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CONSTITUTIONAL
LAW
Chapter 5
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Quote of the Day
Give me the liberty to know, to utter,
and to argue freely according to
conscience, above all liberties.
John Milton, English poet, 1644

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Before the Revolutionary War, States
wanted a confederation with weak
national government and very limited
powers.
After the war, in 1787, the States voted to
amend the Articles of Confederation
and create a new, federal government
that shared power with States.
History
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The Constitution of the United States is a
remarkable document in many ways.
Drafted in
1787, yet is
still relevant
today
Short, and
easy to read;
its brevity
gives it
endurance
Flexible enough to
deal with the
issues of a
changing world
Versatile
enough to
resolve a
wide variety
of conflicts
Leaves room for
interpretation and
fleshing out
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Overview and History
of Constitutional Law
When America gained its freedom from England
in 1783, the states governed themselves under
the Articles of Confederation.

The Articles of Confederation gave the federal
government no power to raise money or regulate
commerce.

Taxation policies were inconsistent and caused
dissent among states.

The Articles of Confederation were not working!

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Overview and History (contd)
The states sent 55 delegates to meet to
amend the Articles of Confederation.

Instead, these men became the Framers of
our Constitution upon deciding that an entirely
new document was needed.

Debates raged over how much power to give
the federal government, the states and the
people.

The result -- a series of compromises about
power -- is the Constitution of the United
States.

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Constitutional Powers
of Government
Constitution established a federal form of
government with checks and balances among
three branches: executive, legislative and
judicial.
National government has limited, enumerated
powers delegated from States.
Privileges and Immunities Clause (Art. IV 2)
Full Faith and Credit Clause (Art. IV 1)
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Compromises in the Constitution
Separation of Powers
Federal government is divided into three
branches -- Executive, Legislative, and
J udicial.
Each branch is independent and equal.
Each is a balance to the power of the others.
Congress can
pass statutes,
but...
The President
can veto a bill,
but...
Congress can
override a veto,
but...
The courts can rule a
law unconstitutional,
but...
The President can
appoint federal
judges, but...
Congress has to
approve the
Presidents nominee...
Federalism -- the national governments power is
limited to only the issues listed in Article I 8.
Individual Rights -- the original Constitution did
not mention rights of citizens, so the first 10
amendments (Bill of Rights) spelled those out.
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Congressional Power
Article 1 establishes Congress with two houses.
Each state has 2 Senators; number of
Representatives is relative to each states
population.
Article 1 gives Congress powers.
Congress can create and enact legislation, impose
taxes, spend money, create copyrights, support the
military and declare war.
Congress regulates commerce with other nations
and between different states. Each state regulates
commerce within its own borders.
Substantial Effect Rule -- Congress may regulate
any activity which has a substantial economic effect
on interstate commerce.
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State Legislative Power
Commerce
States may regulate commerce in its own borders.
A state statute that discriminates against interstate
commerce is invariably unconstitutional.
Supremacy Clause -- states that the Constitution, federal
statutes and federal treaties are the supreme law of the
land.
If there is conflict between statutes, the federal statute
controls the issue and the state statute is void.
Even with no direct conflict, federal law will prevail if the
issue is one that Congress controls exclusively.
So, state law prevails only when there is no opposing
federal law and no exclusive federal control.
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Barnes v. Glen Theatre, Inc.
Indiana's public indecency statute prohibits
any person from appearing nude in a public
place.
Did Indiana's public indecency statute violate
the First Amendment?
What are a states police powers?
What specific purpose did the Indiana statute
serve?
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Executive Power
Article II defines the powers and responsibilities of
the President -- in general he is to enforce the
nations laws.
Appointment -- The President nominates federal
judges (including Supreme Court J ustices) and the
heads of most administrative agencies.
Legislation -- The President and his advisors can
propose bills to Congress and the President can
veto bills from Congress.
Foreign Policy -- The President coordinates
international efforts, negotiates treaties and is the
Commander in Chief of the military, but he may
not declare war.
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J udicial Power
Article III creates the Supreme Court and permits
Congress to create lower federal courts.
Federal courts have two key functions:
adjudication and judicial review.
Adjudication -- Federal courts hear civil and
criminal cases within their jurisdiction.
J udicial Review -- Federal courts can declare
a statute or governmental action
unconstitutional.
Throughout history, the Supreme Court has
varied in its level of judicial activism (eagerness
to rule on many issues) vs. judicial restraint
(ruling only on issues that are clearly
constitutional questions).
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Protected Rights:
Free Speech
The First Amendment states, Congress shall make no
law abridging the freedom of speech.
Speech includes non-verbal communication, such as
signs, symbols and acts (like flag-burning).
Political speech -- about a politician or political process
is protected, and can be found illegal only if it is
intended and likely to promote lawless conduct.
Legal speech may be limited in time, place and
manner.
Obscenity is not protected by the Constitution.
Commercial speech -- designed to propose a
commercial transaction -- is regulated more strictly
than other speech and may be outlawed if false or
misleading.
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Protected Rights:
Free Speech (cont)
On March 1, 2006, this story appeared
in the media:

Americans apparently know more
about The Simpsons than they do
about the First Amendment.

Case: Texas v. Johnson
Texas v Johnson and Barnes v Glen Theatre, Inc.
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Fifth Amendment --
No person shall be deprived of life, liberty, or
property without due process of law; nor shall private
property be taken for public use, without just
compensation.
Procedural Due Process -- the government must
go through procedures to ensure that the result is
fair. The process due is in proportion to what the
government is trying to take from the person.
The Takings Clause -- when the government
takes private property for public use, it must pay a
fair price.
Substantive Due Process -- some rights (voting,
speech, travel, privacy) are so fundamental that
the government may not take them at all.
Due Process and the Takings Clause
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14th Amendment --
The government must treat people equally, yet they
frequently make distinctions among classes of
people for different treatment. Is this legal?
Usually acceptable -- based on economic and
social relations (such as higher income paying a
higher percentage income tax) are usually
upheld.
Sometimes acceptable -- based on gender are
sometimes upheld, if there is a good reason.
Never acceptable -- based on race, ethnicity and
fundamental rights are almost never upheld.
Equal Protection
No state shall deny to any person within its
jurisdiction the equal protection of the laws.
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Equal Protection
State Universities and Non-Resident Tuition
Does lower tuition for in-state residents than
non-residents at a state university violate the
14th Amendment?
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Giving Up Your Constitutional
Rights Would You??
Common Interest Developments
Some neighborhoods have restrictive
covenants which may supersede constitutional
protection.
They may restrict owning of pets, color of paint,
size of mailbox, outdoor signs or lawn
decorations, even having children!
These restrictions are enforceable, even if
stricter than the Constitution, because the
owners voluntarily accept them.
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The United States Constitution,
the greatest legal document ever
written, is a series of
compromises about the power of
government. The compromises
affect every citizen and company
in the nation, every day.
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THE END