Law 231 Notes: Constitution, Federalism, and Constitutional Rights
Structure and Nature of the Constitution
Ratification date: 06/21/1788; described in the transcript as the shortest constitution in the world.
The U.S. Constitution is composed of a preamble, seven articles, and 27 amendments.
The first three articles establish a system of government with three coequal branches: the legislative branch, the executive branch, and the judicial branch (coequal = 3 branches).
The first 10 amendments are called the Bill of Rights (the transcript notes 1791; the text also lists a 1971 reference—note a possible discrepancy in the transcription).
The primary authorization of constitutional powers is given to Congress in Article I, Section 8.
Federal system: a national government coexists with state governments.
Preamble: the introductory part of the Constitution that states its broad objectives.
Articles: the main provisions that set out the government’s structure, power, and procedures.
Amendments: changes made to the Constitution since its ratification.
Legislative branch: established under Article I; consists of the House of Representatives and the Senate.
Executive branch: established under Article II; consists of the President and Vice President.
Judicial branch: established under Article III; consists of the Supreme Court and other federal courts.
Checks and balances: each branch may exercise its powers to ensure that the other branches do not exceed their authority under the Constitution.
Enumerated powers: powers explicitly granted to the three branches; the federal government's powers are limited in scope unless authorized by specific enumerated powers listed in the Constitution.
General implied power: Congress has a general implied power to make all laws necessary for carrying out its enumerated powers.
The enumerated powers concept includes the ability to regulate certain activities and to exercise discretion through necessary and proper clauses.
Powers and Structure of the Federal Government
The primary authorization of constitutional powers is given to Congress in Article I, Section 8.
Enumerated powers of Congress include:
1) The power to regulate foreign commerce, interstate commerce, and commerce with the Indian Tribes.
2) The power to tax and to spend government funds.
3) The power to regulate bankruptcy, patents, and copyrights.
4) A general implied power to make all laws necessary for carrying out its enumerated powers.
5) To regulate the channels of interstate commerce (e.g., railways, highways).
6) To regulate the instrumentalities of interstate commerce (e.g., vehicles used in shipping).
7) To regulate articles moving in interstate commerce.
8) To regulate activities that have a substantial economic effect on interstate commerce, even if the activity is purely intrastate or local in nature.
Executive powers:
1) The President is the chief executive and commander-in-chief of the armed forces. cl
2) The power to carry out laws made by Congress.
3) The power to enter into treaties (subject to Senate approval) and to carry out foreign policy.
4) The power to appoint federal officers and judges (subject to Senate approval) and to dismiss federal officers.
Judicial Powers, Judicial Review, and Federal Supremacy
Executive order: An order made by the president that carries the full force of law; used to enforce or interpret federal statutes and treaties.
Presidential proclamation: A statement by the president on ceremonial occasions or to elaborate public/foreign policy; ceremonial proclamations include designations of national holidays; substantive proclamations involve foreign affairs, trade, export controls, tariffs, or enforcement of immigration laws.
Jurisdiction: The legal authority a court must have to hear a case.
Judicial review: The power of the judiciary to declare a legislative or executive act unconstitutional.
Marbury v. Madison (1803): Established that the Constitution is supreme to federal and state statutes; when there is a conflict between the Constitution and a law, the court can declare the law unconstitutional.
Separation of powers: A system of checks and balances where the three branches have unique powers to resolve conflicts and prevent overreach.
The Four Levels of Scrutiny and Supremacy
Judicial review standards:
Rational basis: the lowest level; upheld if the law has a reasonable connection to a legitimate governmental objective.
Intermediate scrutiny: middle level; upheld if the regulation serves an important government objective and is substantially related to that objective.
Strict scrutiny: highest level; applied when a government action involves a fundamental right or suspect classification; upheld only if it serves a compelling governmental interest and is narrowly tailored.
Supremacy Clause: Federal law is supreme to any conflicting state law.
Preemption and State Commerce Powers
Preemption: Federal law can preempt conflicting state law under the hierarchy of laws; higher in the hierarchy overrides lower in case of conflict.
State powers to regulate commerce:
States cannot discriminate against out-of-state businesses or impose an undue burden on them.
State laws must promote a legitimate objective such as health, safety, or welfare.
Key Supreme Court Cases and Federal Spending Power
National Federation of Independent Business v. Sebelius (2012): The individual mandate under the Affordable Care Act could be sustained as a tax, even though the mandate itself fell outside Congress’s power to regulate commerce; the decision recognized congress’s authority to place conditions on the use of federal money provided to the states (federal spending power).
South Dakota v. Dole (1987): Congress may condition transportation funding to a state’s legal drinking age (21) and penalize noncompliance with a potential loss of a portion of highway funds (e.g., 5%).
Concept Summary: Federal Powers and Checks
The federal government has limited powers under the federal system; powers are enumerated in the Constitution and must be within scope.
The enumerated powers for the Legislative branch include:
(1) regulate commerce; (2) tax and spend; (3) regulate bankruptcy, patents, and copyrights; (4) a general implied power to make all laws necessary for carrying out its enumerated powers.
