Chapter 4 Constitutional Law for Business and E-Commerce PowerPoint Slides to accompany THE LEGAL ENVIRONMENT OF BUSINESS AND ONLINE COMMERCE 5E, by Henry R. Cheeseman Chapter 4 Constitutional Law for Business and E-Commerce Prentice Hall © 2007

Major Functions of the Constitution Creates the three branches of government Executive Legislative Judicial Protects individual rights by limiting the government’s ability to restrict those rights Prentice Hall © 2007

Federalism and Delegated Powers Federalism—the U.S. form of government; the federal government and the 50 state governments share powers Enumerated powers—certain powers delegated to the federal government by the states Prentice Hall © 2007

Separation of Powers Article I Article II Article III Establishes the legislative branch of government Article II Establishes the executive branch of government Article III Establishes the judicial branch of government Prentice Hall © 2007

Checks and Balances Certain checks and balances are built into the Constitution to ensure that no one branch of the federal government becomes too powerful. Prentice Hall © 2007

Supremacy Clause Establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land Preemption doctrine Prentice Hall © 2007

Commerce Clause Grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes” Gives the federal government authority to regulate interstate commerce Prentice Hall © 2007

What Is Interstate Commerce? Commerce that moves between states or affects commerce between states Intrastate commerce Local commerce that does not move between states The federal government may regulate intrastate commerce if it affects interstate commerce. Prentice Hall © 2007

State “Police Power” States can enact laws to protect or promote public health, safety, morals, and general welfare. State and local laws cannot unduly burden interstate commerce. Prentice Hall © 2007

Bill of Rights The first 10 amendments to the U.S. Constitution Most protections also apply to “artificial” persons such as corporations. Incorporation Doctrine A doctrine that states that most fundamental guarantees contained in the Bill of Rights are applicable to state and local government action as well as to action of the federal government Prentice Hall © 2007

1st Amendment Freedom of Speech Fully protected speech Speech the government cannot prohibit or regulate Includes political speech Prentice Hall © 2007

1st Amendment Freedom of Speech Limited protected speech Commercial speech Offensive speech Can be subject to time, place, and manner restrictions Prentice Hall © 2007

1st Amendment Freedom of Speech Unprotected speech Fighting words Defamatory language Child pornography Obscene speech Prentice Hall © 2007

1st Amendment Freedom of Religion Establishment Clause Prohibits government from establishing a government-sponsored religion Free Exercise Clause Prohibits government from enacting laws that prohibit or inhibit people from participating in or practicing their chosen religion Prentice Hall © 2007

14th Amendment Equal Protection The government cannot “deny to any person within its jurisdiction the equal protection of the laws.” If a law treats “similarly situated” persons differently, a court may review its constitutionality, using one of three tests. Prentice Hall © 2007

14th Amendment Equal Protection Strict scrutiny test Applied by courts to classifications based on race Intermediate scrutiny test Applied to by courts to classifications based on protected classes other than race (e.g., sex or age) Rational basis test Applied to by courts to classifications not involving a suspect or protected class Prentice Hall © 2007

5th and 14th Amendment Due Process Clause Substantive due process Requires governmental laws to be clear and not overly broad; the test is whether a reasonable person can understand the law Procedural due process Requires government to give people proper notice and hearing before depriving them of life, liberty, or property Prentice Hall © 2007

Privileges and Immunities Clause Prohibits states from enacting laws that unduly discriminate in favor of their residents Only invidious discrimination is prohibited. Only applies to citizens, not corporations Prentice Hall © 2007