Module # 4

An Introduction to the United States Constitution

Overview

• Introduction• Articles I, II, and III• Levels of Scrutiny • Commerce Clause• The Bill of Rights• First Amendment• Eminent Domain • Fourteenth Amendment

Introduction

• The Constitution is the back bone of our nation

• Succeeded the Articles of Confederation, adopted after the War for Independence

• Initially contained ONLY the seven (7) Articles and NO Amendments

Article I

• Sec 1: All legislative powers in two houses:– Senate– House of Representatives

• Sec 2: House of Representatives– Age requirements– Each State has at least one Representative

• Sec 3: Senate– Age requirements

• Sec 4: Elections

Article I

• Sec 8: Gives Congress power to:– Tax

– Spend for the General Defense and Common Welfare

– Regulate Commerce

– Declare War

– Raise and Support the Military

– Necessary and Proper Clause

Article II

• Sec 1– Creates the office of the President/Vice President– Qualifications– Method of Election

• Sec 2: – Commander & Chief of the Military– Conduct Foreign Affairs– Appoint Judges, Ambassadors, and other Gov’t Officers

• Requires “Advice and Consent” of the Senate

Article II

• Sec 3– State of the Union Address

• Sec 4– Impeachment– Treason, Bribery, or other High Crimes and Misdemeanors

Article III

• Sec 1: Creation of the Supreme Court

• Sec 2: Original Jurisdiction– Cases and Controversies– This has been amended by Congress

• Sec 3: Treason– “[S]hall consist only in levying War against them, or in adhering to

their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Levels Scrutiny

• Strict Scrutiny

• Intermediate Scrutiny

• Rational Basis

Strict Scrutiny

• Fundamental Rights, Race, National Origin, Some types of Speech (i.e. political)

• Test: in order to be valid:– Compelling state interest– Narrowly tailored – Must be the LEAST restrictive means

• Burden is on the GOVERNMENT to prove the Government Action is Constitutional

Intermediate Scrutiny

• Gender, Illegitimacy, Sexual Orientation, Speech: Time, Place, and Manner Restrictions

• Test– Important Government Interest– Substantially related to that Interest

• Burden is on the GOVERNMENT to prove the Government Action is Constitutional

Rational Basis

• Any other Government Law or Regulation (i.e. Commerce, Taxation, Spending, Criminal Laws)

• Test– Reasonably Related– Legitimate Government Interest– Does not have to be the least restrictive means, only must be

REASONABLE

• Burden is on the PARTY challenging the Government Action to show the action is Unconstitutional.

Commerce Clause• Article I, Sec. 8, Clause 3, U.S. Const. Congress has the power “[t]o

regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

• Rational Basis Review

• Congress may:– regulate the use of the channels of interstate commerce– regulate and protect the instrumentalities of interstate commerce, or

persons or things in Interstate Commerce, even though the threat may come only from intrastate activities

– regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce)

Commerce Clause

• Prior to the New Deal the Court was very restrictive on Congress’ power

• During the New Deal the Court was deferential to Congress

• Currently the Court is more restrictive on Congress’ power– United States v. Lopez, 514 US 549 (1995) and United State v.

Morrison, 529 US 598 (2000)– SCOTUS invalidated two Federal Criminal Statutes which tried to

regulate Intra-State Crime– Finding no “substantial relationship” to interstate commerce

Bill of Rights

First Ten (10) Amendments to the Constitution:1. Speech, Press, Assembly2. Militia and The Right to Bear Arms3. No “quartering” of Soldiers4. Unreasonable Search and Seizure 5. Self Incrimination, Takings Clause6. Right to Counsel7. Right to Jury Trial8. Cruel & Unusual Punishment; Excessive Bail9. No denial or rights10. Powers not delegated to the Federal Government are reserved to the

States

First Amendment

• Religion: Establishment or Prohibition

• Assembly : right to assemble peacefully

• Press

• Speech

• Petition the Government for redress of grievances

Speech

• Political Speech: Fundamental Right; requires Strict Scrutiny

• Gov’t may regulate the Time, Place, and Manner of speech but it must comply with Intermediate Scrutiny

• Commercial Speech: Rational Basis

• Fighting Words Doctrine– “[I]nsulting or fighting words, those that by their very utterance inflict

injury or tend to incite an immediate breach of the peace"

Eminent Domain

• Takings Clause, Amend V: “nor shall private property be taken for public use, without just compensation.”– I. e. new road ways, parks, or public buildings

• Kelo v. City of New London, 545 US 469 (2005)– 5-4 Decision – Property taken from private land owner, by Eminent Domain, and

transferred to another private person– Found the taking constitutional because the taking was for a “public

purpose” because it would create “new jobs and increase tax revenue.”

