2. The Constitution of the United States is a remarkable document in many ways. Drafted in 1787, yet is still relevant today Short, and easy to read; its brevity gives it endurance Flexible enough to deal with the issues of a changing world Versatile enough to resolve a wide variety of conflicts Leaves room for interpretation and “fleshing out”

3. Overview and History of Constitutional Law ◙ When America gained its freedom from England in 1783, the states governed themselves under the Articles of Confederation. ◙ The Articles of Confederation gave the federal government no power to raise money or regulate commerce. ◙ Taxation policies were inconsistent and caused dissent among states. ◙ The Articles of Confederation were not working!

4. Overview and History (cont’d) ◙ The states sent 55 delegates to meet to amend the Articles of Confederation. ◙ Instead, these men became the Framers of our Constitution upon deciding that an entirely new document was needed. ◙ Debates raged over how much power to give the federal government, the states and the people. ◙ The result -- a series of compromises about power -- is the Constitution of the United States.

5. Compromises in the Constitution ◙ Separation of Powers Federal government is divided into three branches - - Executive, Legislative, and Judicial. Each branch is independent and equal. Each is a balance to the power of the others. Congress can pass statutes, but... The President can veto a bill, but... Congress can override a veto, but... The courts can rule a law unconstitutional, but... The President can appoint federal judges, but... Congress has to approve the President’s nominee... ◙ Federalism -- the national government’s power is limited to only the issues listed in Article I, §8. ◙ Individual Rights -- the original Constitution did not mention rights of citizens, so the first 10 amendments (Bill of Rights) spelled those out.

6. Congressional Power ◙ Article 1 establishes Congress with two houses. Each state has 2 Senators; number of Representatives is relative to each state’s population. ◙ Article 1 gives Congress powers. Congress can create and enact legislation, impose taxes, spend money, create copyrights, support the military and declare war. Congress regulates commerce with other nations and between different states. Each state regulates commerce within its own borders. Substantial Effect Rule -- Congress may regulate any activity which has a substantial economic effect on interstate commerce.

7. State Legislative Power ◙ Commerce States may regulate commerce in its own borders. A state statute that discriminates against interstate commerce is invariably unconstitutional. ◙ Supremacy Clause -- states that the Constitution, federal statutes and federal treaties are the supreme law of the land. If there is conflict between statutes, the federal controls the issue and the state statute is void. Even with no direct conflict, federal law will prevail if the issue is one that Congress controls exclusively. So, state law prevails only when there is no opposing federal law and no exclusive federal control.

8. Executive Power ◙ Article II defines the powers and responsibilities of the President -- in general he is to enforce the nation’s laws. Appointment -- The president nominates federal judges (including Supreme Court Justices) and heads of most administrative agencies. Legislation -- The president and his advisors can propose bills to Congress and the president can veto bills from Congress. Foreign Policy -- The president coordinates international efforts, negotiates treaties and is the Commander in Chief of the military, but he may not declare war.

9. Judicial Power ◙ Article III creates the Supreme Court and permits Congress to create lower federal courts. ◙ Federal courts have two key functions: adjudication and judicial review. Adjudication -- Federal courts hear civil and criminal cases within their jurisdiction. Judicial Review -- Federal courts can declare a statute or governmental action unconstitutional. ◙ Throughout history, the Supreme Court has varied in its level of judicial activism (eagerness to rule on many issues) vs. judicial restraint (ruling only on issues that are clearly Constitutional questions).

10. Protected Rights: Free Speech ◙ The First Amendment states, “Congress shall make no law… abridging the freedom of speech.” Speech includes non-verbal communication, such as signs, symbols and acts (like flag-burning). Political speech -- about a politician or political process is protected, and can be found illegal only if it is intended and likely to promote lawless conduct. Legal speech may be limited in time, place & manner. Obscenity is not protected by the Constitution. Commercial speech -- designed to propose a commercial transaction -- is regulated more strictly than other speech and may be outlawed if false or misleading.

11. Fifth Amendment -- ◙ “No person shall be… deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.” Procedural Due Process -- the government must go through procedures to ensure that the result is fair. The process due is in proportion to what the government is trying to take from the person. The Takings Clause -- when the government takes private property for public use, it must pay a fair price. Substantive Due Process -- some rights (voting, speech, travel, privacy) are so fundamental that the government may not take them at all. Due Process and the Takings Clause

12. 14th Amendment -- ◙ The government must treat people equally, yet they frequently make distinctions among classes of people for different treatment. Is this legal? Usually acceptable -- based on economic and social relations (such as higher income paying a higher percentage income tax) are usually upheld. Sometimes acceptable -- based on gender are sometimes upheld, if there is a good reason. Almost Never acceptable -- based on race, ethnicity and fundamental rights are almost never upheld. Equal Protection ◙ “No state shall… deny to any person within its jurisdiction the equal protection of the laws.”

13. Giving Up Your Constitutional Rights… Would You?? ◙ Common Interest Developments Some neighborhoods have restrictive covenants which may supercede constitutional protection. They may restrict owning of pets, color of paint, size of mailbox, outdoor signs or lawn decorations, even having children! These restrictions are enforceable, even if stricter than the constitution, because the owners voluntarily accept them.