CONSTITUTIONAL
RIGHTS
CHAPTER 2
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Declaration of Independence:
• Adopted July 4, 1776, in
Philadelphia, by delegates from
the 13 original colonies
• Altered 47 times before its
adoption
• Developed to assert the desires of
the colonists
• Developed their own government
in order to enforce these rights
and desires
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Articles of Confederation:
• Charter that united the
colonies in 1781
• Includes:
• One legislature: 2 to 7 reps from
each state and one vote on
issues
• Strict term limits: no more than 3
years in a 6 year period
• Legislative powers:
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Declare war
Enter into treaties and alliances
Manage relations with Indian
nations
Coin money
Settle differences between states
Establish postal system
Appoint a Commander in Chief
• Includes Continued:
• Common defense payment
came from common
treasury funded by states
dependent on value of land
• Paupers, vagabonds,
fugitives from justice and
slaves were not entitled to
privileges and immunities of
free citizens
• Legislation would require 2/3
vote for passage
• Amendments to Articles
requires unanimous vote of
the States
FOUNDATIONS OF THE U.S.
CONSTITUTION
• U.S. Constitution:
• Developed in a special
convention in Philadelphia,
in 1787, to fix problems with
Articles of Confederation
• Ratified by June 21, 1788 by
9 of the original 13 colonies;
according to Article VII, that
is all that is needed
• March 4, 1789: when
America was slated to start
operating under new terms
• Bill of Rights:
• First ten amendments
• Three English documents
that contributed to these
individual rights:
• Magna Carta
• Petition of Right of 1628
• Bill of Rights
• Amendments in U.S. Bill of
Rights are the words of the
founding fathers
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Amendment I: speech, religion,
press, assembly, and to petition
government
• Amendment II: to bear arms
• Amendment III: no quartering of
soldiers
• Amendment IV: appropriate
search and seizure
• Amendment V: self incrimination,
double jeopardy, eminent domain,
must have indictment to be tried
unless war time
• Amendment VI: speedy and public
trial, face accuser, and have
assistance in defense
• Amendment VII: right to trial by jury
• Amendment VIII: no excessive
fines, bail, or cruel and unusual
punishment
• Amendment IX: you shall not be
denied rights listed in Constitution
• Amendment X: powers not
delegated in Constitution are
reserved for states and/or the
people
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Civil Rights: personal, natural rights
of an individual
• First amendment:
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Protects individual right to freedom of
religion
Wall of separation of church and state is
created
No national religion may be developed,
but all types will be tolerated
• Due Process of Law: a defendant
over whom jurisdiction has been
established must be provided adequate
notice and a proper hearing
• Due process is covered in amendments
4-8
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Abolition of Slavery:
• Originally tolerated by Constitution
• Prior to 1808, it stated that “migration
or importation of such persons….”
was allowed
• Provision in Article I counted slaves as
3/5 of a person for political purposes
(appointing representatives)
• Article IV caused an escaped slave
to be returned to the proper
party/owner
• After Civil War, the Thirteenth
Amendment was created to say
“Neither slavery nor involuntary
servitude, except as a punishment
for a crime whereof the party shall
have been duly convicted, shall exist
within the U.S., or any place subject
to their jurisdiction”
• Right to Vote:
• Fifteenth Amendment gives freed
slaves the right to vote (cannot lose
right based on race, color, or
previous servitude)
• Poll tax: tax developed in the south
that had to be paid in order to vote
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Most former slaves could not afford this tax
Twenty-Fourth Amendment eliminated the poll
tax
Applied to elections as well as a violation of the
Fourteenth Amendment
• Denial by Gender:
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Gender deliberately left out of Fifteenth
Amendment so no woman of any race could
vote
In 1920, the Nineteenth Amendment was
passed to eliminate this injustice
Suffragettes: woman who fought for the right
to vote
http://www.youtube.com/watch?v=Kvk1NZDFv
ZU
FOUNDATIONS OF THE U.S.
