Ch. 5 Constitutional Law
Federalism & the Federal Government
Federalism
Federalism: A system where government power is divided between the federal government and state governments
The US uses federalism because the country is large and has many regions w/ different needs
Federal government: Handles issues that affect the entire country, such as:
National defense
Financial system
Foreign policy
State Governments: Handle more local/regional issues
Tenth Amendment
Powers not given to the federal government and not taken away from the states are reserved for the states
The federal government can only exercise powers given to it by the Constitution
Federal laws affecting businesses must be based on constitutional grant of authority
Three Branches of Federal Government
Legislative
Congress
Makes laws
Executive
President
Enforces laws
Can veto laws passed by Congress
Judicial
Federal courts
Interprets laws
Can determine whether laws are constitutional
Checks and Balances
Each branch has powers that limit the other branches
This prevents one branch from becoming too powerful
Example:
Congress passes a law.
President can veto it.
Congress can override the veto with a 2/3 vote.
If the law takes effect, courts can declare it unconstitutional.
Judicial Review
Judicial Review: The power of courts to determine whether government actions or laws are constitutional
Established through early common law and Supreme Court case Marbury v. Madison (1803)
Courts can review
Legislative actions
Executive actions
Lower court decisions
Marbury v. Madison
Established the principle of judicial review.
Courts must follow the Constitution if a law conflicts with it.
Supremacy Clause
Found in Article VI of the Constitution
The Constitution, federal laws, and treaties are the supreme law of the land….
If state or local law directly conflicts with federal law, the state/local law is void.
Federal administrative agency rules are also considered federal law for this purpose
Example:
Federal law: cell phone use on airplanes is banned
State law: Missouri allows cell phone use on aiplanes
The Missouri law would be invalid bc it conflicts fed. law
Concurrent Authority
Concurrent Authority: when both the federal and state governments have the power to regulate the same subject
States can regulate the same area as the federal gov’t as long as the state law does not conflict w/ federal law
Example:
Congress creates environmental standards
A state can create stricter environmental standards
Federal Preemption
Federal Preemption: when the federal gov’t takes exclusive control over an area that both federal and state gov’ts could otherwise regulate
When federal preemption applies, a conflicting state law is unconstitutional
Courts determine whether Congress intended federal regulation to be exclusive by looking at:
The Language of the statute
Congressional hearing transcripts
EASY MEMORY
Supremacy Clause: Federal Law is on SUPREME over all law
Federal Preemption: Fed and state can both regulate, but congress will decide is the fed should have exclusive control
Commerce Clause & Other Constitutional Powers
Commerce Clause
Commerce Clause: Article 1, Section 8 gives Congress the power to regulate commerce:
With foreign nations
Among the states (AKA interstate commerce)
With Native American tribes
It is the main source of federal authority to regulate business
It gives the federal gov’t power while also limiting power
How The Interpretation Changed
Before the 1930s: Courts interpreted the Commerce clause narrowly
Federal gov’t could generally regulate only activities that directly involved trade btwn states
Limited federal regulation of business
1930s onward: Supreme Court interpreted it more broadly
NLRB v. Jones & Laughlin Steel Corp. (1937) was a major turning point
Court allowed Congress to regulate labor relations at a manufacturing plant b/c a work stoppage could significantly affect interstate commerce
Main idea: An activity doesn’t have to cross state lines itself. If it has a substantial effect on interstate commerce, Congress may be able to regulate it
Examples of federal laws based on Commerce Clause
Federal Mine Safety and Health Act → mine safety
Americans with Disabilities Act (ADA) → prohibits disability discrimination
Consumer Protection Act → criminalizes certain loan-sharking activities
Limits on Commerce Clause
Congress’s power is not unlimited
United States v. Lopez (1995)
Congress passed the Gun-Free School Zone Act, banning guns within 1,000 ft of schools
Supreme Court said Congress exceeded its Commerce Clause authority… WHY?
Possessing a gun near a school was too far removed from commerce
Key Takeaway: Congress cannot regulate something just by claiming it might somehow affect commerce
Easy way to remember:
Commerce Clause = Congress can regulate things connected to interstate commerce, but there has to be a real/substantial connection.
United States v. Johnson (2022)
What happened?
Johnson and Fierro were changed w/ federal arson after burning an office during riots
They argued Congress didn’t have authority under Commerce Clause to make the arson law apllicable to them
Courts reasoning
The court used the substantial effects category of Commerce Clause Power
It considered 4 factors:
Is the activity commercial/economic?
Does the law specifically connect the activity to interstate commercer?
Does Congress have findings showing the activity affects interstate commerce?
Is the connection to interstate commerce too weak/indirect?
No single factor automatically decides the case
Court ultimately upheld the federal arson law
Why you need this case:
It shows how courts determine whether Congress has gone too far under the Commerce Clause.
