Chapter 4
CONSTITUTIONAL LAW
A. Basic Principles of Constitutional Law C. Limitations On Government
1. Federalism 1. Contract Clause
2. Federal Supremacy and Preemption 2. First Amendment
3. Judicial Review a. Corporate Political Speech
4. Separation of Powers b. Commercial Speech
5. State Action c. Defamation
B. Powers of Government 3. Due Process
1. Federal Commerce Power a. Substantive Due Process
2. State Regulation of Commerce b. Procedural Due Process
a. Regulations 4. Equal Protection
b. Taxation a. Rational Relationship Test
3. Federal Fiscal Powers b. Strict Scrutiny Test
a. Taxation c. Intermediate Test
b. Spending Power
c. Borrowing and Coining Money
d. Eminent Domain
Cases in This Chapter
Williamson v. Mazda Motor of America, Inc.
Brentwood Academy v. Tennessee Secondary
School Athletic Association
Dept. of Revenue of Kentucky v. Davis, et. al.
Brown v. Entertainment Merchants Association
Brown v. Board of Education of Topeka
Chapter Outcomes
After reading and studying this chapter, the student should be able to:
Explain the basic principles of constitutional law.
Describe the sources and extent of the power of the federal and state governments to regulate business
and commerce.
Distinguish the three levels of scrutiny used by the courts to determine the constitutionality of
TEACHING NOTES
A constitution is the fundamental law of a particular level of government. It:
• establishes the structure of government
• defines political relationships within it
• states the rights and authority vested in the government
The drafters of the original Constitution of the United States considered it
unnecessary to list liberties the people kept to themselves, but agreed that the
Constitution would contain a Bill of Rights, which consists of the first ten
amendments. The States insisted on these as curbs on the power of the federal
government.
*** Chapter Outcome ***
Explain the basic principles of constitutional law.
A. BASIC PRINCIPLES
Federalism
The power to govern is divided between the federal and states government. Any
powers not specifically given to the federal government are reserved to the
states and the people.
Federal Supremacy and Preemption
The U.S. Constitution as the supreme law of the land takes precedence over all
other con+icting law. No law—federal or state—is valid if it violates the U.S.
Constitution. Federal preemption refers to the right of the federal government to
regulate matters within its powers to the possible exclusion of state regulation.
CASE 4-1
WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC.
Supreme Court of the United States, 2011
562 U.S.___, 131 S.CT. 1131, 179 L.ED.2D 75
http://scholar.google.com/scholar_case?q=131+S.CT.
+1131&hl=en&as_sdt=2,34&case=17793025419262348357&scilh=0
Breyer, J.
Federal Motor Vehicle Safety Standard 208 (1989 version) requires, among other things, that
auto manufacturers install seatbelts on the rear seats of passenger vehicles. They must install
lap-and-shoulder belts on seats next to a vehicle’s doors or frames. But they have a choice about
what to install on rear inner seats (say, middle seats or those next to a minivan’s aisle). There
they can install either (1) simple lap belts or (2) lap-and-shoulder belts. [Citation.]
* * *
The California trial court dismissed this tort claim on the basis of the pleadings. And the
California Court of Appeal affirmed. The appeals court noted that in Geier v. American Honda
Motor Co., [citation], this Court considered whether a different portion of (an older version of)
Federal Motor Vehicle Safety Standard 208 (FMVSS 208)—a portion that required installation of
passive restraint devices—pre-empted a state tort suit that sought to hold an auto manufacturer
liable for failure to install a particular kind of passive restraint, namely, airbags.
* * *
* * * [W]e granted certiorari * * *.
* * *
* * *
Like the regulation in Geier, the regulation here leaves the manufacturer with a choice.
And, like the tort suit in Geier, the tort suit here would restrict that choice. But unlike Geier, we
do not believe here that choice is a significant regulatory objective.
* * * In 1984, DOT [Department of Transportation] rejected a regulation that would have
required the use of lap-and-shoulder belts in rear seats [Citation.] Nonetheless, by 1989 when
DOT promulgated the present regulation, it had “concluded that several factors had changed.”
[Citation.]
