, the Supreme Court has agreed to grant the petition for a writ of certiorari in only a tiny proportion of cases – usually less than 10 percent of the time, and in recent years the number has been closer to 1 percent. When a writ of certiorari is denied the decision of the lower court stands. Another method by which the Supreme Court exercises its appellate jurisdiction is certification. This procedure is followed when one of the appeals courts asks the Supreme Court for instructions regarding a question of law. The justices may choose to give the appellate judges binding instructions, or they may ask that the entire record be forwarded to the Supreme Court for review and final judgment. Federal v. State Laws As written in 1787, the Constitution had only 4,500 words. It left many questions unanswered. Foremost among them was: What about the states? The representatives of 12 of the 13 original states (Rhode Island did not participate) wrote and ratified the plan for a government of the new “United States,” yet then, as now, most day-to-day governing took place at the state and 449

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municipal levels. There, citizens register to vote. There, roads, schools, parks and libraries are built and operated. There, police and fire departments protect the public’s safety. The Supreme Court has devoted much of its time to adjudicating conflicts between the powers of the federal government and the powers of the states and localities. It has not resolved all the conflicts. The Civil War began in 1861 when the Southern states asserted a right to secede from the United States. Such federal–state conflicts, while not so incendiary, continue today. Nearly every term, the court decides several cases involving federal-state conflicts. Many products, including prescription drugs, are tightly regulated from Washington by the federal Food and Drug Administration. So, can a patient who is hurt by a regulated drug sue the manufacturer under a state’s consumer protection law? Yes, the court said in Wyeth v. Levine, deciding the federal law did not displace the state’s law. Diana Levine, a musician from Vermont, sued Wyeth, a drug maker, after she was injected with an anti-nausea drug and suffered a horrible complication. She did not know, nor did the nurse who injected her, that this drug could cause gangrene if it were injected into an artery. Levine’s lower arm was amputated, and the Supreme Court upheld the jury’s $7 million verdict against the drug maker. In 2012, however, the court said the federal immigration law can displace a state’s policy of aggressive enforcement against illegal immigrants. In Arizona v. United States, the court rejected most of a state law that authorized local police to arrest and jail illegal immigrants over the objections of federal officials. Justice Anthony Kennedy said the Constitution makes federal measures “the supreme law of the land.” NOTES TO THE TEXT Caseload – the number of cases handled by a judge or a court. 450

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Court’s docket – the name of “docket” or “trial docket” is sometimes given to the list or calendar of cases set to be tried at a specified term, prepared by the clerks for the use of the court and bar. Writ of certiorari – an order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal. Certification – one of the three methods by which a federal case may be appealed to the U.S. Supreme Court, whereby the court of appeals “certifies” a legal question on which it needs guidance in a civil or criminal case. Consumer protection – consumer protection laws are federal and state statutes governing sales and credit practices involving consumer goods. Such statutes prohibit and regulate deceptive or unconscionable advertising and sales practices, product quality, credit financing and reporting, debt collection, leases, and other aspects of consumer transactions. Anti-nausea drug – (medicine) preventing vomiting. Anthony Kennedy (1936) – an associate justice on the U.S. Supreme Court appointed by Ronald Reagan in 1988. LANGUAGE PRACTICE AND COMPREHENSION CHECK

ACTIVE VOCABULARY to commence, to share, to grant, to adjudicate, to secede, to arise, to stifle, to persuade, incendiary, outrageous TASK I.  a) Match the above words to their definitions: 1) grossly offensive to decency or morality; being well beyond the bounds of good taste; having no regard for morality; violent or unrestrained in temperament or behavior; 2) tending to inflame; inflammatory; tending to create strife, violence, etc.; 451

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3) to settle or determine (an issue or dispute), to hear or try and determine judicially; to act as a judge; 4) to consent to perform or fulfill; to permit as a favour, indulgence; to acknowledge the validity of; concede; 5) to induce to undertake a course of action or embrace a point of view by means of argument or reasoning; to prevail, to convince; 6) to start or begin; come or cause to come into being, operation, etc.; 7) to participate in, use, enjoy, or experience jointly or in turns; to relate (a secret or experience, for example) to another or others; to have a part; 8) to withdraw formally from an alliance, federation, or association; 9) to keep in or hold back, repress, curb, or withhold; to interrupt or cut off (one’s voice); 10) to come into being; originate (from); to spring or proceed as a consequence; result; to come into notice. b) Add the verbs from ACTIVE VOCABULARY to complete the sentences: 1. The fact that federal judges … several hundred thousand cases a year is impressive; the fact that state courts handle several million a year is overwhelming, even if the most important cases are handled at the federal level. 2. The Senate has been inclined to dispute the president if disagreement … over a nominee’s fitness for the Supreme Court. 3. Courts … alleged violations of and disputes arising under the law. 4. At issue in Martin was Section 25 of the Judiciary Act that … the Supreme Court jurisdiction to hear appeals from state courts in cases where a federal law or the Constitution was involved. 452

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5. It was evident from The Federalist that the principal aim of the commerce clause was the protection of the national market from the oppressive power of individual States acting … or curb commerce. 6. Sometimes a statute empowers an agency to investigate violations of its rules, … those violations, and even to assess penalties! 7. For fiscal year 2002 slightly more than 340,000 cases were … in the federal district courts. 8. The Federalist Papers were intended … the citizens of New York to ratify the Constitution. 9. Criminal Cases … when the local U.S. attorneys have reason to believe that a violation of the U.S. Penal Code has occurred. 10. The courts will invalidate a statute that … an agency too much power. 11. Since “all treaties” are also “the supreme law of the land” (Article VI, Clause 2), treaties … characteristics of statutes (a legislative product). 12. Lincoln won the presidential election in fall 1860. Soon after, the American Civil War erupted when South Carolina became the first … . Several other states in the South followed suit over the next several months, and the nation was divided between Union forces in the North and Confederate forces in the South. c) Use the GLOSSARY to translate the following passages: 1. President Jackson, in his annual message to Congress in 1835, expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation. 2. The House’s vote to impeach President Clinton arguably amounted to an affirmative answer, but the Senate’s acquittal 453

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leaves the matter somewhat unsettled. There appeared to be broad consensus in the Senate that some private crimes not involving an abuse of power (e.g., murder for personal reasons) are so outrageous as to constitute grounds for removal, but there was no consensus on where the threshold for outrageousness lies, and there was no consensus that the perjury and obstruction of justice with which President Clinton was charged were so outrageous as to impair his ability to govern, and hence to justify removal. Similarly, the almost evenly divided Senate vote to acquit meant that there was no consensus that removal was justified on the alternative theory that the alleged perjury and obstruction of justice so damaged the judiciary as to constitute an impeachable “offense against the state.” 3. The Court asserted that error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects. 4. Sectional tensions between Northern and Southern states had noticeably surfaced in the middle of the 19th century. One such tension involved the institution of slavery, which existed long before the Constitutional Convention convened in 1787. However, slavery was only one issue that caused Southern states to secede from the Union. 5. Since 1925 a device known as “certiorari” has allowed the Supreme Court to exercise discretion in deciding which cases it should review. Under this method a person may request Supreme Court review of a lower court decision; then the justices determine whether the request should be granted. If review is granted, the Court issues a writ of certiorari, which is an order to the lower court to send up a complete record of the case. When certiorari is denied, the decision of the lower court stands. 454

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6. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State (Amendment XI). 7. Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced, but this movement does not begin until the articles have been shipped or started for transportation from one state to the other. 8. Once the journey toward another state actually commences, the goods become interstate commerce and are subject to regulation by the federal government. 9. The lion’s share of the nation’s judicial business exists at the state, not the national, level. 10. The most visible members of the courtroom workgroup – judges, prosecutors, and defense attorneys – are associated with specific functions: Prosecutors push for convictions of those accused of criminal offenses against the government, defense attorneys seek acquittals for their clients, and judges serve as neutral arbiters to guarantee a fair trial. Despite their different roles, members of the courtroom workgroup share certain values and goals and are not the fierce adversaries that many people imagine. 11. Property crimes make up the lion’s share of the 31.3 million conventional crimes committed annually in the United States. 12. At the pretrial conference, the judge and the attorneys try to come to agreement on uncontested factual issues, which are known as stipulations. The purpose of stipulations is to make the actual trial more efficient by reducing the number of issues that must be argued in court. The attorneys also share with each other a list of witnesses and documents that are part of each case. 455

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13. Every business day, courts throughout the United States render decisions that together affect many thousands of people. Some affect only the parties to a particular legal action, but others adjudicate rights, benefits, and legal principles that have an impact on virtually all Americans. 14. Every day across America, federal, state, and local courts interpret laws, adjudicate disputes under laws, and at times even strike down laws as violating the fundamental protections that the Constitution guarantees all Americans. 15. The defendant may also create a separate action known as a counterclaim. If the defendant thinks that a cause of action against the plaintiff arises from the same set of events, then he or she must present the claim to the court in response to the plaintiff’s claim. 16. Marshall’s goal was to keep dissension to a minimum. Arguing that dissent undermined the Court’s authority, he tried to persuade the justices to settle their differences privately and then present a united front to the public. TASK II. Use the examples below to determine whether “since” is A) a preposition or B) an injunction like in the following examples: A) Since 1925 a device known as “certiorari” has allowed the Supreme Court to exercise discretion in deciding which cases it should review. B) The Supreme Court is overwhelmingly an appellate court since most of its time is devoted to reviewing decisions of lower courts. 1. Since the proceedings in trial courts of limited jurisdiction are not recorded, appeals of their decisions usually go to a trial court of general jurisdiction for what is known as a trial “de novo” (new trial). Yet another distinguishing characteristic of trial courts of limited jurisdiction is that the presiding judges of such courts are often not required to have any formal legal training. 456

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2. The owner of a restaurant that has since been closed refused to serve persons of color in Birmingham, Alabama. This violation was in direct affront to Title II of the Civil Rights Act of 1964. 3. Anthony M. Kennedy has served as an associate justice of the Supreme Court since his nomination by President Ronald Reagan in 1988. 4. Federal prisoners have a somewhat wider range for their appeals since all their rights and options are within the scope of the U.S. Constitution. 5. For appointments to the appeals courts, senatorial courtesy does not apply, since the vacancy to be filled covers more than just the state of one or possibly two senators. But senators from each state in the circuit in which the vacancy has occurred customarily submit names of possible candidates to the president. An unwritten rule is that each state in the circuit should have at least one judge on that circuit’s appellate bench. 6. The story of the legislative veto is a story about separation of powers. Accompanying the rise of a vast federal bureaucracy during and since the New Deal has been a concern about the proper relationships among the legislative, executive, and judicial branches of government, including concern about the loss of congressional responsibility over the specific contours of federal law. 7. The line-item veto is a proposal that would allow the president to veto certain items from a budget bill, rather than requiring the president to veto the entire bill. This type of veto power has been requested by several presidents, and at least all since Ronald Reagan was in office. 8. The Court reasoned that since Article IV primarily prescribes the duties of Congress, it follows that the Founders wanted Congress – not the courts – to oversee the forms of government in the several states. 457

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9. A second trial is not considered to be double jeopardy, since the defendant has chosen to appeal the original conviction. 10. Since the founding of the republic, domestic relations – and the policies associated with them, marriage, divorce, survivor rights, child custody – remained the responsibility of the states. 11. Since each state is constitutionally granted one representative and two senators, regardless of size, the smallest number of electoral votes a state can have is three. 12. Since executive orders give presidents the means to enact binding public policies by a mere stroke of the pen, presidents have often used them to circumvent Congress and the rigors of the normal policy-making process. 13. Megan’s Law is not such an unusual law, since information about convicted criminals has always been public information. In fact, sex offender registration laws had existed in five states since 1986 and in almost half of the states by 1993. 14. Since the Constitution does not explicitly distinguish between domestic and foreign affairs, the judiciary often is involved in settling questions of foreign policy powers. 15. Since the hotel received most of its customers from other states, it did participate in interstate commerce. 16. After September 11, 2001, President George W. Bush created a facility at the U.S. Naval Station at Guantánamo Bay, Cuba, to incarcerate individuals who were suspected of being involved in the events of 9/11 or other acts of terrorism. These individuals were declared by the president to be “enemy combatants,” not entitled to protections under international law, such as the Geneva Convention Relative to the Treatment of Prisoners of War, and were ordered held without habeas corpus protection. The president contended that since these individuals were either enemy combatants, noncitizens, or were located at a faculty outside of United States’ sovereign control, habeas did not apply. 458

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17. Justiciability refers to the question of whether or not a case presented to a court is capable of judicial resolution. In other words, federal courts do not necessarily have the authority, or jurisdiction, to decide every case presented to them, since limits are placed on their power by the U.S. Constitution. TASK III.  Add the following tribunals to complete the sentences below: a) the Court of Appeals b) the trial courts and the appellate courts c) the district court d) the United States Supreme Court e) district courts f) the United States district courts g) the Supreme Court h) United States court of appeals i) the federal or state courts j) the Supreme Court k) the Court of International Trade l) trial courts m) the United States Court of Federal Claims n) the district courts 1. … is the highest court in the federal Judiciary. 2. Congress has established two levels of federal courts under the Supreme Court: …. 3. … consists of the Chief Justice of the United States and eight associate justices. 4. At its discretion, and within certain guidelines established by Congress, … each year hears a limited number of the cases it is asked to decide. 5. The cases may begin in … , and they usually involve important questions about the Constitution or federal law. 459

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6. … are the trial courts of the federal court system. 7. Within limits set by Congress and the Constitution, … have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. 8. Each district includes a United States bankruptcy court as a unit of … . 9. Three territories of the United States – the Virgin Islands, Guam, and the Northern Mariana Islands – have … that hear federal cases, including bankruptcy cases. 10. There are two special … that have nationwide jurisdiction over certain types of cases. 11. … addresses cases involving international trade and customs issues. 12. … has jurisdiction over most claims for monetary damages against the United States, disputes over federal contracts, unlawful “taking” of private property by the federal government, and a variety of other claims against the United States. 13. The 94 judicial districts are organized into 12 regional circuits, each of which has a … . 14. … for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims. TASK IV.  a) Read the text about the “cases and controversies” provision and say whether the constitutional rule in question is strictly observed: To understand when the Supreme Court’s actions may go beyond its proper powers, one must consider the source of its powers. The United States Constitution, in Article III, section 2, provides that the judicial power extends to cases and controversies. This section thus provides both for judicial power and for a limitation on that power. 460

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The Supreme Court has power to decide cases and controversies, but such power is limited solely to those questions that are presented to it by the parties to an actual case or controversy. The Court itself has recently recognized that: “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” This is because “the judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” and “must ‘refrain from passing upon the constitutionality of an act unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’” The requirement that an actual case or controversy must be at issue before the Court has the power to act is closely tied to separation of powers under the Constitution. The Court itself has explained that the words “cases and controversies” define the role assigned to the judiciary in a tripartite allocation of powers to assure that the federal courts will not intrude into areas committed to the other branches of government.” The case or controversy rule “limits the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” The case or controversy requirement makes clear that the Court’s function is to decide and remedy violations of laws, and enjoin and redress constitutional violations. Limitations on the Court’s powers were intended to prevent the unelected judiciary from intruding upon the power of the legislative 461

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branch to create laws or the power of the executive to enforce them. According to the Framers, the inability of the Court to exercise power beyond justiciable controversies brought to it for decision would prevent abuses and judicial overreaching. The Framers wanted to ensure that the Court had no involvement in the legislative act of creating laws. Their fear of judicial overreaching into the legislature’s prerogatives is readily seen in the repeated rejection by the Constitutional Convention of 1787 of a proposed Council of Revision, which would have been composed of the President and members of the judiciary. As proposed, the Council’s task would have been to review and possibly veto federal laws before they would go into effect. The Constitutional Convention rejected the Council in order to ensure complete separation of the courts from the legislature. The insistence on separation stemmed from fear that any participation by the judiciary in any way in the legislative process would give it too much power. Thus, the requirement that the Court can only resolve cases and controversies properly brought before it by litigants was expected to keep judicial powers separate from those of the other two branches of government. This requirement provides the most basic structural parameter for the proper role of the Court. One might argue that the “case or controversy” requirement refers to cases, and not to issues within those cases, and that the Justices can raise related issues not presented by the parties. While this may be reasonable in certain instances, it should be limited to exceptional circumstances. The Supreme Court Rules themselves limit the possibility of raising issues not included within the questions presented by the parties, requiring that “only the questions set out in the petition, or fairly included therein, will be considered by the Court.” It would thus appear contrary to the Court Rules for the Court to consider a question 462