Commerce Clause & State Governments
The Commerce Clause also limits state gov’t
Police Power
Police power: consists of the residual powers retained by each state to safeguard the health and wealfare of its citizens Examples:
Criminal laws
Building codes
Zoning
Restaurant sanitation rules
Medical licensing
The problem
Sometimes state laws are made under police power affect interstate commerce
This creates a conflict between:
States power to protect citizens and Federal power over interstate commerce
Dormant Commerce Clause
Dormant Commerce Clause: Limits states from passing laws that improperly interfere w/ interstate commerce
A state law is generally unconstitutional if:
Discriminates against interstate commerce, or
Substantially interferes with interstate commerce
How Courts Analyze It
Courts generally ask:
Is the state law rationally related to a legitimate state purpose?
Does the burden on interstate commerce outweigh the state’s interest?
Is there a less restrictive way to accomplish the states goal?
Easy way to remember:
Commerce Clause → limits FEDERAL power?
No. It mainly gives Congress power over interstate commerce.
Dormant Commerce Clause → limits STATE power.
Other Constitutional Restrictions
Privileges and Immunities Clause
Article IV, Section 2
States generally cannot discriminate against citizens from another state when they participate in basic/essential activities
Examples:
Buying/selling property
Seeking employment
Using the courts
Exception: states can treat residents and nonresidents differently when there is a substantial reason
Example: State universities can charge out-of-state students more because residents help fund the university through state taxes.
Full Faith and Credit Clause
Article IV, Section 1
States generally must recognize the public acts, records, and court judgements of other states
Examples:
Wills
marriage/divorce decrees
Civil court judgements
Contracts
Important limitation: states don’t necessarily have to recognize another state’s laws when doing so would violate their public policy
Contract Clause
Article I, Section 10
Government generally cannot pass laws that unreasonably interfere with existing contracts
Home Building & Loan Association v. Blaisdell (1934)
Minnesota passed a temporary law delaying mortgage foreclosures during the Great Depression.
This interfered with contracts between lenders and borrowers.
Supreme Court upheld the law because the state had a legitimate interest in protecting citizens' welfare.
Main takeaway:
The Contract Clause does not mean contracts can never be affected.
Instead:
Courts balance the effect on contracts against the state's need to protect the public.
Commerce Clause - Effect on Federal and State Power
Federal gov’t → gives congress power
Congress can regulate interstate commerce (business/activity involving or substantially affecting trade btwn states)
The power became broader after the 1930s
Limit: Congress cannot regulate activities that have too weak of a connection to interstate commerce
State governments → limits their power
States can regulate things within their own state using their police power
BUT states cannot use their laws to discriminate against or substantially interfere with interstate commerce
This limitation is called the Dormant Commerce Clause
BASICALLY: Commerce Clause = gives FEDERAL government power + puts limits on STATE government power
FED → Can regulate interstate commerce
STATE → Can regulate locally, but can't unfairly interfere with interstate commerce
The Commerce Clause gives Congress the power to regulate interstate commerce, while limiting states from discriminating against or substantially interfering with interstate commerce
The Amendments to the Constitution
Amendments of the Constituition are called the Bill of Rights
The Bill of Rights
The first 10 amendments of the US Constitution are called the Bill of Rights
They are important to business bc they place limits on what the government can do to individuals and corporations
Government vs. private businesses
The Bill of Rights primarily protects people from government action
The federal gov’t cannot interfere w. rights protected by the Bill of Rights
The Fourteenth Amendment extends most of these protections to the states
…Therefore, both federal and state gov’t generally cannot take away the freedoms protected by these amendments
Important: The bill of rights does not control the behavior of private employers
The distinction is commonly misunderstood
Example: A constitutional right to free speech does not automatically mean you can say whatever you want as a private company without consequences. The First Amendment restricts government, not generally private employers.
Corporations
Courts apply many constitutional protections to corporations because corporations are generally treated as artificial persons
This means corporations can have certain constitutional rights even though they aren’t actual human beings
The First 10 Amendments
First Amendment - Freedoms
Protects:
Freedom of Religion
Freedom of speech
Freedom of the press
Peaceful assembly
Right to petition the government to address grievances
Think: “Speak, worship. publish, gather, complain”
Does not protect defamation, or speech that harms anothers reputation
Second Amendment - Right to Bear Arms
Recognizes the importance of a well-regulated militia for security
Protects the right of citizens to bear arms
Third Amendment - Quartering Soldiers
gov’t cannot force citizens to house soldiers in their private homes during peacetime
During wartime, this is also prohibited except when allowed by law
Fourth Amendment - Searches and seizures
Protects people from:
Unreasonable searches
Unreasonable seizures
Government generally must have probable cause to obtain a warrant
Search Warrant: court order that authorizes law enforcement to search or seize items described in that warrant
warrants can only be obtained if enforcement shows probable cause to believe that the search will uncover specific evidence of criminal activity. Based on known facts
Even the use of things such as thermal-imaging instruments on private property is constituted as unlawful search and would require a warrant
Fifth Amendment - Rights of the Accuse / Due Process
The Fifth amendment provides several protections:
Gov’t generally cannot put someone on trial w/o an indictment by a grand jury
a person cannot be forced to testify against themselves
This is where “pleading the fifth” comes from
Prevents double jeopardy: gov’t cannot try someone twice for the same crime
Provides due processes rights
Due Process Clause: states that government cannot deprive a person of life, liberty or property without due process of law
Due Process clause guarantees two types of due process: Procedural and substantive
Procedural Due Process: requires the gov’t to use fair procedures when taking the life, liberty, or property of an individual or corporation.
