1. Constitutional Law

Constitutional Law

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Introduction to Constitutional Law
The US Constitution is the supreme law of the United States. It provides the framework for our Federal Government and is the model for state governments. It establishes certain individual rights and provides protection against government interference with those rights. It also provides the authority for the federal and state governments to pass laws governing individuals and property. This chapter will review the major provisions (Articles) of the Constitution that establish the framework for the legal system. It will explore the dichotomy between federal and state governments and touch on the major constitutional protections of individual rights — primarily contained in the Bill of Rights and subsequent Amendments. Notably, it will explore the procedural protections for those made subject to the legal system. Lastly, it will explain the government’s authority to pass laws and the standards that apply when determining the legality of the laws they pass. For further written and video explanation, discussion and practice questions, see Constitutional Law (Intro)

Major Parts of the US Constitution
The US Constitution is divided into seven articles. Article I, II, III establish the governance structure of United States. Article I establishes two legislative bodies, the House of Representatives and the Senate, to make the laws to govern the nation. Article II establishes the executive branch, which is led by the President, to enforce laws. Article III establishes the judicial branch of government to review the constitutionality of laws and their execution. Since its passage, the Constitution has been amended 27 times. Most of these amendments serve to protect individual rights, known as “fundamental rights”, against government infringement. Perhaps the best-known constitutional rights are stated in the first ten amendments to the US Constitution, which make up the Bill of Rights. The 14th Amendment, arguably the most important amendment, extended the protections afforded individuals under the Constitution by applying those provisions to state governments. Notably, the 14th Amendment introduced the Due Process and Equal Protection Clauses. For further written and video explanation, discussion and practice questions, see What is Included in the US Constitution?

Separation of Powers
The Constitution divides the US Government into the following three separate-but-equal branches. Legislative Branch (Article I) – House of Representatives and Senate (collectively, “Congress”); Executive Branch (Article II) – President; Judicial Branch (Article III) – US Supreme Court. For further written and video explanation, discussion and practice questions, see What is the "Separation of Powers"?

Checks and Balances
The government is structured as a checks-and-balance system whereby each branch independently checks the authority of the other branches. This system prevents any branch from becoming too powerful and eroding the rights of citizens. Below is brief description of how each branch checks the authority of the other branches. For further written and video explanation, discussion and practice questions, see What is "Checks and Balances"?

Legislative Branch
This branch of government passes laws that guide the executive branch in the execution of the law. Congress must approve the executive branch’s budget and certain presidential appointments to high-level administrative positions. The US House of Representatives retains the authority to impeach (bring charges against) the President for misconduct committed while in office. Further, the US Senate has the authority to determine the merits of the impeachment and render judgment. Congress checks the power of the judiciary by passing laws that supersede or replace the existing common law developed by the judiciary. Lastly, Congress must approve the President’s nomination of an individual for appointment to federal judicial positions, including the US Supreme Court. For further written and video explanation, discussion and practice questions, see What is the "Legislative Branch"?

Executive Branch
The executive branch is controlled by the President of the United States. This branch checks Congress’s authority through the power to veto (strike down) legislation. When Congress presents the President with an approved bill to sign into law, the President can sign it, not sign it, or veto it. Signing it or failing to sign it will result in the bill becoming law. Vetoing the law strikes it down. Congress can only override a veto with a two-thirds (2/3) majority vote of both the House and Senate. The President, in turn, may selectively enforce laws that are within the executive branch’s regulatory authority. Selective enforcement has the effect of reducing the impact of a law passed by the legislative branch. Lastly, the executive branch checks the judicial branch by nominating members to the federal judiciary and through the power to pardon those convicted under certain criminal statutes. For further written and video explanation, discussion and practice questions, see What is the "Executive Branch"?

Judicial Branch
The judicial branch checks the legislative branch by reviewing laws for constitutionality. Any law is subject to challenge on the grounds that it violates rights ensured under the US Constitution. The judicial branch also checks all executive orders or actions for constitutionality. In either case, it has the ability to overturn unconstitutional laws and executive orders or actions. Further, the court can limit the scope of a law by narrowly or broadly interpreting it in a manner that does not infringe upon constitutional rights. For further written and video explanation, discussion and practice questions, see What is the "Judicial Branch"?

