Business Law - Chap 2
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Constitution of the United States of America
The US Constitution
- consists of 7 articles and 26 amendments. It establishes the three branches of the federla government, enumerates their powers and provides important guarantees of individual freedom. The constitution was ratified by the states in 1788.
- The constitution created the federal government. The federal government and the 50 states governments and Washington DC share powers in this country.
- when the states ratified the constitution, they delegated certain powers to the federal government. These are called enumerated powers.
- those powers not granted to the federal government by the constituion are reserved to the states.
Checks and balances
- Separation of Powers - each branch of the federla government has separate powers;
- 1. Legistlatve branch - power to make the law
- 2. Executive branch - power to enforce the law
- 3. Judicial branch - power to interpret the law
- certain checks and balances are built into the Constitution to ensure that no one branch of the federal government becomes too powerful.
What is Supremacy Clause?
The Supremacy Clause stipulates that the US constitution to ensure that no one branch of the federal government becomes too powerful.
What is Commerce Clause
The Commerce Clause authorizes the federal government to regulate commerce with forign nations, among the states and with Native American tribes.
Native Americans - Commerce Clause along with various treaties regulates commerce on Native American lands. Generally, Native Amercian tribes are self-governing and considered "domestic dependants" of the federal Government.
Foreign commerce Clause - gives the federal government the exclusive power to regulate commerce with foreign nations.
Interstate Commerce - Under the borad effects test, the federal government may regulate any activity (even intrastate commerce) that affects interstate commerce.
No Undue Burden on Intrastate commerce - Any state or local law that cuases an undu burden on intrastate commerce is unconstitutional as a violation of the Commerce Clause
What is the Bill of Rights?
The Bill of Rights consists of the first 10 amendments to the Constituion, which establish basic individual rights. The Bill of Rights was ratified in 1791
What is Freedom of Speech?
The Freedom of Speech Clause is a clause of the First Amendment which guaranetees that the government shall not infringe on a person's right to speak. it protects oral, written and symbolic speech. This right is not absolute- that is, some speech is not protected and some speech is granted only limited protection.
Fully Protected Speech
- cannot be prohibited or regulated by the government
- Limited protected Speech - Some types of speech are granted only limited protection under the Freedom of Speech Clause - that is, they are subject to governmental time, place, and manner restrctions;
- 1. Offensive Speech
- 2. Commerical Speech
- Unrpotected Speech - Not protected by the Freedom of Speech Clause;
- 1. Dangerous speech
- 2. Figiting words
- 3. Speech that advocates the violent overthrow of the government
- 4. Defamatory language
- 5. Child pornography
- 6. Obscene speech
What is Freedom of Religion?
There are two religion clauses in the First Amendment; the Establishment Clause and the Free Exercise Clause.
Establishment Clause - prohibits the government from establishing a state religion or promoting religion.
Free Exercise clause - prohibits the government from interfeering with the free exercise ofreligion. This right is not absolute; for example, human sacrifices are forbidden.
What is Equal Protection Clause?
- Federal, State and Local Government Action
- The Equal Protection Clause prohibits the government from enacting laws that classify and treat"similary situated" persons differently. This standars is not absolute and the government can treat persons differently in certain situations.
- Standards of Review
- The US Suppreme Court has applied the following tests to determine wheather the Equal Protection Clause has been violated:
- 1. Strict scrutiny test - applies to suspect classes 9e.g. race, national origin)
- 2. Intermediate scrutiny test -applies to protected classes other than race (e.g., sex, age)
- 3. rational basis test - applies to government classifications that do not involve a suspect or protected class.
What is Due Process Clause?
The Due Process Clause provides that no persons shall be deprived of "life, liberty, or perperty" without due process. There are two categories of due process; substantive and procedural.
Substantive Due Process - requires that laws be clear on their face and not overlyy broad in scope. laws that do not meet this test are void for vagueness.
Procedrual Due Process - requires that the government give a person proper notice and heaering before that person is deprived of his or her life, liberty or property. An owner must be paid just compensation if the government takes his or her property
Privileges and Immunites Clause - prohibits states from enactinve laws that unduly discrimiate in favor of their residens over residents of other states.
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