CHAPTER 5-THE CONSTITUTION STATUTES

THE CONSTITUTIONSeptember 17, 1787, by the Constitutional

Convention in Philadelphia, Pennsylvania

27 Amendments since created

First 10 Amendments are Bill of Rights (1791)

The U.S. Constitution has two functions:

1. Create a system of government 2. Establish Bill of Rights

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3 BRANCHES – COMPLETELY SEPARATED – CHECKS AND BALANCES

Legislative branch: Article I

Executive branch: Article II

Judiciary: Article III

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SECTION 5

– SCT

CASES –

COMMERCE CLA

USE

ARTICLE I CONGRESSArticle I Section 8– Commerce Clause

Congress powers:

1. to collect taxes,

2. regulate interstate commerce,

3. declare war.

Congress can make all laws “necessary and proper” to carry out these powers.

When was last time Congress declared war????

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CONGRESS ARTICLE 1 SECTION 8 - WAR

On December 8-11th, 1941, Congress approved resolutions declaring war with Japan, Germany and Italy

On June 4, 1942, Congress approved war resolutions against other Axis countries of Bulgaria, Hungary and ‘Rumania’

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ARTICLE I SECTION 8- COMMERCE CLAUSE

“The Congress shall have power to regulate interstate commerce . . . among the several states”

States cannot establish laws and regulations that impose a substantial burden on interstate commerce.

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BIBB V. NAVAJO FREIGHT LINES, INC.,

Illinois enacted a statute requiring curved mud guards.

Arkansas enacted a statute requiring straight mud guards.

Commerce Clause-

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BIBB V. NAVAJO FREIGHT LINES, INC.,To find the state laws

unconstitutional and violating the commerce clause, the Court analyzed the burden on interstate commerce arising from out of state truck drivers having to stop at the Illinois border and change mudguards.

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TREAD ACT

The Transportation Recall Enhancement, Accountability and Documentation (or TREAD) Act is a federal law.

The Act mandated the use of a suitable tire pressure monitoring system (TPMS). It was drafted in response to fatalities related to Ford Explorers fitted with Firestone tires

Why is it federal law

What provision of the US Constitution

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COMMERCE CLAUSE CASE- GONZALES V. RAICH

The Controlled Substances Act v. California Compassion

Can the federal government criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.

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Issue:

Does the Federal Government have the right to enforce a law banning medical marijuana use under the Commerce Clause of the United States Constitution which is in conflict with California law?

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California argument - The marijuana plants were intended for each woman’s use only. Because they were only growing for themselves, the marijuana could not have an effect on interstate commerce.

Federal government believes that the users of medical marijuana - buying it on the street or growing it - will have an impact on interstate commerce.

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COLORADO LEGALIZES POT

Washington and Colorado laws directly conflict with the federal Controlled Substances Act that bars marijuana consumption in any form.

Why aren’t the laws unconstitutional?

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COMMERCE CLAUSE – CONGRESS CANNOT INTERFERE WITH PURELY STATE ACTIVITIES

In United States v. Lopez (1995), Congress enacted the Gun-Free School Zones Act of 1990 (GFSZA) prohibiting the possession of firearms in school zones. Lopez brought a loaded handgun to school and was charged under the Act.

Commerce Clause: The Supreme Court held that the commerce clause only grants Congress the ability to regulate those activities that have a substantial effect on interstate commerce.

The Act was held to unconstitutional for exceeding the power of Congress under the Commerce Clause.

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State law will be found to violate the commerce clause if the law imposes a substantial burden on interstate commerce.

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ARTICLE VI – SUPREMACY CLAUSEThe Supremacy Clause Article VI of the Constitution

This Constitution, and the Laws of the United States shall be the supreme law of the Land;

What does this mean?

federal law, state laws and Constitution

state and federal laws

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ARTICLE IV – FULL FAITH AND CREDIT

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

Judgment -

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Tennessee does not permit the issuance of marriage licenses to same-sex couples. The state forbids, both by statute and in its constitution, the recognition of same-sex marriages from other states. The Tennessee Constitutional amendment was approved by voters in a referendum in 2006.

However – what about Full Faith and Credit???

Tennessee lawsuit challenges that this denial of rights violates the US Constitution. The lawsuit argues that the ban violates the constitutionally protected right to travel between, and move to, other states per the Privileges and Immunities Clause of the U.S. Constitution.

