Chapter 5

Constitutional Law
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The Constitution
Federalism a federal government of enumerated powers.
Those powers not specifically granted to Congress were retained
by the individual states

Supremacy clause: if conflict between fed & state laws,

fed preempts & states is void. Fed can also preempt
if it wants exclusive control. Only if no conflict & not
exclusive to fed is states law allowed to control.
The first 10 amendments (Bill of Rights) guaranteed
many liberties to individual citizens

The Powers granted by the Constitution

Congressional Power
e.g., the commerce clause
Executive Power
e.g., appointment, legislation & foreign policy
Judicial Power
e.g. adjudication & judicial review
Peoples Protected Rights
First 10 amendments (Bill of Rights)

Congressional Power
Found in Article I, section 8
Examples:
Impose taxes, spend money,
create copyrights, support
military, declare war

Congressional Power and

The Commerce Clause
Brief wording: The Congress shall have power
to regulate commerce with foreign nations,
and among the several states.
Broadly interpreted

Wickard v. Filburn
Congress limited the bushels per acre of
wheat a farmer could grow.

Filburn argued his wheat was used on his own

farm as food for livestock and as seed so
Congress had no right to regulate him.

Wickard v. Filburn holding

S.C. said Congress may regulate any activity
that has a substantial economic effect
on interstate commerce. Because the
more he grew for his own use the less hed
purchase elsewhere in interstate commerce.

U. S. vs. Lopez
Congress did not have power under the
Commerce Clause to pass statute
keeping guns and ammunition out of
schools.

Dormant aspect of Commerce Clause

Dormant (or negative) aspect of Commerce
Clause:

A state statute that discriminates against

interstate commerce is almost always
unconstitutional

Granholm v. Heald
Summary of facts
Whats the issue?

How did appellate court rule?

How did Supreme Court rule
and why?

Executive Power
Basic job of President is to enforce nations laws

3 key powers of President:

Appointment (e.g. administrative agency
heads)
Legislation (e.g., introduces bills)
Foreign policy (treaties, commander in chief
but not power to declare war)

Judicial Power
Federal Courts have two key functions:
Adjudication (trying cases)
Judicial Review

Judicial Review the ultimate grab of power

The power of federal courts to declare a
statute or government action unconstitutional
and void.

Judicial Review & Democracy

elect

passes

declare void

PEOPLE =>>> CONGRESS =>>> STATUTE <<<==COURTS

Texas v. Johnson
Summary of facts
Whats the issue?
What did the U.S. Supreme Court decide
and why?
Discussion

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1st Amendment Freedom of Speech Issues

Political speech v. non-political
speech
Time, place, and
manner

Obscenity

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Commercial Speech
Speech that has a dominant theme to
propose a commercial
transaction.
It is protected by 1st Amend,
but govt can regulate it
more than other types of speech.
Commercial speech that is false
or misleading may be outlawed.

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5th Amendment: Due Process & The

Takings Clause
In civil law there are 3 important
limitations on the governments right to
take a persons liberty or property:
The Takings Clause
Procedural due process
Substantive Due Process

Due Process
No person shall be deprived of life, liberty, or
property without due process of the law
Procedural due process: you are entitled to certain
protective procedures before your life, liberty
or property can be taken by the govt.
Substantive due process: whether or
not the govt can take certain substantive
rights from you (fundamental, economic or
social rights).

Procedural Due Process

1. Is the government attempting to take

liberty or property?

2. If yes, how much process is due? At a

minimum, you are entitled to a neutral
fact finder.

The Takings Clause

Prohibits government from taking
private property for public use
without just compensation.

Government can take private property for public

use using power of eminent domain, but it
must compensate for it.

Substantive Due Process

Economic or social right: law presumed valid &
only struck down if arbitrary or irrational

Fundamental right: law presumed invalid and

will be struck down unless necessary to
a compelling government interest.

The Fourteenth Amendment

No State shall deny to any person
within its jurisdiction
the equal protection
of the laws.

The Fourteenth Amendment

What
Economic
and Social
Relations
Gender
Race
Religion
National Origin

Level of
Scrutiny
Minimal

Intermediate
Strict

Rule
Must rationally relate to a
legitimate state interest.
Must substantially relate to an
important government objective.
Must be necessary to promote a
compelling government interest.
(e.g. is it necessary to
classify?)

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