Foundational Documents and Required Court Cases are the things College Board expects students to know and/or understand. Both may end up being tested in the multiple choice section of the exam, and while the Supreme Court cases are most likely to appear in the SCOTUS FRQ (FRQ 3) as a case you will use to compare to the given case they describe, they have also shown up as possible exemplars on the Argumentative FRQ (FRQ 4) on previous exams. Foundational documents will definitely be part of the Argumentative FRQ (FRQ 4). The following foundational documents and court cases are organized by Enduring Understandings. Enduring Understandings are the long-term takeaways related to the Big Ideas that are meant to leave lasting impressions. Take note, though, more resources doesn't necessarily mean that one case or document is more important than any other - this is merely a collection of resources to help you better understand any item you are confused about.
All short summaries come from CitizenU. Check out their large amount of resources as well.
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CON-1 The Constitution emerged from the debate about the weaknesses in the Articles of Confederation as a blueprint for limited government.
The Articles of Confederation (1781-1789)CitizenU: The Articles of Confederation was the first governing charter of the United States. Ratified in 1781, the Articles successfully empowered the young nation to fight a war for independence against England, organize the means of expansion west and most importantly hold our union together. At its core, the Articles of Confederation created a league or alliance of thirteen independent states. Each state would hold onto their “sovereignty, freedom and independence.” Herein was its terminal weakness. Illustrated best by its inability to govern sufficiently against the Shay’s Rebellion in Massachusetts the Articles would be replaced due to a number of inherent weaknesses. Absent in the Articles was a separate executive branch. There was no national court system. The Articles gave little legislative authority and virtually no authority to enforce. There were no provisions to regulate commerce. It contained no Bill of Rights. Under the Articles of Confederation the United States fought for independence from England. Yet sustaining that independence would have been difficult, if not impossible, had a new constitutional convention not been called. The Articles failures can never quite replace its important role in the early development of the United States. Constitutional interpretation even today is aided by our understanding of the successes and failures of the Articles of Confederation.
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The Constitution (1788)CitizenU: Constitutions are governmental road maps. The U.S. Constitution, written in the summer of 1787, is no exception. Our original thirteen colonies had united in 1776 to fight for their independence against a common foe – King George of England. The colonists feared, rightfully so, that gaining independence from England might result in a Pyrrhic victory. Their ability to self govern was no foregone conclusion. As the weaknesses of the newfound government manifested themselves in the Articles of Confederation our United States was imperiled. As colonial delegates assembled in Philadelphia in the summer of 1787, the fragile survival of the United States was at stake. What they created was nothing short of “the greatest experiment” in political history. Overlapping federal and state powers; the separation of three branches of government; a president rather than a prime minister; a dual court system; and the supremacy of the Constitution were just a few of the innovations agreed to that hot summer. After much debate the U.S. Constitution was ratified. That same document continues to guide our government today. As noted political scientist William Galston has argued, constitutions like ours continue to serve a number of critical purposes. Constitutions are principled documents that authorize legitimacy. They “establish governing institutions and set forth their respective responsibilities and powers.” Constitutions orient a polity toward “public purposes.” And finally, constitutions are “higher than ordinary law.” Remarkably, the political experiment first started back in Philadelphia in 1787 continues to serve us as it did then.
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CON-2 Federalism reflects the dynamic distribution of power between national and state governments.
McCulloch v. Maryland (1819)CitizenU: McCulloch v. Maryland (1819) is one of our most iconic Supreme Court precedents. According to James Bradley Thayer – “The chief illustration [of Marshall’s] “giving free scope to the power of the national government.” Marshall’s signature nation-building achievement, seemingly an “infinite increase in the powers of the federal government.” “Marshall’s capacious understandings of the Necessary and Proper Clause and the Commerce Clause were sufficient to accommodate the modern regulatory state.” Where federal and state governing actions collide, the national prerogatives are supreme. In the case of a national bank, federal supremacy holds that federal operations are immune from state taxation. The federal government, “though limited in its powers, is supreme within its sphere of action.” Supports broad constructions of Congress’ Commerce Clause and Necessary and Proper Clause powers. Federalism reflects the dynamic distribution of power between national and state government. When distributing power between national, state and local governments McCulloch v. Maryland (1819) made one thing perfectly clear, the power given to the national government is supreme.
