Section 1. The Constitutional Power of Government

  1. Revolutionary War à States adopted the Article of Confederation àStates had the authority to govern themselves àFederal Government could exercise only limited powers
  2. National Economy Crisis (1789) happened because state laws are interfere each other and create lack of free flow of commerce between states àNational Convention calls àNew form of government formed
  3. Federal Form of Government National government and state government share sovereign power
  4. Federal Powers – Enumerated Powers – implied power to undertake actions necessary to carry out its expressly designate powers
  • All other powers are reserved to the States – 10th Amendment to the U.S. Constitution
  1. Regulatory Powers of the States
  • Sovereignty (Independence) àRegulate Affairs (10th Amendment)
  • State Regulatory Powers à Police Powers
  • Police Powers – Regulate private activities to protect and promote the public order, health, safety, morals, and general welfare
  • Local government including cities also exercise police powers pursuant (follow) to a state police power
  1. Relations among the States
  • Privileges and Immunities Clause and the Full Faith and Credit Clause
  1. The Privileges and Immunities Clause (Article IV Sec. 2)
  • Prevents a state from imposing unreasonable burdens on citizens of another state
  • Regard to means of livelihood or doing business (Seeking employee or accessing the court system)
  • Substantial reason for treating foreign state resident differently
  • The foreign state must also establish that reason for the discrimination is related to the state’s ultimate purpose in adopting the legislature or regulate activity
  1. The Full Faith and Credit Clause (Article IV Sec. 1)
  • Public Acts, records, and judicial proceeding of every other states
  • Only to civil matters
  • Ensure that rights established under deeds, wills, contracts and similar instruments in one state will honor by other states
  • Ex) Properties right enforced in all states, same-sex marriage
  1. Separation of Powers – Checks and balances
  • Congress (legislative branch)can enact a law, but executive branch has veto that law
  • Executive branch is responsible for foreign affairs, but treaties with foreign government require advice and consent of the Senate.
  • Congress determine the jurisdiction of federal courts, President appoint federal judge with the advice and consent of the Senate. Judicial branch has the power to hold action of other two branches unconstitutional.
  1. The Commerce Clause (Article I Section 8)
  • “To regulate commerce with foreign Nations and among states…”
  • To prevent states from establish laws and regulates that would interfere with trade and commerce among the states, Federal Government has power to regulate interstate commerce.
  • Federal government regulates both state and local commerce affairs
  • Ever since 1824, Federal supreme court regulate within the state policy (Gibbons v. Ogden)
  1. The Expansion of Nation Powers under the Commerce Clause
  • More involved in interstate policy with Civil Rights
  1. The Commerce Clause Today
  • 1995, congress had exercised its regulatory authority under the commerce clause
  • Medical Marijuana and the Commerce Clause – State medical marijuana laws do not insulates the uses from federal prosecution.
  • The “Dormant” Commerce Clause – State do not have the authority to regulate interstate commerce àNegative Aspects
  1. The Supremacy Clause and Federal Preemption (Article VI)
  • When there is a direct conflict between a federal law and state law, federal law wins
  1. Federal Statutes may specify preemption
  • Medical Device Amendments of 1976
  1. When the statutes does not expressly mention preemption
  • Congressional intent to preempt will be found if a federal law regulates an activity will be found if a federal law regulate activity is so pervasive (detailed), comprehensive, or detailed, statutes have no room to regulate
  1. The Taxing and Spending Power (Article I Section 8)
  • Uniformity in taxation among the states
  • Congress tried to indirectly regulate by taxation, if tax measure is reasonable, it generally allow by the courts
  • Spending power – for general welfare as long as it does not violate the Bill of Rights

Section 2. Business and the Bill of Rights

  1. U.S. Constitution – originally 12 Amendments and 10/12 are from Bill of Rights 1791
  2. Limits on Federal and State Government Actions
  • Originally, limits only the power of national government but 14th Amendment incorporated most of the right to state action
  1. 14th Amendment – 1868 after Civil War, “due process” 5th Amendment apply to state power. 4th Amendment, “seizure of properties” apply for both state and federal
  2. Judicial Interpretation
  • Bill of Rights is written in general term. Supreme court is the one interpret the constitution
  1. Freedom of Speech – 1st Amendment
  2. Reasonable Restriction
  • A balance must be struck between a government’s obligation to protect its citizens and those citizens’ exercise of their rights
  • Case by case
  1. Content-Neutral Laws – regulate the time, manner, place not content of speech
  • The restriction must be aimed at combating some societal problem (crime or drug abuse) not the conduct
  • Nude dancing as message is ok whereas other public nudity is not
  1. Compelling government interest – Laws that restrict the content of speech
  • Disallow sex-offender from using Social Media to restrict them from access to minors
  1. Corporate Political Speech – Non-profit or other for-profit organization can express their political views
  2. Commercial Speech – Advertisement and marketing involves only their commercial interest
  • Protections are less extensive than non-commercial speech
  1. Restriction on Advertisement
  • Misleading
  • Roadside beautification bans certain Billboard Ad.
  • 3 Criteria for commercial speech

