Constitional law
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CONSTITIONAL LAW. Text – Chapter 3. Learning Objectives. Basics of the Constitution and federalism Relationship between federal and state powers Important legal principles: supremacy, preemption Constitutional guarantees and limitations. 3 - 2. Overview of the Constitution.

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Constitional law


Text – Chapter 3

Learning objectives

Learning Objectives

  • Basics of the Constitution and federalism

  • Relationship between federal and state powers

  • Important legal principles: supremacy, preemption

  • Constitutional guarantees and limitations

3 - 2

Overview of the constitution

Overview of the Constitution

  • Establishes a tripartite government to ensure a separation of powers:

    • Article I sets forth the legislative powers of Senate and Congress

    • Article II gives executive power to execute legislation, command armed forces, make treaties

    • Article III provides judicial power to the Supreme Court and subsidiary courts

3 - 3

Judicial review

Judicial Review

  • In Marbury v. Madison (1803), the Supreme Court interpreted the Constitution to grant federal courts the power of judicial review – the power to declare a statute or governmental action unconstitutional and void

    • Irony: the statute in question gave the Supreme Court special powers

3 - 4

A system of checks balances

A System of Checks & Balances

  • No single branch may control government

  • Supreme Court has power of judicial review

  • Federal powers are limited

  • States reserve certain powers

3 - 5

The power to regulate

The Power to Regulate

  • Federal government has exclusive power to administer certain national concerns, such as war and currency

  • Some powers are shared with the states

    • Example: power to tax, power to spend

  • States possess exclusive power to enact laws to protect general welfare, health, and safety

3 - 6

Federal supremacy

Federal Supremacy

  • The Constitution and statutes enacted by Congress, including treaties, are the supreme law of the land

    • Article VI, Clause 2

3 - 7

Federal preemption

Federal Preemption

  • Article I, Section 8 lists issues on which Congress may pass statutes

  • Thus, if Congress enacts a law on a certain issue, then Congress “preempts” state regulation of that issue

    • Example: Congress enacted the Civil Rights Act of 1964, thus a state cannot enact a law allowing discrimination based on race, religion, or gender

3 - 8

Testing constitutionality

Testing Constitutionality

  • Courts apply a means-ends test to review allegedly unconstitutional statute

    • Rational basis test (minimal scrutiny)

      • if law has rational basis, it will stand

    • Intermediate scrutiny

      • law must substantially relate to important governmental objectives to stand

    • Strict scrutiny

      • Law presumed invalid if, on its face, it is based on race, ethnicity, and religion

3 - 9

The commerce power

The Commerce Power

  • Commerce clause literally applies to interstate commerce

    • Article I, Section 8, Clause 3

  • Supreme Court has applied the power to intrastate commerce when the activity affects interstate commerce

  • Gonzales v. Raich emphasizes the far reach of the commerce power

3 - 10

Gonzales v raich

Gonzales v. Raich

  • Facts:

    • Federal Controlled Substances Act (CSA) prohibits possession and sale of marijuana

    • California statute created criminal prosecution exemption for patients (Raich and Monson) possessing and using marijuana for physician-approved medicinal purposes

    • Federal Drug Enforcement Administration agents seized Monson’s cannabis plants

    • Raich and Monson filed for an injunction to bar enforcement of the Federal CSA as applied to medical use because enforcement violated the Commerce Clause and the Due Process Clause of the Fifth Amendment

3 - 11

Gonzales v raich1

Gonzales v. Raich

  • Procedural History:

    • Federal District Court denied preliminary injunction

    • U.S. Ninth Circuit Court of Appeals agreed with the Commerce Clause argument and directed the lower court to issue a preliminary injunction

    • The U.S. Supreme Court granted the federal government’s petition for a writ of certiorari

  • Issue: “[W]hether Congress’ power to regulate interstate markets for medicinal substances encompasses. . .markets that are supplied with drugs produced and consumed locally?”

