Chapter Two Flashcards
Three branches of govt
legislative: Congress (HOR and Senate)
Exectuive (pres and VP)
Judicial (SC)
History of the Const
1787 Constitutional Convention in Philadelphia, PA
27 amendments since created
Bill of Rights (1791)
what are the two functions of the US Const
create a system of govt
establish Bill of Rights
Const related articles to the three branches of govt
legislative: Article I
Executive: A2
Judiciary: A3
why are there seperation of powers
created for checks and balances
Article I Congress
A1, Section 8 - commerce clause
Congress has the power to:
collect taxes,
regulate interstate commerce, declare war
Congress can make all laws “necessary and proper” to carry out these powers
how can a bill become a federal law?
must pass both the HOR and Senate and be signed by the US pres (pres can veto the law)
what must happen for the pres veto to be overridden
both houses of Congress must pass the law by a 2/3 majority (super-majoirty)
For Senate: 67 out of 100 votes
HOR: 290 out of 435 votes
typically law will pass US House first and then will go to US Senate for a vote
Article I, Section 8 - commerce clause
Congress shall have power to regulate interstate commerce…among the several states
states “cannot” establish laws and regulations that impose a substantial burden on interstate commerce
commerce clause ISSUE
whether US Const gives federal govt the authority to make law over those activities
Question: does it have a substantial burden on interstate commerce????
commerce clause activity:
1) look at the activity the law is seeking to regulate
- if it has substantial burden on interstate commerce - Congress has the authority to pass federal laws
- if the activity does not have SBIC activity would be regulated within state borders, then that states legislators may pass state laws and Congress will not have authority to regulate or pass federal laws
If Congress attempts to regulate activities which are purely within a state?
commerce clause states Congress cannot interfere with purely state activities
Example One: SBIC
Bibb v. Navajo Freight Lines, Inc.
Illinois law - curved mud guards while AK law wanted straight mud guards
when traveling across states like IL and AK where the states required drivers to switch the types of mud flaps/guards on their trucks
state laws were found to violate A1,S8 Commerce Clause because IL and AK laws imposed a SBIC by regulating mud flaps on semi truck drivers
If does not have SBIC - then separate state laws are ok
Example 2: SBIC
The Controlled Substances Act v. California Compassion
Became a conflict between state and federal law
CA passed a law allowing medical marijuana
Raich was seriously ill with cancer - doc recommended her to grow her own M at her home for medical purposes
Control Substances Act was a fed law prohibiting M
Raich did not sell it or share it; 2022 fed agent from Drug Enforcement Agency seized Raich’s M plants and charged her with violating the CSA
Does the activity of M in CA havs SBIC?
- yes - fed law prevails
CA argued that M plants were intended for each woman’s use only; because growing themselves the M could not have SBIC
- no SBIC - states can pass their own laws
Fed argued that users of medical M - lead to buying on street/growing for deals so does SBIC
US SC ruled: production of commodity for home consumption (wheat or medical M) has a SBIC through supply and demand in national market for that commodity
- SC agreed with Congress
Cole Memorandum was drafted
- CO and WA saying recreational use of M was legal
- never got to SC
- attorney general (of America) CO and WA can as long as keep M within state will not overrule SBIC
- cannot use credit card to purchase
- cannot bring M on plane into other state/across state lines (fed law)
Example 3: SBIC
Can Congress prohibit possession of guns in school zones within their state
(deals with Congress not being able to interfere with purely state activities)
Lopez brought a loaded handgun to school zone and was charged under fed law passed by Congress
(ended up going to states)
supremacy clause
US Const shall be the supreme law of the land
Commerce Clause vs Supreme Clause
DO not get these confused
1) commerce clause gives Congress the power to pass fed laws; Congress may pass fed laws which have SBIC
2) Supremacy Clause states that the US is the supreme law of the US; if any law (fed or state) violates the US Const - will be held unConst
(example: TN passing law prohibiting individuals from peaceful protest at any time on govt public property - violates 1st amendment)
full faith and credit clause
shall be given in each state to public acts, records, and judicial proceedings of every other state
judgement
ex: OJ Simpson
