CHAPTER FIVE OUTLINE

I. The U.S. Constitution

A. An Overview of the U.S. Constitution
1. Structure of federal government
2. Its powers, power of the states
3. Rights of all the citizens
4. 27 amendments
B. Articles I, II, and III - The Framework for Searation of !owers
1. Article I" #e$islative Branch
a. %ouse of &eresentatives
'. Senate
2. Article II" ()ecutive Branch - !resident* (lection* !owers
a. reat! negotiations and foreign relations
3. Article III" +udicial Branch
a. Creates U.S. Sureme Court
'. Authori,es Con$ress to esta'lish other courts as needed* Con$ress has
esta'lished U.S. Court of Aeals and Federal -istrict Court
c. "annot pass laws# however can ma$e unconstitutional
4. Separation of powers
%. Creates a s.stem of checks and 'alances - each 'ranch has some ower check
over the other to kee an. one from 'ecomin$ too owerful
C. Other Articles in the Constitution
1. Article I/" State interrelationshis
2. Article /" !rocedures for amendments
3. Article /I" Suremac. Clause
4. Article /II" State &atification of the Constitution
-. The Bill of &i$hts 0first 12 amendments
1. First" Freedom of Seech
2. Fourth" !rivac.
3. Fifth" -ue !rocess and Self-incrimination
4. Si)th" +ur. trial
%. Fourteenth Amendment" (3ual !rotection
II. The &ole of +udicial &eview and the Constitution
A. -etermination of &i$hts Afforded '. the U.S. Constitution
B. -etermination of Scoe of &i$hts
C. Checks and Balances - -etermines the Aroriateness of the Other Branches4 Actions
III. Constitutional #imitations of (conomic &e$ulations
A. The Commerce Clause" Article I, Section 5
1. Standards for Federal &e$ulation of Interstate Commerce
2. %istorical alication of Commerce Clause
a. Initiall., Court $ave a narrow interretation - Examples " 6anufacturin$
was not 7interstate commerce,8 a restaurant in one state was not
7interstate commerce8
'. &esulted in a difficult situation 'etween &oosevelt Administration and the
Court as &oosevelt tried to ass the la'or re$ulation scheme
c. &oosevelt tried the court-ackin$ lan - he wanted to increase the si,e of
the U.S. Sureme Court and load it with his aointees to $et the
le$islation ast constitutional challen$es
d. After these olitical 'attles, court resonded in NLRB v. Laughlin Steel "
i. affectation doctrine develoed
ii. even thou$h activit. is local 9e.$., manufacturin$* restaurants:, if
interstate commerce is affected, Con$ress can re$ulate -
Examples " interstate travelers at restaurants, interstate
suliers, manufactured $oods shied interstate
3. Standards for state re$ulation of interstate commerce
a. There is an overridin$ concern a'out the Suremac. Clause - where
Con$ress has re$ulated there is a 'enefit;'urden anal.sis - Example "
The mud$uards on trucks on Illinois hi$hwa.s when the trucks travel
interstate would re3uire chan$e of mud$uards < where not enou$h
evidence of safet. 'enefits to re3uire such a 'urden
'. Balance olice ower 9state4s interest in re$ulation: with the 'urden on
commerce
c. State law cannot $ive in-state 'usinesses an advanta$e
4. Con$ressional authorit. over forei$n commerce if it is international in nature*
Con$ress re$ulates re$ardless of where it 'e$ins and ends
B. Constitutional Standards for Ta)ation of Business
1. Article I, Section 5 $ives Con$ress the ower to re$ulate
2. Bi$$est area of liti$ation is state ta)ation of interstate 'usiness
3. &e3uirements for valid state ta)
a. Ta) cannot discriminate a$ainst interstate commerce
'. Ta) cannot 'e an undue 'urden on interstate commerce - Example "
&e3uirin$ out-of-state roert. to 'e araised in state
c. 6ust 'e a =sufficient ne)us= 'etween the state and the 'usiness 'ein$
ta)ed - Examples " -oes 'usiness there, holds roert. titles there,
manufactures there, inventor. stored there
d. 6ust 'e aortioned fairl. - Example " A cororation doin$ 'usiness in
fift. states cannot have all income ta)ed in all fift. states < must 'e
aortioned accordin$ to its revenues in the state
I/. State /ersus Federal &e$ulation of Business - Constitutional Conflicts" !reemtion and the
Suremac. Clause
A. ()ists to -etermine >hich #aws Control in the (vent Both State and Federal
?overnments &e$ulate" Article /I
B. If State #aw -irectl. Conflicts with Federal #aw, State #aw Is Unconstitutional
C. Other Areas" State #aws -o @ot -irectl. Conflict - >hether there is reemtion is
controlled '. answerin$ several 3uestions"
1. >hat does the le$islative histor. indicateA - Examples " Some statutes
secificall. disallow state re$ulation" @uclear &e$ulator. Commission e)clusivel.
