Chapter Four Flashcards
Minimal Scrutiny
Rational Basis Test- Law must be
“rationally related to a legitimate goal.”
Intermediate Scrutiny
(Gender)– Law “must substantially relate to important government objectives.”
Federal Form of Government
A system of government in which the states form a union and the sovereign power is divided between the central government and the member states
Police Powers
Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
Checks and balances
The principle under which the powers of the national government are divided among three separate branches- the executive, legislative, and judicial branches- each of which exercises a check on the actions of the others.
Commerce clause
The provision in Article I, Section 8, of the US Constitution that gives Congress the power to regulate interstate commerce
Supremacy Clause
The requirement in Article VI of the US constitution that provides that the constitution, laws, and treaties of the united state are “the supreme law of the land.” Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.
Preemption
A Doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
Bill of Rights
The first ten amendments to the US Constitution
Symbolic Speech
Nonverbal expressions of beliefs, symbolic speech, which includes gestures, movements, and articles of clothing, is given substantial protection by the courts
Filtering Software
A computer program that is designed to block access to certain web sites, based on their content. the software blocks the retrieval of a site whose URL or key words are on a list within a program.
Meta Tag
A key word in a document that can serve as an index reference to the document. On the Web, search engines return results based, in part, on these tags in Web documents.
Establishment clause
The provision in the 1st amendment to the US constitution that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another.
Free Exercise Clause
The provision in the First Amendment to the US constitution that prohibits the government from interfering with people’s religious practices or forms of worship
Due Process Clause
the provisions in the Fifth an fourteenth amendments to the US constitution that gaurantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions
Equal Protection Clause
The provisions in the Fourteenth amendment to the US constitution that guarantees that a state may not “deny to any person within its jurisdiction the equal protection of the Laws”. This clause mandates that the state governments must treat similarly situated individuals in a similar manner.
The Constitution
Was adopted in 1787 and was ratified by nine of the original 13 states in 1789. It creates a federal form of government
The constitution a federal form of government
- A compromise
- “enumerated” powers to the federal government and other powers to “reserved” to the states (10th amendment)
Constitution consists of
- Enumerated powers
- implied powers
- otherwise reserved to states/people per 10th amendment
Other wise reserved to states/people per 10th amendment
State police powers; strong presumption of validity.
Bill of rights adopted in
1791
Bill of rights protects
individuals from “various types of interference by the federal government
Constitution is made up of
a preamble, seven articles, and 27 amendments
Article I
Establishes congress constitutional authority
Articles II and III
establishes constitutional authority for executive and judicial branches of government.
Articles IV
includes the “full faith and credit” clause which states that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
Article V
Discusses the amendment process
Article VI
Includes Supremacy Clause
Article VII
Indicated that the original constitution could be ratified by the vote of nne of the original thirteen states.
Amending the constitution
The constitution may be amended by a two-thirds vote of the US house and senate followed by a ratification vote of three-fourths of the states
Constitution may also be amended
by two-thirds of the states calling for a constitutional convention followed by a ratification vote by three-fourths of the states.
amendment history
The constitution was last amended in 1992. there are 27 amendments to the constitution.
Parts of Supremacy Clause
- Article VI
- Federal Preemption
Federal Preemption
federal laws take precedence over conflicting state laws
Article VI Supremacy Clause
The constitution and the laws of the United States which shall be made in Pursuance thereof; and all treaties made, or made shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Minimal Scrutiny:
Rational Basis Test- law must be “rationally related to a legitimate goal”
Intermetdiate Scrutiny
(gender)– Law “must substantially relate to important government objectives.
Strict Scrutiny
(race/national orgin)– “necessary to promote a compelling state interests.
1st amendment
(Free Speech, Freedom of religion)
4th amendment
unreasonable search and seizures; probable cause for search/ arrest warrants; probable cause means a “subtantial likelihood taht the person has committed or is about to commit a crime.
5th amendment
due process of law; double jeopardy; self incrimination
6th amendment
right to counsel and trial
8th amendment
excessive bail/ fines and cruel and unusual punishment
Commerce Clause Notes
The congress shall have power to regulate commerce with foreign Nations, and among the several states, and with the Indian tribes.
Substantial Effect Rule
Congress can regulate any activity that has a substantial economic effect on interstate commerce.
Gibbons v Ogden
Commerce Clause Case. Commerce between the states” means “interstate commerce”
Wickard v Filburn
Commerce Clause Case. Congress can regulate “intra-state” business activities that have a “substantial effect on interstate commerce”
Katzenbach v McClung
A private business “of a purely local character”, racial discrimination and the commerce clause
Gonzales v Raich
Commerce Clause case. Federal criminal law- controlled substance act- and the use for marijuana for medical purposes made legal under state law.
Eminent Domain
The “police powers” of the state to protect or promote the public order, health, safety, morals and general welfare.
Judicial Review
The process by which courts decide on the constitutionality of legisaltive enactments and actions of the execuitive branch.
Marbury v madison
Judicial review 1803. Justice john marshall. (it is emphatically the province and duty of the judicial department to say what the law is.
Business and free speech
The supreme court held in First national bank of boston v Bellotti 1978 that otherwise protected speech is covered by the first amendment regardless of the fact that “its source i a corporation”- Consolidated Edison company v public service commission of New york 1980
Commerical speech
generally means advertising a product or service or “speech that has a dominant theme to propose a commercial transaction.”
False/ misleading commercial speech
unlike false/ misleading political speech, can be prohibited by the government.
Due Process
5th and 14th amendments
procedure due process
fair procedures
Substantive due process
focuses on the content or substance of legislation. If a law or governmental action limits a fundamental, it will be held to violate substantive due process when it promotes a compelling or overriding state intrests.
Eminent Domain Case
Kelo v City of New london (2005)
Privacy Rights
There is no specific right to privacy referenced in the constitution; however, the supreme court has held that a constitutional right of privacy is “implied by the first, third, fourth, fifth, and ninth amendments”
Federal laws relating to privacy
-FOIA _FERPA -Privacy Act -HIPAA -Patroit Act
Federal Preemption and Commerce Clause
Gonzales v Raich
Dormant Commerce Clause and “out of state” wineries Case
Family winemakers of California v Jenkins (2010)
The First Amendment and freedom of religion consists of
- The establishment clause
- The free exercise clause
The first amendment and Freedom of religion case
Trunk v City of San Diego 2011
what is the seperation of powers
- execuitive branch carries out law
- legislature makes law (representative government)
- Judicial systems interprets law
What is the purpose of seperation of powers
checks and balances
14th amendment
equal protection
14th amendment states
nor shall any state. deny any person within its jurisdiction the equal protection of the laws.
first amendment
free speech
first amendment states
congress shall make no law. abridging the freedom of speech.
Symbolic Speech
nonverbal expressions of beliefs which includes gestures, movements and articles of clothing (eg arm band).
protected commercial speech
must promote commerce and provide valuable information.
Freedom of speech reasonable limitation on
Time
- place
- manner of speech
Exceptions to freedom of speech
- Fighting words
- Speech that offends community moral standards and lacks redeeming social value.
