Chapter 4
THE CONSTITUTION AS THE FOUNDATION OF THE LEGAL
ENVIRONMENT
RESTATEMENT
A constitution provides the structure and powers for a government as well as the rights and protections for those who
are governed under the structure established. The U.S. Constitution establishes three branches of government:
legislative (Congress); executive (president); and judicial (courts).
The U.S. Constitution also establishes the powers of the federal and state governments. In some cases, the powers
of these two systems of government are shared. In other cases, the U.S. Constitution, through the Supremacy
Clause, provides that the federal regulatory scheme takes precedence over the state regulation of the same area or
subject matter.
Congress is given the power to regulate interstate business through the commerce clause. Likewise, state regulation
cannot impede interstate business. Congress is also given extensive financial powers which include the power to tax,
the power to borrow, the power to spend, and the power to regulate currency and banking.
Government actions are limited by certain provisions in the U.S. Constitution. The due process clause requires that
procedural steps be followed before government agents or agencies can take property from individuals or business.
All citizens are entitled to the same rights and protections under the law; government agents, agencies and
regulations and statutes cannot limit protections among various citizens. There are numerous protections afforded
individuals under the U.S. Constitution such as freedom of speech and right to privacy. In the evolution of these
protections some maintain the Constitution is a living document subject to interpretation according to current issues
and standards. Others hold to the basic literal construction of the U.S. Constitution with change permitted only
through the provided for amendment process.
STUDENT LEARNING OUTCOMES
LO.1: Describe the U.S. Constitution and the Federal System.
LO.2: Explain the relationship between the U.S. Constitution and the states.
LO.3: Discuss interpreting and amending the Constitution.
LO.4: List and describe the significant federal powers.
LO.5: Discuss constitutional limitations on governmental power.
INSTRUCTOR’S INSIGHTS
Break the chapter into four components – related Learning Outcomes are indicated in ( ):
1. How does the U.S. Constitution work to establish state and federal government structure and powers? (LO.1)
Discuss the definition and purpose of constitutions
Explain the role of the constitutionally created branches of government
Present the role of the U.S. Constitution and the purpose and nature of the Supremacy Clause
2. What powers are given to the states by the U.S. Constitution? (LO.2)
3. How is the U.S. Constitution interpreted, amended, and refined? (LO.3)
Cover the rules and judicial mandates on constitutional interpretation
Provide the framework for amendment of the Constitution
Discuss the evolution of the Constitution and its living nature
4. What powers are given to the federal government in the Constitution? (LO.4)
5. What rights and protections (constitutional limitations) are afforded individuals under the Constitution? (LO.5)
Outline the requirements for meeting due process standards
Present the requirements for affording individuals equal protection under the law
Discuss other rights, privileges, immunities and protections given under the Constitution
