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Dynamic business law 4e kubasek 4e CH05

Chapter 5
Constitutional Principles

Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGrawHill Education.

• LO5-1: What is federalism?
• LO5-2: How does the U.S. government's system
of checks and balances operate?
• LO5-3: What effects does the commerce clause
have on the government's regulation of
• LO5-4: How does the Bill of Rights protect the
citizens of the United States?

Chapter 5 Hypothetical Case 1
• Peter Mallory and James Reid were widely considered by their peers and by the
community-at-large the very best officers the San Bernardino, California Police

Department had to offer. Today, they were seeking to uphold that reputation. After
weeks of tracking Malcolm Leary, a suspect in last year's gruesome murder of 32-yearold Rachel Vang, they had located and detained Leary pursuant to a validly issued
arrest warrant.
On their way back to headquarters in the squad car, with Mallory and Reid silent,
Leary offers up a confession from the back seat, saying "I killed that witch because she
deserved it, and if I have to spend the rest of my life in prison and eternity in hell for
doing it, it was worth it!" Both Mallory and Reid are shocked that Leary "broke" so
easily, but they are happy to have the confession.
• Prior to his declaration of murder, neither Mallory nor Reid had "Mirandized" Leary.
Will Malcolm Leary's statement be admissible in his criminal prosecution, or will it be
inadmissible based on a violation of the due process standard set forth in Miranda v.


Chapter 5 Hypothetical Case 2
• Prosecutor Alicia Jones was cautiously optimistic that victory was hers. She had just tried
the defendant Robert Howell for the first-degree murder of his father, Donovan Howell, a
wealthy construction company owner from Charleston, South Carolina. Any prosecutor
would have been pleased with the evidence Jones had introduced to the jury. Although
there was no eyewitness to the murder, there was an abundance of circumstantial
evidence, including three witnesses who had observed the younger Howell board his
father's yacht at 1:00 a.m. on Sunday, June 27 (the body was found on the yacht later that
same morning), a knife next to the elder Howell's body with his son's fingerprints on it, and
the son's confession to Charleston County police on Friday, July 2. In light of all of the
circumstantial evidence against his client, defense attorney Edward York had taken the risk
of putting his client on the witness stand. Howell responded reasonably well to both direct
examination and to Jones's cross-examination.
After five days of deliberation, the jury announced that it was hopelessly deadlocked. After
inquiring whether there was any possibility that further jury deliberation would resolve the
impasse, and after the foreperson's response of "Most definitely not, your honor," Judge
Gregory Williams officially declared a mistrial. Jones knew there was no way to predict
what a jury would do and she had tried to ready herself, but she was nevertheless shocked
by the jury's inability to reach a verdict.


Chapter 5 Hypothetical Case 2

After Williams's declaration of mistrial, Jones immediately polled the jury. She
discovered that ten jurors were in favor of the defendant's conviction, with the
remaining two jurors opposed. Those two jurors, Charles Yates and Carla Yoder,
explained why they voted against conviction.
Yates, a 28-year-old divorced waiter with a 3-year-old son, explained to Jones that
there was no way Howell could have committed murder. Said Yates, "He just seems
like such a polite and well-mannered guy.… There is just no way he killed his father."
Yoder, a sixty-eight-year-old retiree, had different reasons for her belief that defendant
Howell was innocent. Yoder stated "Just because he was on his father's boat doesn't
mean he killed his father. I believe the young man was framed. I believe the knife was
planted on the boat, and I believe the police coerced his confession."
• Jones is considering retrying Howell. Would the Fifth Amendment "double jeopardy"
provision of the United States Constitution prohibit a retrial of Howell for the firstdegree murder of his father?


What Is Federalism?
• Principle of federalism: Authority is divided
between federal and state governments
• Foundation of the system of government
established by the U.S. Constitution
• Allocates power among the three federal
branches of government (legislative,
executive, and judicial)
• Establishes a system of checks and balances

Checks and Balances:
Legislative Branch's Powers
• On executive branch:
• Can refuse to approve
President's budget
• Can overrule presidential
• Can refuse to approve
presidential appointees
• Can refuse to ratify
• Can impeach and
remove president

• On judicial branch:
• Can pass amendments
to overrule judicial
• Can impeach judges
• Establishes lower
courts and sets
number of judges

Checks and Balances:
Executive Branch's Powers
• On legislative branch:
• Can veto laws passed
by legislative branch
• Can call special
sessions of Congress

• On judicial branch:
• Appoints federal
• Can pardon federal


Checks and Balances:
Judicial Branch's Powers
• On legislative branch:
• Can declare laws
passed by Congress

• On executive branch:
• Can declare acts of the
executive branch


The Supremacy Clause (Article VI)
• Provides that federal law is the "supreme
law" of the United States
• Any state or local law that directly conflicts
with federal law is void


The Commerce Clause
(Article I, Section 8)
• The primary source of authority for federal
regulation of business
• States that the U.S. Congress has the
power to "regulate Commerce with foreign
Nations, and among the several States…"
• Simultaneously empowers the federal
government and restricts the power of
state governments


Taxing and Spending Powers of the
Federal Government (Article I, Section
• Provides the "Power to lay and collect Taxes,
Duties, Imports and Excises."

