ch4: Business and the Constitution – Flashcards

The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce. -To prevent states from establishing laws and regulations that would interfere with trade and commerce among the states, the Constitution expressly delegated to the national government the power to regulate interstate commerce.

only state laws protect privacy not ferderal

Article 1 Article 3

(commerce among the states) and not applicable to intrastate commerce (commerce within a state).United States Supreme Court held that commerce within a state could also be regulated by the national government as long as the commerce substantially affected commerce involving more than one state.

almost every commercial enterprise in the United States. The breadth of the commerce clause permits the national government to legislate in areas in which Congress has not explicitly been granted power.

Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.

The term encompasses not only the enforcement of criminal law but also the right of state governments to regulate private activities in order to protect or promote the public order, health, safet morals, and general welfare.

comes into play when state regulations affect interstate commerce. In this situation, the courts normally weigh the state's interest in regulating a certain matter against the burden that the state's regulation places on interstate commerce. Because courts balance the interests involved, predicting the outcome in a particular case can be extremely difficult.

requirement in Article VI of the U.S. Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." -important in the ordering of state and federal relationships. When there is a direct conflict between a federal law and a state law, the state law is rendered invalid. Because some powers are concurrent (shared by the federal government and the states), however, it is necessary to determine which law governs in a particular circumstance.

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws. - valid federal statute or regulation will take precedence over a conflicting state or local law or regulation on the same general subject.

No single factor is decisive as to whether a court will find preemption. Generally, congressional intent to preempt will be found if a federal law regulating an activity is so pervasive, comprehensive, or detailed that the states have little or no room to regulate in that area.

The first ten amendments to the U.S. Constitution. -embody a series of protections for the individual against various types of interference by the federal government.11

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1. The First Amendment guarantees the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government. 2. The Second Amendment guarantees the right to keep and bear arms. 3. The Third Amendment prohibits, in peacetime, the lodging of soldiers in any house without the owner's consent. 4. The Fourth Amendment prohibits unreasonable searches and seizures of persons or property. 5. The Fifth Amendment guarantees the rights to indictment (formal accusation) by a grand jury, to due process of law, and to fair payment when private property is taken for public use. The Fifth Amendment also prohibits compulsory self-incrimination and double jeopardy (trial for the same crime twice). 6. The Sixth Amendment guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and with counsel. The accused has the right to cross-examine witnesses against him or her and to solicit testimony from witnesses in his or her favor. 7. The Seventh Amendment guarantees the right to a trial by a jury in a civil (noncriminal) case involving at least twenty dollars.12 b 8. The Eighth Amendment prohibits excessive bail and fines, ® as well as cruel and unusual punishment. C 9. The Ninth Amendment establishes that the people have a rights in addition to those specified in the Constitution. 10. The Tenth Amendment establishes that those powers neither delegated to the federal government nor denied to the A states are reserved for the states.

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Nonverbal expressions of beliefs. Symbolic speech, which includes gestures, movements, and articles of clothing, is given substantial protection by the courts. -ex:burning of the American flag to protest government policies is a constitutionally -wearing a T-shirt with a photo of a presidential candidate would be a constitutionally protected form of expression.

—oral, written, or symbolized by conduct—is subject to reasonable restrictions. A balance must be struck between a government obligation to protect its citizens and those citizen exercise of their rights. -Nevertheless, the courts typically allow content-neutral laws that ban all public nudity.

test of constitutionality that requires the government to have convincing reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes among people based on a suspect trait. -For the statute to be valid, there must be a compelling governmental interest that can be furthered only by the law in question.

Political speech by corporations also falls within the protection of the First Amendment. -The Court has also held that a law prohibiting a corporation from including inserts with its bills to express its views on controversial issues violates the First Amendment.18

courts also give substantial protection to commercial speech, which consists of communications—primarily advertising and marketing—made by business firms that involve only their commercial interests. The protection given to commercial speech under the First Amendment is not as extensive as that afforded to noncommercial speech

A state may restrict certain kinds of advertising, for instance, in the interest of protecting consumers from being misled. States also have a legitimate interest in the beautification of roadsides, and this interest allows states to place restraints on billboard advertising.

