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Constitutional Law
Give me the liberty to know, to utter, and to argue freely
according to conscience, above all liberties.John Milton, English poet, 1644
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
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
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
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
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 nation’s domestic trade
Substantial effect rule◦ Congress may regulate any activity that has a
substantial economic effect on interstate commerce
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
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
Executive power◦ Article II of the Constitution defines executive
power◦ President’s basic function is to enforce the
nation’s laws
◦ Three of the president’s 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 nation’s foreign affairs Coordinates international efforts Negotiates treaties Heads the military May not declare war
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
Judicial review ◦ Judicial activism: A court’s willingness to decide
issues on constitutional grounds◦ Judicial restraint: A court’s attitude that it
should leave law-making to legislators
Constitutional rights protect only against governmental acts
Incorporation: Rights explicitly guaranteed at one level are incorporated into rights that apply at other levels
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
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
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
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
Equal protection clause: Requires the government to treat people equally
◦ 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