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Construction Legislation Test 1
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Fed. 51: To the People of the State of New York: TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS.What is a crime A crime is generally defined as an act or omission that is prohibited by criminal law Two critical ingredients of a crime are: 1) the commission of an act (Actus reus) 2) the mental intent to commit the act (Mens rea) A crime occurs when a person Commits an act or fails to commit an act when under a legal responsibility to do so Has the intent or mens rea to commit the act Does not have a legal defence or justification for committing the act and Violates a provision in criminal law The Social construction of crime Important to distinguish between behaviours that may be considered deviant by society and crimes Deviance is behaviour that is contrary to the norms and values of the larger society Crime is behaviour that breaks the law Deviance includes: Criminal behaviour and Wide range of other behaviours not against the law: May be frowned upon by the larger society What is viewed as deviant changes over time Crime includes: Social construction of crime Legal status of behaviours is not determined by behaviour itself but result of social response to the behaviour/persons/groups engaged in it Criminologists often conduct historical analyses to understand how social, economic and political environments may influence legislation Moral entrepreneurs Often play a key role in criminalizing certain activities Individuals, groups or organizations, seek action against certain groups of people/behaviours and bring pressure on legislators to enact criminal statutes The Origins and Application of the Criminal Law Differing perspectives on where criminal laws come from/ applied via the criminal justice system are reflected in two models 1) Value consensus model 2) Conflict Model Value consensus model Behaviours are defined as criminal/punishment imposed, reflect opinions/limits of tolerance Application of law, society reaffirms acceptable behaviours/social cohesion Conflict Model Crime and punishment reflect the power some groups have to influence, formulation/application of criminal law rich/privileged have an advantage in influencing law reform/criminal justice system The Canadian Legal System Is a common law system, with exception of Quebec which has a civil law system (Based on the French Code Napoleon) Common law is law based on custom, tradition, practice and generally unwritten Precedent is a judicial decision may be use as a standard in subsequent similar cases Canadian Courts Canadian courts organised in a hierarchy Supreme court of Canada is the highest court Stare decisis- principle whereby higher courts set precedents that lower courts must follow “To stand by what was decided” Like cases should be treated alike All courts below SSC bound to apply that same ruling in subsequent cases Criminal Law Body of law deals with conduct considered so harmful to society as a whole that it is prohibited by statute and prosecuted and punished by the government Functions of the Criminal Law In Canadian society, Criminal law provides the following functions Acts as a mechanism of social control Defines the parameters of acceptable behaviour Reduces the risk of personal retaliation Assists in general and specific deterrence Prosecutes criminalized behaviour Protects groups interests Principles of Canadian Law The Rule of Law The requirement that governments as well as individuals be subjected to Traced back to the English Magna Carta The essence of the rule of law is that No one person is above the law All persons are bound by the law All are entitled to protection by the law The law should be observed and enforced equally There is a standard to which criminal justice officials must adhere and will be held accountable Criminal Law Vs. Civil (Tort) Law Summary Crime is a social construction and is a reflection of changing time and mores Criminal law is not static and what behaviour legislatively defined as criminal can change overnight There are instances in which controversy arises when the criminal law is applied to issues of ethics, morality and religion The criminal law was identified as one type of public law and the functions of the criminal law were set out The rule of law and the charter of rights and freedoms are two key parts of the foundation of the criminal justice system There are several principles that also provide the foundation for Canadian law The role, principles origins and application of the criminal law were examined and a number of case studies were presented to illustrate the dynamic nature of the criminal law in a diverse society What term refers to the belief in the application of Charles Darwin's theory of natural selection to human society, particularly as it relates to competition and success? A) Muckraker B) Square Deal C) Social Darwinism D) Suffrage Which term describes journalists and writers who exposed and criticized social issues and corruption in the late 19th and early 20th centuries? A) Yellow Journalism B) Sherman AntiTrust Act C) Big Stick Policy D) Muckraker Theodore Roosevelt's domestic policy aimed at balancing the interests of business, consumers, and labor. What is