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not fairly included within the petition for a writ of certiorari. The reasons for this rule are to enable the Court to know what is involved in the case, to have the questions that are raised in the case tested by the adversary process before certiorari is granted, and to ensure that an adequate record was made in the lower courts with respect to the questions presented. As the Court has noted: “Prudence dictates awaiting a case in which the issue was fully litigated below, so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question. Applying our analysis to the facts of a particular case without the benefit of a full record or lower court determinations is not a sensible exercise of this Court’s discretion.” b) Compare the functions and jurisdiction of the highest court in your country with those of the US Supreme Court; use the following expressions: I’m convinced … . I suspect … . I have always believed that … . From my point of view … . I feel that … . The way I see it … . Generally speaking … . As far as … is/are concerned … . I am afraid … . I don’t think … . TASK V.  Read the text to explain how the Court policies are reflected in its opinions: The court’s best-known decisions in recent decades arose from constitutional claims involving individual rights. The Bill of Rights protects the freedom of speech, the free exercise of 463

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religion, and the freedom from an official “establishment of religion” and from “unreasonable searches” and “cruel and unusual punishments.” Those rights are tested every year in real cases. The court invoked the Eighth Amendment’s ban on “cruel and unusual punishments” to limit harsh treatment for young offenders. In 2005, the justices abolished the death penalty for convicted murderers under the age of 18 (Roper v. Simmons), and they later said that young offenders may not be sentenced to life in prison with no hope of parole for crimes such as robbery or rape (Graham v. Florida (2010)). More recently, the court took a third step and ruled that, before juvenile murderers are sentenced to prison for life, a judge must weigh their youth as a reason for a lesser term (Miller v. Alabama (2012)). The principle of free speech is a pillar of the Constitution, and the court has said it will protect the rights of unpopular speakers, even when their words are outrageous and hurtful. In 2009, the court rejected a multimillion dollar jury verdict against a Kansas minister and his family for picketing and carrying signs at the funerals of soldiers who fought in Iraq. “Thank God for Dead Soldiers,” one said. Chief Justice John Roberts said it is tempting to punish speakers whose words are the most offensive. “As a nation, we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” he said in Snyder v. Phelps. The court in 2012 upheld the free-speech rights of liars and boasters when it struck down the Stolen Valor Act, a federal law that made it a crime to falsely claim to have won military honors (United States v. Alvarez). The court also must decide whether the government can use public money to shape the message of others. Several international groups working to combat HIV and AIDS objected to a U.S. federal funding law that required them, as a condition 464

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of receiving money, to have a public policy “explicitly opposing prostitution and sex trafficking.” They said such a policy would make it more difficult to persuade sex workers to come for testing and treatment. Early in 2013, the court agreed to rule on whether forcing a private group to espouse a government’s policy violated its rights to free speech (U.S. Agency for International Development v. Alliance for Open Society International). The court has given the strongest protection to speech that involves politics, but that, too, has provoked controversy. In 2010, the justices ruled that Citizens United, a small incorporated political group, had a free-speech right to make and market a DVD called Hillary: the Movie that harshly portrayed former first lady and then–New York Senator Hillary Rodham Clinton as she ran for president in 2008. The ruling set off a political furor because it made void a long-standing federal ban on campaign spending by corporations. The story may not be over. Opponents to the Citizens United decision, including several states, are urging Congress to pass a Constitutional amendment to reverse the Supreme Court decision. In the past, critics have faulted the court’s decisions which struck down long-standing practices, such as segregation in public schools (Brown v. Board of Education (1954)), official prayers in public schools (Engel v. Vitale (1962)), laws against abortion (Roe v. Wade (1973)) or laws directed against gays and lesbians (Lawrence v. Texas (2003)). But the justices say the Constitution’s drafters wrote a government charter designed to protect freedom, one that could be adapted to changing times. “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Kennedy wrote in the Lawrence decision. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” 465

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TASK VI.  Comprehension check and discussion points – CONSTITUTIONAL GUIDE AND MODERN DEVELOPMENTS and TASKS IV, V: 1. Describe the original jurisdiction of the Supreme Court. 2. Do highest national courts usually exercise original jurisdiction? Why do they do so in the USA? 3. Describe the appellate jurisdiction of the Court. How does the Court chooses the petitions? 4. What are the consequences of “a writ of certiorari is granted” and “a writ of certiorari is denied”? 5. Explain the legal importance of the constitutional “cases and controversies” requirement. 6. Describe the recent cases heard by the Court and the Court rulings. 7. Say whether “The first Court still sitting” is an absolutely positive characteristics or not.

TEXT 4 THE COURT AND ITS PROCEDURES A Term of the Supreme Court begins, by statute, on the first Monday in October. Usually Court sessions continue until late June or early July. The Term is divided between “sittings,” when the Justices hear cases and deliver opinions, and intervening “recesses,” when they consider the business before the Court and write opinions. Sittings and recesses alternate at approximately two-week intervals. With rare exceptions, each side is allowed 30 minutes argument and up to 24 cases may be argued at one sitting. Since the majority of cases involve the review of a decision of some other court, there is no jury and no witnesses are 466

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heard. For each case, the Court has before it a record of prior proceedings and printed briefs containing the arguments of each side. During the intervening recess period, the Justices study the argued and forthcoming cases and work on their opinions. Each week the Justices must also evaluate more than 130 petitions seeking review of judgments of state and federal courts to determine which cases are to be granted full review with oral arguments by attorneys. When the Court is sitting, public sessions begin promptly at 10 a. m. and continue until 3 p. m., with a one-hour lunch recess starting at noon. No public sessions are held on Thursdays or Fridays. On Fridays during and preceding argument weeks, the Justices meet to discuss the argued cases and to discuss and vote on petitions for review. Prior to hearing oral argument, other business of the Court is transacted. On Monday mornings this includes the release of an Order List, a public report of Court actions including the acceptance and rejection of cases, and the admission of new members to the Court Bar. Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard. The Court maintains this schedule each Term until all cases ready for submission have been heard and decided. In May and June the Court sits only to announce orders and opinions. The Court recesses at the end of June, but the work of the Justices is unceasing. During the summer they continue to analyze new petitions for review, consider motions and applications, and must make preparations for cases scheduled for fall argument.

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I.  Find the following terms in the text and translate the sentences with them: 1) sittings – the part of the year in which judicial business is transacted. A session or term of court; usually plural; 2) recess – in the practice of the courts, a short interval or period of time during which the court suspends business, but without adjourning. The period between sessions of court; 3) motion – an application requesting a court to make a specified order. Though it is properly classifiable as a court paper, a motion is not a pleading; 4) application – in some jurisdiction this term is merely a variant name for motion. Where that is so, motion is the better term; 5) pleading – (1) the art of preparing formal statements in lawsuits; (2) a document containing the written allegations of fact that each party is required to communicate to the opponent before trial, so that each will know what contentions must be met by the evidence. In sense (2), pleading should be distinguished from court paper, which is a broader term. Motions, briefs, and affidavits are court papers, not pleadings. Examples of pleadings are complaints, petitions, counter-claims, and answers; 6) brief – (1) in AmE, the written arguments of counsel for consultation by the court; (2) in BrE a document by which a solicitor instructs a barrister with an abstract of the pleadings and facts as the barrister prepares to appear as an advocate in court; (3) in BrE a barrister’s authority to appear; (4) in AmE and BrE, an abstract of all the documents affecting the title to real property (known also as abstract of title); 7) oral argument – an opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions. 468

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TASK II.  a) Use the text to provide the broader context for the following: …30 minute argument… …up to 24 cases… …more than 130 petitions… …until 3 p.m… …the 10 a.m. entrance of the Justices… b) Use the prepositions in brackets to complete the sentences: 1. Oral arguments are generally scheduled … Monday … Wednesday … the sittings. (through, on, during) 2. The sessions run … 10:00 a.m. … noon and … 1:00 … 3:00 p.m. (until, until, from, from) 3. The two opposing attorneys present their arguments … the justices. The Court can normally hear four cases … one day. (to, in) 4. Attorneys presenting oral arguments are frequently interrupted … questions … the justices. (with, from) 5. The chief justice presides … the conference and offers an opinion first … each case. (in, over) 6. The other justices follow … descending order … seniority. A quorum … a decision … a case is six members. (for, in, on, of) c) Insert the prepositions with; in; to; in about; of; before; to; without; of; to; on; in to complete the sentences: 1. The Court’s caseload has increased steadily … a current total … more than 10,000 cases on the docket per Term. 2. The increase has been rapid … recent years. 3. In 1960, only 2,313 cases were … the docket, and in 1945, only 1,460. 4. Plenary review, … oral arguments by attorneys, is granted … 100 cases per Term. 5. Formal written opinions are delivered … 80 … 90 cases. 469

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6. Approximately 50 … 60 additional cases are disposed of … granting plenary review. 7. The publication … a Term’s written opinions, including concurring opinions, dissenting opinions, and orders, approaches 5,000 pages. 8. Some opinions are revised a dozen or more times … they are announced. TASK III.  a) Compare the meanings of precede and proceed; process, procedure, proceeding; precedence and precedent: 1) precede – to come, exist, or occur before in time; to come before in order or rank; 2) proceed – to go forward or onward, especially after an interruption; to continue, go ahead; to begin to carry on an action or a process; to move on in an orderly manner; to institute and conduct legal action; 3) process – the proceedings in any action or prosecution (due process of law); a summons or writ, esp. to appear or respond in court (service of process). – Also termed judicial process; legal process; 4) procedure – a specific method or course of action; the judicial rule or manner for carrying on a civil lawsuit or criminal prosecution. – Also termed rules of procedure; 5) proceeding – the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment; any procedural means for seeking redress from a tribunal or agency; an act or step that is part of a larger action; the business conducted by a court or other official body; a hearing; (bankruptcy) a particular dispute or matter arising within a pending case as opposed to the case as a whole; 6) precedence – the order or priority in place or time observed by or for persons of different statuses (such as political 470

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dignitaries) on the basis of rank during ceremonial events; generally, the act or state of going before something else according to some system of priorities; (Parliamentary law) the ranked priority that determines whether a motion is in order while another motion is pending, or whether a pending motion yields to another motion; 7) precedent – the making of law by a court in recognizing and applying new rules while administering justice; a decided case that furnishes a basis for determining later cases involving similar facts or issues. b) Add the above words to complete the following sentences: 1. Prior cases which are close in facts or legal principles to the case under consideration are called … . 2. … is machinery for carrying on lawsuit including pleading, evidence and practice. 3. The law of … is what is commonly termed by jurists “adjective law.” 4. … refers to all the steps or measures adopted in the prosecution or defense of an action. 5. … means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given. 6. … may be overruled especially by the same court that originally rendered the decision. 7. The Supreme Court has set rules of … governing such matters as bankruptcy …, copyright cases, appellate … , civil law, and criminal law. 8. The first milestone in the evolution of federalism was laid when the U.S. Supreme Court established … for judicial review in Marbury v. Madison. 471

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c) Translate the following passages: 1. Since 1937 the Supreme Court has focused on civil liberties concerns – in particular, the constitutional guarantees of freedom of expression and freedom of religion. In addition, an increasing number of cases have dealt with procedural rights of criminal defendants. 2. The second part of the Judicial Councils Reform and Judicial Conduct and Disability Act, 1980 establishes a statutory complaint procedure against judges. 3. Attorneys presenting oral arguments are frequently interrupted with questions from the justices. The oral argument is considered very important by both attorneys and justices because it is the only stage in the process that allows such personal exchanges. 4. Most state supreme courts also follow procedures similar to those of the U.S. Supreme Court. 5. Federal cases must first be heard by the U.S. trial courts, then reviewed by one of the appellate tribunals, and finally heard by the U.S. Supreme Court. This orderly procedure of events must occur despite the importance of the case or of the petitioners who filed it. 6. In certain circumstances, however, the appellate process can be shortened. Government attorneys work at all levels of the judicial process, from trial courts to the highest state and federal appellate courts. 7. The criminal process begins when a law is first broken and extends through the arrest, indictment, trial, and appeal. There is no single criminal, or civil, court process in the United States. Instead, the federal system has a court process at the national level, and each state and territory has its own set of rules and regulations that affect the judicial process. 8. Campaign financing has been an integral part of the election process and a documented phenomenon since the preConstitution days. 472

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9. The Federal Election Commission (FEC) is the primary enforcer of election procedures and laws and was specifically created to enforce the provisions of the Federal Election Campaign Act (FECA) of 1971. 10. In the relationship between the national government and the state governments, the authority of the federal courts takes precedence over state law. According to the Court, that result was inherent in the federal system established by the U.S. Constitution. 11. An important statute called the Administrative Procedure Act explains the procedures agencies must follow when promulgating rules, judging violations, and imposing penalties. It also lays out how a party can seek judicial review of an agency’s decision. 12. A 1990 study found that especially since 1954, “judicial retirement/resignation rates have been strongly influenced by political / ideological considerations, and infused with partisanship,” thus indicating that many jurists view themselves as part of a policy link between the people, the judicial appointment process, and the subsequent decisions of the judges and justices. 13. Since 1789 the House of Representatives has initiated impeachment proceedings against only 13 jurists – although about an equal number of judges resigned just before formal action was taken against them. Of these 13 cases, only seven resulted in a conviction, which removed them from office. 14. The decision agreed with a number of earlier precedents. 15. Major precedent-setting cases involving public education include Engel v. Vitale (1962), Epperson v. Arkansas (1968) and Lemon v. Kurtzman (1971). TASK IV.  Combine the two parts from A and B to make up sentences: 473

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A 1) Because the Supreme Court procedure is not a trial or the original hearing of a case, … . 2) The general practice is to allow 30 minutes for each side, … . 3) The oral argument is considered very important by both attorneys and justices ... . 4) At the Friday conference they discuss the cases that were argued on Tuesday and Wednesday, … . 5) Prior to the Friday conference each justice is given a list of the cases … Supreme Court decisions are made by a majority vote and in case of a tie … . 6) Cases are sometimes decided by fewer than nine justices … . 7) … they shake hands and take their seats around a rectangular table. 8) … and no official record is kept of the discussions. 9) Jurisdiction, of course, merely defines the universe of cases … . 10) The Constitution does not compel the Court … . 11) Sometimes outside groups interested in establishing a legal principle will assist a litigant in a particular case, … . 12) … only when they are embedded in specific cases between real litigants. B a) As the justices enter the conference room b) Constitutional controversies come to the Supreme Court c) They meet behind locked doors, d) in hopes of framing an appeal that will reach the Supreme Court. e) no jury is assembled and no witnesses are called. f) that are eligible for review. g) although the Court may decide that additional time is necessary. 474

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h) because of vacancies, illnesses, or nonparticipation resulting from possible conflicts of interest. i) plus any other matters that need to be considered. j) that will be discussed; the lower-court decision is upheld. k) because it is the only stage in the process that allows such personal exchanges. l) to accept any particular appeal. TASK V.  a) Match the Bench-expressions: Bench legislation, Bench warrant, Bench and bar, Bench conference, Bench blotter, to take the Bench, Bench trial to their definitions: 1) to be appointed to a judicial office and is opposite to retire from the bench; 2) judges collectively and attorneys as a whole; 3) record of arrests and other happenings kept by police; 4) a meeting at the judge’s bench prior to, during or after a trial or hearing between counsel and the judge to discuss a matter pertaining to such proceeding. Commonly called to discuss questions of evidence out of hearing of jury; it may or may not be made part of the written record of the proceeding; 5) laws having their source in judicial decisions as opposed to laws having their source in statutes or administrative regulations; 6) jury waived trial; trial held before judge sitting without a jury; 7) process used by the court itself, or “from the bench,” for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found, or to bring in a witness who fails to obey a subpoena. b) Explain the meaning of the expression from the text “when the Court takes the Bench”, compare it with the one above. 475