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ARTICLE IV PRIVILEGES AND IMMUNITIES

The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens

(e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan).

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In Hicklin v. Orbeck (1978), Alaska passed the Alaska Hire statute requiring that qualified Alaska residents be hired in preference to non-residents for jobs related to the oil and gas industry. The Alaska Hire statute was enacted to reduce unemployment in the state.

Constitutional?

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Can a state universities charge higher tuition to out-if-state students under the Privileges and Immunity Clause

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PRIVILEGE AND IMMUNITY CLAUSE

BUT - a State can require that a person live within the State for some time before he or she can vote or hold public office. It also can require some period of residence before one can be licensed to practice law, medicine, dentistry, and so on.

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SECTION 2

– BUSIN

ESS

AND THE B

ILL O

F RIG

HTS

THE BILL OF RIGHTS

First 10 Amendments to the United States Constitution are called the Bill of Rights.

All apply to persons and to business entities as well.

Protections against GOVERNMENT ONLY

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THE BILL OF RIGHTS

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HANK WILLIAMS

ESPN said on Thursday that it was its decision to end its long association with the singer, but Williams disputed that notion on his Web site: “After reading hundreds of e-mails, I have made

my decision. By pulling my opening Oct. 3, you (ESPN) stepped on the toes of the First Amendment freedom of speech.

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1ST

AMENDMENT

THE BILL OF RIGHTS

Amendment I

FREEDOM OF RELIGION

FREEDOM OF SPEECH

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FREEDOM OF SPEECH

Certain types of speech are not protected by the First Amendment:

slander,fighting words (threats) Pornography/obscenity.

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EXAMPLE An angry individual unleashes a torrent of profanity upon a

police officer. The officer tries to remain calm and ignore the enraged individual. But the profanity does not stop with one curse word, and the officer arrests the person for disorderly conduct or breach of the peace.

The individual contends that the officer violated his First Amendment right to free speech.

The government counters that the individual has no First Amendment protection because he has uttered “fighting words” — an unprotected category of speech.

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FIGHTING WORDS – WHAT ARE THEY?

Expression that is designed and appears likely to provoke an immediate unlawful response.

To incite terrorism or panic (shouting "fire" in a crowded theater).

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NEW BUFFER ZONE CASE– SCT ARGUMENTS JULY 2014The Supreme Court appeared evenly divided on

Wednesday as it heard arguments in a First Amendment challenge to a Massachusetts law that created 35 foot buffer zones around abortion clinics in the state.

The Supreme Court unanimously ruled that a Massachusetts law setting a 35-foot protest-free zone outside abortion clinics violates the First Amendment. – Struck down the law

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PREVIOUS SCT DECISION = BUFFER ZONEThe Supreme Court upheld a law similar to the one

in Massachusetts by a 6-to-3 vote in 2000 in Hill v. Colorado, with Justices Scalia, Kennedy and Clarence Thomas dissenting.

The court has four new members since then: Chief Justice Roberts and Justices Alito, Kagan and Sonia Sotomayor.

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IMAGES AS SPEECH

A neighborhood group said the grimacing, sharp-toothed, red-eyed goblins painted along a Brown’s retaining wall have been scaring children, and is an eyesore to boot.

L.A. city code officials cited the singer $376 for unpermitted and excessive signage.

Can LA do this?

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SYMBOLIC SPEECH

Symbolic Speech.

Johnson v. Texas

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2006 The Senate fell one vote short of approving a constitutional amendment that would have enabled Congress to ban desecration of the American flag.

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SYMBOLIC SPEECH

Question: On November 22, 2012 Michael Elli received a ticket for flashing his lights to warn fellow drivers of a speed trap.

Violate Constitutional Rights?

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FREEDOM OF SPEECH

Corporate Political Speech - $ to political candidates

Political speech by corporations is protected by the First Amendment.

In Citizens United v. Federal Election Commission (2010) the Supreme Court ruled that corporations can spend freely on candidates

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CITIZENS UNITED V. FEDERAL ELECTION COMMISSION (2010)

In early 2010, the Supreme Court handed down an important decision on the rights of corporations to speak

Since corporations are unable to literally “speak,” they speak through spending money

Restrictions on how corporations may spend money during political campaigns are unconstitutional

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BAD FROG BREWERY, INC. V. NEW YORK STATE LIQUOR AUTHORITY (1998).