o   Must seek to implement a substantial government interest

o   Directly advance that interest

o   Go no further than necessary to accomplish its objective

  1. Unprotected Speech
  • Violating criminal laws
  • Harms the good reputation of another, or defamatory speech
  1. Obscene Speech test
  • Average person finds that it violates contemporary community standards
  • The work taken as a whole appeals to a prurient interest in sex
  • The work shows patently offensive sexual conduct
  • The work lacks serious redeeming literary, artistic, political, or scientific merits
  1. Online Obscenity
  • Communication Decency Acts (CDA -1996), Child Online Protect Act (COPA-1998) à Failed
  • Children’s Internet Protection Act (CIPA -2000)

o   Public School and library to install filtering software

o   Meta tags – ban certain keywords

  1. Virtual Pornography – protect from promoting purported material
  2. Freedom of Religion
  • Establishment Clause – Government can’t establish any religion
  • Free Exercise Clause –Prohibit the free exercise of religious practices
  1. Establishment Clause
  • Applicable Standard – No praying, no state sponsored tuition vouchers at religious schools, teaching creationism instead of evolution theory at public schools
  • Religious Display – Not apply for historical significant display
  1. Free Exercise Clause
  • Restriction must be necessary – must have a compelling state interest
  • Ex. Mennonite’s steel tires tend to destroy newly surfaced roads. Appellants won since no much evidence that cleats really damaged the road, however, the state tried to ban it
  • Public Welfare Exception

o   Vaccination requirement à Public Safety is in danger

o   Muslims àScarf over the head in court setting is dangerous (hiding weapons)

  1. Searching and Seizures
  • 4th Amendment protects “Rights of the people to be secure in the persons, houses, papers, and effects.”
  • Must obtain search warrant from judge to public official authority
  1. Search Warrants and Probable Clause
  • Law enforcements officers must convince judges that they have reasonable grounds and evidence of illegality
  • Prohibits general warrants

o   Particular description required

o   Cannot extend beyond the description

  1. Searches and Seizures in the Business Context
  • Government inspectors do not have right to enter business premises without a warrant
  • Lawyers and accountants usually have other business information à Searching them require warrant as well
  1. Self – Incrimination
  • 5th Amendment – No person “shall be compelled in any criminal case to be a witness against himself”
  • Cannot be force to give testimony
  • 14th Amendment extend the protection to state courts
  • Only to natural persons – no corporations nor partnerships
  • Sole Proprietors and sole practitioners cannot be compelled to produce their business records à They have full protection against self-incrimination

Section 3. Due Process and Equal Protection

  1. Due Process
  • 5th and 14th Amendments provide no person shall be deprived “of life, liberty, or property, without due process of law.”
  • Due Process have two aspects – Procedural and substantive
  1. Procedural Due Process
  • Any government decision to take life, liberty, or property must be made equitably
  • Proper notice and an opportunity to be heard
  • Fair Procedure – have an opportunity to object to a proposed action before an impartial and neutral decision maker
  1. Substantive Due Process
  • Focuses on the content of legislation rather than the fairness of procedure
  • Limits what the government may do in its legislative and executive capacities
  • If something (law or government action) limits fundamental right, they must have legit and compelling reason
  • Fundamental Right – interstate travel, privacy, voting, marriage, and other 1st Amendments related actions
  • If not involving fundamental rights, a law action does not violate substantive due process
  1. Equal Protection Clause
  • 14th Amendment – a state may not “deny to any person without its jurisdiction the equal protection of the laws.”
  • 5th Amendment – Equal Protection Clause applicable to the federal government as well
  • When a law action limits liberty of all à Violates substantive due process
  • When a law action limits liberty of some à Violates equal protection clause
  • Distinguish among individual (discrimination) à Classification à Examine the classifications
  1. Strict Scrutiny
  • If a law or action prohibits or inhibits some persons from exercising a fundamental right, the law/action will be subject to “strict scrutiny” by courts
  • Must promote a “compelling state interest” to avoid strict scrutiny
  • If classification is based on a suspect trait, race nationality, or citizenship status, must promote a compelling state interest
  • Compelling State Interest includes remedying past unconditional or illegal discrimination but do not include correcting the general effect of “society’s discrimination.” (???)
  1. Intermediate Scrutiny
  • Based on gender or against illegitimate children
  • Must be involved substantially related to important government objective
  • EX. Males and females not situated equally in pregnancy of teenagers.  Harsher punishment for men apply in rape of minors
  1. Rational Basis Test
  • Valid if any conceivable rational based on which the classification might relate to a legitimate

Section 4. Privacy Rights

  1. In the 1960s, supreme courts endorsed constitution to protect individual privacy rights – 1st, 3rd, 4th, 5th, and 9th
  2. Federal Statutes Affecting Privacy Right
  • Personal Information à Freedom of Information Act (1966) – People can access governmental contained personal information
  • Privacy Act (1974) à right to access such information àNumerous laws protects private rights with financial transaction, electronic communication, and organization stored information.
  • Newly passed Cyber laws
  1. Pretexting
  • Process of obtaining information by false members
  • To clarify, congress enacted Telephone Records and Privacy Protection Act.

o   Federal crime to pretend to be someone else and make false representation

  1. Medical Information – HIPAA – protects health information
  2. The USA Patriots act (2006)
  • Can track some internet activity and general financial information, and student information to prevent from possible terror attack
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