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The constitutional powers of the government
-First: Articles of confederation

-Power remained with the states
-But there were serious problems-trade and commerce, economic depression, debtors prisons, no way for country to get revenue (levying taxes).
-Convention was called to amend the Articles of Confederation, but instead we got a new constitution.


Federalism and the Separation of powers

-Some wanted power to remain with states, some in a central power. The Constitution created a compromise.


-Federal form of government

in which the national government and the states share power. This is 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.


Some were afraid the federal government might use its powers arbitrarily- to prevent this federal government was divided into 3 branches

1. Legislative Branch- Makes the laws.
2. Executive Branch- Enforces the laws.
3. Judicial Branch- Interprets the laws.
10th amendment- establishes that those powers neither delegated to the federal government nor denied to the states are reserved for the states.


system of checks and balances

- each branch has actions it can do to limit the other 2 branches power.


checks and balances (continued)

-Congress enacts laws but president can veto.
-President is in charge of foreign affairs, but treaties require the advice and consent of the senate.
-Congress determines the jurisdiction of the Federal courts and the president appoints federal judges, with the advice and consent of the Senate, but the judicial branch has the power to hold actions of the other two branches unconstitutional


Commerce Clause

To promote continuity in trade and commerce among the states, the constitution expressly delegated to the Federal government the power to regulate interstate commerce.


commerce clause continued

-Commerce clause has greater impact in business than any other provision of the constitution.
-Article 1, Section 8 states that the congress has the power to “regulate commerce with foreign nations and among the several states and with the Indian tribes.”
-At first, the commerce clause was interpreted as being limited to interstate commerce (commerce among the various states) and not applicable to intrastate commerce (commerce within a particular state).


Gibbons V. Ogden

, Ogden worked for Fulton and New York gave Fulton a monopoly on steam navigation on the waters of New York. The U.S. government also gave Gibbons one.

In this case the U.S. Supreme Court held that commerce within states could also be regulated by the national government as long as the commerce substantially affected commerce involving more than one state.


-Wickard V.Filburn-

U.S. Supreme Court said yes in this case in 1942 reasoning that the home consumption of wheat reduced the demand for wheat and thus could have a substantial effect on interstate commerce.
-Basically, the Commerce Clause authorizes the Federal government to regulate almost every commercial enterprise in the U.S. and every major activity conducted by businesses.
-ex: hiring and firing, work place safety, competitive practices, competition for business, how businesses finances their operations, etc.


-Under the Commerce Clause, could Congress enact a law such as the Gun- Free School Zones Act of 1990, which banned possession of guns within 1000 feet of any school.

-1995, court held this act was unconstitutional because it attempted to regulate an area that had nothing to do with commerce.
-First time in 60 years that U.S. Supreme Court ruled that congress has exceeded its regulatory authority under the commerce clause.


Heart of Atlanta Motel v. U.S.

-First half of 20th century racial segregation was allowed.
-1964-Civil Rights Acts, prohibited racial discrimination in establishments affecting interstate commerce including places of public accommodation.
-Motel refused to rent rooms to African Americans
-Motel brought suit seeking to have the 1964 act declared unconstitutional.
-Motel argued that it was not engaged in interstate commerce but was “of a purely local character.”
-The Motel was accessible to state and interstate highways, advertised nationally, had billboards throughout state, had conventions from out of state groups (75% of the guests were residents of different states).
-Supreme Court upheld the act stating that African Americans experienced substantial discrimination in attempting to secure lodging while traveling, and this impeded interstate commerce.
-Even if a business is of a purely local character, if interstate commerce “feels the pinch, it does not matter how local the operation that applies the squeeze.”
-“The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities.”


• The Regulatory Powers of the States

• As part of their powers, states have the authority to regulate affairs within their borders. State regulatory powers are often referred to as police powers. These powers may be exercised to protect or promote: public order—criminal law enforcement
general welfare
• Ex: law enforcement, fire and building codes, anti-discrimination laws, zoning, parking regulations, etc.


