Notes on the Federal Government and the Bill of Rights

2-1a A Federal Form of Government

  • 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.

  • Federal Powers

    • The Constitution sets forth specific powers that can be exercised by the national (federal) government and provides that the national government has the implied power to undertake actions necessary to carry out its expressly designated powers (or enumerated powers).

    • All other powers are expressly “reserved” to the states under the \text{Tenth Amendment} to the U.S. Constitution.

3 BRANCHES of GOVERNMENT

  • The Constitution provides a separation of powers (a system of checks and balances) across three branches:

    • Legislative (makes laws) – Congress

    • Senate – 100 elected senators total; 2 senators per state

    • House of Representatives – 435 elected representatives total; representatives based on each state's population

    • Executive (carries out laws) – President, Vice President, Cabinet

    • Cabinet members are nominated by the president and must be approved by the Senate (with at least 51 votes)

    • Judicial (evaluates laws) – Supreme Court

    • 9 justices nominated by the president and must be approved by the Senate (with at least 51 votes)

  • Other federal courts exist beyond the Supreme Court.

2-1c The Separation of Powers

  • To make it more difficult for the national government to use its power arbitrarily, the Constitution provides for three branches of government.

  • Each branch performs a separate function, and no branch may exercise the authority of another branch.

  • A system of checks and balances prevents any branch from exercising too much power.

  • Checks and balances – The system by which each of the three branches (executive, legislative, judicial) exercises checks on the powers of the other branches.

Examples of Checks and Balances

  • Presidential veto power over legislation

  • Congressional veto-override power

  • Supreme Court power to declare a law unconstitutional

  • Congressional power to ratify (or to refuse to ratify) treaties

  • Senate power to approve (or disapprove) judicial appointments

  • Congressional impeachment power over the president

2-1b Relations among the States

  • The Privileges and Immunities Clause

    • \text{Article IV, Section 2} – states shall not discriminate against one another’s citizens.

    • A resident of one state cannot be treated as an alien when in another state.

    • They may not be denied privileges and immunities such as:

    • Legal protection

    • Access to courts

    • Travel rights

    • Property rights

  • The Full Faith and Credit Clause

    • \text{Article IV, Section 1} – Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.

    • Ensures that rights established under deeds, wills, contracts, and similar matters in one state will be honored by other states, and that judicial decisions respecting property rights will be enforced across states.

    • Protects the legal rights of American citizens as they move about the states and the rights of those to whom they owe obligations (e.g., monetary damages awarded).

2-1d The Commerce Clause

  • Commerce clause – \text{Article I, Section 8} grants Congress the power to regulate interstate commerce.

  • The clause:

    • Prevents states from enacting laws/regulations that would interfere with trade among the states

    • Provides the basis for the national government’s extensive regulation of state and local affairs

    • Has had a greater impact on business than any other constitutional provision

    • Applies to interstate commerce and, where applicable, to intrastate commerce if the activity substantially affects interstate commerce

  • The Expansion of National Powers under the Commerce Clause

    • As the nation grew, the commerce clause became a vehicle for expanding regulatory powers; even local activities could fall under regulation if they substantially affected interstate commerce.

  • The Commerce Clause Today

    • Theoretically, the power over commerce authorizes regulation of almost every commercial enterprise in the United States.

    • The breadth allows action in areas not explicitly granted power if they substantially affect interstate commerce.

  • CASE: Heart of Atlanta Motel v. United States (1964) – illustrates the reach of the Commerce Clause over public accommodations and civil rights regulations.

2-1e The Supremacy Clause and Federal Preemption

  • Supremacy clause – \text{Article VI, Clause 2} – the Constitution, federal laws, and treaties are the "supreme Law of the Land." When state/local laws conflict with federal law, those state/local laws are invalid.

  • Preemption

    • Federal law can preempt state/local law when Congress acts exclusively in a concurrent area (powers shared with the states).

    • Preemption – a doctrine in which federal laws take precedence over conflicting state or local laws.

  • Congressional Intent

    • Courts determine whether Congress intended to preempt an entire subject area when intent is not clear.

    • Generally, pervasive, comprehensive, or detailed federal regulation indicates an intent to preempt.

Exhibit 2-1 Protections Guaranteed by the Bill of Rights (slide 1 of 2)

  • First Amendment – Guarantees freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government.

  • Second Amendment – Right to keep and bear arms shall not be infringed.

  • Third Amendment – Prohibits lodging of soldiers in a house without the owner’s consent in peacetime.

  • Fourth Amendment – Prohibits unreasonable searches and seizures of persons or property.

  • Fifth Amendment – Guarantees indictment by grand jury, due process of law, and just compensation when private property is taken for public use; also prohibits compulsory self-incrimination and double jeopardy.

Exhibit 2-1 Protections Guaranteed by the Bill of Rights (slide 2 of 2)

  • Sixth Amendment – Right to a speedy and public trial by an impartial jury and to counsel; right to cross-examine witnesses and to compel favorable testimony.

  • Seventh Amendment – Right to a jury trial in civil cases involving at least 20.

  • Eighth Amendment – Prohibits excessive bail and fines, and cruel and unusual punishment.

  • Ninth Amendment – People have rights beyond those listed in the Constitution.

  • Tenth Amendment – Powers not delegated to the federal government nor denied to the states are reserved to the states and the people.

2-2 Business and the Bill of Rights

  • Bill of Rights comprises the first ten amendments and protects individuals against federal government interference; some protections apply to business entities as well.

