Constitutional Law
Jody Blanke
Professor of Computer Information
Systems and Law
The Constitution
 Separation of Powers
 Art. 1 – The Legislative Branch
 Art. 2 – The Executive Branch
 Art. 3 – The Judicial Branch
 Checks and Balances
The Enumerated Powers Clause
 Art. 1 Sec. 8 of the Constitution
 Authorizes Congress
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to collect taxes
to coin money
to establish a postal system
to raise and support Armies
to provide and maintain a Navy
to regulate interstate commerce
to protect the writings of authors and the
discoveries of inventors
Preemption
 If Congress is authorized to make
law, and does so with the intent that
it be the only law, that law will
preempt any state law
Preemption
 Figure A
 Ex. FAA
 Ex. Patent Act
 Figure B
 Ex. Cipollone (1993)
 Ex. Silkwood (1984)
 Ex. Federal AntiSpam Act
1st and 14th Amendments
 1st Amendment
 “Congress shall make no law …”
 14th Amendment
 “No State shall make or enforce any law
which shall …”
 Most protections/restrictions apply to
both federal and state governments
State Action
 Public vs. private
 The Fourteenth Amendment prohibits
states from certain discriminatory behavior
 Citadel case (1995)
 school can have a males-only admissions policy
as long as it receives no public funding
 Augusta National Golf Club
 Moose Lodge v. Irvis (1972)
 Issuance of liquor license is not state action
Commerce Clause
 The interpretation by the Supreme
Court of the scope of the commerce
clause has changed dramatically over
the years
 Early on, the interpretation was fairly
broad
 Gibbons v. Ogden (1824)
 Congress, rather than New York, had the
authority to regulate steamboats on the
Hudson River
Commerce Clause
 With the advent of the Industrial
Revolution and Big Business, the
interpretation narrowed considerably
 Hammer v. Dagenhart (1918)
 The Court refused to let Congress regulate
with “social legislation,” e.g., child labor
laws
Commerce Clause
 New Deal legislation pushed by F.D.R.
and passed by the Congress was
struck down by the Supreme Court in
several 5-4 decisions
 Schechter Poultry (1935)
 Congress lacked the power to regulate
intrastate poultry processing activity
 The “Court Packing” Incident
 Why not have 13 Supreme Court
justices?
Commerce Clause
 Supreme Court finally permits
Congress to regulate intrastate
activity if it effects interstate
commerce (in 5-4 decisions)
 Jones of Laughlin Steel Corp. (1937)
 Wickard v. Filburn (1942)
 intrastate activity may have a cumulative
effect on interstate commerce
Commerce Clause
 Supreme Court upheld the
constitutionality of the Civil Rights Act
of 1964 on the basis of interstate
activity
 Heart of Atlanta Motel v. U.S. (1964)
 motel catered to interstate travelers
 Katzenbach v. McClung (1964)
 restaurant served food that was part of
interstate commerce
Commerce Clause
 Supreme Court finally draws an outer
boundary to interstate activity
 U.S. v. Lopez (1995)
 Gun-Free School Zone Act
 U.S. v. Morrison (2000)
 Violence Against Women Act
Dormant Commerce Clause
 State laws cannot unduly burden
interstate commerce
 Georgia would not be able to require
all restaurants in the state to serve
only dairy products from Georgia
dairy farms
 Maine v. Taylor (1986)
 But, Maine was permitted to ban the
importation of live bait fish
Freedom of Speech
 Political speech
 great deal of protection, but not absolute
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ex.
ex.
ex.
ex.
dangerous speech
fighting words
defamation
obscenity
 Commercial Speech
 can be regulated for aesthetics
 Cincinnati v. Discovery Network (1993)
Freedom of Religion
 Free Exercise Clause
 great deal of protection, but not absolute
 ex. human sacrifice
 Establishment Clause
 separation of church and state
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school prayer
“In God We Trust”
The Pledge of Allegiance
The Ten Commandments
Eminent Domain
 Poletown v. Detroit (1981)
 GM wanted to keep 6,000 jobs in Detroit
 Poletown was 465 acres, had 4,200
residents, 1300 homes, 140 businesses,
6 churches, 1 hospital
Poletown v. Detroit
Poletown v. Detroit
Poletown 1961
Poletown 1997
Chattanooga, Baltimore
Kelo v. New London (2005)
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90-acre development plan
115 privately owned properties
U.S. Supreme Court 5-4 decision
Ballad of Suzette Kelo
Equal Protection
 Can a state ever pass a law that
treats black people differently than
white people?
Rational Basis Test
Strict Scrutiny Test
Intermediate Scrutiny
Equal Protection
 Rational Basis Test
 applies if no suspect class or
fundamental liberty interest is involved
 i.e., a good reason
 State v. Ri-Mel (1987)
 Minnesota required all for-profit health
clubs to post a bond – no such requirement
for not-for-profit health clubs
Equal Protection
 Strict Scrutiny Test
 applies if a suspect class or fundamental liberty
interest is involved, e.g., race or religion
 there must be a “compelling state interest”
 i.e., a very, very, very good reason
 Affirmative action
 Grutter v. Bollinger (2003) – U. Mich. Law
School
 Gratz v. Bollinger (2003) – undergraduate
 Fisher v. University of Texas (2013)
Equal Protection
 Intermediate Level Scrutiny
 applies to protected class, i.e., not quite a
suspect class, e.g., gender or age
 classification must be “reasonably related” to
legitimate government purpose
 i.e., a very, very good reason
 Craig v. Boren (1976)
 Oklahoma law prohibited the sale of 3.2% beer
to males under 21 and females under 18
 .18% of females and 2% of 18-20-year olds
were arrested for DUI