BUSA2106 Lecture 9Outline of Last Lecture I. Separation of powers/ checks and balancesII. FederalismIII. Commerce clause/ dormant commerce clauseOutline of Current Lecture IV. PreemptionV. Due processVI. Equal protectionVII. 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 otherbusinesses 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 andGovernment action must be necessary to meet a compelling government interest – Intermediate scrutiny test: Involves gender and Government action must besubstantially related to an important government interest – Rational basis test: Involves anything else and Government action must relate toa 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 “dueprocess.” • 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 compellinggovernment 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 relationshipsRight 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.
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