Lecture 5 THE CONSTITUTION Separation of Powers federalism original o Original constitution had only 7 articles o Brief and vague compared to other constitutions thus leaves a lot up to judicial review Bill of Rights First 10 Amendments Subsequent amendments 27 total American constitutionalism SEPARATION OF POWERS Horizontal and vertical separations o Vertical federal state local o Horizontal three branches Supremacy clause art 6 o Supreme law of the land Constitution Doctrine of Preemption example of how judicial review builds on top of constitution language o If fed law already regulates a certain activity or subject then any state law that attempts to regulates that activity will be unconstitutional o There is room for states to compliment fed legislation but cannot be in discord with fed legislation o Applies to federal statues and regulations of fed agencies Ex regulations of nuclear energy regulations of banking systems regulations of satellite telecommunications patents copyrights Securities Law regulates stocks and sales securities in stock exchange CONTRACT CLAUSE Article 1 section 10 o No state shall impair contracts o Applies to states o No federal government o Cannot impair rights under existing contracts BILL OF RIGHTS First ten amendments to Constitution NOT ABSOLUTE o Freedom of speech hate speech limitation on right to free speech Balance between constitutional right and compelling public interest Limits our rights when there s a competing public interest o Cant run into airport and scream bomb o Cant yell fire in a crowded movie theatre Protect minority from majority Freedom of religion speech press right to possess guns FREEDOM OF PRESS ONLY industry that has express protection under constitution Specifically singled out as protected Free from prior restraints constitution wont allow this but not all liability for what you say Ex Libel printed defamatory falsehoods about someone however they had to prove they were acting with actual malice o We count on our press to hold our public figures accountable o You cant lose in defamation if you re printing something that is true FOURTEENTH AMENDMENT 1 Due Process of Law a Substantive aspect fundamental fairness decency 2 Doctrine of incorporation a Originally 14th amendment only applied to federal government then transferred to the states 3 Equal protection a Minimum rationality default test bar is low laws will usually be found constitution because they only have to have rational connection to permissible state end i Presume that a law is constitutional 1 Ex regulations requiring dentists to be licensed by the state a Discriminatory 2 Requiring eye sight test for driver s license a Discriminate age indirectly 3 Drinking age b Strict scrutiny i Laws are very unlikely to be found unconstitutional ii Used when we have fund rights or suspect class group of people that has oppression or history of unequal treatment that s being discriminated against iii Race and national origin are grounds iv Fundamental rights voting travel v Standard Law will be considered invalid or unconstitutional unless necessary to achieve compelling state interests c Quasi strict scrutiny i Substantially related to important government objective 4 SIDEBAR 6 14 o