Federalism
Federalism regards the separation between a central government and independent governmental sub-units. In the US system, federalism is the separation between the federal and state governments. Article IV allows for the the existence of states as self-governed units. The Constitution, under the 10th Amendment, specifically reserves power of self-governance to the states. This includes the authority to pass laws. For the Federal Government to pass a law, it must be based on a specific power or authority granted under the Constitution. States pass laws pursuant to their state constitutions and the “police power” inferred from the 10th Amendment. Police power is a state’s authority to legislate for the public safety, health, general welfare, and morals of its citizens. For further written and video explanation, discussion and practice questions, see What is "Federalism"?

Supremacy Clause
Article VI, Section 2 of the US Constitution provides that the Constitution is supreme over all laws and that federal law is supreme over state law. Generally,the state and federal governments may regulate the same type of conduct. This is known as “concurrent power”. However, any state law that prevents or interferes with the accomplishment and execution of the full purposes and objectives of Congress is invalid. Congress can expressly reserve an entire area of law for federal regulation. In such a case, the federal law “preempts” state law. If Congress does not expressly reserve the area of law for federal regulation, the state may also regulate it. State appellate courts or the US Supreme Court may review a state law and overturn it if it determines that the law conflicts with or violates a federal law. For further written and video explanation, discussion and practice questions, see What is the "Supremacy Clause" and "Preemption"?

Full Faith and Credit Clause
Article IV, Section 1 states, “Full faith and credit shall be given in each state to the public Acts, Records, and judicial proceedings of every other state.” Restated, Article IV requires that each state recognize the laws of every other state. The only exception to this rule concerns laws that violate the public policy of another state. In such case, a state may refuse to recognize the legality of the foreign law or legal agreement. For further written and video explanation, discussion and practice questions, see What is the "Full Faith & Credit Clause"?

Privileges and Immunities Clause
Article IV, Section 2 states that, “Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This clause seeks to avoid individuals gaining an advantage or being discriminated against by a state government simply because of the person’s state or residency. States may discriminate against members of other states in favor of its residents if there is a “substantial justification”. Substantial is a floating standard that may be subject to challenge by a court. For further written and video explanation, discussion and practice questions, see What is the "Privileges and Immunities Clause"?

Commerce Clause
The Commerce Clause allows the Federal Government to regulate any activity that affects “interstate commerce”. It is the most commonly employed justification for the passage of federal laws affecting citizens and businesses within the US. In reality, almost any sort of business activity affects interstate commerce and thus falls under the regulatory authority of the Federal Government. The Federal Government does not, however, have the authority to regulate an activity that is carried out solely within a state’s borders and has no discernible effect on interstate commerce. Unless an area of law is expressly reserved for federal regulation, states have the authority to pass laws based upon their police power. The state law cannot “intend to regulate” or “substantially conflict with” interstate commerce. The substantially conflict with provision is known as the “Dormant Commerce Clause”. For further written and video explanation, discussion and practice questions, see What is the "Commerce Clause"?

Taxing and Spending Power
Article 1, Section 8, expressly grants to the Federal Government the “Power to lay and collect Taxes, Duties, Imports, and Excises.” The taxing and spending power allows for the funding of Federal Government operations. The ability to tax is limited by the requirement that all taxes be uniformly applicable to all individuals. Article 1, Section 8 further allows the Federal Government to “Pay the debts and provide for the common Defense and general Welfare of the US.” This authority allows the Federal Government to incur and manage domestic and foreign debt. It also allows for the formation of the military and funding of the military defense budget. For further written and video explanation, discussion and practice questions, see What is the "Taxing and Spending Power"?

Contracts Clause
Article I, Section 10 states that, “No state shall pass any Law impairing the obligation of contracts.” The Contract Clause prohibits state governments from specifically legislating to interfere with (or usurp) private contract rights. It is, however, limited by the ability of state governments to legislate to interfere with those rights under their police power. The state may pass legislation impairing a contract if the law is passed to deal with a specific emergency situation. Further, a state government may generally legislate to regulate an industry or commercial activity. Such legislation may have the effect of interfering with existing contracts. Because the legislation is not directly targeted at interfering with an individual’s (or business’s) contract rights, it does not violate the Contracts Clause. The Contract Clause demonstrates the drafters’ regard for the importance of individual contract rights. For further written and video explanation, discussion and practice questions, see What is the "Contract Clause"?

1st Amendment
The 1st Amendment to the Constitution states that, “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.” For further written and video explanation, discussion and practice questions, see 1st Amendment of the US Constitution.

