5. us constitution and commerce lecture

U. S. Constitution

Constitutional Law Lecture

BA-2900

Court Visit Report

• Your one page typewritten court visit report is due on Friday

Joya Assignment

• 1. Did you use the ethics checklist in book?• 2. Did you separate Joya’s opinions from

the facts?• 3. Did you have Joya talk with Bill or HR

before going to the CEO?• 4. Did you have Joya do something?• 5. Did you have a plan for Joya if her ethical

effort did not go well?

U.S. Constitution & the Bill of Rights

• US Constitution establishes:

• The Preamble establishes the purpose for the government

• A union of the member states

• With a Federal Government consisting of– Three equal branches

» The Legislature» The Executive» The Judicial


• US Constitution:• Article 1: Defines the role, composition, duties and privileges of

the bicameral [2 body] legislature» A Senate composed of 2 members elected from each state for

terms of 6 years» A House of Representatives composed of members based on the

number of persons residing in each state [ 1 Representative for every 30,000 persons] for a term of 2 years

How many members in the Missouri Congressional delegation?

What is issue with results of census?

» Balances interests of states being equals [regardless of size] with difference in concentrations of population


• Article 1, Section 8

Gives Congress the power to regulate Commerce with foreign Nations, among the several States and with the Indian tribes

- basis for most regulation of business

This is the “commerce clause” broadly expanded by President Roosevelt to deal with the Great Depression


• US Constitution:• Article 1, Section 9: The writ of habeas corpus [latin- “bring me

the body”]• This continued the English common law tradition of the courts

being able to require a person seized by the government to be brought before the courts for a public hearing of why the government is detaining the person

• A fundamental protection of individual liberty

Has this right ever been suspended?

• Why is this a key issue in US cases involving persons interned in Guantanamo and in other places outside of US?


• US Constitution:• Article 2: defines the Executive branch

– A President and a Vice President

– [only offices to require the person to have been a natural born citizen of the United States]

– Chosen indirectly by an Electoral College as modified by amendments XII and XXII [selected and their voting determined by the states]

Which state governor is not eligible to become president of the US?

– For a term of 4 years and under amendment XXII for not more than 2 terms


• US Constitution:• Article 3: Establishes a Supreme Court [and allows

Congress to add or remove such other and additional inferior courts ie. the Courts of Appeal, District Courts]

» Judges are appointed for life, subject to impeachment ‘except upon violation of good behavior’

Impeachment process is similar to that for Illinois governor R. Blagojevich

see: http://www.youtube.com/watch?v=OIq6Al7wdk0

http://www.youtube.com/watch?v=OIq6Al7wdk0


• US Constitution:• Articles 4 through 7 deal with the administration of the

Constitution-– Admission of new states

– mutual recognition of public records of federal government and state

– Amendments

– Supremacy clause of US Constitution and laws» “This Constitution and the Laws of the United States…shall

be the supreme Law of the Land….”

Article 6 (2)


• US Bill of Rights:

• The US Bill of Rights consists of Amendments 1 through 10 of the US Constitution

• Added after the adoption of the Constitution at the insistence of some of the founders concerned that the government would become insufficiently attentive to the protection of individual liberty



First Amendment: Prohibits the federal government from

Interfering in Religion

1. establishing a state religion [protest against the Church of England]

and

2. with religious practice [protest against persecution of unpopular religious sects in Europe]

This is the basis for the tax exemption of church property- the power to tax being the power to regulate, favor or punish


• US Bill of Rights:First Amendment: Prohibits the federal government

from

Restricting Public Speech or the Press

1. The protection of the right of free speech and press is perceived to be one of the most important principles of the US Constitution and given great deference by the US Supreme Court



First Amendment: Free Speech and Press

US Supreme Court requires any action by the government restricting speech to be justified by a compelling state interest

and

in efforts to regulate speech the government must try to avoid regulating the content of the speech


• US Bill of Rights:First Amendment: Free Speech and Press

Supreme Court has acknowledged that the government has the power to regulate some types of speech

such as words which will immediately cause public harm- such as yelling “fire” in a crowded theater

orwords intended to provoke

immediate violenceor

may regulate time, place and manner for public order [the context in which the speech will occur but not content]



First Amendment: Free Speech and Press

- Other Remedies for unacceptable speech:

Civil lawsuits for:

Slander- the speaking of false and malicious words about another tending to injure their reputation, business or means of livelihood

Libel- publication in writing or on media of false and malicious statements about another



The scope of the first amendment right of free speech was at issue in Kasky v. Nike

[Kasky sued Nike alleging that Nike ads responding to claims about its labor practices in Thailand were false and intentionally misleading ]

- Is a “company” entitled to the protection of the first amendment?

