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Unformatted text preview: CHAPTER 5 CONSTITUTIONAL LAW Articles of Confederation First constitution of the original 13 states Failed to give the federal government much power Replaced by the Constitution in 1788 – Lack of taxing and regulatory authority led to “balkanization” GOVERNMENT POWER One in a Million – The Constitution of The United States is one of the greatest legal documents ever written – Drafted in 1787 – BUT STILL RELEVANT TODAY – It is certainly not a perfect document – The Constitution Relatively brief which gives it endurance Leave room for interpretation and “fleshing out” Versatile enough to resolve a wide variety of conflicts Flexible enough to deal with the issues of a changing world OVERVIEW The United States was the first nation in modern history founded on the idea that people could govern themselves, democratically Articles of Confederation had problems 1787 – States sent a group of 55 delegates to Philadelphia to amend the Articles of Confederation – instead they drafted a new document Debates raged over how much power to give the federal government, the states and the people. As a result, the Constitution is a series of compromises about power OVERVIEW Separation of Powers – Article I of the Constitution created a Congress, which was to have legislative power Federalism ­­ the national government’s power is limited to only the issues listed in Article I, §8 – Article II of the Constitution created the office of the President, defining the scope of executive power – Article III established judicial power by creating the Supreme Court and permitting additional federal courts – Each branch is designed to be independent and equal and to act as a check and balance on the others OVERVIEW Federalism Individual Rights – The national government has considerable power, but it is limited power – The original Constitution was silent about the rights of citizens – In 1791, the first 10 amendments, known as the Bill of Rights, were added to the Constitution, guaranteeing many liberties directly to individual citizens POWER GRANTED Congressional Power – Article I of the Constitution creates the Congress with its two houses – Representation in the House of Representatives is proportionate with a state’s population – Each state elects two Senators POWER GRANTED – Interstate Commerce “The Congress shall have power to regulate commerce with foreign nations, and among the several states.” This is the Commerce Clause. International Commerce – Exclusive Power Domestic Commerce – Concurrent Power – Positive Aspect: Congressional power to regulate interstate commerce – Negative or Dormant Aspect: A limit on the states’ power to regulate interstate commerce – Wickard v. Filburn (1942) Congress may regulate any activity that has a substantial economic effect on interstate commerce Substantial Effect Rule Wickard v. Filburn ­ Facts: Must be read in the background of the Great Depression, New Deal, and the beginning of WWII. In July 1940, pursuant to the Agricultural Adjustment Act of 1938, Filburn's 1941 allotment was established at 11.1 acres and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices Filburn planted23 acres and harvested 239 bushels from his 11.9 acres of excess area. District Court ruled in favor of Filburn. Issue: Did Congress have the authority to regulate Filburn’s activities even though none of Filburn’s wheat crossed state lines? Holding: Yes – Congress may regulate any activity that has a “substantial effect” on interstate commerce. The intended rationale of the Agricultural Adjustment Act was to stabilize the price of wheat on the national market. The federal government has the power to regulate interstate commerce through the Interstate Commerce Clause of the Constitution. In Filburn the Court unanimously reasoned that the power to regulate the price at which commerce occurs was inherent in the power to regulate commerce. United States v. Lopez ­ Facts: Lopez was a 12th grade student who carried a concealed pistol and ammo into the school. He was charged with violation of the federal Gun­Free School Zones Act of 1990. Lopez moved to dismiss the indictment on the ground that §922(q) of the Act was "unconstitutional as it is beyond the power of Congress to legislate control over our public schools." The trial court denied the motion, ruling that §922(q) was "a constitutional exercise of Congress' well defined power to regulate activities in and affecting commerce, and the `business' of elementary, middle and high schools . . . affects interstate commerce.” Lopez was tried and convicted. He appealed, claiming that §922(q) exceeded Congress' power to legislate under the commerce clause. The Court of Appeals agreed and reversed his conviction, holding that "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause.“ The government appealed to the Supreme Court of the United States. Issue: Did Congress have the authority to enact the Gun­Free School Zone Act by virtue of the authority granted in the Commerce Clause? Holding: No – this is the first Supreme Court case since the Great Depression to set limits on Congressional regulatory powers regarding interstate commerce. United States v. Lopez ­ In a 5­4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was not unlimited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale. Chief Justice Rehnquist, delivering the opinion of the Court, identified the three broad categories of activity that Congress could regulate under the Commerce Clause: – – – the channels of interstate commerce, the instrumentalities of interstate commerce, or persons or things in interstate commerce, and activities that substantially affect or substantially relate to interstate commerce The Court summarily dismissed any consideration of the first two categories and concluded that the resolution of the case depended only on consideration of the third category—regulation of activities that substantially affect interstate commerce. The Court essentially concluded that in no way was the carrying of handguns a commercial activity or even related to any sort of economic enterprise, even under the most extravagant definitions. The opinion rejected the government's argument that because crime negatively impacted education, Congress might have reasonably concluded that crime in schools substantially affects commerce. POWER GRANTED State Legislative Power – The “dormant” or “negative” aspect of the Commerce Clause governs states efforts to regulate interstate commerce – The dormant aspect holds that a state statute that discriminates against interstate commerce is invariably unconstitutional. – Granholm v. Heald (2005) Granholm v. Heald (2005) Facts: Laws in New York and Michigan permitted in­state wineries to ship wine directly to consumers, but prohibited out­of­state wineries from doing the same. Although direct shipments to consumers constituted only about 2% of wine sales in the United States (whose total sales were $21.6 billion in 2003), direct sales were thought to be an opportunity for growth. Typically a winery could only distribute wine by selling it to a wholesaler in the state. The wholesaler could then distribute the wine to retailers or sell directly to consumers. This made the large wholesalers very powerful in the wine industry; if wholesalers in New York decided not to purchase wine from a particular winery, then that winery would be completely shut out of the New York market. Local residents and out­of­state wineries sued claiming the regulations violated the Dormant Commerce Clause Issue: Did the regulations violate the Dormant Commerce Clause? Result: The 5­4 decision ruled that the laws that permitted in­state wineries to ship wine directly to consumers, but prohibited out­of­state wineries from doing the same are unconstitutional because the states could not demonstrate an important goal POWER GRANTED Supremacy Clause – If there is conflict between statutes, the federal controls the issue and the state statute is void. – Even with no direct conflict, federal law will prevail if the issue is one that Congress controls exclusively. – So, state law prevails only when there is no opposing federal law and no exclusive federal control. – The Supremacy Clause states that the Constitution, and federal statutes and treaties, shall be the supreme law of the land POWER GRANTED Executive Power – Article II of the Constitution defines the executive power – Appointment – Legislation The President nominates the heads of most administrative agencies The President ant his or her advisers propose bills to Congress The President also has power to veto bills The President conducts the nation’s foreign affairs The President is the commander in chief of the armed forces Article II does not give the President the power to declare war – only the Congress may do that – Foreign Policy POWER GRANTED Judicial Power – Article III of the Constitution creates the Supreme Court and permits Congress to establish lower courts within the federal court system – Adjudicating Cases – Judicial Review The federal court system hears both criminal and civil cases Marbury v. Madison (1803) Judicial review refers to the power of federal courts to declare a statute or governmental action unconstitutional or void Youngstown Sheet & Tube Co. v. Sawyer (1952) – Did the president have the constitutional power to seize the steel mills ? ­ NO Judicial Activism v. Judicial Restraint Judicial Activism v. Judicial Restraint "Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?” Kennedy v. Louisiana Facts: Patrick Kennedy raped his eight­year­old stepdaughter L.H. A forensic expert testified that L.H.’s injuries were the most severe he has ever witnessed from a sexual assault. The jury also heard evidence that Kennedy had raped another eight­year­old girl. Kennedy was convicted of aggravated rape, because the victim was under twelve years old. The jury voted to sentence Kennedy to death. The state supreme court affirmed the sentence and Kennedy appealed to the United States Supreme Court. Kennedy argued that the Louisiana statute allowing the death penalty for the rape of a child was unconstitutional. The Eighth Amendment prohibits cruel and unusual punishment, which includes penalties that are out of proportion with the crime. Kennedy claimed that capital punishment was out of proportion to rape and thus violated the Eighth Amendment. Kennedy v. Louisiana Issue: Did the Louisiana statute violate the Constitution by permitting the death penalty in a case of child rape? Is it proper for the Supreme Court to decide this issue? Result: The Eighth Amendment mandates that the State’s power to punish be exercised within the limits of civilized standards. Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. Consistent with evolving standards of decency and the teachings of our precedents we conclude that , in determining whether the death penalty is excessive, there is a distinction between intentional first­degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, “they cannot be compared to murder in their “ severity and irrevocability. PROTECTED RIGHTS Constitutional rights generally protect only against governmental acts Incorporation First Amendment: Free Speech – Constitutional protections apply to federal, state and local governments – “Congress shall make no law…abridging the freedom of speech…” – Texas v. Johnson (1989) Texas v. Johnson Facts: In 1984, outside the Republican National Convention in Dallas, Gregory Johnson participated in a protest against policies of the Reagan administration. Participants gave speeches and handed out leaflets. Johnson burned an American flag. He was arrested and convicted under a Texas statute that prohibited desecrating the flag, but the Texas Court of Criminal Appeals reversed on the grounds that the conviction violated the First Amendment. Texas appealed to the United States Supreme Court. Issue: Does the First Amendment protect flag burning? Holding: Yes, the First Amendment protects flag burning. The Amendment literally protects“speech,” but the court has long included other conduct that “conveys a particularized message.” Flag burning is symbolic speech. As to whether this form of symbolic speech should receive protection the Court stated “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.” PROTECTED RIGHTS – Political Speech – Time, Place and Manner Given the highest level of protection May not be barred even when offensive or outrageous The speech lacks protection only if it is intended and likely to create imminent lawless action Even when speech is protected, the government may regulate the time, place and manner of such speech Madsen v. Women’s Health Center PROTECTED RIGHTS – Morality and Obscenity Obscenity has never received constitutional protection What is obscene? – Miller v. California (1973) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value – Luke Records, Inc. v. Navarro (1992) – Barnes v. Glen Theatre, Inc. (1991) – Restrictions of material online Barnes v. Glen Theatre ­ p. 112 Facts: Indiana's public indecency statute prohibits any person from appearing nude in a public place. A nightclub called the Kitty Kat Lounge, and several dancers who wished to perform nude, filed suit, seeking an order that the statute was unconstitutional. The United States District Court ruled that the dancing was not expressive conduct. The Court of Appeals reversed, declaring that it was nonobscene expressive conduct and thus protected by the First Amendment. Indiana did not argue that the dancing was obscene. (If that were the issue, the Miller test would have determined the outcome.) Instead, Indiana claimed that its general police powers, including the power to protect social order, allowed it to enforce such a statute. Issue: Does Indiana's public indecency statute violate the First Amendment? Holding: Although the Court was sharply divided, it upheld the statute. The Court, per Chief Justice Rehnquist, held that this dance is expressive conduct but only within the outer perimeters of First Amendment protection. The state has a substantial interest in protecting societal order and morality and, as this statute only incidentally limits some expressive activity, it does not violate the First Amendment. PROTECTED RIGHTS – Commercial Speech Speech that has a dominant theme to propose a commercial transaction Commercial speech that is false or misleading may be outlawed altogether Regulations on commercial speech are easier to put in place than regulations on political speech, but regulations on commercial speech must be reasonable and directed to a legitimate goal Salib v. City of Mesa – p. 113 Facts: Edward Salib owned a Winchell’s Donut House in Mesa, Arizona. Salib displayed large signs in his store window. The City ordered Salib to remove the signs as they violated the Sign Code which prohibited covering more than 30% of store’s windows with signs. Salib sued claiming the Sign Code violated his First Amendment rights. The trial court ruled in favor of Mesa, and Salib appealed. Issue: Did Mesa’s Sign Code violate the First Amendment? Salib v. City of Mesa – p. 113 Holding: No, the trial court ruling is affirmed. Commercial speech that concerns any unlawful activity or that which is false or misleading is not protected by the First Amendment. However, all other speech may be regulated if the government can satisfy a three­prong test. First, the government must show a substantial interest in support of the regulation. Both parties agree that aesthetics is such a substantial interest. Second, the government must show that the challenged regulation advances that interest in a direct and material way. Mesa claims that the Sign Code was passed in response to legitimate concerns of business owners that many businesses in the area had 100% window coverage and that detracted from the aesthetic of the city. The constitution does not require studies to show that the city’s interests are being advanced by the regulation. Lastly, Salib