CONSTITUTION
• Right to Vote:
• Denial by Age:
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Protests during Vietnam War over being able to
serve country at 18 but not be able to vote until
age 21
This was changed upon the adoption of the
Twenty-Sixth Amendment in 1971
• Peripheral Rights:
• Some rights are not directly
mentioned in the U.S. Constitution or
the Bill of Rights
• Example: right to privacy
• In the 1960s, the Supreme Court
acknowledged this as a separate
right causing a reinforcement in
several states
END OF SECTION 2-1
DIVISION AND BALANCE OF
GOVERNMENTAL POWERS
• System of Checks and Balances:
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Creates a balance of power between
three branches of government
Warren E. Burger, former Chief Justice of
U.S. Supreme Court, pointed out that when
the Constitution was created, no country in
the world provided a checks and balances
Created by the 55 delegates called to
draft the Constitution
• Branches of Government:
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Legislative
Executive
Judicial
• Legislative Branch:
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Lawmakers; heart of branch: Congress
Consists of two bodies:
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All bills for tax and spending must start in
the House
Majority vote is needed from both bodies
to pass bill
Powers:
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Senate: 2 members from each state no matter the
population
House of Representatives: number of seats is determined
by the population of that state
Allows for a continuation of checks and balances
House: impeach or accuse any civil officer of the U.S. of
treason, bribery, or other high crimes and misdemeanors
Senate: sole power on impeachment cases
Impeachment cases: criminal proceedings against a
government official for misconduct in office
People have power to vote in their
representation in Congress
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House serves two-year terms (no term limit)
Senate serves six-year terms (no term limit)
President serves four-year terms (limit 2 terms)
DIVISION AND BALANCE OF
GOVERNMENTAL POWERS
• Executive Branch:
• Headed by President and Vice
President
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Voted into office indirectly by the people;
electoral college makes final decision
Political party: private organization of citizens
who select and promote candidates for
election to public office
Just because a candidate receives the popular
vote, it does not mean they will the office
• Has veto power on laws proposed by
the legislative branch
• Has power to appoint judiciary
members with the advice and the
consent of the Senate
DIVISION AND BALANCE OF
GOVERNMENTAL POWERS
• Judicial Branch:
• Headed by Supreme Court of U.S.
• Primary job: check on
constitutionality of statutes passed by
the legislative branch and signed by
the President
• May also determine if an action or
decision exceeds the powers
granted under the Constitution
• Changing the Constitution:
• Amendment: change or
modification
• Two ways to amend Constitution:
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Amendment proposed by 2/3 majority vote in
both House and Senate
Legislatures of 2/3 of all states call a
convention of all states
• Must be ratified by the legislature of
¾ of the states or ratified by
conventions of ¾ of the states
DIVISION AND BALANCE OF
GOVERNMENTAL POWERS
• U.S. Form of Government:
• Democracy: every adult citizen may
vote on all issues
• Republic (representative
democracy): voters select
representatives to the three
branches
• Sovereign power remains with
people
• Bill of Rights developed in order to
reduce fears of federal government
becoming too powerful
• Amendment Nine takes care of the
fears that those rights not listed will
be taken from the people
• Sovereignty of the States:
• Tenth Amendment acknowledges
state rights to govern citizens within
their borders
• Sovereignty (in this situation):
supreme political authority free from
external control
• Article VI gives federal Constitution
as supreme law, but each state has
the supreme law in their borders on
areas not covered in federal
Constitution
• Examples of state-controlled areas:
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Business law
Contract law
Criminal and tort law
Property and probate law
Domestic relations law
DIVISION AND BALANCE OF
GOVERNMENTAL POWERS
• Limiting States’ Powers:
• The Fifth Amendment limits powers of
the federal government where the
Fourteenth Amendment does the
same for the states
• Shield of the Constitution is effective
against abuse of power at both
levels
• Statutes of both levels have also
provided protection against the
abuse of power by corporations and
private individuals
• Powers of Federal Government:
• Has duty to protect every state from
invasion
• May raise and support for national
defense:
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Armies
A Navy
Air Force
• Federal government may also
develop:
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Post offices
Coin money
Tax imports/exports
