Business Law Chapter 4 Constitutional Authority to Regulate Business

U.S. Constitution Supremacy Clause - Article VI

"This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

The United States Supreme Court has held that material is obscene if... (Miller v. California)

(1) the average person finds that it violates contemporary community standards; (2) the work taken as a whole appeals to a prurient interest in sex; (3) the work shows patently offensive sexual conduct; and (4) the work lacks serious redeeming literary, artistic, political, or scientific merit.

explain the doctrines of equal protection

- 14th amendment government cannot enact laws that treat "similarly situated" people differently.

what is doctrine of due process ?

- 5th 14th amendment, no person shall be deprived of "life, liberty and property" WITHOUT the due process of law. 1. substantive due process states government must be clear and not broad on law. (can a reasonable person understand the law?" 2. procedural due process - government musty give proper notice and the opportunity to be heard.

what is required before the government is authorized to search you or your property

- a search warrant from a judge and must have probable cause

explain how freedom of religion is protected in the the first amendment

- federal, state, local governments MUST be neutral towards religion - there are 2 different clauses 1. establishment clause which prohibits the government of establishing a state religion or promoting one 2. free exercise clause - prohibits the government of interfering with religion

how is commercial speech limited

- more likely to be involved with commerce (advertising)

explain how the freedoms of speech are protected in the first amendment

- the right to engage in oral, written and symbolic speech. broken down into 3 categories. 1. Fully protected speech—speech that the government cannot regulate 2. Limited protected speech—speech that cannot be forbidden, but can be subject to time, place, and manner restrictions 3. Offensive speech—speech that is offensive to many members of society Commercial speech—speech used by businesses, such as advertising Unprotected speech—speech that is unprotected by the First Amendment and that may be totally forbidden by the government Dangerous speech—such as yelling "fire" in a crowded theater where there is no fire Fighting words—words that are likely to provoke a hostile or violent response from the average person Speech that incites the violent or revolutionary overthrow of the government (as opposed to abstract teaching about such concepts) Defamatory language Child pornography Obscene speech—the definition of obscene speech is very subjective

Describe state and local governments' authority to regulate commerce under their "police power."

- the states have power to control intrastate and interstate commerce within their borders also called police powers -State and local laws cannot unduly burden interstate commerce; if they do, they are an unconstitutional violation of the Commerce Clause.

what is the doctrine of separation of powers

-provides checks and balances of the 3 branches legislative (congress) can enact a law but the executive branch (president) has constitution authority to veto that law. -executive branch is responsible for foreign affairs, but treaties with foreign government require decision from the senate. -congress determines jurisdiction over the federal courts. -judicial branch has power to hold actions of the other 2 branches.

what is the supremacy clause and when does it apply ?

-provides that the constitution, laws and treaties of the US are the "supreme law of the land" -it is applied when there is a direct conflict between federal and state law, state law is invalid. Any state or local law that "directly and substantially" conflicts with valid federal law is preempted under the Supremacy Clause.

CHAPTER 4 REVIEW QUESTIONS describe the concept of federalism

-the national government and states share sovereign power

explain the federal governments authority to regulate interstate commerce and foreign commerce

-under the commerce clause, the federal government has the power to regulate foreign commerce (state regulation of foreign commerce is prohibited) -the commerce clause also gives the federal government the power to regulate interstate commerce. (The regulated activity does not itself have to be in interstate commerce.)

Wickard v. Filburn (1942)

...

Heart of Atlanta Motel v. US

1964. Landmark Case. Supreme Court upheld the federal government's authority to prohibit racial discrimination in public facilities. Including local motels, based on its powers under the commerce clause.

Full Faith and Credit Clause

A clause in Article IV, Section 1, of the Constitution that provides that "Full Faith and Credit shall be given in each State to the Public Acts, Records, and Judicial Proceedings of every other State." The clause ensures that rights established under deeds, wills, contracts, and the like in one state will be honored by the other states and that any judicial decision with respect to such property rights will be honored and enforced in all states. Common theme: clauses promote interstate harmony, business

Filtering Software

A computer program that includes a pattern through which data are passed. When designed to block access to certain Web sites, the pattern blocks the retrieval of a site whose URL or key words are on a list within the program.

Preemption

A doctrine under which certain federal law preempt, or take precedence over, conflicting state or local laws.

Federal Form of Government

A system of government in which the states form a union and the sovereign power is divided between a central government and the member states.

Search Warrant

An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

Privileges and Immunities Clause

Article IV, Section 2, US Constitution. "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In other words, a state may not treat citizens of other states differently from citizens of its own state without a substantial reason that is substantially related to the purpose of the rule It prevents a state from imposing unreasonable burdens on citizens of another state - particularly with regard to means of livelihood or doing business. Applies to basic and essential activities (e.g., transferring property, seeking employment) -> substantial reason for treating non-residents differently

Supremacy Clause

Article VI, US Constitution. Provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." When there is a direct conflict between a federal law and a state law, the state law is rendered invalid.

Unprotected Speech

Constitutional protection has never been afforded to certain classes of speech— defamatory speech: libel, slander threats child pornography "fighting" words: speech likely to incite others to violence Falsely shouting fire in a crowded theater Obscene material

Gibbons v. Ogden (1824)

Defined the power to regulate interstate commerce. In his decision, Marshall defined the word commerce as used in the commerce clause to mean all commercial intercourse—that is, all business dealings that affect more than one state. Clause covers activities that substantially affect interstate commerce. Marshall used this opportunity not only to expand the definition of commerce but also to validate and increase the power of the national legislature to regulate commerce. By implication, this means that a state cannot regulate activities that extend beyond its borders, such as out-of-state online gambling operations that affect the welfare of in-state citizens. It also means that state regulations over in-state activities normally will be invalidated if the regulations substantially burden interstate commerce. Today, the national government continues to rely on the commerce clause for its constitutional authority to regulate business activities.

