LAW, BUSINESS, & SOCIETY

11th Edition

©2015 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any manner. This document may not be copied, scanned, duplicated,

forwarded, distributed, or posted on a website, in whole or part..McGraw-Hill

5-2

Learning Objectives Recognize the purposes of the U.S.

Constitution Describe the separation of powers

under the U.S. Constitution Identify the freedoms protected under

the First Amendment Describe the powerful role the Bill of

Rights plays in protecting personal freedoms

5-3

Learning Objectives Discuss the differences between First

Amendment protections of commercial speech versus political speech

Explain the exclusionary rule Describe some of the issues arising

under the Fourth Amendment search and seizure rules

5-4

Learning Objectives Describe the law of the Fifth

Amendment Takings Clause and the property rights controversy associated with it

Compare and contrast substantive due process and procedural due process

Identify some examples of the impact of the Equal Protection Clause on business and society

5-5

Creating a Constitution - The United States Developed from the 1778 Articles of

Confederation› Interstate disputes prevailed and the

federal union had little authority Constitutional Convention was called in

1787 to strengthen the Articles› Delegates decided that a stronger central

government was needed› Great document was signed and the

Constitution was ratified

5-6

Structure and Purpose Preamble identifies goals for society Article I

› Creates Congress and enumerates powers› Section 8, Clause 3 gives Congress the

power to regulate commerce Article II

› Creates the executive branch Article III

› Establishes the court system

5-7

Structure and Purpose Articles IV, VI and, 14th Amendment

› Address the relationship between the federal government and the states

Article VI› Clause 2 offers supremacy of federal law

over state law Article V

› Provides for amendments to the Constitution Bill of Rights - First 10 amendments

5-8

Structure and Purpose Roles served by the Constitution

› Establishes a national government› Controls relationship between national and

state governments› Defines and preserves personal liberty› Contains provisions to enable government

to perpetuate itself

5-9

Government Power and Constitutional Restraints Constitution was designed to protect

the citizenry from the government› Divides governmental power between the

federal and state governments› Congressional authority is limited to

enumerated powers 10th Amendment

› Power not expressly accorded to federal government resides in the states or people

5-10

Federal Branches Congress

› Sole power to legislate at the federal level President

› Executes laws, makes treaties, and commands the armed forces

› Power to veto acts of Congress Supreme Court and the inferior courts

› Judicial authority at the federal level

5-11

Federalism U.S. government is built on federalism

principles› Provides for shared power among national,

state, and local governments New federalism

› Expressed in a 2013 U.S. Supreme Court decision, Shelby County v. Holder

5-12

Constitution, Bill of Rights, and Business Commerce Clause

› Shapes the practice of American business Bill of Rights

› Serves to limit the powers of the federal government and the states

› Protects personal freedoms from encroachment by the federal government

5-13

Freedom of Religion First Amendment forbids:

› Establishment of an official state religion› Undue state interference with religious

practice God, pledge, and currency

› Under God and In God We Trust do not violate the separation of church and state principles

5-14

Freedom of Speech Primary guarantor of the American

approach to life Americans believe free expression of

ideas is the path to the best ideas Not absolute States cannot regulate the content of

speech Extends to messages not

communicated with words

5-15

Freedom of Speech Free speech analysis

› Balancing test - Judges weigh the interests of state against expressive rights of individual

Content - Vile words› Government cannot restrict speech based on

its content Context

› Panhandling in the street at stop signs is permissible

5-16

Freedom of Speech Balancing interests - Speech at school

› Joseph Frederick was suspended from school for raising a banner reading Bong Hits 4 Jesus

Public sector workers off and on the job› First Amendment shield public-sector

workers’ off-the-job expressions› Employer restrictions to effective operation is

permissible› Government employees’ free speech rights

are limited on the job

5-17

Politically Correct Speech Many universities have speech codes Blueprint for colleges

› Issued by Federal Departments of Justice and Education

› Redefines sexual harassment to include unwelcome conduct of a sexual nature

Criticism› Restraints are unconstitutional

5-18

Freedom of Speech Right to provoke, offend, and shock is

protected by the First Amendment Workplace harassment is prohibited Commercial speech

