Transcript Constitutional Law SPRING 2013 Sources of Law (where is it?) 1. Constitutional Law (a) State (b) Federal 2.

Constitutional Law
SPRING 2013
Sources of Law (where is it?)
1. Constitutional Law
(a)
State
(b)
Federal
2. Statutory law
(a)
Legislative bodies
(b)
Uniform laws
3. Administrative law
(a)
Legislative delegation
(b)
Rulemaking/Enforcement/Adjudication
4.
Common law
The Common Law Tradition
Common Law = Judge-made or Decisional law
• Feudal system: Different rules for different fiefdoms; no
consistency
• 1066 – The Norman Conquest: William the Conqueror/King’s
Courts
• Built on PRECEDENT; the principle that similar cases should be
decided similarly
• A system of recording decisions evolved: Judges issued
opinions which could be referred to by other judges to guide
their decisions
• Unified the country by creating more consistent and
predictable rules
Stare Decisis = Precedent
• Bedrock Principle of US Jurisprudence; it has two
components:
(a) If a Court establishes a precedent in how it handles
a particular situation, all lesser courts facing the same
situation are bound to follow it, too (it’s “binding authority”
on that court).
(b) A Court should not depart from a precedent
without a strong reason to do so.
• When will a Court depart from precedent?
(a) Precedent is incorrect
(b) Societal change has overtaken
(c) Often “distinguish” as opposed to overrule
Binding Authority
• Courts are bound to apply the law from its several
sources
• Constitutional provisions
• Statutes
• Administrative rules
• Previous decisions of a higher court
When there is no precedent:
• In a case of first impression, a Court should look
to similar (although not binding) cases, statutes or
other sources – this is “persuasive authority”
Law v. Equity
Courts work by providing remedies to persons who are aggrieved.
Usually, the form that legal remedy takes is an award of money.
• The King’s Courts awarded monetary or economic remedies –
became known as remedies at law.
• However, sometimes a remedy at law is not adequate, and what
would be just or fair would be a decree or order tailored to
address a specific situation: to order someone to refrain from
doing something harmful, or to require someone to come
through on a deal that was made. An equitable remedy.
• When a subject petitioned for a remedy other than money, the
King delegated the decision to his Chancellor. Thus, the
Chancery Courts were the Courts of Equity while the King’s
Courts were the Courts of Law.
Equity = Fairness; Law = Money
No longer two different court systems in Texas or in most
other states, nor in the federal court system. Same courts can
dispense both equitable and legal remedies. Normally:
• Equitable Remedies include: Injunctions, Specific
Performance, Recission, Reformation, Mandamus. Usually,
one must show that a legal remedy would be inadequate,
and that irreparable harm will result if the requested
remedy is not awarded.
• In addition, equitable remedies are regulated by certain
principles or “maxims” of equity, such as clean hands, he
who seeks equity must do equity, equity regards
substance over form, etc. (see page 10)
Marbury v. Madison
Start our study of the Constitution by taking a
look at this famous case:
• Marbury defined the relative roles of a
constitutional provision and a law passed by
Congress;
• Marbury defined the role of the judiciary in
the federal system.
Constitutional Powers of
Government
• Federalism: The federal constitution was a
political compromise between advocates of
state sovereignty and central government.
• Separation of Powers: Executive, Legislative
and Judicial. Provides checks and balances.
– Legislative: enacts laws.
– Executive: enforces laws.
– Judicial: declares laws/actions unconstitutional.
Three Branches of Government
1. LEGISLATIVE
Makes the laws
2. EXECUTIVE
Enforces the laws
3. JUDICIAL
Interprets the laws
What’s in it?
The Original Document is in just 7 Articles.
