The Historical and Constitutional Foundation

Chapter 1

What is the Law?

• A body of enforceable rules governing

– relationships among individuals, and

– between individuals and their government/society as a whole.

Sources of Law

• There are four primary sources of law today in the United States:

– Constitutional law

– Statutory law

– Administrative law

– Case law

Sources of Law

• Constitutional law

– Sets forth the fundamental rights of the people living within the United States or a given state.

– Describes and empowers the various branches of government.

– Sets forth limitations on that power.

Sources of Law

• Statutory law

– Enacted by the United States Congress or the legislature of a given state.

– Also includes ordinances of a City.

– Many statutory laws are Uniform Codes adopted in the same form by all states.

Sources of Law

• Administrative law

– Rules, regulations, orders and decisions created by government agencies.

– Creation of Agencies (Enabling legislation)

Sources of Law

• Administrative law– Rulemaking

Promulgated by federal, state, and local regulatory agencies.

Published weekly in Federal Register and Texas Register.

– Investigation and Enforcement– Adjudication– Oversight

Sources of Law• Case Law (Common Law)

– Body of judicial decisions that interpret and enforce the different laws and rule on disputes between different parties.

– Precedent (“Stare Decisis”) - the authority afforded to a prior judicial decision in deciding subsequent disputes involving the same or similar facts.

Common Law and Civil Law• Common Law Systems

– Recognize the precedential value of prior judicial decisions, which provide binding authority in subsequent disputes.

– Doctrine of “stare decisis”– Found in the United States, the United

Kingdom, and most of their former colonies or possessions.

Law and Equity

• From their origin in the late-Eleventh Century, common-law courts were typically classified as either “courts of law” or “courts of equity.”

Law and Equity

• Courts of Law were empowered only to award wronged parties monetary compensation for injuries or other losses.

• Courts of Equity were empowered to award any manner of non-monetary relief, such as ordering a person to do something or to cease doing something.

• Merger of Courts in U.S. legal system.

Common Law and Civil Law

Civil Law Systems

Based primarily on statutory or codified law.

• Found in most of continental Europe, Mexico and South America

The Legal System of Nations

Substantive vs. Procedural Law

• Substantive Law - creates, defines, describes, and regulates legal rights and obligations.

• Procedural Law - establishes the methods of enforcing the rights established by substantive law.

Civil and Criminal Law

• Civil Law - deals with defining and enforcing the obligations of different persons to one another.

• Criminal Law - deals with defining and enforcing the obligations of persons to society as a whole.

Constitutional Law and The Commerce Clause

• Article I, Section 8 of the U.S. Constitution empowers Congress “[t]o regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.”

The Commerce Clause

• Interstate commerce is commerce between two or more states.

• Intrastate commerce is commerce within a single state.

The Commerce Clause

Since 1824 (Gibbons vs. Ogden at p. 12), the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both interstate and intrastate commerce that “substantially affects” interstate commerce.

The Commerce Clause

What laws have been based on the Commerce Clause?

• Fair Labor Standards Act

• Food and Drug Laws

• Clean Air and Clean Water Acts

• Civil Rights Acts (Heart of Atlanta Motel V. U.S. p. 13 of book)

The Commerce Clause

Heart of Atlanta Motel vs United States (case 1.1 in book at page 14)

similar to Katzenbach vs. McClung

• Upheld Civil Rights Acts– Non-discrimination in public accommodations– Non-discrimination in restaurants

The Bill of Rights

• The first 10 amendments to the U.S. Constitution comprise the Bill of Rights—a series of protections for individuals against various types of government action.

The Bill of Rights

• Guarantees freedom of religion, speech, and the press, the right to peaceably assemble, and to petition the government. [Amend. 1]

Bill of Rights

• Restriction on commercial speech is valid as long as the restriction:

-seeks to promote a substantial government interest;

-directly advances that restriction; and

-goes no further than necessary to accomplish its objective

The Bill of Rights• Case involving state

law prohibiting the “bad frog” making obscene gesture on label of beer vis-à-vis freedom of speech (page 19)

The Bill of Rights

• Guarantees the right to keep and bear arms. [Amend. 2]

• Prohibits unreasonable searches and seizures of persons or property. [Amend. 4]

The Bill of Rights

• Guarantees the rights to due process of law, being free from self-incrimination, and indictment by grand jury. [Amend. 5]

• Guarantees the rights to a speedy and public (criminal) trial with the assistance of counsel and to cross-examine witnesses and to solicit favorable testimony. [Amend. 6]

The Bill of Rights

• Guarantees the right to trial by jury in both criminal cases, [Amend. 6] and civil cases involving more than $20 [Amend. 7]

• Prohibits excessive bail and fines and cruel and unusual punishment. [Amend. 8]

Incorporation of Bill of Rights

• The protections afforded by the Bill of Rights only apply to action by the federal government.

• The U.S. Supreme Court applied them to state and local governments by incorporating the protections of the Bill of Rights into the 14th Amendment.

Incorporation of Bill of Rights

• The Court used the 14th Amendment to incorporate the Bill of Rights to apply to states and local governments:– “. . . . No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Due Process of Law

Procedural Due Process– Any government decision to take life, liberty,

or property must be made fairly – Fairness requires:

• Notice• Hearing

Rights to Privacy

Not Specifically Mentioned in Constitution

• Developed in 20th Century through Courts using the 9th Amendment– Griswold vs. Connecticut in 1965

• Also the Subject of Statutory Laws– Family Educational Rights & Privacy Act– Driver’s Privacy Protection Act

The Historical and Constitutional Foundation

End of Chapter 1