US CONSTITUTION PREAMBLE

Transcription

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2 US CONSTITUTION PREAMBLE We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

3 US CONSTITUTION ARTICLE 1 LEGISLATURE ARTICLE 2- EXECUTIVE ARTICLE 3- JUDICIARY A TOTAL OF 5 ARTICLES 27 AMENDMENTS

4 BILL OF RIGHTS FIRST 10 AMENDMENTS TO THE US CONSTITUTION RATIFIED AS PART OF THE ADOPTION PROCESS OF THE CONSTITUTION THE MOST IMPORTANT CIVIL AND POLITICAL RIGHTS INCLUDING RIGHTS OF CRIMINAL DEFENDANTS CIVIL WAR AMENDMENTS: 13,14,15TH

5 FEDERAL COURTS

6 STATE COURTS TRIAL COURTS: 2 or 3 levels. COURTS OF APPEAL STATE SUPREME COURT

7 CENTRAL PRINCIPLES OF US COURTS The Doctrine of Constitutional Review. (Marbury v. Madison) Federal Courts have supremacy over State Courts in their area of jurisdiction. (Federal Constitution and Laws) Martin vs. Hunter s Lessee Individuals can claim constitutional protection before any Court at any time. The other branches respect the role of the Courts.

8 LIMITATIONS ON COURTS SELECTION METHOD: Presidential Appointment, Senate Confirmation Appointment for Life. Impeachment only process for removal of a Federal Judge. State Judges: fixed terms, many elected.

9 LIMITATIONS ON THE COURTS CASE OR CONTROVERSY REQUIREMENT RIPENESS IMMEDIATE THREAT OF HARM MOOTNESS- CONTINUING HARM EXCEPTION- CAPABLE OF REPETITION BUT EVADING REVIEW STANDING: LUJAN V. DEFENDERS; FLAST ADEQUATE AND INDEPENDENT STATE GROUNDS POLITICAL QUESTION DOCTRINE THE 11 TH AMENDMENT

10 US CONGRESS US HOUSE OF REPRESENTATIVES: - - Speaker of the House; 435 Members; 2 Year Terms. Congressman; Representative US SENATE: Vice President; 100 Members; 6 Year Terms. Senator Together: United States Congress

11 CONGRESSIONAL POWER LIMITED AND ENUMERATED POWERS ARTICLE 1 SECTION 8 LISTS THOSE POWERS ANYTHING NOT LISTED IS RESERVED TO THE STATES OR THE PEOPLE GENERAL POLICE POWER NOT GIVEN TO THE FEDERAL GOVERNMENT: THIS INCLUES THINGS LIKE HEALTH, WELFARE, MORALS

12 COMMERCE POWER REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES AND WITH THE INDIAN TRIBES. COMMERCE: APPLIES TO INTER-STATE COMMERCE, NOT INTRA-STATE COMMERCE EX: GIBBONS V. OGDEN

13 POWER TO TAX POWER TO LAY AND COLLECT TAXES, IMPOSTS AND EXCISES MUST BE UNIFORM FEDERAL INCOME TAX AMENDMENT BAILEY V. DREXED FURNITURE Ex. TAX VS. PENALTY OBAMA CARE

14 SPENDING POWER CONGRESS MAY SPEND TO PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE SOUTH DAKOTA V. DOLE FEDERAL SPEED LIMIT EXAMPLE MUST BE A NEXUS BETWEEN SPENDING AND CONGRESSIONAL GOAL CANNOT BE COERCIVE

15 WAR POWERS POWER TO DECLARE WAR, RAISE AND SUPPORT ARMIES, NAVIES FUNDING FOR MILITARY ONLY LASTS 2 YEARS, MUST BE REAUTHORIZED WHAT IS A WAR?

16 OTHER POWERS TREATY POWER: REID V COVERT INVESTIGATORY POWER PROPERTY POWER BANKRUPTCY POWER POSTAL POWER CITIZENSHIP/IMMIGRATION POWER ADMIRALTY POWER POWER TO COIN MONEY; FIX WEIGHTS AND MEASUREMTNS; PATENT AND COPYRIGHT

17 NECESSARY AND PROPER CLAUSE CONGRESS SHALL MAKE ALL LAWS NECESSARY AND PROPER FOR CARRYING INTO EXECUTION ANY POWER GRANTED IT. NATIONAL BANK: McCULLOCH V. MARYLAND

18 US Executive President Vice President Departments: Agriculture; Commerce; Defense; Interior; State, Justice, Labor; Education; Energy, Transportation; Health and Human Services; Treasury; Homeland Security; Veterans Affairs; Housing and Urban Development.