• Article I – the Legislature
• Article II – the Executive
• Article III – the Judiciary
• Article IV – the States
• Article V – Amendment
• Article VI – Debts, Supremacy, Oaths
• Article VII - Ratification
Some Important Clauses in the
First Seven Articles
Article I, Section 8: Sets forth specific powers of Congress. Among these are
the authority to:
• “regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes…”
(this is the Commerce Clause) We’ll cover in more detail in a minute
• “…establish an uniform Rule of Naturalization, and uniform Laws on the
subject of Bankruptcies throughout the United States…”
(immigration laws and bankruptcy laws)
• “…promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries”
(copyrights and patents)
Familiar and Important
Constitutional Clauses
• “To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures
on Land and Water”
(war powers)
• “To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer thereof”
(the Necessary and Proper Clause)
Familiar and Important Constitutional Clauses
Article VI contains this passage:
• “This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of
the United States, shall be the supreme Law of
the Land…”
(This is referred to as the Supremacy
Clause)
Familiar and Important Constitutional Clauses
Article I, Section 9 applies some limits to Congress’s
powers:
• The “privilege of the writ of habeus corpus shall not be
suspended…”
(this is a legal action by which one can challenge his
detention as unlawful…sometimes called the “great
writ” because of its importance)
• No bill of attainder
(this is a law declaring a person or group of people
guilty of a crime without a trial)
• No ex post facto law
(this is a law declaring something that already
happened to be illegal)
Familiar and Important Constitutional Clauses
Article II describes the office of the President. He or
she shall:
• “be Commander in Chief of the Army and Navy…”
• “have Power, by and with the Advice and Consent of
the Senate, to make Treaties…and he shall nominate,
and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court,
and all other Officers…”
• “from time to time give to the Congress Information of
the State of the Union”
• “be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes
and Misdemeanors”
Familiar and Important Constitutional Clauses
Article III establishes the federal courts.
• “The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.”
• “The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated Times,
receive for their Services a Compensation which shall not be
diminished during their Continuance in Office”
(This means that federal judges are appointed for life)
• Section 2 states the jurisdiction of the Supreme Court. “In all
Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction…”
(Recall that this is the language that John Marshall hung his hat on
in deciding Marbury v. Madison and establishing judicial review.
The Constitution does not itself state anywhere that the Supreme
Court has authority to declare a law passed by congress to be
unconstitutional)
Familiar and Important Constitutional Clauses
Article IV, regarding the States contains:
• “Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial
Proceedings of every other State….”
(the Full Faith and Credit Clause)
• “The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in
the several States”
(the Privileges and Immunities Clause)
Commerce Clause
• Article I, Section 8. Greater impact on business than
any other provision of the Constitution, it gives
Congress power to:
“…regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes…”
• In early years, this was interpreted as allowing
regulation only of interstate as opposed to intrastate
commerce. 1824 case of Gibbons v. Ogden allowed
Congress to legislate purely intrastate matter under the
commerce clause as long as the commerce substantially
affected commerce involving more than one state.
The Commerce Clause
• Since Gibbons, federal regulatory
powers have expanded under
Commerce Clause:
– Wickard v. Filburn (1942). Purely local
production, sale and consumption of wheat
was subject to federal regulation.
– Heart of Atlanta Motel v. U.S. (1964). Motel
that provided public accommodations to
guests from other states was subject to
federal civil rights legislation.
Commerce Clause
• Since then, Commerce Clause has been the
chief vehicle of expanding federal
government authority over all kinds of
matters.
• There is very little that Congress cannot
do when it acts under the Commerce
Clause.
The Commerce Clause
• Commerce Clause Today:
– Theoretically: the federal government has
unlimited control over all business
transactions since any enterprise (in the
aggregate) can have a “substantial effect” on
interstate commerce.
– Practical Limits: Supreme Court has curbed
federal regulatory powers in U.S. v. Lopez
(1995) and U.S. v. Morrison (2000).
– Most Recent: Affordable Care Act upheld
Bill of Rights
• 1791: Ten written guarantees of protection
of individual liberties from government
interference.
• Originally, Bill of Rights only applied to
the federal government.
• Later, the Bill of Rights was
“incorporated” via the 14th Amendment
and applied to the States.