CHAPTER OUTLINE
I. How Does the U.S. Constitution Work to Establish State and Federal Government Structure and Powers?
A. What a constitution is (See Figure 4-1 in text)
1. Structure of government
2. Rights and protections
B. The branches of government: U.S. is a tripartite system
1. Legislative (Congress) – bicameral (Senate and House of Representatives)
2. Executive (President)
3. Judicial (Courts)
II. What Powers are Given to the States by the U.S. Constitution?
A. The states, the Constitution and federal powers
1. Delegated powers
a. Given by states to national government
b. Examples: currency and declaration of war
2. Shared powers
a. Sharing of power by both national and state governments
b. Federal supremacy
B. Other powers
1. State police power
a. Protect general welfare, health, safety, and morals
b. Cannot unreasonably interfere with federal powers
2. Prohibited powers
a. No ex post facto laws
b. No increase in penalties for an act already committed
C. Federal supremacy
1. Express federal regulation and a direct conflict between state and federal laws, then there is federal
supremacy
CASE BRIEF: Mutual Pharmaceutical Co., Inc. v. Bartlett
133 S.Ct. 2466 (2013)
FACTS: In 1978, the FDA approved an anti-inflammatory pain reliever called “sulindac” under the brand
name of “Clinoril.” When the patent expired, the FDA approved several generic versions of
sulindac for sale, including one developed by Mutual Pharmaceutical (Petitioner). The warnings for
Clinoril included the possibility of developing toxic epidermal necrolysis. Karen Bartlett (respondent)
took a generic form of sulindac in December 2004 and developed an acute case of toxic epidermal
necrolysis. Sixty to sixty-five percent of Ms. Bartlett’s body deteriorated, was burned off, or turned
into an open wound. She spent months in a medically induced coma, underwent 12 eye surgeries,
and was tube-fed for a year. She is now severely disfigured, has a number of physical disabilities,
and is nearly blind.
After a two–week trial on a design-defect claim, a jury found Mutual liable and awarded Ms. Bartlett
over $21 million in damages. The Court of Appeals affirmed, and Mutual appealed. The U.S.
Supreme Court granted certiorari.
ISSUE: Did federal regulations on labeling preempt state tort law?
HOLDING: No.
REASONING: The court held that the federal law was clear that a generic manufacturer could not change the
2. Silence of Congress
a. May pre-empt the subject if intent is not to have regulation
b. May pre-empt the subject if national uniformity is necessary
c. Preemption means federal regulatory scheme is controlling
3. Effect of federal deregulation
III. How is the U.S. Constitution Interpreted, Amended, and Refined? (See Figure 4-2 in text)
A. Conflicting theories
1. Bedrock view (fundamental principles for all time)
2. Living document view (statement of goals and objectives; changing with time)
3. Currently U.S. Supreme Court follows living document rule
B. Amending the Constitution – As the students are aware from reading the text, there is a national constitution
and a state constitution in effect in each state. Demonstrate to the class how it is possible, although difficult,
to add amendments to both the state and national constitutions. The lengthy history of the equal rights
amendment will demonstrate the difficulty involved at the national level. The procedures and the frequency
of use will, of course, vary from state to state. Point out that often amendments are passed in the voting
booth at the state level, yet because of interpretation issues or issues of rights, they end up in litigation (as
with California’s Prop. 209 – Civil Rights Initiative).
1. Constitutional method of amending – Article V
2. Amendment by judicial interpretation – by the Supreme Court
3. Amendment by practice – treaties are negotiated and then ratified; the electoral college has become
perfunctory
C. The living Constitution
1. Strong government
2. Strong president
3. Eclipse of the states – power shift to the federal government in regulating business
4. Administrative agencies – The Fourth Branch of Government
IV. What Powers are Given to the Federal Government in the Constitution?
A. Power to regulate commerce
1. Outline the history of the commerce clause as it has been interpreted by the U.S. Supreme Court – this
will show the students how eleven words – “Congress shall have power to regulate commerce…among
the several States” – have been interpreted to give Congress an almost limitless power to regulate
business activities
2. The commerce power becomes a general welfare power
3. The commerce clause today
a. Follows the “affectation” doctrine
CASE BRIEF: National Federation of Independent Business v. Sebelius
132 S.Ct. 2566 (2012)
FACTS: Congress passed the Patient Protection and Affordable Care Act (also known as Obama Care) in
order to increase the number of Americans covered by health insurance and decrease the cost of
health care. One key provision in the law was the individual mandate, which requires most
Americans to maintain “minimum essential” health insurance coverage. Attorneys general from
ISSUE: Does the Commerce Clause grant Congress the authority to mandate citizens to purchase certain
goods and services if their failure to do so affects commerce?
