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Legl C. 2 Slides
| Question | Answer |
|---|---|
| What is the priviledges and immunities clause? | -Art. IV §2 of the U.S. Constitution. -Prevents state from imposing unreasonable burdens on resident or nonresident citizens – particularly with regard to basic and essential activities. |
| What is the full faith and credit clause? | -Art. IV -Applies only to civil matters. -Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states. |
| How does the National Government not get out of hand? | Provides checks and balances among three branches: executive, legislative and judicial. |
| What does the legislative branch do/consist of? | (Congress): Creates laws. |
| What does the executive branch consit of/do? | (President/Agencies): Enforce laws. |
| What does the judicial branch consist of/do? | (Federal Courts): Interprets laws. |
| What is the commerce clause? | The constitution expressly delegated to the NATIONAL government the power to regulate interstate commerce with foreign nations, and among the states, and with the indian tribes. Found in Article I, Section 8 of the Constitution. |
| What is the Supremacy Clause? | Article VI of the Constitution provides that the Constitution, laws, and treaties of the United States are the “Supreme Law of the Land.” In case of direct conflict between state and federal law, state law is invalid. |
| What is a federal PREEMPTION? | Preemption occurs when Congress chooses to act exclusively when national and state governments have concurrent powers. |
| True or False: A Valid Federal Statute or regulation will take precedence over a conflicting state or local statute. | True |
| What taxing powers does the federal government have? | Article I, Section 8: Congress has the “Power to lay and collect Taxes, Duties, Imposts, and Excises” which shall be “uniform” among the states. |
| What is the bill of rights and who does it apply to? | First Ten Amendments to the United States Constitution are called the Bill of Rights. All apply to natural persons and most apply to business entities as well. |
| What are the ten bill of rights? | |
| When was the bill of rights applied to states? | Originally the Bill of Rights was a limit on the national government’s powers. Starting in 1925, the Bill of Rights was applied to States via the “due process” clause of the 14th Amendment. |
| True or False; The bill of rights rights are absolute. | False |
| Which right has the highest protection? | Freedom of Speech |
| Can you burn flags under freedom of speech? | Yes, it is symbolic speech. |
| How does the government decide what speech is or isn't protected? | -Balance must be struck between a government’s obligation to protect its citizens versus a citizen’s right to speech. -If restriction is content neutral, restrictions must target some societal problem – not to primarily suppress the message. |
| True or False: Political speech by corporations is protected by the First Amendment. | True. In Citizens United v. Federal Election Commission (2010) the Supreme Court ruled that corporations can spend freely to support or oppose candidates for President and Congress. |
| How much protection do courts grant to commercial speech? | Courts give substantial protection to commercial speech (advertising). |
| When can the government restrict commercial speech? | Restrictions must: Implement substantial government interest; directly advance that interest; and go no further than necessary. |
| Bad Frog Brewery, Inc. v. New York State Liquor Authority (2003). Did the State unconstitutionally restrict commercial speech when it prohibited a certain gesture (illustration) on beer labels? | |
| What types of speech are not protected by the first amendment? | -Violates criminal laws. -Fighting Words. -Defamatory Speech. -Obscenity (see Miller v. California). -CDA, COPA, Children’s Internet Protection Act (CHIPA). -Meta-tags. |
| What does the first amendment say regarding religion? | First Amendment may not “establish” a religion or prohibit the “free exercise” of religion. |
| What is the establishment clause? | Prohibits government from establishing a state-sponsored religion, or passing laws that favor one over the other. |
| In Re Episcopal Church Cases (2009). Can a secular court resolve an internal dispute about church property without becoming impermissibly entangled with religion? | |
| What is the free exercise clause? | First Amendment guarantees the “free exercise” of religion. Employers must reasonably accommodate beliefs as long as employee has sincerely held beliefs. |
| What does the 4th Amendment say about searches and seizures? | The Fourth Amendment requires search warrants to have “probable cause.” -General searches through personal belongings are illegal. -Search warrants must be specific. |
| What does the 4th Amendment say about searches and seizures in the business context? | Generally business inspectors must have a warrant. However, a warrantless search is permissible for seizure of spoiled or contaminated food. Or in places like airports that are highly regulated. |
| What does the 5th Amendment say? Who does it apply to? | The Fifth Amendment guarantees no person can be compelled to testify against himself in a criminal proceeding. Does not apply to corporations or partnerships. |
| What do the fifth and fourth amendment say? | “no person shall be deprived of life, liberty or property without due process of law.” |
| Procedural and Substantive issues? | |
| What is procedural due process? | -Deprivation of an individual’s rights must be fair and equitable. -Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate. |
| What is 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.” |
| What laws are subjected to the strict scrutiny test? | Laws that affect fundamental rights of similarly situated individuals differently are subject to the “strict scrutiny” test. |
| What other info about the strict scrutiny test? | Any “suspect class” (race, national origin) must serve a “compelling state interest” which includes remedying past discrimination. |
| What is intermediate scrutiny? How is it applied? | Applied to laws involving gender or legitimacy. To be constitutional laws must be substantially related to important government objectives. (EXAMPLE: Illegitimate teenage pregnancy). |
| What is the 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. |
| Where are privay right derived from? | Fundamental right not expressly found in the constitution, but derived from First, Fifth and Fourteenth Amendments. |
| What laws are subject to the compelling interest test? | Laws and policies affecting privacy are subject to the compelling interest test. |
| What are the federal statutes affect privacy rights? | “Pretexting” for financial information is illegal under Gramm-Leach-Bliley. Privacy Act of 1974. HIPAA of 1996. USA PATRIOT Act of 2001. |
| What are other laws affecting privacy? | Other Laws Affecting Privacy. |
| What is a federal form of government? | -Shares power between national and state governments. - National government has limited, enumerated powers delegated from states. |
| What are state regulatory powers called? | Police Powers. The 10th power reserves all powers not delegated to the national government to the states or to the people in order to protect order, safety and morals. |
| How does the commerce clause regulate interstate commerce? | "if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze. |
| What can the commerce clause regulate today? | Virtually any business enterprise, including the internet-based. |
| What is the "Dormant" Commerce Clause? | The gov takes all the interests and circumstances in account and does what is really best for the economy etc. |
Created by:
Colin Reeder