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TASK VI.  Read Rule 17 from RULES OF PROCEDURE in the Supreme Court to describe the procedure in an original action: 1. This Rule applies only to an action invoking the Court’s original jurisdiction under Article III of the Constitution of the United States. See also 28 U. S. C. § 1251 and U. S. Const., Amdt. 11. A petition for an extraordinary writ in aid of the Court’s appellate jurisdiction shall be filed as provided in Rule 20. 2. The form of pleadings and motions prescribed by the Federal Rules of Civil Procedure is followed. In other respects, those Rules and the Federal Rules of Evidence may be taken as guides. 3. The initial pleading shall be preceded by a motion for leave to file, and may be accompanied by a brief in support of the motion. Forty copies of each document shall be filed, with proof of service. Service shall be as required by Rule 29, except that when an adverse party is a State, service shall be made on both the Governor and the Attorney General of that State. 4. The case will be placed on the docket when the motion for leave to file and the initial pleading are filed with the Clerk. The Rule 38(a) docket fee shall be paid at that time. 5. No more than 60 days after receiving the motion for leave to file and the initial pleading, an adverse party shall file 40 copies of any brief in opposition to the motion, with proof of service as required by Rule 29. The Clerk will distribute the filed documents to the Court for its consideration upon receiving an express waiver of the right to file a brief in opposition, or, if no waiver or brief is filed, upon the expiration of the time allowed for filing. If a brief in opposition is timely filed, the Clerk will distribute the filed documents to the Court for its consideration no less than 10 days after the brief in opposition is filed. A reply brief may be filed, but consideration of the case 476

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will not be deferred pending its receipt. The Court thereafter may grant or deny the motion, set it for oral argument, direct that additional documents be filed, or require that other proceedings be conducted. 6. A summons issued out of this Court shall be served on the defendant 60 days before the return day specified therein. If the defendant does not respond by the return day, the plaintiff may proceed ex parte. 7. Process against a State issued out of this Court shall be served on both the Governor and the Attorney General of that State. TASK VII.  a) Read the text to comment on the constitutional requirements to judiciary in the USA and in your country: The Constitution provisions that established the Supreme Court deliberately provide only a few basic jurisdictional rules. They do not dictate the procedures under which the Supreme Court does its business. Indeed, they are quite vague about the Court’s composition. Article III does not limit the number of Supreme Court judges (justices), and Congress, which has the power to alter the Court’s size and composition, has not done so in more than a century, even as the volume of applications to the Court has grown dramatically. Moreover, by its own decision, the Court continues to hear cases sitting only en banc (with all justices participating). Unlike some modern constitutions, the U.S. Constitution does not explicitly command judges to explain their decisions in writing, but American courts, including the Supreme Court, long ago adopted the practice of issuing written opinions explaining and enlarging upon their judgments. Whereas it was (and is) the practice of multi-judge English courts to publish the separate opinions of each judge involved, the U.S. Supreme Court early embraced the alternative of joint opinions 477

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written by one of the justices and endorsed by one or more of the others. The complete text of these opinions has long been widely published, so that all in America, and elsewhere for that matter, may review almost immediately the legal reasoning on which important judgments are founded. From the beginning, dissenting justices have been heard and their dissents published alongside the majority opinion (or opinions). This allows readers to see, for example, how close the minority view came to persuading one or more justices in the majority. There are several examples in U.S. constitutional history of dissents embodying interpretations that later supplanted the then-majority view. Although the Constitution imposes specific age, residency, and citizenship qualifications for the president of the United States and members of Congress, it sets no similar qualifications for Supreme Court justices, except that every candidate must be the president’s choice and acceptable to a majority in the Senate. No prior experience as a judge, no expertise as a constitutionalist, indeed, no training in the law at all, is formally necessary. Nevertheless, virtually every appointment has come from the pool of those with training in the law and professional experience as lawyers and judges. On a few occasions, great constitutional controversies with obviously moral dimensions (slavery, abortion, segregation) have polarized American opinion about the selection of Supreme Court justices, but whether any candidate’s sympathy with one side of a particular issue should determine his or her selection remains an open question. According to the Constitution as amended, each U.S. president serves a term of four years and may be re-elected for only one additional term. U.S. senators serve six-year terms and may be re-elected without limit, while members of the House of Representatives serve terms of two years and similarly may be 478

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re-elected without limit. On the other hand, federal court judges, including the justices of the Supreme Court, serve effectively without any limit short of their life spans. The youngest justice was appointed to the Supreme Court of the United States when he was only 29 years old. Another served on the Court for 34 years, and no new justice has joined the present Court in more than 10 years. b) Summarize the basic jurisdictional rules.

TEXT 5 A UNIQUE COURT No other court in the country matches the United States Supreme Court’s prominence and political importance. It is the final adjudicatory body for all cases, whether they originate in state or federal courts. It also hears as the original tribunal a very small number of cases involving disputes between states. No judicial appeal is available beyond the Supreme Court. Appellate cases may reach the Supreme Court by several routes. They may be appealed from state courts, from federal courts of appeals, or from the special three-judge federal courts. Unlike most other appellate courts, the United States Supreme Court may choose the cases it wishes to hear. This is fortunate, because more than five thousand cases are filed with the court every year. If the court had to hear each of these, it could give careful attention to none. The Supreme Court selects its cases carefully. Each request for a hearing, either by petition for a writ of certiorari, a writ of appeal, or certification, goes to the office of the Chief 479

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Justice. Almost half the petitions come from paupers, usually prisoners in penitentiaries. These are investigated by the Chief Justice’s law clerks, for the petitions are usually ill-prepared and cannot be evaluated on the basis of the evidence included in them. Other petitions come replete with the necessary records of previous court hearings, and these are circulated to the other eight justices. Each justice then examines (or has his law clerk examine) the petition. During a conference the justices vote on each petition for review. If four justices vote in favor of review, the case is docketed. If fewer justices favor review, the case is rejected and the decision of the lower court stands. When a case is accepted for review by the Supreme Court, the Court notifies the attorneys involved so that they can enter whatever additional briefs and materials they desire, Interest groups may also file briefs if they have the permission of the litigants, or the Court. A few cases are scheduled for oral argument, but most are decided on the basis of the records that the attorneys supply without oral argument. The justices confer on the latter cases during their conferences and decide them with a very brief opinion. These are known as per curiam decisions. The opinion simply states the decision of the Court and cites other cases that supply some reasons for the Court’s action. Cases scheduled for oral argument are handled quite differently. The Court allows each side to speak for a specified period, usually one hour but sometimes longer. The attorney must be prepared to emphasize what he believes to be the strongest parts of his case. He must also be prepared to answer whatever questions a justice may ask. The questions seek to clarify difficult problems that bother particular justices in their contemplation of the case. An attorney’s answers to questions sometimes directly affect the outcome of a case. 480

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The importance of the oral argument is well illustrated by the decision in Rathbun v. United States (1957), a case involving the power of the President to remove a member of the Federal Trade Commission. The government’s attorney, Solicitor General Reed, was asked whether the logic of his argument would also allow the president to remove a judge of the court of claims. Solicitor General Reed agreed that it would. The decision in the case emphasized this point. Justice Sutherland, writing the opinion of the Court, stated: We are thus confronted with the serious question whether not only the members of these quasi-legislative and quasijudicial bodies, but the judges of the legislative Court of Claims, exercising judicial power ... continue in office only at the pleasure of the President. We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect to offices of the character of those just named. Various justices use oral arguments differently. Some – Justice Frankfurter was a notorious example – treat attorneys as if they were law-school students and bombard them with questions. Others rarely intrude on the attorney’s argument. After oral arguments have been heard, the Court reserves its decision until later. Periodically during its term the Court goes into conference to discuss the cases that it has heard argued. The conferences are attended only by the justices; no outsider is admitted. At the conferences the justices decide which new cases to hear and how to decide the argued cases. The Chief Justice presides over the conference. His position enables him to exert great influence. He speaks first in the discussion of each case and may therefore define the issues and set the tone for the debate. In addition, he calls for the vote when the discussion appears to have reached the decisive point. Some Chief Justices, such as Taft and Hughes, have used these 481

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powers skillfully to keep the discussion moving briskly without allowing acrimonious debate. Stone, on the other hand, was not as effective in leading the conference: while he was Chief Justice, conferences sometimes lasted several days Discussion proceeds from the Chief Justice to the most junior justice according to seniority. After a vote has been taken, the justices write opinions for those cases on which they have heard argument. The opinion for the Court (that is, for the majority) is assigned by the Chief Justice if he voted with the majority; otherwise, the most senior justice in the majority makes the assignment. Assigning opinions to the justices is very important. The opinion must be written so that the majority agrees with it after it has been written. A justice who writes too extreme an opinion may find that his majority has melted away. Opinion writing assignments must also be distributed so that every justice has a manageable work load. Since quite old justices often sit on the Court, sometimes fewer opinions can be assigned to them than to the younger justices. Moreover, justices become expert in certain fields of the law. Whenever possible, cases in a particular field will be assigned to the Court’s expert. Finally, but not least important, the choice of the opinion writer rests somewhat on his reputation in the world at large. Justices, who are particularly respected, may be chosen to write opinions the Court expects will stir controversy. Chief Justice Warren, for instance, often wrote the most controversial opinions of the Court, partly at least because he felt that the added prestige of the Chief Justiceship would help win acceptance of the decision. Much bargaining accompanies the task of opinion writing. Those who disagree with the majority on the Court may, if they wish, write dissenting opinions. They may circulate the dissent among all the members of the Court in the hope of winning 482

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votes away from the majority, so that what was originally a minority view may become the majority decision. Dissenters may also seek to persuade the majority to modify their opinion in exchange for not publishing quite as stinging a dissent or not publishing one at all. Such bargaining has occasionally led to the development of caucus-like meetings, which occur before the official conference; these meetings are attended by justices who think alike but want to be better prepared for the conference. Unlike many legislative negotiations, no evidence of logrolling exists. Justices who often vote together may at times bitterly attack each other; justices who often oppose each other may be on warm personal terms. Conference voting and the negotiations that ensue take place in complete privacy. No outsider is aware of what is happening. When the opinions are completed and the justices are agreed on them, they are announced. Until a decision is announced from the Supreme Court bench, changes can be made. The action of the United States Supreme Court is the final judicial decision on the points considered by the justices in the case, but it is not the final judicial action. Only when the Court affirms lower court action does the litigation cease, in which case the only further action required is to enforce the lower court decision. When the Supreme Court reverses a lower court action, further judicial action often follows. In a criminal case the prosecution may try the defendant again; in a civil case the trial may likewise be reheard. Litigants who win before the Supreme Court often lose in the rehearing of their case. They may win the affirmation of a principle but lose their case on the particular fact in dispute. The form of the Supreme Court’s opinions also has significance for the judicial process. Its opinions provide judges, lawyers, and the world at large with statements of the Court’s reasoning and policy. At times the Court has used its opinions 483

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to invite further litigation in order to allow it to reverse previous policies. For instance, in a flag salute case, the Court’s opinion made it clear that a majority of justices was ready to reverse an earlier decision if a case involving an appropriate set of facts was appealed to it. Likewise, dissenting opinions provide lawyers with clues that may help them to argue later cases more successfully. Decisions announced without opinion also play a significant role in the judicial process. Per curiam decisions indicate that the Court feels that a matter is sufficiently well settled so the Court need not justify its decision at length. It merely refers to its past decisions and announces the results of the present case: affirmance or reversal of the lower court action. The Court often uses per curiam decisions to reverse obvious errors by lower courts. On the other hand, when it wishes to affirm a lower court without further proceedings, the Supreme Court may simply refuse to review the case, either by denying a writ of certiorari or by stating that no appeal is justified because of insufficient federal questions. These summary decisions often have substantive significance. Although the Court never says so, some refusals to review seem to signify approval of the lower court action. NOTES TO THE TEXT Stanley Reed (1884–1980) – the 23rd Solicitor General (1935– 1938), Associate Justice of the Supreme Court (1938–1957). George Sutherland (1862–1942) – Associate Justice of the Supreme Court (1922–1938) William Howard Taft (1857–1930) – the 27th President of the United States (1909–1913) and the 10th Chief Justice of the United States (1921–1930). Felix Frankfurter (1882–1965) – Associate Justice of the Supreme Court (1939–1962). 484

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Federal Trade Commission – protecting America’s consumers organization was created in 1914. President Woodrow Wilson signed FTC Act into law. Earl Warren (1891–1974) – an American jurist and politician who served as the 14th Chief Justice of the United States (1953– 1969). LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I.  a) Find the following terms in the text and translate the sentences with them; b) Compare the meanings of the terms with similar concepts if there are any in your legal system: • Writ of certiorari – certiorari means “to be informed” in Latin. An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review; certiorari is used by the U.S. Supreme Court to review the cases that it wants to hear. • Certification – one of the three methods by which a federal case may be appealed to the U.S. Supreme Court, whereby the court of appeals “certifies” a legal question on which it needs guidance in a civil or criminal case. • Penitentiary – a correctional facility or other place of longterm confinement for convicted criminals; prison. • Docket – a minute, abstract, or brief entry; or the book containing such entries. A formal record, entered in brief, of the proceedings in a court of justice. A book containing an entry in brief of all the important acts done in court in the conduct of each case, from its inception to its conclusion. The name of “docket” or “trial docket” is sometimes given to the list or calendar of cases set to be tried at a specified term, prepared by the clerks for the use of the court and bar. 485

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• To docket – to abstract and enter in a book; to make a brief entry of any proceeding in a court of justice in the docket. • Per curiam opinion – an opinion handed down by the court without identifying the individual judge who wrote the opinion. – Sometimes shortened to per curiam. • Dissenting opinion – an opinion by one or more judges who disagree with the decision reached by the majority; often shortened to dissent. – Also termed minority opinion. • Reversal – an appellate court’s overturning of a lower court’s decision. • Affirmance – the formal approval by an appellate court of a lower court’s judgment, order, or decree. • Judicial power – the authority exercised by that department of government which is charged with declaration of what law is and its construction. The authority vested in courts and judges, as distinguished from the executive and legislative power. Courts have general powers to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision; and also such specific powers as contempt powers, power to control admission and disbarment of attorneys, power to adopt rules of court, etc. • Caucus – a collection of representatives from a political party who assemble for the purpose of nominating candidates and deciding party policy. • Logrolling – the practice of giving praise or help to someone’s work in return for receiving the same; the practice in the US Congress of helping one member pass a bill in return for receiving the same help at a later time. TASK II.  a) Find the terms case and opinion in the text and compare their meanings with the following: 1) case – [lat. casus, accident, event, set of circumstances, literally act of falling]; 1. a civil or criminal suit or action; 486

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2. the reported facts, procedural history, and esp. decision in an action; 3. the evidence and arguments presented by a party in court; 2) land-mark case – a case that marks a significant turning point on a particular issue; 3) leading case – a case so well reasoned and important, in the rules of law determined and in the principles declared that it becomes well-known and is frequently cited by courts and lawyers as settling the points of law ruled upon and as useful in resolving new questions of law; 4) prima facie case – a case established by evidence that is sufficient to raise a presumption of fact or establish the fact in question unless rebutted (proved false); 5) opinion – 1. A court’s written statement explaining its decision in a given case, including statements of fact, points of law, rationale (a statement of reasons), and dicta (sing. Dictum – a statement of opinion or belief held to be authoritative because of the dignity of the person making it). – Also termed judicial opinion. 2. A formal expression of judgment or advice based on an expert’s special knowledge; especially, a document, usually prepared at a client’s request, containing a lawyer’s understanding of the law as applied to a particular case. – Also termed opinion letter. 3. A witness’s thoughts, beliefs, or inferences about facts in dispute, as opposed to personal knowledge of the fact themselves; 6) advisory opinion – a nonbonding statement by a court of its interpretation of the law on a matter submitted for that purpose. Advisory opinions are issued especially by administrative agencies and by some state courts. Federal courts are constrained by the U.S. Constitution to deciding only cases or controversies and cannot issue advisory opinions; 7) majority opinion – an opinion joined in by more than half of the judges considering a given case; 487

