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dynamic business law essentials 3e 2016 chapter 05

Chapter 5
Constitutional Law

© 2013 The McGraw-Hill Companies, Inc. All rights reserved.

Copyright © 2016 McGraw-Hill Education.  All rights reserved.

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Chapter 5 Case Hypothetical
The annual Smallville Fair is the community event of the year. Attendance is always high, with community
members going to enjoy the thrill rides, the exhibits, and the food, as well as to “see and be seen.” Principal
Cuthbert of Smallville High School is there, and as he turns the corner (around the “Guess Your Age or
Weight” exhibit,) he is shocked by what he sees. In front of the “Bearded Lady” exhibit is the star Smallville
High School quarterback, senior Coy Gunner. Gunner is wearing a green “tee-shirt” depicting a Christ-like
figure smoking a marijuana cigarette; in large yellow letters on the front of the shirt are the words “Joints For
Jesus.” On the back of the shirt (again, in large yellow letters) is the following: “WWJS: What Would Jesus
Smoke?!”
Principal 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 Smallville 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 Monday morning
at 7:30 a.m.”
Gunner arrives at Principal Cuthbert’s office on Monday morning to discover that Principle Cuthbert 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, Principle Cuthbert, 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 Principle Cuthbert’s decision to suspend Gunner? Does it matter whether the incident occurred
on or off school property?
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Chapter 5 Case Hypothetical
Prosecutor Alicia Jones was cautiously optimistic that victory was hers. She had just tried the defendant Donovan Howell, Jr. for
first-degree murder of Donovan Howell, Sr., a wealthy construction company owner from Charleston, South Carolina. Any
prosecutor would have been pleased with the evidence Prosecutor Jones had introduced to the Charleston County jury. Although
there was no eyewitness to the elder Howell’s murder, there was an abundance of circumstantial evidence, including three (3)
witnesses who had observed the younger Howell board the yacht of his father at 1:00 a.m. on Sunday, June 27 (Donovan Howell,
Sr.’s body was found on board his yacht later that same morning), a knife next to the elder Howell’s body with his son’s
fingerprints on it, and Donovan Howell, Jr.’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. The young Howell responded reasonably well to both direct examination and to Prosecutor Jones’ cross-examination.
After five (5) full days of deliberation, the jury announced to the court that it was hopelessly deadlocked, and could not reach a
verdict. 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. Prosecutor Jones
knew there was no way to predict what a jury would do, and she had tried to condition herself with this reality of trial practice, but
she was nevertheless shocked by this jury’s inability to reach a verdict in light of all of the evidence she believed proved Donovan
Howell, Jr.’s guilt beyond reasonable doubt.
After Judge Williams’ declaration of mistrial, Prosecutor Jones immediately polled the jury. She discovered that ten (10) jurors
were in favor of the defendant’s conviction, with the remaining two (2) jurors opposed to conviction. Those two (2) jurors,
Amanda Yates and Carla Yoder, explained why they voted against conviction. Ms. Yates, a twenty-eight year-old unmarried
waitress with a three-year-old son, explained to Prosecutor Jones that there was no way Donovan Howell, Jr. could have
committed murder. Said Ms. Yates, “He just seems like such a polite and well-mannered young man…There is just no way he
killed his father.” Ms. Yoder, a sixty-eight-year-old retiree, had different reasons for her belief that defendant Howell was innocent.
Ms. 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.”


Prosecutor Jones is considering retrying Donovan Howell, Jr. Would the Fifth Amendment “double jeopardy” provision of the
United States Constitution prohibit a retrial of Donovan Howell, Jr. for the first-degree murder of his father?