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United States v. Lopez (1995)CitizenU: The story of American government is the story of federal aggrandizement. Seemingly our central government is getting bigger and bigger. Are there no limits left? Federalism was supposed to be the dynamic distribution of power between national and state government. In U.S. v. Lopez (1995) we see the United States Supreme Court standing up, surprisingly, for commerce clause limits. In the Supreme Court case U.S. v. Lopez (1995) the national government was somewhat surprisingly reprimanded. The Court’s admonishment was clear; Congress’ use of the commerce clause has its limits. Congress may not use the commerce clause to make possession of a gun in school zone a federal crime. We are a nation of law and not men. Law sets limits. There are certain policies that are outside of the purview of the national government. We call this federalism. Federalism reflects the dynamic distribution of power between national and state government. According to the Supreme Court, at least, the national government cannot do whatever it wants. State governments still retain a certain level of sovereignty. Do you disagree? See you in court.
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CON-3 The republican ideal in the U.S. is manifested in the structure and operation of the legislative branch.
Baker v. Carr (1961)CitizenU: The noted Chief Justice, Earl Warren, superintended a number of critical landmark Supreme Court cases. Warren led in the outcomes of Brown, Heart of Atlanta Motel, Gideon, and Miranda. Yet at the end of his life he claimed the decision in Baker was his most important case. In Baker the U.S. Supreme Court entered into the “political thicket.” Baker v. Carr (1961) ushered in a redistribution of political power - as dictated by the Courts. Previously held as “non - justiciable,” the Court opted to hear this Tennessee malapportionment case. Malapportionment was a common practice that allowed for Congressional districts to vary in population. The Court, contrary to previous like-minded cases, implored state legislatures to refrain from reapportionment anomalies that violated Constitutionally guaranteed “equal protections.” The republican ideal in the U.S. is manifested in the structure and operation of the legislative branch. In Baker the Court enforced redistricting based on the principle of “one-person-one-vote.” Amongst other things this case ensured that urban constituencies were represented proportionally equal to rural area constituents. By entering into the “political thicket” the Supreme Court hoped to assure that our political process was truly “of the people, by the people and for the people.”
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Shaw v. Reno (1993)CitizenU: The Supreme Court serves as the guardian of our republic. The republican ideal in the U.S. is manifested in the structure and operation of the legislative branch. For this reason the court, somewhat reluctantly, got involved with political questions in the landmark case Baker v. Carr (1961). This has led to endless stream of cases involving congressional reapportionment and redistricting. Each continues to stir wide debate. One such notable case is Shaw v. Reno (1993). At issue in Shaw was the creation of majority-minority Congressional districts in North Carolina. In 1991 the North Carolina state legislature created two such minority-majority districts out of their twelve total. Even in the court opinion there was concern that “racial gerrymandering…for remedial purposes may balkanize us into competing racial factions.” Nevertheless in a 5-4 decision the court upheld the two majority-minority districts. Legislative redistricting must, O’Connor argued in the court opinion, be conscious of race and ensure compliance with the Voting Rights Act of 1965. At best the opinion appears muddled. Nothing short of the rule of law, equal protection, and equal representation was at stake in this case. Essential values in our republic were on display in the Shaw decision. Though Shaw encouraged more questions than it answered it served, as some have said, to be a fitting “monument to Baker’s impact” – one man, one vote needed to be protected. A true republic demands no less.
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CON-4 The presidency has been enhanced beyond its expressed constitutional powers.
Federalist 70 (1788)CitizenU: In Federalist #70 Hamilton turns to address the disputes targeting the U.S. President. Isn’t an energetic president inconsistent with a republic? Hamilton postulated that we all could agree that a poorly executed government is a poor government. Therefore creating a weak president would in fact be creating a weak government. An energetic president would be essential to the protection of the community against foreign attacks; for the steady administration of the laws; for the protection of property; for securing our liberty against the assaults of personal ambition. But what are the ingredients of an energetic president? In this essay Hamilton emphasizes the unity of the office. The U.S. presidency cannot be shared. To be truly energetic it must be held by one person. Later Hamilton would unpack the president’s length of term, the adequate provisions of power and expected set of prerequisite skills. Under the Articles of Confederation there was no independent executive branch. The young government had little means to enforce its policies. The new constitution was written, in part, to address this weakness. In Federalist #70 Hamilton argues forthrightly that a king, perhaps, was too strong but a president just right.