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8) dissenting opinion – an opinion by one or more judges who disagree with the decision reached by the majority; often shortened to dissent; also termed minority opinion; 9) concurring opinion – an opinion by a judge who agrees with the result in a case but not necessarily with the reasoning used to reach it. b) Use the GLOSSARY to translate the following passages: 1. The state attorneys general also issue advisory opinions to state and local agencies. Often, these opinions interpret an aspect of state law not yet ruled on by the courts. Although an advisory opinion might eventually be overruled in a case brought before the courts, the attorney general’s opinion is important in determining the behavior of state and local agencies. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution (U.S. Constitution, Art. III). 3. Some crimes, such as kidnapping or rape, constitute actions that virtually all citizens consider outside the sphere of acceptable human conduct, whereas other crimes constitute actions about which opinion would be divided. 4. The prosecutor and the defense attorney ask general and specific questions of the potential jurors. Are they citizens of the state? Can they comprehend the English language? Have they or anyone in their family ever been tried for a criminal offense? Have they read about or formed any opinions about the case at hand? 5. During their deliberation jurors may request the clarification of legal questions from the judge, and they may look at items of evidence or selected segments of the case transcript, but they may consult nothing else – no law dictionaries, no legal writings, no opinions from experts. 6. The neutral advisor may also issue an advisory opinion regarding the merits of the case. Generally speaking, witnesses 488

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may testify only about matters they have actually observed; they may not express their opinions. However, an important exception to this general rule is that expert witnesses are specifically called upon to give their opinions in matters within their areas of expertise. Both sides often present experts whose opinions are contradictory. When this happens, the jury must ultimately decide which opinion is the correct one. 7. The majority opinion may also be accompanied by several concurring opinions. 8. Certainly the court from which a case has been appealed will be informed of the decision. A case may be disposed of on technical or procedural grounds so that the judge does not have to rule on the actual merits of the case. It may be determined, for example, that the plaintiff does not have standing to sue or that the case has become moot because the issue was resolved before the trial commenced. 9. Amicus curiae or “friend of the court” is a person (or group), not a party to a case, who submits views (usually in the form of written briefs) about how the case should be decided. 10. Two of the most significant are cases involving a question of federal law and “diversity” cases, or disputes between citizens of two different states. Diversity jurisdiction allows each party to avoid litigating his case before the courts of his adversary’s state. 11. The opinion involves two separate cases that the Court consolidated as they both involved the same issue. 12. The learning process for new Supreme Court justices is rather hard. As with new appeals court judges, novice Supreme Court justices tend to defer to senior associates, to write fewer majority and dissenting opinions, and to manifest a degree of uncertainty. 13. In a dissenting opinion on behalf of four of the Court’s nine justices, Justice William J. Brennan, argued that the application of the death penalty to anyone under the age of 18 should be 489

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considered as cruel and unusual punishment and prohibited by the Eighth Amendment. 14. Policies established by collegial courts are often ambiguous because the majority opinion is written to accommodate several judges. The majority opinion may also be accompanied by several concurring opinions. When this happens, lower court judges are left without a clear-cut precedent to follow. 15. On occasion a justice will agree with the Court’s decision but differ in his or her reason for reaching that conclusion. Such a justice may write what is called a concurring opinion. An opinion labeled “concurring and dissenting” agrees with part of a Court ruling but disagrees with other parts. TASK III.  a) Compare the meanings and usages of opinion, decision, judgment: Decision – 1. A determination arrived at after consideration of facts, and, in legal context, law. 2. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. 3. A determination of a judicial or quasi judicial nature. 4. A judgment, decree, or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. 5. The term is broad enough to cover both final judgments and interlocutory (temporary; not final) orders. “Decision” is not necessarily synonymous with “opinion”. A decision of the court is its judgment; the opinion is the reason given for that judgment, or the expression of the views of the judge. But the two words are sometimes used interchangeably. Judgment – 1. The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. 2. The final decision of the court resolving the dispute and determining the rights and obligations of the 490

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parties. 3. The law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceeding. 4. Decision or sentence of the law pronounced by the court and entered upon its docket, minutes or record. The term “judgment” under rules of practice includes “decree”. Terms “decision” and “judgment” are commonly used interchangeably. “Sentence” and “judgment” are synonymous in criminal action and appeal from sentence is the same as appeal from judgment. The term “judgment” is also used to denote the reason which the court gives for its decision; but this is more properly denominated an “opinion.” b) Translate the following passages: 1. Final interpretation of federal laws could not be left to a state court and certainly not to several state tribunals, whose judgments might disagree. 2. Because the decision to delegate responsibilities to a magistrate judge is still made by the district judge, however, a magistrate judge’s participation in the processing of cases may be more narrow than that permitted by statute. 3. In civil cases the party that lost in the trial court is usually the appellant, but the winning party may appeal if it is not satisfied with the lower-court judgment. 4. The justices may choose to give the appellate judges binding instructions, or they may ask that the entire record be forwarded to the Supreme Court for review and final judgment. 5. American judges are also empowered to render declaratory judgments, which define the rights of various parties under a statute, a will, or a contract. 6. Sentencing is the court’s formal pronouncement of judgment upon the defendant at which time the punishment or penalty is set forth. 491

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7. Often, the expense of a trial is enough to discourage potential plaintiffs. The possibility of losing always exists. The possibility of a long wait also always exists, even if a plaintiff wins, before the judgment is satisfied – that is, if it is ever completely satisfied. 8. The complaint states the facts on which the action is based, the damages alleged, and the judgment or relief being sought. 9. Article III, Section 2 of the Constitution permits federal courts to render judgments only on real “cases” and “controversies.” 10. The Court, in its judgment, felt that a delay of a year or more from the date on which a right to a speedy trial “begins” (this being the date of arrest or indictment, whichever occurs first) could prejudice a case against a defendant. 11. Opinions of the Supreme Court, lower federal courts, and state appellate courts are available in a large number of courthouse, law school, and university libraries. They are also increasingly available on the Internet. This widespread availability does not guarantee that they will be read and clearly understood, however. Many lower-level state judges, such as justices of the peace and juvenile court judges, are non-lawyers who have little interest or skill in reading complex judicial decisions. Finally, even those judges who have an interest in higher court decisions and the ability to understand them do not have adequate time to keep abreast of all the new opinions. TASK IV.  a) Compare the meanings and usages of the verbs: to reject, to refuse, to deny, to decline: • To reject – to repudiate, decline, renounce; discard, cast off, throw out, eliminate, expel. • To refuse – to dissent, repel, rebuff, demur, shun, turn down, evade, set aside. 492

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• To deny – to contradict, disagree (with), disclaim, negate, repudiate, contravene, revoke, veto, discredit, nullify. • To refuse is direct and often emphatic in expressing determination not to accept what is offered or proposed. To decline is milder and more courteous than to refuse (as to decline an invitation). To reject is even more positive and definite than to refuse. To deny means to refuse to grant. To deny means to say that something is not true. • To reject: the offer of a better job; a request, demand, a law, an offer. • To refuse: the nomination for an office; permission, visa, a bribe, a proposal. • To deny: allegations, accusations, one’s fault, a petition, a man his rights, a suitor. b) Use the above verbs in the following passages: 1. The historically crucial power of “judicial review,” Hamilton argued, was an appropriate check on the legislature, where it was most likely that “the pestilential breath of faction may poison the fountains of justice.” Hamilton explicitly ... the British system of allowing the Parliament to override by majority vote any court decision it finds displeasing. 2. The new secretary of state under President Jefferson, James Madison, ... to deliver the commissions because the new administration was angry that the Federalists had tried to entrench members of their party in the judiciary. Marbury brought suit in the Supreme Court to order Madison to deliver his commission. 3. If the Court had sided with Marbury, Madison might still have ... to deliver the commission, and the Court had no way to enforce the order. 4. If the Court had ruled against Marbury, it risked surrendering judicial power to the Jeffersonians by allowing them to ... Marbury the office he was legally entitled to. 493

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5. The First Amendment to the U.S. Constitution guarantees freedom of the press, but for years the Supreme Court ... to use the First Amendment to protect the media from libel lawsuits – lawsuits based on the publication of false information that damages a person’s reputation. 6. If fewer justices favor review, the case ... and the decision of the lower court stands. 7. On the other hand, when it wishes to affirm a lower court without further proceedings, the Supreme Court may simply ... to review the case, either by ... a writ of certiorari or by stating that no appeal is justified because of insufficient federal questions. 8. Absence of a uniform, stable currency also disrupted trade among the states and with other countries. When U.S. Ambassador John Adams tried to negotiate a commercial treaty in 1785, the British ... on the grounds that the individual states would not be bound by it. 9. The Spanish, who controlled Florida and Louisiana as well as all territory west of the Mississippi River, also ... to allow western farmers to use the port of New Orleans to ship their produce. 10. A weak central government, without the power to back its policies with military strength, was inevitably handicapped in foreign affairs as well. The British ... to withdraw their troops from the forts and trading posts in the new nation’s Northwest Territory, as they had agreed to do in the peace treaty of 1783 that marked the end of the Revolutionary War. 11. Legal restrictions ... the vote only to some ex-felons and to those who have been declared mentally incompetent. 12. As a delegate to the Constitutional Convention, Mason ... to sign the document because he felt it did not protect individual rights sufficiently. с) Read the following passages to discuss major issues in the development of the US Constitution: 494

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1. Clarence Earl Gideon was arrested for breaking into a poolroom in Florida in 1961. When he requested a courtappointed lawyer to defend him, the judge denied his plea, saying that state law required appointment of a lawyer only in capital cases – cases involving a person’s death or calling for the death penalty. The Supreme Court decided that Gideon was denied a fair trial and ruled that every state must provide counsel for people accused of crimes who cannot afford to hire their own. When Gideon was retried with the help of a defense attorney, he was acquitted. 2. Jones & Laughlin, one of the nation’s largest steel producers, violated the National Labor Relations Act of 1935 by firing 10 employees for engaging in union activities. The act prohibited a variety of unfair labor practices and protected the rights of workers to form unions and to bargain collectively. The company refused to comply with an NLRB order to reinstate the workers. A Circuit Court of Appeals declined to enforce the board’s order, and the Supreme Court reviewed the case. 3. The Fifteenth Amendment, ratified in 1870, prohibited the federal or state governments from discriminating against potential voters because of race, color, or previous condition of servitude. The crucial word “sex” was left off this list, not through oversight; therefore, women continued to be barred from the polls. The extension of suffrage to include former slaves gave new life to the long-simmering campaign for women’s right to vote. This battle was finally won in 1920, when the Nineteenth Amendment said that voting could not be denied “on account of sex.” 4. In 2012 the Supreme Court upheld the highly contentious Affordable Care Act championed by President Barack Obama, which includes requiring most Americans to have health care insurance. The opinion, written by Chief Justice John Roberts, rejected, however, the Obama administration’s defense of the 495

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law as permitted by the Constitution’s clause giving Congress authority to regulate interstate commerce. Instead, the court ruled that mandating individuals to buy health insurance was constitutional under Congress’s powers to impose taxes. 5. In 1954 a unanimous Supreme Court found that “...in the field of education the doctrine of ‘separate but equal’ has no place,” and ruled that segregation in public schools denies black children “the equal protection of the laws guaranteed in the Fourteenth Amendment.” TASK V.  Read the following passage and comment on various approaches to decision-making: What explains decision-making trends on the Supreme Court? Political scientists have devoted considerable attention to investigating this question. Most research has considered three related sets of factors. One set of scholars emphasizes the value premises of judges – their attitudes and the ideological positions they embrace. These scholars infer attitudinal and value positions from the justices’ votes in cases where there is a disagreement on the Supreme Court. Through elaborate statistical analysis of voting patterns, Schubert characterizes justices as liberals, economic conservatives, or political conservatives; he finds they adhere differentially to liberal-conservative and pragmatic-dogmatic, ideologies. Unfortunately this research has a basic circularity because the observer infers attitudes from votes in his attempt to explain voting patterns by attitudes. Although attitudes about fundamental political values are clearly revealed in selected cases, it is impossible to demonstrate that these particular attitudes cause the votes and subsequent decisions. A second approach to Supreme Court decision making casts considerable doubt on the reliability of voting patterns as indicators of justices’ attitudes. Working with private memoranda 496

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and office papers that justices have left in the archives, Bickel and Murphy show that justices engage in considerable negotiation and bargaining and are sometimes willing to vote with the majority to win a colleague’s vote in a later case or to have an opportunity to modify the majority opinion, even when that opinion does not reflect the justice’s own preferred values. Decision making is analogous to a bargaining game and might be analyzed by game theory if data were available about all the justices’ perceptions and preferences. Unfortunately only scattered data are available. Many justices destroy their working papers when they leave the Court; others leave only a selection of their papers in the archives. Consequently one cannot fully reconstruct Supreme Court decision making. A third approach seeks to relate background characteristics of the justices to decision making. For instance, justices who previously served on lower courts have not been found more committed to precedent than justices who had never before served on a court before their appointment to the Supreme Court. The propensity to dissent is somewhat related to the justice being Catholic, being born in a rural area, coming to the court from a nonpolitical career, and having parents who were not engaged in politics. However, in every case, background variables offer only a partial explanation. It is clear that justices respond not only to experiences in the past but also to contemporary stimuli not measured by background variables. All attempts to explain Supreme Court decision making stumble on the same barrier: the lack of data. The Supreme Court is extraordinarily secretive in its work. Its conference is closed; no outside observer may view its work. No records are kept or published of conference deliberations. The bargaining that occurs as opinions are drafted and circulated surfaces only many years after the event and only through accidental leaks in archives and memoirs. Consequently scholars are driven 497

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to use the public indicators of decision making – votes and written opinions – even though those indicators are incomplete. Explanations of Supreme Court decision making will continue to be fragmentary until its methods become more open to public scrutiny. TASK VI.  Read the text to explain how personal and political views affect the decision making: Personal and Political Views Nevertheless, justices do have personal views. They are appointed through a political process. Observers naturally must ask how great a role their political views actually play. Some scholars argue that the justices’ political preferences play a large role, essentially dictating their decisions in many cases. They point to the fact that justices appointed by conservative presidents tend to vote in a conservative fashion and those appointed by liberal presidents vote the opposite way. The confirmation battles over recently nominated justices certainly suggest that many people view the justices’ personal politics as an important factor in judicial decision making. Republican President Dwight Eisenhower (left) selected William J. Brennan for the Supreme Court. Brennan became one of the most liberal justices of the 20th century. But we should not so quickly conclude that Supreme Court justices, like politicians, merely try to institute their own policy preferences. A number of factors complicate the analysis. First, it is difficult to disentangle a justice’s political preferences from his or her judicial philosophy. Some justices believe that the Constitution should be interpreted according to what it meant when it was first adopted or that statutes should be interpreted by looking only to their texts. Others believe that the Constitution’s meaning can change over time or that 498

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documentary evidence surrounding a statute’s enactment can be useful in its interpretation. Some justices are extremely reluctant to overturn laws enacted by state or federal legislatures, and others view careful oversight of the legislatures as an essential part of their role as guardians of the Constitution. A justice who believes that the Constitution ought to be interpreted according to its original meaning and who is reluctant to strike down laws will probably be quite unsympathetic to claims that various laws violate individuals’ constitutional rights. If that justice also happens to be politically conservative, we might mistakenly attribute the lack of sympathy to politics rather than judicial philosophy. A justice’s personal experiences and background also may influence how he or she approaches a case – although not always in predictable ways. A judge who grew up poor may feel empathy for the poor or may, instead, believe that his or her own ability to overcome the hardships of poverty shows that the poor should bear responsibility for their own situation. A justice with firsthand experience with corporations or the military or government bodies (to choose just a few examples) may have a deeper understanding of both their strengths and their weaknesses. In the end, it seems difficult to support the conclusion that a justice’s politics are the sole (or even the primary) influence on his or her decisions. There are simply too many instances in which justices surprise their appointing presidents, vote contrary to their own political views, or join with justices appointed by a president of a different party. Two of the most famous liberal justices of the 20th century, Chief Justice Earl Warren and Justice William Brennan, were nominated by Republican President Dwight Eisenhower – and Warren was confirmed by a Republican-majority Senate. Between a quarter and a third of the cases decided by the Supreme Court are decided unanimously; 499