Sales tax
Income tax
Regulations for interstate commerce
• Many federal agencies have been
developed to regulate business due
to The Great Depression in the 1930s
END OF SECTION 2-2
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Cyberlaw: law that governs the
use of computers in ecommerce and , more
generally, the Internet
• Issues that arise:
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Jurisdiction
Trademarks
Copyrights
Contracts
Privacy
Obscenity
Defamation
Security of data
Crime
• Birth of the Internet:
• Groundwork laid by Department of
Defense in the 1960s during Cold War
• Advanced Research Projects
Agency (ARPA): tie together
computers on various campuses and
research centers on a network
named ARPANET
• Idea: quickly share and chat about
information and updates; soon
spread internationally
• National Science Foundation (NSF)
noticed the usefulness of this idea
and, in the 1980s, created the
Internet to expand the abilities of this
network
• Was never intended for commercial
(business) use until 1991
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• World Wide Web (www):
• Open to public in 1990 through
creation of hypertext
• Hypertext: nonlinear format for the
publishing of information used to
send e-mails, transfer mountains of
data, and converse in chat rooms
• Access developed by Tim BernersLee, in his spare time, while working
at the European Laboratory for
Particle Physics
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Vision: open access to as wide a body of
information as possible for every user
Browser: scanning program that utilizes the
attributes of hypertext to allow immediate
access to any and all subjects and the
background information necessary to
understand them
Never got a patent/copyright for this
“brainchild”
Directed the WWW Consortium: body for web
development
• WWW Continued:
• Hypertext Markup Language (HTML):
dictates the format of standard Web
documents
• Hypertext Transfer Protocol (HTTP):
provides the standard for
exchanging files in the HTML format
• This format creates:
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Multitude of connecting points
Multitude of paths and storehouses for
information
Shutdown one path/storehouse, more pop up
• Decentralization of the Internet
makes it virtually impossible to legally
control
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Legal Issues in Cyberspace
• In a constant state of development, in many areas
• Areas include:
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Jurisdiction
Contracts
Privacy
Obscenity
Defamation
Security of data
Trademarks/copyrights
Crime
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Jurisdiction:
• Final answers can only be given after
a court responsible can be
determined
• Issue: should the case be determined
in the state where the case was filed
or where the e-business is located
• Decision based on two
considerations:
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Laws of state where case was filed must allow
suits against non-resident defendants:
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Most states have statutes that allow this
Statutes are called “Long-Arm Statutes” for the long
arm of the law
This varies from state to state and can cause a case
to be thrown out if the criteria of that state cannot
be met
Determine whether or not allowing the state or
federal hearing of the case would be a
violation of the due process requirements of the
U.S. Constitution
• Jurisdiction Continued:
• Establishment of jurisdiction by a
state over a nonresident defendant
is only proper if they have “a
substantial, continuous, and systemic
presence” in the state or has
“minimum contacts” with the state
• Usually the latter is used
• Activity includes:
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Contracts
Product liability
Warranty
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• International Jurisdiction:
• International cases are governed by
international commercial law
• Pre-e-commerce principle: a country
may exercise jurisdiction only over
activities with a substantial effect on
or in that country
• Recent cases indicate an
abandonment of this rule or any
unifying principle of jurisdiction
• Freedom of Speech:
• Falls under our First Amendment
rights although not absolute;
examples:
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No yelling “fire” in crowded theater
No defamation of character
• Roth vs. United States:
• Determined obscenity did not have
the protection of the First
Amendment
• Reason: protection given to speech
and press ensured exchange of
ideas with social importance;
obscenity does not have social
importance
• Problem: determining what is and is
not considered to be obscene;
standards have varied throughout
the years
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Miller vs. California:
• A 1973 case where Supreme Court
toughened the standards by
determining that questionable
materials were to be judged by
community standards
• Proved to be inadequate in the
Internet environment; case law is
filling the gaps
• The question of “which community?”