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CON-5 The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.
Federalist 78 (1788)CitizenU: In Federalist 78 Hamilton’s assessment of the judicial branch could not be clearer. The judicial branch would be “the least dangerous branch.” Montesquieu had called the courts “next to nothing.” Do not be seduced by Hamilton’s humility here. The Supreme Court of the United States had a significant role to play, from the very beginning. As soon as Hamilton professes the court’s lack of influence he described a power later to be attributed to Chief Justice Marshall and the landmark case Marbury v. Madison (1803). Here in Federalist #78 Hamilton describes what we today call judicial review. What may look like judicial superiority, Hamilton acknowledged, would be a mistake. Nevertheless the court would invariably have the power and authority to rule an act of Congress or the President unconstitutional. “No legislative act…contrary to the Constitution can be valid.” Furthermore, Hamilton wrote: “No servant is above his master.” Our master is not found in men but in our laws. And who decides what those laws mean? But of course the courts. The least dangerous branch? You decide.
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Marbury v. Madison (1803)CitizenU: The United States Supreme Court was designed to be “the least dangerous branch.” This did not last long. Chief Justice John Marshall changed the Court’s trajectory in the case Marbury v. Madison (1803). Marshall wrote in his opinion that the Court had the authority to “say what the law is.” Marbury established the principle of judicial review empowering the Court to nullify an act of the legislative or executive branch that violates the Constitution. Judicial review allows the Court to do more than apply the law, its ultimate duty is to say what the law means. Judicial review empowers the U.S. Supreme Court to rule on the constitutionality of all law. This newfound power bolstered the Court’s influence and prestige. Whereas it once was used sparingly, the U.S. Supreme Court now uses judicial review frequently. The Court’s power in settling our most important political disputes is in no small way related to the decision in Marbury. The design of the judicial branch protects the Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful practice.
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LOR-1 A balance between governmental power and individual rights has been a hallmark of American political development.
Declaration of Independence (1776)CitizenU: The American Declaration of Independence, written by Thomas Jefferson in 1776, is one of the most quoted documents in world history. Rightfully so, it contains the values and ideals that spurred not only our own quest for independence but many others as well. The Declaration of Independence is our creed. It is the foundation of our social contract. The claims of our Declaration of Independence are normative statements that serve as the guiding force behind American political culture. More than complaints against King George in 1776, the Declaration of Independence contains a “set of core ideals – liberty, equality, and self government – that serve as the people’s common bond.” These values have become universals that time and history across the globe have pursued. The values and ideals found in the Declaration of Independence continue to be our standard. As it was in 1776 so it is today. Though we may often fall short of our standard we nevertheless know the principles by which every political debate must be judged. In American politics we disagree on a lot of things. But there is no disagreement on this – “we hold these truths to be self evident, that all men are created equal…” On July Fourth we can all come together to celebrate the Declaration of Independence.
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Federalist 10 (1787)CitizenU: Partisan bickering is not new. At our founding the Federalists and the Anti-Federalists had two very different visions for the new American government. Federalists, scarred by the weaknesses under the Articles of Confederation, realized a stronger central government was necessary. The Anti-Federalists preferred smaller more localized governmental units. Debates took on many different forms. Both sides submitted a series of essays that were printed in newspapers across the country. The Federalist Papers were a series of 85 essays written to persuade the state legislatures to ratify our new constitution. Federalist 10 was one of the most important. It addressed two vital questions. First it tried to argue the merits of a republic over a direct democracy. Second its purpose was to convince the states that a large republic could best guard against the dangers of factions than a small republic. Large republics, in essence, could dilute the potency of factions that hoped to kidnap public policy for its own purposes. History could provide little support for both arguments. This is why early on the American government was called a grand experiment. A large union best served as a safeguard against domestic faction and insurrection. History serves as both judge and jury of Madison’s claims.
