Chapter 4 - The constitution of the United States of America
State Police Power
The states did not delegate all power to regulate business to the federal government. They retained the power to regulate intrastate commerce and much of the interstate commerce that occurs within their borders. This is commonly referred to as blank
Police power permits states
(and, by delegation, local governments) to enact laws to protect or promote the public health, safety, morals, and general welfare. This includes the authority to enact laws that regulate the conduct of business.
Unprotected Speech
1. Dangerous Speech 2.Fighting words that are likely to provoke a hostile or violent response from an average person 3.Speech that incites the violent or revolutionary overthrow of the government. 4.Defamatory language 5.Child pornography1 6.Obscene speech
Currently there are
27 amendments to the U.S. Constitution.
Strict scrutiny test.
Any government activity or regulation that classifies persons based on a suspect class (e.g., race, national origin, and citizenship) or involves fundamental rights (e.g., voting) is reviewed for lawfulness using a strict scrutiny test. This means that the government must have an exceptionally important reason for treating persons differently because of their race in order for such unequal treatment to be lawful. Under this standard, many government classifications of persons based on race are found to be unconstitutional. Others are found lawful.
Reserved powers
Any powers that are not specifically delegated to the federal government by the Constitution are reserved to the state governments. These are called blank. State governments are empowered to deal with local affairs.
Dormant Commerce Clause
Assume that one state's corporation code permits only corporations from that state but from no other state to conduct business in that state. That state's law would unduly burden interstate commerce and would be unconstitutional.
The Articles of Confederation
Blank created a federal Congress composed of representatives of the 13 new states. The Articles of Confederation was a particularly weak document that gave limited power to the newly created federal government.
An example of Fully Protected Speech
Burning the American flag in protest of a federal government military action is blank.
The US constitution gives congress the right to regulate three types of commerce:
Commerce with Native American tribes Foreign commerce Interstate commerce
The Commerce Clause of the US Constitution
Congress the power "to regulate commerce with foreign nations, and among the several states, and with Indian tribes."6 Because this clause authorizes the federal government to regulate commerce, it has a greater impact on business than any other provision in the Constitution . Among other things, this clause is intended to foster the development of a national market and free trade among the states.
This is an example of Enumerated Powers
Example The federal government is authorized to regulate interstate commerce and foreign affairs.
Limited Protected Speech - Commercial Speech
Example A city can prohibit billboards along its highways for safety and aesthetic reasons if other forms of advertising (e.g., print media) are available. This is a lawful place restriction.
Substantive Due Process
Example A city ordinance making it illegal for persons to wear "clothes of the opposite sex" would be held unconstitutional as void for vagueness because a reasonable person could not clearly determine whether his or her conduct violates the law.
Strict Scruitiny Test
Example A government rule that permits persons of one race but not of another race to receive government benefits such as Medicaid would violate this test.
Procedural Due Process
Example If the federal government or a state government brings a criminal lawsuit against a defendant for the alleged commission of a crime, the government must notify the person of its intent (by charging the defendant with a crime) and provide the defendant with a proper hearing (a trial).
The Free Exercise Clause
Example In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, Florida,18 the U.S. Supreme Court held that a city ordinance that prohibited ritual sacrifices of chickens during church service violated the BLANK and that such sacrifices should be allowed.
Limited Protected Speech - Commercial Speech
Example In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 9 the U.S. Supreme Court held that a state statute that prohibited a pharmacist from advertising the price of prescription drugs was unconstitutional because it violated the Freedom of Speech Clause. The U.S. Supreme Court held that this was commercial speech that was protected by the First Amendment.
Example of State Police Power
Example State real property laws, personal property laws, and state environmental laws are enacted under state police power.
Establishment Clause
Example The U.S. Supreme Court ruled that an Alabama statute that authorized a one-minute period of silence in school for "meditation or voluntary prayer" was invalid.17 The Court held that the statute endorsed religion.
Dormant Commerce Clause
Example The federal government, under its interstate commerce powers, could, if it wanted to, regulate corporations. However, the federal government has chosen not to. Thus, states regulate corporations. Assume that one state's corporation code permits only corporations from that state but from no other state to conduct business in that state. That state's law would unduly burden interstate commerce and would be unconstitutional.
The Free Exercise Clause
Examples Federal, state, or local governments cannot enact a law that prohibits all religions. The government cannot enact a law that prohibits churches, synagogues, mosques, or temples. The government cannot prohibit religious practitioners from celebrating their major holidays and high holy days.
