Chapter 5 by wuyunyi


									Chapter 5

   Constitutional Law
Learning Objectives
   Read and be familiar with the Constitution as a whole.
   Understand the Separation of Powers Clause and checks and
   Be familiar with the concept of judicial review as established in
    Marbury v. Madison.
   Understand State and Federal regulation of commerce and the
    relationship to the Commerce Clause.
   Describe the taxing power and the spending power of
   Describe the supremacy clause, exclusive and concurrent
    powers, federalism, and the preemption doctrine.
   Understand the full faith and credit clause and the privileges
    and immunities clause.
Learning Objectives (continued)
   Understand the powers (implied, enumerated, concurrent and
    reserved to the States) granted by the Constitution and the
    powers denied by the Constitution.
   Understand the Bill of Rights and other Amendments to the
   Understand the Fifth and Fourteenth Amendments and the due
    process and equal protection clauses.
   Describe procedural due process and substantive due process.
   Be able to recognize the three levels of protected classes under
    the equal protection clause, and apply the strict scrutiny,
    intermediate scrutiny and rational basis tests.
Learning Objectives (continued)
   Distinguish between protected speech, partially protected
    speech, and unprotected speech under the 1st Amendment.
   Discuss the regulation of time, place and manner of commercial
    speech, and when such regulation will be upheld.
   Apply the establishment clause and the free exercise clause in
    the First Amendment.
   Discuss the Fourth Amendment and search and seizure.
   Understand the implied right of privacy.
   Understand the Fifth Amendment’s guarantee against forced
    self-incrimination, and its application to natural persons.
U.S. Constitution

   Functions:                       Articles
   Creates the government           The first three establish the
   Establishes an individual’s       framework for the federal
    rights in relation to the         government
    federal government               Article IV gives direction to
                                      the states
                                     Article V establishes
                                      methods for amendment
                                     Article VI ranks the order of
                                      the laws
                                     Article VII provides for
U.S. Constitution

                          3 Major
                        Objectives of
                       The Constitution

                       Creates supreme
 Create 3 branches
                      central government    Guarantees the
   of government
                       that derives power       people
  and a system of
                        From the States       basic rights
checks and balances
The three branches of government are
established by the Constitution
   The three branches      System of checks and
   Legislative              balances
   Executive               Landmark Case:
   Judicial                 Marbury v. Madison
                            Doctrine of judicial
Commerce Clause

   Congress has the power to regulate
    Commerce with foreign Nations, and among
    the several States, and with the Indian
Other powers of Congress (Article I
Section 8)
   Taxing Power
   Spending Power
   Implied Powers Doctrine
The Supremacy Clause

                 Federal               State
               (Exclusive)          (Exclusive)

   Federalism
   Concurrent & Exclusive Powers
   Preemption Doctrine
   McCullock v. Maryland
Full Faith & Credit Clause

   Article IV, Section 1 reads “Full Faith and
    Credit shall be given in each State to the
    public Acts, Records, and judicial
    Proceedings of every other State.”
Privileges and Immunities Clause

   Article IV, Section, provides that “the citizens
    of each State shall be entitled to all Privileges
    and Immunities of Citizens in the several
   However, a state may pass a statute that
    protects “legitimate local interest.”
Bill of Rights – the 1st 10 Amendments
to the Constitution
   1st Amendment – Protects religion, speech,
    press, assembly, and redress of grievances.
   4th Amendment – provisions regarding arrest
    and unreasonable search and seizure.
   5th Amendment – protection from double
    jeopardy, freedom from self-incrimination,
    and right to due process (timely notice of trial
    and a fair hearing)
Bill of Rights (continued)

   6th Amendment- Rights to a speedy and
    public trial by jury, an attorney to confront
    witnesses and to cross-examination in
    criminal prosecutions.
   7th Amendment – Right to a jury trial in civil
   8th Amendment – Provides for bail and
    prohibits cruel and unusual punishment
Bill of Rights (continued)

   The 10th Amendment delegates certain
    enumerated (delegated) powers to the
    federal government and reserves all other
    powers to the states or to the people.
Fourteenth Amendment

   Applies only to actions       Equal protection Clause
    by State governments.         Strict scrutiny test
   However equal                 Intermediate scrutiny
    protection also applies        test
    to Fed Gov’t through 5th      Rational basis test
Fifth and Fourteenth Amendments – Due
   Substantive Due Process
   Procedural Due Process
First Amendment

   “Congress shall make no
   respecting an establishment
    of religion, or
   prohibiting the free exercise
    thereof; or
   abridging the freedom of
    speech, or of the press; or
    the right of the people
    peaceably to assemble, and
    to petition the government
    for redress of grievances.”
Freedom of Speech – 3 categories

   1. Protected Speech – political speech &
    symbolic speech – given substantial
    protection by the courts
   2. Partially Protected Speech – commercial
    speech also receives substantial protection,
    but may be regulated as to time, place &
   Unprotected Speech
Commercial Speech

   Restriction on commercial speech will be
    considered valid as long as it meets the
    following 3 criteria:
   (a) Seeks to implement a valid state interest;
   (b) Must directly advance that interest; and
   (c) Must go no further than necessary to
    accomplish its objective.
Commercial Speech

   Virginia State Board of Pharmacy v. Virginia
    Citizens Consumer Counsel, Inc.
   Bates v. State Bar of Arizona
   Bad Frog Beer
Unprotected speech – 6 types

   Dangerous speech
   Fighting words
   Speech that incites violence or revolution
   Defamatory speech
   Obscenity – 2 Live Crew
   Child pornography
Freedom of Religion

   The government can neither establish (the
    Establishment Clause) any religion nor
    prohibit the free exercise of religious
    practices (Free Exercise Clause).
   Sunday Closing Laws
   Religious Displays on Public Property
Fourth Amendment

   Search and seizure      Right to Privacy
   Search warrant          Freedom of Information
   Probable cause          HIPAA
                            Right to Financial
                             Privacy Act of 1978
                            USA Patriot Act of 2001
Fifth Amendment

   No person “shall be compelled in any criminal
    case to be a witness against himself.”
   Extends only to natural persons, not
    corporations or partnerships.

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