• Taxes imposed by Congress must be uniform
across the states
• The federal government can use tax revenues to
provide essential services, encourage
development of certain industries, discourage
development of other industries
• Regulatory impact of tax does not affect its


Other Constitutional
Restrictions on Government
• Privileges and immunities clause
• Prohibits states from discriminating against citizens of
other states when those nonresidents engage in
ordinary and essential activities

• Full faith and credit clause
• States "Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial
Proceedings of every other State."

• Contract clause
• States that government may not pass any "Law
impairing the Obligation of Contract."


Protections of the Bill of Rights
• First ten amendments substantially affect
government regulation of business
• Prohibit federal infringement on individual

• Fourteenth Amendment extends Bill of Rights to
the states (state governments cannot infringe on
rights either)
• "Artificial persons": Courts may extend Bill of
Rights to corporations in some cases

The First and Second Amendments
• First Amendment
• Protects freedom of religion, press, speech, and
peaceable assembly
• Ensures that citizens have the right to ask the
government to redress grievances

• Second Amendment
• Finds that in light of the need for a well-regulated
militia for security, government cannot infringe on
citizens' right to bear arms

The Third and Fourth Amendments
• Third Amendment
• Provides that government cannot house soldiers
in private residences during peacetime, or during
war, except for provisions in the law

• Fourth Amendment
• Protects citizens from unreasonable search and
• Ensures that government issues warrants only
with probable cause

The Fifth Amendment
• Ensures that government does not put citizens
on trial except upon indictment by a grand jury
• Gives citizens the right not to testify against
themselves (privilege against self-incrimination)
• Prevents government from trying citizens twice
for the same crime (double jeopardy)
• Creates the right to due process
• Provides that government cannot take private
property for public use without just


The Sixth Amendment
• Provides the right to a speedy public trial with an
impartial jury
• Provides the right to know what criminal
accusations a citizen faces
• Provides the right to have witnesses both for and
against the accused
• Provides the right to an attorney

The Seventh and Eighth Amendments
• Seventh Amendment
• States that in common-law suits where the
monetary value exceeds $20, citizens have the
right to a jury trial

• Eighth Amendment
• Provides that government will not set excessive
• Prohibits government imposition of excessive fines
• Prohibits cruel and unusual punishment

The Ninth and Tenth Amendments
• Ninth Amendment
• Provides that although the Bill of Rights names
certain rights, such naming does not remove other
rights retained by citizens

• Tenth Amendment
• Provides that powers that the U.S. Constitution
does not give to the federal government are
reserved to the states

The Fourteenth Amendment
• Prevents states from denying "the equal
protection of the laws" to any citizen
• Combats discrimination, since it applies
whenever government treats certain individuals
differently than other similarly situated


Judicial Tests for Violations of the
Fourteenth Amendment
• Strict scrutiny test: Applies to suspect classifications based on
race, national origin, and/or citizenship that would prevent
individuals from exercising a fundamental right (such
classification allowed only if necessary to promote a
compelling state interest)
• Intermediate scrutiny test: Applies to classifications based on
gender or on the legitimacy of children (such classification
allowed only if it is substantially related to an important
government objective)
• Rational-basis test: Applies to all other matters (such
classification allowed only if it advances a legitimate
government interest)


Chapter 5 Hypothetical Case 3
• The annual Smallville Fair is the community event of the year. Attendance is always high, with
community members enjoying the thrill rides, exhibits, and food. Lori Cuthbert, Smallville High
School's principal, is there, and as she turns the corner by the Ferris wheel, she is shocked by what
she sees. The school's star quarterback, senior Coy Gunner, is wearing a green T-shirt depicting a
Christ-like figure smoking a marijuana joint; in large yellow letters on the front of the shirt are the
words "Joints For Jesus." The back of the shirt reads: "WWJS: What Would Jesus Smoke?!"
Cuthbert immediately confronts Gunner, exclaiming, "Coy Gunner, I cannot believe you would
wear such a disgusting shirt. You have offended my Christian principles and beliefs, as well as the
religious beliefs of countless numbers of Smallville citizens attending this fair. Further, you have
disgraced the high school. As the star quarterback of our football team, you of all people should
know that you are a role model for your fellow students, as well as younger kids in the community.
I will see you in my office on Monday morning at 7:30 a.m."
On Monday, Gunner arrives at Cuthbert's office to discover that she has decided to suspend him
for ten school days. Gunner objects, saying, "I remember in civics class that Mr. Campbell told us
we have the right to free speech. I object to the suspension, and if you don't change your mind,
my dad knows a good attorney who might want to speak with you."
• Is the message on Gunner's shirt constitutionally protected free speech? Would rational
limitations on free speech justify Cuthbert's decision to suspend Gunner? Does it matter whether
the incident occurred on or off school property?


Chapter 5 Hypothetical Case 4
• In response to a rising tide of gun violence, the city council of
Stewart, New Jersey decides to ban the sale and possession of
assault weapons within its city limits. A coalition of ten gun
stores within the Stewart city limits, in addition to a group of
their most loyal patrons, immediately files a lawsuit, stating that
the city council's move is a violation of Second Amendment
• Research whether U.S. cities or states have laws on the books
that ban assault weapons. If you find that some do, research
whether these laws have been challenged in the courts. If you
find some instances, what were the outcome(s)? Do you believe
that the Stewart City Council is violating the Second Amendment
rights of its citizens? If so, what part(s), if not all, of the law is in


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