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all the justices, regardless of their political views, agree on the outcome. One study has concluded that in almost half of nonunanimous cases, the justices’ votes do not accord with what one would predict based on their personal political views. Moreover, some deeply important legal questions are not predictably political: We cannot always identify the “conservative” or “liberal” position on cases involving, for example, conflicting constitutional rights or complex regulatory statutes. TASK VII.  a) Read about and discuss other factors affecting decision making: The structure and functioning of the judiciary also temper any individual justice’s tendency toward imposing personal political preferences. The most important factor is that the Court must publicly explain and justify its decisions: Every case is accompanied by one or more written opinions that provide the reasoning behind the Court’s decision, and these opinions are available to anyone who wants to read them. They are widely discussed in the press (and on the Internet) and are often subject to careful critique by lawyers, judges, and scholars. This transparency ensures that justices cannot bend the law indiscriminately; their discretion is cabined by the pressures of public exposure. And any justice who does not want to be thought a fool or a knave will take care to craft persuasive opinions that show the reasonableness of his or her conclusions. Deliberation also plays a role in moderating the influence of politics on justices’ decision-making. Before reaching a decision, each justice reads the parties’ briefs, listens to (and often asks questions of) the parties’ lawyers at oral argument, and converses with other justices. The justices may also discuss cases with their law clerks, recent law school graduates who may bring a somewhat different perspective. After an initial vote on the case, the justices exchange drafts of opinions. During this 500

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long deliberation process, the justices remain open to persuasion, and it is not unusual for a justice to change his or her mind about a case. Because the justices, the lawyers, the parties, and the clerks represent a diverse range of political views, this process helps to focus the justices on legal, rather than political, factors. Finally, the concept of stare decisis, or adherence to the decisions made in prior cases, limits the range of the Court’s discretion. Absent extraordinary circumstances, the Supreme Court will follow precedent – the cases it has previously decided. Even justices who might disagree with a precedent (including those who dissented when the case was originally decided) will almost always feel bound to apply it to later cases. As decisions on a particular issue accumulate, the Court might clarify or modify its doctrines, but the earlier precedents will mark the starting point. History is full of examples of newly elected presidents vowing to change particular precedents of the Supreme Court, but failing despite the appointment of new justices. Stare decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned. This gradual evolution of doctrine, in turn, fosters stability and predictability, both of which are necessary in a nation committed to the rule of law. No system is perfect, of course. In a small number of cases, one likely explanation for particular justices’ votes seems to be their own political preferences. These cases are often the most controversial and usually involve political disputes that have divided the country along political lines. It is no surprise that they similarly divide the justices. The existence of such cases, however, should not lead us to conclude that politics is a dominant factor in most of the Court’s cases. Many factors, therefore, influence the Supreme Court’s decisions. The justices’ political views play only a small role. Were it otherwise, the Court would be less able to serve as an 501

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independent check on the political branches, less able to protect the rights of individuals, and less secure in its legitimacy. The public would not have as much confidence in a Court seen as just another political body, rather than as an independent legal decision maker. The justices (and other judges) know this, and they safeguard the Court’s reputation by minimizing the role of politics in their own decisions.

TEXT 6 JUDICIAL REVIEW It was Hamilton’s point that won the argument. And the man who established it by a series of brilliant judicial rulings was Marshall. It was he who brought to the Supreme Court the ultimate power of declaring federal and state laws invalid when the court decided they were not constitutional. This process by which American courts rule on the constitutionality of legislation and refuse to enforce laws that in their judgment violate the Constitution has come to be known as judicial review. The term applies not only to the work of the Supreme Court but to the rest of the federal court system and to state supreme courts. Judicial review was itself a product of an 1803 judicial ruling in a case that has come to be regarded as a turning point in American constitutional history – Marbury v. Madison. The case began in a political struggle. John Adams and his Federalist Party had lost the election of 1800, and Thomas Jefferson was elected president. Just before he left office, Adams signed a large number of appointments for judges and justices of the peace. These new appointees were, like himself, members of the Federalist Party. What Adams was trying to do, in effect, was pack the federal judiciary with Federalists so that at least 502

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one branch of government would be in Federalist hands when Jefferson and his Democratic-Republicans took office. In the rush to get the appointment papers delivered at the last minute, the Federalists did not get them to some justices of the peace. One appointee who had not received his appointment papers, William Marbury, sued the secretary of state, James Madison, in order to obtain them. He wanted the Supreme Court to issue an order (called a writ of mandamus) forcing the delivery. The chief justice was John Marshall, who had been secretary of state under Adams and was the man responsible for the delivery of the appointment papers in the first place. Marshall was a Federalist and no friend of Jefferson. The chief justice was in a predicament. If he signed a writ, there was little likelihood that Madison would honor it – the Supreme Court at that time did not have the great prestige it has today. On the other hand, if Marshall did not issue a writ, he would be surrendering to Jefferson and admitting that the Supreme Court was powerless. Marshall’s solution was brilliant. On the one hand, he declared that Madison was in violation of the law for refusing to deliver the papers. On the other, he ruled that the law under which the court should issue a writ of mandamus was unconstitutional. The law was the Judiciary Act of 1789, specifically Section 13, which stated that the court could issue writs to persons holding office under the authority of the United States. Marshall’s reasoning was that the court did not have original jurisdiction, or authority, in such a case – only appellate, or review, jurisdiction. Behind Marshall’s reasoning was a conviction that he held to in all of his later rulings: since the Constitution is the supreme law of the land, and since it is the duty of the Supreme Court to uphold the law, two things clearly follow. First, when a law is inconsistent with the Constitution, the Constitution must be followed. Second, without judicial review, a written constitution is futile as a means of limiting abuses of power by government. 503

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Judicial review is a power the federal courts have used only rarely since Marbury v. Madison. By the mid-1990s, only about 100 federal laws had been declared unconstitutional, and it was more than 50 years after Marbury before such a ruling was handed down again. The courts exercise this power only when it is necessary to decide cases and controversies. They do not give advisory opinions to either the president or the Congress before or after the passage of laws. Furthermore, the Supreme Court begins its review of a case with the assumption that a legislature did not intend to violate the Constitution when it passed a given law. Thus the burden of proof always rests on the party who questions the validity of the law. The Supreme Court also takes a strict view of who is allowed to raise constitutional questions before it. A party must have a direct and substantial interest at stake. Otherwise everyone who did not like a particular law would go to court to have it struck down. Through judicial review the Supreme Court has become the primary interpreter of the Constitution. It has used this power to promote the steady growth of the federal government’s authority and to make the Constitution the supreme law. NOTES TO THE TEXT Democratic-Republican Party – a political party opposed to the old Federalist Party. Supreme Court – an appellate court existing in most of the states. In the federal court system, and in most states, it is the highest appellate court or court of last resort. It others (such as New York) the supreme court is the court of general original jurisdiction, possessing also (in New York) some appellate jurisdiction, but not the court of last resort. The U.S. Supreme Court comprises the Chief Justice of the United States and such number of Associate Justices as may be 504

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fixed by Congress. Under that authority, and by virtue of the act of June 25, 1948 the number of Associate Justices is eight. The Judiciary Act of 1789 – established the lower federal courts. Under Article III, Section 1, of the U.S. Constitution, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In the Judiciary Act, the first Congress created federal trial courts and federal appeals courts to comply with this provision. LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I.  a) Match the terms controversy; burden of proof; writ of mandamus; advisory opinion; case; judicial review with their definitions 1) a court order compelling a public official to perform his or her duty; 2) a nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose; federal courts are constitutionally prohibited from issuing recommendations by the case-or-controversy requirement, but other courts, such as the International Court of Justice, render them routinely; 3) power of courts to examine and reconsider decisions of another department or level of government. Form of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both. May also refer to appellate court control over decisions of trial court or of intermediate appellate court; 4) in the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a case. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court; 505

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5) a disagreement or a dispute, esp. in public; a justiciable dispute; 6) latin casus accident, event, set of circumstances, literally act of falling; 1. A civil or criminal proceeding, action, suit, or controversy at law or in equity; 2. An action selected from several suits that are based on the same facts and evidence, raise the same question of law, and have a common plaintiff or a common defendant. Sometimes, when all parties agree, the court orders a consolidation and all parties are bound by the decision in the test case. The reported facts, procedural history, and esp. decision in an action; 3. A criminal investigation; 4. An individual suspect or convict in relation to any aspect of the criminal-justice system; 5. The evidence and arguments presented by a party in court; an argument 6. An instance, occurrence, or situation. b) Add the terms burden of proof; writ of mandamus; advisory opinion; judicial review and translate the sentences: 1. Books and periodicals may also be subjected to some forms of prior restraint, but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears ... on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured. 2. The federal courts do not render ... , rulings about situations that are hypothetical or that have not caused an actual clash between adversaries. 3. To the extent that constitutional rights are involved, due process of law imports a ... of the action of administrative or executive officers. 4. The important right guaranteed to the accused at both the state and federal levels is not to “be compelled in any criminal 506

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case to be a witness against himself.” This guarantee serves to reinforce the principle that under the U.S. judicial system ... is on the state; the accused is presumed innocent until the government proves otherwise beyond a reasonable doubt. 5. In Marbury v. Madison (1803), Chief Justice John Marshall established the Supreme Court’s ... of U.S. law as separate from the legislative and executive branches of government. It meant the Court could rule on the constitutionality of laws. 6. The applicant pleading for the ... to be enforced should be able to show that he or she has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities. It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, the remedy sought will typically not be granted if adequate relief can be obtained by some other means, such as appeal. 7. Perhaps the most important of Jay’s contributions, however, was his insistence that the Supreme Court could not provide legal advice for the executive branch in the form of an ... . 8. The judge must also remind the jury that ... is on the state and that the accused is presumed to be innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt of the accused, it must bring in a not guilty verdict. 9. The power of ... is not specifically provided for by the Constitution. Rather, it is doctrine inferred by the Court from its reading of the Constitution, and forcefully stated in the landmark Marbury v. Madison case of 1803. 10. ... may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a ... . A person can be said to be aggrieved 507

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only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it. 11. An important statute called the Administrative Procedure Act (United States Code Title 5, Section 551, et. seq.) explains the procedures agencies must follow when promulgating rules, judging violations, and imposing penalties. It also lays out how a party can seek ... of an agency’s decision. 12. The only exception to ... principle is in the realm of civil rights and liberties. Some jurists who are strong civil libertarians have long contended that when government attempts to restrict basic human freedoms the burden of proof should shift to the government. 13. The state attorneys general usually issue ... to state and local agencies. Often, they interpret an aspect of state law not yet ruled on by the courts. 14. Although an ... might eventually be overruled in a case brought before the courts, the attorney general’s opinion is important in determining the behavior of state and local agencies. 15. The nation’s jurists generally agree that an individual who would challenge the constitutionality of a statute bears ... . c) Use the GLOSSARY to translate the following passages: 1. At the end of each Term, all cases pending on the docket are continued to the next Term. 2. A separate notice of appearance shall also be entered whenever an attorney is substituted as counsel of record in a particular case. 3. It is the petitioner’s duty to notify all respondents promptly, on a form supplied by the Clerk, of the date of filing, the date the case was placed on the docket, and the docket number of the case. 4. The questions presented for review should be short and should not be argumentative or repetitive. If the petitioner or 508

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respondent is under a death sentence that may be affected by the disposition of the petition, the notation “capital case” shall precede the questions presented. 5. A United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. 6. When a question of law is certified by a United States court of appeals, this Court, on its own motion or that of a party, may consider and decide the entire matter in controversy. 7. Unless there is some governmental connection, there will be no federal constitutional application to any such controversy. 8. In New York Times Co. v. Sullivan (1964) the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate first crystallized a national awareness of the central meaning of the First Amendment. 9. Subsequent cases have revealed a trend toward narrowing the scope of the “public figure” concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person. 10. In the absence of violence, the Court continued to find picketing protected, but there soon was decided a class of cases in which the Court sustained injunctions against peaceful picketing in the course of a labor controversy when such picketing was counter to valid state policies in a domain open to state regulation. 11. The common-law rule permitting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court. 12. “The courts of the United States do not sit to decide questions of law presented in a vacuum, but only such questions 509

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as arise in a “case or controversy.” The two terms can be used interchangeably, for, we are authoritatively told, a “controversy,” if distinguishable at all from a “case,” is distinguishable only in that it is a less comprehensive term, and includes only suits of a civil nature” (Charles Alan Wright, The Law of Federal Courts, 5th ed., 1994). TASK II. a) Match the expressions from a) to t) with the similar meanings from 1) to 20); b) Use them to sum up the text: a) judicial ruling b) the ultimate power c) declare invalid d) violate the Constitution e) lose the election f) pack the federal judiciary g) take office h) sue somebody i) be responsible for j) be in a predicament k) there was little likelihood l) be in violation of the law m) hold office n) have original jurisdiction o) hold to a conviction p) uphold the law q) inconsistent with the Constitution 510

1) bring an action against someone 2) come to power 3) staff the federal courts 4) be defeated at the elections 5) not to comply with 6) invalidate 7) supreme authority 8) court’s decision 9) be contrary to 10) protect the law 11) adhere to a principle 12) occupy office 13) a court of the first instance 14) be in breach of the law 15) be unlikely 16) in a difficult situation 17) be in charge of

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r) hand down a ruling s) pass a law t) raise a question

18) enact legislation 19) pass judgment 20) draw one’s attention to

TASK III.  Answer the following questions: 1. What courts have the power of judicial review? 2. Why did Adams make those last minute appointments? 3. Who won the election of 1800? 4. What offices did John Marshall hold? 5. How did Marshall solve the case Marbury v. Madison? 6. What happens when a law does not comply with the Constitution? 7. How frequently has the power of judicial review been exercised? 8. Who is to prove that a law is unconstitutional? 9. Who is allowed to raise the constitutional issues before the Supreme Court? TASK IV.  a) Read the text to describe the historical background of judicial review: Although it was first asserted in Marbury v. Madison to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and prior to Marbury the power seems very generally 511

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to have been assumed to exist by the Justices themselves. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent. Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from these provisions, they do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence. b) Comment on the arguments and justifications in Marbury v. Madison: Chief Justice Marshall’s argument for judicial review of congressional acts in Marbury v. Madison had been largely anticipated by Hamilton. For example, he had written: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” At the time of the change of Administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson’s express instruction. Marbury sought to compel the delivery of 512

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his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on § 13 of the Judiciary Act of 1789, which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction. Though deciding all the other issues in Marbury’s favor, the Chief Justice wound up concluding that the § 13 authorization was an attempt by Congress to expand the Court’s original jurisdiction beyond the constitutional prescription and was therefore void. “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States;” Marshall began his discussion of this final phase of the case, “but, happily, not of an intricacy proportioned to its interest.” First, certain fundamental principles warranting judicial review were noticed. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law,” it is unchangeable by ordinary legislative means and “a legislative act contrary to the constitution is not law.” “If an act of the legislature, repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “It is emphatically the province and duty of the judicial department to say what the law is. If two laws conflict with each other, the courts must decide on the operation of each.” “So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that 513

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the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution. The Chief Justice then turned from the philosophical justification for judicial review as arising from the very concept of a written constitution, to specific clauses of the Constitution. The judicial power, he observed, was extended to “all cases arising under the constitution.” It was “too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.” Suppose, he said, that Congress laid a duty on an article exported from a State or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws “which shall be made in pursuance of the constitution” are to be the supreme laws of the land. The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout 514