› First Amendment rights is extended by court

Corporate speech› Corporations are associations of citizens

deserving free speech rights

5-19

Case: University Speech Codes

Case› IOTA XI Chapter v. George Mason University› 993 F.2d 386 (4th Cir. 1993)› District court

Issue› George Mason University appeals the

judgment granted by the district court to nullify sanctions imposed on it because it conducted an ugly woman contest with racist and sexist overtones

5-20

Animal Cruelty First Amendment protects the rights of

a business selling videos depicting animal cruelty

Animal Crush Video Prohibition Act› Prohibits the creation and distribution of

obscene animal torture videos

5-21

Case: Animal Cruelty Case

› Bad Frog Brewery v. New York State Liquor Authority

› 134 F.3d 87 (2d Cir. 1998)› Court of Appeals

Issue› NYSLA’s statewide ban on the use of Bad

Frog’s labels lacks a reasonable fit and the labels constitute commercial speech

5-22

Fourth Amendment Right of the people to be secure in

their persons, houses, papers, and effects, against:› Unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause

Protects people from the power of an unfair, overreaching government

5-23

Fourth Amendment Exclusionary rule

› Evidence secured in violation of the Fourth Amendment may not be used against a defendant at trial

› Supreme Court held that government need not forfeit evidence collected in constitutionally improper searches

Search warrant - Issued by a judge› Necessary to comply with the Constitution

in making a narcotics search

5-24

Types of Searches Vehicle - Permissible when:

› Individual being arrested is close enough to vehicle to reach in for a weapon

› Officer reasonably believes that the vehicle contains evidence relevant to crime of arrest

5-25

Types of Searches

• Cannot be searched without a warrantCell phones

• Addressing drug problems in schools outweigh students’ privacy rights

Testing students

• Video Voyeurism Prevention Act - Protects against photographic voyeurism

Voyeurism and surveillance society

5-26

Types of Searches

• DNA collection - Minimal intrusion on privacy

• DNA testing - Valuable tool in prosecuting criminals and exonerating the innocent

DNA samples

• Warrant Clause of the Fourth Amendment protects commercial buildings and private homes

Business searches

5-27

Fifth Amendment Takings - Eminent domain

› Prohibits taking of private property for public use without just compensation for the owner

Regulatory takings› Do not require government compensation

as it would impair state’s ability to govern in an orderly manner

5-28

Case: Eminent Domain Case

› Kelo v. City of New London, Connecticut› Supreme Court of the United States 545

U.S. 469 (2005) Issue

› Is New London development plan’s proposed disposition of property qualifies as a public use within the meaning of the Takings Clause of the Fifth Amendment?

5-29

Types of Regulatory Takings Total takings

› Taking the economic value of a property requires just compensation unless: Government is preventing a nuisance Regulation was permissible under property

law at the time of the purchase Exaction/mitigation

› Government allows land development if owner dedicates some property interest or money to the government

5-30

Types of Regulatory Takings Partial takings

› Government takes a part of property considering the: Importance of the government’s goals Extent of the burden on the property owner

5-31

Fourteenth Amendment Due process

› Clauses forbid the government to deprive citizens of life, liberty, or property without due process of law

› Substantive Laws that arbitrarily and unfairly infringe on

fundamental personal rights can be challenged on due process grounds

5-32

Fourteenth Amendment› Procedural

Government must provide a fair procedure before taking an action affecting a citizen’s life, liberty, or property

› Void for vagueness Statute violates due process rights if it is

vaguely written that the ordinary person cannot understand it

5-33

Case: Due Process Case

› Skilling v. United States› 130 S.Ct. 2896 (2010)› Supreme Court

Issue› Skilling argued that the language of the

honest services federal statute used to convict him was so vague that he was deprived of his due process rights

5-34

Equal Protection 14th Amendment provides that no

state shall deny to any person within its jurisdiction the equal protection of the laws

Forbids the government from treating one person differently from another without a rational basis

5-35

Same-sex Marriage Section 3 of the 1996 DOMA

› Forbids federal government from recognizing same-sex marriage

› Unconstitutional as a denial of equal protection and due process

Federal marriage benefits› Available to same-sex couples legally

married in states recognizing same-sex marriage