Constitutional History

1
Constitutional History

• Articles of Confederation
• Weak central government
• Economic disaster
• U.S. Constitution Convention
• Representatives of States
• Federal government of limited powers with a weak
  executive
• Residual power in the States

2
U. S. Constitution Structure and Powers

• Structure of the federal government
• Article I the Congress
• Article II the President
• Article III the Courts
• Allocation of powers among the branches
• Congress Article I, section 8
• President Article II, sections 2 3
• Courts Article III, section 2

3
Checks and BalancesFederalism

• Checks and balances within federal system
• Article I, section 7 presidential veto power
• Article I, section 3 and Article II, section 4
  Congressional impeachment power
• Article II, section 2 treaty power allocation
• Federalism
• Article I, section 9
• Tenth Amendment

4
Constitutional Change

• Amendment Process Article V
• Slow and cumbersome
• 27 Amendments in over 200 years
• First 10 Amendments ratified in 1791
• Supreme Court and Judicial Review
• Justice John Marshall instrumental in expanding
  the role of the court
• U.S. Supreme Court is a political body

5
Regulatory Power

• Exclusively federal
• Article 1, section 10
• Exclusively state
• Tenth Amendment
• Concurrent
• Police power the power to regulate for public
  health, safety, morals, and welfare

6
Commerce Power

• Article I, section 8 provides that Congress shall
  have the power to regulate Commerce with
  foreign Nations, and among the several States,
  and with the Indian Tribes.
• Literally quite restrictive

7
Expansion of the Commerce Power

• Supreme court used the commerce power as the
  vehicle to expand federal power
• Affecting commerce doctrine allowed federal
  police power to intrude on intrastate commerce
• Example The Civil Rights Act of 1964 was upheld
  under the commerce clause
• Lopez case in 1995 indicates that the court does
  recognize some limitation

8
Tax Power

• Article I, section 8. Congress shall have Power
  to lay and collect Taxes, Duties, Imposts and
  Excises
• Primary use is to raise revenue for the federal
  government
• Also used to regulate if its purpose could be
  furthered by one of the other powers in Article
  I, section 8 which is very broad indeed

9
Spending Power

• Article I, section 8. Congress has the power to
  pay the Debts and provide for the common Defence
  and general Welfare of the United States
• Also used for regulatory purposes
• Must serve a general public purpose
• Intent must be clear
• Condition must be reasonably related to the
  purpose behind the expenditure

10
Independent Checks on both Federal and States

• First Amendment Freedom of Speech
• Applies to the States by Incorporation in
  Fourteenth Amendment
• Fifth Amendment Due Process
• Applies to the States by Incorporation in
  Fourteenth Amendment
• Fourteenth Amendment Equal Protection
• Applies to federal government by Incorporation in
  Fifth Amendment

11
Means-Ends Tests

• Rational basis test
• Is the government action reasonably related to
  the achievement of a legitimate government
  purpose
• Intermediate scrutiny
• Is the government action substantially related to
  the achievement of a legitimate government
  purpose
• Full strict scrutiny
• Is the government action necessary to the
  achievement of a compelling government purpose

12
Application of Means-Ends Test

• Rational basis
• Most general, social, and economic regulation
• Laws discriminating against aliens under the
  political function exception
• Intermediate Scrutiny
• Sex discrimination (both sexes)
• Discrimination against illegitimates
• Full Strict Scrutiny
• Discrimination regarding fundamental rights
• Federal and State racial discrimination
• Most discrimination against aliens
• National origin discrimination

13
Speech

• Individual speech including political speech
• Commercial speech
• Until 1970s not included under umbrella of First
  Amendment
• Mostly false and deceptive advertising cases
• Intermediate test (slightly different from usual
  version)
• Must directly advance a substantial government
  interest and be no more extensive than necessary

14
Due Process

• Fifth Amendment
• No person shall be deprived of life, liberty,
  or property, without due process of law
• Fifth Amendment applies to the states through the
  Fourteenth Amendment
• Government action requirement

15
Due Process

• Substantive
• Economic - dead letter since the 1930s
• Very liberal rational basis test
• Non-economic primarily right of privacy
• Strict Scrutiny test
• Procedural
• Requirements
• Adequate notice
• Hearing or fair trial

16
Equal Protection

• Fourteenth Amendment
• No State shall deny to any person the
  equal protection of the laws.
• Applies to federal government through the Fifth
  Amendment
• Government action requirement

17
Commerce Clause

• Superceded the Contract Clause in Article I,
  section 10 as the primary justification for most
  economic and social legislation
• Concurrent power with the States
• Federal law supreme
• State law also yields if
• If the state regulation is a burden on interstate
  commerce
• Congress has preempted the field

18
Burden on Interstate Commerce

• State regulation discriminates against other
  states (intrastate)
• State regulation has the effect of burdening or
  hindering interstate commerce
• U.S. Supreme Court has not been consistent in
  which means-ends test applies.

19
Preemption

• Arises from
• Literal conflict between federal and state
  regulation so both cannot be followed
• Federal law states that it preempts state
  regulation
• Federal regulation is pervasive
• State regulation obstructs federal purpose

20
Takings Clause

• Constitutional Requirements
• Property
• Taking
• Public use
• Just compensation