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 2
This 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.
First Amendment

Freedom of speech and the press


1st amendment freedoms are not absolute.



Other freedoms: religion, assembly, petition.
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
4-5
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.
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.
4-6
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.
4-7
Due Process: the 5th Amendment

No deprivation of life, liberty, or property without
due process of law.


Procedural due process


Applies to federal government, and also to states under
14th Amendment.
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. 4-8
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.
4-9
14th
AMENDMENT

DUE PROCESS

PRIVILEGES AND IMMUNITIES

EQUAL PROTECTION
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.
4-10