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created a federal Congress composed of representatives from each of the 13 new states
Were a weak document that gave limited power to the newly created federal government
Ex: did not provide Congress with power to levy and collect taxes, to regulate commerce with foreign countries, or to regulate interstate commerce among the states |
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| Constitutional Convention |
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convened in 1787 with the primary purpose of the convention to strengthen the federal government
Agreed on a reported a new Constitution of the USA to Congress
Serves 2 major functions:
Creates the 3 branches of the federal government and allocates power
Protects individual rights by limiting the government’s ability to restrict those rights
It may be amended to address social and economic changes |
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| federal government and the 50 state governments share powers |
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certain powers delegated to the federal government
Any powers not specifically delegated to the federal government by the Constitution are reserved to the state governments |
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established by Article I of the Constitution; bicameral Congress – Senate and House of Representatives
Each state has 2 senators
Number of House Reps determined according to the population of each state |
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established by Article II of the Constitution; providing for the election of the president and vice president
President elected by the electoral college, whose representatives are appointed by state delegation |
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| established by Article III; establishes Supreme Court and provides for the creation of other federal courts by Congress |
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built into the Constitution to ensure that no one branch of the fed government becomes too powerful
Judicial branch has authority to examine the acts of the other two branches and determine whether those acts are constitutional
Executive branch can enter into treaties with foreign governments only with the advice and consent of the Senate
Legislative branch is authorized to create federal courts and determine their jurisdiction and to enact statutes that change judicially made law |
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| establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land. State and local laws that conflict with valid federal law are unconstitutional |
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concept of federal law taking precedence over state or local law
Congress may expressly provide that a particular federal statute exclusively regulates a specific area or activity, in which case no state or local statute regulating that area / activity is valid
Federal statutes do not expressly provide for exclusive jurisdiction
In these incidents, state and local governments have concurrent jurisdiction to regulate |
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grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes”
Has greater impact on business than any other provision in the Constitution
Intended to foster the development of a national market and free trade among states |
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| Commerce Regulation with Native American Tribes |
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Fed entered into treaties with many of the Native American nations, exchanging money and goods for property
Ex: Minnesota v. Mille Lacs Band of Chippewa Indians (p34) |
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Commerce Clause gives the federal government the exclusive power to regulate commerce with foreign nations
Ex: fed government could enact a law that prohibits US companies from doing business with a foreign country that engages in terrorist activities
Direct and indirect regulation of foreign commerce by state or local governments that unduly burdens foreign commerce violates the Commerce Clause and is unconstitutional
Ex: If state of Michigan enacts a law that imposes a 100% tax on any automobile imported from a foreign country sold in Michigan but didn’t impose the same tax on domestic automobiles (GM, Ford, Chrysler)
This tax would violate the Foreign Commerce Clause and would be void
Would be valid if Michigan taxed both domestic and foreign or if the US taxed all foreign but not domestic |
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gives the fed gov’t the authority to regulate interstate commerce
Originally interpreted to mean that fed gov’t could only regulate commerce that moved in interstate commerce. Modern rule allows the fed gov’t to regulate activities that affect interstate commerce
Under the effects on interstate commerce test, the regulated activity does not itself have to be interstate commerce
Thus, any local (intrastate) activity that has an effect on interstate commerce is subject to federal regulation
Ex: Wickard, Secretary of Agriculture v. Filburn: Law that limited the amt of wheat a farmer could plant and harvest for home consumption. Filburn violated and argued that the fed statute did not involve interstate commerce. Supreme Court sided with the government and upheld the statute on the grounds that it involved interstate commerce because it is meant to prevent nationwide surpluses and shortages of wheat. Court reasoned that wheat grown for home consumption would affect the supply of wheat available in interstate commerce. |
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| No Undue Burden on Intrastate Commerce |
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| States did not delegate all power to regulate business to fed |
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| Police Power (No Undue Burden on Intrastate Commerce) |
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Retained power to regulate intrastate and much interstate business activity that occurs within state borders
Permits states (and, by delegation, local governments) to enact laws to protect or promote the public health, safety, morals, and general welfare
Includes authority to enact laws that regulate the conduct of business – zoning ordinances, state environmental laws, corporation and partnership laws, and property laws
State and local laws cannot unduly burden interstate commerce
Ex: If one state’s corporations code permits only corporations from that state, but from no other state, to conduct business in that state – that state law would unduly burden interstate commerce and would be unconstitutional |
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| 10 amendments approved in 1791 to guarantee certain fundamental rights to natural persons and protects these rights from intrusive government action, most applicable to artificial persons (corporations) |
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| Due Process Clause of the 14th Amendment |
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| added to limit intrusive actions by state and local governments (added in 1868) |
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| supreme court ruled that most of the fundamental guarantees contained in the Bill of Rights are applicable to state and local government action |
