1. Jody Blanke Professor of Computer Information Systems and Law
Constitutional Law
Jody Blanke
Professor of Computer Information Systems and Law

2. The Constitution Separation of Powers Checks and Balances
Art. 1 – The Legislative Branch
Art. 2 – The Executive Branch
Art. 3 – The Judicial Branch
Checks and Balances

3. The Enumerated Powers Clause
Art. 1 Sec. 8 of the Constitution
Authorizes Congress
to collect taxes
to coin money
to establish a postal system
to raise and support Armies
to provide and maintain a Navy
to regulate interstate commerce
to protect the writings of authors and the discoveries of inventors

4. Preemption
If Congress is authorized to make law, and does so with the intent that it be the only law, that law will preempt any state law

5. Preemption Figure A Figure B Ex. FAA Ex. Patent Act
Ex. Cipollone (1993)
Ex. Silkwood (1984)
Ex. Federal Anti-Spam Act

6. 1st and 14th Amendments 1st Amendment 14th Amendment
“Congress shall make no law …”
14th Amendment
“No State shall make or enforce any law which shall …”
Most protections/restrictions apply to both federal and state governments

7. State Action Public vs. private
The Fourteenth Amendment prohibits states from certain discriminatory behavior
Citadel case (1995)
school can have a males-only admissions policy as long as it receives no public funding
Augusta National Golf Club
Moose Lodge v. Irvis (1972)
Issuance of liquor license is not state action

8. Commerce Clause
The interpretation by the Supreme Court of the scope of the commerce clause has changed dramatically over the years
Early on, the interpretation was fairly broad
Gibbons v. Ogden (1824)
Congress, rather than New York, had the authority to regulate steamboats on the Hudson River

9. Commerce Clause
With the advent of the Industrial Revolution and Big Business, the interpretation narrowed considerably
Hammer v. Dagenhart (1918)
The Court refused to let Congress regulate with “social legislation,” e.g., child labor laws

10. Commerce Clause
New Deal legislation pushed by F.D.R. and passed by the Congress was struck down by the Supreme Court in several 5-4 decisions
Schechter Poultry (1935)
Congress lacked the power to regulate intrastate poultry processing activity
The “Court Packing” Incident
Why not have 13 Supreme Court justices?

11. Commerce Clause
Supreme Court finally permits Congress to regulate intrastate activity if it effects interstate commerce (in 5-4 decisions)
Jones of Laughlin Steel Corp. (1937)
Wickard v. Filburn (1942)
intrastate activity may have a cumulative effect on interstate commerce

12. Commerce Clause
Supreme Court upheld the constitutionality of the Civil Rights Act of 1964 on the basis of interstate activity
Heart of Atlanta Motel v. U.S. (1964)
motel catered to interstate travelers
Katzenbach v. McClung (1964)
restaurant served food that was part of interstate commerce

13. Commerce Clause
Supreme Court finally draws an outer boundary to interstate activity
U.S. v. Lopez (1995)
Gun-Free School Zone Act
U.S. v. Morrison (2000)
Violence Against Women Act

14. Dormant Commerce Clause
State laws cannot unduly burden interstate commerce
Georgia would not be able to require all restaurants in the state to serve only dairy products from Georgia dairy farms
Maine v. Taylor (1986)
But, Maine was permitted to ban the importation of live bait fish

15. Freedom of Speech Political speech Commercial Speech
great deal of protection, but not absolute
ex. dangerous speech
ex. fighting words
ex. defamation
ex. obscenity
Commercial Speech
can be regulated for aesthetics
Cincinnati v. Discovery Network (1993)

16. Freedom of Religion Free Exercise Clause Establishment Clause
great deal of protection, but not absolute
ex. human sacrifice
Establishment Clause
separation of church and state
school prayer
“In God We Trust”
The Pledge of Allegiance
The Ten Commandments

17. Equal Protection
Can a state ever pass a law that treats black people differently than white people?
Rational Basis Test
Strict Scrutiny Test
Intermediate Scrutiny

18. Equal Protection Rational Basis Test
applies if no suspect class or fundamental liberty interest is involved
i.e., a good reason
State v. Ri-Mel (1987)
Minnesota required all for-profit health clubs to post a bond – no such requirement for not-for-profit health clubs

19. Equal Protection Strict Scrutiny Test
applies if a suspect class or fundamental liberty interest is involved, e.g., race or religion
there must be a “compelling state interest”
i.e., a very, very, very good reason
Affirmative action
Grutter v. Bollinger (2003) – U. Mich. Law School
Gratz v. Bollinger (2003) - undergraduate

20. Equal Protection Intermediate Level Scrutiny
applies to protected class, i.e., not quite a suspect class, e.g., gender or age
classification must be “reasonably related” to legitimate government purpose
i.e., a very, very good reason
Craig v. Boren (1976)
Oklahoma law prohibited the sale of 3.2% beer to males under 21 and females under 18
.18% of females and 2% of year olds were arrested for DUI