Flashcards in Ch. 4 Constitutional Authority to Regulate Business Deck (30)
What is a federal form of government?
the national government and the states share sovereign power
What are police powers?
state regulatory powers, they have the power to regulate affairs within their borders stemming from the concept that states have reserved powers that have not been delegated to the national government
What is the privileges and immunities clause?
prevents states from imposing unreasonable burdens on citizens of another state. when a citizen of one state engages in activity in another they must have substantial reason to treat them differently
What is the full faith and credit clause?
it applies only to civil matters, it ensures that rights under deeds wills and contracts will be honored by other states
What is the system of checks and balances?
it allows for each branch to limit the powers of the other branches, thus preventing any one branch from exercising too much power
What are the three branches of government?
Legislative, executive, judicial
What does the executive branch do?
responsible for foreign affairs, constitutional authority to veto laws brought about by the legislative branch and enforces the laws
What does the legislative branch do?
can enact laws and make them
What does the judicial branch do?
power to hold actions of the other two branches unconstitutional
What is the commerce clause?
Congress has the power to regulate interstate commerce with foreign nations and among the several states and with the indian tribes to prevent states from making laws that would interfere with interstate trade
How did Gibbons v. Ogden affect the commerce clause?
it expanded the clause to cover the activities that "substantially affect interstate commerce" This also expanded regulatory powers in that any activities that seemed purely local came before the national government if it seemed to affect interstate commerce
What is the commerce clause like today?
it permits the national government to legislate in areas that the government has not explicitly been been granted power
What is the "dormant" commerce clause?
states do not have the power to regulate interstate commerce, "dormant" because this is not explicitly stated within the clause. The "positive" part is the express grant of power to the national government
What are the bill of rights?
adopted in 1971, embody a series of protections for the individual against various types of interference by the federal government
What is symbolic speech?
gestures, movements, articles of clothing, and other forms of expressive conduct
What are reasonable restrictions to freedom of speech?
oral, written, or symbolized conduct by expression are all subject to reasonable restrictions. the courts must find a balance between protecting its citizens and their exercise of rights
A restriction on commercial speech is valid as long as it meets these three criteria.
(1) it must seek to implement a substantial government interest, (2) it must directly advance that interest (3) it must go no further than necessary to accomplish its objective
What are two examples of unprotected speech?
(1) obscene speech: speech is considered obscene if a. the average person finds that it violates community standards b. the work appeals to an obsessive interest in sex c. it shows patently offensive sexual conduct d. the work lacks serious redeeming literary, artistic, political, or scientific merit.
(2) online obscenity: pornography, child pornography
What are the two clauses that make up the freedom of religion?
1st amendment states that the government cannot establish any religion nor prohibit any religion. establishment clause: the government cannot establish a state sponsored religion nor can it show any preference. the free exercise clause: guarantees that a person can hold any religious belief they want. the state cannot force you to do anything that goes against your religion unless a life is in danger or the welfare of the state is threatened.
What is a search warrant?
an order from the judge or other public official authoring search or seizure since the 4th amendment protects the right of people to be secure in their homes. there must be probable cause (trustworthy evidence to convince that the search is more likely justified than not) for a search warrant to be granted.
What is self incrimination?
being compelled in any criminal case to be a witness against himself, we are protected against this in the fifth amendment
What is the due process clause?
no person shall be deprived of life liberty or property without due process of law. This clause contains two portions. Procedural and substantive.
What does procedural due process require?
requires that any government decision to take life liberty or property must be made equitable, they must be given proper notice and an opportunity to be heard.
What does substantive due process do?
protects and individuals life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them. laws should be clear and understood and not overly broad
What is the equal protection clause?
the government cannot enact laws that treat similarly situated people differently
What does it mean for a law to be under "strict scrutiny"?
it means that that law inhibits some person from exercising a fundamental right then the law can be under strict scrutiny by the courts. under this standard the classification must be necessary to promote a compelling state interest.
When is intermediate scrutiny applied?
in cases involving discrimination based on gender or legitimacy. laws using this classification must be substantially related to important government objectives
What is the rational basis test?
in matters of economic or social welfare, a classification will be considered valid if there is any rational basis on which the classification might relate to a legitimate government interest.
What is a pretext?
a false motive put forth to hide the real motive and pretexting is the process of obtaining information by false means