Chapter 5 Constitutional Law

Quote of the Day John Milton, English poet, 1644 Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. John Milton, English poet, 1644

Government Power One in a million Constitution of the United States is the greatest legal document Drafted in 1787, still successful today Short and easy to read Permitted interpretation Versatility

Overview First nation in modern history founded on the idea that: People could govern themselves, democratically States were governing themselves under the Articles of Confederation - Gave the central government no real power Framers set out to draft a new document and to create a government The Constitution is a series of compromises about power

Overview Separation of powers Individual rights One method of limiting power: Create a national government divided into three branches Executive, legislative, and judicial Each independent and equal Individual rights Bill of rights - First 10 amendments were added to the Constitution

Power Granted Congressional power Members create statutes that influence jobs Article I, section 8 - Lists the 18 types of statutes that Congress is allowed to pass National government may create currency Commerce clause: Part of Article I, Section 8, that gives Congress the power to regulate commerce with foreign nations and among states

Power Granted Interstate commerce Substantial effect rule Power to bring coordination and fairness to trade among the states Stop the states from imposing the taxes and regulations that were wrecking the nation’s domestic trade Substantial effect rule Congress may regulate any activity that has a substantial economic effect on interstate commerce

Power Granted Current application: The affordable healthcare act May result in as many as 30 million uninsured Americans gaining health care coverage State legislative power Dormant aspect holds that a state statute which discriminates against interstate commerce is almost always unconstitutional

Power Granted Supremacy clause: Constitution, and federal statutes and treaties, shall be the supreme law of the land Conflict between federal and state statutes - Federal law preempts the field No conflict - Congress demonstrates that it intends to exercise exclusive control over an issue, federal law preempts

Power Granted Executive power Article II of the Constitution defines executive power President’s basic function is to enforce the nation’s laws

Power Granted Three of the president’s key powers Appointment - Administrative agencies play a role in business regulation President nominates the heads Legislation - The president and his advisors can propose bills to Congress and the president can veto bills from Congress Foreign policy – President: Conducts the nation’s foreign affairs Coordinates international efforts Negotiates treaties Heads the military May not declare war

Power Granted Judicial power Article III of the Constitution Creates the Supreme Court Permits Congress to establish lower courts within the federal court system Federal courts have two key functions Adjudicating cases - Federal court system hears criminal and civil cases Judicial review - Power of federal courts to declare a statute or governmental action unconstitutional and void

Power Granted Judicial review Judicial activism: A court’s willingness to decide issues on constitutional grounds Judicial restraint: A court’s attitude that it should leave law-making to legislators

Protected Rights Constitutional rights protect only against governmental acts Incorporation: Rights explicitly guaranteed at one level are incorporated into rights that apply at other levels

First Amendment: Free Speech Political speech Protected unless it is intended and likely to create imminent lawless action Government may regulate the time, place, and manner of protected speech Morality and obscenity Obscenity has never received constitutional protection

First Amendment: Free Speech Commercial speech: Communication that has the dominant theme of proposing a business transaction Government may regulate other commercial speech: Provided that the rules are reasonable, and directed to a legitimate goal

Fifth Amendment: Due process and the Takings Clause Procedural due process: Government must go through procedures to ensure that the result is fair Steps in analyzing a procedural due process Is the government attempting to take liberty or property? How much process is due? Neutral factfinder Attachment of property Government employment Academic suspension

Fifth Amendment: Due process and the Takings Clause The Takings Clause: When the government takes property for public use, it has to pay a fair price Eminent domain: The power of the government to take private property for public use Substantive due process: Some rights are so fundamental that the government may not take them from us at all

Fourteenth Amendment: Equal Protection Clause Equal protection clause: Requires the government to treat people equally

Fourteenth Amendment: Equal Protection Clause Classifications Minimal scrutiny: Economic and social regulation Government actions that classify people or corporations on these bases are almost always upheld Intermediate scrutiny: Gender Government classifications are sometimes upheld Strict scrutiny: Race, ethnicity, and fundamental rights Classifications based on any of these are almost never upheld

“The legal battle over power never stops “The legal battle over power never stops. As social mores change in step with broad cultural developments, as the membership of the Supreme Court changes, the balance of power between federal government, state government, and citizens will continue to evolve.”