Chap. 2Constitutional Law

Topics / Things That Congress Can Regulate [govern, control]

1. Issue and control money, coin, currency, foreign exchange

2. Create & maintain army, navy and to regulate & call up state militia [Funding for army limited to 2 years]

3. Create post office, post roads

4. Make common laws on bankruptcy, patents, copyright, naturalization, weights and measures

5. Define and punish crime on high seas, against law of nations

6. Limited power to tax (import/export duties, internal excise)

7. Create lower federal courts and define their jurisdiction

Most important for business (and general state, federal relationship)

1. “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” [ The “Commerce Clause]

(Art. I, § 8, clause 3)

2. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” [The “Necessary and Proper” Clause]

(Art. I, § 8, clause 18)

THE COMMERCE CLAUSE

A. ORIGINAL INTERPRETATION

1. Federal government had exclusive control over

a. “_________________” of interstate [and foreign] commerce» Ships & shipping on navigable waters» Import & Export controls» Canals, railroads, post roads, highways» Electronic communication (later)

b. Things and persons ________________interstate commerce» Passengers, Freight, mail, etc.» While on journey, state law not applicable

c. Trade with ________________________________

2. Everything else was “intra-state commerce” subject to_____________________ control

B. POST-1930s INTERPRETATION

1. Congress can regulate anything that may ______________________ interstate commerce (a/k/a “_________________”)

--- Growing a little extra wheat on the back 40

--- Selling fresh bread to locals in New Mexico

--- Prohibiting discrimination in any restaurant or motel

--- Almost, but not quite, everything that might have some relation (direct or indirect) to commercial activity

2. States still have the power to regulate __________________--- Obvious potential for conflict

NOTE: The idea / practice of “precedent” is very strong inCommerce Clause jurisprudence. If one can do, allcan do. If all do, substantial impact on commerce.

C. INTERPRETATION OF COMMERCE CLAUSE TO RESTRICT STATES

1. “Implicit” in grant to federal government is:

a. The idea that the states cannot do something that wouldinfringe on or inhibit federal regulation of interstatecommerce (“_____________________________”)» Results from “________________________”

b. The necessary implication that states ________________against, or “___________________” interstate commerce» Results from “federal” nature of government, the

underlying purpose of Commerce and other clauses

2. All state regulation is subject to constitutional challenge on the basis that it:

a. _________________________ federal law

b. _______________________ interstate commerce

c. “______________________” interstate commerce

D. Determining State-Federal Conflicts (federal always prevails)

[ Supremacy Clause issues ]

1. Direct conflicts = _____________________________________(Oklahoma Constitution & cable TV)(California “ripe” avocados?)

2. Indirect conflicts = enforcing state rule would ______________________________________ rule/program(Burbank airport noise)

[ Commerce Clause issues ]

3. Discrimination against interstate commerce --- Subject to examination like “______________” (later)

4. “Undue burden” on interstate commerce--- Subject to examination like “_____________________” (later)

Any state law or act that runs afoul of Supremacy Clause or CommerceClause is ________________________________________________.

PROCESS FOR JUDGING IF STATE ACTION IS CONSTITUTIONAL

A. Three Questions and Three Levels of Protection

1. Three questions:

a. What is the state’s ________________________? b. Does the state action ______________________interest?

c. Does the state action have negative impact _________________ of the identified interest?

2. Three levels of protection:

a. “__________” Scrutiny b. “____________” Scrutiny c. “______________” Scrutiny (or “Rational Basis”)

3. The language used, and precision required, by the questions varies with which level of scrutiny applies

State Interest? Interest Advanced?

Extent of Impact?

Minimal Scrutiny

General eco- nomic and social regula- tion (“valid” state interest)

Demonstrate a rational rela-tionship to legitimate goal

Other impacts not so broad as to show irrationality (basically same)

Intermediate Scrutiny

“Important” government interest (more than run-of-the-mill stuff)

Chosen means “persuasively” advances the identified interest

Other negative impacts much less than the gained benefit

Strict Scrutiny

“Compelling” state interest (must border on mandatory)

Chosen means clearly and directly advan- ces the precise identified interest

No measurable negative impact beyond that necessary to advance iden- tified interest

B. Which goes where?

1. Strict Scrutiny applied when state action:

a. Has negative impact on “_______________” (freedom of speech, press, travel, criminal-law parts of Bill of Rights – especially due process)

b. Has negative impact on “_________________” (principally race, color, ethnicity, national origin)

c. ______________________ interstate commerce

2. Intermediate scrutiny applied when state action:

a. Has negative impact on “_____________” (gender, age, disability, other)

b. Has negative impact on exercise of constitu- tional rights________________________ category (e.g. equal protection for non-“suspect” groups)

c. Is “_____________” speech [more-or-less here]

d. May have an “____________” on interstate commerce

3. “Rational basis” applies in all other situations

a. States have “_______________” to regulate to protect the “health, safety, welfare [or ‘morals’]” of people in the state

b. Economic regulation, social relations, government functions, physical health and safety, etc., etc.