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American history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all States by 1850. c) Express your opinion about the following justification of judicial review: The power of judicial review raises the question of how courts should interpret the Constitution. In his lecture on neutral principles, Professor Herbert Wechsler argued that in order to justify the exercise of judicial review, judges must distinguish themselves from political actors by applying neutral principles to cases. The act of declaring legislation unconstitutional through judicial review is counter-majoritarian because it effectively negates the will of the majority. The power of the courts to review laws with a view to deciding on their constitutionality is today understood to be an essential component of the American constitutional system. The legitimacy of judicial review is thus no longer even seriously questioned. Institutional devices to achieve the separationof-powers principles pervade the Constitution. Bicameralism reduces legislative predominance, while the presidential veto gives to the Chief Magistrate a means of defending himself and of preventing congressional overreaching. The Senate’s role in appointments and treaties checks the President. The courts are assured independence through good behavior tenure and security of compensation, and the judges through judicial review will check the other two branches. The impeachment power gives to Congress the authority to root out corruption and abuse of power in the other two branches. And so on. The Court listed “reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role 515

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in impeachments,” and elsewhere agreed with the appeals court that “opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years, of chaos.” TASK V.  a) Match the following sentences with the key points below: 1. Judicial review is the power of the Supreme Court of the United States and other federal courts to refuse to enforce federal laws they find contrary to the Constitution. 2. The term is often used more broadly to include the power of federal or state courts to declare unconstitutional any decisions taken by federal or state officials, whether in the form of law or not. 3. Laws or other actions declared unconstitutional are unenforceable in the courts and are generally regarded as void. 4. The justification for judicial review is usually traced to Chief Justice John Marshall’s opinion in Marbury v. Madison, which declared unconstitutional a minor provision of federal law defining the jurisdiction of the Supreme Court. 5. Marshall’s most persuasive justifications were based in Article III of the U.S. Constitution, which provides that “the judicial power shall extend to all cases … arising under the Constitution” and the declaration in Article VI that the Constitution “shall be the supreme law of the land.” 6. Marshall reasoned that “it is emphatically the province and duty of the judicial department to say what the law is,” and therefore if any action of the other branches violates the Constitution, it is “the province and duty” of the judges to uphold the “supreme law of the land” by rejecting that action. 7. The “supreme law of the land” clause refers to federal laws and treaties as well as the Constitution, and it is followed by the phrase that “the judges in every state shall be bound thereby.” 516

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KEY POINTS: a) The jurisdiction of the Supreme Court and supremacy clause b) Legal justification of the power of judicial review c) Extension of supremacy clause d) Judicial review as an authority of the US Supreme court and other federal courts e) Invalidation of legislative and executive actions f) The broader meaning of the judicial review g) The first instance of judicial review application b) Translate the following sentences, paying attention to the parts in bold type: 1. Critics of judicial review argue that the supremacy clause was intended only to compel states to follow all forms of federal law by requiring state judges to enforce it, but not to authorize any judges, state or federal, to say whether federal laws are unconstitutional. 2. The Framers, critics argue, would have explicitly stated a power for appointed judges serving unlimited terms to undo the work of the elected Congress and president if they intended a power of judicial review. 3. In fact, the Constitutional Convention rejected a proposal for a Council of Revision, including judges, to disapprove laws that did not conform to the Constitution. 4. Neither James Madison’s notes on the Constitutional Convention, the most complete record of those proceedings, nor the correspondence of any of the Framers during the Convention or immediately afterward state that the courts shall have authority to strike down federal laws. 5. Later statements by some Framers are both for and against judicial review, and many of those statements appear to be dictated by the politics of later times. 517

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6. During the state conventions to ratify the Constitution, only five references to judicial review by members of the Constitutional Convention can be found, and two of them opposed ratification. 7. Judicial review, critics note, was unknown in England, from which American law was largely derived. Indeed, when the chancellor of England, the highest judicial official, attempted in 1603 in Dr. Bonham’s Case to declare an act of Parliament contrary to higher law, he was immediately overruled and was soon replaced by the king. No other case from English judges overrules a law adopted by Parliament. 8. The British Privy Council, a judicial body, did review acts of the legislative assemblies in the American colonies to determine whether they conformed to English law and colonial charters, and one scholar has said the Privy Council vetoed about 5 percent of colonial laws. But those vetoes were heatedly criticized by colonial political leaders, newspapers, and the public, suggesting that judicial review of legislative actions was not widely accepted. 9. There is also little support for judicial review in the period between the Revolution and the adoption of the Constitution. 10. The Articles of Confederation, which created the first national government, had no judicial branch and therefore no judicial review. 11. Scholars have found only two instances during this period where state supreme courts attempted to strike down state laws, and both cases were met with overwhelming opposition from state legislatures, the press, and the public. 12. The most important statement in the constitutional period supporting judicial review is found in Federalist 78, written by Alexander Hamilton, a member of the Convention, as part of a series of editorials arguing for ratification of the Constitution. 13. Hamilton described the “limited Constitution which contains specified exceptions to the legislative authority” that 518

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“can be preserved no other way than through the medium of courts of justice, whose duty must be to declare all acts contrary to the manifest tenor of the Constitution void.” 14. But Hamilton’s own plan in the Constitutional Convention had no provision for judicial review. And Hamilton himself played little role in the Convention, although he was an important figure in the struggle for ratification. 15. President Thomas Jefferson and his Republican majorities were outraged by the decision in Marbury. A year later, they attempted to impeach Federalist Justice Samuel Chase, who narrowly escaped removal by a close vote in the Senate. 16. John Marshall kept alive the concept of judicial review only by striking down a series of state laws, which could be justified under the Article VI supremacy clause and which found defenders in Congress and the presidency because they enhanced the power of the national government. 17. The Supreme Court did not void another federal law until 1857, in Dred Scott v. Sandforfd, which struck down the Missouri Compromise of 1820 that prohibited slavery in the Louisiana Purchase territory north of Missouri. The hostile reaction in the North was soon overshadowed by Abraham Lincoln’s election in 1860 and the onset of the Civil War, which overturned Dred Scott’s approval of slavery. c) Sum up facts and arguments for and against the judicial review, fill in the table below the text: Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it 519

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still has detractors and its supporters disagree about its doctrinal basis and its application. Judicial review has been controversial throughout American history for two distinct reasons. First, the specific policies struck down reflect majority views as expressed by Congress and the president. Second, judicial review itself is counter-majoritarian: it substitutes the will of judges who are not elected and who serve indefinite terms for the will of recently elected officials who must regularly stand for reelection. Attorney General Robert H. Jackson, who later served on the Court, characterized judicial review as “the check of a preceding generation on the present one; and nearly always the check of a rejected regime on the one in being.” While defenders of judicial review characterize it as only carrying out the words of the Constitution, its critics point out that the justices often strike down laws under broad constitutional language that does not have clear meaning. Such phrases as “due process of law,” “equal protection of the laws,” “commerce among the several states,” or “all laws which shall be necessary and proper for carrying into execution” the other provisions of the Constitution allow justices broad latitude to read their own views into the Constitution. Even provisions that appear to be specific leave wide room for interpretation because of changing times and conditions: protections of free speech and press, for example, were written when electronic media and the Internet were unimagined, and prohibitions against “unreasonable searches” did not anticipate interception of electronic communications or technology allowing detection of objects or persons from outside the walls of buildings. Judicial review is defended as a protection of individual rights. However, by one count, only about a third of the cases striking down federal laws related to due process for individuals, First Amendment freedoms, privacy, or criminal 520

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defendants’ rights. About 50 percent struck down federal laws defining relations with the states, regulating the economy, or taxation. About 5 percent involved the separation of powers, and 8 percent involved judicial power, issues relating to the respective authority of the branches of the federal government. Another 18 percent may have diminished individual rights by striking down federal laws related to civil rights. While these categories are not sharply defined, it appears that protection of civil rights and liberties were protected by substantially fewer than half the Supreme Court decisions striking down federal laws. The counter-majoritarian character of judicial review is heightened because Congress and the president have few tools to overturn Court decisions. Constitutional amendments require approval of extraordinary majorities in Congress and among the states: only four have been approved to directly overturn decisions of the Supreme Court. The justices serve indefinite terms, and on average only one vacancy occurs every two years, so that it may take many years to appoint enough new justices to bring the Court into line with the public will. Some presidents have had few opportunities to appoint justices: President Jimmy Carter, for example, appointed none during his four-year term, and President Bill Clinton appointed only two in eight years. Moreover, after appointment, justices’ decisions are often at odds with the presidents who appointed them. Judicial review is therefore a broad power of appointed judges serving indefinite terms to overturn as unconstitutional decisions of the elected president and Congress. It contradicts the democratic ideal that the public controls the decisions of government through the election of its officials. But judicial review has become an accepted feature of American constitutionalism, because for more than two centuries the 521

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people and Congress have acquiesced by not amending the Constitution to curb it. Facts FOR

Arguments FOR

Facts AGAINST

Arguments AGAINST

d) Compare the views of presidents, senators, congressmen, journalists on the role of the Supreme Court: Members of Congress have encouraged the belief that the Supreme Court is the ultimate word on the meaning of the Constitution. In 1984, Senator Mack Mattingly offered an amendment to give the president item-veto authority over appropriations bills. He proposed a congressional override vote of a majority of each chamber rather than the two-thirds required by the Constitution. When the constitutionality of this amendment was questioned, Senator Alan Dixon admitted that he, as a lawyer, had difficulty “about the constitutional viability of this approach,” but concluded that constitutional issues are left “for the courts, not the Senate.” Yet each member of Congress takes an oath to defend the Constitution, not the courts. Lawmakers are expected to make independent judgments about the constitutionality of bills under consideration. On the Mattingly amendment, Senator Lawton Chiles raised a point of order that it was unconstitutional and the Senate, voting 56 to 34, sustained his challenge. In 1997, Senator Arlen Specter called the Supreme Court “the ultimate arbiter of determining what the law will be.” It is ultimate within the judiciary, but not necessarily within the federal government or in the country. Specter continued: “We know since the decision of the Supreme Court of the United States in Marbury v. Madison, the Supreme Court of the United States 522

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has been the preeminent institution because the Supreme Court of the United States has the last word.” That position overstates what Chief Justice Marshall said and intended in the Marbury case, and fails to acknowledge that many “final” decisions of the Court have either been reversed by the elected branches (both by constitutional amendments and regular legislation) or have been abandoned or substantially modified by the Court. Members of Congress frequently argue that if an issue is “legislative” in nature they can handle it but if it is “constitutional” they cannot. Nothing in the Constitution or American history supports this cramped and artificial separation of duties. In recent decades, members of Congress sidestep constitutional issues by resorting to an “expedited procedure” that authorizes quick challenges in the courts. Typically Congress will grant someone standing to challenge the constitutionality of a dubious provision in a bill. It then places the litigation on a “fast track,” such as having the case heard before a three-judge court and from there directly to the Supreme Court. Four times from 1985 to 1996 Congress resorted to this procedure, and on all four occasions the Supreme Court declared the offending provision to be unconstitutional. These congressional efforts are damaging to a constitutional democracy for two reasons. They invite lawmakers to violate the oath of office they took to defend and protect the Constitution. These procedural devices also send the unfortunate message that constitutional issues are reserved exclusively to the courts. Contemporary presidents have helped spread the myth of judicial supremacy. The veto power remains available to them to block unconstitutional legislation, but they often prefer to let legal disputes slide to the courts and find resolution there. Presidents are loath to revive the precedent of Andrew Jackson, who did not hesitate to veto legislation for a U.S. Bank even though it had been previously blessed by presidents, Congresses, and the Supreme 523

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Court. During the Reagan and Clinton administrations, a number of constitutional concerns were raised about the constitutionality of an independent counsel exercising prosecutorial powers, but presidents regularly chose to sign reauthorization bills in 1983, 1987, and 1994 rather than defend their prerogatives. Journalists and reporters play a key role in promoting judicial supremacy. When the Supreme Court hands down a decision, newspapers typically treat it as final and definitive. Writing for the Washington Post in 1996, Joan Biskupic said that the importance of the Supreme Court is not in the number of its cases but rather “in the court having the last word. The justices are the final arbiter of what is in the Constitution.” It is true that the Court is the final “arbiter,” but that voice is final only within the judiciary. It is not the final voice on constitutional law, as is evident throughout U.S. history. Biskupic offered a number of prominent cases decided by the Court, but they do not support the judiciary as the last word. Here is the list: Dred Scott (overridden initially by statute and attorney general opinion and later by constitutional amendment), cases striking down much of the New Deal (followed by the Court reversing itself), the desegregation case of 1954 (of limited impact), and Roe v. Wade (from which the Court conducted a partial retreat with the Casey decision in 1992). In 1998, in discussing how justices deliberate on a case, Biskupic concluded that “whatever a majority decides does indeed become the answer.” What the Court decides becomes an answer, to be tested by other branches and the society at large. There should be no question that if the Court interprets a statute, Congress is always free to rewrite the statute and reject the Court’s understanding. “Statutory reversals” occur with great frequency. Many “statutory” issues are in fact major interpretations of constitutional rights, such as the Civil Rights Act of 1964. Even when the Court clearly decides a constitutional issue, Congress can reenter 524

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the field by passing legislation that rejects the Court’s interpretation. In Goldman v. Weinberger (1986), the Supreme Court upheld an Air Force regulation that prohibited an Orthodox Jew from wearing his yarmulke indoors and on duty. Within a year Congress passed legislation telling the Defense Department to rewrite the regulation to permit the wearing of religious apparel so long as it does not interfere with military duties. e) Read through the final statement to draw up your own conclusion: The Supreme Court’s decisions raise a fundamental question: What is the place of an unelected judiciary in a democracy? There is an inherent tension between two basic principles in a constitutional liberal democracy – accountable government by a democratically elected majority and enforcement of the Constitution even if it requires striking down laws favored by that majority. Judicial review is especially attractive when it reinforces democratic principles such as one person, one vote; free and fair elections; and freedom of speech and press. The rule of law – indeed, the very idea of a constitution – requires that the Constitution be enforced as the supreme law of the land. The Supreme Court may err in particular cases. But the Court’s role in ensuring the rule of law commands widespread assent among the American people. The following issues will help you to answer the exam question THE US SUPREME COURT: HISTORY, COMPOSITION, JURISDICTION, PROCEDURE and to write your essay: 1. Creation of the Court. 2. The Court jurisdiction. 3. The Court and its procedural rules. 4. The Court and its decisions. 5. The power of judicial review.

