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Unformatted text preview: Chapter 5
Constitutional Law Constitutional Powers of Government The Articles of Confederation 1781 Established independent states and central government with limited powers. Sovereign power = supreme power to which no other authority is superior or equal. Problems with Confederation Various state law hampered national commerce and foreign trade. Prevented free movement of goods and services across state lines. Because of problems = Constitutional convention was necessary which resulted in U.S. Constitution. Federal Form of Government States rights vs. Strong Federal govt. Federalists vs. Anti Federalists. Thomas Jefferson vs. George Washington Great compromise...10th Amendment Special States Rights Sections 10th Amendment = U.S. Constitution The Privileges and Immunities Clause= "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Art. IV, Section 2. The Full Faith and Credit = "shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Art. IV, Section 1. Separation of Powers Doctrine 3 equal branches of government Legislative = Art. I: makes law Executive = Art. II: enforces law Judicial = Art. III: interprets law Check and Balances The Commerce Clause Established to prevent states from establishing laws that would interfere with trade and commerce...specifically give the federal govt power to regulate it. Art. I, Section 8, expressly gives power to regulate Commerce with foreign Nations and among the several States and with the Indian tribes. Police Powers of the States 10 Amendment gives to States... reserves all power not delegated to the national government to the states or "to the people"... Generally means States and cities can regulate the "health, safety, welfare and morals" for the good of the people. The Supremacy Clause Article VI = supremacy clause. It states the Constitution, laws and treaties of the United States are "the supreme Law of the Land". (Judicial Review. Section 2: Business and The Bill of Rights First 10 Amendments called Bill of Rights Major compromise to get Constitution ratified by the States. Written by James Madison. Limits " State Action" See exhibit 51 in book Freedom of Speech 1st Amendment. Types of Speech: Symbolic speech Flag burning Corporate political speech donations Commercial speech misleading ads. Unprotected Speech Speech that is not protected by the 1st A Fighting words. Miller v. California, 413 U.S. 15 (1973) Obscene speech defined 1. average person finds it violates contemporary community standards 2. the work taken as a whole appeals to a prurient interests (arousing) interest in sex. Obscene con't 3. the work shows patently offensive conduct; and 4. the work lacks serious redeeming literary, artistic, political or scientific merit. Generally unsettled..... Generally know it when you see it.. Freedom of Religion 1st Amendment Congress "shall make no law respecting an establishment of religion of the free exercise thereof; Two clauses Establishment Free Exercise Search and Seizures 4th Amendment two different things Search warrants must be based on probable cause. Probable cause = the officers must have trustworthy evidence that would convince a reasonable person that a proposed search is more justified than not. Section 3 : Due process 5th and 14th Amendments Two types: If Fundamental rights involved, heighten scrutiny used 1. Procedural: the process must be fair. 2. Substantive: focuses on content Equal Protection (of the law) Basically means the government must treat similarly situated individuals in a similar manner. Examples : NORA =National Origin, Race, Alienage, (discrimination). Section 4: Privacy Rights
"Privacy" is not mention anywhere in Constitution. Right of Privacy created by case law in Griswold v. Connecticut, 277 U.S. 438 (1965). Case held right of privacy was implied by 1st, 3rd, 4th, 5th and 9th Amendments. Medical Information Congress passed the Health Insurance Portability and Accountability Act in 1996. Called HIPAA and requires informing patients of certain privacy rights. Can't give out information without consent. Patriot Act Passed by Congress in response to 911 attack. Commonly called the USA Patriot Act and gives increased authority to government officials to monitor internet activities and gain access to personal financial information. Telephone calls can be listened for information.... Bonus Question How many Amendments are there to the U.S. Constitution...... ...
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- Fall '08