In the First Amendment
Examples Fundamental rights guaranteed in the include freedom of speech, freedom to assemble, freedom of the press, and freedom of religion. Most of these rights have also been found applicable to so-called artificial persons (i.e., corporations).
Reserved Powers
Examples States enact laws that provide for the formation and regulation of partnerships and corporations. Cities adopt zoning laws that designate certain portions of the city as residential areas and other portions as business and commercial areas.
An example of the Foreign Commerce Clause
Exampleslaw that forbids another country from doing business in the United States if that country engages in activities that are not condoned by the United States. A state, however, could not enact a law that forbids a foreign country from doing business in that state if that country engages in activities that are not condoned by that state.
So for the Indian Gaming Regulatory Act
If a state fails to comply with the compacts, NA can bruing a suitin the federal courtforcing the state to comply
Dormant Commerce Clause
If the federal government has chosen not to regulate an area of interstate commerce that it has the power to regulate under its Commerce Clause powers, this area of commerce is subject to what is referred to as blank.
Dormat Commerce Clause
If the federal government has chosen not to regulate an area of interstate commerce that it has the power to regulate under its Commerce Clause powers, this area of commerce is subject to what is referred to as the Dormant Commerce Clause. A state, under its police power, can enact laws to regulate that area of commerce. However, if a state enacts laws to regulate commerce that the federal government has the power to regulate but has chosen not to regulate, the Dormant Commerce Clause prohibits the state's regulation from unduly burdening interstate commerce.
In 1767 the Continental Congress formed the Federal Government
In 1778, the Continental Congress formed a federal government and adopted the Articles of Confederation. Blank created a federal Congress composed of representatives of the 13 new states. The Articles of Confederation was a particularly weak document that gave limited power to the newly created federal government.
Bill of Rights
In 1791, the 10 amendments that are commonly referred to as the were approved by the states and became part of the U.S. Constitution.
Indian Gaming Regulatory Act Congress - Congress passed the Indian Gaming Regulatory Act,7
In the late 1980s, the federal government authorized Native American tribes to operate gaming facilities. a federal statute that establishes the requirements for conducting casino gambling and other gaming activities on tribal land. This act allows Native Americans to negotiate with the states for gaming compacts and ensures that the states do so in good faith. If a state fails to do so, the tribe can bring suit in federal court, forcing the state to comply. Today, casinos operated by Native Americans can be found in many states. Profits from the casinos have become an important source of income for members of certain tribes.
Fourteenth Amendment was added to the Constitution in 1868.
Intrusive actions by state and local governments were not limited until the Due Process Clause of the
The Articles of the Confederation
It did not provide Congress with the power to levy and collect taxes, to regulate commerce with foreign countries, or regulate interstate commerce.
Equal Protection Clause - The Fourteenth Amendment was added to the U.S. Constitution in 1868.
Its original purpose was to guarantee equal rights to all persons after the Civil War. BLANK Amendment and Clause provides that a state cannot "deny to any person within its jurisdiction the equal protection of the laws." Although this clause expressly applies to state and local government action, the Supreme Court has held that it also applies to federal government action.
Offensive Speech
Offensive speech is speech that offends many members of society. (It is not the same as obscene speech, however.) The Supreme Court has held that the content of blank may not be forbidden but that it may be restricted by the government under time, place, and manner restrictions.
The Bill of Rights
Originally, the Bill of Rights limited intrusive action by the federal government only. Intrusive actions by state and local governments were not limited until the blank of the Fourteenth Amendment was added to the Constitution in 1868. The Supreme Court has applied the incorporation doctrine and held that most of the fundamental guarantees contained in the Bill of Rights are applicable to state and local government action. The amendments to the Constitution that are most applicable to business are discussed in the sections that follow.
Federalism
Our country's form of government is referred to as BLANK, which means that the federal government and the 50 state governments share powers.
The US constitution as Amended
Serves two major functions It creates the three branches of the federal government (i.e., the legislative, executive, and judicial branches) and allocates powers to these branches. It protects individual rights by limiting the government's ability to restrict those rights.
Strict Scrutiny
Suspect class ( race, national origin, citizenship) or involves fundamental rights
Substantive Due Process
The BLANK category of due process requires that government statutes, ordinances, regulations, and other laws be clear on their face and not overly broad in scope. The test of whether substantive due process is met is whether a "reasonable person" could understand the law to be able to comply with it. Laws that do not meet this test are declared void for vagueness.