"Establishment Clause" and "Free Exercise Clause"
The freedom of religion portion of the 1st Amendment is made up of the Establishment Clause and the Free Exercise Clause. The 1st Amendment states that, “Congress shall make no law respecting an establishment of religion” or “prohibiting the free exercise thereof.” The first provision of this clause is known as the “Establishment Clause”. It stands for the principle that the government should not force any particular religion(s) onto its citizens. The second provision of the 1st Amendment addressing religion is known as the “Free Exercise Clause”. It provides that the government cannot prohibit individuals from practicing any religion. The Free Exercise Clause has been the subject of significant litigation charging the government with discriminating against individuals’ religious practices. There is a common law test for determining whether a government statute runs afoul of the Free Exercise Clause by unduly restricting the free exercise of religion. For further written and video explanation, discussion and practice questions, see What are the "Establishment Clause" and "Free Exercise Clause"

Freedom of Religion Affects Business
Generally, for-profit businesses covered by Title VII of the Civil Rights Act of 1964 may not discriminate against employees on the basis of religion. There is an exception for religious organizations whose primary purpose necessitates religious practice or affiliation among its employees. Aside from the prohibitions on employment practices, common law holds that closely-held corporations may have religious protections similar to those of citizens. For further written and video explanation, discussion and practice questions, see How does freedom of religion affect business practice?

Freedom of Speech
The 1st Amendment provides for the freedom to speak and express oneself. The freedom of speech is far broader in its protections than simply protecting the spoken word. It protects individual rights with regard to any form of expression. Forms of expression may include speech, writings, physical expressions, symbols or symbolic activity, etc. The freedom of speech may still face certain limitations by the government. Certain types of speech are not protected. Further, the government may place certain limitations on the location and timing of speech that takes place on government property or somehow affects the rights of others. For further written and video explanation, discussion and practice questions, see What is protection of "Freedom of Speech"?

Speech with Limited or No Constitutional Protection
The Supreme Court has interpreted the 1st Amendment to not protect all forms of speech. That is, some forms of speech or expression may be limited or fully prohibited by the Government. In determining whether a type of speech or expression is protected, the court will balance the rights of the individual against the potential harm to or effect upon the rights of others. Because the freedom of speech is a fundamental right, the Government cannot limit speech without a compelling government interest justifying the restriction. Pursuant to this understanding, statutory and common law often prohibit or limit the protections offered to: Obscene Speech, Fighting Words, Commercial Speech, Defamation, and Political Speech. For further written and video explanation, discussion and practice questions, see Speech with Limited or No Protection

Section Head
Obscene expressions are those that appeal to the “prurient interest”. Such expressions are deemed harmful to the community. There is no standard definition of obscenity; rather, courts determine whether an expression is obscene based upon the beliefs, perceptions, or standards of the local population. While there is no common definition of obscenity, a state or local law that is too restrictive or broad in its provisions limiting expression is subject to be overturned by the judiciary as an undue restriction on the freedom of speech. For further written and video explanation, discussion and practice questions, see What is "Obscene Speech"?

Fighting Words
Fighting words are those deemed likely to immediately incite violence by listeners. An important requirement for an expression to constitute fighting words is that the threat of violence be immediate. This means that the subject-matter exception is determined by the physical presence and likely reaction of third parties. For further written and video explanation, discussion and practice questions, see What are "Fighting Words"?

Unprotected Speech - Commercial Speech
There is only a limited right to undertake commercial speech. Such expressions necessarily involve third parties who take actions based upon that speech. The government’s regulation of commercial speech is based upon the potentially negative effect on the general welfare of society. The limitation upon the regulation of commercial speech is that the government must have a compelling state interest to justify the restriction. For further written and video explanation, discussion and practice questions, see What is "Commercial Speech?

Unprotected Speech - Defamation
Defamation is the publication (open communication) of false statements about others that will knowingly subject that person’s character to ridicule or disrepute. “Slander” is verbally defaming someone. “Libel” is defaming someone through a writing. “Disparagement” is defaming someone’s business prowess or practice. Defamation statutes do not prohibit this type of speech (a prior restraint of the speech); rather, they allow an individual harmed by the speech to recover damages for harm suffered as a result of the speech. Potential liability for defamation, however, can have the effect of dissuading free speech. This fact must be balanced against the protections afforded the individual who is the subject of the defamatory expression. In any case, the defamed individual must demonstrate an actual harm suffered as result of the defamation. For further written and video explanation, discussion and practice questions, see What is "Defamation"?

