BLAW W2

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Chapter 5

Constitutional Law

The United States Constitution

This document, although relatively brief, forms the basis for all American law.
Each of the following must be consistent with the U.S. Constitution:
All federal statutes enacted by Congress
All state statutes enacted by state legislatures
All ordinances enacted by local municipalities
All administrative laws and decisions
Every court decision in every case in every jurisdiction

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

Constitutional Powers

Both the federal government and the fifty states’ governments have the power to regulate the people who reside within their jurisdictions.
Also, each state has its own state constitution.
This system of government is known as federalism.
The federal Constitution and state constitutions confer two types of powers on the governments:
Express powers
Implied powers

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

Express and Implied Powers

Express powers are those that are specifically stated.
Example: The federal Constitution grants the federal government the explicit power to raise an army and to impose taxes.
Implied powers are those that have arisen as a result of interpretation of the express powers by the courts.
Example: The federal Constitution gives Congress the implied power to create an agency to explore outer space.

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

Constitutional Amendments

Amendments to the Constitution were necessary to address the changing needs of the country and its people in the years following the drafting of the original document.

The Constitution has been amended, or changed, 27 times, and it will probably continue to be amended.
However, the amendment process in an onerous one.

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 74

Constitutional Amendments (cont.)

Each amendment must be proposed by a two-thirds vote of Congress and ratified, or approved, by the legislatures of three-fourths of our 50 states.
It is also possible for an amendment to be initiated by the states.
The first ten amendments are referred to as the Bill of Rights.

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

Judicial Review

Both federal and state courts have the power to determine whether laws enacted by legislatures or decisions made by lower courts violate the provisions of the Constitution.
If a court decides that a law is contrary to the Constitution, the law can be declared unconstitutional and, therefore, invalid.
The process of deciding if a law is contrary to the Constitution is known as judicial review.

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

The Doctrine of Preemption

If a state or local law is inconsistent with the federal law, the state or local law may be declared unconstitutional, and the federal law must be followed.
This is known as the doctrine of preemption, that is, the federal law preempts, or supersedes, the state law.
This doctrine only applies in instances where the law in question pertains to a power that the Constitution has expressly or implicitly granted to Congress.

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Learning Outcome 5-1: Explain the difference between express and implied powers; describe the process used to amend the Constitution; and explain judicial review and the doctrine of preemption.

Page: 72

The Commerce Clause

This clause grants Congress the power to regulate commerce among states in order to prevent the restriction of trade activity.

Courts have held that the term commerce, as used in the Constitution, is defined as the movement or exchange of persons, goods, or information between states.

Learning Outcome 5-2: Discuss the main provisions of the commerce clause, the full faith and credit clause, and the supremacy clause.

Page: 73

The Commerce Clause (cont.)

The commerce clause creates one of the most fundamental powers in the Constitution.

Some judges and legal scholars take a broad and expansive view of this clause.
Others are strict constructionists, maintaining that many of he matters that Congress now legislates would be more appropriately left to the states.

Learning Outcome 5-2: Discuss the main provisions of the commerce clause, the full faith and credit clause, and the supremacy clause.

Page: 73

The Full Faith and Credit Clause

The full faith and credit clause reads as follows:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

This clause mandates that each state respect and enforce both the judgments awarded by courts in other states, and the statutes and case law of other states.

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Learning Outcome 5-2: Discuss the main provisions of the commerce clause, the full faith and credit clause, and the supremacy clause.

Page: 74

The Full Faith and Credit Clause

The Supreme Court has made a distinction in the level of the respect that must be given.
A great deal of respect must be given to the judgments awarded by courts in other states;
Whereas a lower level of respect must be given to another state’s statutes and case law.
Example: A handful of states provide that couples who are the same sex may marry within those states. It is undecided whether states that do not allow same sex marriages will be required to recognize same sex marriages performed in other states, pursuant to the full faith and credit clause.

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Learning Outcome 5-2: Discuss the main provisions of the commerce clause, the full faith and credit clause, and the supremacy clause.

Page: 74

The Supremacy Clause

This clause requires state judges to follow federal law in the event of a conflict with state law.
Also under this clause, the provisions of U.S. treaties trump any conflicting state regulations.
According to the supremacy clause, a Supreme Court ruling that involves a constitutional issue is binding on state courts.

