Chapter 2: Constitutional Law

Neither Congress nor any state can enact a law that is in conflict with the Constitution.

I.

The Constitutional Powers of the Government

U.S. constitution drafted 1789 after confederal form of government did not work (states
had the authority to govern themselves and the national government could exercise only
limited powers.
Problems of an economic crisis arose and state laws interfered with free flow of
commerce, a national convention was called and the delegates drafted the U.S.
Constitution 1789

A.

Federal form of government: def.: a system of government in which the states form a
union and the sovereign power is divided between the central government and the
member states (share sovereign power)
The Constitution sets forth specific powers for the government and provides that the
government has implied power to undertake actions necessary to carry out its expressly
designated powers.
o All other powers are reserved to the states
Task of the courts to determine where the boundary line between state and national
powers should lie changes over time

B.

A Federal Form of Government

The Separation of Powers

Constitution divided the national governments powers into three branches:

o Legislative branch makes the laws
o Executive branch enforces the laws
o Judicial branch interprets the laws
- No branch may take the authority of another branch
Checks and balances: Def.: the principle under which the powers of the national
government are divided among three separate branches the executive, legislative, and
judicial branches each of which exercises a check on the actions of the others
o ** Allows each branch to limit the actions of the other two branches, thus
preventing one branch from exercising too much power
1. The legislative branch (Congress) can enact a law, but the executive
branch (the President) has the constitutional authority to veto that law
2. The executive branch is responsible for foreign affairs, but treaties with
foreign governments require the advice and consent of the Senate

3. Congress determines the jurisdiction of the federal courts, and the

president appoints federal judges, with the advice and consent of the
Senate, but the judicial branch has the power to hold actions of the other
two branches unconstitutional

C.

The Commerce Clause

To prevent states from establishing law and regulations that would interfere with trade
and commerce among the states, the Constitution expressly delegated to the national
government the power to regulate interstate commerce
Commerce Clause: def.: Article I, Section 8, of the U.S. Constitution that gives Congress
the power to regulate interstate commerce
o Biggest impact on business than any other provision
Commerce clause used to be interpreted as being limited to interstate commerce
(commerce among the states) and not to intrastate commerce (commerce within a state)
o Gibbons v. Ogden : U.S. Supreme Court held that commerce within a state could
also be regulated by the national government as long as the commerce
substantially affected commerce involving more than one state
1.
The Commerce Clause and the Expansion of National
Powers

Gibbons v. Ogden: once it was expanded as mentioned above it became a vehicle for the
additional expansion of the national governments regulatory powers.
o Even activities that seemed pretty local came under reach of the national
government if the they were deemed to substantially affect interstate commerce
2.

Power over commerce authorizes the national government to regulate almost every
commercial enterprise in the U.S.
o Allows national government to legislate in areas in which Congress has not
explicitly been granted power
o Supreme court has on occasion curbed the national governments regulatory
authority under the commerce clause
Supreme Court held that Congress has the authority to prohibit the intrastate possession
and noncommercial cultivation of marijuana as part of a larger regulatory scheme
3.

The Commerce Clause Today

The Regulatory Powers of the States

State governments have the authority to regulate affairs within their borders
o 10th Amendment reserves the states have all powers to the states not delegated to
the national government

Police Powers: def.: powers possessed by the states as part of their inherent sovereignty.
These powers may be exercised to protect or promote the public order, health, safety,
morals, and general welfare.
o Local governments, including cities, also exercise police powers
State may indirectly affect interstate commerce through the reasonable exercise of its
police powers
4.

Supreme Court has interpreted the commerce clause to mean that the national
government has the exclusive authority to regulate commerce that substantially affects
trade and commerce among the states
o This is the positive aspect of clause, the negative aspect is that the states do
not have the right to regulate interstate commerce
- Referred to as the dormant (implied) commerce clause
The dormant commerce clause comes into play when state regulations affect interstate
commerce. Courts normally weigh the states interest in regulating a certain matter
against the burden that the states regulation places on interstate commerce
o Courts balance the interest involved making outcome unpredictable

D.