basically requires courts follow judgments made in other states
privileges and immunities
Article IV
prohibits state government from discriminating against citizens of other states in favor of resident citizens
ex: having tougher penalties for residents of Ohio convicted of crimes within Michigan
ex: Alaska passed the Alaska Hire statute requiring the qualified A residents be hired in preference to nonresidents for oil/gas industry jobs
can a state universities charge higher tuition to out of state students under privileges and immunity clause
yes
because TN residents get a tax cut (without this, would violate P and I clause)
first amendment
guarantees the freedom of religion, speech, and the press and rights to assemble peaceably and to petition the govt
second amendment
states that the right of the people to keep and bear arms shall not be infringed
third amendment
prohibits in peacetime, the lodging of soldiers in any house without the owner’s consent
fourth amendment
prohibits unreasonable searches and seizures of persons or property
fifth amendment
guarantees the rights to indictment by grand jury, to due process of law, and to fair payment when private property is taken for public use, prohibits compulsory self-incrimination and double jeopardy
6th amendment
guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and without counsel
accused has right to cross-examine witnesses against him or her and to solicit testimony from witnesses in his or her favors
7th amendment
guarantees the right to a trail by jury in a civil case involving at least $20
8th amendment
prohibits excessive bail and fines, as well as cruel and unusual punishment
9th amendment
establishes that the people have rights in addition to those specified in the Const
10th amendment
establishes that those powers neither delegated to the fed gov nor denied to the states are reserved to the states and to the people
bill of rights
1st 10 amendments to US Const
apply to persons ad to business entities as well
protections against govt only
1st Amend break down
freedom of speech
establishment clause
freedom of religion
does the 1st amendment apply to actions taken by private companies?
NO
examples:
social media - being censored
being required to wear a mask in a store
fired by a private company for speech, protests, etc.
are hate words protected by the 1st Amendment
YES
are certain types of speech not protected
yes, certain types of speech are not protected by the 1st Amendment
Slander, libel (lies about a person)
fighting words (inciting riots, threats)
pornography/obscenity
Symbolic Speech scenario with Johnson v. Texas
1) what is the govt action
- going to jail is a govt action
2) analyze and see if covered by amendment
- is it slander/liable (no)
- is it fighting words (no)
- is it obscene (no)
3) amendment wins supremacy clause
- if TN makes it illegal (not upheld)
- if Congress passes law (would not be upheld)
if believe burning Amer flag is against law - would have to add amend/change Const
what are fighting words
speech that by their very utterance, inflict injury or tend to incite an immediate breach of the peace, reflects a serious intent to commit an unlawful violent act against a group, encouraging violence or sedition
US Supreme Court - obscenity
appeals to prurient interests (morbid interest in nudity/sex)
sexual conduct in a patently offensive way
offensive speech
Speech may not be banned on the grounds that it expresses ideas that offend governments may not silence messages they dislike are noteworthy and important
symbolic speech
verbal expressions - peaceful protests, t-shirts, buttons, cartons, etc.
these examples are non-speech and non-written elements
Johnson v Texas
burning flag is example of symbolic speech
2006 Senate fell one vote short of approving a const amendment that would have enabled Congress to ban desecration of American flag
Brown case example (symbolic speech)
Brown just filed an appeal with the city claiming the City of LA has no right to force him to remove the graffiti art on the front of his LA home because its protected by the 1st Amend
Brown claims the grafitti is art that “enhances” architecture of residential property - reflection of free speech protected by 1st Amend
symbolic speech cabaret performance
TN law - felony offense if engage in adult cabaret performance on public property where could be viewed by someone who is not an adult
discussion question format for freedom of speech
1) what Constitutional Provision is applicable?
2) what speech is not protected under the above provision?
Discuss whether Sam’s statement that his employer violated the US Const is correct
how does 1st amendment affect emotional damage cases?
