Essentials of Business Law, 9th edition
INSTRUCTOR’S MANUAL
Chapter 5 Constitutional Law
LESSON OVERVIEW
Chapter 5 describes several provisions of the Constitution and explains the various ways in which these
provisions impact individuals and businesses in the United States. In this chapter we will first define
the two types of power, express and implied powers, which are conferred to the government by the
Constitution and the states. Then we will describe the process used to amend the Constitution and
explain judicial review and the doctrine of preemption. Next we will discuss the main provisions of the
commerce clause, the full faith and credit clause, and the supremacy clause. Chapter 5 also discussed
the first, second, fourth, fifth, eight, fourteenth, and sixteenth amendments.
CHAPTER OUTLINE
A. THE UNITED STATES CONSTITUTION (pp. 72–73)
1. Constitutional Powers (p. 72)
2. Constitutional Amendments (p. 720)
3. Judicial Review (p. 72)
4. The Doctrine of Preemption (pp. 72–73)
B. THE COMMERCE CLAUSE, THE FULL FAITH AND CREDIT CLAUSE, AND THE
SUPREMACY CLAUSE (pp. 73–74)
1. Article 1, Section 8, Clause 3: The Commerce Clause (pp. 73–74)
2. Article IV, Section 1: The Full Faith and Credit Clause (p. 74)
3. Article IV, Section 2: The Supremacy Clause (p. 74)
C. THE FIRST AMENDMENT (pp. 74–76)
1. The Establishment and Free Exercise Clauses Relating to Religion (p. 75)
2. Freedom of Speech (p. 75)
3. Freedom of the Press (pp. 75–76)
D. THE SECOND AMENDMENT (pp. 76–77)
E. THE FOURTH AMENDMENT (p. 77)
F. THE FIFTH AMENDMENT (p. 78)
G. THE EIGHT AMENDMENT (pp. 78–79)
H. THE FOURTEENTH AMENDMENT (pp. 79–80)
I. THE SIXTEENTH AMENDMENT (pp. 80–81)
J. CHAPTER SUMMARY (p. 81)
K. CHAPTER FIVE ASSESSMENT (pp. 82–87)
1. Matching Legal Terms (pp. 82–83)
2. True-False Quiz (p. 83)
3. Discussion Questions (p. 84)
4. Thinking Critically about the Law (pp. 84–85)
5. Case Questions (pp. 85–86)
6. Case Analysis (pp. 86–87)
7. Legal Research (p. 87)
KEY TERMS
Key terms are listed at the beginning of the chapter, posted in the student textbook margins, and placed
in boldface in the copy. They are listed here for your quick reference.
§ express powers (p. 72)
§ implied powers (p. 72)
§ Bill of Rights (p. 72)
§ judicial review (p. 72)
§ doctrine of preemption (p. 72-73)
§ commerce clause (p. 73)
§ full faith and credit clause (p. 73)
§ supremacy clause (p. 73)
§ probable cause (p. 77)
§ procedural due process (p. 78)
§ substantive due process (p. 78)
§ rational basis (p.80)
§ intermediate scrutiny (p. 80)
§ strict scrutiny (p. 80)
LEARNING OUTCOMES
The chapter Learning Outcomes will help you and the students discover the concepts and information
that should be understood upon completion of the chapter. You may want to access the PowerPoint
(PPT) slides for Chapter 5 when you begin the study of the chapter and discuss each Learning
Outcome. Each Learning Outcome will be covered separately in the instructor notes, but they are
shown here in total as an overview of the sections being presented in Chapter 5. The corresponding text
page numbers and PPT slides are listed next to each outcome. These slides should be used to reinforce
the main points of the lecture.
After completing this chapter, the students will be able to
1. Explain the difference between express and implied powers; describe the process used to amend
the U.S. Constitution; and explain judicial review and the doctrine of preemption. (pp. 72–73, PPT
slides 2–8)
2. Discuss the main provisions of the commerce clause, the full faith and credit clause, and the
supremacy clause. (pp. 73–74, PPT slides 9–13)
3. Describe three provisions of the First Amendment. (pp. 74–76, PPT slides 14–18)
4. Discuss the current state of constitutional law with respect to the Second Amendment. (pp. 76–77,
PPT slide 19)
5. Describe the requirement of probable cause under the Fourth Amendment. (p. 77, PPT slides
20-21)
6. Identify and explain four protections provided by the Fifth Amendment. (p. 78, PPT slides 22–23)
7. Provide examples of cases that are addressed by the Eighth Amendment. (pp. 78–79, PPT slides
24–25)
8. Explain the due process and equal protection clauses of the Fourteenth Amendment. (pp. 79–80,
PPT slides 26–28)
9. Discuss how the Internal Revenue Service administers the collection of income taxes pursuant to
the Sixteenth Amendment. (pp. 80–81, PPT slide 29)
LECTURE OUTLINE
A. THE UNITED STATES CONSTITUTION
Every federal statute enacted by Congress, every state statute enacted by state legislatures, every
ordinance and code enacted by local municipalities, every administrative law and decision, and every
court decision in every case in every jurisdiction—each of these must be consistent with the United
States Constitution, which is the basis for all American law. The federal Constitution and states confer
two types of powers on the governments: express powers stated specifically in the federal Constitution
and implied powers that have arisen as a result of interpretation of the express powers by courts.