- Is advertising protected “speech”



Nike v. Kasky raises the question is advertising a type of speech which may be regulated?

ie truth in advertising laws

Supreme Court has indicated that it is speech and entitled to protection but to a lesser extent than political speech

this is characterized as “commercial speech”



Nike v. Kasky : “commercial speech”

Supreme Court set forth three prong test-

see: Salib v. City of Mesa [page 116-117]

Courts grapple with issue on a case by case basis


• US Bill of Rights

First Amendment – protects right of assembly and to petition the government for redress of grievances

- basis of power for unpopular demonstrations [eg American Nazis, Ku Klux Klan],

and

- basis for role of lobbyists


• US Bill of Rights

First Amendment –petition the government for redress of grievances

- basis for Citizens United v. Federal Election Commission – Hillary movie case http://video.google.com/videoplay?docid=8464923602139974671&ei=Ixx0S7KlOoHaqAOz1dWSBw&q=hillary+the+movie&hl=en#

- Supreme Court decision eliminating campaign spending limits on corporations and unions

http://video.google.com/videoplay?docid=8464923602139974671&ei=Ixx0S7KlOoHaqAOz1dWSBw&q=hillary+the+movie&hl=en

http://video.google.com/videoplay?docid=8464923602139974671&ei=Ixx0S7KlOoHaqAOz1dWSBw&q=hillary+the+movie&hl=en


• US Bill of Rights:Fourth Amendment: Right to be secure from unreasonable searches of your person, home, property and papers without probable cause

important in government investigations of business[eg. Search warrants in baseball steroid

cases- can you collect data in computer on players other than those named in warrant?]

How do you respond to a request by a government official to enter your business and talk with your employees?



Fourth Amendment:

In responding to a police or regulatory officer’s request, the business person is making a judgment.

If you admit the officer to your offices you demonstrate your desire to cooperate but also may waive your privilege to require the officer to have a judicial warrant to do so

- exception for regulated businesses [deemed consent as condition of license]


• US Bill of Rights:Fourth Amendment:

This raises the issue of whether any evidence is admissible in court in a case against the company based on the “exclusionary rule”

This is a judicially developed rule [eg of ‘stare decisis’] which prohibits the police from using evidence in a criminal case which was improperly obtained in violation of the fourth amendment [even if highly probative of crime]

- a procedural rule which can be changed or terminated by the courts [not a constitutional right]



Fifth Amendment:

1. No duty to self incriminate in a criminal matter [basis for statement “taking the fifth amendment”]

and

2. No taking of private property for public purpose without just compensation

- power of eminent domain

3. Protection of due process of law


• US Bill of Rights:Fifth Amendment:

The taking of private property for public purpose is called eminent domain

Kelo v. City of New London- US Supreme Court upheld use of eminent domain to take property for redevelopment

[thus even property not blighted could be taken as part of an overall public purpose even when it would be transferred to another private person [ie developer].

This decision has led many states and municipalities to contemplate restrictions on their use of eminent domain



The taking of private property for public purpose in the US is called eminent domain

In international setting the taking of a foreign investor’s property by the host government is called expropriation

Developed countries follow the US approach of requiring the foreign government to pay- prompt, adequate and effective compensation in such a situation

what is prompt adequate effective



This amendment also confronts the situation of the government’s use of regulation which deprives the owner of the beneficial use of the property

eg- Does a zoning regulation [ is it a taking?] which prohibits farmland from being sold for a suburban housing development constitute a taking which requires compensation?



Usually regulatory takings do not require compensation, unless:

1. it constitutes a total loss of economic value to the owner; or

2. where the burden imposed is not proportional to the benefit being required of the owner [ ie a requirement that the developer put in sewers, roads and emergency services, such as fire hydrants, but not to build a public park on more than half the property]; or

3. Restriction is imposed subsequent to known intended use of property


• US Bill of Rights:Fourteenth Amendment [doctrine of

incorporation]:

Forbids state governments from depriving citizens of life, liberty or property without due process of law

This replicates the restriction on the federal government in the Fifth Amendment

This amendment added after the US civil war to prevent state governments from violating the civil and political rights of minorities


• US Bill of Rights:Fifth and Fourteenth Amendments [ significance of use of ‘person’ and ‘citizen’]:

Due Process of Law

1. Substantively- protection against laws which unduly burden personal liberty or property

2. Procedurally- requires notice and a fair hearing before government action against a person’s liberty or property



Fifth and Fourteenth Amendments:

Due Process of Law

eg: This has become relevant in the commercial context of the courts reducing excessive damage awards as a violation of fundamental fairness


• US Bill of Rights:Fifth and Fourteenth Amendments:

Due Process and punitive damagesSupreme Court adopted a three factor test to

determine if punitive damages were grossly excessive and violative of due process:

1. reprehensibility of defendant’s conduct;2. ratio between compensatory damages and

punitive damages; and3. comparison of punitive damages with

criminal penalties for the activity.

Assignment for Thursday

• Read US Constitution – Appendix A

• Read Chapter 4

5. us constitution and commerce lecture

Documents

bill of rights us constitution

bill of rights article

constitution admission

us cases

press us supreme court

public speech

types of speech

right of free speech