Chapter 7-Constitutional Law & Business

The Constitution n The Constitution establishes a national government, defines the federal-state relationship, identifies and protects personal liberty, and enables the government to perpetuate itself. n It establishes the checks & balances between the three branches of government.

The Parts of the Constitution Article I: Creates Congress and gives it powers. Specifically Section 8, Clause 3: Gives Congress power to regulate commerce (the Commerce Clause) Article II: Creates the executive branch and gives it powers, which is controlled by the president. Article III: Creates our federal court systems and gives it limited powers over certain issues (other issues must go to the individual state courts) Articles IV and VI: Establishes the principal of federalism and divides up powers between the federal and state governments. (The very important Supremacy Clause is located in Article VI, Clause 2 which provides that federal law prevails over state law if there is a direct conflict) Article V: Provides for amendments to the Constitution First 10 Amendments: Are known as the “Bill of Rights” protecting individual freedoms.

The 1st Amendment n The 1st Amendment prohibits the establishment of state religion &guarantees its free exercise. However, the separation between church/ state has been difficult to define precisely. n The issue of the separation of the church & state is frequently raised in context of public schools, such as in the debate about the role of prayer in public schools.

Freedom of Speech n Freedom of speech is indispensable to the American way of life. No other right is protected more by the Supreme Court. However, while the government is generally not able to regulate content of speech, it is able to regulate context if the limits are justified by a compelling state interest. For example, a state law prohibiting the Neo-Nazi Youths from distributing anti-Jewish literature would be invalid. would be invalid. In my opinion... You’re wrong! Vote him out now!! Sit on it! I think... I disagree Why?

Commercial Speech n Commercial speech (speech with a profit-making motivation) is entitled to First Amendment protection, although less protection than other types of speech such as religious or political communication. Companies have a right to “commercial free speech” but the government can regulate this speech in accordance with the legal test called the “Central Hudson Test”

Central Hudson Test (to be applied when the government tries to restrict commercial speech rights) Courts will apply the 4 part “Central Hudson” Test to see if a government’s restriction on commercial speech is constitutional. 1.The subject commercial speech must promote a lawful activity & not be misleading. 2. The asserted governmental interest must be substantial 3.The government regulation must directly advance The government’s interest 4.The government’s regulation must not be more extensive then necessary?

Fourth Amendment n The Fourth Amendment prohibits the government form committing “unreasonable” searches & seizures. Our courts are constantly weighing peoples’ rights to be free from unreasonable searches and the government’s need to conduct searches to help in coping with American’s crime problem. n The exclusionary rule keeps out evidence during trial which is obtained in violation of a person’s Fourth Amendment rights. n Warrants issued by a judge are generally needed before police can search for narcotics, however if certain circumstances exist a warrant is not needed (incident to arrest, impractical to do so.) 4 th amendment Only applies As to govern- Mental Searches & Seizures—not Private people Or companies General Warrants

Takings n The “Takings” clause of the Fifth Amendment prohibits the government’s taking of property for a public purpose without just compensation to the owner.

n 1. Government must do the “takings” n 2. For a “public purpose” (This element has been modified to allow for private property being seized for use by developers— U.S. Sct. Court Case of Kelo v. City of New London on 6/23/05, dealing with Connecticut Water Front Home Owners Houses taken by the city for commercial development. ) n 3.“Just compensation” must be paid to owner. Once Upon A Time…..

2.2 Acres 8 million Twin Tower 600 Apt-Complex Downtown Miami--1998

Hmmmmmm…

Owner Expert Government Agent 2000 year old Tequesta Indian Rock Formation 38’ in diameter

State of Florida seizes land and makes several offers ranging from million (to make a park and preserve the site) Developer demands no less than 50 million!

Was it for a “Public Purpose”? Was this a Government Taking? What is “Just Compensation”? 26.7 Million

JUDGE JUDY READY TO RULE-- Kelo v. City of New London Case: Kelo v. City of New London ---- New London wanted to Take the waterfront homes from residents and give the property To a developer to make it into a commercial project which would Generate larger tax dollars, owners objected as such use was not For a “public purpose”. Pack Up and Move— Government can take Your property and give It to others who can Put it to better use!

Government Takings under the 5th Amendment can come in all shapes and forms--not necessarily a “physical taking of land” Regulations limiting size/height of buildings Regulations requiring bars to close early at night Regulations limiting billboards on the side of roadways.

Due Process n The Due Process clauses are found in the 5th Amendment (applicable to the federal government) & 14th Amendment (applicable to the state government) a and prevents the governments from depriving citizens “life liberty or property w/o due process.” It addresses “fundamental due process”—fairness in both procedural and substantive rights

Equal Protection n The equal protection clause forbids the governments (federal & state) from discriminating in favor of one group or class of persons over another. Free at last, ……...

“A Living Document” M Do you think that our Constitution should be interpreted in such a way to accommodate our society as it is today? M Or, are you a strict constructionist in which you believe the framers of the Constitution had never contemplated the application of these clauses to our present circumstances.

Choice Of Law Clause