The Constitution can be amended, and the first 10 amendments are called the Bill of Rights. Federal
and state courts can decide whether enacted laws violate the Constitution through judicial review. The
doctrine of preemption is a principle that states that when laws are inconsistent with the federal law,
the federal law must be followed.
B. THE COMMERCE CLAUSE, THE FULL FAITH AND CREDIT CLAUSE, AND THE
SUPREMACY CLAUSE
The Constitution is divided into major divisions, called articles; subdivisions, called sections; and in
some cases sub-subdivisions, called clauses. Three of these particular clauses that have a specific
impact on businesses are the commerce clause, the full faith and credit clause, and the supremacy
clause.
1. Article 1, Section 8, Clause 3: The Commerce Clause
This clause grants Congress the power to regulate commerce among states in order to
prevent the restriction of trade activity. Courts have held that the term commerce, as
used in the Constitution, is defined as the movement or exchange of persons, goods, or
information between states.
2. Article IV, Section 1: The Full Faith and Credit Clause
This clause mandates that each state respect and enforce both the judgments awarded by
courts in other states, and the statutes and case law of other states.
3. Article IV, Section 2: The Supremacy Clause
This clause, closely tied to the doctrine of preemption, requires state judges to follow
federal law in the event of a conflict with state law. According to the supremacy clause,
a Supreme Court ruling that involves a constitutional issue is binding on state courts.
C. THE FIRST AMENDMENT
1. The Establishment and Free Exercise Clauses Relating to Religion
The First Amendment right to freedom of religion is divided into two interconnected
pieces, referred to as the establishment clause and the free exercise clause.
The establishment clause makes it unconstitutional for government to recognize a single
national religion, or even to create policies or practices that favor one religion over
another. The free exercise clause requires that government not interfere with an
individual’s practicing the religion of his or her choice.
2. Freedom of Speech
The First Amendment’s freedom of speech clause gives Americans a fundamental right:
the right to freedom of political or religious speech—a right that should be guarded most
zealously when the speech is unpopular, upsetting, ignorant, or even anger-provoking.
Speech that is sexist, racist, ageist, or otherwise offensive is also protected. Similarly,
the act of burning the American flag is considered protected speech, and laws
prohibiting such acts are unconstitutional.
All speech, however, is not protected under the First Amendment. The following are
examples of speech that may constitutionally be limited or silenced: speech that incites
imminent danger; child pornography; speech that is legally obscene; speech that
threatens physical harm; speech that is defamatory, including both slander and
interference with works protected by trademark, patent, or copyright law; and
commercial speech such as deceptive advertising.
3. Freedom of the Press
It would certainly be unconstitutional for a state or municipality to pass a law limiting
what a journalist could write or say about a political candidate or issue.
D. THE SECOND AMENDMENT
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.”
E. THE FOURTH AMENDMENT
The Fourth Amendment says this: “The 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, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” It requires that police officers and other
government officials (but not private citizens) have probable cause to be able to conduct a personal or
property search.
F. THE FIFTH AMENDMENT
The Fifth Amendment does not allow a person to be put in double jeopardy of life or limb or a court to
try a criminal defendant more than once for the same offense; it gives individuals the right to refuse to
self-incriminate (to divulge information that could later be used against them in a criminal
proceeding); it requires that all persons be granted both procedural and substantive due process; and
it give the government the right of eminent domain in that it permits the government to take private
property, both real and personal, for a public purpose so long as the owner receives just compensation.
G. THE EIGHTH AMENDMENT
The Eighth Amendment restricts both the severity and the types of punishments that may be imposed
by federal and state governments. In addition, it mandates that people accused or convicted of crimes
are not to be subject to excessive bail; and finally, it prevents the government from imposing an
unjustly harsh fine on a person convicted of a crime. If a fine is found to be grossly disproportionate to
the crime committed, the fine may be overturned.
H. THE FOURTEENTH AMENDMENT
The Fourteenth Amendment states, “No State shall . . . deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.”
The Fourteenth Amendment also provides that when states pass laws they must treat all individuals
equally; thus laws that do not treat all people equally are unconstitutional unless the state can pass the
following test:
1. The rational basis test: a standard that measures whether the legislature had a reasonable, and
not an arbitrary, basis for enacting a particular statute.