DOT then required manufacturers to install a particular kind of belt, namely,
lap-and-shoulder belts, for rear outer seats. In respect to rear inner seats, it retained manufacturer
* * *
* * * Nor did DOT seek to use its regulation to spur the development of alternative kinds
of rear aisle or middle seat safety devices. [Citation.]
* * *
The more important reason why DOT did not require lap-and-shoulder belts for rear inner
seats was that it thought that this requirement would not be cost-effective. * * * But that fact—
the fact that DOT made a negative judgment about cost effectiveness—cannot by itself show that
DOT sought to forbid common-law tort suits in which a judge or jury might reach a different
conclusion.
could base a decision to pre-empt on its cost-effectiveness judgment, we are satisfied that the
rulemaking record at issue here discloses no such pre-emptive intent. And to infer from the mere
existence of such a cost-effectiveness judgment that the federal agency intends to bar States from
imposing stricter standards would treat all such federal standards as if they were maximum
standards, eliminating the possibility that the federal agency seeks only to set forth a minimum
* * *
Neither has DOT expressed inconsistent views on this subject. In Geier, the Solicitor
General pointed out that “state tort law does not conflict with a federal ‘minimum standard’
merely because state law imposes a more stringent requirement.” [Citation.] And the Solicitor
General explained that a standard giving manufacturers “multiple options for the design of” a
device would not pre-empt a suit claiming that a manufacturer should have chosen one particular
option, where “the Secretary did not determine that the availability of options was necessary to
promote safety.” [Citation.] This last statement describes the present case.
In Geier, then, the regulation’s history, the agency’s contemporaneous explanation, and its
Judicial Review
Describes the process by which the courts examine governmental actions to
determine whether they conform to the U.S. Constitution. It extends to
legislation, acts of the executive branch, and the decisions of inferior courts. It
includes the actions of both the federal and state governments and applies the
same standards of constitutionality to both governments. The U.S. Supreme
Court is the final authority as to the constitutionality of any federal or state law.
Separation of Powers
The allocation of powers among the legislative, executive and judicial branches
State Action
Refers to actions of the federal and state governments and their subdivisions,
such as city or county governments and agencies, as opposed to actions taken
by private individuals. Only the Thirteenth Amendment, which abolishes slavery
or involuntary servitude, applies to the actions of private individuals. Otherwise,
the Constitution proscribes only action taken by governments that violate
constitutionally protected rights. Action taken by private individuals may
constitute state action if the government exercised coercive power over the
challenged private action.
CASE 4-2
BRENTWOOD ACADEMY v. TENNESSEE SECONDARY
SCHOOL ATHLETIC ASSOCIATION
Supreme Court of the United States, 2001
531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807
http://scholar.google.com/scholar_case?q=121+S.Ct.+924&hl=en&as_sdt=2,34&case=2890003226740495113&scilh=0
Souter, J.
The issue is whether a statewide association incorporated to regulate interscholastic athletic
competition among public and private secondary schools may be regarded as engaging in state
action when it enforces a rule against a member school. The association in question here includes
most public schools located within the State, acts through their representatives, draws its officers
from them, is largely funded by their dues and income received in their stead, and has
historically been seen to regulate in lieu of the State Board of Education’s exercise of its own
authority. We hold that the association’s regulatory activity may and should be treated as state
action owing to the pervasive entwinement of state school officials in the structure of the
association, there being no offsetting reason to see the association’s acts in any other way.
Respondent Tennessee Secondary School Athletic Association (Association) is a
not-for-profit membership corporation organized to regulate interscholastic sport among the
The Association’s rulemaking arm is its legislative council, while its board of control tends to
administration. The voting membership of each of these nine-person committees is limited under
the Association’s bylaws to high school principals, assistant principals, and superintendents
elected by the member schools, and the public school administrators who so serve typically
attend meetings during regular school hours. Although the Association’s staff members are not
paid by the State, they are eligible to join the State’s public retirement system for its employees.
Member schools pay dues to the Association, though the bulk of its revenue is gate receipts at
member teams’ football and basketball tournaments, many of them held in public arenas rented
by the Association.