is a large issue determined by case
law that states that the recipient’s
community is the determining factor
• Perspective NOT adopted by courts:
use online community instead of
physical location
• Latest decision: once material is said
to be obscene, it can be regulated
on all three levels of government
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Communications Decency Act:
• CDA was passed in 1996
• Purpose: control knowing transmittal
of obscene material through the
Internet
• Statute provides:
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Heavy fines
Imprisonment up to five years for first-time
violators
Higher penalties for subsequent offenses
• ACLU, and others, attacked the
statute’s ambiguous term
“indecent”, therefore, that part of
the statute was deemed
unconstitutional
• Section 230: grants immunity to thirdparty publishers on the Web
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Blogs
Forums
Twitter quotes
• CDA Continued:
• Immunity extends to:
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Libel (written defamation)
Invasion of privacy
Misappropriation
Negligence
• Section 230 does not stop criminal
law or intellectual property claims
against the publisher
• No matter what, the originator of
material is fully liable
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Child Online Protection Act (COPA):
• Passed in 1998
• Required commercial sites to use up-to-date
methodology to restrict access to their sites
containing material harmful to children
• Possible sentencing for violation of COPA:
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Fine no more than $50,000
Prison no more than six months
Both options
• The idea of “harmful material” was unclear
• This Act could also include such areas as:
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News publications
Libraries
Museums
• Act was struck down in 2009 by the U.S.
Supreme Court
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• The Right of Privacy Online:
• Legitimized as a right in the late
1960s by the U.S. Supreme Court
• Now based on a person’s
reasonable expectations as to
whether his or her actions,
communications, beliefs, and
personal attributes deserve
protection from those who would
improperly use them
• Examples of when this is NOT true:
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Using workplace technology
Facebook
Twitter
Flickr
Match
• A simple photo can show location,
socioeconomic level, and other
characteristics that an identity thief
could use
• Continued:
• Two numeric identifiers to keep safe:
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Social security number
Birthdate
• By giving city and state of birth, two
researchers were able to predict the
ss# of 5 million people born between
1989 and 2003 through determining
the formula the government uses to
assign this identifying number
• Controlling the Assault of NonSolicited Pornography and Marketing
(CAN-SPAM) Act of 2003:
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Forbade lawsuits from being brought against
spammers under state laws
Lawsuits had been successful and costly to
spamming industry
Spamming: practice of sending unrequested
bulk e-mailings to hundreds of thousands of
potential customers
THE INTERNET AND CONSTITUTIONAL
RIGHTS
• Continued:
• Enforcement responsibility went to
the FTC
• Act’s provisions:
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Spammer not use fraudulent transmission data
Spammer not use misleading sender or subject
lines
Each e-mail must contain spammer’s postal
address
Each e-mail must have a clear unsubscribe
mechanism
Each e-mail must have an identification in the
subject line for any sexually-oriented material
made available in the message
Spammers must have a process for
“unsubscribers” within 10 days of receipt, either
digital or by mail
Refrain from harvesting e-mail addresses or
using any automated means to randomly
generate addresses
• Minimal government enforces
causes this law to be broken on a
regular basis
• Continued:
• Address lists are typically generated
by popular Websites compiling the
“cookies” left behind after the site is
visited by the user
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Cookie: packet of information containing the
Internet address and other personal information
about a website visitor, such as buying patterns
• Current federal law prohibits the
collection of this information through
video and cable programs you
rent/purchase; no such law exists to
do the same for online users
• Contrary to the U.S., the European
Union (EU) has passed a directive to
all members to enact legislation to
protect consumers against practices
• The EU directive also forbids
members from passing information to
those not in the union, forcing the
U.S. to work with the EU to develop a
list of precautions for international
business