3 - 12

Gonzales v raich2

Gonzales v. Raich

  • Reasoning:

    • Discussed legislative history, public policy

    • Judicial precedent (Wickard v. Filburn): Congress has power to regulate activities substantially affecting interstate commerce

    • Wickard (wheat) and this case (marijuana) are similar, but Lopez and Morrison are distinguishable

  • Holding:

    • Locally cultivated product used domestically is subject to federal regulation

    • Appellate decision vacated, case remanded

3 - 13

The first amendment

The First Amendment

  • First Amendment guarantees freedoms of religion, speech, press, assembly, and petition to individuals

    • And to corporations

  • Protection has never been afforded to certain classes of speech

    • False, lewd, obscene, profane, libelous, and insulting speech is not protected

      • See U.S. v. American Library Assoc., Inc.

3 - 14

Commercial speech

Commercial Speech

  • Speech proposing a commercial transaction

    • Neither noncommercial expression nor political, thus commercial speech not fully protected

  • A restriction on commercial speech is valid if it (1) seeks to implement a substantial gov’t interest, (2) directly advances the interest, and (3) is the least restrictive method of achieving the interest

3 - 15

Kasky v nike inc

Kasky v. Nike, Inc.

  • What were the facts?

  • What was the arguments of the parties?

  • What three elements did the court consider in categorizing Nike’s speech?

  • What did the California Supreme Court hold and why?

  • Follow-up: Nike appealed to U.S. Supreme Court, which rejected and remanded the case to trial; parties settled pre-trial in 2003.

3 - 16

Issue compelled advertising

Issue: Compelled Advertising

  • When government requires producers to pay for generic industry advertisements

  • U.S. Supreme Court concluded in Johanns v. Livestock Marketing Association that the beef assessment funding was for government speech, thus the promotional program is not subject to a First Amendment compelled-subsidy challenge

3 - 17

Constitutional limitations

Constitutional Limitations

  • Fifth Amendmentprohibits federal government from depriving “any person of life, liberty, or property without due process of law.”

    • Known as the due process clause

    • Applied to states through Fourteenth Amendment by process of incorporation

3 - 18

Constitutional limitations1

Constitutional Limitations

  • Due process clause interpreted liberally to be guarantee of protection from

    • Unreasonable procedures

      • procedural due process

    • Unreasonable laws

      • substantive due process

  • Protection from government action

    • Federal funding may create “government” nexus

      • SeeBrentwood Academy v. Tennessee Secondary School Athletic Association

3 - 19

Constitutional limitations2

Constitutional Limitations

  • Equal protection clause of Fourteenth Amendmentapplies to states and federal government when classifying or distinguishing people

    • Basic test: rational basis (minimal)

  • Compare the tests applied in:

    • City of Dallas v. Stanglin

    • Bush v. Gore

3 - 20

Constitutional limitations3

Constitutional Limitations

  • Equal protection clause prohibits a government from treating one person differently than another without reasonable grounds for classifying differently

    • “Suspect” classifications (race, gender, ethnicity) require higher level of scrutiny

  • Examples: Gratz v. Bollinger, Grutter v. Bollinger

3 - 21

The gratz grutter cases

The Gratz & Grutter Cases

  • Facts:

    • Caucasian, academically-qualified applicants were denied admission to University of Michigan’s undergraduate college (Gratz) or law school (Grutter)

    • Plaintiffs filed suit alleging discrimination violating the Equal Protection Clause and Title VI of the Civil Rights Act of 1964

  • Evidence:

    • Undergraduate admissions process applied point advantage to minority applicants

    • Law school admissions process was “narrowly tailored,” individualized, and not a quota system

3 - 22

The gratz grutter cases1

The Gratz & Grutter Cases

  • U.S. Supreme Court Decision:

    • Applicable legal precedents and public policy:

      • Student body diversity is a compelling state interest

        • Regents University of California v. Bakke

      • “All racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized”

        • Adarand Constructors, Inc. v. Pena

3 - 23

The gratz grutter cases2

The Gratz & Grutter Cases

  • U.S. Supreme Court Decision (cont.):

    • Racial classifications are constitutional only if they are narrowly tailored to further compelling governmental interests

      • Regents University of California v. Bakke

    • Applying law to facts (conclusion):

      • Undergraduate admission process not narrowly tailored

      • Law school admission process is individualized, flexible

3 - 24

Constitutional limitations4

Constitutional Limitations

  • Phrase “depriving a person … of property” known as the takings clause

  • Interpreted to require government to pay property owner just compensation in exchange for taking property through eminent domain

    • Public use purpose required

  • “Takings” for economic development purpose satisfies public use requirement

    • Kelo v. City of New London

3 - 25

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