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Did the State unconstitutionally restrict commercial speech when it prohibited a certain gesture on beer labels?

The New York State Liquor Authority denied Bad Frog's application.

Brewery says protected under commercial speech of the 1st Amendment

New York says that it has a substantial interest in protecting children from exposure to vulgarity.

Therefore, the state's interference with Bad Frog's commercial speech is an unconstitutional infringement.

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FORCING COMPANIES TO USE MESSAGES

This case raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual -in this case, by making every single pack of cigarettes in the country mini billboard' for the government's anti-smoking message,

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The Solicitor General has determined ... not to seek Supreme Court review of the First Amendment issues at the present time."

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Tennessee Law Class Exercise

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How First Amendment affects tort claims

Can someone sue for emotional damages regarding something said or printed if it is not slander or libel and is protected by First Amendment

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SNYDER V. PHELPSSnyder filed a diversity action against Phelps

(Federal Court).

The court – Westboro were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case on matters of public.

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UPDATE – WESTBORO AUGUST 2012

NEW LAW ON MILITARY FUNERALS: The restrictions -- protesters must be at least 300

feet from military funerals from two hours before they start until two hours after they end

The "The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012“

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HUSTLER V. FALWELL

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The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody.“

MOVIE – PEOPLE V. LARRY FLYNT

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FREEDOM OF SPEECH – PUBLIC FIGURE/DEFAMATION

Hustler v. Falwell -

In a unanimous opinion the Court held that

public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice."

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PUBLIC FIGURES

1.Public Figures – a. false statements ANDb. made with "actual malice which means made “with knowledge of its falsehood or with reckless disregard for the truth of the statement”

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ESTABLISHMENT CLAUSE – 1ST AMENDMENT

Congress shall make no law respecting an establishment of religion,..

HISTORY: England designated the Anglican Church as the official church of the England and the American colonies. English citizens were required to attend services. No marriage or baptism was sanctioned outside the church.

Jefferson supported a high “wall of separation” between church and state and opposed religious interference with the affairs of government.

Madison, conversely, opposed governmental interference with matters of religion.

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1ST AMENDMENT -FREEDOM OF RELIGION

Government may not pass a law that favors one religion over another.

Conflicts: “In God We Trust”

Prayers at school

Ten Commandments displays on government property.

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TEN COMMANDMENTS

The Supreme Court issued two decisions

Supreme Court held that the Establishment Clause did not prohibit the display at the Texas State Capitol of a six-foot high monument containing the Ten Commandments

In a second case, the Supreme Court held that the Establishment Clause prohibited the display of the Ten Commandments in Kentucky courthouses.

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TENNESSEE – NEW LAW APRIL 2012

Click here: http://state.tn.us/sos/acts/107/pub/pc0686.pdf

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What is an example of an freedom of religion?

The U.S. Supreme Court ruled that public school teachers cannot lead their students in prayer.

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FREEDOM OF RELIGION - SANTA FE INDEPENDENT SCHOOL DIST. V. DOE

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000), was a case heard before the United States Supreme Court.

It ruled that a policy permitting student-led, student-initiated prayer at high school football games violates the Establishment Clause of the First Amendment.

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4TH

AMENDMENT

AMENDMENT IV – SEARCH AND SEIZURES

The right of the people to be secure against governmental searches.

Therefore the government/police must have:

1. warrant2. Based on probable cause

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Warrantless searches and seizures are presumed to be unconstitutional

The Supreme Court has recognized that exigent circumstances may justify a warrantless search.

(i.e. an emergency situation excusing the warrantrequirement which include “hot pursuit” of a

fleeingsuspect, the need to render emergency assistance

to aninjured individual and the imminent destruction ofevidence

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HOW ABOUT TAKING BLOOD – VIOLATION?

Missouri v. McNeely (Warrantless drawing of blood in DWI) (2013)

In a 5-4 ruling, . The case involved a suspected drunk driver who refused to take a breath test or blood test; the patrolman took him to a hospital, and without getting a warrant, ordered hospital technicians to draw blood from the handcuffed suspect.

The U.S. Supreme Court ruled that the fact that alcohol in the bloodstream dissipates quickly, it does not constitute an exigency

Therefore a warrant is required to take blood

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TENNESSEE LAW

Why can Tn police conduct a breathalyzer without a warrant and not violate search and seizure law.