it called? A) Open Door Policy B) Square Deal C) Social Darwinism D) Muckraker Which term represents the idea of equal voting rights, particularly for women, during the Progressive Era? A) Dollar Diplomacy B) Suffrage C) Corollary D) Roosevelt This legislation, passed in 1890, was designed to curb the power of large corporations and promote fair competition: A) Sherman AntiTrust Act B) Square Deal C) The Panama Canal D) Yellow Journalism What was the foreign policy approach that Theodore Roosevelt used to assert U.S. influence in the Western Hemisphere, emphasizing the use of military force if necessary? A) Big Stick Policy B) Open Door Policy C) Social Darwinism D) Muckraker Which policy aimed to ensure that all nations had equal trading access to China's markets in the late 19th and early 20th centuries? A) Dollar Diplomacy B) Big Stick Policy C) Open Door Policy D) Corollary This sensational and often exaggerated style of journalism, particularly associated with newspapers like the New York Journal and the New York World, helped fuel public sentiment leading to the Spanish-American War. What is it called? A) Roosevelt B) The Panama Canal C) Yellow Journalism D) Square Deal Which U.S. president played a significant role in the construction of the Panama Canal? A) Corollary B) Roosevelt C) Sherman AntiTrust Act D) Dollar Diplomacy“There’s No Such Thing as Sound Science” by By Christie Aschwanden was a lead science writer for FiveThirtyEight. FiveThirtyEight, Science, Dec. 6, 2017 Science is being turned against itself. For decades, its twin ideals of transparency and rigor have been weaponized by those who disagree with results produced by the scientific method. Under the Trump administration, that fight has ramped up again. In a move ostensibly meant to reduce conflicts of interest, Environmental Protection Agency Administrator Scott Pruitt has removed a number of scientists from advisory panels and replaced some of them with representatives from industries that the agency regulates. Like many in the Trump administration, Pruitt has also cast doubt on the reliability of climate science. For instance, in an interview with CNBC, Pruitt said that “measuring with precision human activity on the climate is something very challenging to do.” Similarly, Trump’s pick to head NASA, an agency that oversees a large portion the nation’s climate research, has insisted that research into human influence on climate lacks certainty, and he falsely claimed that “global temperatures stopped rising 10 years ago.” Kathleen Hartnett White, Trump’s nominee to head the White House Council on Environmental Quality, said in a Senate hearing last month that she thinks we “need to have more precise explanations of the human role and the natural role” in climate change. The same entreaties crop up again and again: We need to root out conflicts. We need more precise evidence. What makes these arguments so powerful is that they sound quite similar to the points raised by proponents of a very different call for change that’s coming from within science. This other movement strives to produce more robust, reproducible findings. Despite having dissimilar goals, the two forces espouse principles that look surprisingly alike: Science needs to be transparent. Results and methods should be openly shared so that outside researchers can independently reproduce and validate them. The methods used to collect and analyze data should be rigorous and clear, and conclusions must be supported by evidence. These are the arguments underlying an “open science” reform movement that was created, in part, as a response to a “reproducibility crisis” that has struck some fields of science.1 But they’re also used as talking points by politicians who are working to make it more difficult for the EPA and other federal agencies to use science in their regulatory decision-making, under the guise of basing policy on “sound science.” Science’s virtues are being wielded against it. What distinguishes the two calls for transparency is intent: Whereas the “open science” movement aims to make science more reliable, reproducible and robust, proponents of “sound science” have historically worked to amplify uncertainty, create doubt and undermine scientific discoveries that threaten their interests. “Our criticisms are founded in a confidence in science,” said Steven Goodman, co-director of the Meta-Research Innovation Center at Stanford and a proponent of open science. “That’s a fundamental difference — we’re critiquing science to make it better. Others are critiquing it to devalue the approach itself.” Calls to base public policy on “sound science” seem unassailable if you don’t know the term’s history. The phrase was adopted by the tobacco industry in the 1990s to counteract mounting evidence linking secondhand smoke to cancer. A 1992 Environmental Protection Agency report identified secondhand smoke as a human carcinogen, and Philip Morris responded by launching an initiative to promote what it called “sound science.” In an internal memo, Philip Morris vice president of corporate affairs Ellen Merlo wrote that the program was designed to “discredit the EPA report,” “prevent states and cities, as well as businesses from passing smoking bans” and “proactively” pass legislation to help their cause. The sound