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The United States Constitution
•Establishes a “federalist” system of
government (with authority divided
between the federal and state
governments)
•Allocates power among the three federal
branches of government (legislative,
executive, and judicial)
•Establishes a system of “checks and
balances”
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Figure 5-1: The System of Checks and Balances
Legislative Branch (U.S. Congress)
On Executive Branch:

On Judicial Branch:

• Can refuse to approve
president’s budget
• Can overrule presidential
vetoes
• Can refuse to approve
presidential appointees
• Can refuse to ratify treaties
• Can impeach and remove
president

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

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Figure 5-1: The System of Checks and Balances
Executive Branch (U.S. President)
On Legislative Branch:

On Judicial Branch:

• Can veto laws passed
by legislative branch
• Can call special
sessions of Congress

• Appoints federal judges
• Can pardon federal
offenders

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Figure 5-1: The System of Checks and Balances
Judicial Branch (U.S. Federal Court System)
On Legislative Branch:

On Executive Branch:

•Can declare laws passed
by Congress
unconstitutional

• Can declare acts of the
Executive Branch
unconstitutional

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The Supremacy Clause (Article VI of
the United States Constitution)
•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

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The Commerce Clause (Article I, Section
8 of the United States Constitution)
•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
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Taxing and Spending Powers of the Federal
Government (Article I, Section 8 of the United
States Constitution)
•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
constitutionality
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Other Constitutional Restrictions on
Government
•Privileges and Immunities Clause
•Full Faith and Credit Clause
•Contract Clause
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Exhibit 5-1: Summary of the Bill of
Rights: The First Amendment
•Protects freedom of religion, press,
speech, and peaceable assembly
•Ensures that citizens have the right to
ask the government to redress
grievances

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Exhibit 5-1: Summary of the Bill of
Rights: The Second Amendment
Finds that in light of the need for a wellregulated militia for security,
government cannot infringe on citizens’
right to bear arms

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Exhibit 5-1: Summary of the Bill of
Rights: The Third Amendment
Provides that government cannot
house soldiers in private residences
during peacetime, or during war,
except for provisions in the law

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Exhibit 5-1: Summary of the Bill of
Rights: The Fourth Amendment
•Protects citizens from unreasonable
search and seizure
•Ensures that government issues
warrants only with “probable cause”

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Exhibit 5-1: Summary of the Bill of
Rights: 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 compensation

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Exhibit 5-1: Summary of the Bill of
Rights: 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
against and for the accused
•Provides the right to an attorney
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Exhibit 5-1: Summary of the Bill of
Rights: The Seventh Amendment
States that in common law suits where
the monetary value exceeds $20,
citizens have the right to a jury trial

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Exhibit 5-1: Summary of the Bill of
Rights: The Eighth Amendment
•Provides that government will not set
excessive bail
•Prohibits government imposition of
excessive fines
•Prohibits cruel and unusual punishment

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Exhibit 5-1: Summary of the Bill of
Rights: The Ninth Amendment
Provides that although the Bill of Rights
names certain rights, such naming does
not remove other rights retained by
citizens

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Exhibit 5-1: Summary of the Bill of
Rights: The Tenth Amendment
Provides that powers that the U.S.
Constitution does not give to the
federal government are reserved to the
states

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Speech Not Protected By The First
Amendment
•Defamation
•Obscenity
•Fighting Words
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U.S. Supreme Court Standard of Obscenity
Established In Miller v. California
•Would the average person, applying
contemporary community standards, find that
the speech appeals to the prurient interest?
•Does the speech depict/describe sexual
conduct in a patently offensive way?
•Does the speech lack serious literary, artistic,
political, or scientific value?

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First Amendment Provisions Protecting
Citizens’ Freedom Of Religion
•The Establishment Clause
-Provides that government “shall make
no law respecting an establishment of
religion”

•The Free Exercise Clause
-States that government cannot make
a law “prohibiting the free exercise” of
religion
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U.S Supreme Court Tests For Determining Whether A
Particular Government Statute Violates The
Establishment Clause (As Set Forth In Lemon v.
Kurtzman)
•Does the statute have a secular legislative
purpose?
•Does the statute’s principal or primary effect
either advance or inhibit religion?
•Does the statute foster an excessive government
entanglement with religion?
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