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The Constitutional Powers of Government

After the Revolutionary War the states created a confederal form of government where the states had the authority to govern themselves and the national government had limited powers.
- Then problems arose because the US was in an economic crisis and the state laws interfered with one another, a national convention was called and the US Constitution was drafted.

A Federal Form of Government

the national government and the states share sovereign power

The constitution does this

sets forth powers that can be exercised by the national government and says they have implied powers to undertake actions necessary to carry out it designated powers.

10th ammendment

all powers not delegated to the national government are reserved to the sates or to the people

The Regulatory Powers of the States

police powers- the broad right of state governments to regulate private activities to protect or promote the public order, health, safety, morals, and general welfare

The Privileges and Immunities Clause

Article 4, section 2, states "Citizens of each State shall be entitled to all privileges and Immunities of citizens in the several states." This prevents a state from imposing unreasonable burdens on citizens of another state.

The Full Faith and Credit Clause

Full Faith and Credit shall be given in each State to the public acts, Records, ad judicial Proceedings of every other state. It ensures that rights established under deeds, will contracts, and judicial decisions with respect to property rights, will be honored by other states. -It protects their legal rights as they move from state to state

The Separation of the National Government's Powers

we have three branches of government: legislative- making laws, executive-enforcing laws, and judicial-interprets laws

Check the legislative

the legislative branch can enact a law, but the executive branch can veto that law

Check the executive

the executive branch is responsible for foreign affairs, but treaties with foreign governments require advice and consent of Senate

Check the judicial

Congress determines the jurisdiction of the federal courts and the president appoints federal judges with the consent of the Senate, but the judicial brand has the power to hold actions of the other two branches unconstitutional

The Commerce Clause

The Constitution delegates to the national government the power to regulate interstate commerce. • the commerce clause provides the basis for the national government's extensive regulation of state and even local affairs, it has a huge impact on business

Gibbons V Ogden

the Court rules that commerce within the states could also be regulated by the national government as long as the commerce substantially affected commerce involving more than one state

The Expansion of National Powers under the Commerce Clause

Heart of Atlanta Motel v. United States- Supreme Court upheld the federal government's authority to prohibit racial discrimination nationwide in public facilities, including local motels, based on its powers under the commerce clause.

Medical Marijuana and the Commerce Clause

the US Supreme Court held that Congress has the authority to prohibit intrastate possession and noncommercial cultivation of marijuana as part of a larger regulatory scheme. So state laws that allow the use of medical marijuana do not insulate the uses from federal prosecution.

State Actions and the "Dormant" Commerce Clause

states do no have the authority to regulate interstate commerce. The dormant commerce clause comes into play when state regulations impinge on interstate commerce.

supremacy clause

provides that the Constitution, laws, and treaties of the U.S. are "the supreme law of the Land." When there is a direct conflict between a federal law and a state law, the state is rendered invalid

Preemption of State Laws

o preemption- occurs when Congress chooses to act exclusively in an area in which the federal government and the states have concurrent powers.
o a valid federal statute will take precedence over a conflicting state or local law or regulation on the same general subject.
o generally congressional intent to preempt will be found if a federal law regulating an activity is so pervasive, comprehensive, or detailed that the states have no room to regulate in that area.

The taxing and spending power

o Article 1 section 8, says that Congress has the power to lay and collect taes, duties, imposts, and excises. It also requires uniformity in taxation among the states. o article I section 8 also gives Congress its spending power—the power to pay the debts and provide for the common defense and general welfare of the U.S.

The importance of the commerce clause in regards to cases involving government taxation

o the commerce clauses almost always provides a basis for sustaining a federal tax

Limits on congressional spending

Congress can spend revenue not only to carry out its expressed powers but also to promote any objective it deems worthwhile, so long as it does not violate the Bill of Rights.

Bill of Rights

o The first ten amendments make the Bill of Rights which embodies a series of protections for the individual against various types of interference by the federal government

Corporations in relation to the bill of rights

o corporations exists as separate legal entities, or legal persons, and enjoy many of the same rights and privileges as natural persons do

Limits on Both Federal and State Governmental Actions

o the Bill of Rights originally limited only the powers of the national government. But over time the Supreme Court incorporated these rights into protections against state actions afforded by the 14th amendment.
o The 14th amendment says, "no state shall deprive any person of life, liberty, or property, without due process of law."
o it is ultimately the US Supreme Court that is the final interpreter of the Constitution , that defines our rights and determines their boundaries

Freedom of Speech (symbolic speech)

gestures, movements, articles of clothing, and other forms of expressive conduct—is given as substantial protection by the courts

Reasonable Restrictions on free speech

o expression is subject to reasonable restrictions
o reasonableness is analyzed on a case by case basis. If a restriction is considered content neutral, then the court may allow it. To be content neutral the restriction must be aimed at suppressing the expressive conduct or its message.

corporate political speech

o political speech by corporations falls within the protection of the 1st amendment

o commercial speech

o the courts give substantial protection to commercial speech, which consists of communications like advertising and marketing made by business firms that involve their commercial interests.
o a state may restrict certain kinds of advertising
o states have a legitimate interest in the beautification of roadsides, and this interest allows states to place restraints on billboard advertising
o a restriction on commercial speech will be considered valid as long as it meets three criteria:
1. it must seek to implement a substantial government interest
2. it must directly advance that interest
3. it must go no further than necessary to accomplish its objective

unprotected speech

certain types of speech is not protected under the 1st amendment. Speech that violates criminal laws, like pornography, threatening speech, defamatory speech, is not protected under this amendment. To constitute defamation and have no First Amendment protection, the speech in question must be an assertion of fact and not merely an opinion. obscene speech