Unprotected Speech – Political Speach
Individuals and corporations are entitled to only limited protection of political speech. Political speech includes the spending or donation of money to political campaigns or undertaking political activism. As such, political contributions by individuals or entities may be subject to regulation. Individuals and businesses are limited in the amount of funds that they can contribute to political candidates for federal office and certain groups that donate to political candidates. Historically, corporations were also limited in their ability to directly fund or undertake political activism. The issue of direct spending in elections came to the forefront in the case, Citizens United v. Federal Election Commission. In this case, the court held that corporations hold rights similar to those of individuals with regard to political speech. As such, many of the existing regulations of the amount of funds or activity that a corporation may spend or undertake with regard to political campaigns were held invalid. This case did not, however, affect the legal limits on individuals and organization to make contributions directly to candidates and groups dedicated to making contributions to candidates. For further written and video explanation, discussion and practice questions, see What is "Political Speech"?

Overbreadth and Overly Broad Laws
To pass constitutional muster, the government must have a compelling interest in passing a law regulating free speech. The law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. In this way, it affects more speech than is necessary to achieve the government’s compelling interest. While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional. For further written and video explanation, discussion and practice questions, see Overbreadth and Overly Broad Laws

Freedom of the Press
The 1st Amendment states that, “Congress shall make no law … abridging the freedom of … the press.” Generally, it prohibits attempts by the government to curtail the freedom of expression through the public dissemination of information. More specifically, it prohibits any restraint prior to the publication of information, or “prior restraints”. Rather, protections of free press are commonly reduced after the publication of the information. That is, an individual or organization may be held liable subsequent to the publication of information, as the publication may run afoul of laws protecting the public (e.g., defamation). For further written and video explanation, discussion and practice questions, see Freedom of the Press

Freedom of Assembly
The freedom of assembly, commonly known as the “freedom of association”, protects individuals’ rights to assemble in groups for the purpose of expressing common beliefs or pursuing common interests. The right of assembly includes the right to physically assemble and the right to be a member of an organization. The right of physical assembly is commonly restricted by “time, place, and manner” restrictions. These restrictions must meet the highest level of scrutiny when determining whether such restrictions are constitutional. For further written and video explanation, discussion and practice questions, see Freedom of Assembly

5th Amendment of the US Constitution
The 5th Amendment contains a number of protections for US Citizens. Specifically it protects against self-incrimination by individuals (not corporations). That is, an individual cannot be compelled to testify against herself. It prohibits subjecting an individual to double jeopardy for alleged criminal conduct. This means that the government cannot subject an individual to multiple prosecutions for the same activity. The 5th Amendment also requires the government to pay just compensation to individuals for property taken or appropriated for pubic use. This concept most frequently arises in cases of “eminent domain” (discussed in a subsequent chapter). Arguably, the most important protection, however, is the protection of an individual’s right against deprivation of “life, liberty, and property without due process of law.” This protection is known as the “Federal Due Process Clause”. It assures the protection of citizen’s substantive and procedural rights in the passage and execution of laws by the Federal Government. For further written and video explanation, discussion and practice questions, see What is the 5th Amendment

5th Amendment – Federal Due Process Clause
Due Process rights assure “fundamental fairness and decency” in any governmental act or process that may affect the “life, liberty, property or other constitutional rights” of its citizens. The concept of due process is broken down into “substantive due process” and “procedural due process”. Substantive due process allows the court to safeguard the rights of individuals against infringement by the government. More specifically, it introduces a standard that laws that touch upon the fundamental rights of individuals may be outside of the authority of the government to regulate. This tends to protect a minority population from the unfair consequences of laws passed by the majority. Procedural due process stands for the principle that the government may not act in a manner that is “arbitrary, capricious, or unreasonable” when subjecting an individual to the laws of the state. Procedural due process further entails the observance of individual rights in the passage of laws and regulations. The government establishes certain standards for determining when a law may justifiably infringe upon an individual’s constitutional rights. That is, a law that infringes on a fundamental right must meet a certain standard (discussed further below) to be constitutional. For further written and video explanation, discussion and practice questions, see 5th Amendment (Federal Due Process Clause)

14th Amendment to the US Constitution
The 14th Amendment to the Constitution states that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within it s jurisdiction the equal protection of the laws.” These provisions are known as the Due Process Clause and the Equal Protection Clause. For further written and video explanation, discussion and practice questions, see 14th Amendment

