Chapter 4 Constitution and Law - Legal Environment of Business | Bus 250, Study notes of Business and Labour Law

Download Chapter 4 Constitution and Law - Legal Environment of Business | Bus 250 and more Study notes Business and Labour Law in PDF only on Docsity! Constitutional Law Public law is that branch of substantive which deals with the rights and powers of government in its political or governing capacity and in its relation to individuals or groups. It consists of constitutional law, administrative law and criminal law, which we’ll be talking about in this chapter. Critical functions of constitutions: 1. Supreme law of their respective jurisdiction. 2. Establish the structure of government and allocate power among various levels. 3. Impose restrictions on the powers of government and enumerate the rights and liberties of the people. When it was adopted in 1789, the framers of the U.S. Constitution specifically spelled out what rights and authority were vested in our government, but they omitted the enumerated liberties and freedoms of the people. They considered it unnecessary. However, because of the recent issues with and successful separation from Great Britian, the people were not so confident. The result was the adoption of the first 10 amendments to the constitution, more commonly known as the Bill of Rights. The Bill of Rights restricts powers and authority of the federal government and establishes many of the civil and political rights that citizens enjoy today — rights to due process, freedoms of speech, press, religion, assembly, and the right to bear arms. BASIC PRINCIPLES OF CONSTITUTIONAL LAW Federalism - the division of governing power between the Federal government and the States. Constitution enumerates the powers of the Federal government and reserves to the States or the people the powers not specifically delegated to the Federal government. However, the Federal government has not been unduly limited in the power it exercises because many of its powers, particularly regulation of commerce, have been broadly interpreted. Federal Supremacy and Preemption Supremacy clause of the Constitution provides that within its own sphere, Federal law is supreme, and any State law that conflicts with it, must yield. Under the Supremacy Clause, whenever congress enacts legislation within its constitutional powers, the Federal laws preempt or override any conflicting state law. Likewise, where Congress doesn’t intend for Federal law to displace all State law, that State law which doesn’t conflict with Federal law is permitted. Judicial Review - describes the process by which courts examine governmental actions to determine whether they conform to the Constitution. If the government action violates the Constitution, the courts may invalidate that action. Judicial review applies to legislation, acts of the executive branch and decisions of inferior courts. It also is applicable to actions of state and federal governments. Who has the final say-so as to whether a law is constitutional? Separation of Powers The U.S. Constitution places power in three separate branches of government: 1. Legislative - makes the law 2. Executive - executes or carries out the law 3. Judicial - interprets the law. Some times, two or more branches share power, which can serve as a system of checks and balances between the three. 1. Executive - Appoints Federal Judges and also United States Attorneys. (Subject to Senate Confirmation) Since coming into office in January, 2009, President Obama has appointed and had confirmed Sonia Sotomayor and Elena Kagan. Locally, confirmation hearings are underway for James Graves, a proposed appointee to the 5th Circuit. Gray Tollison has been discussed as the U.S. Attorney for the Northern District of Mississippi, and Carlton Reeves for the same post in the Southern District of Mississippi, but halfway into Obama’s term, their nominations have not moved forward in the Senate. 2. Legislative - Passes legislation that is subject to judicial review, as well as veto power by the President. State Action Most of the protections provided by the Constitution apply only to State Action - any action of the State and Federal governments, as well as their political subdivisions. Also, actions taken by private citizens may constitute state action if the State is involved by exercising coercive power over private action, significantly encourages it or is substantially entangled with the action. is restricted from doing so. Freedom of Speech First Amendment - protects most speech by using a strict scrutiny standard. However the protection of free speech is not absolute - profanity is generally not protected. That’s why you shouldn’t curse a cop. . Corporate Political Speech - First Amendment protects a corporation's right to speak out on political issues. Whose money is a corporation spending when it makes political contributions? Look at the impact of outside contributions during Mississippi’s judicial elections. Do we have the right to know who is pumping money in to our judges’ campaigns – who is backing them financially and might be expecting rulings favorable to their causes? . Commercial Speech - expression related to the economic interests of the speaker and its audience, such as advertisements for products or services. Commercial speech is less valuable and less vulnerable than other types of speech, therefore, it receives a lesser degree of protection by the courts. . Defamation - a tort consisting of a false communication that injures a person's reputation. Because defamation involves a communication, it receives protection under the 1st Amendment, but what it receives is limited constitutional protection. A public official who is defamed can recover if he or she can by clear and convincing proof show that the false statement was made with actual malice – in other words that the person making the defamatory statement knew that it was false, or acted in reckless disregard of its truth or falsity – didn’t care if it was false. This also applies to persons who are considered to be public figures. Due Process - Fifth and Fourteenth Amendments prohibit the Federal and State governments from depriving any person of life, liberty, or property without due process of law. There are two types of due process cases: (1) Substantive Due Process; and (2) Procedural Due Process. . Substantive Due Process - determination of whether a particular governmental action is compatible with constitutional rights or individual liberties. Rational Relationship scrutiny, except where government legislation affects First Amendment rights, right to engage in interstate travel, right to vote, right to privacy; and right to marry. In those instances, what level of review does the Court utilize? Strict Scrutiny . Procedural Due Process - involves a review of whether the governmental decision-making process enforcing substantive laws that have the effect of depriving a person of life, liberty, or property is fair and impartial. For procedural due process purposes, the following definitions apply: . Liberty - Generally includes the ability of individuals to engage in freedom of action and choice regarding their personal lives. . Property - includes not only all forms of personal and real property, but also certain entitlements such as social security payments, food stamps, welfare benefits. Procedural Due Process requires that the procedure in question be fair and impartial. The three factors that the Supreme Court utilizes are: (1) the importance of the individual interest involved; (2) the adequacy of existing procedural safeguards, and the probable value that additional safeguards add; and (3) the governmental interest in fiscal and administrative efficiency. Equal Protection requires that similarly situated persons be treated similarly by governmental actions. In determining whether governmental action satisfies the equal protection guarantee, the Court will use one of the three levels of review we’ve already mentioned, depending on the rights involved. . Rational Relationship Test - applies to economic regulations and requires that the classification conceivably bear some rational relationship to the legitimate government interest that the regulation proposes to further. There is a strong presumption that government action is constitutional. . Intermediate Test - Under this test the classification must have a substantial relationship to an important government objective. The intermediate test is applicable to actions based on gender and legitimacy classifications. . Strict Scrutiny Test - Most exacting test applied by the Courts. Courts will independently determine whether a classification of persons is constitutionally permissible, and the court requires that the classification be necessary to promote a compelling or overriding government interest.