Ninth Amendment

Establishes that the people have rights in addition to those specified in the Constitution.

Tenth Amendment

Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." The regulatory powers of the state/police powers flow from this.

First Amendment

Freedoms of Religion, Speech, Press. Right to assemble peacefully, and to petition the government.

Sixth Amendment

Guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and with counsel. Right to cross-examine witnesses against him, and solicit testimony from witnesses in his favor.

Seventh Amendment

Guarantees the right to a trial by jury in a civil case involving at least twenty dollars.

Fifth Amendment

Guarantees the right to indictment by grand jury, due process of law, and to fair payment when private property is taken for public use. Prohibits self-incrimination and double jeopardy.

Same-Sex Marriage

Historically, courts have ruled that a state need not give full faith and credit to a marriage that it contends violates public policy. But there is at least one federal case that would suggest a different result: in August 2007, a federal appeals court held that, "Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples." Finstuen v. Crutcher, 2007 U.S. App. Lexis 18500 (CA10 Aug. 3, 2007) And in June 2013, the US Supreme Court struck down the Federal Defense of Marriage Act-United States v. Windsor

Symbolic Speech

Nonverbal conduct that expresses opinions or thoughts about a subject. Symbolic speech is protected under the First Amendment's guarantee of freedom of speech.

State Regulatory Powers

Often referred to as Police Powers.

Interstate Privileges and Immunities Clause

Often referred to as the Privileges and Immunities Clause

Police Powers/ Regulatory Powers of the State

Powers possessed by states as part of their inherent sovereignty. Flows from the 10th Amendment. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.

Eighth Amendment

Prohibits excessive bails and fines, as well as cruel and unusual punishment.

Third Amendment

Prohibits the lodging of soldiers in any house without the owner's consent.

Fourth Amendment

Prohibits unreasonable searches and seizures.

Substantive Due Process

Protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them. Limits what the government may do in its legislative and executive capacities.

Probable Cause

Reasonable grounds to believe the existence of facts warranting certain actions, such as the search or arrest of a person.

Second Amendment

Right to bear arms.

Dormant Commerce Clause

Since the national government has the exclusive authority to regulate commerce among states, this means that the states do not have the authority to regulate interstate commerce. This "Negative" aspect is called the...

U.S. Constitution Necessary and Proper Clause - Article I, section 8, clause 18

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Bill of Rights

The first ten amendments to the US Constitution

Procedural Due Process

The government must give a person proper notice and an opportunity to be heard.

Federalism

The national government and the states share sovereign power.

Checks and Balances

The national government is composed of three separate branches: the executive, the legislative, and the judicial branches. Each branch of the government exercises a check on the actions of the others.

Tri-Partite Government

The national government of the United States of America is composed of three separate branches: Article I: The Legislative Branch (i.e., Congress): Creates laws Article II: The Executive Branch (i.e., the President): Enforce laws Article III: The Judicial Branch (i.e., the Supreme Court and the federal court system): Interprets laws Each of which acts as a check on the others' power.

Commerce Clause

The provision in Article I, Section 8, of the US Constitution that gives Congress the power to regulate interstate commerce,to prevent states from enacting laws that would interfere with commerce among the states. "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This provision has had a greater impact on business than any other provision in the Constitution. Since 1824, the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both: Interstate Commerce (i.e., commerce between two or more states) and Intrastate Commerce (i.e., commerce within a single state), as long as the intrastate commerce at issue "substantially affects" interstate commerce.

Establishment Clause

The provision in the First Amendment to the US Constitution that prohibits Congress from creating any law "respecting an establishment of religion."

Free Exercise Clause

The provision in the First Amendment to the US Constitution that prohibits Congress from making any law "prohibiting the free exercise" of religion.

Equal Protection Clause

The provision in the Fourteenth Amendment to the Constitution that guarantees that no state will "deny to any person within its jurisdiction the equal protection of the laws." This clause mandates that state governments treat similarly situated individuals in a similar manner.

Due Process Clause

The provisions of the Fifth and Fourteenth Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.

To draft the US Constitution

The purpose of the Constitutional Convention. (1787)

Executive Branch

This branch enforces the laws. Foreign Affairs President Checked by: Congress must ratify treaties

Judicial Branch

This branch interprets the laws. Supreme Court Checked by: executive appoints judges with the advise and consent of the senate

Legislative branch

This branch makes the laws. Congress Checked by: Executive Veto, Judicial Review

Separation of Powers

To guard against the national government abusing its powers, three branches were created. Each branch performs a separate action, and no branch may exercise authority of another branch.

Unprotected Speech: Online Obscenity

What's the relevant community standard? Draft legislation that limits obscenity, but is not overbroad. - Children's Internet Protection Act - Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT)

Confederal Form of Government

With this type of government the states had the authority to govern themselves and the national government could exercise only limited powers.

Meta Tags

Words inserted into a Web site's key-words field to increase the site's appearance in search engine results.

Restrictions on Commercial Speech

Would be considered valid as long as it meets three criteria. 1. It must seek to implement a substantial government interest. 2. It must directly advance that interest 3. It must go no further than necessary to accomplish its objective.

Constitutional Convention

established a federal form of government which shares power between national and state governments