REASONING: The court faced a new commerce clause issue of whether the federal government could require
citizens to purchase a good or service because the lack of health insurance affected commerce. In
the 5-4 decision, the court concluded, “The individual mandate, however, does not regulate existing
CASE BRIEF: Rowe v. New Hampshire Motor Transport Association
552 U.S. 364 (2008)
FACTS: Maine passed a law that prohibited anyone other than a Maine-licensed tobacco retailer from
accepting an order for delivery of tobacco. The law required the retailer to arrange for delivery with
ISSUE: Could Maine impose standards and laws on out-of-state sellers that affected their ability to compete
with in-state businesses?
HOLDING: No.
REASONING: In a 9 to 0 decision, the Court held that the Maine law may have been passed with health benefits
4. The commerce power as a limitation on states – prevents states from acting in a way that interferes with
federal regulation or burdens interstate commerce
B. The financial powers
1. Article I, Section 8, Clause 1 of the Constitution provides that “Congress shall have power to lay and
collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and
general welfare of the United States.”
2. The taxing power
a. Direct (real estate)
b. Indirect (gasoline)
c. Uniformity
CASE BRIEF: New Mexico Taxation and Revenue Department v. BarnesandNoble.com LLC
303 P.3d 824 (N.M. 2014)
FACTS: The facts of this case are not in dispute. Barnesandnoble.com LLC (Bn.com) is a Delaware
corporation that sells books, movies, and other media over the internet. In 2006, the New Mexico
Taxation and Revenue Department (the Department) assessed gross receipts tax against bn.com
on its sales to New Mexico residents during a period from January 1998 through July 2005. Bn.com
protested the assessment, and a hearing officer granted summary judgment to bn.com, finding that
it lacked a substantial nexus with the State of New Mexico, and therefore it could not
constitutionally be required to pay the tax. The Department appealed, and the Court of Appeals
held that bn.com had a substantial nexus with the state. Bn.com appealed.
ISSUE: Did New Mexico have constitutional authority to tax bn.com?
HOLDING: The court affirmed the Court of Appeals decision.
REASONING: The court found the following: (1) Booksellers’ promotion of bn.com through sales of gift cards
of Barnes & Noble logos and trademarks, which bn.com also used. Because Booksellers’ activities
DISCUSSION POINTS: E-Commerce & Cyberlaw
Internet and Interstate
The issue of how to tax Internet sales is a contentious one. The physical presence aspect of most tax codes is no
longer applicable and there are fairness arguments on how new e-commerce is to be taxed. Discuss the lack of
physical presence. Discuss why states would propose taxes (the complexity of state-by-state administration) to make
one overall tax level important. Amazon now pays some form of tax in all states despite its meticulous efforts to stay
out of states – even controlling the number of times employees could be in particular states.
3. The spending power
a. For defense, welfare, debts
4. The banking power – Congress can create and regulate banks
V. What Rights and Protections (Constitutional Limitations) are Afforded Individuals Under the Constitution?
A. Due process
1. Fifth and Fourteenth Amendments – right to be heard before a right is changed
2. Expansion of due process – explain how the due process requirement of the Constitution is applied to
3. Shortcut procedures – speed up hearing or litigation
4. Quasi-judicial proceedings qualify as sufficient due process
B. Equal protection of the law
1. Have your students locate and read the Fourteenth Amendment
2. Refer your students to the Thirteenth Amendment, adopted December 18, 1865, and the Fourteenth
Amendment, adopted July 28, 1868. With regard to the equal protection clause in the Fourteenth
Amendment, explain to the students that in the case of Plessy v. Ferguson (1896), 163 U.S. 537, 16
S.Ct. 1138, 41 L.Ed. 256, the U.S. Supreme Court declared that state laws requiring segregation of
blacks and whites in schools (and ultimately in other areas) were not unconstitutional. The theory was
that the mere separation of the racial groups did not constitute discrimination against either race and
that separate but equal facilities were permissible. However, in Brown v. Board of Education (1954),
374 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the same court held that the separate but equal doctrine held
constitutional in 1896 was unconstitutional in school segregation cases. The reasoning was that it was
a violation of the Fourteenth Amendment to have separate but equal facilities. Separate but equal
facilities implies an inequality; otherwise, why would the groups be separated? Ask the students how
the U.S. Supreme Court can decide in 1896 that separate but equal facilities are constitutional and then
reverse itself in 1954. Is this an example of the bedrock principle or the living constitution principle?