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Brutus 1 (1787)CitizenU: Partisan bickering is not new. At our founding the Federalists and the Anti-Federalists had two very different visions for the new American government. Federalists, scarred by the weaknesses under the Articles of Confederation, realized a stronger central government was necessary. The Anti-Federalists preferred smaller more localized governmental units. Debates took on many different forms. Both sides submitted a series of essays that were printed in newspapers across the country. One of the earliest essays, written by an Anti-Federalist, was signed Brutus. In ancient history Brutus was a Roman citizen who fought bravely against tyranny and despotism. This essay, Brutus I, was an Anti-Federalist essay written to alert citizens to the dangers manifest in the new proposed U.S. Constitution. The seemingly “uncontrollable power” of the new federal government was feared most. The new constitution was flawed. This essay in particular warned of the “subversion of liberty” that was to be expected if the new constitution was ratified. The debate over the new constitution was on.
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LOR-2 Provisions of the U.S. Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals.
Engel v. Vitale (1962)CitizenU: Provisions of the Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. No better example than the emotional issue of our religious freedom as found in the First Amendment. Religious freedom has been central to the American way of life. “Our Constitution was made for a religious people,” said Founding Father John Adams. So it should not come as any surprise to learn that when the United States Supreme Court got involved with religious life in America it would ignite a passionate response. Though the First Amendment guaranteed, “Congress shall make no law respecting an establishment of religion,” a Protestant hegemony assured certain customs and traditions would be commonplace here, even in the public square. Individual state practices, as well, were not burdened by the religion clauses of the First Amendment until 1947 with the incorporation of the establishment clause in the case Everson v. Board of Education. With the Supreme Court now empowered to police neutral religious practices in every local village and hamlet a bevy of plaintiffs emerged to challenge certain long held traditions. One such tradition was the offering of Christian prayers in public schools. Following the “wall of separation” precedent in Everson, the high Court ruled against any and all public school led prayers in the landmark case Engel v. Vitale (1962). Few cases have solicited such emotionally charged reactions. Hundreds of constitutional amendments were proposed to overturn the decision and calls for impeaching Supreme Court justices became commonplace. In the end, the customs and traditions dutifully found in our public square would have to change. Governments could no longer sanction religious activity. “No law respecting an establishment of religion” would be tolerated. And no prayer could change that.
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Tinker v. Des Moines Independent Community School District (1969)CitizenU: Do students lose their rights when they walk through the schoolhouse gate? This was the question in the case Tinker v. Des Moines (1969). We know the First Amendment’s free speech clause has been given a “preferred position.” But does it apply equally to kids sitting in classrooms? The Des Moines public school system in 1965 said: “No.” “Schools are no place for demonstrations,” the school system’s spokesperson said in response to five students who had been suspended for showing up to class wearing black arm bands in protest of the Vietnam War. The Supreme Court would be called upon again to interpret the reach of the First Amendment. Provisions of the Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. Public school students, as decided in this case, could wear black armbands in school to protest the Vietnam War. Though the court recognized the school’s right to maintain order within the classroom, “school officials do not possess absolute authority over their students.” Furthermore the court argued, “Fear that something might happen, is not a basis for quelling all student speech.” Finding the proper balance between order and liberty is never easy. Be encouraged, however, that as you learn about your civil liberties they do not exist in theory alone. You gain possession of your liberties today, right now, regardless of your age. For this we can thank the courage of John and Mary Beth Tinker who decided to speak out against war while sitting in just another high school math class.
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Wisconsin v. Yoder (1972)CitizenU: The United States motto is simple, E Pluribus Unum, out of many one. Our Founders envisioned “a plural society,” one that welcomed diversity but encouraged harmony when solving compelling state interests. But what if certain groups want to be exempt from the state’s compelling interests? What if the pluribus loses its Unum? This was the issue in Wisconsin v. Yoder (1972). A group of rural Amish, a traditional religious sect that eschews modern comforts, chose not to cooperate with Wisconsin’s compulsory high school education laws. The Amish claimed it violated their First Amendment right to their “free exercise of religion.” Provisions of the Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. Compelling Amish students to attend school past the eighth grade violated the free exercise clause, the court argued. The court emphasized our tradition of religious tolerance and the accommodation of religious differences. Some have called the Yoder precedent the “high water mark of free exercise.” The allowance of religious exemptions to other state laws, however, has not met a similar conclusion. For instance in the case Employment Division v. Smith (1990) the court rejected the argument of two drug counselors who wanted to be exempt from Oregon’s prohibition to use peyote based upon their own religious practices. Congress attempted to ameliorate likeminded disputes with the passage of the Religious Freedom Restoration Act (1993). Disputes continue to vex our courts. Our pluribus continues to test our Unum.