The Bill of Rights
The first ten amendments to the Constitution comprise the Bill
of Rights.
First Amendment
Congress shall make no law respecting an establishment of
religion,
(called the Establishment Clause)
or prohibiting the free exercise thereof;
(called the Free Exercise Clause)
or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
(freedom of speech, press, right to assemble and to petition)
First Amendment:
Freedom of Speech
• Right to Free Speech is the basis for our
democratic government.
• Free speech also includes “symbolic”
speech, including gestures, movements,
articles of clothing.
• Offensive speech and conduct that is
intended as speech also protected, see
Snyder v. Phelps. But it’s not always clear
what conduct is speech and what isn’t.
(See J. Alito dissent)
First Amendment
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
1.
Demonstrators, including Johnson, burn an American Flag at a
protest rally and are arrested by the local authorities. They are
charged with violating a law prohibiting the desecration of the
American Flag. The demonstrators challenge the constitutionality
of the law. What result?
In the 1989 case of Texas v. Johnson, the Supreme Court held
that burning a flag to protest government policies is an act of
expression, and thus protected political speech. It struck down
the local law.
First Amendment
Free Speech Rights of Corporations
The Supreme Court overruled prior cases holding
that political speech may be banned based on the
speaker's corporate identity. Under the 1st
Amendment, corporate funding of independent
political broadcasts in candidate elections cannot be
limited. Majority held political speech is
indispensable to a democracy, and this is no less true
because the speech comes from a corporation as
opposed to an individual.
Citizens United v. FERC
First Amendment
Commercial (not political) speech
treated differently than
non-commercial speech.
More leeway given to regulation of
The content of commercial speech
(See Handout)
Unprotected Speech
• Certain speech is NOT protected:
– Defamatory speech.
– Threatening speech that violates criminal laws.
– Fighting Words.
– Obscene Speech is patently offensive, violates
community standards and has no literary,
artistic, political or scientific merit.
– False or Misleading Advertising
First Amendment:
Freedom of Religion
• First amendment guarantees that “Congress
shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof…”
• Establishment clause: no state-sponsored
religion or preference for one religion over
another.
• Free Exercise clause: person can believe what
he wants, but actions may be
unconstitutional.
Second Amendment
A well regulated Militia, being necessary
to the security of a free State, the right of
the people to keep and bear Arms, shall
not be infringed.
Third Amendment
No Soldier shall, in time of peace be
quartered in any house, without the
consent of the Owner, nor in time of war,
but in a manner to be prescribed by law.
Fourth Amendment
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.
Fifth Amendment
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.
Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defence.
Seventh Amendment
In Suits at common law, where the value
in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be
otherwise re-examined in any Court of the
United States, than according to the rules
of the common law.
Eighth Amendment
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
Ninth Amendment
The enumeration in the Constitution, of
certain rights, shall not be construed to
deny or disparage others retained by the
people.
Tenth Amendment
The powers not delegated to the United
States by the Constitution, nor prohibited
by it to the States, are reserved to the
States respectively, or to the people.
• State have inherent “police powers.”
– Police powers include right to regulate health, safety,
morals and general welfare.
– Includes licensing, building codes, parking
regulations and zoning restrictions.
Fourteenth Amendment
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.
….
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
Due Process
• Due Process is both procedural and
substantive.
• Procedural: any government decision to take
life, liberty or property must be fair. Requires:
Notice and Fair Hearing.
• Substantive: focuses on the content or the
legislation (the right itself).
– Fundamental Right: requires compelling state
interest.
– Non-Fundamental: rational relationship to state
interest
Equal Protection
• 14th Amendment: A state may not “deny
to any person within its jurisdiction the
equal protection of the laws.”
• Means that government must treat
similarly situated individuals (or
businesses) in the same manner. Courts
apply different tests:
– Minimal scrutiny-economic rights.
– Intermediate scrutiny.
– Strict Scrutiny – fundamental rights.
But it’s not unlimited...