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 balances. 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 Congress. 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 Constitution. 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 ratification 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 (Federalism) 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 review Commerce Clause Congress has the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Other powers of Congress (Article I Section 8) Taxing Power Spending Power Implied Powers Doctrine The Supremacy Clause Concurrent ↓ 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 States.” 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 suits. 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 Amendment. Fifth and Fourteenth Amendments – Due Process Substantive Due Process Procedural Due Process First Amendment “Congress shall make no law 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 & manner. 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.