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LOR-3 Protections of the Bill of Rights have been selectively incorporated by way of the Fourteenth Amendment’s due process clause to prevent state infringement of basic liberties.
Gideon v. Wainwright (1963)CitizenU: The Incorporation Doctrine was a game changer. Little by little the Bill of Rights were applied to the states using the due process clause of the Fourteenth Amendment. By incorporating or applying the protections found in the Bill of Rights to the states via the Fourteenth Amendment the Supreme Court solidified our civil liberties even more. The due process clause of the Fourteenth Amendment has been interpreted to prevent the states from infringing upon basic liberties. A prime example of the court using the incorporation doctrine can be seen in the case Gideon v. Wainwright (1963). Clarence Earl Gideon was serving time in a Florida prison for a crime he claimed he did not commit. At his trial he had no attorney. He could not afford one. The Florida constitution did not guarantee counsel and the Sixth Amendment guarantee to an attorney did not apply in Florida criminal cases. Using the Fourteenth Amendment’s due process clause to apply the Sixth Amendment even in state cases meant Clarence Gideon would receive another trial, this time with an attorney. Clarence Gideon was set free. The case of Gideon v. Wainwright (1963) guaranteed the right to an attorney for the poor or indigent not only at the federal level but at the state level as well. Thanks to the Incorporation Doctrine the Sixth Amendment’s right to counsel now applies to everyone, everywhere. The Incorporation Doctrine is a game changer.
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McDonald v. Chicago (2010)CitizenU: Little by little the Supreme Court has applied the protections of the Bill of Rights to the states using the due process clause of the Fourteenth Amendment. The due process clause of the Fourteenth Amendment, over time, has been interpreted to prevent the states from infringing upon basic liberties. Nationalizing the Bill of Rights, often called the Incorporation Doctrine, was first seen in the case Gitlow v. New York (1925). In Gitlow the court incorporated free speech. McDonald v. Chicago (2010) was the most recent instance of incorporation. The Second Amendment right to keep and bear arms for self-defense is now applicable to the states. Incorporation has broad implications for federalism. With the McDonald decision attempts by local governments to legislate against gun violence has become more problematic. For most of our history state and local governments, our “laboratories of democracy,” were able to experiment with various gun control measures. More specifically state and local governments were able to tailor gun laws to address their own unique populations. Now under the McDonald precedent gun laws must take into account the opinion of the Supreme Court. The “right to bear arms” is one of our most familiar and defended individual liberties. Even so gun violence continues to vex public policy makers. In McDonald v. Chicago (2010) the court inserted the national government as the final arbitrator in this dispute.
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PRD-1 The Fourteenth Amendment’s equal protection clause as well as other constitutional provisions have often been used to support the advancement of equality.
Brown v. Board of Education (1954)CitizenU: The decision in Brown v. Board of Education (1954) served as a pivotal catalyst in the formal dismantling of racial inequality throughout the United States. The United States Supreme Court, utilizing the authority given in the Fourteenth Amendment, became an important agent for social justice. Though it was not easy, even for the courts. The Court had heard oral arguments in the case the previous term and the justices fund themselves divided. A rehearing was ordered for the following year. In the Fall of 1953, before rehearing Brown, Chief Justice Fred Vinson died. With the appointment of Earl Warren as Chief Justice, those seeking an historic ruling in Brown found encouragement. Chief Justice Warren would ultimately be able to shepherd a landmark unanimous decision. In Brown the Fourteenth Amendment’s “equal protection clause” was used to support the advancement of equality in our public school system. Race-based school segregation violates the equal protection clause. De jure segregation in public schools, practiced throughout the South into the 1950s, was ruled to be unconstitutional. The Plessy precedent of “separate but equal” was no longer operative. The Court ruled unanimously “the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” As important and symbolic as these words were they would be met with resistance. Remember the Supreme Court has no official arm of enforcement. In many communities the Brown decision would fall on deaf ears. In many places the new law of the land was not enforced. Nevertheless the quest to live up to our creed of “equal protection” for all now found a friend in the United States Supreme Court. The Court would be called upon again in Brown II (1955) to clarify how best to realize the impact of their words. Undoing the shadow of systemic discrimination that had been in place since our founding would not be as simple as a landmark gesture by nine justices in 1954.