Procedural Due Process:
The BLANK form of due process requires that the government give a person proper notice and hearing of legal action before that person is deprived of his or her life, liberty, or property.
Freedom of Speech
The Establishment clause and the Free Exercise Clause
Examples of Fully Protected Speech
The First Amendment protects oral, written, and symbolic speech.
The Standards of Review - Equal Protection Clause
The Supreme Court has adopted three different standards of review for deciding whether the government's different treatment of people or businesses violates or does not violate the
Incorporation doctrine
The Supreme Court has applied the and held that most of the fundamental guarantees contained in the Bill of Rights are applicable to state and local government action. The amendments to the Constitution that are most applicable to business are discussed in the sections that follow.
What is Limited Protected Speech?
The Supreme Court has held that certain types of speech have only blank under the First Amendment.
Intermediate Scrutiny Test
The federal government's requirement that males (upon reaching the age of 18) must register for a military draft but that females do not have to register for the draft has been held to be constitutional by the U.S. Supreme Court.19
The US Constitution
The U.S. Constitution provides that it may be amended. Currently, there are 27 amendments to the U.S. Constitution. In 1791, the 10 amendments that are commonly referred to as the Bill of Rights were approved by the states and became part of the U.S. Constitution. The Bill of Rights guarantees certain fundamental rights and protects these rights from intrusive government action.
Establishment Clause
The U.S. Constitution requires federal, state, and local governments to be neutral toward religion. BLANK prohibits the government from either establishing a government-sponsored religion or promoting one religion over another. Thus, it guarantees that there will be no state-sponsored religion.
E- Commerce and the Constitution
The advent of the Internet has caused a revolution in how commerce is conducted. The Internet and other computer networks permit parties to obtain website domain names and conduct business electronically. This is usually referred to as electronic commerce or e-commerce. Some businesses that conduct e-commerce over the Internet do not have any physical location, whereas many brick-and-mortar businesses augment their traditional sales with e-commerce sales. Currently, a significant portion of the sales of goods, licensing of intellectual property, and sales of services are accomplished through e-commerce. Because e-commerce is commerce, it is subject to the Commerce Clause of the U.S. Constitution.
The Idea of Obscene Speech
The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.16
For Limited Protected Speech - The federal
The federal government cannot forbid this type of speech but it can but it can subject this speech to time, place, and manner of restrictions. Two major forms of blank speech are offensive speech and commercial speech.
Example of a rational basis - Equal Protection Clause
The federal government's Social Security program, which pays benefits to older members of society but not to younger members of society, is lawful. The reason is that older members of society have earned this right during the course of their lifetimes.
Rational Basis Test
The government classifications that do not involve a fundamental right, a protected class, or a suspect class
Rational basis test.
The lawfulness of all government classifications that do not involve suspect or protected classes is examined using a . Under this test, the courts uphold government regulation as long as there is a justifiable reason for the law. This standard permits much of the government regulation of business.
Rational basis test.
The lawfulness of all government classifications that do not involve suspect or protected classes is examined using a rational basis test. Under this test, the courts uphold government regulation as long as there is a justifiable reason for the law. This standard permits much of the government regulation of business.
the Intermediate Scrutiny Test
The lawfulness of government classifications based on a protected class other than a suspect class or a fundamental right, such as a classification based on gender, is examined using an intermediate scrutiny test. This means that the government must have an important reason for treating persons differently because of their sex in order for such unequal treatment to be lawful. Applying this standard, many government classifications of persons based on sex are found to be unconstitutional. Under this standard, the courts must determine whether the government classification is "reasonably related" to a legitimate government purpose.
the Intermediate Scrutiny Test
The lawfulness of government classifications based on a protected class other than a suspect class or a fundamental right, such as a classification based on gender, is examined using an intermediate scrutiny test. This means that the government must have an important reason for treating persons differently because of their sex in order for such unequal treatment to be lawful. Applying this standard, many government classifications of persons based on sex are found to be unconstitutional. Under this standard, the courts must determine whether the government classification is "reasonably related" to a legitimate government purpose.
The Interstate commerce
The modern rule, however, allows the federal government to regulate activities that affect interstate commerce.