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| Clause of the First Amendment protects speech only, not conduct and places speech into 3 categories |
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speech that the government cannot prohibit or regulate. (political speech)
Ex: Gov’t could not enact a law that forbids citizens from criticizing the current administration
Protects oral, written, and symbolic speech |
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Supreme Court has said that certain types of speech have only limited protection under the First Amendment. Government cannot forbid limited protected speech, but it can subject this speech to time, place, and manner restrictions
Offensive Speech: speech that offends many members of society
Ex: FCC
Commercial Speech: once considered unprotected, but since State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc, Supreme Court holds that commercial speech is subject to time, place, and manner restrictions |
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not protected and may be totally forbidden by the government
Dangerous speech (yelling “fire”)
Fighting words that are likely to provoke hostile or violent response from an average person
Speech that incites the violent or revolutionary overthrow of the government (teaching of the morality and consequences of such action is protected)
Defamatory language
Child pornography |
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| unprotected speech: obscene speech |
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Definition
subjective definition. In Miller v. California speech defined as obscene when:
Average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
States are free to define what constitutes obscene speech |
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| is protected under the First Amendment by two separate clauses |
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| Freedom of Religion: Establishment clause |
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| prohibits the government from either establishing a state religion or promoting one religion over another. Guarantees that there will be no state-sponsored religion |
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| Freedom of Religion:Free Exercise Clause |
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prohibits the government from interfering with the free exercise of religion in the US
Prevents the government from enacting laws that either prohibit or inhibit individuals from participating in or practicing their chosen religions |
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| 14th Amend: Equal Protection Clause |
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provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”
Prohibits state, local, and federal governments from enacting laws that classify and treat “similarly situated” persons differently
Also protects artificial persons, such as corporations |
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| Equal protection clause: scrutiny test |
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any government activity or regulation that classifies persons based on a suspect class is reviewed for lawfulness using a strict scrutiny test
Ex: gov’t rule that permitted persons of one race but not of another race to receive government benefits such as Medicaid, would violate this test
Affirmative action programs that give racial minorities a “plus factor” when considered for public university admission is lawful, as long as it doesn’t constitute a quota system |
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| Equal protection clause: Intermediate Scrutiny Test |
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awfulness of government classifications based on protected classes other than race is examined using an intermediate scrutiny test. Courts determine whether the gov’t classification is “reasonably related” to a legitimate gov’t purpose
Ex: a rule prohibiting persons over a certain age from military combat would be lawful, but a rule prohibiting persons over a certain age from acting as gov’t engineers would not be |
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| Equal protection clause: rational basis test |
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lawfulness of all gov’t classifications that do not involve suspect or protected classes is examined using a rational basis test. Courts will uphold governemtn regulation as long as there is a justifiable reason for the law. This standard permits much of the government regulation of business
Providing government subsidies to farmers but not to those in other occupations is permissible |
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| ovide that no person shall be deprived of “life, liberty, or property” without due process of the law. Due Process of the 5th Amendment applies to federal government action; that of the 14th Amendment applies to state and local government action |
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requires that government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope
The test of whether it is met is whether a “reasonable person” could understand the law to be able to comply with it. Laws that do not meet this test are declared void for vagueness.
Ex: city ordinance that made it illegal for persons to wear “clothes of the opposite sex” would be held unconstitutional as void for vagueness because a reasonable person could not clearly determine whether conduct violated the law |
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requires that the government give a person proper notice and hearing of legal action before that person is deprived of life, liberty or property
Ex: If fed or a state gov’t brings a criminal lawsuit against a defendant, the gov’t must notify the person of its intent of charging them with a crime and provide a trial
Ex: If gov’t wants to take a person’s home by eminent domain to build a highway, the gov’t must (1) give the homeowner sufficient notice and (2) provide a hearing
Under Just Compensation Clause of the 5th Amendment, the gov’t must pay the owner just compensation for taking the property |
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| Privileges and Immunities Clause |
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prohibit states from enacting laws that unduly discriminate in favor of their residents
Ex: state cannot enact a law that prevents residents of other states from owning property or businesses in that state
Only invidious discrimination is prohibited – so state universities are permitted to charge out-of-state residents higher tution. This only applies to citizens, and does not protect corporations |
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| Commercial Speech 4 prongs test |
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1. Weather the speech at issue concerns legal activity and whether or not it is misleading
like no adds for pot because it is illegal
2. Whether the interest accreted by government is substantial
like gov not letting any cars in commercials being red
3. whether the regulation direly advances the government interests
the restriction of the speech has to be target to the goal
4. whether or not the retraction is
like not letting liquor companies to advertise at all that is too harsh |
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