The Dormant Commerce Clause

The Supremacy Clause

Supremacy Clause: def.: requirement in Article VI of the Constitution provides that the
Constitution, laws, and treaties of the U.S. are the supreme Law of the Land.
o Is important in the ordering of the state and federal relationships
When there is a direct conflict between a federal law and a state law, the state law is
rendered invalid.
o ** because some laws are concurrent (shared among the federal government and
the states) it is necessary to determine which law governs in a particular
circumstance
Preemption: def.: a doctrine under which certain federal laws preempt, or take precedent
over, conflicting state or local laws
o **when Congress chooses to act exclusively in a concurrent area
- A valid federal statute or regulation will take precedent over a conflicting
state or local law or regulation on the same general subject
o Not clear whether Congress in passing a law intended to preempt an entire area
against state regulation
- Courts determine if Congress tried to exercise exclusive power over an
area
o Congressional intent to preempt will be found when the federal law is so complete
that state have little to no room to regulate that area

II.

Business and the Bill of Rights

Bill of Rights: 10 first amendments to the U.S. Constitution - 1791

o Some protections apply to business entities as well. For example corporations
exist as separate legal entities, or legal persons, and enjoy some of the privileges
of natural persons
1. The First Amendment: guarantees the freedoms of religion, speech, and the press and
the rights to assemble peaceably and to petition the government
2. The Second Amendment: right to keep and bear arms
3. Third Amendment: prohibits, in peacetime, the lodging of soldiers in any house
without the owners consent
4. Fourth Amendment: prohibits unreasonable searches and seizures of persons or
property
5. Fifth Amendment: the rights to indictment (formal accusation) by a grand jury, to due
process of law, and to fair payment when private property is taken for public use.
Also prohibits compulsory self-incrimination and double jeopardy (trial for the same
crime twice)
6. Sixth Amendment: the accused in a criminal case the right to a speedy trial by an
impartial jury and with counsel. The accused has the right to cross examine witnesses
against him or her and to solicit testimony from witnesses in his or her favor
7. Seventh Amendment: the right to a trial by jury in a civil (noncriminal) case involving
at least $20 dollars
8. Eighth Amendment: prohibits excessive bail and fines, as well as cruel and unusual
punishment
9. Ninth Amendment: establishes that the people have rights in addition to those
specified in the Constitution
10. Tenth Amendment: establishes that those powers neither delegated to the federal
government nor denied to the states are reserved for the states

A.

Limits on Federal and State Governmental Actions

bill of rights were only to limit the actions of the national government but then the
Supreme Court incorporated most of the protections against state action in the Fourteenth
Amendment
o no state shall deprive any person, of life, liberty, or property, without due
process of law
Supreme Court is the one that interprets the laws (bill of rights) and determines their
boundaries

B.

First Amendment Freedom of Speech

Symbolic speech: def.: nonverbal expressions of beliefs. Symbolic speech, which

includes gestures, movements, and articles of clothing, is given substantial protection by
the courts
o The test is whether a reasonable person would interpret the conduct as conveying
some sort of message
- Then it might be a protected form of symbolic speech
1.

Expression oral, written, or symbolized by conduct is subject to restrictions

o Balance must be struck between a governments obligation to protect its citizens
and those citizens exercise of their rights
a)
Content Neutral Laws
Laws that regulate the time, manner, and place but not the content, of speech receive less
scrutiny.
Restriction must be aimed at combating some secondary societal problem, such as crime,
and not be aimed at suppressing the expressive conduct or its message.
b)
Laws that restrict the Content of Speech
If a law regulates the content of the expression, it must serve a compelling state interest
and must be narrowly written to achieve that interest.
Compelling government interest: def.: a test of constitutionality that requires the
government to have convincing reasons for passing any law that restricts fundamental
rights, such as free speech, or distinguishes between people based on a suspect trait.
o For the statute to be valid there must a compelling government interest that can be
furthered only by the law in question
2.