Generally laws enacted pursuant to a state’s police powers carry a

strong presumption of validity


But the state law cannot substantially burden interstate commerce or it will be struck down as a violation of the commerce clause.
When state regulations affect interstate commerce, courts must balance the

state’s interest in the merits and purposes of the regulation against the burden placed on interstate commerce


• Raymond Motor Transportation, Inc. v. Rice

Wisconsin felt that trucks over a certain size endangered the public when on the roads so they limited the length of trucks traveling on their highways
U.S. Supreme Court struck down the regulation saying it substantially burdened interstate commerce and the contribution to public safety was speculative.
• Local governments derive their authority to regulate their community from the state because they are creatures of the state


• J.E. Goodenow v. City Council of Maquoketa, Iowa

2/3 of family farm on city party
 at one time the city mowed all of its right of ways, including the grass and weeds between its streets and the edge of the property of other land owners
City enacted an ordinance to require the owner of the adjoining property to mow those strips
Goodenow’s farm included hard to mow ditches requiring special mowers costing tens of thousands of dollars and hundreds of dollars a month in labor costs to mow the ditches
Court ruled the Goodenows must comply with ordinance
--was a valid exercise of police powers
--done to keep weeds and grasses low to ensure an adequate views of the roads
--statute was enacted for public safety to prevent an unsightly and unsafe situation to the public


a law does not become unconstitutional because it works a

hardship, including substantial expenditures


• U.S. Constitution authorizes the national government to regulate interstate commerce
• U.S. Supreme Court has interpreted this to mean that the federal government has the exclusive authority to regulate commerce that substantially affects trade and commerce among the states. This is considered the positive aspect of the

commerce clause


• But a negative aspect of the commerce clause is also implied—that the states do not

have the authority to regulate interstate commerce.
this is referred to as the “dormant” or implied commerce clause
this comes into play when state regulations hamper interstate commerce


• Recent issues involving the commerce clause—regulation of the internet
Internet transfers speech and information all over the world

1) Is Cyberspace interstate commerce? Yes
2) Does the commerce clause restrict states from interfering with cyberspace activity? Yes
3) Can a state pass legislation requiring state libraries to filter the data their patrons could access over the internet from the libraries computers? No
• Court said no reasoning that the burdens on interstate commerce relating from the statute clearly exceed any local benefit derived from it.


• Recent U.S. Supreme Court Case
U.S. government can withhold federal money if

public libraries do not equip their computers with anti-pornography filters (even though the filters don’t just keep out porn) ****Court rejected freedom of speech concerns


• Supremacy Clause

Article 6 of the Constitution provides that the Constitution, laws and treaties of the United States are the “Supreme law of the land.”
When a state law is in conflict with any of these it is invalid.
Because some powers are concurrent (shared by the federal government and the states), we must determine which law governs in a particular case. When Congress chooses to act exclusively in a concurrent area, it is said to have preempted the area.


Doctrine of Preemption—

a doctrine under which says certain federal laws preempt, or take precedence over conflicting state or local laws.
Courts when looking at preemption (whether Congress intended it on an issue)
---will see if the federal law regulating an activity is so persuasive, comprehensive, or detailed that states have little or no room to regulate--- if so then preemption will be found.
---if a federal statute creates an agency on the issue—ex: NLRB—to enforce the law, then matters coming under the agency’s jurisdiction will likely preempt state laws.


• Taxing and Spending Powers

---Article 1, Section 8-gives Congress the power to tax (as long as it bears a reasonable relationship to revenue production) and the power to spend the money it collects (pay the debts, provide for the common defense, promote the general welfare, etc.)