3. Reasonable classification
4. Improper classification – race, national origin or religion
5. Broad protections and broad applications – see, e.g., Bush v. Gore and the Supreme Court application
of due process to some recounting in some Florida counties and none in others with different processes
C. Privileges and immunities
1. Article IV
2. Allows business across state lines
3. Right to move from state to state
D. Protection of the person
1. Rise of constitutional protection of the person
2. Right to privacy
3. Right to marry
4. Protection from discrimination
5. Right of association
E. The Bill of Rights and business as a person
1. Businesses (corporations) have rights against unlawful search and seizure
2. Businesses have freedom of speech
CASE BRIEF: Citizens United v. Federal Election Commission
558 U.S. 310 (2010)
FACTS: In January 2008, Citizens United released a film entitled Hillary: The Movie (Hillary), a 90-minute
documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party’s
2008 Presidential primary elections. Most of the commentators in the film were quite critical of
Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to
increase distribution by making it available through video-on-demand.
Citizens United produced two 10-second ads and one 30-second ad for Hillary. Each ad included a
short, pejorative statement about Senator Clinton, followed by the name of the movie and the
movie’s Website address. Citizens United wanted to run the advertisements on broadcast and
cable television. The Federal Election Commission (FEC) wanted to stop Citizens United from
running the ads and Citizens United brought suit seeking a preliminary injunction against the FEC.
The District Court denied Citizens United (appellant) a preliminary injunction and granted the FEC
(appellee) summary judgment. Citizens United requested and was granted certiorari.
ISSUES: 1. Was the Section 441b provision on prohibiting corporate speech prior to an election criminal
constitutional?
2. Were the disclosure requirements on who was paying for the ads constitutional?
HOLDING: 1. No.
2. Yes.
REASONING: The court held that the restrictions on running ads were unconstitutional as a prior restraint on
The judgment of the District Court is reversed on restrictions on corporate independent
DISCUSSION POINTS: Thinking Things Through
Freedom of Speech and Our Headlights
In the case, the city of Ellisville offered as a defense that its officers had stopped issuing tickets for flashing
headlights. However, the judge found that other statutes could be used to prosecute individuals and that such
prosecution, under any ordinance or statute, would inhibit Mr. Elli’s right to communicate with other drivers. The court
held that there was a valid civil rights action and issued a preliminary injunction against the city on ticketing drivers for
flashing their headlights. The case will now proceed to trial for a determination of damages and whether the ticketing
should be stopped permanently.
Radar detectors may be outlawed, but the age-old practice of headlight flashing is now protected as a First
Amendment right.
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Preemption. The U.S. Supreme Court held that the $100 fee charged interstate trucking companies by Michigan
was not preempted by the SSRS. Congress did not specifically prohibit such a system and indicated that the
2. Taxation. The court held there was sufficient contact and control of Penney for the tax to be imposed
constitutionally. An excerpt from the decision follows:
The taxpayer acquired title to the catalogs before they were mailed into Massachusetts and instructed
the postal service to return any undelivered catalogs to its Connecticut distribution center, facts that
indicate that the taxpayer never relinquished its title to, and right to possess, the catalogs in
Massachusetts until such time as they were delivered to their intended recipients. Moreover, United
It is a settled principle of our taxation jurisprudence that tax statutes are “to be construed as imposing
taxes with respect to matters of substance and not with respect to mere matters of form.” Green v.