Corporate Political Speech

Political speech is also protected by freedom of speech.

o Political contributions or expenditures
o Using bill inserts to express its view on controversial issues
3.

Reasonable Restrictions

Commercial Speech

Commercial speech (also protected) consists of communications primarily advertising

and marketing made by business firms that involve only their commercial interests
o **Not too extensive protection
A state may restrict certain kinds of advertising in the interest of protecting consumers
from being misled
States also have a legitimate interest in beatification of roadsides, and this interest allows
states to place certain restrictions on billboard advertising

** Restriction on commercial speech will be valid as long as it:

1. Seeks to implement a substantial government interest
2. Directly advances that interest, and
3. Goes no further than necessary to accomplish its objective
a. Substantial government interest is a significant or important connection or
concern of the government with respect to a particular matter
i. Limits the power of the government to regulate all commercial speech
4.

Unprotected Speech

Speech that harms the good reputation of another, or defamatory speech will not be
protected
Speech that violates criminal laws is not protected
fighting words, or words that are likely to incite others to respond violently
a)
Obscene Speech
Not protected but it is hard to define
Test for obscene material: Miller Test
1. The average person finds that it violates contemporary community standards
2. The work taken as a whole appeals to a prurient (arousing or obsessive) interest in
sex
3. The work shows patently offensive sexual conduct
4. The works lacks serious redeeming literary, artistic, political, or scientific merit
a. Numerous state and federal statues make it a crime to disseminate and
possess obscene materials including child pornography
b)
Online Obscenity
Protect children from online pornography
Congress enacted Childrens Internet Protection Act (CIPA) which requires public
schools and libraries to block adult content from access by children by installing filtering
software
Filtering Software: def.: a computer program that is designed to block access to certain
web sites, based on their content
o Website responds to a sites Internet address or its meta tags
- Meta tags: def.: (key words) a key word in a document that can serve as an
index reference to the document. Online search engines return results
based, in part, on the tags in Web documents
court concluded that since libraries can disable the filters for any patrons who ask, the
system is reasonably flexible and does not burden free speech to an unconstitutional
extent
crime to distribute virtual pornography computer generated images (Protect Act)
o prohibits offers to provide, and requests to obtain, child pornography both of
which are unprotected speech

C.

The First Amendment Freedom of Religion

Government may neither establish any religion nor prohibit the free exercise of religious
practices
o First part is the establishment cause and the second is the free exercise clause
1.

Establishment Clause: def.: the provision in the First Amendment that prohibits the
government from establishing any state-sponsored religion or enacting any law that
promotes religion or favors one religion over another
o Involves a separation of church and state but not completely
Cases often involve :
o Legality of allowing school prayers
o Using state issued vouchers to pay tuition at religious schools
o Teaching creation theory versus evolution
For a law to be constitutional it must not have a primary effect of promoting or inhibiting
religion but it can have some impact without burdening on religion
o Religious displays on public property have often been challenged
2.

III.

The Free Exercise Clause

Free exercise clause: def.: the provision in the First Amendment that prohibits the
government from interfering with peoples religious practices or forms of worship
o Can have an religious belief or none
When religious practices work against public policy and the public welfare the
government can act
The free exercise clause protects the use of a controlled substance in the practice of a
sincerely held religious belief
The Free Exercise Clause applies only to the actions of the state and federal governments,
not to private employers. Private employers may nonetheless be required to accommodate
their employees religious beliefs

Due Process and Equal Protection

A.

The Establishment Clause

Due Process

Due Process Clause: def.: Fifth and the Fourteenth Amendments provide that no person
shall be deprived of life, liberty, or property, without due process of law.
o Applies to legal persons, such as corporations as well as to individuals
Both amendments have two aspects procedural and substantive

1.

It requires that any government decision to take life, liberty, or property must be made
fairly.
The government must give a person proper notice and an opportunity to be heard, and
that it must use fair procedures in determining whether a person will be subjected to
punishment or have some burden imposed on him or her.
o Person have at least an opportunity to object to a proposed action before a fair,
neutral decision maker (who need not be a judge)
2.