- emotional distress as a result of a protestor’s sign
- as long as not directed at someone
(Snyder v Westboro Church - Phelps) - SC: if speech not slander/liable, fighting words or obscene - Westboro protected under 1st Amend
private citizens must prove ___
that is is slander/libel and the person suffered damages
public figures must ___
prove more than the statement is a lie (along with the damages)
1) false statements (AND)
2) it was made with “actual malice”
what is the actual malice standard for plaintiff (public figure)
plaintiff must show that defendant either knew the statement was false or acted with reckless disregard about its falsehood
why are public figures held to a higher standard than private citizen regarding lies?
1) typically they voluntarily avail themselves to the public forum (chose this life)
2) public figures have access to media and can rebut any statements made
corporate political speech
Citizens United V FEC (federal election commission)
- SC ruled that corporations can spend freely on candidates
- corps are unable to literally “speak” they speak through spending money
to change have to make amendment
establishment clause
1st amend
govt cannot establish a state sponsored religion or show a preference for one religion over another
HISTORY: anglican church (England)
Jefferson wanted “wall of separation” between church and state; opposing religious interference with govt affairs
Ten commandements
do they violate the establishment clause
if displayed equally with other historical documents then may pass *constitutional muster *
(Historical v religious)
TN Law 2019
US SC - “God we Trust”
claimed be historical
freedom of religion
1st Amendment
everyone in US has right to practice his/her own religion or none at all
4th amendment broke down
search and seizures
1) would you or a person have a reasonable expectation of privacy in that area?
if no - the gov/police do NOT need a warrant
if yes - the govt/polic need a warrant based on probable cause (have some evidence of suspected crime as to why the need a warrant)
if the police do NOT have a warrant - violation of the 4th Amendment and the evidence is excluded under the fruit of the poisionous tree
receiving a warrant AFTER ones 4th amend rights are violated
is still a violation and the evidence is still excluded under the fruit of the posionous tree
what did the SC do with 4th amendment
recognized certain exceptions
1) in plain view
2) a person screaming in a house
3) many more exceptions
fruit of the poisonous tree
referring to amendment 4
poison is going in without warrant
fruit - evidence collected/seen when entering in without a warrant
doctrine prevents the use of evidence gained as a result of illegally obtained evidence
Mapp V Ohio (1961)
example of fruit from poisonous tree
police search Sally’s house, illegal search find illegal weapons and warehouse address
leave and return with warrant wanting probable cause to search warehouse
tree - tainted address
fruit - warehouse is tainted too
5th amend
1) double Jeopardy
2) self-incrimination
4th amendment class discussion
1) is the action taken by the govt so that the 4th amend applies?
2) does the defendant have a reasonable expectation of privacy? Why or why not?
- if the defendant has a reasonable expectation of privacy - did the police receive a warrant PRIOR to the search? (if NOT) search violates the defendants 4th amend rights
- if the D rights are violated, what happens to the evidence?
- what is the rule? explain the rule?
3) if the police find new evidence during search and get a NEW warrant based on NEW evidence are the D’s right violated?
self incrimination
5th amend
1) “taking the 5th” - only applies to situations where if the person answers truthfully they may be arrested
2) only individuals are protected by the 5th - NOT businesses
6th amend
right to speedy trial
right to confront witnesses
right to have an attorney
Miranda v Arizona
5th and 6th Amend
Miranda arrested based on circumstantial evidence linking him to kidnapping/raping someone
after two hours of interrogation by police, Miranda signed confession
US SC ruling - no confession could be admissible under the 5th Amendment self incrimination clause; 6th amendment right to an attorney unless a suspect had been made aware of rights and the suspect had then waived them
7th amend
right to jury trial if amt over 20 dollars
mandatory arbitration disagreement related to this amend
14th amend
due process - United States Const
limits state govts
Note that the 5th amend deals with fed
5th and 14th amend
clause in 14th - due process, no state should deprive anyone of life, liberty, property without due process of law
courts must follow fair procedures must be used in person subject to punishment or a burden imposed by the govt (before taking away LLP)
does the Const give right to privacy?
NO
example: Roe v Wade with Dobbs
US SC said Roe v Wade implied