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TCA 55-10-406 (a) (1) Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of such person's blood, or both such tests.

However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while under the influence of alcohol, a drug …

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V. DNAMaryland v. King (Taking an arrestee’s DNA) (2013)

In a 5-4 ruling, the U.S. Supreme Court found police do not violate the Fourth Amendment by taking DNA samples from all people arrested in connection with serious crimes and depositing them in a national DNA database.

"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority. The ruling backed a Maryland law allowing DNA swabbing of people arrested for serious crimes.

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TN – NEW NO REFUSAL LAW During certain periods of heightened DUI

enforcement, such as the Fourth of July or New Year's Eve, when DUI arrests are typically high, Tennessee law enforcement agencies keep judges and medical staff on hand to allow for immediate processing of warrants and blood tests for drivers who refuse to be tested at the time of the initial traffic stop.

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Mapp v. Ohio-

4th Amendment – SEARCH AND SEIZURE

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US v. Jones

The Supreme Court justices voted unanimously that this violated the Fourth Amendment, though they were split on the reasoning. The majority held that by installing the GPS device on the defendants car the police had committed a trespass on private property.

4th Amendment – SEARCH AND SEIZURE

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NEW - The Supreme Court will hear two cases in which criminal defendants were convicted on evidence obtained by warrantless searches of their cellphones.

The SCT ruled 40 years ago that police don't need a search warrant to look through anything a person is carrying when arrested.

But should this ruling still apply to advanced smartphones.

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In a decision handed down June 2014, the Supreme Court ruled that police must obtain a search warrant before searching the contents of cellphones belonging to people being held in custody.

The ruling in U.S. v. Wurie is being described as a “landmark decision” and one that makes future warrantless searches of cellphone data “unconstitutional.”

DO DRONES VIOLATE THE 4TH AMENDMENT

In California v. Ciraolo, the Court ruled that police officers who identified marijuana plants in a suspect’s backyard from a plane at an altitude of 1000 feet did not violate the Fourth Amendment.

Court held that the “Fourth Amendment does not require the police traveling in the public airways at this altitude [1000 feet] to obtain a warrant in order to observe what is visible to the naked eye.

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FRUIT OF THE POISONOUS TREE

What does it mean:

The doctrine is subject to four main

exceptions.

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5TH

AMENDMENT

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Double Jeopardy

Self-incrimination

5th Amendment

6TH

AMENDMENT

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

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1. Right to a speedy trial2. Right to confront witnesses3. Right have an attorney

6th Amendment

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5th and 6th Amendment- Miranda v. Arizona

Ernesto Arturo Miranda was arrested based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old. After two hours of interrogation by police officers, Miranda signed a confession to the rape charge

However, at no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally.

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Miranda v. Arizona

Chief Justice Earl Warren - no confession could be admissible under the 5th Amendment self-incrimination clause and 6th Amendment right to an attorney unless a suspect had been made aware of his/her rights and the suspect had then waived them.

What happened to Miranda

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AFTER THE DECISION- Miranda was retried, and this time the prosecution did not use the confession but called witnesses and used other evidence. Miranda was convicted in 1967 and sentenced to serve 20 to 30 years. He was paroled in 1972. After his release, he returned to his old neighborhood and made a modest living autographing police officers' "Miranda cards" (containing the text of the warning, for reading to arrestees). He was stabbed to death during an argument in a bar on January 31, 1976.

7TH

AMENDMENT

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Right to a jury trial if amount over 20 dollars v.

Mandatory Arbitration

SECTION 3

– DUE

PROCESS

DUE PROCESS AMENDMENT V AND XIV

No person shall be . . . deprived of life, liberty, or property, without due process

MUST GIVE OPPORTUNITY TO BE HEARD BEFORE GOVERNMENT TAKES ACTION.

EXAMPLES:

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SECTION 4

– PR

IVACY

RIGHTS

PRIVACY

Privacy is not directly mentioned in the Constitution; the courts have inferred privacy protection from other Constitutional protections

HIPAA –

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HIPAA

Many people have been in the unfortunate situation where they believe that their protected health information (PHI) has been compromised inappropriately, and they want to know what they can do about it.

Such individuals are often surprised and deeply disappointed to learn that the HIPAA law does not provide a "private right of action" in the event of unlawful access, use or disclosure of PHI.

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