The President’s powers include:
(1) carry out laws; (2) commander-in-chief; (3) enter into treaties and conduct foreign policy; (4) appoint federal officers and judges.
The role of the federal courts is to decide cases within federal jurisdiction.
The Commerce Clause grants broad power to regulate channels, instrumentalities, articles moving in commerce, and activities with substantial economic effect on interstate commerce.
The Bill of Rights and Business
The Bill of Rights includes protections for freedom of speech, press, religion, and expression (First Amendment); right to bear arms (Second); protection against unreasonable searches and seizures (Fourth); self-incrimination and right to a speedy jury trial (Fifth and Sixth); right to jury trial in civil cases (Seventh); protection against cruel and unusual punishment (Eighth).
The textbook emphasizes focusing on those rights most relevant to business issues.
The First Amendment and Business Speech
The First Amendment begins with the phrase "Congress shall make no law" and initially limited to federal government; the Fourteenth Amendment extended protections to state governments.
Landmark cases broaden business protections:
Citizens United and Masterpiece Cakeshop expand protection of free speech for business owners.
The Court has recognized limits on free speech (e.g., the famous analogy with shouting “Fire!” in a crowded theater) and allows reasonable time, place, and manner restrictions; defamation is a separate constraint relevant to business.
Commercial Speech and the Central Hudson Test
Commercial speech (advertising) historically had limited protection but is now protected when truthful and related to lawful activity.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976): Purely commercial speech receives partial First Amendment protection; laws banning truthful price advertising for prescription drugs were struck down.
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980): four-part test for government regulation of commercial speech (intermediate scrutiny):
Part 1: The speech concerns lawful activity and is not misleading.
Part 2: The government has a substantial interest in regulation.
Part 3: The regulation directly advances the government’s interest.
Part 4: The regulation is not more extensive than necessary.
In Case 2.4, the Central Hudson framework was applied to a regulation requiring speech by the tobacco industry.
Advertising, Obscenity Regulation, and Corporate Speech
Obscenity and advertising regulation follow the same Central Hudson framework.
Bad Frog Brewery, Inc. v. N.Y. State Liquor Authority (Second Circuit): the beer labels depicting a vulgar gesture were protected commercial speech; government failed to show a substantial interest in suppressing such speech; the labeling did not mislead or involve unlawful activity.
Political Speech by Corporations:
First National Bank of Boston v. Bellotti (1978): Corporate political speech is fully protected; regulatory restrictions are subject to strict scrutiny when they regulate corporate political speech.
This established that corporate speech is not limited to business-related matters; corporations can engage in political discourse in ways that bear on public debate.
Ballot Proposition: a question posed to voters in a state election (also known as ballot initiative or referendum).
Key takeaway: Commercial speech (advertising) has partial First Amendment protection (intermediate scrutiny), while corporate political speech has full protection (strict scrutiny).
Case 2.5 (Citizens United era): government limits on political spending by corporations in candidate elections were scrutinized under First Amendment protections for corporate political spending.
Probable Cause and the Fourth Amendment
Probable cause: a reasonable amount of suspicion supported by circumstances sufficiently strong to justify a belief that a person has committed a crime.
Exceptions to the Warrant Requirement
Exigent circumstances allowing warrantless searches; need for probable cause and impracticality of obtaining a warrant.
Other exceptions: consensual searches, searches incident to a valid arrest, seizures of items in plain view, and brief investigatory stops.
Investigatory stops must be temporary with questioning limited to the purpose of the stop and conducted as necessary to fulfill that purpose.
The Fourth Amendment protects against government action; private individuals (e.g., private investigators) are generally not subject to Fourth Amendment constraints.
A person’s reasonable expectation of privacy varies by context (body, clothing, personal belongings; homes and curtilage; open fields; automobiles; commercial property).
Public records and information readily accessible to the public generally carry no expectation of privacy.
Reasonableness and Privacy Expectations
Reasonableness is the standard for searches and seizures, whether or not a warrant is used.
Warrants create a presumption of reasonableness; warrantless searches are presumed unreasonable and require balancing of intrusion vs. governmental need.
The totality of circumstances test determines whether a warrantless search or seizure is reasonable.
Fourth Amendment: Physical Searches, Seizures, and Electronic Surveillance
A search occurs when government action violates a person’s reasonable expectation of privacy (e.g., dog-sniff) or when electronic surveillance intrudes on privacy.
A seizure of a person requires show of authority and submission to the authority; a person who ignores an officer’s request but walks away has not been seized for Fourth Amendment purposes.
A seizure of property occurs when there is meaningful interference with possessory interests; items observed in plain view may be seized if allowed by warrant or other exceptions.
United States v. Jones (2012): GPS tracking and 24-hour surveillance; the case addressed the scope and duration of surveillance and Fourth Amendment protections.
Electronic searches in relation to cell phones and company-owned devices have special considerations; courts have often held employees do not have a reasonable expectation of privacy in information stored on company-owned computers.
The USA PATRIOT Act and National Security
After 9/11, Congress enacted the USA PATRIOT Act to enhance law enforcement capabilities to search electronic communications and certain records.
