BIZ LAW Chapter 5
Terms in this set (20)
History of Constitutional Law
-1776 Declaration of Independence (We declared our independence).
-1783 America gained it's freedom from England.
-States governed themselves under the Articles of Confederation (gave fed gov no power to raise money or regulate commerce).
-Taxation policies were inconsistent and caused probs between states.
-Articles NOT WORKING.
-1787 States sent 55 delegates to meet to amend the Articles.
-Instead, they created a new doc. They became the Framers of our Constitution.
-Debate over how much power to give fed gov, states, and people.
-Result - a series of compromises about the power.
Compromises in the Constitution
Separation of Powers:
-Federal Gov divided into three branches - Exec, Leg, Judicial.
-Each branch independent and equal.
-Each is a balance to the power of the others.
The national government's power is limited to only the issues listed in Article I, 8.
The original Constitution did not mention right of citizens so the first 10 Amendments (Bill of Rights) spelled those out.
Article 1 establishes Congress with two houses.
-Each state has 2 Senators; number of Reps is relative to state population.
-Term limits for federal congressional offices are not allowed by Constitution.
Article 1 gives Congress powers
-Congress can create and enact legislation.
-Commerce Clause: Congress can regulate commerce with other nations and between states. Each state regulates commerce within itself.
-Substantial Effect Rule: Congress may regulate any activity which has a substantial economic effect on interstate commerce.
United States v Lopez
Congress passed criminal statute called the "Gun-Free School Zones Act" that forbade any individual from possessing a firearm in a school zone. Lopez was convicted. Lopez claimed Congress had no power to pass the law. Congress argued that Commerce Clause gave them this power. Supreme Court ruled that Congress had exceeded its power under the Commerce Clause.
Other Congressional Powers *
-Trade (Commerce Clause)
State Legislative Power
-States may regulate commerce in its own borders
-A state statute that discriminates against interstate commerce in unconstitutional.
Constitution and federal statutes win over state laws.
Wickard v Filburn 1930
Congress made limit on bushels per acre that a farmer could grow. Filburn grew more than federal law allowed. Filburn argued that Congress had no right to regulate him becuase his wheat did not go into interstate commerce. He sold some locally and used the rest on his farm. Congress disagreed and said that Congress MAY REGULATE ANY ACTIVITY THAT HAS A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE. (More he grew/ less he bought on open market).
Article II defines the power and responsibilities of the Prez- in general he is to enforce the nation's laws.
-Appointment: The president nominates federal judges.
-Legislation: The prez and his advisors ca propose bills to Congress and the prez can veto bills from Congress.
-Foreign Policy: The prez coordinates international efforts, negotiates treaties and is Commander in Chief of the military, but may NOT declare war.
Article III creates the Supreme Court and permits Congress to create lower lower federal courts.
Federal courts have two key functions:
-Adjudication: Federal courts hear civil and criminal cases that are within their jurisdiction.
-Judicial Review: Federal Courts can declare a stature or governmental action unconstitutional.
*Opponents claim that the Const. does not grant this power to the courts and takes this power away from citizens.
*Supporters claim that the Constitution gives the judicial system the power to interpret laws and ensures a consistent application of the Const.
Judicial Activism vs Judicial Restraint
Throughout history , the Supreme Court has varied in it's level of judicial activism (eagerness to rule on many issues) vs. judicial restraint (ruling only on issues that are clearly Constitutional questions).
-The amendments to the Const. protect the people from the power of state and federal gov.
-Const. rights generally only protect against governmental acts, not against acts of other people or corps.
-Courts have held that all important constitutional protections apply to all levels of government, a doctrine called "INCORPORATION."
Kennedy v Louisiana 2008
Kennedy raped 8 year old stepdaughter. Jury voted for death sentence as permitted by the Louisiana statute. Kennedy claimed the punishment was our of proportion to the crime and violated the 8th Amendment. State supreme court affirmed. US Supreme court agreed and Reversed ruling.
First Amendment: Freedom of Speech
-Speech includes non-verbal communication including signs, symbols, and acts.
-Political speech about a politician or political process is protected and can be found illegal only if it is intended and likely to promote lawless conduct.
-Legal speech may be limited in time, place and manner.
-Obscenity is NOT protected by the Constitution.
-Commercial speech, designed to sell something, is regulated more strictly and may be outlawed if false or misleading.
Texas v Johnson 1989
Greg Johnson in protest against Reagan admin. Johnson burned American flag. Arrested for violating Texas statute that prohibited desecrating the flag but Texas Court of Criminal Appeals revered on grounds that it violated the First Amendment. Texas appealed to US Supreme Court. They affirmed that the first amendment protects flag burning.
Morality and Obscenity
What is obscene?
Miller v California
Three part test to determine if a creative work is obscene.
1.Whether average person would find that the work, appeals to prurient (extreme sexual) interest.
2.Whether the work depicts, in an offensive way, sexual conduct defined by state law.
3.Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Fifth Amendment: Due Process and the Takings Clause
"No person shall be....deprived of life, liberty , or property without due process of the law; nor shall private property be take for public use, without just compensation"
-Procedural Due Process: Before depriving anyone of liberty, or property, the gov must go through procedures to ensure that the result is fair and make sure that person has a fair chance to oppose the action.
*Must have a neutral fact finder in hearing
*Hearing required for Attachment of Property (bars defendent from selling prop till end of trial).
*Academic Suspension: must allow preparation before hearing.
*Gov Employee when fired must receive hearing (not entitled lawyer).
-The Takings Clause: When the gov takes private property for public use, must pay a fair price.
-Substantive Due Process: Some rights (voting, speech, travel, privacy) are so fundamental that the gov may not take them away at all.
*Economic and Social Regs: The court will presume valid any statute that regulates economic or social conditions.
Kelo v City of New London, Connecticut
The city wanted to develop an area that had 115 private owned private properties on it. 15 refused to sell and filed suit. Owners claimed that the city was taking the land for private use, not public, in violation of Taking Clause. Supreme Court ruled that even if private companies will benefit (builders) as long as in the end it will be used for public use or in this case benefit. (they want to build hotels and stores which will create jobs and increase the city's tax receipts. In other words, economic development is a legitimate public purpose.
The power of the gov to take private property for public use. Taking Clause require that gov. pay fair price.
Fourth Amendment: Equal Protection
Requires gov to treat people equally. Three classifications:
1. Minimal Scrutiny: Economic and Social Relations- Gov actions that classify people or corporations on these bases are almost always upheld. (higher taxes for rich)
2. Intermediate Scrutiny: GENDER Government classifications are sometimes upheld.
3. Strict Scrutiny: RACE, ETHNICITY, and FUNDAMENTAL RIGHTS - almost never upheld.
Common Interest Developments
-Some neighborhoods have restrictive covenants which may supercede constitutional protection.
-The may have restrictive owning of pets, color of paint, size of mailbox, and even having children.
-These restrictions are enforceable because the owners voluntarily accept them.