Chapter 5

Constitutional Law
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History
Before the Revolutionary War, States wanted a
confederation with weak national government
and very limited powers.
After the war, in 1787, the States voted to
amend Articles of Confederation and create a
new, federal government that shared power
with States.

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1: Constitutional Powers
of Government
Constitution established a federal form of
government with checks and balances among
three branches: executive, legislative and
judicial.
National government has limited, enumerated
powers delegated from States.
Privileges and Immunities Clause (Art. IV 2)
Full Faith and Credit Clause (Art. IV 1)
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U.S. Commerce Clause

Power to regulate interstate commerce defined
in Gibbons v. Ogden (1824).
Expansion to private businesses began with
Wickard v. Fillburn (1942). Today, Commerce
Clause it authorizes the national government to
regulate virtually any business enterprise,
including internet. Limits: U.S. v. Lopez (1995).
Case 5.1: Reno v. Condon (2000).
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State Commerce
States possess inherent police powers to
regulate health, safety, public order, morals and
general welfare.
Case 5.2: Ferguson v. Friendfinders. Inc.
(2002).
State laws that substantially interfere with
interstate commerce will be struck down.
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Supremacy Clause and

Federal Preemption
Article VI of the Constitution Supreme Law of
the Land.
In case of direct conflict between state and
federal law, state law is invalid.
Congress can preempt states.
Federal Taxing and Spending Powers.

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Freedom of Speech
Afforded highest protection by courts.
Symbolic Speech.
Texas v. Johnson (1989).
R.A.V. vs. City of St.Paul (1992).

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Commercial Speech
Advertising is protected speech. Restrictions
must:

Implement substantial government interest;

Directly advance that interest; and
Go no further than necessary.

Case 5.3: Bad Frog Brewery (1998).

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Corporate Political Speech

Afforded significant protection by the first
amendment but not to the degree of speech of
natural persons.
First National v. Bellotti (1978).
Consolidated Edison v. Public Service Commission
(1980).

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Unprotected Speech
Certain types of speech are not protected by the
first amendment:

Slander.
Obscenity (Miller v. California).
Fighting Words.

Online Obscenity.
CDA, COPA, Childrens Internet Protection Act.
Filtering Software in public libraries.
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Freedom of Religion
First amendment many neither prohibit the
establishment nor prohibit the free exercise
of religion.
The first amendment does not require complete
separation of church and state.
First amendment mandates accommodation of
all religions and forbids hostility toward any.
Zorach v. Clauson (1952) and Lynch v.
Donnelly (1984).
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Freedom of Religion
First amendment guarantees the free exercise
of religion.
Employers must reasonably accommodate
beliefs as long as employee has sincerely held
beliefs. Frazee v. Illinois (1989).

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Searches and Seizures

Fourth amendment requires warrant with
probable cause.
Warrantless exceptions exist for evanescent
evidence.
Searches of Business: generally business
inspectors must have a warrant. Marshall v.
Barlows (1978).

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Self-Incrimination
Fifth amendment guarantees no person can be
compelled to testify against himself in a
criminal proceeding.
Does not apply to corporations or partnerships.

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3: Due Process and

Equal Protection
5th and 14th amendments provide no person
shall be deprived of life, liberty or property
without due process of law.
Procedural and Substantive issues.

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Procedural Due Process

Procedures depriving an individual of her rights
must be fair and equitable.
Constitution requires adequate notice and a fair
and impartial hearing before a disinterested
magistrate.

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Substantive Due Process

Focuses on the content or substance of
legislation.
Laws limiting fundamental rights (speech,
privacy, religion) must have a compelling state
interest.
Laws limiting non-fundamental rights require
only a rational basis.

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Equal Protection
Strict Scrutiny.
Laws that affect the fundamental rights of
similarly situated individuals in a different
manner are subject to the strict scrutiny test.
Any suspect class (race, national origin) must
serve a compelling state interest which includes
remedying past discrimination.

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Equal Protection
Intermediate Scrutiny.
Applied to laws involving gender or
legitimacy.
To be constitutional laws must be
substantially related to important government
objectives.
(EXAMPLE: Illegitimate teenage pregnancy).
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Equal Protection
Rational Basis Test.
Applied to matters of economic or social
welfare.
Laws will be constitutional if there is a
rational basis relating to legitimate
government interest.

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4: Privacy Rights
Fundamental right not expressly found in the
constitution, but derived from 1st, 5th and 14th
amendments.
Laws and policies affecting privacy are subject
to the compelling interest test.

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Law on the Web

Online Constitution Center.
See the Vote-Smart site on federalism.
The Federalist.com.
ACLU.org.
Legal Research Exercises on the Web.

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