Constitutional Principles

What are the Bill of Rights?

The first 10 Amendments found in the U.S. Constitution.

What does the First Amendment of the U.S. Constitution say?

Protects freedom of religion, press, speech, and peaceable assembly.

What does the Second Amendment of the U.S. Constitution say?

Right to Bear Arms.

What does the Third Amendment of the U.S. Constitution say?

No quartering troops inside citizens' homes.

What does the Fourth Amendment of the U.S. Constitution say?

Protects against "unreasonable search and seizure".

What does the Fifth Amendment of the U.S. Constitution say?

guarantees the right to due process.

What does the Sixth Amendment of the U.S. Constitution say?

Right to a speedy trial.

What does the Seventh Amendment of the U.S. Constitution say?

Common lawsuits that exceed $20, citizens have the right to a trial by Jury.

What does the Eighth Amendment of the U.S. Constitution say?

No cruel or unusual punishment.

What does the Ninth Amendment of the U.S. Constitution say?

states that although the Bill of Rights names certain rights, this does not remove other rights retained by citizens.

What does the Tenth Amendment of the U.S. Constitution say?

any power that is not given to the federal government is given to the people or the states.

What does the 14th Amendment do?

is not part of the Bill of Rights. It was ratified after the Civil War, in 1868; it addresses many issues, including issues important to African Americans and the Southern states. Its Equal Protection Clause combats governmental discrimination between citizens. (This Clause is sometimes cited to support the right of gays and lesbians to same-sex marriage.)

What was the significance of the U.S. Supreme Court ruling Marbury vs. Madison?

When a court finds a law unconstitutional, it is not commenting upon the wisdom of the law; many good ideas may be unconstitutional, while many foolish laws may be constitutional.

What was the significance of the U.S. Supreme Court case of NLRB v. Jones & Laughlin Steel Corp.?

The scope of this Clause is a timely issue; proponents of the federal health care reform (also known as "Obamacare") belief that it is a permissible exercise of this Clause, but opponents say that its provisions exceed Congress's authority under this Clause. Examples of federal regulation under this Clause relate to mine safety; disability protection; and consumer protection.

What was the significance of the U.S. Supreme Court case of Lemon v. Kurtzman?

the U.S. Supreme Court established a three-prong test:

a. Does the statute have a secular legislative purpose?

b. Does the statute's principal effect either advance or inhibit religion?

c. Does the statute foster an excessive government entanglement with religion?

What was the significance of the U.S. Supreme Court ruling of Griswold v. Connecticut?

The 9th Amendment makes the point that the Bill of Rights do not list all of Americans' right. One such right that is not enumerated in the Bill of Rights is the right to privacy; the U.S. Supreme Court described this right, which it found in the penumbra of the U.S. Constitution.

Which federal document replaced the Articles of Confederation?

The U.S. Constitution.

What is the Supremacy Clause?

provides that federal law, the U.S. Constitution, and treaties are the supreme law of the land.

A state law conflicts and/or overlaps a federal law. What happens to the state law?

The state law becomes void.

What is the Commerce Clause?

It states that the U.S. Congress has the power to "regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes." In other words, this Clause relates to "interstate commerce."

There is a tension between the Congressional authority found in the Commerce Clause and each state's type of power. What is that power?

Police Power.

What does the state's Police Power do?

the basis of states' authority to protect the health, welfare, and citizenry of its citizens.

What is the Dormant Clause?

The restriction on states' ability to affect interstate commerce; this restriction is said to be implied in the Commerce Clause to the U.S. Constitution.

What is the Privileges and Immunities Clause?

prohibits states from discriminating against the citizens of other states, unless there is a substantial reason for doing so.

Give one example of the Privileges and Immunities Clause.

allow state universities to charge higher tuition to out-of-state students because residents pay taxes that fund state universities, whereas out-of-state students do not.

What is the Full Faith and Credit Clause?

protects wills, marriage and divorce decrees, and judgments in civil courts.

What is the Contract Clause?

prohibits the government from unreasonably interfering with existing contracts.

In what year was the Bill of Rights in the U.S. Constitution ratified?

1791.

What was the Bill of Rights primary function before and after it was ratified?

prohibited the federal government from infringing on individual freedoms.

What is the Establishment Clause?

"Congress shall make no law respecting an establishment of religion." It prohibits the establishment of a national religion, and it prohibits the preference of one religion over another or over no religion.

What is the Free Exercise Clause?

provides that "Congress shall make no law .... prohibiting the free exercise [of religion]." These two Clauses are in tension with each other.

What is the Equal Protection Clause?

includes three levels of review: strict scrutiny; intermediate scrutiny; and the rational-basis test.

What was the significance of the Brown vs. Board of Education U.S. Supreme Court ruling?

the U.S. Supreme Court found that school segregated on the basis of race violated this Clause.

Explain the Equal Protection Clause in depth.

Courts use the intermediate scrutiny standard that is part of the jurisprudence of the Equal Protection Clause when the classification is gender-based or deals with the legitimacy of children.

Explain the Rational-basis test.

Courts use the Rational-basis standard for applying the Equal Protection Clause in all other circumstances. It is the lowest level of scrutiny, and almost all laws meet this standard. The court must find only a justifiable reason to believe that the law advances a legitimate government interest in order to uphold the law.

Explain the 5th Amendment of the U.S. Constitution from a business context.

a. Its Due Process Clause prohibits the government from depriving a person or business of life, liberty, or property without due process of law. (The Fourteenth Amendment also has a clause with the same name.) There are two types of due process: procedural and substantive. Procedural due process requires that the government use fair procedures. Substantive due process requires that the laws themselves be rational. Laws affecting fundamental rights must bear a substantial relationship to a compelling government interest. If a fundamental right is not at issue, the law must only bear a rational relationship to a legitimate state interest; this test is called the rational basis test.

b. Its takings Clause provides that when the government takes the property of an individual or business for a public use, it must pay just compensation (that is, the fair market value). If governmental regulation makes the property economically unviable, those regulations count as a taking.

c. Its Privilege against Self-Incrimination applies only to individuals, not to companies. Sole proprietors retain this right in the exercise of their business.

What is the Due Process Clause?

prohibits the government from depriving a person or business of life, liberty, or property without due process of law.

Explain the 4th Amendment of the U.S. Constitution in depth.

protects individuals and companies from unreasonable searches and seizures. In order for the government to conduct a search, the government agent must usually obtain a search warrant, which is a court order that authorizes law enforcement agents to search and seize items that are specifically described in the warrant. In order to obtain the search warrants, the law enforcement officer must show probable cause to believe that the proposed search will lead to evidence of a criminal activity. If, however, the industry in question has a long history of pervasive regulation, a reasonably-warrantless search is not necessary.

Explain the difference between Commercial Speech and Political Speech.

Political: speech used to support a presidential candidate or referendum.

Commercial: receives less protection (though it is still largely protected); it is speech that conveys information related to the sale of goods and services.

What does the 1st Amendment not protect against?

defamation, which is speech that harms the reputation of another. It also does not protect obscenity [hint: relates to prurient interests] or hate speech (words that are likely to provoke violence).