science tactic exploits a fundamental feature of the scientific process: Science does not produce absolute certainty. Contrary to how it’s sometimes represented to the public, science is not a magic wand that turns everything it touches to truth. Instead, it’s a process of uncertainty reduction, much like a game of 20 Questions. Any given study can rarely answer more than one question at a time, and each study usually raises a bunch of new questions in the process of answering old ones. “Science is a process rather than an answer,” said psychologist Alison Ledgerwood of the University of California, Davis. Every answer is provisional and subject to change in the face of new evidence. It’s not entirely correct to say that “this study proves this fact,” Ledgerwood said. “We should be talking instead about how science increases or decreases our confidence in something.” The tobacco industry’s brilliant tactic was to turn this baked-in uncertainty against the scientific enterprise itself. While insisting that they merely wanted to ensure that public policy was based on sound science, tobacco companies defined the term in a way that ensured that no science could ever be sound enough. The only sound science was certain science, which is an impossible standard to achieve. “Doubt is our product,” wrote one employee of the Brown & Williamson tobacco company in a 1969 internal memo. The note went on to say that doubt “is the best means of competing with the ‘body of fact’” and “establishing a controversy.” These strategies for undermining inconvenient science were so effective that they’ve served as a sort of playbook for industry interests ever since, said Stanford University science historian Robert Proctor. The sound science push is no longer just Philip Morris sowing doubt about the links between cigarettes and cancer. It’s also a 1998 action plan by the American Petroleum Institute, Chevron and Exxon Mobil to “install uncertainty” about the link between greenhouse gas emissions and climate change. It’s industry-funded groups’ late-1990s effort to question the science the EPA was using to set fine-particle-pollution air-quality standards that the industry didn’t want. And then there was the more recent effort by Dow Chemical to insist on more scientific certainty before banning a pesticide that the EPA’s scientists had deemed risky to children. Now comes a move by the Trump administration’s EPA to repeal a 2015 rule on wetlands protection by disregarding particular studies. (To name just a few examples.) Doubt merchants aren’t pushing for knowledge, they’re practicing what Proctor has dubbed “agnogenesis” — the intentional manufacture of ignorance. This ignorance isn’t simply the absence of knowing something; it’s a lack of comprehension deliberately created by agents who don’t want you to know, Proctor said.2 In the hands of doubt-makers, transparency becomes a rhetorical move. “It’s really difficult as a scientist or policy maker to make a stand against transparency and openness, because well, who would be against it?” said Karen Levy, researcher on information science at Cornell University. But at the same time, “you can couch everything in the language of transparency and it becomes a powerful weapon.” For instance, when the EPA was preparing to set new limits on particulate pollution in the 1990s, industry groups pushed back against the research and demanded access to primary data (including records that researchers had promised participants would remain confidential) and a reanalysis of the evidence. Their calls succeeded and a new analysis was performed. The reanalysis essentially confirmed the original conclusions, but the process of conducting it delayed the implementation of regulations and cost researchers time and money. Delay is a time-tested strategy. “Gridlock is the greatest friend a global warming skeptic has,” said Marc Morano, a prominent critic of global warming research and the executive director of ClimateDepot.com, in the documentary “Merchants of Doubt” (based on the book by the same name). Morano’s site is a project of the Committee for a Constructive Tomorrow, which has received funding from the oil and gas industry. “We’re the negative force. We’re just trying to stop stuff.” Some of these ploys are getting a fresh boost from Congress. The Data Quality Act (also known as the Information Quality Act) was reportedly written by an industry lobbyist and quietly passed as part of an appropriations bill in 2000. The rule mandates that federal agencies ensure the “quality, objectivity, utility, and integrity of information” that they disseminate, though it does little to define what these terms mean. The law also provides a mechanism for citizens and groups to challenge information that they deem inaccurate, including science that they disagree with. “It was passed in this very quiet way with no explicit debate about it — that should tell you a lot about the real goals,” Levy said. But what’s most telling about the Data Quality Act is how it’s been used, Levy said. A 2004 Washington Post analysis found that in the 20 months following its implementation, the act was repeatedly used by industry groups to push back against proposed regulations and bog down the decision-making process. Instead of deploying transparency as a fundamental