Substantive due process: refers to basic fairness of laws that may deprive an individual of life, liberty, or property. To satisfy requirements, gov’t must have proper purpose for enacting laws that restrict individuals’ liberty or the use of their property
Gov’t cannot take private property for public use without providing just compensation
Takings Clause: requires that when gov’t uses itspower to take private property for public use, it must pay the owner just compensation, or fair market value for the property
Sixth Amendment — Criminal Trial Rights
Provides the right to:
a speedy trial
a public trial
an impartial jury
Know what criminal accusation you are facing
have witnesses testify against you and for you
have an attorney
Seventh Amendment - Civil Jury
Provides the right to jury trial in certain civil lawsuits
States that in common lawsuits in which the monetary value exceeds $20, citizens have the right to a trial by jury
Important: this is about civil cases, not criminal
Eighth Amendment - Punishment
Government cannot:
Set excessive bail
Impose excessive fines
Inflict cruel and unusual punishment
Ninth Amendment - Other Rights
The Constitution lists certain rights, but that does not mean those are the only rights people have
The 9th amend. reconizes that people retain other rights that aren’t specifically listed in the Bill of Rights
Tenth Amendment - States’ Power
Powers that the constitution does not give to the federal government are reserved for the states
BACK to the First Amendment…
The first amend protects several diff. freedoms:
Freedom of Speech, which includes:
Spoken words
Gestures
Other forms of expression
Also protects freedom from the press
Assembly
People have the right to peacefully assemble
Petition
People have the right to petition the government to address grievances
Religion
The f. Amend protects religious freedom thru two clauses:
Establishment Clause: maintains that gov’t is prohibited from establishing a national religion by Congress and having preference of one religion over another or of religion over nonreligious philosophies in general
Free Exercise Clause: gov’t cannot make a law “prohibiting the free exercise” of religion… This clause is interpreted to include absolute freedom to believe and freedom to act that may state restriction.
First Amendment Rights are NOT ABSOLUTE
Having freedom of speech does not mean every possible form of speech is protected…
Two examples include:
Yelling “Fire!” in a crowded theater, or “I have a bomb” on a plane
A person cannot claim first.amend protection for dangerous speech that can create an immediate harmful situation
False statements harming someone’s reputation
Does not protect false statements that injure another persons reputation
defamation
fighting words
obscenity
Libel
….are not protected. Meaning you CAN be held liable for engaging in such behaviors if you do so.
However, the law typically draws a fine line between what is generally harmful words and what is considered legally recognized as harmful… therefore, derogatory speech is broadly protected under the first amendment
Unprotected Speech
The first amendment does not protect every type of speech
Several categories:
Defamation
Defamation: false statements that harm another persons reputation
The first amendment does not protect defamation
A person who makes defamatory statements can potentially be required to compensate the person whose reputation was harmed.
Obscenity
The First Amendment also does not protect obscenity (An obscenity is an act, expression, or material that strongly offends contemporary community standards of decency and morality, usually relating to explicit sexual or excretory content)
Fighting Word
Historically, fighting words have also been considered unprotected
Hate Speech
The relationship btwn hate speech and fighting words is slightly different under first amendment
Hate speech = derogatory speech directed at members of another group, such as a racial group
According to the textbook:
60% of universities had banned verbal abuse and verbal harassment
28% had banned advocacy of an offensive viewpoint
State and federal appellate courts had struck down many university hate speech codes
Political Speech vs Commercial Speech
Political Speech: used to support political candidates or referenda. It is given a high level of protection by the First Amendment as compared to other types of speech
speech involving political matters, such as:
Political candidates
Elections
Referenda
Political issues
The First amendment can protect corporate political speech as well as individual political speech
Commercial Speech: speech that conveys information related to the sale of goods and services
Examples: advertisements and other communications intended to provide information about products and services
Important:
Commercial speech is broader than simply advertisements
The gov’t can regulate commercial speech, and courts use a specific test to determine whether that regulation is constitutional…
The test is called the Central Hudson four-part test
Central Hudson four-part test
When the gov’t restricts commercial speech, courts examine four things:
Is the speech lawful and not deceptive?
If the speech involves something illegal or is deceptive, it receives less/no protection.
Does the gov’t have a substantial interest?
The gov’t must have an important reason for regulating the speech
Does the restriction materially advance the gov’t interest?
The gov’t needs to show that restricting the speech will actually help accomplish its goal.
Is the restriction narrowly tailored?
The gov’t should not restrict more speech than necessary to accomplish its objective
Religious Freedom Restoration Act (RFRA)
RFRA provides that the government generally cannot substantially burden a person's exercise of religion, even when the burden comes from a generally applicable rule.
However, there is an important exception.
The government may substantially burden religious exercise if the action:
Serves a compelling government interest, AND
Uses the least restrictive means of achieving that interest.