Chapter 4

1st: Freedom of Speech

Freedom of Speech -Applies to federal, state and local government action only -Protects all forms of speech (oral, written and symbolic) Scope of speech protected 1. Freedom not to speak 2. Freedom to speak anonymously 3. Symbolic speech

Freedom of Religon

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Reserved Powers (10th Amendment)

-Powers not specifically delegated are reserved to the state governments -BUT... Congress can induce state government action

Two Types of Due Process

1. Substantive Due Process 2. Procedural Due Process

Substantive Due Process

- asks if the government has an adequate reason for taking a person's life, liberty or property -Fundamental right is limited - Apply strict scrutiny is applied. -All other cases - Rational basis test is applied -Fundamental right: marriage, children, procreation, and everything else under strict scrutiny you apply the strict scrutiny and for everything else you will provide the rational basis test

The Taxing and Spending Powers

-Article I, § 8: Empowers Congress to levy taxes upon all states equally. -Any valid revenue raising tax will be upheld -Congress may tax and spend for the general welfare -No relationship is necessary between what is being taxed and what is being spent (can be for completely different purposes)

Commerce Clause

-Article I, §8: Congress has power "to regulate commerce with foreign nations, and among the several states, and with Indian Tribes." -This provision in the Constitution has had a greater impact on business than any other provision -Intent was to foster free trade and develop a national market among the states

Privileges and Immunities Clause

-Article IV, §2: States can not deprive citizens of other states of the privileges and immunities that it affords its own citizens -I.e. States cannot discriminate against nonresidents -Law is valid if state has substantial justification and there are no less restrictive means to solve the problem -Exception: in state tuition rates can be lower for residents -Protection only applies to citizens -A citizen is a human being in this aspect so corporations are not deemed a citizen so it is lawful for a state to discriminate against a corporation not in their state

Courts Rule on What is Religion?

-Court has interpreted religion to be "a belief that is sincere in a Supreme being" -Court can only interpret whether the beliefs are sincerely held - not whether the beliefs are true or false

Limited Protected Speech

-Government cannot forbid speech (unless it is unprotected), but ... -Government can place reasonable content-neutral time, place and manner restrictions on speech Examples: 1. Offensive Speech: it is speech that offends many members of society, this type of speech will change over time 2. Commercial Speech: it is any advertisement in any form: for example they can't regulate content of billboards but they can regulate the time and place where the billboard, they can regulate when advertisements are shown, an example would be the neon billboard and how the government can regulate the brightness during peak traffic time

Free Exercise Clause

-Government cannot interfere with the free exercise of a religion (freedom to believe and freedom to act) -Freedom is not absolute -Free Exercise clause: people sue on this the most, freedom is not absolute in this clause for example can't create a religion when you execute your students

Establishment Clause

-Government must be neutral toward religion -Government can't establish a religion -Government can't favor one religion over another

Dormant Commerce Cluase

-If Congress has not enacted laws related to commerce that it has power to, state may regulate commerce as long as regulation does NOT DISCRIMINATE AGAINST or UNDULY BURDEN interstate commerce. -Dormant Commerce Clause Example: if the state of California said that they were going to tax on the consumption of wine but no one in California will be taxed that would go against the dormant commerce clause and would be unduly burden interstate commerce

State Regulatory Powers: Police Powers

-States have authority to regulate affairs within their borders -States can enforce criminal laws and private laws to protect or promote the public order, health, safety, morals, and general welfare of its citizens -Courts balance interests of police power application against private or individual concerns -An exception to the states regulatory power is the dormant commerce clause

Preemption

-Where Congress has shown legislative intent to exclusively regulate an area/activity, any state law in that area or activity is preempted. -If not above, when federal and state laws are in conflict, the federal law prevails. -States may create stricter standards than federal law

Procedural Due Process

-government must provide notice and hearing requirements before person can be deprived of their life, liberty or property

Commerce Clause Regulations

1. Commerce with Native Americans -US treats Native Americans tribes as separate nations with "limited sovereignty" 2. Foreign Commerce -Congress has exclusive power to regulate commerce with foreign nations -The Commerce Clause will preempt state laws concerning trade with foreign governments. 3. Interstate Commerce -Channels of interstate commerce (highways, waterways and internet) -Instrumentalities of interstate commerce (i.e. persons or things having in interstate commerce e.g. vehicles, machines, etc.) -Activities that have a substantial effect on interstate commerce

Types of Unprotected Speech

1. Dangerous speech 2. Fighting words that are likely to provoke a hostile or violent response from the average person. 3. Incitement of illegal activity 4. Defamatory language 5. Child pornography 6. Obscene speech ("I know it when I see it")

Types of Consitutional Power

1. Federalism 2. Enumerated Powers 3. Reserved Powers

Freedom of Speech: Classifications of Protection

1. Fully Protected Speech 2. Limited Protected Speech 3. Unprotected Speech

Available Standards for Review for Equal Protection Clause

1. Strict Scrutiny (Race, National Origin, voting, domestic travel) -Law upheld if necessary to achieve a compelling government purpose 2. Intermediate Scrutiny (Gender) -Law upheld if substantially related to an important government purpose 3. Rational Basis Tests (all others, e.g. age, disability, sexual orientation) -Law upheld if rationally related to a legitimate government interest

Specific Clauses within the Constitution

1. Supremacy Clause 2. Commerce Clause 3. Privileges and Immunities Clause

Due Process Clause

Due process must be provided before a person's life, liberty or property is taken

Supremacy Clause

Federal Constitution, and federal laws and treaties made pursuant to it are the supreme law of the land

Enumerated Powers

Powers delegated to the federal government from the States

Fully Protected Speech

Speech that the government cannot stop or regulate

Equal Protection Clause

States cannot deny equal protection of its laws to different individuals (i.e. must treat similarly situation individuals in a similar manner)

Federalism

Where the federal government and states share powers.

Substantive Due Process vs. Equal Protection

Which test to apply? 1. Substantive due process -If the law denies rights to everyone 2. Equal Protection -If the law denies rights to some while allowing it to others