19 PRESIDENT 4 year term limit election to 2 terms No popular vote election by electoral college. 438 plus 100=538 electoral votes. 270 Needed to Win.

20 POWERS OF THE PRESIDENT COMMANDER IN CHIEF HEAD OF GOVERNMENT APPOINTMENT OF CABINET, JUDGES AND AMBASSADORS EXECUTIVE ORDERS HEAD OF STATE: FOREIGN AFFAIRS

21 LIMITS ON PRESIDENTIAL POWER JUDICIAL REVIEW SENATE CONSENT ON APPOINTMENTS MONEY HAS TO COME FROM CONGRESS CONGRESS CAN PASS LAWS: CONGRESSIONAL OVERSIGHT IMPEACHMENT TERM LIMITS

22 BILL OF RIGHTS First 10 Amendments to the US Constitution. Limited and Enumerated Powers was it even necessary? Government has to be controlled. Better to tell it not only what it can do, but in important cases what it cannot do. After passage of Constitution Congress proposed the Bill of Rights.

23 FREEDOM OF RELIGION 1 st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Remember Historical Background. Religious persecution of early colonists and the existence of strong state religions.

24 FREEDOM OF RELIGION TWO PROVISIONS: - ESTABLISHMENT CLAUSE - FREE EXERCISE CLAUSE

25 LEMON V. KURTZMAN TEST 1. The government's action must have a secular legislative purpose; 2. The government's action must not have the primary effect of either advancing or inhibiting religion; 3. The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

26 FREE EXERCISE CLAUSE BELIEF CANNOT BE REGULATED THE GOVERNMENT MAY NOT PUNISH SOMEONE ON THE BASIS OF THEIR BELIEFS. ACTIONS BASED ON BELIEF CAN BE REGULATED. LAWS TARGETED AT ACTION BECAUSE OF RELGION GENERALLY NOT UPHELD

27 FREE EXERCISE CLAUSE LAWS THAT ARE OF GENERAL APPLICABILITY CANNOT BE CHALLENGED UNLESS IT CAN BE SHOWN THAT THE LAW WAS MOTIVATED BY A DESIRE TO INTERFERE WITH RELIGION.

28 AMERICAN CONCEPT OF FREE SPEECH A DEMOCRACY REQUIRES A MARKETPLACE OF IDEAS TO PROSPER THE GOVERNMENT BARRING A BELIEF FROM THE MARKETPLACE VIOLATES HUMAN RIGHTS AND IS DANGEROUS THE MERE USE OF WORDS SHOULD NOT BE SUBJECT TO GOVERNMENT SANCTION

29 LIMITATIONS-REASONABLENESS Regulation of Speech cannot be Overbroad. (Coates v. City of Cincinnati) Regulation cannot be vague the void for vagueness doctrine (Edwards v. South Carolina) Regulation cannot give a government official unfettered discretion

30 TIME, PLACE AND MANNER PUBLIC FORUMS: A place traditionally associated with 1 st Amendment Activities. Test: Must be content neutral (as to both subject matter and view point) and must be narrowly tailored to serve a significant governmental interest and must leave open alternative channels of communication

31 TIME, PLACE AND MANNER NON - PUBLIC FORUMS: A place not traditionally associated with 1 st Amendment Activities or not compatible with its purpose Test: Must be view point neutral and reasonably related to a legitimate government purpose

32 CLEAR AND PRESENT DANGER BRANDENBURG v. OHIO, COHEN State may not outlaw the advocacy of the use of force unless: - Speech is directed to producing or inciting imminent lawless action and - is likely to produce or incite such action

33 MILLER V. CALIFORNIA Test: OBSCENITY A description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards: -appeals to the purient interest in sex; and -portrays sex in a patently offensive way; and - Does not have serious literary, artistic, political or scientific value.

34 DEFAMATION NO CRIMINAL DEFAMATION IN US CIVIL: - PUBLIC FIGURE OR ISSUE OF PUBLIC CONCERN: Must prove statement was false and malice ( knowledge statement was false or reckless disregard for the truth) - NONPUBLIC: Must only prove statement was false.

