THE CONSTITUTION AND BUSINESS

Separation of Powers

Power shared by branches of government. Legislative:

enacts legislation appropriates funds.

Executive: commander-in-chief of armed services ensures laws are faithfully executed.

Judicial: interpreting laws and applying them to disputes.Checks and balances

Each branch keeps the others from dominating the government.

Supremacy Clause Article. VI. Clause 2This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

Preemption

If federal law preempts and area of regulation, no state law is permitted.

Any attempted state law will be unconstitutional under the supremacy clause.

Federal preemption is not presumed; it must be clearly and explicitly stated.

Commerce Clause

Gives Congress power to regulate interstate commerce Includes any activity that substantially affects interstate

commerce. Most economic legislation is presumed to be constitutional.

Commerce Clause as a restriction on state authority. States have general police power.

Health, safety, welfare of its citizenry.

But states cannot regulate interstate commerce. Unless the burden imposed on interstate commerce is

outweighed by the state’s interest in enforcing the legislation.

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First Amendment

Freedom of speech and the press Other freedoms: religion, assembly, petition.

1st amendment freedoms are not absolute. Can’t yell “fire” in a crowded theater.

Can’t injure someone’s reputation with false

statements.

Content-based restrictions not usually

allowed. E.g., Communications Decency Act

State Taxation

State taxation of corporate income must be

apportioned to allocate the tax burden of

interstate commerce among states entitled to

impose a tax.

To ensure that interstate businesses only pay

their fair share of state taxes.

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Corporate Speech Corporate Commercial Speech

Defined: Speech that proposes a commercial transaction. Less protected than political speech. Test:

Is the speech misleading? Is it related to unlawful activity? Does the state have a substantial interest to achieve by restricting the

speech? Will the restriction advance the state’s interest? Is the restriction narrowly drawn?

Corporate Political Speech Examples

Supporting political candidates. Influencing a referendum.

Protected to the same extent as political speech of ordinary citizens.

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4th Amendment Protects security in persons, homes, and property.

From unreasonable searches and seizures.

Warrant requirement. Probable cause.

Exclusionary rule.

Searches by administrative agencies. Warrantless search allowed if industry is subject to

pervasive regulation.

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Due Process: the 5th Amendment No deprivation of life, liberty, or property without

due process of law. Applies to federal government, and also to states under

14th Amendment. Procedural due process

Due process requires a fair trial. Substantive due process.

Laws must have a proper purpose. Economic legislation usually presumed constitutional. Laws affecting personal rights must bear a substantial

relationship to a compelling governmental purpose.

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Takings Clause: the 5th Amendment Taking of property by government requires

A public purpose.

Just compensation.

Government regulations can be so

burdensome as to be considered a taking. Especially when the regulation deprives the

owner of all economically beneficial use of the

property.

14th AMENDMENT

DUE PROCESS

PRIVILEGES AND IMMUNITIES

EQUAL PROTECTION

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14th Amendment CONTINUED

Applies the due process clause to the states. Originally only applied to federal government

in 5th amendment. Interpreted to apply most of bill of rights

to the states. Equal protection clause.

Prohibits discrimination, especially based on race.