Business and the Bill of Rights

1st 10 Amendments to the U.S. Constitution
- Bill of Rights- protects individuals against various types of interference by the federal government
- Some the provisions of the Bill of Rights apply to business entities as well.
- At first, the Bill of Rights limited only the powers of the federal government.
o 14th Amendment- most of the rights were incorporated into the amendment and then applied to state governments as well (no state shall… deprive any person of life, liberty, or property, without due process of law)
First Amendment


first amendment :
freedom of speech

- probably our most cherished right
- courts have traditionally protected this right to the fullest extent possible
- Symbolic speech or nonverbal expressions of beliefs such as gestures, movements, clothing, etc. is also given substantial protection by the courts
- shooting a bird
- burning of American flag
- placing of a burning cross in another’s yard as a gesture of hate is protected speech in one case
-defendant charged under bias- motivated crime ordinance which prohibited the display of a symbol which one knows or has reason to know “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.
-courts ruled the law was too broad


Corporate Political Speech

o Also falls within the protection of the First Amendment
 Statute prohibiting a corporation from making political contributions that individuals could make held unconstitutional
 Law forbidding a corporation from using inserts in its bills to express a point of view on an issue held unconstitutional


Commercial Speech

o Courts also give substantial protection to commercial speech, which consists of communications- primarily advertising- made by business firms
o This speech is not as well protected as that given to noncommercial speech
 Misleading advertising
 Beautification of roadsides- gaudy, big billboards
 These can have restraints placed on their use
o Restrictions on commercial speech will be considered valid if it meets these 3 criteria:
1. It must seek to implement a substantial government interest
2. It must directly advance that interest AND
3. It must go no farther than necessary to accomplish this objective


Bad Frog Brewery Inc v. New York State Liquor Authority

 Bad Frog makes and sells alcoholic beverages
 Its New York distributor applied for a license to sell in New York
 Some of their labels displayed a frog shooting a bird
 NY denied application in part because the label was offensive and could appear on grocery and convenience store shelves where it would be exposed to children
 Did the denial violate Bad Frog’s first amendment rights?
 Court said yes
 NY’s interest in protecting children from vulgar and profane advertising was substantial
 But did banning Bad Frog directly advance that interest?
 Not when no effort was made to bar the wide currency of vulgar displays throughout contemporary society including comic books targeted at children
 A commercial speech limitation must be “part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.”
 Was the ban more extensive than necessary to serve this interest?
• Yes- less intrusive alternatives were available
o Placing restrictions on areas of a store in which the product could be displayed is less intrusive


Unprotected Speech

o Some types of speech do not have First Amendment protection
 Speech that harms the reputation of another- defamatory speech
 Speech violating criminal laws- threatening speech
 Fighting words- words likely to incite others to violence
 Obscene speech- material is obscene if:
1. The average person finds that it violates contemporary community standards
2. The work taken as a whole appeals to a purient interest in sex
3. The work shows patently offensive sexual conduct AND
4. The work lacks serious redeeming literary, artistic, political, or scientific merit


2. Freedom of Religion

 2 clauses:
1. Establishment Clause
• The government may not establish any religion
2. Free Exercise Clause
• Congress may not make any law “prohibiting the free exercise” of religion
 Establishment Clause
• Government cannot establish a state sponsored religion or pass laws that promote (aid or endorse) religion or show preference for one religion over another
• Does not require a complete separation of church and state- government must accommodate religion
• Supreme Court rule- to be Constitutional, a government law or policy concerning religion must
1. Be secular in aim
2. Not have the primary effect of advancing or inhibiting religions AND
3. Not create “an excessive government entanglement with religion
• Ex: Sunday closing laws (Blue Laws)
• Have been upheld on the ground that it is a legitimate function of government to provide workers with a day of rest
• Secular purpose of promoting health and safety of workers
• Even though these laws make it easier for Christians to attend church, this is viewed as an incidental effect, not a primary effect of the law
 Ex: Religious displays on public property
• Holiday displays
• 10 Commandments in courthouse
• These depend on exact facts- are these displays close to secular symbols?