Chapter 4: constitutional law for business and e-commerce Flashcards
Declaration of Independence
document that declared the american colonies independence from England
Constitutional Convention
convened in Philadelphia in May 1787
US Constitution
fundamental law of the US (ratified by the states in 1788) serves two major functions:
- creates three branches of government
- protects individual rights
Federalism
the US form of government in which the federal government and the 50 states shared power
Enumerated Powers
certain powers delegated to the federal government by the states
Reserved Powers
any powers that are not specifically delegated to the federal government by the constitution are reserved to the state governments
Article I
establishes legislative branch (congress [house of representatives and senate]); the part of US government that makes federal laws
Article II
establishes executive branch (president and vice president); the part of the US government that enforces the federal law
Article III
establishes the judicial branch (supreme court and other federal courts); the part of the US government that interprets the law
Checks and Balances
a system built into the US Constitution to prevent and one of the 3 branches of the government from becoming too powerful
Supremacy Clause
a clause of the US Constitution that establishes the US constitution and federal treaties, laws, and regulations are the supreme law of the land
Preemption Doctrine
a doctrine that provides that federal law takes precedence over state or local law
Commerce Clause
a clause of the US constitution that grants congress the power to regulate commerce with foreign nations, and among the several, states and with indian tribes
Types of Commerce that the US regulates
- commerce with native tribes
- foreign commerce
- interstate commerce
Indian Gaming Regulatory Act
a federal statute that establishes the requirements for conducting casino gambling and other gaming activities on tribal land
Foreign Commerce
commerce with foreign nations the commerce cause grants the federal government the authority to regulate foreign commerce
Interstate Commerce
commerce that moves between states or that affects commerce between states
Police Power
power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare
Dormant Commerce Clause
a situation in which the federal government has the commerce clause power to regulate an area of commerce but has chosen not to regulate that area of commerce
Unduly Burdening Interstate Commerce
a concept that says states may enact laws that protect or promote the public health, safety, morals, and general welfare (as long as the laws do not unduly burden interstate commerce)
Bill of Rights
the first 10 amendments to the constitution that were added to the US constitution in the 1791
Types of Freedom of Speech
- fully protected
- limited protected
- unprotect
Fully Protected Speech
speech that cannot be prohibited or regulated by the government
Limited Protected Speech
speech that the government may not prohibit but that is subject to time, place, and manner restriction
Two forms:
1. offensive speech
2. commercial speech
Offensive Speech
speech that is offensive to many members of society; it is subject to place, time, and manner restrictions
Commercial Speech
speech used by businesses (such as advertising); it is subject to time, place, and manner restrictions
Unprotected Speech
speech that is not protected by the 1st amendment and may be forbidden by government
Types of Unprotected Speech
- dangerous speech
- fighting words that are likely to provoke a hostile or violent response from an average person
- speech that invokes the violent or revolutionary overthrow of the government
- defamatory language (dead cannot be defamed)
- child pornography
- obscene speech
Obscene Speech
speech that appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value
Bonofied
in good faith (religion); religions are recognized by the Supreme Court
Establishment Clause
a clause of the first amendment that prohibits the governments from either establish a state religion or promoting one religion over another
Free Exercise Clause
prohibits governments from interfering with the free exercise of religion of the US
14th Amendment
an amendment added to the US Constitutions in 1868 that contains the Due Process, Equal Protection and Privileges, and Immunities Clauses
Equal Protection Clause
a clause that provides that a state cannot “deny any persons within its jurisdiction the equal protection of the law”
Strict Scrutiny Test
a test that is applied to classification based on race
Intermediate Scrutiny Test
a test is applied to classification base on protected classes other than
Rational Basis Test
a test that is applied to classifications not involving a suspect or protected class
Due Process Clause
a clause that provides that no person shall be deprived of “life, liberty, or property”
5th Amendment
applies to federal government action
14th Amendment
applies to state and local government action
Substantive Process
a category of due process that requires that government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope
basic fairness, something reasonable person would find fair; fundamentally fair
Void for Vagueness
laws that do not meet test of substantive process
Procedural Due Process
a category of due process that requires that the government give a person proper notice and hearing of the legal action before the person is derived of his/her life, liberty, or property
Privileges and Immunities
a clause that prohibits states from enacting law that unduly discriminate in favor of their residents
Regular Duty
everyone acting reasonably
Rightful Discharge of Duty
acting on duty
Supererogatory Duty
going above and beyond expectation of duty
