Chapter 7-Constitutional Law & Business

The ConstitutionThe Constitution

The Constitution establishes a The Constitution establishes a national government, defines the national government, defines the federal-state relationship, identifies federal-state relationship, identifies and protects personal liberty, and and protects personal liberty, and enables the government to enables the government to perpetuate itself.perpetuate itself.

It establishes the checks & balances It establishes the checks & balances between the three branches of between the three branches of government.government.

The Parts of the Constitution

Article I: Creates Congress and gives it powers. Specifically Section 8, Clause 3: Gives Congress power to regulate commerce (the Commerce Clause)Article II: Creates the executive branch and gives it powers, which is controlled by the president.Article III: Creates our federal court systems and gives it limited powers over certain issues (other issues must go to the individual state courts)Articles IV and VI: Establishes the principal of federalism and divides up powers between the federal and state governments. (The very important Supremacy Clause is located in Article VI, Clause 2 which provides that federal law prevails over state law if there is a direct conflict)Article V: Provides for amendments to the ConstitutionFirst 10 Amendments: Are known as the “Bill of Rights” protecting individual freedoms.

The 1st AmendmentThe 1st Amendment The 1st Amendment prohibits The 1st Amendment prohibits the establishment of state the establishment of state religion &guarantees its free religion &guarantees its free exercise. However, the exercise. However, the separation between church/ separation between church/ state has been difficult to state has been difficult to define precisely.define precisely.

The issue of the separation The issue of the separation of the church & state is of the church & state is frequently raised in context of frequently raised in context of public schools, such as in the public schools, such as in the debate about the role of debate about the role of prayer in public schools.prayer in public schools.

Freedom of SpeechFreedom of Speech

Freedom of speech is indispensable to Freedom of speech is indispensable to the American way of life. No other right the American way of life. No other right is protected more by the Supreme Court. is protected more by the Supreme Court. However, while the government is However, while the government is generally not able to regulate content of generally not able to regulate content of speech, it is able to regulate context if speech, it is able to regulate context if the limits are justified by a compelling the limits are justified by a compelling state interest. state interest. For example, a state law For example, a state law prohibiting the Neo-Nazi Youths from prohibiting the Neo-Nazi Youths from distributing anti-Jewish literaturedistributing anti-Jewish literature

would be invalid.would be invalid. In my opinion...

You’rewrong!

Vote himout now!!

Sit on it!

I think...

Idisagree

Why?

Commercial Commercial SpeechSpeech

Commercial speech (speech with a profit-Commercial speech (speech with a profit-making motivation) is entitled to First making motivation) is entitled to First Amendment protection, Amendment protection, although less although less protection than other types of speech such as protection than other types of speech such as religious or political communicationreligious or political communication. . Companies have a right to Companies have a right to “commercial free speech” but the “commercial free speech” but the government can regulate this speech in government can regulate this speech in accordance with the legal test called the accordance with the legal test called the “Central Hudson Test” “Central Hudson Test”

Central Hudson Test Central Hudson Test (to be applied when the government (to be applied when the government tries to restrict commercial speech tries to restrict commercial speech

rights)rights)

Courts will apply the 4 part “Central Hudson”Test to see if a government’s restriction oncommercial speech is constitutional. 1. The subject commercial speech must promote a lawful activity & not be misleading. 2. The asserted governmental interest must besubstantial3. The government regulation must directly advance The government’s interest4. The government’s regulation must not be more extensive then necessary?

Fourth AmendmentFourth Amendment The Fourth Amendment prohibits the government form The Fourth Amendment prohibits the government form

committing “unreasonable” searches & seizures. Our committing “unreasonable” searches & seizures. Our courts are constantly weighing peoples’ rights to be free courts are constantly weighing peoples’ rights to be free from unreasonable searches and the government’s need to from unreasonable searches and the government’s need to conduct searches to help in coping with American’s crime conduct searches to help in coping with American’s crime problem.problem.

