Constitutional Law

1
Chapter 5

• Constitutional Law

2
Quote of the Day

• Give me the liberty to know, to utter, and to
  argue freely according to conscience, above all
  liberties.
• John Milton, English poet, 1644

3
Government Power

• One in a million
• Constitution of the United States is the greatest
  legal document
• Drafted in 1787, still successful today
• Short and easy to read
• Permitted interpretation
• Versatility

4
Overview

• First nation in modern history founded on the
  idea that
• People could govern themselves, democratically
• States were governing themselves under the
  Articles of Confederation - Gave the central
  government no real power
• Framers set out to draft a new document and to
  create a government
• The Constitution is a series of compromises about
  power

5
Overview

• Separation of powers
• One method of limiting power
• Create a national government divided into three
  branches
• Executive, legislative, and judicial
• Each independent and equal
• Individual rights
• Bill of rights - First 10 amendments were added
  to the Constitution

6
Power Granted

• Congressional power
• Members create statutes that influence jobs
• Article I, section 8 - Lists the 18 types of
  statutes that Congress is allowed to pass
• National government may create currency
• Commerce clause Part of Article I, Section 8,
  that gives Congress the power to regulate
  commerce with foreign nations and among states

7
Power Granted

• Interstate commerce
• Power to bring coordination and fairness to trade
  among the states
• Stop the states from imposing the taxes and
  regulations that were wrecking the nations
  domestic trade
• Substantial effect rule
• Congress may regulate any activity that has a
  substantial economic effect on interstate
  commerce

8
Power Granted

• Current application The affordable healthcare
  act
• May result in as many as 30 million uninsured
  Americans gaining health care coverage
• State legislative power
• Dormant aspect holds that a state statute which
  discriminates against interstate commerce is
  almost always unconstitutional

9
Power Granted

• Supremacy clause Constitution, and federal
  statutes and treaties, shall be the supreme law
  of the land
• Conflict between federal and state statutes -
  Federal law preempts the field
• No conflict - Congress demonstrates that it
  intends to exercise exclusive control over an
  issue, federal law preempts

10
Power Granted

• Executive power
• Article II of the Constitution defines executive
  power
• Presidents basic function is to enforce the
  nations laws

11
Power Granted

• Three of the presidents key powers
• Appointment - Administrative agencies play a role
  in business regulation
• President nominates the heads
• Legislation - The president and his advisors can
  propose bills to Congress and the president can
  veto bills from Congress
• Foreign policy President
• Conducts the nations foreign affairs
• Coordinates international efforts
• Negotiates treaties
• Heads the military
• May not declare war

12
Power Granted

• Judicial power
• Article III of the Constitution
• Creates the Supreme Court
• Permits Congress to establish lower courts within
  the federal court system
• Federal courts have two key functions
• Adjudicating cases - Federal court system hears
  criminal and civil cases
• Judicial review - Power of federal courts to
  declare a statute or governmental action
  unconstitutional and void

13
Power Granted

• Judicial review
• Judicial activism A courts willingness to
  decide issues on constitutional grounds
• Judicial restraint A courts attitude that it
  should leave law-making to legislators

14
Protected Rights

• Constitutional rights protect only against
  governmental acts
• Incorporation Rights explicitly guaranteed at
  one level are incorporated into rights that apply
  at other levels

15
First Amendment Free Speech

• Political speech
• Protected unless it is intended and likely to
  create imminent lawless action
• Government may regulate the time, place, and
  manner of protected speech
• Morality and obscenity
• Obscenity has never received constitutional
  protection

16
First Amendment Free Speech

• Commercial speech Communication that has the
  dominant theme of proposing a business
  transaction
• Government may regulate other commercial speech
• Provided that the rules are reasonable, and
  directed to a legitimate goal

17
Fifth Amendment Due process and the Takings
Clause

• Procedural due process Government must go
  through procedures to ensure that the result is
  fair
• Steps in analyzing a procedural due process
• Is the government attempting to take liberty or
  property?
• How much process is due?
• Neutral factfinder
• Attachment of property
• Government employment
• Academic suspension

18
Fifth Amendment Due process and the Takings
Clause

• The Takings Clause When the government takes
  property for public use, it has to pay a fair
  price
• Eminent domain The power of the government to
  take private property for public use
• Substantive due process Some rights are so
  fundamental that the government may not take them
  from us at all

19
Fourteenth Amendment Equal Protection Clause

• Equal protection clause Requires the government
  to treat people equally

20
Fourteenth Amendment Equal Protection Clause

• Classifications
• Minimal scrutiny Economic and social regulation
• Government actions that classify people or
  corporations on these bases are almost always
  upheld
• Intermediate scrutiny Gender
• Government classifications are sometimes upheld
• Strict scrutiny Race, ethnicity, and fundamental
  rights
• Classifications based on any of these are almost
  never upheld

21
The legal battle over power never stops. As
social mores change in step with broad cultural
developments, as the membership of the Supreme
Court changes, the balance of power between
federal government, state government, and
citizens will continue to evolve.