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Learning Outcome 5-2: Discuss the main provisions of the commerce clause, the full faith and credit clause, and the supremacy clause.

Page: 74

The First Amendment

Three important parts of this Amendment are:

The Establishment and Free Exercise Clauses Relating to Religion.

Freedom of Speech

Freedom of the Press

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Learning Outcome 5-3: Describe three provisions of the First Amendment.

Page: 75

The First Amendment
The Establishment and Free Exercise Clauses Relating to Religion

The First Amendment right to freedom of religion is divided into two interconnected pieces:
(1) the establishment clause, (2) the free exercise clause.
The establishment clause makes it unconstitutional for government to recognize a single national religion, or even to create policies or practices that favor one religion over another.
The free exercise clause requires that government not interfere with an individual’s practicing the religion of his or her choice.

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Learning Outcome 5-3: Describe three provisions of the First Amendment.

Page: 75

The First Amendment
Freedom of Speech

The First Amendment’s freedom of speech clause provides Americans with a fundamental right.
While individuals have the right to freedom of political or religious speech, this right should be guarded most zealously when the speech is unpopular, upsetting, ignorant, or even anger-provoking.
Thus, speech that is sexist, racist, ageist, or otherwise offensive is also protected.
Example: The act of burning the American flag is considered protected speech and laws prohibiting such are unconstitutional.

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Learning Outcome 5-3: Describe three provisions of the First Amendment.

Page: 75

The First Amendment
Freedom of Speech (cont.)

All speech, however, is not protected under the First Amendment.
The following are examples of speech that may constitutionally be limited or silenced:
Speech that incites imminent danger
Child pornography
Speech that is legally obscene
Speech that threatens physical harm
Speech that is defamatory, including both slander and libel
Interference with works protected by trademark, patent, or copyright law
Commercial speech, such as deceptive advertising

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Learning Outcome 5-3: Describe three provisions of the First Amendment.

Page: 75

The First Amendment
Freedom of the Press

It is unconstitutional for a state or municipality to pass a law limiting what a journalist could write or say about a political candidate or issue.
However, not all laws pertaining to the news media are unconstitutional.
Example: It is constitutionally acceptable for government to tax newspapers.

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Learning Outcome 5-3: Describe three provisions of the First Amendment.

Page: 75

The Second Amendment

This Amendment provides Americans with the “right to bear arms.”
Generally, this term has been interpreted to mean “to carry firearms.”
While there are some compelling arguments to suggest that the term "to bear arms" applies only to the military use of arms, most courts now agree that this right also applies to private citizens.
The right to bear arms is not unlimited, however.
The fire power of some modern weapons greatly exceed that of the weapons available when the Constitution was drafted.

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Learning Outcome 5-4: Discuss the current state of constitutional law with respect to the Second Amendment.

Page: 76

The Fourth Amendment

The Fourth Amendment requires that police officers and other government officials (but not private citizens) must have probable cause in order to be able to conduct a personal or property search.
Probable cause may be defined as a reasonable belief that a prudent police officer must have that a suspect has committed, is committing, or is about to commit a crime, thereby giving the officer the authority to conduct a search.
All other unreasonable searches and seizures are unconstitutional and invalid.
Example: A detention of longer than 48 hours after a criminal arrest

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Learning Outcome 5-5: Describe the requirement of probable cause under the Fourth Amendment.

Page: 77

Example: The Fourth Amendment

Facts:
A police chief, concerned that police officers were using their text pagers mostly for personal messages, decided to read some of them.
The chief discovered that most of the messages sent by one of the officers were personal in nature.
After learning that his messages had been read, the officer sued both the chief and the city, claiming that this action violated the Fourth Amendment.

Because the search by the police chief was motivated by a legitimate work-related purpose and because it was not excessive in scope, the Supreme Court considered the search to be reasonable. (City of Ontario v. Quon)

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Learning Outcome 5-5: Describe the requirement of probable cause under the Fourth Amendment.

