大四上商法上课课件

1、Constitutional LawCHAPTER 5Quote of the DayGive me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.John Milton, English poet, 1644One in a Million!The Constitution of the United States is a remarkable document in many ways.Drafted in 1787, yet is still

2、 relevant todayShort, and easy to read; its brevity gives it enduranceFlexible enough to deal with the issues of a changing worldVersatile enough to resolve a wide variety of conflictsLeaves room for interpretation and “fleshing out” Overview and History of Constitutional LawWhen America gained its

3、freedom from England in 1783, the states governed themselves under the Articles of Confederation.The Articles of Confederation gave the federal government no power to raise money or regulate commerce.Taxation policies were inconsistent and caused dissent among states.The Articles of Confederation we

4、re not working!Overview and History (contd)The states sent 55 delegates to meet to amend the Articles of Confederation.Instead, these men became the Framers of our Constitution upon deciding that an entirely new document was needed.Debates raged over how much power to give the federal government, th

5、e states and the people.The result - a series of compromises about power - is the Constitution of the United States.Compromises in the ConstitutionSeparation of PowersFederal government is divided into three branches - Executive, Legislative, and JudicialEach branch is independent and equal.Each is

6、a balance to the power of the others. Congress can pass statutes, but.The President can veto a bill, but.Congress can override a veto, but.The courts can rule a law unconstitutional, but.The President can appoint federal judges, but.Congress has to approve the Presidents nominee.Federalism - the nat

7、ional governments power is limited to only the issues listed in Article I, 8.Individual Rights - the original Constitution did not mention rights of citizens, so the first 10 amendments (Bill of Rights) spelled those out.Congressional PowersArticle 1 establishes Congress with two houses.Each state h

8、as 2 Senators; number of Representatives is relative to each states population.Term limits for federal congressional offices are not allowed by the Constitution. Article 1 gives Congress powers.Congress can create and enact legislation.Congress regulates commerce with other nations and between diffe

9、rent states. Each state regulates commerce within its own borders.Substantial Effect Rule - Congress may regulate any activity which has a substantial economic effect on interstate commerce.State Legislative PowerCommerceStates may regulate commerce in its own borders.A state statute that discrimina

10、tes against interstate commerce is invariably unconstitutional.Supremacy Clause - states that the Constitution, federal statutes and federal treaties are the supreme law of the land.If there is conflict between statutes, the federal controls the issue and the state statute is void.Even with no direc

11、t conflict, federal law will prevail if the issue is one that Congress controls exclusively.So, state law prevails only when there is no opposing federal law and no exclusive federal control.Executive PowerArticle II defines the powers and responsibilities of the President - in general he is to enfo

12、rce the nations laws.Appointment - The president nominates federal judges (including Supreme Court Justices) and heads of most administrative agencies.Legislation - The president and his advisors can propose bills to Congress and the president can veto bills from Congress. Foreign Policy - The presi

13、dent coordinates international efforts, negotiates treaties and is the Commander in Chief of the military, but he may not declare war.Judicial PowerArticle III creates the Supreme Court and permits Congress to create lower federal courts.Federal courts have two key functions: adjudication and judici

14、al review.Adjudication - Federal courts hear civil and criminal cases within their jurisdiction.Judicial Review - Federal courts can declare a statute or governmental action unconstitutional.Opponents claim that the Constitution does not grant this power to the courts; and this takes power away from

15、 citizens.Supporters claim that the Constitution gives the judicial system the power to interpret laws and ensures a consistent application of the Constitution.Judicial Activism vs. Judicial RestraintThroughout history, the Supreme Court has varied in its level of judicial activism (eagerness to rul

16、e on many issues) vs. judicial restraint (ruling only on issues that are clearly Constitutional questions).Protected RightsThe amendments to the Constitution protect the people of this nation from the power of state and federal government.Constitutional rights generally only protect against governme

17、ntal acts, not against acts of other people or corporations.Courts have held that virtually all important constitutional protections apply to all levels of government, a doctrine called “incorporation.”Protected Rights: Free SpeechThe First Amendment states, “Congress shall make no law abridging the

18、 freedom of speech.”Speech includes non-verbal communication, such as signs, symbols and acts (like flag-burning).Political speech - about a politician or political process is protected, and can be found illegal only if it is intended and likely to promote lawless conduct. Legal speech may be limite

19、d in time, place & manner.Obscenity is not protected by the Constitution.Commercial speech - designed to propose a commercial transaction - is regulated more strictly than other speech and may be outlawed if false or misleading.Free Speech and LobbyingOpioid drugmakers including Purdue Pharma, the m

20、aker of OxyContin, spent more than$880 million, or roughly $98 million per year, on lobbying and campaign contributions in support of the drugs.Drugmakers and allied advocacy groups employed a yearly average of1,350lobbyists in legislative centers.In 2015 alone,227 millionopioid prescriptions were g

21、iven out in the US, or enough to hand a bottle of pills to nine out of every 10 American adults.Purdue Pharma, the company that makes OxyContin, made$2.4 billionfrom opioid sales last year alone.Fifth Amendment -“No person shall be deprived of life, liberty, or property without due process of law; n

22、or shall private property be taken for public use, without just compensation.”Procedural Due Process - the government must go through procedures to ensure that the result is fair. The process due is in proportion to what the government is trying to take from the person.The Takings Clause - when the

23、government takes private property for public use, it must pay a fair price.Substantive Due Process - some rights (voting, speech, travel, privacy) are so fundamental that the government may not take them at all.Due Process and the Takings ClauseEqual Protection“No state shall deny to any person with

24、in its jurisdiction the equal protection of the laws.”The government must treat people equally, yet they frequently make distinctions among classes of people for different treatment. Is this legal?Usually acceptable - based on economic and social relations (such as higher e paying a higher percentage e tax) are usually upheld