Constitutional Law

Give me the liberty to know, to utter, and to argue freely

according to conscience, above all liberties.John Milton, English poet, 1644

One in a million◦ Constitution of the United States is the greatest

legal document◦ Drafted in 1787, still successful today◦ Short and easy to read◦ Permitted interpretation◦ Versatility

First nation in modern history founded on the idea that:◦ People could govern themselves, democratically

States were governing themselves under the Articles of Confederation - Gave the central government no real power

Framers set out to draft a new document and to create a government

The Constitution is a series of compromises about power

Separation of powers◦ One method of limiting power:

Create a national government divided into three branches Executive, legislative, and judicial Each independent and equal

Individual rights◦ Bill of rights - First 10 amendments were added to

the Constitution

Congressional power◦ Members create statutes that influence jobs◦ Article I, section 8 - Lists the 18 types of statutes

that Congress is allowed to pass◦ National government may create currency

Commerce clause: Part of Article I, Section 8, that gives Congress the power to regulate commerce with foreign nations and among states

Interstate commerce◦ Power to bring coordination and fairness to trade

among the states◦ Stop the states from imposing the taxes and

regulations that were wrecking the nation’s domestic trade

Substantial effect rule◦ Congress may regulate any activity that has a

substantial economic effect on interstate commerce

Current application: The affordable healthcare act◦ May result in as many as 30 million uninsured

Americans gaining health care coverage State legislative power

◦ Dormant aspect holds that a state statute which discriminates against interstate commerce is almost always unconstitutional

Supremacy clause: Constitution, and federal statutes and treaties, shall be the supreme law of the land◦ Conflict between federal and state statutes -

Federal law preempts the field◦ No conflict - Congress demonstrates that it

intends to exercise exclusive control over an issue, federal law preempts

Executive power◦ Article II of the Constitution defines executive

power◦ President’s basic function is to enforce the

nation’s laws

◦ Three of the president’s key powers Appointment - Administrative agencies play a role in

business regulation President nominates the heads

Legislation - The president and his advisors can propose bills to Congress and the president can veto bills from Congress

Foreign policy – President: Conducts the nation’s foreign affairs Coordinates international efforts Negotiates treaties Heads the military May not declare war

Judicial power◦ Article III of the Constitution

Creates the Supreme Court Permits Congress to establish lower courts within the

federal court system◦ Federal courts have two key functions

Adjudicating cases - Federal court system hears criminal and civil cases

Judicial review - Power of federal courts to declare a statute or governmental action unconstitutional and void

Judicial review ◦ Judicial activism: A court’s willingness to decide

issues on constitutional grounds◦ Judicial restraint: A court’s attitude that it

should leave law-making to legislators

Constitutional rights protect only against governmental acts

Incorporation: Rights explicitly guaranteed at one level are incorporated into rights that apply at other levels

Political speech◦ Protected unless it is intended and likely to create

imminent lawless action Government may regulate the time, place,

and manner of protected speech Morality and obscenity

◦ Obscenity has never received constitutional protection

Commercial speech: Communication that has the dominant theme of proposing a business transaction◦ Government may regulate other commercial

speech: Provided that the rules are reasonable, and directed

to a legitimate goal

Procedural due process: Government must go through procedures to ensure that the result is fair◦ Steps in analyzing a procedural due process

Is the government attempting to take liberty or property?

How much process is due? Neutral factfinder Attachment of property Government employment Academic suspension

The Takings Clause: When the government takes property for public use, it has to pay a fair price◦ Eminent domain: The power of the government

to take private property for public use Substantive due process: Some rights

are so fundamental that the government may not take them from us at all

Equal protection clause: Requires the government to treat people equally

◦ Classifications Minimal scrutiny: Economic and social regulation

Government actions that classify people or corporations on these bases are almost always upheld

Intermediate scrutiny: Gender Government classifications are sometimes upheld

Strict scrutiny: Race, ethnicity, and fundamental rights Classifications based on any of these are almost never

upheld