re$ulates nuclear lant construction* other areas of re$ulation rovide for 'oth
state and federal articiation. Securities laws do allow states to have their own
securities re$istration even if it means two filin$s.
2. #evel of detail for federal re$ulation - the more detail at federal level, the more
likel. there is to 'e federal reemtion. -etail and volume are indicative of
con$ressional intent to reemt.
3. Benefits from federal re$ulation - Example " Trains, lanes < interstate
transortation is 'est re$ulated in a uniform fashion
4. @ature of conflict - can the two laws surviveA - Example " State 'lue laws can
re3uire hi$her disclosure, state credit laws can re3uire hi$her disclosure than
federal disclosure laws
/. Alication of the Bill of &i$hts to Business
A. Commercial Seech and the First Amendment
1. -oes rovide some rotection of commercial seech. Commercial seech -
seech used to further the economic interests of the seaker
2. Advertisin$ and commercial seech rotection
a. Can re$ulate advertisin$
'. Su'stantial $overnment interest must 'e furthered
c. Is the re$ulation the least restrictive means of accomlishin$ the
interestA - Examples " &e$ulation B disclosures in ads, re3uirements of
Sur$eon ?eneral warnin$s in ci$arette ads, re3uirements of disclosures
on odds of winnin$ in ri,e $ames, etc.
3. %istor. of commercial seech re$ulation
B. First Amendment &i$hts and !rofits from Sensationalism
C. Cororate !olitical Seech - Cororate !articiation in Camai$ns Is ?iven Full First
Amendment !rotection
-. (minent -omain and the Takin$s Clause
1. Fifth Amendment ri$ht of $overnment to take rivate roert. for $overnment
uroses
2. &e3uirements
a. !u'lic urose - Examples " %i$hwa.s, schools, ur'an redeveloment,
limits on minin$, historical reservation, economic develoment
'. Takin$ or re$ulatin$ - Examples " !rohi'ition on use, elimination of use
(. !rocedural -ue !rocess
1. &i$ht to notice of hearin$s
2. &i$ht to 'e heard
3. Alies to criminal, civil, and administrative roceedin$s - Example " Summons
and comlaint rovide notice to defendants
F. Su'stantive -ue !rocess - State #aws Cannot Su'stantivel. (liminate &i$hts >ithout
Some Benefit - Example " Sunda. 'lue laws < stores are closed '. law < states must 'e
a'le to show economic, health, social 'enefits of such closure
?. (3ual !rotection &i$hts for Business - &e$ulation 6ust Al. to All Businesses -
Example " 6an. Sunda. closin$ laws have 'een struck down 'ecause the. are 'ased on
si,e < small stores could 'e oen 'ut lar$e stores could not
/I. The &ole of Constitutions in International #aw
A. ?eneral T.es of Constitutions" United States and (n$land
B. Code of #aw Countries" All Inclusive
C. Islamic #aw" #aw is Civil and &eli$ious