MGMT 311 Exam 1 - FLASHCARDS - Chapter 2
How is power divided in federalism?
- Power is divided between national government and state governments.
- We really have a partnership between national and state governments.
What does the U.S. Constitution set the limits for?
The U.S. constitution sets the limits of government actions
What are examples of regulatory powers of the states?
- Sovereignty
- Police Powers
What is sovereignty?
Power of the states to govern themselves stems from the 10th amendment.
What are police powers?
Right of state governments to regulate private activities to protect or promote the public order, health, safety, morals, and the general welfare.
What is the Privileges and Immunities Clause?
If citizens of one state engage in basic and essential (earning and living and access to housing) activities in another state (“foreign state”), they must be treated same as citizens of the foreign state unless the foreign state has a substantial reason for treating nonresidents differently from its own residents, and the reason for this discrimination is substantially related to the foreign state’s purpose in adopting the legislation.
What does the Privileges and Immunities Clause say?
“the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
What does the Full Faiths and Credit Clause say?
“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”
True or false: the Full Faith and Credit Clause applies to civil and criminal matters?
False. It applies only to civil matters.
True or false: Under the Full Faith and Credit Clause, rights established under deeds, wills, and contracts will be honored in other states?
TRUE
What branch of government makes laws?
Legislative
What branch of government enforces laws?
Executive
What branch of government interprets laws?
Judicial
What is the Commerce Clause?
- Article I, Section 8 of US Constitution.
- Regulates commerce with foreign nations and between states.
- Federal power.
- Expansion of Federal Power.
What was Gibbons v. Ogden?
(US 1824) – Federal government can regulate intrastate if the commerce concerns more than one state.
What was Wickard v. Filburn?
(US 1942) – Farmer’s crop production to be used wholly for consumption on his farm was subject to federal regulation because it affected interstate commerce.
What was Heart of Atlanta Motel v U.S.?
- attorney general of U.S. Government sues motel for prohibiting african Americans from being able to stay at the motel. The motel argued that the Civil Rights act was unconstitutional and that because they are a small business, they don’t affect commerce
What clause affects businesses the most in the Constitution?
Commerce clause
What is the main idea of the commerce clause?
Power allowing the federal government to regulate goods between states, known as interstate commerce
What is interstate commerce?
Regulating the movement of goods between states
What is intrastate commerce?
Regulating the movement of goods within states
What was Gonzales v. Raich?
Decision by the U.S. Supreme Court ruling that, under the Commerce Clause, Congress may criminalize the production and use of homegrown cannabis even if state law allows its use for medicinal purposes. Supreme Court allows the federal government to regulate noncommercial activities taking place wholly within a state’s borders.
What is the Dormant Commerce Clause?
States do not have the authority to regulate interstate commerce. States are not supposed to pass laws that affect commerce
How do you determine if the Commerce Clause is violated by the state action?
Courts must balance the state’s interests in the purposes of the regulation against the burden placed on interstate commerce. Only if the burden on interstate commerce clearly outweighs the State’s legitimate purpose does such a regulation violate the commerce clause.
What was Raymond Motor Transp., Inc. v. Rice?
.
What is the supremacy clause?
US Constitution, laws, and treaties are “supreme law of the land.”
What is preemption?
When federal congress chooses to act exclusively in an area of the law that could be viewed as a concurrent area (means it could be controlled by either state or federal law)
When is preemption present?
Preemption is present any time there is a direct conflict between state and federal law. A higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict.
What does it mean if federal law preempts state law?
When a conflict is present, federal law controls state law. Federal law preempts state law.
What is the rule of taxing power of Congress?
Congress has power to tax, but must be uniform throughout the U.S.
What has to be true for courts to allow a tax?
Courts allow tax if it is a valid revenue-raising measure.
What is spending power of Congress?
Congress pays debts and provides for defense and general welfare of US.
Congress can spend revenues to promote any objective it deems worthwhile.
Is spending power of Congress often challenged?
Rarely challenged – problem with standing – plaintiff must show a direct and immediate personal injury to challenge federal spending power.
True or false: The bill of rights originally only applied to the federal government?
TRUE
What is the final interpreter of the Constitution?
US Supreme Court
Are rights under the bill of rights absolute?
Rights under the Bill of Rights are NOT absolute rights.
Any level of government guarantees us these rights
What is freedom of speech?