The exclusionary rule keeps out evidence during trial The exclusionary rule keeps out evidence during trial which is obtained in violation of a person’s Fourth which is obtained in violation of a person’s Fourth Amendment rights.Amendment rights.

Warrants issued by a judge are generally needed before Warrants issued by a judge are generally needed before police can search for narcotics, however if certain police can search for narcotics, however if certain circumstances exist a warrant is not needed (incident to circumstances exist a warrant is not needed (incident to arrest, impractical to arrest, impractical to do so.) do so.)

4th amendmentOnly appliesAs to govern-Mental Searches &Seizures—notPrivate peopleOr companies

General Warrants

TakingsTakings

The “Takings” clause of the Fifth The “Takings” clause of the Fifth Amendment prohibits the Amendment prohibits the government’s taking of property for government’s taking of property for a public purpose without just a public purpose without just compensation to the owner.compensation to the owner.

1. Government must do the 1. Government must do the “takings”“takings”

2. For a “public purpose” 2. For a “public purpose” (This element has (This element has been modified to allow for private property being seized for use been modified to allow for private property being seized for use by developers— U.S. Sct. Court Case of Kelo v. City of New by developers— U.S. Sct. Court Case of Kelo v. City of New London on 6/23/05, dealing with Connecticut Water Front Home London on 6/23/05, dealing with Connecticut Water Front Home Owners Houses taken by the city for commercial development. )Owners Houses taken by the city for commercial development. )

3.3. “Just compensation” must be “Just compensation” must be paid to paid to owner. owner.

Once Upon A Time…..

2.2 Acres8 million

Twin Tower600 Apt-Complex

Downtown Miami--1998

Hmmmmmm…

OwnerExpert

GovernmentAgent

2000 year old Tequesta Indian Rock Formation38’ in diameter

State of Florida seizes land and makes several offers ranging from 14-18 million(to make a park and preserve the site)

Developer demands no less than 50 million!

Was it for a “Public Purpose”?

Was this a Government Taking?

What is “Just Compensation”?

26.7Million

JUDGE JUDY READY TO RULE--

Case: Kelo v. City of New LondonKelo v. City of New London ---- New London wanted to Take the waterfront homes from residents and give the propertyTo a developer to make it into a commercial project which wouldGenerate larger tax dollars, owners objected as such use was not For a “public purpose”.

Pack Up and Move—Government can take

Your property and giveIt to others who canPut it to better use!

Government Takings under the 5th Amendment can come in all shapes and forms--not necessarily a “physical taking of land”

Regulations limiting size/height of buildings

Regulations requiring barsto close early at night

Regulations limiting billboardson the side of roadways.

Due ProcessDue Process The Due Process clauses are found in the The Due Process clauses are found in the

5th Amendment (applicable to the 5th Amendment (applicable to the federal government) & 14th Amendment federal government) & 14th Amendment (applicable to the state government) a (applicable to the state government) a and prevents the governments from and prevents the governments from depriving citizens “life liberty or property depriving citizens “life liberty or property w/o due process.” It addresses w/o due process.” It addresses “fundamental due process”—fairness in “fundamental due process”—fairness in both procedural and substantive rightsboth procedural and substantive rights

Equal ProtectionEqual Protection

The equal protection clause forbids The equal protection clause forbids the governments (federal & state) the governments (federal & state) from discriminating in favor of one from discriminating in favor of one group or class of persons over group or class of persons over another.another.

Free at last, Free at last,

……...

““A Living Document”A Living Document”

Do you think that our Constitution Do you think that our Constitution should be interpreted in such a way to should be interpreted in such a way to accommodate our society as it is today?accommodate our society as it is today?

Or, are you a strict constructionist in Or, are you a strict constructionist in which you believe the framers of the which you believe the framers of the Constitution had never contemplated Constitution had never contemplated the application of these clauses to our the application of these clauses to our present circumstances.present circumstances.

Choice Of Law Clause