Constitutional LawConstitutional Law

The constitution has:The constitution has:

7 Articles7 Articles Article I, II, & III—establishes the Article I, II, & III—establishes the

branches & powers of governmentbranches & powers of government

Article I, Section 8Article I, Section 8

Called—Enumerated Powers SectionCalled—Enumerated Powers Section At the end you will see—theAt the end you will see—the Necessary & Proper ClauseNecessary & Proper Clause Paragraph 3—Regulates Commerce Paragraph 3—Regulates Commerce

with foreign nations—Only the with foreign nations—Only the Federal Gov. has export regulationsFederal Gov. has export regulations

Example—Indian tribes—States Example—Indian tribes—States would like to tax, but they are would like to tax, but they are exempted—exempted—

This gives a narrow meaning to the This gives a narrow meaning to the regulation of traderegulation of trade

Pre-emption DoctrinePre-emption Doctrine

The Federal government can override The Federal government can override State LawsState Laws

If the state prohibits something—If the state prohibits something—Indian Example—The Indian can do it Indian Example—The Indian can do it on a Federal Reservation—because of on a Federal Reservation—because of the Tribal State Compact—1988the Tribal State Compact—1988

Interstate Commerce Clause—Interstate Commerce Clause—Paragraph 5Paragraph 5

Regulates interstate tradeRegulates interstate trade

Artivle IV, Section 2--Artivle IV, Section 2--

Priviliges & Immunities—The Citizens Priviliges & Immunities—The Citizens of each State shall be entitled to all of each State shall be entitled to all Privileges and Immunities of Citizens Privileges and Immunities of Citizens in the several States—Person in the several States—Person charged with a crime in one state is charged with a crime in one state is returned to that jurisdictionreturned to that jurisdiction

Interstate Commerce ClauseInterstate Commerce Clause In the 1940’s the Dept. of Ag. Fined a farmer In the 1940’s the Dept. of Ag. Fined a farmer

for overproduction—because the crops for overproduction—because the crops weren’t being sold—weren’t being sold—

Federal Government can’t regulate this!Federal Government can’t regulate this! An undue burden test is established—An undue burden test is established—Test—Any activity that has a substandial effect Test—Any activity that has a substandial effect

on commerce is Interstate Commerce—A on commerce is Interstate Commerce—A court could allow each farmer the use of 1/3 court could allow each farmer the use of 1/3 or his crop; but would demand he limit or his crop; but would demand he limit production.production.

Any activity can be regulated by the Federal Any activity can be regulated by the Federal Gov.Gov.

Under this clause.Under this clause.

Federal Government is our source:Federal Government is our source:

Police PowerPolice Power HealthHealth SafetySafety WelfareWelfare Each of the above doesn’t stop the Each of the above doesn’t stop the

state from being involvedstate from being involved

Undue Burden TestUndue Burden Test

State can regulate as long as it is not State can regulate as long as it is not an undue burden—an undue burden—

Example: An Iowa State Law limits Example: An Iowa State Law limits the length of hauling trailers to 55 ft.the length of hauling trailers to 55 ft.

A company sued—Consolidated A company sued—Consolidated FreightFreight

The state lost the case, because theyThe state lost the case, because they

couldn’t prove safety was an issue.couldn’t prove safety was an issue.

Articles of the ConstitutionArticles of the Constitution

Article I, Section 10—established anArticle I, Section 10—established anex post facto law—a crime committed ex post facto law—a crime committed before a law was passed is not illegal.before a law was passed is not illegal.Article II—Executive BranchArticle II—Executive Branch

Article III—Judicial BranchArticle III—Judicial Branch Article IV—Full Faith & Credit ClauseArticle IV—Full Faith & Credit Clause Article V—Amendments Article V—Amendments Article VI—Supremacy ClauseArticle VI—Supremacy Clause

AmendmentsAmendments

11stst Ten—Bill of Rights—ratified 1791 Ten—Bill of Rights—ratified 1791 27 proposed—one not ratified 27 proposed—one not ratified 1818thth Amendment—Prohibition— Amendment—Prohibition—

repealedrepealed

by 21by 21stst

Bill of RightsBill of Rights

1. Establishment Clause—no rights are1. Establishment Clause—no rights are AbsoluteAbsolute Commercial Speech—is protected, butCommercial Speech—is protected, but

restrictedrestricted

Political Speech is protected more than Political Speech is protected more than individual speechindividual speech

4. Criminal Procedure Law—Searches & 4. Criminal Procedure Law—Searches & SeizuresSeizures

Bill of Rights—cont.Bill of Rights—cont.