The constitution, bylaws, and rules of the Association set standards of school membership
and the eligibility of students to play in interscholastic games. Each school, for example, is
The action before us responds to a 1997 regulatory enforcement proceeding brought against
petitioner, Brentwood Academy, a private parochial high school member of the Association. The
Association’s board of control found that Brentwood violated a rule prohibiting “undue
influence” in recruiting athletes, when it wrote to incoming students and their parents about
spring football practice. The Association accordingly placed Brentwood’s athletic program on
probation for four years, declared its football and boys’ basketball teams ineligible to compete in
playoffs for two years, and imposed a $3,000 fine. When these penalties were imposed, all the
voting members of the board of control and legislative council were public school administrators.
We granted certiorari, 528 U.S. 1153 (2000), to resolve the conflict and now reverse.
* * * Thus, we say that state action may be found if, though only if, there is such a “close
nexus between the State and the challenged action” that seemingly private behavior “may be
fairly treated as that of the State itself.” [Citation.]
* * *
Our cases have identified a host of facts that can bear on the fairness of such an attribution.
We have, for example, held that a challenged activity may be state action when it results from the
State’s exercise of “coercive power,” [citation], when the State provides “significant
has been delegated a public function by the State, [citations], when it is “entwined with
governmental policies” or when government is “entwined in [its] management or control,”
[citation].
* * *
* * * [T]he “necessarily fact-bound inquiry,” [citation], leads to the conclusion of state action
here. The nominally private character of the Association is overborne by the pervasive
entwinement of public institutions and public officials in its composition and workings, and there
is no substantial reason to claim unfairness in applying constitutional standards to it.
The Association is not an organization of natural persons acting on their own, but of schools,
Although the findings and prior opinions in this case include no express conclusion of law
that public school officials act within the scope of their duties when they represent their
institutions, no other view would be rational, * * *. Interscholastic athletics obviously play an
integral part in the public education of Tennessee, where nearly every public high school spends
money on competitions among schools. Since a pickup system of interscholastic games would
not do, these public teams need some mechanism to produce rules and regulate competition. The
In sum, to the extent of 84% of its membership, the Association is an organization of public
schools represented by their officials acting in their official capacity to provide an integral
element of secondary public schooling. There would be no recognizable Association, legal or
tangible, without the public school officials, who do not merely control but overwhelmingly
perform all but the purely ministerial acts by which the Association exists and functions in
practical terms. * * *
To complement the entwinement of public school officials with the Association from the
bottom up, the State of Tennessee has provided for entwinement from top down. State Board
* * *
The entwinement down from the State Board is therefore unmistakable, just as the
entwinement up from the member public schools is overwhelming. Entwinement will support a
conclusion that an ostensibly private organization ought to be charged with a public character
and judged by constitutional standards; entwinement to the degree shown here requires it.
* * *
B. POWERS OF GOVERNMENT
The Tenth Amendment declares that “the powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” Legislation enacted by Congress must
therefore be based on a specific power granted to the federal government by the
Constitution.
*** Chapter Outcome ***
Describe the sources and extent of the power of the Federal and State governments
to regulate business and commerce.
Federal Commerce Power
The U.S. Constitution provides that Congress has the power to regulate
commerce with other nations, and among the states.
The commerce clause grants virtually complete power to Congress to regulate
the economy and business. Legislation enacted under the commerce clause
may only be invalidated (1) if it is clear that the activity does not affect
interstate commerce; or (2) if it is clear that there is no reasonable connection
between the regulatory means selected and the stated ends.
In 2010, Congress enacted the Patient Protection and affordable Care Act
(commonly called “Obamacare”) in order to increase the number of Americans
covered by health insurance and decrease the cost of health care. One key
provision—the individual mandate—requires most Americans to maintain
“minimum essential” health insurance coverage or make a “shared responsibility
payment” to the federal government. The constitutionality of the individual
mandate was challenged as beyond the commerce and taxing powers of
State Regulation of Commerce
In addition to acting as a broad source of federal power, the commerce clause
also restricts the states’ power to regulate activities if the result obstructs or
unduly burdens interstate commerce.
Regulations–In determining the extent of permissible State regulation affecting
interstate commerce the Court weighs and balances (1) the necessity and
importance of the State regulation; (2) the burden it imposes on interstate
commerce; and (3) the extent to which it discriminates against interstate
commerce in favor of local concerns.
In general, where a State statute regulates even-handedly to accomplish a
legitimate State interest and its effect on interstate commerce is only