chapter_5_constitutional_law

chapter_5_constitutional_law - The Legal Environment of...

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Unformatted text preview: The Legal Environment of Business Chapter 5 Constitutional Law Constitutional Law The beginning Articles of Confederation Constitutional Convention Constitution established a limited national government based on federalism. Established 3 branches of government: legislative, executive and judicial Gave limited powers to the national government 10th Amendment gave all powers not delegated to the national government to the states. Constitutional Law The Constitution establishes relations among the states The Privileges and Immunities Clause (Art. IV, Sec. 2). States must treat non-state residents the same as state residents. No discrimination against "foreigners" The Full Faith and Credit Clause (Art. IV, Sec. 1). States must honor the civil laws and judicial decisions of other states (divorce, wills, etc). Missouri Jokes Ten ways to tell if your computer came from Missouri: 10. The monitor is up on blocks. 9. Outgoing faxes have tobacco stains on them. 8. The six front keys have rotted out. 7. The extra RAM ports have truck parts stored in them. 6. The numeric keypad only goes up to six. 5. The password is "Bubba". 4. There's a gun rack mounted on the CPU. 3. There's a Coors can in the cup holder(CD-ROM drive). 2. The keyboard is camouflaged. 1. The mouse is referred to as a "critter". Constitutional Law Separation of Powers the Constitution establishes a system of checks and balances between the three branches of the federal government. Commerce Clause (Art. I, Sec. 8). In order to make uniform laws apply to interstate commerce, the Constitution gives Congress the power to regulate commerce "among the several states." Courts have interpreted this power to include almost any activity that was commercial. Heart of Atlanta Motel v. United States. Constitutional Law States law power 10th amendment left all "other" power to the states State regulatory powers are called the Police Powers Police powers give the states the right to regulate the public order, health, safety, morals and general welfare. Constitutional Law "Dormant" Commerce Clause implied in the commerce clause that states do not have the power to regulate interstate commerce. Courts will strike down state laws that restrict interstate commerce Courts use a balancing test the state's need to regulate vs. the effect on commerce. Constitutional Law Supremacy Clause establishes the Constitution and federal laws and treaties as the supreme law of the land (Art. VI). If a state law conflicts with a federal law, the state law is void. Concurrent jurisdiction when the federal and state governments both regulate in a certain area of law. Preemption Congress may choose to act exclusively in a certain area, and if so, all state laws are subject to federal laws. How to tell: 1. or 2. Federal regulatory agency is created to enforce Federal law is pervasive in an area (occupying the field), Constitutional Law Bill of Rights (1st 10 Amendments) contain "civil rights" which prohibit the government from infringing on certain rights of all citizens Incorporation Initially, the B.O.R. only applied to the federal government, but almost all have been incorporated to the states through the 14th Amendment Constitutional Law Freedom of Speech (1st Amendment) Congress shall pass no law abridging the freedom of speech. Symbolic speech (gestures, movements, clothing, expressive conduct) given substantial protection by the courts Flag burning, arm bands, even cross burning speech is given the most protection Not all speech enjoys absolute protection Political Constitutional Law Commercial Speech speech and communication made by businesses (including corporations), usually advertising. Not given as much protection as political speech Restrictions will be upheld if: It is necessary to implement a substantial government interest, and It directly advances that interest, and It must go no further than necessary (Bad Frog Brewery v. NY) Constitutional Law Unprotected Defamatory speech libel or slander Criminal speech harassment, assault "fighting words" those designed to bring about imminent lawless action Obscenity Test? Miller v. California, uses the "contemporary community standards" Internet obscenity hard to regulate, what is the "community"? Constitutional Law Freedom of Religion clause shall make no law respecting an establishment Establishment "Congress of religion" Prohibits the government from creating a state-imposed religion. 1st Amendment does not require a complete separation of church and state, only state sponsorship of one religion over another Blue laws, school prayer, teaching creation/evolution, vouchers Courts try to balance accommodation with promotion. Constitutional Law Freedom Free of Religion Exercise Clause "Congress shall make no law prohibiting the free exercise of religion" State cannot stop someone from believing in his/her religion Certain religious practices can be limited Employers must make reasonable accommodations for the religion of their employees Constitutional Law Fourth Amendment requirement "probable cause" Warrant Exceptions to warrant requirement exigent circumstances, plain sight Applies to businesses, but probable cause not is not required for regulatory searches, lesser standard Not required at all for highly regulated businesses like liquor, guns, strip mining Applies to business records held by others (accountants, lawyers, etc.) Constitutional Law Fifth Amendment prohibition against self incrimination Only applies to natural persons, not corporations or even partnerships Corps and P-ships can be compelled to turn over business records, etc. Constitutional Law Due Process (5th and 14th) no citizen shall be deprived of life, liberty or property without due process of law. Procedural due process before gov. can take, there must be a fair procedure and an opportunity to be heard Substantive due process requires the content of the law to be fair. If the law involves a "fundamental right", then the government must show it has a compelling interest in regulating. If the law does not involve a fundamental right, then all the government must show is that the law "rationally relates to a legitimate purpose." Constitutional Law Equal Protection the government must treat similarly situated people equally. Tests: Strict scrutiny If a law restricts one group's fundamental rights, and "Suspect class" Intermediate scrutiny discrimination of laws based on gender or legitimacy Rational basis in matters of economic or social welfare, law may be upheld as long as the gov. can give a rational basis for it. ...
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