5. Due Process Clause—2 kinds due 5. Due Process Clause—2 kinds due process & equal protectionprocess & equal protection

Procedural Due Process—a notice &/orProcedural Due Process—a notice &/orsome kind of hearing takes placesome kind of hearing takes placeExample: property, ss benefits hearingExample: property, ss benefits hearingto cut benefitsto cut benefitsExample: prosecute—notice of Example: prosecute—notice of prosecution—Michael Milkin Case—prosecution—Michael Milkin Case—Insider trading on the stock marketInsider trading on the stock market

Substantive Due Process—The Substantive Due Process—The law cannot be vague/or/arbitrarylaw cannot be vague/or/arbitrary—a reasonable person must be —a reasonable person must be able to understandable to understand

Example: Eminent Domain Example: Eminent Domain Clause—They can force the sale Clause—They can force the sale of property for public use—Law of property for public use—Law states, that you must be justly states, that you must be justly compensated—What is just? Can compensated—What is just? Can a court determine?a court determine?

Bill of Rights--Bill of Rights--

9. Other rights—What are they?9. Other rights—What are they? The court will determine themThe court will determine them

Inherent rights—some are enumerated Inherent rights—some are enumerated Society changes Society changes Right to privacy is not mentioned—Courts Right to privacy is not mentioned—Courts

havehave Recognized as protectedRecognized as protected Judicial activists are protectedJudicial activists are protected

Bill of Rights—Bill of Rights—

10. Reservation of Powers to the State10. Reservation of Powers to the State Provides for police powerProvides for police power

14. State goes with the 514. State goes with the 5thth to provide to provide Due Process—limits state governmentsDue Process—limits state governments Provides for Speech, liberty—Selective Provides for Speech, liberty—Selective

incorporation of liberties—give incorporation of liberties—give interpretation of the Due Process Clauseinterpretation of the Due Process Clause

Equal Protection Clause—is incorporated Equal Protection Clause—is incorporated by the 5by the 5thth Amendment Due Process Clause Amendment Due Process Clause

55thth & 14 & 14thth Amendments Amendments

Due Process & Equal Protection can’t Due Process & Equal Protection can’t be deniedbe denied

Regulation is based on Race, national Regulation is based on Race, national origin—fundamental rights origin—fundamental rights

Gives—Strict Scrutiny—State has to Gives—Strict Scrutiny—State has to have a compelling interest in the have a compelling interest in the cases that it pleadscases that it pleads

Reverse Discrimination--Reverse Discrimination--

Fundamental rights are enumeratedFundamental rights are enumerated—— State’s must have a compelling interest State’s must have a compelling interest

to take them away—Ex: If a crime is to take them away—Ex: If a crime is committed.committed.

Ex—Roe v. Wade—The state had no Ex—Roe v. Wade—The state had no compelling interest in the case—it compelling interest in the case—it ended upended up

as a Supreme Court Case (1973)as a Supreme Court Case (1973)

Quasi Strict Scrutiny Quasi Strict Scrutiny

Intermediate test required—There Intermediate test required—There has to be a substantial relationship, a has to be a substantial relationship, a government objective interest in the government objective interest in the casecase

Rational Relationship Test--Rational Relationship Test--

Law regulates social activity—society Law regulates social activity—society must show a rational relationship to must show a rational relationship to a gov. purpose.a gov. purpose. Ex: Law license—(any state license)—Ex: Law license—(any state license)—

government protests it with government protests it with qualificationsqualifications

State statutes are usually upheld by the State statutes are usually upheld by the Federal government Federal government

Supreme Court—Supreme Court—

Has to have an interest in the cases Has to have an interest in the cases it hearsit hears

A writ is requiredA writ is required Cases that are heard by the Supreme Cases that are heard by the Supreme

Court are of interestCourt are of interest To Federal GovernmentTo Federal Government Issues dealing with the ConstitutionIssues dealing with the Constitution Federal Law supercedes State LawFederal Law supercedes State Law