Fourteenth Amendment

• Incorporation

• Due Process– Substantive Due Process– Procedural Due Process

• Equal Protection

The Incorporation Doctrine

• The process by which the Bill of Rights is applied to the many states, through SCOTUS decisions.

• Originally, the Bill of Rights only applied to the Federal Government

• Types of Incorporation– Total: argument favoring total application of the Bill of Rights to the

states

– Selective: incorporation of the Bill of Rights in small incremental steps. This is method that has been used. Most provisions have of the Bill of Rights have been applied to the states in this manner.

Due Process Clause

• “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, Amend XIV, Sec 1.

• Ensures fairness for persons who are subject to a Governmental Action. (i.e. criminal laws)

• Types of Due Process– Substantive– Procedural

Substantive Due Process

• Prevents the government from taking away a fundamental right, without due process (i.e. fairness)

• Types of Fundamental Rights “takings”– De Jure: a law by its text specifically denies or infringes on a fundamental right– De Facto: a law as it is applied is discriminatory in nature.

• Yick Wo v. Hopkins, 118 US 356 (1886). (Chinese Laundries)

• Level of Scrutiny– Strict Scrutiny: governmental action must be narrowly tailored to

further a compelling governmental interest. Must be the lease restrictive means necessary.

Procedural Due Process

• Requires that a governmental action – generally a form of adjudication – be fair and neutral

• Factors– Notice– Opportunity to be heard– Fair and neutral Judge

• Levels of Scrutiny – Strict Scrutiny: Criminal and Fundamental Rights – Rational Basis: All other adjudicative hearings (i.e. administrative).

Procedure must be “reasonably related to a governmental interest.”

Equal Protection

• “… nor shall any State deprive any person of life, liberty, or property … nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, Amend XIV, Sec 1.

• Prevents discrimination based on “suspect classes”

• Levels of Scrutiny – Strict Scrutiny: Race or National Origin– Intermediate Scrutiny: Gender– Rational Basis: Age– Sexual Orientation: rational basis, but some courts are using

intermediate scrutiny. Lawrence v. Texas, 539 US 558 (2003).

Equal Protection – Race

• Plessy v. Ferguson, 163 U.S. 537 (1896)– Separate train cars for Caucasians and Negros (verbiage at the time)– “Separate but Equal”– Held: that it was acceptable to separate races, as long as the facilities

for each race was “equal”

• Brown v. Board of Education, 347 US 483 (1954)– Separate Schools for Whites and Blacks– NAACP brought a series of cases – Held: even if separate facilities are equal, the mere separation of races

is discriminatory, and therefore an unconstitutional violation of the Equal Protection Clause.

Review

• Constitutional Article– Article I: Legislative – Article II: Executive– Article III: Judicial

Levels of Scrutiny

• Strict: government action must be narrowly tailored to further a compelling governmental interest.– Burden on Government

• Intermediate: government action must be substantially related to further an important governmental interest– Burden on Government

• Rational Basis: government action must be rationally related to a legitimate governmental interest– Burden on Challenging Party

Review

• Commerce Clause– Congress’ power to regulate the streams and instrumentalities of

commerce– Action must be related to commerce

• The Bill of Rights– First 10 Amendments to the Constitution– Know the basics of each Amendment

• i.e. Fourth Amend applies to unreasonable searches & Seizures

Review

• First Amendment– Speech

• Levels of Scrutiny• Political• Time, Place, and Manner• Commercial Speech• Fighting Words

– Assembly– Press– Religion

Review

• Eminent Domain

• 14th Amendment– Incorporation– Due Process

• Substantive • Procedural

– Equal Protection