Have the right to my opinions
What is symbolic speech?
non-verbal expressions such as gestures, movements, articles of clothing.
What was the first example of symbolic speech through an article of clothing?
Black arm bands in protest of the Vietnam war
What was Texas v. Johnson?
Decision in which the Supreme Court held that burning the Flag of the United States was protected speech under the First Amendment to the U.S. Constitution, as doing so counts as symbolic speech and political speech
True or false: Texas v. Johnson is an example of substantive due process?
TRUE
What type of expression is subject to reasonable restrictions?
oral, written or symbolized by conduct
What are content neutral restrictions?
also called timeplace and manner restrictions. Are not restrictions on the content or speech itself, they are aimed at where and when you deliver it. If reasonable, are always constitutional
True or false: if reasonable, content neutral restrictions are always constitutional?
TRUE
What happens if a law restricts speech itself?
The law must serve a compelling state interest and must be narrowly written to achieve that interest
What is commercial speech?
used by businesses that need to get their message out about a product. For example, advertising, labeling
Is commercial speech as protected as our personal freedom?
No, but protection is still there
What are situations where restriction on commercial speech is Constitutional?
1) the law (restriction) seeks to implement a substantial government interest - “reasonable fit” between government interest in limiting speech and the restriction chosen to accomplish the objective;
2) the law directly advances that interest.
3) the law goes no further than necessary to accomplish the objective.
What example of speech restriction is this: Cornell brewing company planned to name liqueurs after native Americans, such as Crazy Horse who was anti alcohol. Law made it illegal to name drinks after native American leaders. Congress argued there was higher alcohol rate among native American populations. Substancial interest in reducing native American alcohol use
Commercial speech
What was Bad Frog Brewery, Inc. v. New York State Liquor Authority?
Bad Frog brewery sells alcoholic drinks some drinks feature a frog giving middle finger gesture. Their new York distributor Renaissance Beer company applied to the NY state liquor authority (NYSLA) for brand label approval as required by state law before it can be sold. NYSLA denied application partly because if the drink were to be in a grocery store it would be exposed to children. Bad Frog filed an injunction against denial of application.
What type of speech is not protected by your constitutional right?
Unprotected speech
What are examples of unprotected speech?
a. Defamation
b. Lewd and obscene speech
c. Threatening Speech
What is lewd and obscene speech?
1) Supreme Court has difficulty defining this.
2) Left to local standards.
3) Child Pornography is completely banned.
What is defamation?
lies that harm someone’s reputation
What is the establishment clause?
Government action can’t show preference for one religion over another
What is the rule for federal or state regulation on religion?
Federal or state regulation can have an impact on religion as long as it does not place a significant burden on religion.
Does the 1st amendment require separation of church and state?
1st Amendment does not require a complete separation of Church and state.
Does the 1st amendment allow a complete religionless government?
Also doesn’t allow complete religionless government
What is the free exercise clause?
Congress shall make no law preventing the free exercise of religion. We can’t be compelled to do something contrary to our religious beliefs.
What does it mean by we can’t be compelled to do something contrary to our religious beliefs?
If law is contrary to a person’s religious beliefs, exemptions are often made to accommodate those beliefs. For example, Mennonites don’t fight in war, so the government respects that.
Can the government act if religious beliefs work against public policy and welfare?
Yes, if religious beliefs work against public policy and welfare, the government can act. For example, If someone’s life is in danger and they need medical attention, and the family’s religious beliefs go against it, the government can overrule those religious views and get the person help.
What is Kennedy v. Bremerton School District?
Joseph Kennedy, a high school football coach, engaged in prayer with a number of students after school games. The Bremerton School District, asked that he discontinue the practice in order to protect the school from a lawsuit based on violation of the Establishment Clause, but Kennedy refused. After being suspended by the school district, Kennedy sued it for violating his rights of free speech and free exercise under the First Amendment and Title VII of the Civil Rights Act of 1964.
Are the freedoms in Kennedy v. Bremerton School District equal?
Yes
What is search and siezure?
Government officers must generally have a search warrant to search/seize private property. Must be with trustworthy evidence
What does the 4th amendment protect in regards to search and siezure?
4th Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects.”
What must an officer have to obtain a warrant to search?
To obtain a warrant, an officer must have probable cause to believe the search will find specific illegal activity.
What was U.S. v Flores?