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absence of a quorum: When less than 51 Senators answer a quorum call, the absence of a quorum is established. In the absence of a quorum, the Senate may not conduct legislative business. Instead, the Senate must either adjourn or continue to make motions to obtain a quorum. A motion to get a quorum instructs the Sergeant-at-Arms to either request, compel or arrest absent Senators. absent: Not present at a session. • Absent with leave – Not present at a session with consent. • Absent without leave – Not present at a session without consent. abuse: v. 1. To use improperly, misuse. 2. to insult verbally. 3. to maltreat. n. 1. misuse. 2. insulting language. 3. unjust or corrupt practice. 4. maltreatment (child abuse). acquittal: A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction. act: Legislation enacted into law. A bill that has passed both houses of the legislature, been enrolled, ratified, signed by the governor or passed over the governor’s office, and printed. It is a permanent measure, having the force of law until repealed. • Local act – Legislation enacted into law that has limited application. • Private act – Legislation enacted into law that has limited application. • Public act – Legislation enacted into law that applies to the public at large. active judge: A judge in the full-time service of the court. Compare to senior judge. 526

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adhere: A step in parliamentary procedure whereby one house of the legislature votes to stand by its previous action in response to some conflicting action by the other chamber. ad hoc tribunals: Courts of law established for a special purpose. adjourn: A motion to adjourn in the Senate (or a committee) ends that day’s session. adjourn: v. To bring a meeting to a stop. adjournment: Termination of a session for that day, with the hour and day of the next meeting being set. adjournment sine die: The end of a legislative session “without day.” These adjournments are used to indicate the final adjournment of an annual or the two-year session of a Congress. Final termination of a regular or special legislative session. administration (often administration): The government of the country, especially the US. administrative law: Administrative law is concerned with the substance and procedures of executive branch rule making, regulatory enforcement, and adjudication of disputes handled by administrative agencies rather than the courts. It also encompasses the conditions under which administrative actions can be reviewed by courts. As distinguished from legislative and judicial authority, administrative authority may include power to issue rules and regulations based on statutes, grant licenses and permits to facilitate the conduct of government business, initiate investigations of and provide remedies for complaints or problems, and issue orders directing parties to conform to governing statutes or rules. An administrative-law judge is a government official with quasi-judicial powers, including the authority to conduct hearings, make findings of fact, and recommend resolution of disputes concerning an executive branch agency’s actions. Administrative Office of the United States Courts (AO): The federal agency responsible for collecting court statistics, administering the federal courts’ budget, and performing many other administrative and 527

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programmatic functions, under the direction and supervision of the Judicial Conference of the United States. admissible: A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases. admiralty matters: All maritime contracts, torts, injuries, or offenses. adoption: Approval or acceptance; usually applied to amendments, committee reports or resolutions. adversarial system: The adversarial system is a key feature of the Anglo-American common law tradition. The parties on either side of a legal action take the position of opponents or adversaries before the court which decides the winner of this legal conflict. The adversarial system contrasts with the inquisitorial system common in the European practice of law derived from Roman civil law. In an inquisitorial system the court itself more actively investigates whether the law has been violated and seeks to apply the remedies the law provides. Unlike the inquisitorial system in which accused parties must exonerate themselves before a judge or judges who function as both judge and prosecutor, in the adversarial system the opposing sides compete to convince an impartial judge or jury of the merits of their legal assertions of guilt, innocence, liability, obligation, and the like. adversary proceeding: A lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court, that is, a “trial” that takes place within the context of a bankruptcy case. advice and consent: The United States Constitution (Article II, section 2) requires that the Senate give its advice and consent to the president on war and treaty-making decisions and on appointments to certain key offices. A treaty is a formal compact between the United States and one or more nations that must be approved by a two-thirds vote of the Senate. It then becomes part of the supreme law of the United States, equally binding with the Constitution in all places to which the national jurisdiction extends, and taking precedence over state constitutions and laws. The need for Senate consent may be circumvented if the president terms an international accord an 528

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executive agreement. The latter needs only presidential consent to bind the government and avoids possible delays involved in gaining Senate approval for a treaty. Most presidential appointments require confirmation by a majority vote in the Senate. Presently, between fifty and seventy thousand individuals are nominated annually. Over 99 percent of nominations are to minor positions (mostly military officers). Nominees to major positions (federal judges, members of regulatory bodies, and key executive and diplomatic personnel not covered by merit systems) face the closest scrutiny. The first time George Washington sought the advice of the Senate on a treaty, he came before the Senate in person on August 22, 1789, expecting the Senate’s immediate consent. But the Senate was not to be rushed and decided to take its time deliberating the matter. Washington was infuriated that the Senate would not act quickly while he waited. He left the halls of Congress but returned two days later when the Senate ratified the treaty. After this incident, Washington never again returned in person to seek the Senate’s advice and consent. This incident established the Senate precedent of offering advice and consent only after time for debate and deliberation and only after the president has submitted the treaty in writing. advisory opinion: A nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose; federal courts are constitutionally prohibited from issuing advisory opinions by the case-or-controversy requirement, but other courts, such as the International Court of Justice, render them routinely. affidavit: A written or printed statement made under oath; a sworn or affirmed statement made in writing and signed; if sworn, it is notarized. affiliation: A person’s connection with a political party. affirmance: The formal approval by an appellate court of a lower court’s judgment, order, or decree. affirmed: In the practice of the court of appeals, it means that the court of appeals has concluded that the lower court decision is correct and will stand as rendered by the lower court. 529

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AFL-CIO: The American Federation of Labor and the Congress of Industrial Organizations, the nation’s largest union organization, was created in 1955 when the separate AFL, founded in 1886, and the CIO, founded in 1938, merged into one organization aisle: The space which divides the Majority side from the Minority on the House/Senate floor. allegation: the assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove. allocate: To assign or devote to (a purpose, person, or place). allocation alternate juror: A juror selected in the same manner as a regular juror who hears all the evidence but does not help decide the case unless called on to replace a regular juror. Alternative dispute resolution (ADR): A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator. amenable: 1. Responsive, docile. 2. answerable to law etc. amenability amending: Amending is the process by which members attempt to change the content of legislation as it is considered in committee markup sessions and during House and Senate floor sessions. The legislative process permits a bill to be amended at as many as seven different stages: when it is considered by a subcommittee of the House, by the parent committee of that subcommittee, and by the full House; when it is considered by a subcommittee and committee of the Senate and by the Senate itself; and when the House and Senate try to reach final agreement on the bill’s content, either in a conference committee or by a formal exchange of amendments between the two houses. In some cases, one or more of these stages are bypassed; for example, the House and Senate sometimes pass noncontroversial bills without first considering them in formal committee and subcommittee meetings. In other cases, stages are added to the process; for example, some bills 530

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are considered by one House or Senate committee only; after having been debated and amended by another committee of that house. amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, the Senate must agree to it. amendment in the nature of a substitute – An amendment that would strike out the entire text of a bill or other measure and insert a different full text. amendment: Proposal of a congressman to alter a bill; usually printed, debated, and acted upon in the same manner as a bill. Amendment I: Perhaps the most important and most widely cited part of the Constitution, the First Amendment protects individual religious freedom, free speech, a free press, and the freedom to petition the government by written word, marching, and picketing. [Ratified 1791] Amendment II: This amendment has been the subject of heated debate in recent years. What it meant in the 1790s may be quite different from what it means in the 1990s. Does it mean that individuals have the right to own and carry firearms, or does it refer to the right of the people to maintain a militia for their mutual protection? [Ratified 1791] Amendment III: In the 1790s citizens were still angry about the old British practice of quartering soldiers in the homes of colonists. This provision addressed that concern, but in modern times this is obsolete. [Ratified 1791] Amendment IV: Guarantees that citizens be safe from unreasonable searches or arrests without a warrant. [Ratified 1791] Amendment V: Provides certain protections in matters of law such as double jeopardy where a person cannot be tried twice for the same offense. It also provides that no person shall be forced to give testimony in court against themselves. In popular language this is known as pleading the Fifth Amendment. 531

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Amendment VI: Provides for speedy public trials by jury for those indicted in criminal cases. [Ratified 1791] Amendment VII: Provides for jury trials in civil cases. Even though the Constitution sets a civil dispute with a minimum of $20 as sufficient grounds for a jury trial, this amount has been increased considerably over two centuries, and the small claims, which could overwhelm the court system, have been handled in other ways such as small claims courts. [Ratified in 1791] Amendment VIII: Punishment for crimes or bail shall not be excessive nor cruel and unusual. Does the death penalty constitute cruel and unusual punishment? This has been hotly debated for many years, with no clear resolution in sight. [Ratified 1791] Amendment IX: This is a catch-all clause that retains for the people other rights not specifically mentioned in the Constitution. Amendment X: The states or the people retain the powers not specifically granted to the federal government in the Constitution. Some use this amendment to argue that the federal government should be limited and state government and states’ rights should be increased. Amendment XI: Provides that states can only be sued in state courts. [Ratified 1798] Amendment XII: Calls for separate elections for president and vice president. This amendment was added in 1804 following the unusual circumstances of the presidential election of 1800, where Thomas Jefferson and Aaron Burr tied in the electoral college, forcing the House of Representatives to elect the president. [Ratified 1804] Amendment XIII: The first of the landmark Civil War and Reconstruction Era amendments, the Thirteenth Amendment abolished slavery in the United States. [Ratified 1865] Amendment XIV: Declares that African Americans born or naturalized in the United States were citizens subject to the equal protection of the laws. Earlier, in the Dred Scott decision of 1857, the Supreme Court had declared African Americans were not citizens. Section 2 of the Fourteenth Amendment also rendered obsolete the 532

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controversial passages in Article 1 which declared that only threefifths of African Americans held as slaves be counted in the census for purposes of representation . [Ratified 1868] Amendment XV: Protects the right to vote of African Americans. Even though this constitutional language is clear, many southern states tried to circumvent the Fifteenth Amendment through their own state constitutions and state laws which made it difficult or impossible for African Americans to vote. But the Fifteenth Amendment was a powerful tool for those who fought for civil rights over the past century. This amendment is the basis of the Voting Rights Act of 1965. [Ratified 1870] Amendment XVI: Provides constitutional authority for the collection of income taxes. This amendment became necessary to overcome an 1895 Supreme Court decision which declared a federal income tax was unconstitutional. [Ratified 1913] Amendment XVII: Provides for the direct election of senators. Until 1913 senators were elected by the state legislatures rather than by the people. Amendment XVIII: This amendment ushered in the era of Prohibition, when the manufacture and sale of alcoholic beverages was banned in the United States. This so-called noble experiment lasted 14 years and saw the rise of organized crime, the development of speakeasies (places where liquor was consumed illegally), and the rise of large government police units such as the Federal Bureau of Investigation, which tried to enforce the provisions of this amendment and laws related to it. [Ratified 1919] Amendment XIX: While women had voted in some states before the adoption of the 19th Amendment, this important amendment established uniform rules in all states that guaranteed women the right to vote. [Ratified 1920] Amendment XX: Sometimes called the Lame Duck Amendment, this provision reduced the time between the November elections and the beginning date of the new term of office for the president 533

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and Congress. It also provides for presidential succession should the president-elect die before taking office. [Ratified 1933] Amendment XXI: This amendment repealed Prohibition as established in the 19th Amendment. Alcoholic beverages became legal again in the United States. [Ratified 1933] Amendment XXII: This amendment, pushed by Republicans following the unprecedented election to four terms of Democratic President Franklin D. Roosevelt, limited the president to two terms. [Ratified 1951] Amendment XXIII: Provides for the first time for residents of the District of Columbia to vote for three presidential electors. The election of 1964 was the first time District residents could exercise their right to vote in a presidential election. [Ratified 1961] Amendment XXIV: Eliminates the poll tax as a qualification for voting. The poll tax prevented many individuals from voting, especially in the South where it was still in use in five states as late as the 1960s. [Ratified 1964] Amendment XXV: This amendment clarifies the language regarding what happens when the president dies in office or resigns. While it was a long standing custom that the vice president succeeds the president, this amendment confirms that the vice president becomes the president under these circumstances. [Ratified 1967] Amendment XXVI: This amendment gives the right to vote to those 18 years of age or older. Its adoption was prompted by the circumstances of the Vietnam War, where those 18 years of age were subject to be drafted into the military even though they were not yet old enough to vote. This amendment corrected that disparity. Amendment XXVII: One of the most unusual amendments because of the amount of time it took to be ratified, this amendment provides that no congressional pay raise can take effect until the voters have had a chance to go to the polls in a congressional election. Throughout American history the issue of congressional pay increases has often led to great political controversy. Under this amendment, if Congress 534

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votes itself a pay raise, they must face the voters before that raise goes into effect, thereby giving the voters an opportunity to decide if the raise is warranted. First proposed as one of the original amendments to the Constitution in 1789, this amendment lay dormant and unratified until a recent flurry of states ratified it. Since there was no time limit specified in the original amendment in 1789, this provision became part of the Constitution. [Ratified 1992] American Civil Liberties Union: The American Civil Liberties Union (ACLU), founded in 1920 to protect the constitutional rights of individuals and institutions, has been in the thick of many highly visible and often controversial cases involving free speech and the protection of civil rights. The organization depends on the support of dues-paying members and a corps of lawyers willing to volunteer their services to protect the First Amendment of the Constitution, and other constitutional provisions that bear on civil liberties. Americans for Democratic Action (ADA): The ADA was formed in 1947 to promote a liberal political agenda including civil rights for all Americans. Among the founders of the organization were former First Lady Eleanor Roosevelt; Walter Reuther, president of the United Automobile Workers; John Kenneth Galbraith, economist; Arthur Schlesinger, Jr., historian; and others, including Hubert H. Humphrey, then mayor of Minneapolis, Minnesota, who later, as a member of the U.S. Senate, would play a major role in the passage of the Civil Rights Act of 1964. amicus curiae: Latin for “friend of the court.” It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case. answer: The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense. Anti-Federalists: A group of diverse individuals that formed to oppose the ratification (passage) of the new federal Constitution in 1787. They were united by their fear of a powerful and potentially oppressive national government, a government dominated by wealthy aristocrats, and the absence of a bill of rights in the new Constitution. 535

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antitrust complaints: Claims under antitrust law, a body of law designed to protect trade and commerce from restraints, monopolies, price-fixing, and price discrimination; the principle antitrust laws are the Sherman Act and the Clayton Act. appeal: n. When the chair rules on a point of order, any senator may appeal the ruling, in which case the full Senate makes a final decision on the point of order by voting whether to sustain or reverse the ruling. Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency; a complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed. appearance: the participation in the proceedings by a party summoned in an action, either in person or through an attorney; appellant: The party who appeals a district court’s decision, usually seeking reversal of that decision. appellate: About appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts. appellate jurisdiction: A court’s jurisdiction is its authority to hear and decide cases. A court’s appellate jurisdiction (if it has such authority) encompasses cases previously heard and decided by other lower courts. Hence appellate jurisdiction entails the power of a court, board, or commission to review, uphold, or overturn decisions made by other authorities. appellate tribunal / court: A court with jurisdiction to review decisions of one or more lower courts. Also termed: appeals court; appeal court; court of appeals. appellee: The party who opposes an appellant’s appeal, and who seeks to persuade the appeals court to affirm the district court’s decision. application: In some jurisdiction this term is merely a variant name for motion. Where that is so, motion is the better term. 536

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apportionment: Distribution of legislative seats among districts; esp., the allocation of congressional representatives among the states based on population, as required by the 14th Amendment. The claim that a state is denying the right of representation to its citizens, through improper apportionment presents a justiciable issue. apportionment and redistricting: The boundaries of congressional districts in all but the smallest states are redrawn at the beginning of every decade to equalize their populations. The need for such adjustment stems from the constitutional requirement that congressional districts have equal populations, together with a constantly shifting U.S. population. The alteration of old district lines to achieve new ideal populations is the essence of redistricting, or, as it is sometimes called, reapportionment. The first step in congressional redistricting is called apportionment. The Census Bureau calculates each state’s share of congressional districts when the decennial census is finished. The second step is to adjust congressional boundaries within each state’s border to achieve near equality in district populations. The result of this two-stage process is that district populations are made equal within states but, by strict standards, remain relatively unequal across states. The authority for congressional apportionment is constitutional. Article I, Section 2 states that “Representatives shall be apportioned among the states according to their numbers.” appropriation: The provision of funds, through an annual appropriations act or a permanent law, for federal agencies to make payments out of the Treasury for specified purposes. The formal federal spending process consists of two sequential steps: authorization and then appropriation. appropriation bill: A bill granting the actual monies approved by an authorization bill, but not necessarily to the total approved; must originate in the House. arraignment: A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty. 537

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Article I: The first Article of the U.S. Constitution deals with the structure, duties, and powers of the legislative branch of government, the part of government that makes laws and has broad powers to influence the way all Americans live and work. Article II: Article II is about the executive branch of government, how the president and vice president are elected, their terms of office, the powers of the president, and the president’s powers in relationship to the legislative branch of government. The Framers of the Constitution wanted to strike a balance between an all-powerful executive and a chief magistrate, an executive who would merely carry out the laws passed by Congress. Throughout American history there has been a constitutional tug of war between Congress and the president over the proper exercise of power. Throughout much of the 19th century, Congress held the upper hand in setting national policy and determining the course of national action. In the 20th century, however, the balance of power shifted in favor of the executive branch. Many factors accounted for this shift, but among them were the growth in the size and power of the executive branch as a result of two world wars and the actions of government to end the economic depression of the 1930s. Article III: This article, on the powers of judicial branch of government, is very brief and contains very few details when compared with Articles I and II. It was up to Congress to establish the actual structure of the federal court system, which it did in the Judiciary Act of 1789. The Constitution does not mention one important function of the Supreme Court, which is known as judicial review, the right of the Supreme Court to declare state laws unconstitutional. This practice was established in the landmark case of Marbury v. Madison in 1803 and upheld in many cases since that time. Article III judge: A federal judge who is appointed for life, during “good behavior,” under Article III of the Constitution. Article III judges are nominated by the President and confirmed by the Senate. Article III, Section 2: This section spells out the kinds of cases which can come directly to the Supreme Court without having been 538