One provision allowed access to stored voicemails via a basic search warrant rather than a surveillance warrant (lower evidentiary standard).
Sneak-and-peak warrants allow delay in notifying the target about the search.
Section 505 expanded use of National Security Letters (NSLs): secret subpoenas with gag orders, allowing records requests without prior court oversight.
NSLs permit investigations without a traditional warrant or court order in certain contexts; DHS and the FBI have used NSLs for private records and communications.
Due Process and Substantive Rights
Due Process Clause: protects individuals from being deprived of life, liberty, or property without due process of law (Fifth and Fourteenth Amendments).
Substantive due process limits the police power of the states by ensuring laws are proper, published, and not unreasonably vague or overly broad.
Notable connections:
Masterpiece Cakeshop’s narrow ruling can be viewed through a procedural due process lens.
Substantive due process also intersects with minors’ free speech rights in Brown v. Entertainment Merchants Association.
Equal Protection
Equal Protection Clause (Fourteenth Amendment) prohibits state governments from denying equal protection of the laws to individuals.
Core principle: similarly situated persons must be treated equally; classification schemes are permissible if they are rational and serve a legitimate objective.
Examples: in-state vs. out-of-state tuition distinctions, which may be justified by tax contributions and services; race, religion, or national origin classifications would generally be invalid regardless of state residence.
Privacy Rights and Federal Statutes
The concept of privacy is not explicitly enumerated in the Constitution but has been recognized and developed through case law.
Griswold v. Connecticut (1965): recognized a constitutional right to privacy among the First, Third, Fourth, Fifth, and Ninth Amendments; struck down a statute criminalizing contraceptive use and counseling.
Roe v. Wade (1973): extended the right to privacy to abortion rights (eventually overturned by Dobbs v. Jackson Women’s Health Organization in 2022).
Some states preserve abortion rights independently; the Dobbs decision signals that the constitutional right to privacy may be more limited or differently interpreted going forward.
Federal Statutes Related to Privacy
HIPAA (Health Insurance Portability and Accountability Act, 1996): regulates privacy and security of medical information; requires policies and procedures to protect patient information.
Freedom of Information Act (FOIA): ensures public access to agency records and reports.
Electronic Communications Privacy Act (ECPA, 1986): protects privacy in electronic communications; courts have treated computer contents similarly to closed containers (e.g., briefcases); expectations of privacy depend on the context and the nature of the device.
Subpoenas and Legal Process
Subpoena: a notice requiring a person to appear in person or provide documents/evidence, or both.
Closing Notes
This set of notes consolidates the major principles, cases, and statutes presented in the transcript, including constitutional structure, federalism and enumerated powers, the First and Fourth Amendments, key Supreme Court decisions, the Central Hudson framework for commercial speech, and privacy-related statutes.
The Supremacy Clause is listed in Article VI (Article 6) of the U.S. Constitution. It is not part of the Bill of Rights, which consists of the first ten amendments.
When it comes to state regulation of interstate commerce, states are limited in their ability. They cannot discriminate against out-of-state businesses or impose an undue burden on them. Additionally, any state laws regulating commerce must promote a legitimate objective such as health, safety, or welfare.
Preemption: Federal law can preempt conflicting state law under the hierarchy of laws; higher in the hierarchy overrides lower in case of conflict.
State powers to regulate commerce:
States cannot discriminate against out-of-state businesses or impose an undue burden on them.
State laws must promote a legitimate objective such as health, safety
The least amount of scrutiny is the rational basis. This means a law is upheld if it has a reasonable connection to a legitimate governmental objective.
The Fourteenth Amendment makes the Bill of Rights applicable to the states. Initially, the Bill of Rights, including the First Amendment, was limited to the federal government. The Fourteenth Amendment, however, extended these protections to state governments.
Advertising is the most common form of commercial speech. It historically had limited protection but is now protected when truthful and related to lawful activity.
Equal Protection
Equal Protection Clause (Fourteenth Amendment) prohibits state governments from denying equal protection of the laws to individuals.
Core principle: similarly situated persons must be treated equally; classification schemes are permissible if they are rational and serve a legitimate objective.
Examples: in-state vs. out-of-state tuition distinctions, which may be justified by tax contributions and services; race, religion, or national origin classifications would generally be invalid regardless of state residence.
Equal Protection
Equal Protection Clause (Fourteenth Amendment) prohibits state governments from denying equal protection of the laws to individuals.
Core principle: similarly situated persons must be treated equally; classification schemes are permissible if they are rational and serve a legitimate objective.
Examples: in-state vs. out-of-state tuition distinctions, which may be justified by tax contributions and services; race, religion, or national origin classifications would generally be invalid regardless of state residence.
The Due Process Clause protects individuals and businesses from an overly intrusive government by requiring the government to give notice and some type of procedure whenever it interferes with life, liberty, or property. This clause is found in both the Fifth and Fourteenth Amendments.
The First, Third, Fourth, Fifth, and Ninth Amendments create a constitutionally protected right to privacy. This was recognized in the case of Griswold v. Connecticut (1965), which struck down a statute criminalizing contraceptive use and counseling.