Citlalli Flores was arrested for importing thirty-six pounds of marijuana into the United States. Flores made two jail-recorded phone calls in which she asked her cousin to delete whatever he felt needed to be removed from Flores’s Facebook page. The government got a warrant to search Flores’s Facebook messages, where they found references to her carrying marijuana into the United States that day. Flores’s Facebook posts were later used as evidence against her at trial, and she was convicted. The court held that the phone calls had given the officers probable cause to support a warrant to search Flores’s social networking site for incriminating statements.
What is probable cause?
when there is a reasonable basis for believing that a crime may have been committed (for an arrest), or when evidence of the crime is present in the place to be searched (for a search)
True or false: general warrants are prohibited?
TRUE
What are exceptions where a warrant wouldn’t be needed?
a. If it is likely that the items to be searched/seized will be removed before warrant can be obtained.
b. Plain view. If the item is in plain view
c. Consent. Never give consent
Do you need a warrant for Searches of Business?
less probable cause is necessary to get a warrant and no warrant is necessary if seizing spoiled or contaminated food, or searching a highly regulated industry
What are highly regulated industries?
Guns and liquor
What is self incrimination?
the intentional or unintentional act of providing information that will suggest your involvement in a crime, or expose you to criminal prosecution
What does the 5th amendment say about self incrimination?
No person “shall be compelled in any criminal case to be a witness against himself.”
Who does self incrimination apply to?
Applies only to natural persons and businesses such as sole proprietors and solo practitioners because legally the business and the owner are not separated.
True or false: self incrimination does not apply to corporations or to partnerships?
TRUE
What is equal protection?
The government must treat similarly situated individuals in a similar manner. Everybody deserves the same protection from the government. The government is not supposed to discriminate against individuals.
What does the 14th amendment say about equal protection?
A state may not “deny to any person within its jurisdiction the equal protection of the laws.” (Applies to federal government through the 5th Amendment).
What is the focus of procedural due process?
Focus is on the procedures used when the government takes life, liberty, or property.
What is procedural due process?
Requires strict procedural safeguards for government to be able to take away life, liberty, or property. You are not allowed to skip steps in the procedure. The government must give a person proper notice and an opportunity to be heard.
What does the 5th amendment have to do with in regards to due process?
Criminal matters
True or false: businesses can plead the 5th amendment, people can’t
False. People can plead the 5th amendment, businesses cannot
What is substantive due process?
Focus is on the content (substance) of legislation or governmental action. Substance or core issue of the case. Is the content of the law treating us fairly? If a law or other governmental action limits a fundamental right, the state must have a legitimate and compelling interest to justify its action.
What is the difference between procedural and substantive due process?
Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process asks whether the government has followed the proper procedures when it takes away life, liberty or property.
What are standards of review tests?
Government has to pass the test in order to keep their law
What are fundemental rights?
All 1st Amendment rights: freedom of speech, (flag burning); privacy rights (drug tests, etc.); right to interstate travel; right to vote; marriage and family.
What standard applies when someone claims that a law directly affects their fundamental liberties granted by the constitution such freedom of speech, religion, and assembly, due process?
Strict scrutiny test
What are the rules of a strict scrutiny test?
Government must have a compelling interest promoted by the legislation and the law must be narrowly tailored.
What standard of review test applies when the government treats people differently based on race, national origin, and citizenship? (African Americans are treated differently than Mexicans, which are treated differently than whites).
Strict scrutiny test
What is the difference between substantive due process and equal protection?
Substantive Due Process applies when the law or government action limits the liberty of all persons to do something. Equal Protection applies when the law or government action limits the liberty of some persons, but not others.
What standard applies when government action involves gender or legitimacy? (birth status or children born out of wedlock)
Intermediate scrutiny test
What are the rules of an intermediate scrutiny test?
The state action/law must be substantially related to an important governmental objective
What standard applies when the government action involves economic matters or social issues?
Rational basis test
What are the rules of a rational basis test?
Government action must relate rationally to a legitimate governmental purpose
What is Dobbs v. Jackson Women’s Health?
states that the Constitution does not confer a right to abortion; and, the authority to regulate abortion is “returned to the people and their elected representatives.”
Is the right to privacy a constitutional right?
Yes
What was Griswold v. Connecticut?
In 1965 the Supreme Court ruled that a state’s ban on the use of contraceptives violated the right to marital privacy.