C. “Spending Power”

1. Congress has the power to impose and collect taxes» Constitution does not limit how/where Congress spends $$

2. Congress can spend money directly, paying for desired goodsand services

3. Congress gives money to state/local governments for projects(some proposed by state, some by federal)

4. Grants to states _________________________

a. To obtain money, state must _______________________

b. Some conditions are not directly related to the grants»

» 1970s highway maintenance funds only if ____________maximum ____ mph

BUSINESS & THE BILL OF RIGHTS

I. BILL OF RIGHTS IN GENERAL

A. The first political “deal”

1. Not part of original constitution (not needed)

2. Deal made to promote ratification by some states

3. Most people first think of “Bill of Rights” provision when theythink of “constitutional rights”

B. Freedoms are _________________

1. Legal cause of action existing before Constitution (libel, slander)

2. Threats to safety of public, individuals» “Fire!!” in theater» Incitement to violence, likely to succeed» “Time, place, circumstance” can be regulated to some degree

II. FREEDOM OF SPEECH, PRESS, etc.

A. What is “speech”?

» All actions ____________________________»»»

B. Regulation of speech is subject to “__________________”

1. Particular danger to public, state, etc., must be exactly identified

2. A “____________” by category is rarely possible (except porno.)» If a state/city wants to regulate demonstrations by anti-war

protesters, must apply same rules to Little League mothers

2. The problem with “pornography”

a. Inherently ___________________________» “Community standards” in Jersey City, NJ and Minot, ND

b. Individual has the right _______________________, etc.» Where does one draw the line between art and porn?

c. Corresponding right to not ___________________________

d. Crafting a legal definition very difficult» Justice = “I can not define it, but I know it when I see it”

e. Specific non-information-receipt purposes of law

» “Protection” of children from seeing pornography

» Protection of children _________________________» Does that support ban _________________________

_______ where characters have child characteristics?

C. “Commercial speech”

1. Subject to “_____________________”» Qualitative distinction between individual speech and

commercial speech intended to enrich speaker

» What is publication by Nike replying to activists’ criticism re “sweat shops”?

2. State interest in protecting individuals __________________» Generally considered more important that economic status

of a business

3. Corporations are treated as legal individual (not “citizen”)» Also understood to be commercial enterprise

III. FREEDOM OF RELIGION

A. “_________________ clause”

1. No ___________________________________ religion» 150-year history in Europe (after Martin Luther)» Longer in England (from Henry VIII 1550 through ?)

2. Historically, majority of US – protestant » Not much controversy and “God” involved in many govern-

mental activities, publications» Some discrimination against Catholic, Jewish

3. More recent court decisions have applied the clause much moreforcefully» _____________________________________________

B. “_______________” Clause

1. Cannot prevent individual from __________________________

2. Some potential question on _____________________

a. Widely recognized religions strongly protected

b. Less wide-spread “religions” do not enjoy same protection

» Native American Church» Animist religions» Temple of Venus

3. Can regulate _______________________ by generally applicablelaws, so long as reasonable opportunity still exists

4. Freedom of religion in employment setting more subject to___________________________________

III. DUE PROCESS

A. Primarily procedural

1. Opportunity to:»»»

2. Most situations covered by statute specifying necessary steps

B. “Substantive Due Process”

1. Questionable term

2. Being replaced by “analysis” framework

IV. EQUAL PROTECTION

A. Impossible _____________________________» Every law ___________________________ (otherwise totally

useless)

B. Focus is on making _____________________

1. Analysis grid (strict, intermediate, etc.) evolved principally inequal protection / discrimination cases

2. “Levels of scrutiny” reflect “suspicion” that the law might bean attempt ________________________

a. Color, race, national origin have frequently been used inlaws as distinguishing factor unrelated to legitimate goal» Chinese immigration ban to protect US jobs» “Irish need not apply.”

b. Limitations due to gender, age, disability were less often“legal” than “cultural” or informal» Minnesota bar admission denied to woman based on

stereotype of female character/constitution

C. Decisions based on equal protection (14th Amend.) and Civil RightsAct essentially interchangeable – precedent

1. Same basic idea = distinction (different treatment) must be basedon ______________________________

» Job requiring heavy lifting:– fewer women than men pass weight-lifting test

2. 14th Amendment applies _____________ governments;

» “Due Process” clause in 14th Amendment interpreted toincorporate “fundamental rights” in Bill of Rights (5th Amend)

» “Due Process” clause in 5th Amendment interpreted toincorporate “equal protection” clause in 14th Amendment

» Civil Rights Act applies to ____________________________________________________________________