Commissioner of Corps. & Taxation, 364 Mass. 389, 394, 305 N.E.2d 92 (1973), quoting Commissioner
of Corps. & Taxation v. Second Nat’l Bank, 308 Mass. 1, 6, 30 N.E.2d 889 (1941). It is apparent from
the board’s findings that the taxpayer, even though it did not itself physically possess the catalogs in
This principle is applicable here, as the United States Postal Service, which carried the catalogs into the
Commonwealth and delivered them to Massachusetts residents, possessed and acted on the taxpayer’s
property in the Commonwealth at all times in accordance with the taxpayer’s express instructions and
on the taxpayer’s behalf. The taxpayer, who acquired title to the catalogs prior to their entry into
3. Commerce Clause. The law did not apply to business activity. Although guns and schools with problems can
4. Individual rights. In the case, the right of association was used and students could not be forced to support
5. Due process. The U.S. Supreme Court held that the expectation or interest in continuing to receive gas was an
interest that came within the protection of property in the due process clause of the Fourteenth Amendment. It
6. Preemption. The justices allowed the state suit to go forward because they could not see that state tort law was
preempted because of its role in having manufacturers make good choices of the choices the DOT has made
available to them through its regulations. Below is an excerpt from the court’s opinion:
Like the regulation in Geier, the regulation here leaves the manufacturer with a choice. And, like the tort
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
For one thing, DOT did not believe that costs would remain frozen. [C]osts were falling as
manufacturers were “voluntarily equipping more and more of their vehicles with rear seat lap/shoulder
belts.” For another thing, many, perhaps most, federal safety regulations embody some kind of cost
We cannot reconcile this consequence with a statutory saving clause that foresees the likelihood of a
continued meaningful role for state tort law. . . . [a] standard giving manufacturers “multiple options for
7. The commerce powers as a limitation on state ability to tax. The statute was valid. The commerce power given
to the federal government is a limitation on the power of states to act when the state action places a burden on
8. Commerce clause. The court upheld the constitutionality of the Civil Rights Act because of the impact on
commerce. The following is an excerpt from the case:
There is no claim that interstate travelers frequented the restaurant. The sole question, therefore,
The record is replete with testimony of the burdens placed on interstate commerce by racial
discrimination in restaurants. A comparison of per capita spending by Negroes in restaurants, theaters,
Moreover there was an impressive array of testimony that discrimination in restaurants had a direct and
highly restrictive effect on interstate travel by Negroes. This resulted, it was said, because
discriminatory practices prevent Negroes from buying prepared food served on the premises while on a
We believe that this testimony afforded ample basis for the conclusion that established restaurants in
such areas sold less interstate goods because of the discrimination, that interstate travel was
It goes without saying that, viewed in isolation, the volume of food purchased by Ollie’s Barbecue from
sources supplied from out of state was insignificant when compared with the total foodstuffs moving in
commerce. But, as our late Brother Jackson said for the Court in Wickard v. Filburn, 317 U.S. 111, 63
S.Ct. 82, 87 L.Ed. 122 (1942):
That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough
The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates
no express constitutional limitation it has been the rule of this Court, going back almost to the founding
9. Due process protection of property rights. Ellis was correct. When a government employee can be discharged
only “for cause,” the employee has a property right that must be afforded due process protection. This requires
10. Equal protection. No. The regulation must be related to administration of the program and not targeted at
11. The privileges and immunities clause and discriminatory taxation. Yes. A state tax law that taxes nonresidents
12. First Amendment Rights. (1) Video games qualify for First Amendment protection; (2) while there are limited
exceptions to prohibition against content-based governmental restrictions on expression, for obscenity,
incitement and fighting words, new categories of unprotected speech may not be added; and (3) California failed
LAWFLIX
Oklahoma (1955) (G)
Show the students the scene in which Curly’s (Gordon MacRae) conduct in the death of Judd (Rod Steiger) is being
The Candidate (1972) (PG)
The movie depicts an idealist running for office who finds himself caught in the political process of fundraising, image
Country (1984) (PG)
A study of government repossession of the farms of midwestern families. The scenes on the auction of property and
management system for classroom use.