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Letter from a Birmingham Jail (1963)CitizenU: The Reverend Martin Luther King, Jr. at a critical turning point in time wrote “Letter from a Birmingham Jail.” The American civil rights movement was facing a serious challenge. King and other civil rights leaders were arrested and incarcerated for being agitators of disorder. Eight liberal Alabama ministers, open to bringing about racial justice, had written “An Appeal for Law and Order and Common Sense.” King’s strategy for bringing about change was untimely and impatient. King’s letter was his response. If the civil rights movement was going to win broad support King would need to address their criticism. “Letter from a Birmingham Jail” was his response. It became King’s Manifesto. The letter “soon became the most widely-read, widely-reprinted and oft quoted document of the civil rights movement.” King’s message was clear and forthright. The letter legitimized the civil rights movement. The time for action was now. King wrote, “For years now I have heard the word ‘wait!’…This ‘wait’ has almost always meant ‘never.’” Patience cannot endure forever. King’s manifesto, his “Letter from a Birmingham Jail,” proclaimed that this was the “precious time,” the decisive hour. The civil rights movement could no longer wait. King’s letter is as important today as it was back in 1963.
Watch this first video to hear Martin Luther King, Jr read his own letter - hear it in his own voice.
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PRD-2 The impact of federal policies on campaigning and electoral rules continues to be contested by both sides of the political spectrum.
Citizens United v. Federal Election Commission (2010)CitizenU: The impact of federal policies on campaigning and electoral rules continues to be contested by both sides of the political spectrum. Few cases have provoked more partisan bickering than Citizens United v. Federal Election Commission (2010). In contradistinction to the Tillman Act (1907), which prohibited corporate contributions to national political campaigns, Citizens United reconsidered this long-standing ban. Political spending by corporations, associations, and labor unions, the court argued, is a form of protected speech under the First Amendment. Though direct contributions are still prohibited, corporations and other associations are free to donate unlimited sums to Super PACs. More and more money has poured into our campaigns and elections. Fat cats are back in the limelight swaying our political process like no time before. Irrespective of the amount corporations now donate, the perception that big money quiets the voice of the typical voter has grown in intensity. Trust in our electoral process now lags. As long as both parties are able to raise and spend billions during each election cycle the call for reform falls on deaf ears.
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PMI-1 The Constitution created a competitive policy-making process to ensure the people’s will is represented and that freedom is preserved.
Federalist 51 (1788)CitizenU: In Federalist #51 Madison again proves to be the guiding light ready and willing to answer the opposition with unyielding wit. Federalist #51 was not just for the state of New York as they contemplated ratifying the new constitution. It continues to speak to us today. This essay one of Madison’s most quoted. “If men were angels,” Madison wrote, “no government would be necessary.” Our constitution was not only a charter for a new government but an accurate reflection of nature itself. Years later Lord Acton would famously record that “all power corrupts.” Our constitution continues to be a living testament to that natural tendency. Power here, at every turn, is diluted, checked and balanced against it. Madison also addressed the possibility of an oppressive class of people. Government is not the only possible villain. Segments of the population can tyrannize too. One part of society must be able to guard itself from another. Pluralism is the remedy. The best means to prevent this tyranny of the majority is to foster an independent will and welcome diversity. A world of difference does not just divide us but it actually strengthens our compact. The Federalist Papers not only helped to convince a young nation that their new constitution was a legitimate answer to their problems but a living source that informs us today about ourselves.
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