Business Law // Chapter 4: Business and the Constitution
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.
Wickard v. Filburn (1942)
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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