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heard first in a lower court. It also provides for the familiar role the Supreme Court has of reviewing decisions of lower courts, which is known as appellate jurisdiction. Another very important provision of Article III, Section 2 is the right of anyone accused of a crime to have a trial by jury (except in cases of impeachment). Article II, Section 2, Clause 3: This provision of the Constitution is now obsolete. But it is a reminder of a time when holding slaves was legal in the country and those who tried to escape became fugitive slaves who could be captured and returned to slavery. Article V: This article describes the two methods by which the Constitution may be amended. One requires both houses of Congress to pass the proposed amendment by two-thirds vote in each house before submitting the amendment to the states for their approval (ratification). The second method is for two-thirds of the states to petition Congress to hold a national convention to propose amendments which would have to be ratified by three-fourths of the states. In the past 200 years there have been thousands of proposals introduced in Congress to amend the Constitution. But the Constitution has only been amended 27 times. Considering that the first ten amendments, known as the Bill of Rights, were adopted in 1791, during the first two years of government under the Constitution, the Constitution has only been amended seventeen times in the past 206 years. Article VI: This article calls for the new federal government to assume the debts of the earlier government which operated under the Articles of Confederation, this nation’s first constitution. This was one of the most hotly debated topics at the Constitutional Convention in Philadelphia in 1787. Article VI also declares that the Constitution is the supreme law of the land, binding all states and all courts to recognize that federal law takes precedence over state law. Article VII: The shortest of all the articles of the Constitution, it provides the number of states necessary to ratify the Constitution. In 1787 there were thirteen states and nine were required for ratification. 539

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Articles of Confederation: The Articles of Confederation is the name of the first United States Constitution used during the American Revolutionary era. It was introduced in the Continental Congress on June 7, 1776, drafted by John Dickinson and others, and sent to the states for ratification on November 15, 1777. It was not ratified by a sufficient number of states until March 1, 1781. The Articles of Confederation left most power to the state legislatures. There was no federal executive branch and only very limited federal court functions. Congress under the Articles of Confederation was a unicameral, or “one house,” legislature which sometimes acted on judicial and executive matters. Members of the Confederation Congress voted by state with each state, regardless of the number of delegates in attendance, receiving only one vote. Congress could borrow money but most of its funds came from the state legislatures. Many members of Congress and the state legislatures were disappointed with the government as established under this constitution and in 1787 Congress called for a convention to revise the Articles of Confederation. The Federal Convention that met in Philadelphia during the summer of 1787 went beyond mere revisions of the Articles of Confederation and drafted a whole new constitution, the one under which this nation is governed today. You may want to compare the similarities and the differences between the two constitutions. assessment of property for taxation: The listing and valuation of property for the purpose of apportioning a tax upon it, either according to value alone or in proportion to benefit received. assets: Property of all kinds, including real and personal, tangible and intangible. assignment: 1. Task or mission. 2. assigning or being assigned. 3. legal transfer. associate justice: A Supreme Court justice, or an appellate-court justice other than the Chief Justice. assume: An agreement to continue performing duties under a contract or lease. 540

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at issue: whenever the parties to a suit come to a point in the pleadings which is affirmed on one side and denied on the other, they are said to be “at issue.” at-large election: An election in which candidates are chosen on an individual basis rather than as representatives of a geographically defined, single-member district. At-large elections can be held at the legislative and presidential levels. In the United State of America, some states hold at-large elections for congressional seats, when, for instance, a state’s entire population warrants only one representative. At-Large Representatives: Representatives from states with a population size qualifying for only one House seat. At-Large Members represent Alaska, Delaware, Montana, North and South Dakota, Vermont, and Wyoming. Attorney General: The chief law officer and the legal counsel to the executive branch of government. The office of attorney general was created by Congress in 1789. The attorney general is also the chief administrator of the U.S. Department of Justice. authorization: A statutory provision that obligates funding for a program or agency. An authorization may be effective for one year, a fixed number of years, or an indefinite period. An authorization may be for a definite amount of money or for “such sums as may be necessary.” The formal federal spending process consists of two sequential steps: authorization and then appropriation. authorizations act: A law that establishes or continues one or more Federal agencies or programs, establishes the terms and conditions under which they operate, authorizes the enactment of appropriations, and specifies how appropriated funds are to be used. Authorizations acts sometimes provide permanent appropriations. authorization bill: Authorization legislation has two functions: to provide legal authority for federal programs and activities and to authorize subsequent appropriations to fund them. Authorizations are within the jurisdiction of all House and Senate legislative committees, except the committees on appropriations. The bifurcated process of 541

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setting policy through authorizations and then separately appropriating annual funding, in place since 1836, is not constitutionally required but was instituted under the rules of the House and Senate to facilitate both policy-making and annual appropriations. Congressional committee structure and procedure draw clear distinctions between authorizing and appropriating and the committees with those respective responsibilities. author: The person (usually a legislator) who presents a bill or resolution for consideration; may be joined by others, who are known as coauthors. See also: introducer, patron, sponsor. automatic stay: An injunction that automatically stops lawsuits, foreclosures, garnishments, and most collection activities against the debtor the moment a bankruptcy petition is filed. award: A decision of an Arbitrator. bail: The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person’s appearance in court when required. Also can refer to the amount of bond money posted as a financial condition of pretrial release. bankruptcy: A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code (the Bankruptcy Code). bankruptcy administrator: An officer of the Judiciary serving in the judicial districts of Alabama and North Carolina who, like the United States trustee, is responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors’ committees; monitoring fee applications; and performing other statutory duties. Bankruptcy Code: The informal name for title 11 of the United States Code (11 U.S.C. §§ 101–1330), the federal bankruptcy law. Bankruptcy Court: The bankruptcy judges in regular active service in each district; a unit of the district court. 542

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bankruptcy estate: All interests of the debtor in property at the time of the bankruptcy filing. The estate technically becomes the temporary legal owner of all of the debtor’s property. bankruptcy judge: A judicial officer of the United States district court who is the court official with decision-making power over federal bankruptcy cases. bankruptcy petition: A formal request for the protection of the federal bankruptcy laws. (There is an official form for bankruptcy petitions.) bankruptcy trustee: A private individual or corporation appointed in all Chapter 7 and Chapter 13 cases to represent the interests of the bankruptcy estate and the debtor’s creditors. bargaining: A political activity in which two or more congressmen attempt to influence each other in order to reach an agreement. baseline: Projection of the receipts, outlays, and other budget amounts that would ensue in the future without any change in existing policy. Baseline projections are used to gauge the extent to which proposed legislation, if enacted into law, would alter current spending and revenue levels. bench trial: A trial without a jury, in which the judge serves as the fact-finder. bicameral: Composed of two legislative bodies, or houses, through which all bills must pass. Congress is a bicameral legislature, as are most state legislatures. biennium: Two-year term of legislative activity. bill: The principal vehicle employed by lawmakers for introducing their proposals (enacting or repealing laws, for example) in the Senate. Bills are designated S. 1, S. 2, and so on depending on the order in which they are introduced. They address either matters of general interest (“public bills”) or narrow interest (“private bills”), such as immigration cases and individual claims against the Federal government. A proposed law, printed, and presented to Congress for action that may lead to its adoption through the legislative process. 543

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Many bills are introduced into each session of Congress, but few actually become law. bill of attainder: The Constitution prohibits Congress from passing any law that strips an individual of civil rights or property. bill of exchange: an order written from one party to another directing him to pay a certain sum to a third party. Bill of Rights: The first ten amendments to the United States Constitution. bill referral: When a member of Congress introduces a bill in the House or Senate, it is first referred to the proper House or Senate committee that has jurisdiction over the topic covered by the bill. Sometimes bills are referred to more than one committee. The committee (or committees) examines the bill and decides if it should be sent to the floor of the House or Senate to be voted on by all the members. Sometimes a bill is “killed” early in its journey through the House or Senate when it is referred to a committee which is unfavorable to its provisions, or when it is referred to several committees at the same time, which is called a joint referral. bill sponsorship: When a member of Congress introduces a bill, he or she is said to be the bill’s sponsor. A bill may have one or more sponsors. Many bills have hundreds of sponsors. The more sponsors, the better the likelihood of passage when the bill comes to the floor of the House or Senate. A member may later decide to remove his or her name as a sponsor of a bill, by announcing this change on the floor of the House or Senate. bipartisan: This word means “two party.” If a bill has bipartisan support, it means that both major political parties, the Republicans and the Democrats support it. bipartisan: Having an affiliation or association with (or representatives of) both political parties or caucuses in a two party system. blocs and coalitions: Composed of members of legislative assemblies who work and vote together in pursuit of particular legislative goals, 544

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blocs and coalitions have arisen despite attempts by political party leaders to maintain strict party discipline. Such groups coalesce around policy issues on which neither political party has established a position that satisfies the constituents of group members. Congressional coalitions do not form with the intention of dominating the entire legislative agenda. Rather, they are interested in the resolution of particular and immediate policy questions. Blue Dog Democrat: One of twenty-four conservative Democratic Members of the House of Representatives who have banded together to support a more centrist position on economic issues than that held by their party’s leadership. The name comes from the artwork of Louisiana painter, George Rodrigue, who is well-known for a series of paintings featuring an unusual blue dog. The coalition formed after meeting regularly in the offices of two Louisiana Members, whose walls featured the blue dog paintings. Board of Patent Appeals and Interferences: Consists of Commissioner of Patents, the Deputy Commissioner, the Assistant Commissioners, and the examiners-in-chief whose responsibility is to review adverse decisions of examiners upon applications for patents and to determine priority and patentability of invention in interferences. brief: n. A written statement setting out the legal contentions of a party in litigation, esp. on appeal; a document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them. Also termed legal brief; brief argument. 1. In AmE, the written arguments of counsel for consultation by the court; 2. in BrE a document by which a solicitor instructs a barrister with an abstract of the pleadings and facts as the barrister prepares to appear as an advocate in court; 3. in BrE a barrister’s authority to appear; or 4) in AmE and BrE, an abstract of all the documents affecting the title to real property (known also as abstract of title). Brown v. Board of Education of Topeka, Kansas (1954): This was a landmark civil rights case which struck down state laws which allowed for racial segregation in public schools. Racial segregation 545

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of public schools had been widely practiced in the United States and was sanctioned by an earlier Supreme Court case, Plessy v. Ferguson (1896). In the Plessy case the doctrine of “separate but equal” became the law of the land. But seldom, if ever, were the education facilities available provided to black school children equal to those of white students. In 1954, however, the Supreme Court reversed its earlier position and said: “Separate educational facilities are inherently unequal.” The Court cited the 14th Amendment of the Constitution which guaranteed all citizens “equal protection of the laws.” budget: A document sent to Congress by the president in January, detailing estimated revenue and expenditures for the next fiscal year and recommending appropriations. This is the first step in the process of determining annual appropriations bills for the money needed to keep the federal government operating. budget authority: Authority provided by law to enter into obligations that will result in outlays of Federal funds. Budget authority may be classified by the period of availability (one-year, multiyear, no-year), by the timing of congressional action (current or permanent), or by the manner of determining the amount available (definite or indefinite). budget process: The power of the purse granted to Congress in Article I of the Constitution has long been an essential element of Congress’s role as a policymaker. In recent years, the budget process has become the central feature of the internal operations of Congress. It affects the relative power of committees, the resources of majority party leaders, the rules and floor procedures, and Congress’s ability to negotiate with the president. Three important factors help explain the evolution of the congressional budget process and judgments about its performance. First, the experimentation in congressional budgeting since the late 1960s reflects legislative attempts to adapt to a rapidly changing budgetary, economic, and political environment. Second, the development of the congressional budget process reflects the constitutional separation of powers and institutional combat between the executive and legislative branches. Third, apparent inconsistencies in Congress’s budgeting performance reflect the tension between two basic 546

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roles of members of Congress: that of responsible national policymakers versus that of local district representatives concerned about reelection and oriented toward providing tangible benefits for constituents. budget resolution: Legislation in the form of a concurrent resolution setting forth the congressional budget. The budget resolution establishes various budget totals, divides spending totals into functional categories (e.g., transportation), and may include reconciliation instructions to designated House or Senate committees. Bully Pulpit: A term which stems from President Theodore Roosevelt’s reference to the White House as a “bully pulpit,” meaning a terrific platform from which to persuasively advocate an agenda. Roosevelt often used the word “bully” as an adjective meaning superb or wonderful. Roosevelt also had political affiliation with the Progressive Party, nicknamed the “Bull Moose” party. It got the moniker when Roosevelt ran for President as its candidate in 1912, after declaring himself as “fit as a bull moose.” burden of proof: (Lat. Onus probandi.) In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a case. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt. business bankruptcy: A bankruptcy case in which the debtor is a business or an individual involved in business and the debts are for business purposes. bylaws: The written rules for conduct of a corporation, association, partnership or any organization. calendar: (1) A printed list of proposals that are arranged according to the order of business and are scheduled for consideration by a chamber. (2) Agenda of daily legislative business in a chamber. 547

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calendar day: Literally a day as listed on the Gregorian calendar. Calendar of Business: A Senate publication sent to each lawmaker’s office (and other offices) every day the Senate is in session. It contains information on, for instance, measures reported from the various standing committees, bills in conference, and the status of appropriation bills. Calendar Wednesday: Procedure by which standing committees may call bills out of regular calendar order on Wednesdays; not often used. call up a bill: To raise a bill on the floor for immediate consideration. call of the Senate or House: Procedure used to compel the attendance of members who are missing from the chamber and to compel those members already in attendance to remain in the chamber. Campaign Committees: The four congressional campaign committees- the Democratic Congressional Campaign Committee (DCCC), the Democratic Senatorial Campaign Committee (DSCC), the National Republican Congressional Committee (NRCC), and the National Republican Senatorial Committee (NRSC) were founded to assist in the reelection of members of the House of Representatives and the Senate. Though they continue to pursue this mission, their focus has broadened to include the recruitment and election of challengers and of candidates for open seats. They have also increased the kinds and quantity of the assistance they provide to candidates. capital felony: A crime which may be punishable by execution. In Texas and other states that provide for execution as a punishment option, capital murder is today the only crime punishable by death. capitation: Congress is prohibited from levying taxes on the basis of an equal sum per person. This is sometimes called a head tax or a poll tax. Capitol Hill: The Capitol Hill neighborhood is relatively compact, generally considered to be bounded by Massachusetts Avenue on the 548

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north, the foot of the Capitol on the west, E Street on the south, and Lincoln Park and 11th Street on the east. The most important buildings are the Capitol, the Supreme Court, the Library of Congress (now in three separate structures), the Folger Shakespeare Library, the Botanic Gardens, and Union Station. The Capitol Complex includes the Russell, Dirksen, and Hart Senate office buildings and the Cannon, Longworth, and Rayburn House office buildings. carry-over legislation: Legislation that is held over from the first year of a legislative biennium to the second year. case: Latin casus accident, event, set of circumstances, literally act of falling; 1. A civil or criminal proceeding, action, suit, or controversy at law or in equity; 2. An action selected from several suits that are based on the same facts and evidence, raise the same question of law, and have a common plaintiff or a common defendant. Sometimes, when all parties agree, the court orders a consolidation and all parties are bound by the decision in the test case. The reported facts, procedural history, and esp. decision in an action; 3. A criminal investigation; 4. An individual suspect or convict in relation to any aspect of the criminal-justice system; 5. The evidence and arguments presented by a party in court; an argument 6. An instance, occurrence, or situation. case file: A complete collection of every document filed in court in a case. case law: The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions. case-or-controversy requirement: The constitutional requirement that, for a federal court to hear a case, the case must involve an actual dispute. caseload: The number of cases handled by a judge or a court. casework: Intermediary work performed by members of Congress on behalf of constituents who may have problems, or “cases,” with the federal government. 549

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caucus: From the Algonquian Indian language, a caucus meant “to meet together.” An informal organization of members of the House or the Senate, or both, that exists to discuss issues of mutual concern and possibly to perform legislative research and policy planning for its m