Page: 77

The Fifth Amendment

The Fifth Amendment contains four distinct protections from governmental actions.
Double Jeopardy – the Fifth Amendment does not allow a court to try a criminal defendant more than once for the same offense, whether the first trial has ended in an acquittal or a conviction.
Self Incrimination – the Fifth Amendment provides individuals with the right to refuse to divulge information that could later be used against them in a criminal proceeding. This is applicable to any federal or state legal proceeding.

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Learning Outcome 5-6: Identify and explain four protections under the Fifth Amendment.

Page: 78

The Fifth Amendment (cont.)

Due Process – the Fifth Amendment requires that all persons be granted both procedural and substantive due process.
Procedural Due Process mandates that all persons affected by a legal proceeding receive notice of its subject matter, time, and place and that these proceedings be conducted by a judge who is fair and impartial.
Substantive Due Process mandates that government not unreasonably interfere with an individual’s life, liberty, or property rights.
Eminent Domain – the Fifth Amendment permits the government to take private property, both real and personal, for a public purpose so long as the owner receives just compensation.

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Learning Outcome 5-6: Identify and explain four protections under the Fifth Amendment.

Page: 78

The Eighth Amendment

The Eighth Amendment restricts both the severity and the types of punishments that may be imposed by federal and state governments.
The Supreme Court has ruled that punishments must be proportionate to the crime committed. The following are examples of punishments prohibited under the Eighth Amendment:
A person convicted of armed robbery is sentenced to death.
A person convicted of shoplifting is sentenced to life in prison.
A minor is sentenced to life in prison for stealing a car.
A person convicted of assault and battery is sentenced to death.

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Learning Outcome 5-7: Provide examples of cases that are addressed by the Eight Amendment.

Page: 78

The Eighth Amendment (cont.)

This amendment prohibits certain barbarous types of punishment, such as burning at the stake, regardless of the type of crime committed.
In addition, the Eighth Amendment mandates that people accused or convicted of crimes are not to be subject to excessive bail.
However, the Supreme Court has ruled that in extreme cases a court may deny bail altogether.
Finally, the Eighth Amendment prevents the government from imposing an unjustly harsh fine on a person convicted of a crime.
Grossly disproportionate fines can be overturned.

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Learning Outcome 5-7: Provide examples of cases that are addressed by the Eight Amendment.

Page: 79

The Fourteenth Amendment

Under the Fifth Amendment, it is unconstitutional for a state to deny an individual due process.
The Fourteenth Amendment also provides that when states pass laws they must treat all individuals equally.
Laws that do not treat all persons equally are unconstitutional unless the state can demonstrate that the laws pass one of the following tests: (1) rational basis, (2) intermediate scrutiny, or (3) strict scrutiny.

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Learning Outcome 5-8: Explain the due process and equal protection clauses of the Fourteenth Amendment.

Page: 79

The Fourteenth Amendment (cont.)

The rational basis test is a standard that measures whether the legislature had a reasonable, and not an arbitrary, basis for enacting a particular statute.
Used if the law places restrictions on economic or property interests, or if the law discriminates on a basis other than race, sex, national origin, and related categories

The intermediate scrutiny test is a standard that measures whether a particular statute is substantially related to an important government objective.
Used If the law discriminates on the basis of sex, or if the law restricts commercial speech

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Learning Outcome 5-8: Explain the due process and equal protection clauses of the Fourteenth Amendment.

Page: 80

The Fourteenth Amendment (cont.)

The strict scrutiny test is a standard that measures whether the legislature had a compelling interest for enacting a particular statute.

Used if the law discriminates on the basis of race or national origin, or if the law infringes on a fundamental constitutional right

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Learning Outcome 5-8: Explain the due process and equal protection clauses of the Fourteenth Amendment.

Page: 80

The Sixteenth Amendment

The Sixteenth Amendment granted the federal government power to impose and collect a tax on individuals’ incomes.
The Internal Revenue Service (IRS) is a federal agency established by Congress and tasked with administering and collecting federal income tax under the Sixteenth Amendment.
The IRS engages in the creation of tax laws, the enforcement of these laws, and improving taxpayers’ understanding of the laws.

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Learning Outcome 5-9: Discuss how the Internal Revenue Service administers to the collection of income taxes pursuant to the Sixteenth Amendment.

Page: 80