BUSA2106 Lecture 9 Outline of Last Lecture I Separation of powers checks and balances II Federalism III Commerce clause dormant commerce clause Outline of Current Lecture IV Preemption V Due process VI Equal protection VII Privacy Current Lecture What happens in areas of concurrent power when a federal and state law conflict Preemption Comes from Supremacy Clause The Constitution and the laws made in pursuance thereof shall be the supreme law of the land Individual Constitutional Rights Limits on what the government can do to people Criminal law 4th 5th 6th 8th Amendments Equal Protection Clause s 5th 14th Amendments Due Process Clause s 5th 14th Procedural due process Substantive due process Equal Protection Clause 14thAmendment nor shall any State deny to any person within its jurisdiction the equal protection of the laws Applies to local governments as well 5th Amendment applies equal protection to federal government actions What about private parties The amendments does not apply to private parties What is equal protection of the laws Government is required to treat similarly situated people and businesses equally Issue Federal and state governments heavily regulate gambling businesses but not other businesses to the same extent Does this government action discriminate against similarly situated businesses No because a gambling business is not similarly situated to a shopping center Equal Protection Standards What sort of discrimination is involved Strict scrutiny test Involves race national origin or citizenship status and Government action must be necessary to meet a compelling government interest Intermediate scrutiny test Involves gender and Government action must be substantially related to an important government interest Rational basis test Involves anything else and Government action must relate to a legitimate government interest Due Process Clauses 5th Amendment nor shall any person be deprived of life liberty or property without due process of law 14th Amendment nor shall any State deprive any person of life liberty or property without due process of law Procedural Due Process Federal and state governments cannot take life liberty or property without due process Examples of the government taking Life Death penalty Liberty Being sent to prison Property The government taking your property to build a highway Due process typically requires Notice and hearing Right to confront accuser Right to subpoena witnesses and evidence Impartial decision maker Substantive Due Process Baseline level of protection Even with perfect procedure Federal 5th Amendment and state 14thAmendment governments cannot take away or limit fundamental rights without a compelling government interest Strict scrutiny test applies Government action must be necessary to meet a compelling government interest What are fundamental rights Bill of Rights Recognized by the Supreme Court rights to Marry heterosexual and raise children Interstate travel Vote Privacy Abortion Contraception Sexual relationships Right to Privacy No right to privacy in the Constitution Derived from the penumbras of the 1st 3rd 4th 5th and 9th Amendments Also heavily regulated by federal statutes e g Family and Educational Rights Privacy Act Health Insurance Portability and Accountability Act chart p 105
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