argues that the Sign Code is not narrowly tailored. However, narrowly tailored does not mean that the last restrictive means must be used to accomplish the City’s goals. A “reasonable fit” between the intent of the law and the means used to accomplish that intent is sufficient. Mesa claims that 30% is a reasonable compromise between 100% coverage and a total ban on signage. The court is not in a position to determine what percentage of coverage is the best solution, only that the 30% standard adopted by the City was reasonable in order to fulfill the goals of the Code. Protected Rights: Free Speech – Speech includes non­verbal communication, such as signs, symbols and acts (like flag­ burning). – Political speech ­­ about a politician or political process is protected, and can be found illegal only if it is intended and likely to promote lawless conduct. – Legal speech may be limited in time, place & manner. – Obscenity is not protected by the Constitution. – Commercial speech ­­ designed to propose a commercial transaction ­­ is regulated more strictly than other speech and may be outlawed if false or misleading. PROTECTED RIGHTS Fifth Amendment: Due Process and the Takings Clause – “No person shall be…deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation” – Fifth Amendment – Due process protections apply to the government in civil and criminal matters PROTECTED RIGHTS – Procedural Due Process (civil) – The Takings Clause Before depriving anyone of liberty or property, the government must go through certain procedures to ensure that the result is fair When the government takes property for public use, such as to build a new highway, it has to pay a fair price Some rights are so fundamental that the government may not take them from us at all – Substantive Due Process PROTECTED RIGHTS – Procedural Due Process (civil) The purpose of procedural due process is to ensure that before the government takes liberty or property, the affected person has a fair chance to oppose the action Is the government attempting to take liberty or property? How much process is due? – What sort of hearing the government must offer depends upon how important the property or liberty interest is and on whether the government has a competing need for efficiency – Must have a neutral factfinder PROTECTED RIGHTS – The Takings Clause The Takings Clause prohibits a state from taking private property for public use without just compensation Government can “take” land even without title actually changing hands Kelo v. City of New London – Before a government may require an owner to dedicate land to a public use, it must show that this owner’s proposed building requires this dedication of land Kelo v. City of New London ­ p. 118 Facts: New London, CT was declining economically. In order to revitalize the city, state and local officials decided to redevelop a section of the city called Fort Trumbull. The development plan included residential, business, and hotel use. The state bought most of the properties from willing sellers, but nine owners refused to sell and filed suit claiming the city was taking its land for private use in violation of the Takings Clause. Issues: Did the City’s plan violate the Takings Clause? Holding: No, the judgment of the Supreme Court of Connecticut is affirmed. A state cannot take the property of a private party and give it to another private party, even if the first party is compensated. However, a state may take property from a private party and give it to another if such taking is for a public use. PROTECTED RIGHTS – Substantive Due Process Court looks at the substantive rights impacted by laws Economic and Social Regulations – Generally speaking, the court will presume valid and statute that regulates economic or social conditions – The court will invalidate such laws only if they are arbitrary or irrational Fundamental Rights – Any law that infringes upon a fundamental right is presumed invalid and will be struck down unless it is necessary to a compelling government interest PROTECTED RIGHTS Fourteenth Amendment Equal Protection Clause – Shannon Faulkner – Citadel – The Fourteenth Amendment provides that “No State shall…deny to any person within its jurisdiction the equal protection of the laws” – Generally speaking, governments must treat people equally PROTECTED RIGHTS – Minimal Scrutiny: Economic and Social Relations – Intermediate Scrutiny: Gender Almost always upheld Upheld if rationally related to a legitimate goal – Strict Scrutiny: Race, Ethnicity, and Fundamental Rights Sometimes upheld Must substantially relate to important government objectives to be upheld Almost never upheld Any government action that intentionally discriminates against racial or ethnic minorities, or interferes with a fundamental right, is presumed invalid The law will be upheld only if it is necessary to promote a compelling state interest PROTECTED RIGHTS Private Regulations Common Interest Developments – Some neighborhoods have restrictive covenants which may supercede constitutional protection. – They may restrict owning of pets, color of paint, size of mailbox, outdoor signs or lawn decorations, even having children! – These restrictions are enforceable, even if stricter than the constitution, because the owners voluntarily accept them. ...
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