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Class Outline MGT 201

2/6/18

I. Overview for tonight’s class

II. Chapter 5 The Constitution

A. Articles of Confederation- this was the first constitution of the US and it established a limited federal government. Two major shortcomings: (1) lacked the power to tax so government was frequently near bankruptcy; and (2) left the power to regulate commerce to the states so no uniformity.

B. Current Constitution was adopted in 1787- located in Chap 14 of your textbook.

1. Preamble-

https://www.youtube.com/watch?v=30OyU4O80i4

2. Main body of the Constitution is concerned with structure including the separation of powers= division of government authority among the separate branches of government

a. legislative power to Congress (enact laws)

b. enforcement of laws to Executive branch/President

c. Interpretation of laws to Judiciary

3. Article I- grants specific powers to Congress/ the legislative branch; a bicameral legislature = 2 houses

a. House of Representative- 435 members proportionate to a state’s population; elected for 2 year terms; led by the Speaker of the House

b. Senate- 2 members per state for 6 year terms

4. Article I Section 8

(a)Commerce Clause-Congress has the power to regulate commerce;

(b) to make money (currency);

(c) to establish uniform law on naturalization= the process to become a US citizen;

(d) to establish uniform law on bankruptcies;

(e) to tax;

(f) to spend public revenue to meet broad objective = spending power

(g) to regulate patents and copyrights = copyright clause

(h) to make all laws which are necessary and proper to carry out these powers and other powers of gov’t = necessary and proper clause

5. Much debate over the scope of Congressional authority

a. Civil Rights Act of 1964 (prohibiting discrimination based on race, national origin and sex) was enacted with Congress relying on the Commerce Clause to pass the law. Heart of Atlanta Motel v. United States (1964)

b. ACA- Affordable Care Act upheld finding that the mandate was a tax and therefore constitutional under Article I section the power to collect taxes. National Federation of Independent Business v. Sebelius ,  (2012)

c. National Minimum Drinking Age Act- required states to adopt a minimum age of 21 to purchase/possess alcohol. Congress withheld federal highway funds from any state that did not pass the “state” law.

6. Article II- establishes the executive branch of government- deliberately vague

7. Article III- establishes the judicial branch through our court system

8. Article VI- establishes the Supremacy Clause. The doctrine of preemption = permits federal law to trump a conflicting state law

C. Bill of Rights-the first ten amendments to the Constitution- almost immediately passed upon finalizing the Constitution, giving citizens certain inalienable rights. Tourists and international students are also entitled to full protection as well.

1. First Amendment- freedom of speech, religion and the press

2. Second Amendment- right to bear arms

3. Third Amendment- no soldier shall stay in a home without the owner’s consent in a time of peace.

4. Fourth Amendment- right against unreasonable search and seizures

5. Fifth Amendment- right to remain silent, no double jeopardy, and due process

6. Sixth Amendment- right to a speedy trial right to a jury trial (for criminal cases), right to counsel, right to confront witnesses

7. Seventh Amendment- right to a jury trial in certain civil cases

8. Eighth Amendment- right not to endure cruel and unusual punishment

9. Ninth Amendment- rights not conferred by the Constitution shall be retained by the people.

10. Tenth Amendment- reserves state power for those things not delegated to the federal government.

D. First Amendment-

1. Freedom of Religion Two clauses on religion-

a. Establishment Clause = prohibits the government from establishing a religion

b. Free Exercise Clause= prohibits government from preventing the free exercise of religion

c. Inherent conflict between the two clauses – particularly if free exercise is interpreted to mean religion can be practiced freely in places like public schools or government buildings

d. Wall of Separation= term coined by Thomas Jefferson to create a separation between church and state.

2. Freedom of Speech

a. Types of speech that enjoy protection

(1)Courts grant most deference to political speech = any speech dealing with politics or political figures (even if criticism)

(2)Symbolic speech (a form of political speech)= speech that is displayed or performed instead of spoken – ie flag burning

(3) Commercial speech= speech through corporations can take the form of (a) advertising (b) press releases and (c) campaign contributions and each has varying degrees of protection

3. Historically courts found that corporations had no protection under the First Amendment.

1. 2002 S.Ct. agreed to hear the case against Nike to determine whether or not press releases issued over sweatshop conditions in foreign factories were more like political speech protected by First Amendment. Case settled.

1. 2010 S.Ct held that corporations are persons and therefore entitled to engage in political speech. Four dissenting opinions around the notion that if a corporation can’t vote, it should not be allowed to influence elections.

4. Types of speech that do not enjoy protection:

(1) speech that incites panic – yelling fire in a crowded theater

(2) defamation= false statements that damage someone’s credibility or reputation- seen in two forms; libel= written and slander= spoken

(3) obscene speech

(4) threats or hate speech

Note: even though these types of speech don’t enjoy protection once spoken, doctrine of prior restraint cannot restrict speech before it is uttered

5. Time place and manner restrictions- can limit protected speech to reasonable parameters in order to further an important governmental interest. ie protests However, any restriction on First Amendment must be no greater than necessary to further governmental interests.

0. Concept of overbreadth= a law that restricts legal conduct as well as illegal conduct will typically be struck down.

E. Other government restrictions

1. Due Process= when government takes life, liberty or property fundamental fairness and decency standards apply– appears in both the Fifth Amendment and the Fourteenth Amendment

1. Applies only to government action not private entities like corporations

1. Procedural due process = government must use fair procedures

1. Substantive due process = legislation itself must be fair

1. Special application- Punitive Damages = damages awarded to plaintiffs to prevent similar conduct by the defendants in the future

Businesses use substantive due process to challenge punitive damage awards.

Example= award of $4million to a plaintiff for damages to his BMW resulting in lost resale value of his car- award not meant to make the plaintiff whole, but instead to punish BMW and prevent future conduct of a similar nature

BMW appealed and S.Ct. found the award was unconstitutional. The court considered 3 factors in making that determination.

1. Equal Protection Clause = requires states to provide equal protection of laws to persons within their jurisdiction. Fourteenth Amendment

1. Implicated when a law limits the liberty of some people but not others a form of discrimination

1. Supreme Court uses a guideline to determine equal protection cases using three standards of scrutiny

1. Minimal Scrutiny – when law involves economics, age, social relations

1. Intermediate Scrutiny- when law involves gender

1. Strict Scrutiny- when law involves race or a fundamental right (to vote, marry, etc.)

1. 6 variables for the standard of review come in pairs:

1. Minimal Scrutiny = government must show law is rationally related to a legitimate state interest

1. Intermediate scrutiny = government must show law is substantially related to an important state interest

1. Strict Scrutiny= government must show law is necessary to promote a compelling state interest

1. Examples

1. Minimal Scrutiny = minimum driving ages; government assistance programs to single indigent parents (and not wealthy individuals)

1. Intermediate Scrutiny = single sex education at Virginia Military Institute; male only military drafts

1. Strict Scrutiny = affirmative action cases (Grutter v. Bollinger)