© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Before the Revolutionary War, States wanted a confederation with weak national government and very limited powers. After the war ended, the States voted to create a new, federal government that shared power with States. 2

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3  Federal Form of Government:  Shares power between national and state governments.  National government has limited, enumerated powers delegated from States.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4  Regulatory Powers of States.  10 th Amendment.  Police Powers: order, safety, morals.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5  Privileges and Immunities Clause.  Art. IV §2 of the U.S. Constitution.  Prevents state from imposing unreasonable burdens on citizens – particularly with regard to basic and essential activities.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6  Full Faith and Credit Clause (Art. IV §1).  Applies only to civil matters.  Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7  National government provides checks and balances among three branches: executive, legislative and judicial.  Legislative (Congress): Creates laws.  Executive (President/Agencies): Enforce laws.  Judicial (Federal Courts): Interprets laws.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Power to regulate interstate commerce defined in Gibbons v. Ogden (1824): activities that “substantially affect interstate commerce.”  Expansion to purely interstate businesses began with Wickard v. Fillburn (1942). 8

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  In 1942, Supreme Court expanded commerce clause to purely interstate businesses (Wickard v. Fillburn).  In 1964, Supreme Court prohibited racial discrimination in interstate commerce (Heart of Atlanta Motel v. U.S.). 9

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Today, the Commerce Clause authorizes the national government to regulate virtually any business enterprise, including the internet- based. Limits: U.S. v. Lopez (1995).  What about medical marijuana and the commerce clause? 10

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Generally, federal government has exclusive authority to regulate commerce that substantially affects trade among the states.  States possess inherent police powers to regulate health, safety, public order, morals and general welfare.  11

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  However, state police powers or regulations that substantially interfere with interstate commerce will be struck down.  CASE 4.1 Family Winemakers of California v. Jenkins (2010). Did the State of Massachusetts discriminate against out-of-state wineries? 12

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13  Article VI of the Constitution provides that the Constitution, laws, and treaties of the United States are the “Supreme Law of the Land.”  In case of direct conflict between state and federal law, state law is invalid. 

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14  A valid federal statute or regulation will take precedence over a conflicting state or local statute.  Preemption occurs when Congress chooses to act exclusively when national and state governments have concurrent powers

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Article I, Section 8: Congress has the “Power to lay and collect Taxes, Duties, Imposts, and Excises” which shall be “uniform” among the states.  Expansion of commerce clause gives taxing power as well. 15

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  First Ten Amendments to the United States Constitution are called the Bill of Rights.  All apply to natural persons and most apply to business entities as well. 16

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Originally the Bill of Rights was a limit on the national government’s powers. Starting in 1925, Bill of Rights was applied to States via the “due process” clause of the 14th Amendment.  These rights are not absolute. 18

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Afforded highest protection by courts.  Symbolic Speech.  Texas v. Johnson (1989), the “flag burning” case. 19

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Reasonable Restrictions.  Balance must be struck between a government’s obligation to protect its citizens versus a citizen’s right to speech.  If restriction is content neutral, restrictions must target some societal problem – not to primarily suppress the message. 20

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Political speech by corporations is protected by the First Amendment.  In Citizens United v. Federal Election Commission (2010) the Supreme Court ruled that corporations can spend freely to support or oppose candidates for President and Congress. 21

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22  Courts give substantial protection to commercial speech (advertising).  Restrictions must: Implement substantial government interest; directly advance that interest; and go no further than necessary. 

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23  CASE 4.2: Bad Frog Brewery, Inc. v. New York State Liquor Authority (2003). Did the State unconstitutionally restrict commercial speech when it prohibited a certain gesture (illustration) on beer labels?

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24  Certain types of speech are not protected by the First Amendment:  Slander.  Obscenity (see Miller v. California).  Fighting Words.  Online Obscenity:  CDA, COPA, Children’s Internet Protection Act, Children’s Internet Protection Act (2000).

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25  First Amendment may not “establish” a religion or prohibit the “free exercise” of religion.  The Establishment Clause:  Prohibits government from establishing a state-sponsored religion, or passing laws that favor one over the other. 

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26  Establishment Clause.  CASE 4.3 In Re Episcopal Church Cases (2009). Can a secular court resolve an internal dispute about church property without becoming impermissibly entangled with religion?

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Free Exercise Clause: First Amendment guarantees the “free exercise” of religion.  Employers must reasonably accommodate beliefs as long as employee has sincerely held beliefs. 27

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28  The Fourth Amendment requires search warrants to have “probable cause.”  General searches through personal belongings are illegal.  Search warrants must be specific.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29  Searches and Seizures of Business: generally business inspectors must have a warrant.  However, a warrantless search is permissible for seizure of spoiled or contaminated food.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Fifth Amendment guarantees no person can be compelled to testify against himself in a criminal proceeding.  Does not apply to corporations or partnerships. 30

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Fifth and Fourteenth Amendments provide “no person shall be deprived of life, liberty or property without due process of law.”  Procedural and Substantive issues.  31

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Procedures depriving an individual of her rights must be fair and equitable.  Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate. 32

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Focuses on the content or substance of legislation.  Laws limiting fundamental rights (speech, privacy, religion) must have a “compelling state interest.”  Laws limiting non-fundamental rights require only a “rational basis.” 33

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Strict Scrutiny Test.  Laws that affect fundamental rights of similarly situated individuals differently are subject to the “strict scrutiny” test.  Any “suspect class” (race, national origin) must serve a “compelling state interest” which includes remedying past discrimination. 34

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Intermediate Scrutiny.  Applied to laws involving gender or legitimacy.  To be constitutional laws must be substantially related to important government objectives.  (EXAMPLE: Illegitimate teenage pregnancy). 35

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  “Rational Basis” Test.  Applied to matters of economic or social welfare.  Laws will be constitutional if there is a rational basis relating to legitimate government interest. 36

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Fundamental right not expressly found in the constitution, but derived from First, Fifth and Fourteenth Amendments.  Laws and policies affecting privacy are subject to the compelling interest test. 37

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Federal Statutes Affecting Privacy Rights.  “Pretexting” for financial information is illegal under Gramm- Leach-Bliley.  Privacy Act of  HIPAA of  USA PATRIOT Act of