principle that applies to all science, these interests have used transparency as a weapon to attack very particular findings that they would like to eradicate. Now Congress is considering another way to legislate how science is used. The Honest Act, a bill sponsored by Rep. Lamar Smith of Texas,3 is another example of what Levy calls a “Trojan horse” law that uses the language of transparency as a cover to achieve other political goals. Smith’s legislation would severely limit the kind of evidence the EPA could use for decision-making. Only studies whose raw data and computer codes were publicly available would be allowed for consideration. That might sound perfectly reasonable, and in many cases it is, Goodman said. But sometimes there are good reasons why researchers can’t conform to these rules, like when the data contains confidential or sensitive medical information.4 Critics, which include more than a dozen scientific organizations, argue that, in practice, the rules would prevent many studies from being considered in EPA reviews.5 It might seem like an easy task to sort good science from bad, but in reality it’s not so simple. “There’s a misplaced idea that we can definitively distinguish the good from the not-good science, but it’s all a matter of degree,” said Brian Nosek, executive director of the Center for Open Science. “There is no perfect study.” Requiring regulators to wait until they have (nonexistent) perfect evidence is essentially “a way of saying, ‘We don’t want to use evidence for our decision-making,’” Nosek said. Most scientific controversies aren’t about science at all, and once the sides are drawn, more data is unlikely to bring opponents into agreement. Michael Carolan, who researches the sociology of technology and scientific knowledge at Colorado State University, wrote in a 2008 paper about why objective knowledge is not enough to resolve environmental controversies. “While these controversies may appear on the surface to rest on disputed questions of fact, beneath often reside differing positions of value; values that can give shape to differing understandings of what ‘the facts’ are.” What’s needed in these cases isn’t more or better science, but mechanisms to bring those hidden values to the forefront of the discussion so that they can be debated transparently. “As long as we continue down this unabashedly naive road about what science is, and what it is capable of doing, we will continue to fail to reach any sort of meaningful consensus on these matters,” Carolan writes. The dispute over tobacco was never about the science of cigarettes’ link to cancer. It was about whether companies have the right to sell dangerous products and, if so, what obligations they have to the consumers who purchased them. Similarly, the debate over climate change isn’t about whether our planet is heating, but about how much responsibility each country and person bears for stopping it. While researching her book “Merchants of Doubt,” science historian Naomi Oreskes found that some of the same people who were defending the tobacco industry as scientific experts were also receiving industry money to deny the role of human activity in global warming. What these issues had in common, she realized, was that they all involved the need for government action. “None of this is about the science. All of this is a political debate about the role of government,” she said in the documentary. These controversies are really about values, not scientific facts, and acknowledging that would allow us to have more truthful and productive debates. What would that look like in practice? Instead of cherry-picking evidence to support a particular view (and insisting that the science points to a desired action), the various sides could lay out the values they are using to assess the evidence. For instance, in Europe, many decisions are guided by the precautionary principle — a system that values caution in the face of uncertainty and says that when the risks are unclear, it should be up to industries to show that their products and processes are not harmful, rather than requiring the government to prove that they are harmful before they can be regulated. By contrast, U.S. agencies tend to wait for strong evidence of harm before issuing regulations. Both approaches have critics, but the difference between them comes down to priorities: Is it better to exercise caution at the risk of burdening companies and perhaps the economy, or is it more important to avoid potential economic downsides even if it means that sometimes a harmful product or industrial process goes unregulated? In other words, under what circumstances do we agree to act on a risk? How certain do we need to be that the risk is real, and how many people would need to be at risk, and how costly is it to reduce that risk? Those are moral questions, not scientific ones, and openly discussing and identifying these kinds of judgment calls would lead to a more honest debate. Science matters, and we need to do it as rigorously as possible. But science can’t tell us how risky is too risky to allow products like cigarettes or potentially harmful pesticides to be sold — those are value judgements that only humans can make.ConstructionPrinciples of Construction Level 1 Construction ProcessConstruction principles