(1) seeks to implement a substantial government interest (2) directly advances that interest (3) goes no further than necessary to accomplish its objective. A substantial government interest is a significant or important connection or concern of the government with respect to a particular matter.

obscene speech. Establishing an objective definition of obscene speech has proved difficult, however. Numerous state and federal statutes make it a crime to disseminate and possess obscene materials, including child pornography

Speech that harms the good reputation of another, or defamatory speech (see Chapter 5), will not be protected. Speech that violates criminal laws (such as threatening speech) is not constitutionally protected. Other unprotected speech includes "fighting words," or words that are likely to incite others to respond violently.

A computer program that is designed to block access to certain Web sites, based on their content.

A key word in a document that can serve as an index reference to the document. Online search engines return results based, in part, on the tags in Web documents

prohibits the government from establishing a state-sponsored religion, as well as from passing laws that promote (aid or endorse) religion or show a preference for one religion over another. Although the establishment clause involves the separation of church and state, it does not require a complete separation.

The first part of this constitutional provision is referred to as the establishment clause, and the second part is known as the free exercise clause.

the legality of allowing or requiring school prayers, using state-issued vouchers to pay tuition at religious schools, and teaching creation theories versus evolution. Federal or state laws that do not promote or place a significant burden on religion are constitutional even if they have some impact on religion. For a government law or policy to be constitutional, it must not have the primary effect of promoting or inhibiting religion.

violating the establishment clause, and the United States Supreme Court has ruled on a number of such cases. Generally, the Court has focused on the proximity of the religious display to nonreligious symbols, such as reindeer and candy canes, or to symbols from different religions, such as a menorah (a nine-branched candelabrum used in celebrating

The government must have a compelling state interest for restricting the free exercise of religion, and the restri ction must be the only way to further that interest. ex:Members of a particular Mennonite church must use horses and buggies for transportation, but they can use tractors to take their agricultural products to market.

The provision in the First Amendment that prohibits the government from interfering with people's religious practices or forms of worship.

The provisions in the Fifth and Fourteenth Amendments that guarantee that no person shall be deprived of life, liberty, or property without due process of law. State constitutions often include similar clauses.

When religious practices work against public policy and the public welfare, though, the government can act. For instance, the government can require that a child receive certain types of vaccinations or medical treatment if his or her life is in danger—regardless of the child's or parent's religious beliefs.

—procedural and substantive

government decision to take life, liberty, or property must be made fairly. This means that the government must give a person proper notice and an opportunity to be heard, and that it must use fair procedures in determining whether a person will be subjected to punishment or have some burden imposed on him or her.

focuses on the content of legislation rather than the fairness of procedures. Substantive due process limits what the government may do in its legislative and executive capacities. Legislation must be fair and reasonable in content and must further a legitimate governmental objective.

limits the liberty of important government objectives.

interstate travel, privacy, voting, marriage and family, and all First Amendment rights. Thus, a state must have a substantial reason for taking any action that infringes on a person's free speech rights.

The provision in the Fourteenth Amendment that requires state governments to treat similarly situated individuals in a similar manner. -Under the Fourteenth Amendment, a state may not "deny to any person within its jurisdiction the equal protection of the laws."

substantive due process question. If it prohibits only unmarried persons from buying the same devices, it raises an equal protection issue.

1. strict scrutiny 2.intermediate scrutiny 3.Rational Basis test

strict scrutiny, intermediate scrutiny, or the "rational basis" test.

law or action prohibits or inhibits some persons from exercising a fundamental right, the law or action will be subject to "strict scrutiny" by the courts. A classification based on a suspect trait—such as race, national origin, or citizenship status— will also be subject to strict scrutiny. Under this standard, the classification must be necessary to promote a compelling government interest.

remedying past unconstitutional or Does the equ illegal discrimination, but do not include correcting the general effects of "society's discrimination."

Another standard, that of "intermediate scrutiny," is applied in cases involving discrimination based on gender or legitimacy. Laws using these classifications must be substantially related to important government objectives.

In matters of economic and social welfare, a classification will be considered valid if there is any conceivable "rational basis" on which the classification might relate to a legitimate government interest.