Chapter 3 Constitutional Law Skip note on Government Speech on page 70 Ethics in Action and Global Environment U S Constitution Reflects notion of separation of powers Divided into numbered articles first 10 amendments are Bill of Rights First three articles o Article 1 established Congress and gives it the exclusive power to legislate at the Federal power o Article 2 gives executive power to the president o Article 3 gives judicial power to U S Supreme Court and other federal court o Reflects a system of checks and balances among Congress the president and the courts Courts have political power U S Supreme Court makes public policy State and Federal Power to Regulate State Regulatory Power o U S Constitution does not list the powers that state legislatures may exercise says that certain powers can only be exercised by Congress example the power to issue currency can only be done at the Federal level o As to everything else power may be exercised concurrently by Congress and state legislatures both have authority to deal with issues Federal Regulatory Power If there is a conflict Federal legislation would take priority o Article 1 Section 8 specifies the ways in which Congress can exercise its authority three important ways 1 Regulate commerce among the states Supreme Courts view of how much authority Congress has regulated commerce has changed over time Current Supreme Court view Congress can regulate purely intrastate activity activity that has taken place exclusively in one state ex Maryland if it has substantial effects on interstate commerce 2 Levy impose and collect taxes Purpose to provide revenue to the federal government Regulatory function heavy taxation on particular activities can reduce those activities if they are socially disfavored example cigarette tax to generate revenue and to discourage smoking 3 Spend for the general welfare Regulatory function in the form of conditional federal grants you get more money if you do certain things we want you to do example we will give you more federal grant money to build more interstates if you agree to have a statewide 55mph speed limit Gonzales Case Medical Marijuana o In California at that time it was legal to have possession of marijuana for medical reasons o Federal law that makes possession of medical marijuana illegal o People using medical marijuana seek injunction o Supreme Court decides it is permissible for Congress to pass a law which takes precedence over state law Purely intrastate activity taking place exclusively within California s borders has a substantial effect on interstate commerce could have effect on price of marijuana elsewhere in the country therefore government has right to o Conclusion if you have a problem with the solution you should take it up with Congress o Has to do with 2 other cases that are mentioned on page 61 1 Lopez case had to deal with federal law Gun Free School Zone Act Congress made a federal law that it s a federal crime to possess a gun in a school zone Supreme Court decided that law was unconstitutional It was not an activity that had a substantial effect on intrastate commerce and therefore the law was unconstitutional 1 2 Morrison dealt with federal law called Violence against Women Act gave women the right to sue in a federal court for damages if you are a victim of violence because of sex Supreme Court ruled this was unconstitutional because it did not have substantial effect on intrastate commerce Independent Checks on the Federal Government and States Three key concepts 1 Incorporation There are certain rights guaranteed to you under the Constitution but you only have these rights if the federal government is doing something wrong Due Process Clause has been incorporated into restrictions applicable to state governments even though the Constitution only says what the Federal Government can and cannot do With respect to most of the rights that you are guaranteed under the federal Constitution you can sue for a violation only if the government has done something to restrict your rights Example First Amendment you can only sue somebody for a violation of your First Amendment rights only if that person is a government actor Can sue public universities 2 Government Action 3 Means Ends Test Federal Courts are required to figure out if the laws are unconstitutional They use tests to figure out if laws are unconstitutional There are three tests i Rational Bases a law is constitutional if it bears a reasonable relation to the achievement of legitimate government purpose o Outcome determinative if a court chooses to use this test almost always the court will find that the law is constitutional It is very easy to meet that the law bears a reasonable relation to the achievement o Used as a default test used if the other two tests don t apply high percentage of cases who use this test ii Intermediate Scrutiny o Is the law substantially related to the achievement of an important government purpose o Stricter than the Rational Bases Test o Used if the law discriminates on the basis of sex o Example If there is a law for hiring firefighters making a minimum height and strength restriction obviously more men would pass this restriction than women iii Strict Scrutiny o Is the law necessary to accomplish a compelling government purpose o Example If a law discriminates on the basis of race o Almost always will find the law as unconstitutional because there is no compelling government purpose to discriminating on the basis of race The court has to pick which test applies best to the case does not have to pass all three tests First Amendment First Amendment rights are not absolute you do not have an absolute right to say whatever you what whenever you want o Ex Cannot yell fire at the movies when there is no fire As a general rule corporations have the same First Amendment rights that individuals do unless talking about commercial speech o Commercial speech gives less protection Receives an intermediate level of First Amendment protection if 1 2 It deals with a lawful activity and It s not misleading 2 Three part test to determine whether a governmental restriction on protected commercial speech speech that is not misleading and does not propose unlawful activity violates the First Amendment 1 Does the government have a substantial interest in whatever restriction it s trying to impose 2 Does the restriction advance the government interest 3 Is the restriction no more extensive than necessary
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