Substantive Due Process

Protects an individuals life, liberty, or property against certain government actions

regardless of the fairness of the procedures used to implement them.
Limits what the government may do in its legislative and executive capacities
o Legislation must be fair and reasonable in content and must further a legitimate
governmental objective
o Only when state conduct is arbitrary or shocks the conscience will it rise to the
level of violating substantive due process
If law limits a fundamental right, the courts will hold that it violates substantive due
process unless it promotes a compelling or overriding state interest
o Fundamental rights include interstate travel, privacy, voting, marriage and family,
and all the First Amendment Rights.
Not involving fundamental rights a law doesnt violate substantive due process if it
rationally relates to any legitimate governmental end
o Almost impossible for law to fail this test

B.

Procedural Due Process

Equal Protection

Under Fourteenth Amendment, a state may not deny to any person within its jurisdiction
the equal protection laws.
Equal Protection Clause: def.: requires state governments to treat similarly situated
individuals in a similar manner
Both substantive due process and equal protection require review of the substance of the
law or other governmental action rather than review of the procedures used
**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
Test to determine violation of equal protection clause: strict, intermediate, and rational
basis.

1.

If a law or action prohibits or inhibits some persons from exercising a fundamental right,
the law or action will be subject to strict scrutiny by the courts
Classification based on suspect trait such as race, national origin, or citizenship status
will also be subject to strict scrutiny
o Classification must be necessary to promote a compelling government interest.
- Include remedying past unconstitutional or illegal discrimination, but do
not include correcting the general effects of societys discrimination
Generally, few laws or actions survive strict scrutiny analysis by the courts
2.

IV.

Intermediate Scrutiny

Involved in cases involving discrimination based on gender or legitimacy

o Laws using these classifications must be substantially related to important
government objectives
- Preventing illegitimate teenage pregnancies
A law that punishes men but not women for statutory rape will be upheld even though it
treats men and women unequally
Objective in establishing time limits (called statutes of limitations) for how long after an
event a particular type of action can be brought
o Limitation period must be substantially related to the important objective of
preventing fraudulent or outdated claims
3.

Strict Scrutiny

The Rational Basis Test

In matters of economic and 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
o Almost impossible to fail

Privacy Rights
U.S. Constitution does not explicitly mention a right to privacy.
1960s Supreme Court endorsed the concept Griswold v. Connecticut , can use
contraceptives
Privacy rights today are protected under various federal statutes as well as U.S.
Constitution
o State constitutions and statues as well, often significantly
o Also protected under tort law, consumer law, and employment law

A.

Federal Statutes Protecting Privacy Rights

Most of these statutes deal with personal information collected by governments or private
businesses
1.

Americans were alarmed at the amount of personal information in government files that
they pressured Congress to pass laws permitting them to access their files
Freedom of Information Act allows any person to request copies of any information on
her or him contained in federal government files
o Privacy Act also allows this
2.

Technological Advances and Privacy Rights

1.

Medical Information

Responding to the growing need to protect individuals health records - particularly

computerized records Congress passed the Health Insurance Portability and
Accountability Act (HIPPA)
o Defines and limits the circumstances in which an individuals protected health
information may be used or disclosed
o Inform patients of their privacy rights and of how their personal medical
information may be used
o Persons medical records may not be used for purposes unrelated to health care
such as marketing or disclosed to others without the individuals permission
- This applies to vendors (those who maintain medical records for health
care providers) and records shared by multiple medical providers

B.

Federal Privacy Legislation

Court Records

Online dissemination of information concerning civil and criminal cases raises new
privacy issues
Technological improvements in information sharing allow civil and criminal justice
records to be shared, synthesized, sold, and analyzed electronically.
o Now can instantly access records from anywhere
Some states sell records to data firm wont let go of this revenue
Court record show names and addresses of witnesses and victims and other important
information - dangerous and can cause identity theft

o Jobs and landlords reject you because you were involved in a case

C.

The USA Patriot Act

Has given government officials increased authority to monitor internet activities and to
gain access to personal financial information and student information