2-2a Limits on Federal and State Governmental Actions

  • The Fourteenth Amendment – No State shall deprive any person of life, liberty, or property, without due process of law.

  • Incorporation

    • The Bill of Rights protections have been incorporated, via the Fourteenth Amendment, to apply to state actions as well (due process incorporation).

  • Judicial Interpretation

    • Rights are not absolute; the Supreme Court is the final interpreter of the Constitution and determines boundaries.

2-2b Freedom of Speech

  • Tradition has protected freedom of speech to the fullest extent; symbolic speech is protected.

  • Reasonable Restrictions

    • Expression (oral, written, or conduct) is subject to reasonable restrictions; reasonableness is analyzed case-by-case.

  • Time, Manner, and Place vs Content Restrictions

    • Laws regulating time, manner, and place (content-neutral) receive less scrutiny than content-based restrictions.

    • If a restriction is content-neutral and aimed at addressing societal problems (crime, drug abuse) without suppressing the message, it may be permissible.

    • Content-based restrictions must serve a compelling state interest and be narrowly tailored (the government’s Compelling Government Interest test).

  • Compelling Government Interest

    • A stringent standard requiring compelling reasons to restrict fundamental rights (e.g., free speech).

  • Corporate Political Speech

    • Political speech by corporations falls within First Amendment protection.

    • The Court struck down a statute prohibiting corporations from making political contributions or expenditures that individuals could make.

  • Commercial Speech

    • Substantial protection for commercial speech (advertising and marketing) but subject to regulation.

    • A state may restrict certain kinds of advertising if the restriction meets a three-part test:

    • It must pursue a substantial government interest.

    • It must directly advance that interest.

    • It must not be more extensive than necessary to achieve the objective.

2-2b Case: Bad Frog Brewery

  • Bad Frog Brewery v. New York State Liquor Authority (1998)

    • A brewery challenged a NY restriction on beer labels showing a frog with an offensive gesture.

    • The case examined whether restricting such commercial speech violated the First Amendment.

    • Illustrates that commercial speech may be regulated to advance substantial state interests (e.g., protecting children) while balancing First Amendment rights.

2-2d Searches and Seizures

  • Before searching or seizing private property, law enforcement typically must obtain a search warrant.

  • Search warrant – An order by a public authority (e.g., a judge) authorizing a search of specific premises or property.

  • Exceptions

    • Warrants are not always required for seizures of spoiled or contaminated food or for searches in highly regulated industries (e.g., liquor, guns, strip mining).

  • Probable Cause

    • Reasonable grounds for believing a search should be conducted or a person should be arrested.

    • To establish probable cause, officers must have trustworthy evidence that would convince a reasonable person that the search or seizure is justified.

2-2e Self-Incrimination

  • The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself.

  • Applies to natural persons; does not protect corporations or partnerships.

2-3a Due Process

  • Due Process Clause – Provisions of the Fifth and Fourteenth Amendments guarantee that no person shall be deprived of life, liberty, or property without due process of law.

  • Applies to legal persons (corporations) as well as individuals.

  • Two aspects:

    • Procedural due process

    • Substantive due process

  • If a law or government action limits a fundamental right, the state must have a legitimate and compelling interest to justify its action.

  • Fundamental rights include:

    • Interstate travel

    • Privacy

    • Voting

    • Marriage and family

    • All First Amendment rights

  • In situations not involving fundamental rights, a law or action does not violate substantive due process if it rationally relates to a legitimate government purpose.

2-3b Equal Protection (1 of 2)

  • Equal protection clause – The Fourteenth Amendment guarantees that no state will deny to any person within its jurisdiction the equal protection of the laws.

  • It focuses on the substance of a law or other governmental action.

  • Levels of scrutiny (tests):

    • Strict scrutiny

    • Intermediate scrutiny

    • Rational basis

2-3b Equal Protection (2 of 2)

  • Strict Scrutiny

    • If a law or action prohibits or inhibits some persons from exercising a fundamental right, the law or action is subject to strict scrutiny.

    • Classification must be necessary to promote a compelling state interest.

  • Intermediate Scrutiny

    • Applied in cases involving discrimination based on gender or legitimacy (children born out of wedlock).

    • Laws using these classifications must be substantially related to important government objectives.

  • The “Rational Basis” Test

    • In matters of economic or social welfare, a classification is valid if there is any rational basis that relates to a legitimate government interest.

2-4 Privacy Rights

  • The Constitution does not explicitly mention a general right to privacy.

  • The Supreme Court has implied a constitutional right to privacy from the First, Third, Fourth, Fifth, and Ninth Amendments.

  • Privacy rights are protected today by:

    • Federal statutes

    • The U.S. Constitution

    • State constitutions and statutes

    • Tort law, consumer law, and employment law

CASES

  • 303 Creative v. Elenis (supp)

    • Lorie Smith wants to expand her graphic design business to wedding websites but fears Colorado will compel her to create websites celebrating marriages she does not endorse.

    • Colorado's CADA prohibits public accommodations from denying full and equal enjoyment of goods/services based on statutorily enumerated traits.

    • The case centers on whether the state law would compel speech in violation of the First Amendment.

  • Bad Frog Brewery v. New York State Liquor Authority (1998)

    • See the discussion under 2-2b for the commercial speech context and rationale.

What did you Learn?

  • Federal system of government

  • Powers granted by the Constitution (and their limits)

  • Key elements of the Bill of Rights that affect business