Ch 3 Flashcards
Constitutional Law
The courts have the ultimate authority. They decide what the law is. They are at the top of the pyramid. Checks and balances. Congress can pass a law, president veto, congress can overrise the veto.
State Authority to regulate
US Constitution does not say what the states can do. It doesn’t list powers that states have, instead what it does say certain things states cannot do and only be done at the federal level. (ex. Print money or declaring war)
Federal Authority to regulate
There are 3 main areas in which congress is allowed to pass laws.
a. The Commerce Clause (Article 1 section 8)
Says that congress has the power to regulate commerce (business) among the states.
Congress has the power to regulate entrust state business (business that doesn’t cross state lines) if it can have a significant effect in entrust state commerce.
b. Authority to tax
Constitution states that “The congress shall have power to lay and collect taxes, duties, imposts, and excises”. (Ex. Theres a cigeratte tax, whenever you buy a pack of cigs you pay a federal tax on it).
c. Congress has the authority to spend our money. (The spending power)
Ability to spend for general welfare. REQUIRED: must serve GENERAL public purpose, clearly define what they are doing, condition must be related to purpose underlying federal expenditures.
- How do we know if a law is unconstitutional?
Means End Test…
There are 3 ways to figure out if a law is unconstituttional.
1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny
Incorporation
Has nothing to do with turning a business into a corporation.
If you look at the bill of rights (first 10 amendments) basically says that the state and federal governments can’t do certain things. (Ex. 5th amendment says the fed gov can’t take away our life, liberty, or property without giving us due process. It’s interpreted as both fed and state.)
The idea of incorporation is that when you look at the bill of rights, they are interrupted as if they are talking about both state and federal governments.
Government Action
With regard to many of the rights we have under the constitution, we cannot claim a violation unless it’s the state or fed or state government that has done something. (If a corporation bans you from something, there is no constitutional violation. Ex. Twitter banning trump)
Means End Test
-test to see if laws are constitutional
1. Rational Basis
2.intermediate scrutiny
3.strict scrutiny
Strict Scrutiny
Is the law necessary to accomplishment a compelling government purpose. Almost every time this test is used, the law is unconstitutional. (colleges can’t pick off students based off race)
Rational Basis
A law is constitutional if it has a reasonable relation to the achievement of a legitimate government purpose. (Ex. Endangered species act) If the court uses this test, almost always the law will be constitutional.
Intermediate Scrutiny
Is the law substianally related to the achievement of an important government purpose.
(We often used this test when Men and women are treated differently. Ex. A state law said that if you want to be a fire fighter, you have to pass certain physical test about strength, speed, and height because we want FF to save lives during fires. Those conditions when applied, discriminate against women. But is still constitutional because its about savings lives)
What first amendment rights do corporations have?
Basically, have the same first amendment rights that individual has (except advertising).
How many rules are there about advertising? What are they?
There are 3 rules about advertising
1) If the advertising is false or misleading, the government is allowed to ban it. “deceptive”
There is zero first amendment protection.
2) If the ad proposes an illegal transaction, the government can ban it.
There is zero first amendment protection.
3) Even if there are no misleading, no illegal transactions, the government can still ban it.
What are the limitations of rule 3? (banning ads)
It has to prove 3 things.
1) Gov must show that it has a substantial interest in prohibiting the advertising.
2) The restriction it wants to put on the advertising is going to accomplish whatever interest the government has in restricting/prohibiting the advertising.
3) The Government must show that there isn’t another way to accomplish its goal other than restricting the advertisement.
Due Process
Is in the 5th and 14th amendment and basically says that state and federal government cannot deprive us of life, liberty, or property without due process.
There are two kinds of Due process (exam)
What are the two kinds of due process?
- Procedural Due process
- Substantive Due process
- Procedural Due process
If the government is going to take away our life, liberty, or property. They must do 2 things.
They have to give us notice. AND you have to get a hearing or an equivalent of a hearing.
If the government doesn’t meet that process, they are in violation of due process.
- Substantive Due process
Is basically an interpretation by the federal courts of the US constitution that creates protection of non-economic (privacy) rights that are basically privacy rights that deal with marriage and re production. Simply an interpretation of the constitution. It’s not actual in the constitution.
(Ex. Abortion. Roe v Wade said that there was a federal constitutional right that women had the right to have an abortion within some limits, but they overturned it by saying that it is not a constitutional right giving power to the states to decide. Also, Same sex marriage.)
Fundamental rights
Any first amendment rights; Examples: 1. right to privacy, 2. right to travel, 3. right to vote. 4. right to get married.
Equal Protection
14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination.
*neither federal or state can violate this
How does a court decide if there is an equal protection violation?
Means end test.
There are 3 tests
- Intermediate Scrutiny
- Rational basis test
- Strict Scrutiny
Suspect Classification
A classification, such as race , that provides the basis for a discriminatory law.
Examples of Suspect Classification
- Laws that treat people differently based on race or national origins (strict scrutiny).
- Laws based on citizenship…. alien or not. (intermediate scrutiny), unless it deals with employment such as a state trooper, teacher or probation officer => (Use rational basis, always constitutional to discriminate)
- Sex / gender (intermediate scrutiny)- must be related to the furtherance of an important government purpose.
- Illegitimacy. The Court has struck down state laws discriminating against so-called “illegitimate” offspring in areas such as recovery for wrongful death, child support, etc. (Intermediate scrutiny)
Commerce Clause
Commerce clause: congress is allowed to regulation interstate commerce but also prevents states from discriminating against interstate commerce.
State discrimination against interstate commerce (business that crosses state lines)
A state may not prohibit the entry of a foreign corporation into its territory for the purpose of engaging in interstate commerce, nor can it impose conditions or restrictions on the conduct of foreign or interstate business by such corporations. When intrastate business is involved, it may do so