2. The intermediate scrutiny test: a standard that measures whether a particular statute is
substantially related to an important government objective.
3. The strict scrutiny test: a standard that measures whether the legislature had a compelling
interest for enacting a particular statute.
I. THE SIXTEENTH AMENDMENT
The Sixteenth Amendment reads as follows: “The Congress shall have power to lay and collect taxes
on incomes, from whatever source derived, without apportionment among the several States, and
without regard to any census or enumeration.”
INSTRUCTOR NOTES
A resulting answer or explanation is provided here for each Learning Outcome in Chapter 5. Every
outcome is also mapped to corresponding text page numbers, PPT slides, and relevant chapter
assessment exercises and activities for ease of reference and use.
LO1. Explain the difference between express and implied powers; describe the process used to
amend the U.S. Constitution; and explain judicial review and the doctrine of preemption.
Express powers are specifically stated in the federal Constitution and implied powers that have arisen
as a result of interpretation of the express powers by courts. The first 10 amendments to the
Constitution are called the Bill of Rights. Federal and state courts can decide whether enacted laws
violate the Constitution through judicial review. The doctrine of preemption is a principle that states
that when laws are inconsistent with the federal law, the federal law must be followed.
Text Pages: 72–73
PowerPoint: Slides 2–8
Discussion Questions: 26
LO2. Discuss the main provisions of the commerce clause, the full faith and credit clause, and the
supremacy clause.
The commerce clause grants Congress the power to regulate commerce among states in order to
prevent the restriction of trade activity. The full faith and credit clause mandates that each state respect
and enforce both the judgments awarded by courts in other states, and the statutes and case law of other
states; and the supremacy clause requires state judges to follow federal law in the event of a conflict
with state law.
Text Pages: 73–74
PowerPoint: Slides 9–13
Thinking Critically about the Law: 32
LO3. Describe three provisions of the First Amendment.
The First Amendment right to freedom of religion is divided into two interconnected pieces, referred to
as the establishment clause and the free exercise clause. Under the same amendment, the freedom of
speech clause gives Americans a fundamental right—the right to freedom of political or religious
speech. All speech, however, is not protected under the First Amendment. The freedom of the press
provision protects journalists from unconstitutional laws that would limit what they can write or say
what about a political candidate or issue.
Text Pages: 74–76
PowerPoint: Slides 15–18
Discussion Questions: 33
Thinking Critically about the Law: 40
Case Questions: 37
LO4. Discuss the current state of constitutional law with respect to the Second Amendment.
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.”
Text Pages: 78–79
PowerPoint: Slide 18
Discussion Questions: 28
Case Questions: 38
LO5. Describe the requirement of probable cause under the Fourth Amendment.
The Fourth Amendment says this: “The 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, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” It requires that police officers and other
government officials (but not private citizens) have probable cause to be able to conduct a personal or
property search.
Text Pages: 77
PowerPoint: Slides 20–21
Discussion Questions: 29
Case Analysis: 40
LO6. Identify and explain four protections provided by the Fifth Amendment.
The Fifth Amendment does not allow a person to be put in double jeopardy of life or limb; it gives
individuals the right to refuse to self-incriminate; it requires that all persons be granted both procedural
and substantive due process; and it give the government the right of eminent domain.
Text Pages: 78
PowerPoint: Slides 22–23
Discussion Questions: 33
LO7. Provide examples of cases that are addressed by the Eighth Amendment.
The Eighth Amendment restricts both the severity and the types of punishments that may be imposed
by federal and state governments. In addition, it mandates that people accused or convicted of crimes
are not to be subject to excessive bail; and finally, it prevents the government from imposing an
unjustly harsh fine on a person convicted of a crime. If a fine is found to be grossly disproportionate to
the crime committed, the fine may be overturned.
Text Pages: 78–79
PowerPoint: Slides 24–25
Discussion Questions: 31
Thinking Critically about the Law: 35
Case Questions: 39
Case Analysis: 41
LO8. Explain the due process and equal protection clauses of the Fourteenth Amendment.
Under the Fourteenth Amendment, no person can be deprived of life, liberty, or property without due
process of law; nor can a person be denied the equal protection of the laws. When states pass laws they
must treat all individuals equally; thus laws that do not treat all people equally are unconstitutional
unless the state can pass one of the following tests as applicable: the rational basis test, the intermediate
scrutiny test, and/or the strict scrutiny test.
Text Pages: 79–80
PowerPoint: Slides 26–28
Discussion Questions: 30
LO9. Discuss how the Internal Revenue Service administers the collection of income taxes
pursuant to the Sixteenth Amendment.
The Sixteenth Amendment reads as follows: “The Congress shall have power to lay and collect taxes
on incomes, from whatever source derived, without apportionment among the several States, and
without regard to any census or enumeration.”
Text Pages: 80–81
PowerPoint: Slides 29
Case Analysis: 42