35 PRIOR RESTRAINT NEW YORK TIMES CASE PRESUMED TO BE UNCONSTITUTIONAL Government can get Court s permission by proving a substantial governmental interest and a specific harm. Areas: National Security; Preserving a Fair Trial; Contractual Agreements; Military Circumstances; Obscenity.

36 THE RIGHT TO TRAVEL Domestic Right: Interstate Travel Right to move from state to state. Benefit Limitations. Usually not allowed unless there is a good reason. No International Right to Travel, but cannot be denied in an arbitrary fashion, protected by due process of law.

37 Right to Refuse Medical Treatment Part of the Liberty Interest Not a Fundamental Right Vaccination Forced Feeding Euthinasia

38 The Takings Clause Government cannot take private property for public use without paying fair market compensation. Eminent Domain Public Use Rationally Related to a legitimate public purpose. Economic development as a public purpose. Regulations may constitute a taking if they substantially effect the economic value of use of the property.

39 The Right to Vote 14 th, 15 th, 19 th, 24 th, 26 th Amendments A Fundamental Right Any Restrictions on votiing must pass the Strict Scrutiny Standard: Compelling Government Interest and Narrowly Tailored

40 RIGHT OF PRIVACY KNOWN AS THE RIGHT TO BE LET ALONE. THERE ARE SOME AREAS WHERE WE DON T WANT THE GOVERNMENT INVOLVED. WHERE IN THE CONSTITUTION DOES THIS RIGHT COME FROM? A PENUMBRA RIGHT. A RIGHT NOT SPECIFICALLY MENTIONED BUT EMANATING FROM OTHER RIGHTS. (Griswold v. Connecticut)

41 RIGHT OF PRIVACY TEST: GOVERNMENT MUST HAVE A COMPELLING INTEREST AND THE LAW MUST BE NARROWLY TAILORED IN ORDER TO INTERFERE IN THESE AREAS OF OUR LIVES.

42 PROCEDURAL DUE PROCESS 5 th and 14 th Amendments Government cannot take a person s Life, Liberty or Property without Due Process of Law What is Life? What is Liberty? What is Property?

43 PROCEDURAL DUE PROCESS What process is due? Balance (1) the importance of the individual interest involved and the value of particular safeguards with (2) the governmental interest in fiscal and administrative efficiency. The greater the interest involved, the greater the amount of process

44 PROCEDURAL DUE PROCESS Almost always required: Fair Procedures; Unbiased Decision Maker; Notice and an Opportunity to be heard Pre or Post Termination depends

45 Substantive Due Process Not looking to the process, but instead looking to the substance of the law to see if it is reasonable and not arbitrary. Closely related to Equal Protection Where the law limits the liberty of all persons to engage in an activity, it is a substantive due process question Where the law treats certain classes of people different it is an Equal Protection Question

46 Substantive Due Process Fundamental Right: Strict Scrutiny Standard A law will be upheld only if it is necessary to achieve a compelling governmental purpose and it is narrowly tailored to achieve that purpose. Fundamental Rights: Travel, Privacy, Voting, All First Amendment Rights

47 Substantive Due Process All Other Cases: Mere Rationality Standard: Law will be upheld if it is rationally related to any legitimate governmental interest

48 Equal Protection When can the government treat different groups of individuals differently? Suspect Classifications and Fundamental Rights Quasi Suspect Classifications Other Classifications

49 Equal Protection Suspect Classifications and Fundamental Rights: Strict Scrutiny Standard A law will be upheld only if it is necessary to achieve a compelling governmental purpose and it is narrowly tailored to achieve that purpose.

50 Equal Protection Quasi-Suspect Classifications: Intermediate scrutiny. A law will be upheld if it is substantially related to an important governmental interest.

51 Equal Protection Other Classifications: Rational Basis Law will be upheld if it is rationally related to any legitimate governmental interest

52 US v. HELLER The 2 nd Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as selfdefense within the home. The preamble announces a purpose but does not limit the right included.

53 US v. HELLER No Right is without a limit. Ok to limit possession by the mentally ill, felons, or forbid the carrying of firearms in sensative places such as schools or government buildings, or imposing conditions or qualifications on the commercial sale of guns.