Business law essay questions
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lawCh05ConstitutionalLaw.pptConstitutional Law
- One in a million
Constitution of the United States is the greatest legal document in our legal system
Drafted in 1787, still successful today
No law can conflict with it
Short and easy to read
Permitted interpretation
Versatility
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- 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
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- 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
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- 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
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- 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
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- 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
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- 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
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- Executive power
Article II of the Constitution defines executive power
President’s basic function is to enforce the nation’s laws
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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
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- 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
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- Judicial review-refers to the power of federal courts to declare a statute or governmental action unconstitutional
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
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- Constitutional rights protect only against governmental acts
- Incorporation: Rights explicitly guaranteed at one level are incorporated into rights that apply at other levels
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- 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
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- Commercial speech: Communication that has the dominant theme of proposing a business transaction
Government may regulate commercial speech:
Provided that the rules are reasonable and directed to a legitimate goal
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- 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 fact-finder
Attachment of property
Government employment
Academic suspension
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- 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
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- Equal protection clause: Requires the government to treat people equally
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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
©2015 Cengage Learning. All Rights Reserved. May not be scanned, copied, or duplicated, or posted to a publicly accessible website, in whole or in part.
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