A question of Constitutional law balances and determines what
Questions of Constitutional law balance two constitutional rights and determine which one is superior
What are the three branches of Government? Describe separation of powers and checks and balances
Th three branches are legislative, executive, and judicial.
The legislative branch can ovveride the Presidents's veto and must confirm appointees to the Judiciary; the President can veto legislation passed by Congress and appoints members to the Judiciary
How did the Articles of Confederation fall short? What did this lead to the creation of in the new Constitution?
The AoC didn't have the power to regulate interstate commerce; thus there wasn't enough economic stability. This led to the creation of the Commerce Clause in the Constitution
What is the Commerce Clause?
Article 1 Section 8; gives Congress the power to "regulate Commerce with foreign nations, and among the several states, and with the Indian tribes
Under what circumstances can Congress regulate commerce?
Congress can regulate both interstate and intrastate commerce so long as the intrastate commerce "substantially affects" interstate commerce
What special power do states have? What are they called? When will it often be in violation?
States have Police Powers to regulate health, education, welfare, safety, etc.
If state laws substantially interfere with interstate commerce then they will be found to violate the Commerce Clause
Waht is the Bill of Rights?
The first ten amendments to the Constitution. The amendments protect legal persons and natural persons against different types of Government action (but only by the federal government!)
Does the Bill of Rights apply to state government too?
Yes, the Supreme Court has incorporated the protections in the Bill of Rights to apply to State Constitutions too. State constitutions can expand these protections but cannot take them away
What liberties does the 1st amendment guarantee?
Freedom of religion, speech, and press; rights to peacefully assemble; right to petition against government
What liberties does the 2nd amendment guarantee?
Freedom to keep and bear arms
What liberties does the 4th and 5th amendments guarantee?
Prevents against unreasonable searches of persons or property, and guarantees fair payment for property
What liberties does the 5th and 6th amendments guarantee?
Rights to the 1) due process of law and 2) trial by jury; 3) right to a speedy public trial (for criminal cases), 4) right to an attorney, 5) right to testify / cross examine
What liberties does the 8th amendment guarantee?
Freedom from 1) excessive bails or fines, and freedom from 2) cruel or unusual punishment
When can the government restrict commercial speech?
If the restriction...
1) promotes a substantial government interest
2) directly advances the interest, and
3) is no more restrictive than necessary
What are the forms of unprotected speech?
1) Defamation,
2) speech that threatens or incites violence, and
3) that which is pornographic or obscene
What are the Establishment and Free Exercise clauses? What do they do?
The establishment clause protects against a state-sponsored religion or laws that prefer one religion over another
The Free Exercise clause prevents the Government from compelling anyone to do anything contrary to their religious beliefs or restricting su
What liberties does the 5th amendment guarantee?
The fifth amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself
What does Procedural Due Process require?
It requires that a government decision to take life, liberty or property must me made fairly, and the defendant must be given both prior notice and an opportunity to be heard
What does Substantive Due Process Require?
It requires that the interest of the state be balanced against the rights of individuals to whom a law or action is directed
In what cases will a fundamental right not be protected?
A fundamental right will always be protected unless the government can show a compelling state interest
What do the fourth and fifth amendments collectively guarauntee to all people? What two things are weighed
The 4th and 5th guarantee every person equal protection under the law.
Thus, the substantive effect of a law must be weighted against the rights of individuals whom the law effects
What are the 3 tiers of scrutiny within a court, and what factors cause each level of scrutint to be used.
Strict scrutiny- used when a law inhibits a fundamental right, or is based on a suspect trait. Will only be upheld if state proves a compelling state interest
Intermediate Scrutiny- used when a law is related to gender or legitimacy. Such laws upheld if t
Which Amendments collectively guarantee individuals the fundamental right to personal privacy?
First, Third, Fourth, Fifth, and Ninth