Obscene Speech Test

o the Supreme Court created a test for legal obscenity
o material is obscene if
 the average person finds that it violates contemporary community standards
 the work taken as a whole appeals to a prurient interest in sex
 the work shows patently offensive sexual conduct
 the work lacks serious redeeming literary, artistic, political, or scientific merit
o obscenity remains a constitutionally unsettled issue
o online obscenity
o in 2000 Congress enacted the Children's Internet Protection Act, which requires public schools and libraries to install filtering software to keep children from accessing adult content

Freedom of Religion

o The 1st amendment states that the government may neither establish any religion nor prohibit the free exercise of religious practices the first part of this constitutional provision is referred to as the establishment clause and has to do with the separation of church and state o the second part of the provision is known as the free exercise clause

The establishment clause

The establishment clause prohibits the government from establishing a state-sponsored religion, as well as from passing laws that promote religion or that show a preference for one religion over another

The Free Exercise Clause

 The free exercise clause guarantees that no person can be compelled to do something that is contrary to his or her religious beliefs. If a law or policy is contrary to a person's religious beliefs, exemptions are often made to accommodate those beliefs.
 when religious practices work against public policy and the public welfare, the government can act.
 For business firms, an important issue involves the accommodation that business must make for the religious beliefs of their employees

The 4th ammendmant searches and seizurezs

o The 4th amendment protects people's private property, in order to search or seize private property law enforcement officers must obtain a search warrant

search warrant

an order form a judge or other public official authorizing the search or seizure

Search Warrants and Probable Cause

o to obtain a search warrant the law enforcements must have probable cause. Probable cause is trustworthy evidence that would convince a reasonable person that the search or seizure is more likely justified than not.
o the 4th amendment provides general warrants meaning a description of whatever is to be searched or seized, and the search cannot extend beyond what is described in the warrant

searches and Seizures in the Business Context

o protection against unreasonable searches and seizures is very impt. to businesses
o generally government inspectors do not have the right to enter business premises without a warrant
o lawyers and accountants frequently possess the business records of their clients, and inspecting these documents while they are out of the hands of their true owners requires a warrant
o a warrant is NOT required for the seizure of spoiled or contaiminated food, and for searches of business in highly regulated industries such as liquor, guns, and strip mining

o Border Searches of Computers

o warrantless border searches have been upheld to prevent persons from physically bringing drugs, contraband, and illegal aliens into the US
o border guards may also search through the temporary files stored on laptop computers and to use the history of web pages viewed as criminal evidence

Self-Incrimination

o The 5th amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself." Thus an accused person cannot be forced to give testimony that might subject him or her to any criminal prosecution.
o this guarantee only extends to natural persons, neither corporations nor partnerships receive 5th amendment protection
o a partnerships is required to product business documents it must do so even if the info. is incriminating. BUT sole proprietors and sole practitioners cannot be compelled to produce their business records.

Due Process and Equal Protection

o constitutional guarantees of great significance to Americas are mandated by the due process clauses of the 5th and 14th amendments and the equal protection clause of the 14th amendment

Due Process

o both the 5th and 14th amendments provide that no person shall be deprived of life, liberty, or property without due process of law.
o the due process clause has two aspects, procedural and substantive:

o Procedural Due Process

 procedural due process requires that any governmental decision to take life, liberty, or property must be made equitably; that is, the government must give a person proper notice and an opportunity to be heard.
 fair procedures must be used in determining whether a person will be subjected to punishment
 fair procedures require that a person must have at least an opportunity to object to a proposed action before an impartial, neutral decision maker

o Substantive Due Process

 substantive due process protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them.
 it limits what the government may do in its legislative and executive capacities. Legislation must be fair and reasonable in content and must further a legitimate governmental objective.
 only when state conduct is arbitrary or shocking, will is violate substantive due process
 if a law or governmental action limits a fundamental right, the state must have a legitimate and compelling interest to justify its action
 in situations not involving fundamental rights, a law or actions does not violate substantive due process if it rationally relates to any legitimate government purpose.

Equal Protection

o The US Supreme Court has interpreted the due process clause of the 5th amendment to make the equal protection clause applicable to the federal government as well. This means that the government cannot enact laws that treat similarly situated individuals differently.
o when a law or action limits the liberty of all persons to do something, it may violate substantive due process; when a law or action limits the liberty of some persons but not others, it may violate the equal protection clause

Three Tests for Equal Protection

Strict Scrutiny (Race), Intermediate Scruitiny (Gender and Legitamacy) and rational basis test (economic or social welfare)

1. Strict Scrutiny

1. Strict Scrutiny- the most difficult standard to meet is strit scrutiny. Under strict scrutiny the classification must be necessary to promote a compelling state interest.
a. strict scrutiny is applied when a law or action prohibits some persons from exercising a fundamental right or classifies individuals based on a suspect trait (race)

2. Intermediate Scrutiny

applied in cases involving discrimination based on gender or legitimacy
a. laws using these classifications must be substantially related to important government objectives (like pregnancies men can't get pregnant so law does not apply)

o The "Rational Basis" Test

o in matters f economic or social welfare, a classification will be considered valid if there is any conceivable rational basis on which the classification might relate to a legitimate government interest

Privacy Rights

o The US Constitution does not explicitly mention a right to privacy, instead in the Griswold v. Connecticut case it was decided that a constitutional right to privacy was implied by the 1st, 3rd, 4th, 5th, and 9th amendments

Federal Statutes Affecting Privacy Rights

o Freedom of Information Act, which allows any person to request copies of any information on her or him contained in federal government files.
o Privacy Act, which also gives persons the right to access such information
o Medical Information
o Health Insurance Portability and Accountability Act- defies and limits the circumstances in which an individual's protected health information may be used or disclosed

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