14th Amendment – Incorporation Doctrine
The 14th Amendment’s Due Process clause is an incorporation doctrine. In addition to requiring that states observe principles of due process in the execution of laws, it makes all of the provisions of the Bill of Rights applicable to state governments. That is, state governments cannot act to infringe upon the constitutionally protected rights of its citizens. As previously stated, the 5th Amendment’s Due Process Clause applies strictly to the Federal Government. For further written and video explanation, discussion and practice questions, see 14th Amendment (Incorporation Doctrine)

14th Amendment – Equal Protection
The Equal Protection Clause of the 14th Amendment embodies the ethical idea that law should not treat people differently without a satisfactory reason. This generally protects citizens from discrimination under the law or through government action based upon their exercise of a fundamental right or based upon race, gender, and ethnicity. This clause focused on the historical discrimination present from the days of involuntary servitude. It forced upon state governments the Civil Rights Act of 1866. For further written and video explanation, discussion and practice questions, see What is the Equal Protection Clause of the 14th Amendment

Standards for Constitutionality of Laws
The above discussions should demonstrate that many laws, to some extent, infringe upon the rights of citizens. Individuals often challenge the constitutionality of these laws in court. As previously stated, one role of the judiciary is to determine the constitutionality of laws and the execution of those laws. For a law to pass constitutional muster, it must meet a certain standard justifying its existence. The standard that the court applies depends upon the rights infringed upon. Below are explanations of the applicable standards. For further written and video explanation, discussion and practice questions, see Standards for Constitutionality of Laws

Minimum Rationality
This standard, also known as the “Rational Basis Standard of Review”, requires that a law have a rational connection to a permissible state end (a legitimate goal of the government). The classification must have a reasonable basis (not wholly arbitrary), and the courts will assume any statement of facts that can be used to justify the classification. This standard applies to laws that affect a non-fundamental right or one that is not expressly protected under the Constitution, such as social welfare and economic matters. As such, it is the default standard by which the court reviews a law to determine constitutionality. The standard is higher if the law affects a fundamental right, such as due process or equal protection rights. For further written and video explanation, discussion and practice questions, see Minimum Rationality

Strict Scrutiny
This standard requires that a law have a compelling state purpose to be constitutional. Further, the law in question must be “narrowly tailored” to achieve that purpose and must be the “least restrictive means” of achieving that purpose. This means that the government must make certain that the law is not overly broad in the type of conduct that it affects. Further, there must not be another method of achieving this purpose without infringing upon the affected individual’s rights. Strict scrutiny is used if the classification involves a fundamental right under the Bill of Rights or under the Due Process Clause. It is also applied when a law or government action specifically affects a suspect class. That is, the law or action has a discriminatory effect based upon race, gender, religion, and national origin. For further written and video explanation, discussion and practice questions, see Strict Scrutiny

Intermediate Scrutiny (Quasi-Strict Scrutiny)
This standard requires that the law further an “important government interest”. It must do so in a manner that is “substantially related” to the objective. When laws only partially affect a suspect class or the rights involved border upon fundamental rights, this intermediate level of scrutiny applies. This standard has been applied in determining the constitutionality of laws or government action based upon sex; laws affecting the status of undocumented or illegal immigrants; restrictions on rights to own firearms; and content-neutral restrictions on free speech. For further written and video explanation, discussion and practice questions, see Intermediate Scrutiny (Quasi-Strict Scrutiny)

Judicial Restraint vs Judicial Activism
As previously discussed, appellate courts have the power of judicial review. This includes the power to review laws passed by the legislative body or actions by the executive and to declare them to be unconstitutional and void. Two primary views exist regarding the role of the judiciary in executing its authority: Proponents of judicial restraint believe that the judiciary’s power of review should not be used except in unusual cases. They specifically believe that review of laws that has the effect of expanding or limiting the understanding of constitutional rights are too important to be decided by courts unless absolutely necessary. As such, any case that requires analysis of and interpretation as to the extent of rights afforded under the Constitution are to be avoided if there is another legal basis for a decision. Proponents of judicial restraint also believe that litigation is not the appropriate technique for bringing about social, political, and economic change. That is, social, political, and economic change should only result from the passage of laws by the legislative branch of the federal or state government. Proponents of judicial activism support the use of the judiciary’s power of review. They believe that judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment. Proponents of judicial activism also believe that constitutional issues must be decided within the context of contemporary society. They adopt the view that the meaning of the Constitution is relative to the collective beliefs, sentiments, and values of society at the time in which the law is being interpreted. These views of the role of appellate courts have become largely a political issue. For further written and video explanation, discussion and practice questions, see What are "Judicial Restraint" vs "Judicial Activism"


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