The foreign Commerce Clause:
The state of Michigan is the home of General Motors Company, Ford Motor Company, and Chrysler Corporation, three large automobile manufacturers. Suppose the Michigan state legislature enacts a law that imposes a 100 percent tax on any automobile imported from a foreign country that is sold in Michigan but does not impose the same tax on domestic automobiles sold in Michigan. The Michigan tax violates the Foreign Commerce Clause and is therefore unconstitutional and void. However, the federal government could enact a 100 percent tax on all foreign automobiles sold in the United States but not on domestic automobiles sold in the United States, and that law would be valid.
The Fifth and Fourteenth Amendments to the U.S. Constitution contain a Due Process Clause.
These clauses provide that no person shall be deprived of "life, liberty, or property" without due process of the law. The Due Process Clause of the Fifth Amendment applies to federal government action; that of the Fourteenth Amendment applies to state and local government action. It is important to understand that the government is not prohibited from taking a person's life, liberty, or property. However, the government must follow due process to do so. There are two categories of due process: substantive and procedural.
The Equal Protection Clause
This clause prohibits state, local, and federal governments from enacting laws that classify and treat "similarly situated" persons differently. Artificial persons, such as corporations, are also protected. Note that this clause is designed to prohibit invidious discrimination: It does not make the classification of individuals unlawful per se.
The Interstate Commerce Test
Under the effects on blank the regulated activity does not itself have to be in interstate commerce. Thus, any local (intrastate) activity that has an effect on interstate commerce is subject to federal regulation. Theoretically, this test subjects a substantial amount of business activity in the United States to federal regulation.
In general the Unitd States treats Native Americans
United States treats Native Americans as belonging to separate nations, similarly to the way it treats Spain or France; however, it still considers "domestic dependent" nations with limited sovereignty.
Delegated ( Enumerated ) Powers
When the states ratified the Constitution, they delegated certain powers called blank to the federal government.
Congress passed the Indian Gaming Regulatory Act,7
a federal statute that establishes the requirements for conducting casino gambling and other gaming activities on tribal land. This act allows Native Americans to negotiate with the states for gaming compacts and ensures that the states do so in good faith. If a state fails to do so, the tribe can bring suit in federal court, forcing the state to comply. Today, casinos operated by Native Americans can be found in many states. Profits from the casinos have become an important source of income for members of certain tribe
Certain checks and balances
are built into the Constitution to ensure that no one branch of the federal government becomes too powerful.
Two Major Forms of Limited Protected Speech
are offensive speech and commercial speech.
The Executive Branch
can enter into treaties with foreign governments only with the advice and consent of the Senate. Example The House of Representatives has the power to impeach the president for certain activities, such as treason, bribery, and other crimes. The Senate has the power to try an impeachment case. A two-thirds vote of the Senate is required to impeach the president.
The Supremacy Clause
establishes that the U.S. Constitution and federal treaties, laws, and regulations are the supreme law of the land.5 State and local laws that conflict with valid federal law are unconstitutional. The concept of federal law taking precedence over state or local law is commonly called the preemption doctrine. The following U.S. Supreme Court case involves the Supremacy Clause.
Article II: Executive branch. Article II of the U.S. Constitution
establishes the executive branch of the federal government by providing for the election of the president and vice-president. The president is not elected by popular vote but instead is selected by the Electoral College, whose representatives are appointed by state delegations.2 The executive branch is responsible for enforcing federal law.
Article III: Judicial branch. Article III of the U.S. Constitution
establishes the judicial branch of the federal government by establishing the U.S. Supreme Court and providing for the creation of other federal courts by Congress.3 The judicial branch of the government is responsible for interpreting the U.S. Constitution and federal law.
The Commerce Clause
gives the federal government the authority to regulate interstate commerce. Originally, the courts interpreted this clause to mean that the federal government could regulate only commerce that moved in interstate commerce, that is, commerce that is conducted across state borders. The modern rule, however, allows the federal government to regulate activities that affect interstate commerce.
The Foreign Commerce Clause
gives the federal government the exclusive power to regulate commerce with foreign nations.
The Commerce Clause of the U.S. Constitution
gives the federal government the exclusive power to regulate commerce with foreign nations. This is called the Foreign Commerce Clause. Direct and indirect regulation of foreign commerce by state or local governments that unduly burdens foreign commerce violates the Foreign Commerce Clause and is therefore unconstitutional.
The Bill of Rights
guarantees certain fundamental rights and protects these rights from intrusive government action.
The Judicial Branch
has authority to examine the acts of the other two branches of government and determine whether those acts are constitutional.
The House of Representatives
has the power to impeach the president for certain activities, such as treason, bribery, and other crimes.
The Senate
has the power to try an impeachment case. A two-thirds vote of the Senate is required to impeach the president.
The executive Branch ( The presidents power)
has veto power over bills passed by Congress. If a bill has been vetoed by the president, the bill goes back to Congress, where a vote of two-thirds of each the Senate and the House of Representatives is required to override the president's veto.
Privileges and Immunities
he purpose of the U.S. Constitution is to promote nationalism. If the states were permitted to enact laws that favored their residents over out-of-state residents, the concept of nationalism would be defeated. . Example A state cannot enact a law that prevents residents of other states from owning property or businesses in that state. Example Residents of one state have the right to travel freely to other states. Courts have held that certain types of discrimination that favor state residents over nonresident are lawful. Examples State universities are permitted to charge out-of-state residents higher tuition than in-state residents. States are also permitted to charge higher fees to nonresidents for hunting and fishing licenses. Human rights violations are discussed in the following feature.
The Legislative Branch
is authorized to create federal courts and determine their jurisdiction and to enact statutes that change judicially made law.
Offensive Speech
is speech that offends many members of society. (It is not the same as obscene speech, however.) The Supreme Court has held that the content of blank may not be forbidden but that it may be restricted by the government under time, place, and manner restrictions.
For Interstate Commerce- Any local (intrastate) activity that has an effect on interstate commerce is
is subject to federal regulation
The Freedom of Speech
key concept addressed by the First Amendment. The First Amendment contains two separate religion clauses, the Establishment Clause and the Free Exercise Clause. These two clauses are discussed in the following paragraphs.
Originally the Bill of Rights
limited intrusive action by the federal government only.
The Supremacy Clause; Congress
may expressly provide that a particular federal statute exclusively regulates a specific area or activity. No state or local law regulating the area or activity is valid if there is such a statute. Often, though, federal statutes do not expressly provide for exclusive jurisdiction. In these instances, state and local governments have concurrent jurisdiction to regulate the area or activity. However, any state or local law that "directly and substantially" conflicts with valid federal law is preempted under the Supremacy Clause.
The Free Exercise Clause
prohibits the government from interfering with the free exercise of religion in the United States. Generally, this clause prevents the government from enacting laws that either prohibit or inhibit individuals from participating in or practicing their chosen religions. Of course, the right to be free from government intervention in the practice of religion is not absolute.
Fully Protected Speech
speech that the government cannot prohibit or regulate. The government cannot prohibit or regulate the content of blank
Fully Protected Speech
speech that the government cannot prohibit or regulate. The government cannot prohibit or regulate the content of fully protected speech.
What is Fully Protected Speech?
speech that the government cannot prohibit or regulate. The government cannot prohibit or regulate the content of fully protected speech. Example Burning the American flag in protest of a federal government military action is protected symbolic speech. In the following U.S. Supreme Court case, the Court decided an important freedom of speech issue.
State Police Power
states' police power.
Commercial speech,
such as advertising, was once considered unprotected by the First Amendment. Today, because of U.S. Supreme Court decisions, however, the content of blank is protected but is also subject to time, place, and manner restrictions.
Article I: Legislative branch. Article I of the U.S. Constitution establishes
the legislative branch of the federal government. The legislative branch is responsible for making federal law. This branch is bicameral; that is, it consists of the U.S. Senate and the U.S. House of Representatives. Collectively, they are referred to as the U.S. Congress or simply Congress.1 Each state has two senators in the U.S. Senate. The number of representatives to the U.S. House of Representatives is determined according to the population of each state. The current number of representatives is determined by the most recent national census.
The Additional 17 Amendments
to the Constitution have abolished slavery, prohibited discrimination, authorized the federal income tax, given women the right to vote, and specifically recognized that persons 18 years of age and older have the right to vote.
Article IV of the Constitution contains the Privileges and Immunities Clause,
which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states." Atricle 5 of the Constitution The Fourteenth Amendment contains the Privileges or Immunities Clause, which provides that "No State shall make or enforce any law that shall abridge the privileges or immunities of the citizens of the United States."
Article IV of the Constitution contains the Privileges and Immunities Clause,
which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states." The Fourteenth Amendment contains the Privileges or Immunities Clause, which provides that "No State shall make or enforce any law that shall abridge the privileges or immunities of the citizens of the United States."